Broadcast regulation, for all its importance from a public interest standpoint, today seems reduced to an elaborate game of feint and manoeuvre between the Ministry of Information and Broadcasting and the country’s bigger media houses. Played out every so often in public view, there is yet no accounting for the specific intervals at which the two principals choose to enact their practised routine, except perhaps the Ministry’s reading of when it is in need of some media attention.
In its two most recent visitations, the drama has played itself out with remarkable similarity. A bill is introduced and opened up for public comments; it is greeted with a torrent of adverse comment by the country’s main media houses; the Ministry concedes the need for further consultation and organises a few such events, marked more by the exertion of lung-power than reason. Finally, the Ministry, in acknowledgment of the strong sentiments of the media industry, accepts the need for further deliberations and defers the introduction of the bill in Parliament a little longer.
In its phrasing, the new version of the Broadcast Services Regulation Bill (BSRB) differs in a few minor matters of detail from its immediate predecessor. In spirit though, it partakes of the same inspiration, making no more than a pretence of letting zealously guarded governmental powers go. That these powers are now a pale shadow of what they once were, is seemingly of no consequence. The erosion of the governmental monopoly over the airwaves has not yet engendered a constructive spirit of engagement with the potential rewards of open access to the airwaves.
The BSRB in its most recent avatar was introduced for public discussion on July 21, with the stipulation that all comments be submitted within two weeks. Even by the standards of a bureaucracy that has reduced public consultations to an empty ritual, this was rather cavalier. In the days that followed, the Minister for Information and Broadcasting, Priya Ranjan Dasmunshi, seemed to retreat from his earlier expressed intent to introduce the bill in the monsoon session of Parliament.
The reasons for the minister’s reticence can only be guessed at. But it was almost certainly a powerful consideration that industry associations and the big media houses had uniformly, reacted adversely to the draft bill. And thus, after one more round of public consultations, confined to representatives of the broadcast industry and a few other bodies that the Ministry chose to identify as “stakeholders”, the fourth attempt at broadcast regulation in a decade passed into history. Like its predecessors, it had fallen victim to the hostility of the broadcast industry and the failure of the Ministry to go beyond a narrow circle in assessing the larger public stakes in broadcast regulation.
This most recent attempt at introducing a broadcast law has shown more clearly than ever before, that the Government is unlikely to get very far if it continues to use the approval of big players in the broadcast industry as the touchstone for assessing the worth of any proposed legislation. But while the government dithers, facts on the ground are being created that make the job of regulation increasingly difficult. Cross-media ownership was once non-existent in India. Today, giant companies with entrenched interests in print, radio and television are increasingly dominating the media scene and exercising a virtual veto over any proposed legislation.
The consequence is that, 12 years after a historic judgment by the Supreme Court, which laid down the principle of public ownership over the broadcast spectrum, the Government continues to be in default on the task it was specifically enjoined to undertake: the creation of a public authority that would oversee the allocation of the spectrum for optimal public benefit.
Civil society groups, anxious to see the principle of public ownership operationalised, have focused on the many serious lacunae in the process of drafting and introducing broadcast legislation. Invariably, there has been little public consultation. Committees are formed in accordance with opaque criteria and these committees, in turn, function without any serious effort at eliciting a broad range of opinion. They finally arrive at legislative drafts that are an uneasy compromise between the government’s reluctance to let go of its controlling urge, and the broadcast industry’s aversion to accepting any form of oversight.
Yet, with every successive cycle through which this game is played out, the Government’s hand steadily weakens. Its monopoly over the airwaves has long since been breached by technological changes. And its voice, once a decisive influence in the policy debate, is steadily being diminished by the growing clout of the broadcast industry and its ability to tap the resources of the print media, to further its cause.
Though the Ministry has been insistent that it has factored in the perceptions of media consumers in producing its draft bill, there has yet been no credible account of how these consumer groups are identified. Other civil society groups have perhaps by design, been a marginal presence in the discussions so far. They have, moreover, been reluctant to join the debate on terms determined by the Government and the broadcast industry.
These aspects of the process that has been followed by the Ministry are reflected in the text of the BSRB, in its latest draft. At no point does the bill make the slightest concession to public as opposed to political control of the broadcast spectrum. The process that it conceives of for the appointment of a Broadcast Regulatory Authority of India (BRAI) is entirely political and involves little consultation with the public on a broader scale. The powers of the BRAI moreover, are not derived from the public in accordance with the mandate of the Supreme Court’s 1995 judgment, but delegated from the Government.
Discussions organised by advocacy groups around the most recent draft of the broadcast bill have thrown up a significant issue of process. The 1995 airwaves judgment gives the Government contingent rights of custodianship over the airwaves, but no enduring powers to determine how they should be utilised. Broadcast regulation, certain civil society groups have argued, should in this sense, begin with the constitution of a broad-based forum that would represent the public in the most comprehensive possible manner. The institutional forms and procedures of broadcast regulation should then be worked out by this body, rather than be assigned to it by the Government.
Media houses have for obvious reasons focused on the powers of search and seizure that the BSRB confers, as an area of serious concern. This apart, the bill identifies certain contingencies, such as an “external threat”, “public order” and more mysteriously, “friendly relations with foreign countries”, as occasions when the Government would feel entitled to abridge the content of broadcasts, or even proscribe certain categories of broadcast. This amounts to little less than the introduction of a doctrine of prior restraint into the jurisprudence on the media and the right to free speech. It is a legislative provision with farreaching consequences, which obviously deserves more than the cursory attention it has attracted so far.
Among the grounds on which the BRAI could stop certain categories of broadcasts, is a failure to abide by the so-called Self-Regulation Guidelines for the Broadcasting Sector, that have been introduced as a corollary to the new draft of the BSRB. These “guidelines”, otherwise known as the “content code”, are partly about relieving the judiciary and the Government of some of the burden of administering post facto remedies and sanctions. Broadcast service providers will be expected to set up in-house content auditors to ensure that all broadcasts are in conformity with agreed norms. Complaints from the public if any, would first be dealt with through this in-house mechanism.
If redress is unavailable at this level, the complainant would be entitled to take his grievance to the next tier in the hierarchy, which would be the industry body. All apex associations in the industry – such as the News Broadcasters’ Association, the Indian Broadcasting Federation, the Community Radio Forum, the Cable Operators’ Forum of India and the Advertising Standards Council of India – would be expected to set up “complaints commissions” to address these public grievances.
Beyond this, the BRAI comes into the picture and then the higher judiciary. Though this regulatory mechanism does not supercede the judicial process, it is expected to relieve some of the stresses that the courts endure when called upon to adjudicate on matters of media practice.
The utility of this very intrusive charter, which goes by the name of “self-regulation”, should be weighed against the possible impact that a minimal number of sound judicial precedents would have. A set of clear and transparent judicial rulings could conceivably be of far greater significance in this respect, than a policy that seeks to internalise within every media house, certain restraints on free speech.
Viewed from this perspective, there is ultimately no alternative to establishing the juridical foundations of free speech and media practice. Anything less would mean undue concessions to a doctrine of prior restraint. In this respect, there have been proposals mooted by professional bodies, to widen the ambit of the Press Council of India, to enable it to deal with the broadcast media and to tighten up its procedures so that its findings are minimally binding on the industry.
Yet the Government in addressing the mission of broadcast regulation, seems to adopt the reverse perspective: that post facto remedies are impossible or useless, and that prior restraint is the only feasible recourse. In seeking to justify the strict application of the “content code” to the media for instance, the Ministry argues that “damage or injustice resulting from news and current affairs contents of television cannot be undone post facto”.
This must seem a rather curious plea in an age of proliferating media channels, when erstwhile constraints that were deemed to arise from the physical limitations of the broadcast spectrum, are no longer operative. The changes that have arisen from these changes are apparent all around. In 1949, for instance, the Federal Communications Commission (FCC) in the U.S., enacted what came to be called the Fairness Doctrine, which was premised upon the notion that broadcast companies were no more than “public trustees” over the airwaves and obliged as such, to provide a fair hearing for every conceivable viewpoint within society. It was always a doctrine that was clumsy and selective in its application. But in 1987, with erstwhile limitations on the broadcast spectrum proving inapplicable, the FCC felt emboldened to repeal the Fairness Doctrine, on the grounds that no member of the public would be deprived of the means to access the airwaves to put his viewpoints across. Though a decision based as much on ideology as fact, it does highlight how a regulatory regime that guarantees fair rules of access, can make notions of prior restraint thoroughly superfluous.
The remedy in other words, lies not in constraining the right to free speech, but in allowing it greater latitude. Though the Government has chosen to overlook the infinite possibilities available on that front, recasting the Prasar Bharati apparatus to transform it into an authentic public service broadcaster, that ensures fair rules of access, would be one way to guarantee that false and scurrilous news reports in other channels do not go unchallenged. But with its well-known aversion to “letting go”, the Government seems unwilling to consider any progressive change on that front.
Certain other locutions within the “content code” seem to give rise to a fair suspicion that its true purpose may be to restrain the public scrutiny of official malfeasance. The following, patently illogical clause hints at this hidden intent: “Any infringement of privacy in the making of a news based/related programme should be with the person’s and/or organization’s consent or be otherwise ‘warranted’.” (Chapter IV, clause 14.4).
Though poorly enforced and understood, laws protecting an individual’s privacy are very much a part of the Indian Penal Code. Any intrusion into an individual’s privacy by the media has in this sense, to clear certain legal hurdles. Over time though, it has become an accepted principle that in cases involving the public interest, media intrusions into an individual’s privacy may be warranted, though if the revelations do not measure up in their seriousness to the gravity of the intrusion, the media would be laying itself open to sanctions under the law. Privacy in other words, cannot be a shroud for gross acts of malfeasance. The “content code” seeks to reduce this common-sense to absurdity by insisting on an individual’s consent for an invasion into his privacy.
These are matters involving media practice in its most fundamental sense, as a duty to inform the public and to contribute to the quality of the public discourse. Viewed in this manner, it would seem inadmissible that the Ministry should proceed with broadcast legislation in the complete absence of any consultations with accredited bodies of media practitioners and the larger public. That in short, is the reason why the fourth effort at broadcast regulation, like its immediate predecessor, has lacked public acceptance and legitimacy. Indeed, the principal reason why broadcast regulation has sunk into a rut, may well be the determination of the Government to keep the public interest, defined in as broad a manner as possible, out of the debate.
September 10, 2007