January 21, 2007
It could well be the epitaph for the ruinous presidency of George Bush the second, that he disdained reality. The attitude was rather neatly expressed as far back as 2002, by a senior official within the administration, who had occasion to upbraid a journalist who had stepped beyond the strict norms of criticism laid down by the White House. The trouble he said, is that there were just too many journalists who were grounded in the “reality-based community” and suffered the delusion that the world could be understood through the “judicious” study of “discernible” facts. That, though, was simply not the way things worked. Like it or not, the U.S. was an empire that created its own reality. As lesser beings went to work in “judiciously” examining new realities, the empire would move on, creating yet more novel facts. Circumstances had created two distinct groups of people. On one side were “history’s actors” and on the other stood those whose lot it would be to “study” what destiny’s chosen few did.[1]
Facts, though have proved difficult to dislodge in Iraq, even for the masters of the global empire. And as the world has watched in disbelief, Bush has continued to proudly create his own reality. If the electoral debacle he faced in November had awoken Bush to a situation that looked perilously like ignominy, the world could have drawn some reassurance and indeed, allowed some latitude for a slow learner -- one who responds to political adversity, even if he remains wilfully oblivious to the horrors inflicted on remote corners of the globe.
Quite apart from the electoral hiding, Bush was also given an indulgent but stern lecture in geopolitical complexities by a group of seniors in the business, including a man who served his father loyally through election campaigns and wars. Just a month after Bush had in the reckless abandon of the midterm elections campaign, come up with a blithe prediction of imminent victory, the Iraq Study Group (ISG) co-chaired by James A. Baker, Secretary of State under George Bush the first, turned in its considered opinion that the situation in Iraq was “grave and deteriorating”. Rather than make a bad situation worse, Baker and his associates strongly urged a scaling back of the U.S. military profile to a less conspicuous training role. A withdrawal of U.S. forces, the ISG proposed, could be initiated at the same time, accompanied by “new and enhanced diplomatic and political efforts in Iraq and the region”.
The ISG recommendations were in important respects, proffered in defiance of Bush’s own wishes.[2] Though derived from a common-sense reading of the situation, the proposal for initiating “constructive” diplomatic engagements with Iran and Syria, breached an explicitly stated prohibition of the Bush cabal. Again, the linkage that the ISG drew between the continuing denial of Palestinian rights and the turmoil in the region, broke perhaps the most sacred taboo of U.S. politics.[3]
On January 10, Bush announced what he imagined, would be a grand new vision for victory. Despite polls recording public disapproval running at over 60 percent, he ordered an additional 20,000 combat troops into Iraq. This new force level would in his estimation, pacify Baghdad, which in turn would restore a semblance of order to the whole country. This gamble with the lives of U.S. troops came with admonitions that the Iraqi government would be held to strict standards of performance. The government headed by Nuri Al-Maliki of the Da’wa Al-Islamiyya -- a Shi’a denominational party, which shares power with the Supreme Council for the Islamic Revolution in Iraq (SCIRI), another party grounded in the same constituency -- has now been enjoined to bring on board the estranged people of the Sunni Muslim faith, to end the ostracism of individuals associated with the Arab Ba’ath Socialist Party, to restore order to the oil industry, in part by assuring all sections of their rightful shares, and to take necessary steps to disarm the riotous proliferation of militias.
The aim of the higher U.S. force level, working with Iraqi personnel in the rough ratio of one to two-and-a-half, would be to “clear, secure and build” each quarter of the chaotic Iraqi capital city. Just to underline its serious intent and good faith, the U.S. has committed an augmented flow of aid to Iraq: an allocation of over a billion dollars for the restoration of that country’s thoroughly eroded civilian infrastructure.
This may seem like a small burden for the U.S. to bear. Following the authoritative pronouncement by the U.N. that the invasion of Iraq was illegal, it would be evident that war reparations are no act of goodwill, but a legal imperative the U.S. is obliged to bear.[4] And a billion dollars as special dispensation for a country that once was the envy of the region for the quality of its social services, is small recompense for the damage inflicted on its civilian infrastructure by U.S. vengefulness, beginning with the 1991 war of destruction and the punishing regime of sanctions that followed.
Yet, assuming the security machinery is in place, are the political underpinnings right? Or has Iraq reached the stage where, to paraphrase Martin Luther King’s magnificent rebellion against the Vietnam war in 1967, “there is nothing to build on – save bitterness”? In a radio broadcast shortly after a visit to Baghdad in June 2006, Bush assured the U.S. that Maliki was a leader who could be trusted: “His top priority is securing Baghdad, so Coalition and Iraqi forces have launched Operation Together Forward, a joint effort to restore security and the rule of law to high-risk areas of the city. To help the Prime Minister improve security, we will continue embedding coalition transition teams in Iraqi army and police units….”[5]
Operation Together Forward got off to a rocky start, was reassessed and launched afresh as a Hollywood style sequel titled “Together Forward II”.[6] Soon afterwards, it was abandoned, since Maliki seemed uninterested in keeping his side of the bargain. Early-November, Stephen Hadley, National Security Advisor to the U.S. President, filed a top secret report based on an extended series of interactions, offering a rather dubious assessment of the Iraqi Prime Minister’s intentions: “Despite Maliki’s reassuring words, repeated reports from our commanders on the ground contributed to our concerns about Maliki’s government. Reports of non-delivery of services to Sunni areas, intervention by the prime minister’s office to stop military action against Shi’a targets and to encourage them against Sunni ones, removal of Iraq’s most effective commanders on a sectarian basis and efforts to ensure Shi’a majorities in all ministries… all suggest a campaign to consolidate Shi’a power in Baghdad”.[7]
This assessment of Maliki’s intentions did not prevent the U.S. from being an accessory in the sordid execution of former Iraqi president, Saddam Hussein, as the year drew to an end. It seemed at first glance, a rather bizarre decision to make a public spectacle of the hanging, though on deeper consideration, those who retained some faith in the Iraqi political dispensation ordained by the U.S., may have been willing to accept it as a well-intended effort to establish that a page had been turned in a nation’s tortured history.
The plot though, went awry when the man expected to play the part of the criminal, failed to follow the script. The authorised video showed a man walking to the gallows with preternatural composure and listening attentively to his hangmen’s instructions. With Saddam going to his death like a warrior rather than a criminal, the masters of the occupation were left to cope with the popular backlash. There was initially, a deep sense of cultural offence caused by the execution of a member of the faith on the day that Sunni Muslims were beginning their religious observance of Eid ul-Adha. And even before this deliberate insult could be forgotten, a video recorded on mobile phone was posted on the internet, providing a far more authentic view of the event than the muted images broadcast over Iraq’s official TV. With his hangmen chortling in delight at the plight they had reduced a former head of state to, Saddam is shown in this video, responding with calm and cordial sarcasm. The impact was devastating. As a commentator in the Guardian wrote, the scornful reproaches that Saddam delivered to his hangmen could well be “his epitaph, exemplifying his defiance and condemning his lynching party”. “Saddam's killers have achieved the impossible,” the article concluded: “they have made us feel sympathy for him… There may not have been dignity in the dying, but there was courage.”[8]
As the import of the unauthorised video began to sink in, the organisers of the lynch mob began their salvage operation. Bush authorised senior officials to go public about their efforts to defer the execution till after the Eid observance, so that serious doubts about legal process could be assuaged. The appeals process, they said, had been concluded in less than a month and may have been hurried through to enable Maliki to fulfil a vow that Saddam would not live to see the new year. Moreover, not one member of Iraq’s presidential troika had signed the death warrant and Maliki had decided, without clear sanction, to dispense with the constitutional requirement for all three signatures.
Maliki’s damage control sought to deflect global outrage over the ghoulish images by blaming the messenger. But the arrest of two prison guards for the unauthorised video persuaded nobody. The public prosecutor who officiated over the execution, was already on record with the information that one of the two witnesses making cellphone recordings of the execution, was Mowaffak Al-Rubaie, the National Security Adviser in the Iraqi Prime Minister’s office. Rubaie himself was quick to come out with a furious denial,[9] but the suspicion that a senior official in Maliki’s administration may have been the source of the grisly images, was not easily dispelled.
As a puppet regime’s actions turned into an international public relations disaster, U.S. officials – anxious to avoid renewed obloquy – went public with their perception that Maliki “never fully explained his urgency in carrying out the death sentence”.[10] The final explanation proffered by the U.S. – that it was unwilling to stand in the way of a sovereign decision – was little less than laughable for an occupying power that was in the process of significantly augmenting force levels on sovereign Iraqi territory, despite opposition from the Iraqi government.
Since the elections of December 2005 – conducted under extremely contentious circumstances – every action and utterance of the U.S. has betrayed a complete disregard for the prized virtue of national sovereignty. To begin with, the choice of Maliki as Prime Minister was the outcome of strenuous exertions by the U.S. ambassador in Iraq, Zalmay Khalilzad. The first two names on the list fielded by the United Iraq Alliance – comprised in the main of the Da’wa and SCIRI – were Abdelaziz Al-Hakim and Ibrahim Al-Jaafari.
Hakim’s decades-long proximity to Iran was a major concern of the U.S. The Badr Brigade, armed wing of SCIRI, had fought alongside Iran in the eight-year long war against Iraq. But as a senior Shi’a cleric, Hakim in a sense, disqualified himself from the mundane tasks of wielding temporal administrative authority. Jaafari, who should then have been the logical choice, was voted down by the U.S. on the grounds that he was all through a long period of exile in Iran, known to have acquired an unseemly proximity to the clerical regime in Teheran. Maliki’s choice as prime minister, after much acrimony, was seen as a declaration of independence from Iran. Having spent most of his exile in Syria rather than Iran, Maliki was seen to owe his primary fealty to the spirit of Arab nationalism, rather than a wider denominational solidarity of the Shi’a.[11] Being the first choice of neither the Da’wa nor SCIRI, Maliki was by the circumstances of his choice, made hostage to forces loyal to the radical Shi’a cleric, Muqtada Al-Sadr.
By late-2006, the U.S. was exploring ways of bringing Hakim and moderate Sunni political formations in line with Maliki, thereby freeing him in part from his irksome bondage to the Sadr flock. This strategy was entirely consistent with the line of action urged by Stephen Hadley in his November memo to the U.S. president. But Washington’s task is to square an impossible circle. The Sadr militia is relatively autonomous of Iran, but has twice demonstrated its willingness to frontally engage U.S. forces in combat. Hakim is a more conciliatory figure in the context of Iraqi politics, but whatever Washington’s aims in Iraq, they do not include transforming the country into a satellite of Iran. To achieve even a modicum of political order and spare itself the humiliation of a tumultuous retreat reminiscent of Vietnam, the U.S. needs at the very least, to neutralise the militias, starting with Sadr’s Jaish Al-Mahdi. And that job it is realising to its utter dismay, cannot be accomplished without talking terms with Hakim.
As in the past, when it spurned opportunities for political engagement and rushed in with shows of force, the U.S. has responded to this conundrum by raising its military profile in the Gulf. An aircraft carrier battle-group has set sail to join the one already cruising off Iranian territorial waters. And within Iraq, the U.S. military has on two occasions within a month, overruled objections from Iraqi authorities to take Iranian diplomats and their aides into custody.
Those looking for the ultimate Vietnam parallel have it here. In 1969, just a month after his inauguration as U.S. president, Richard Nixon began under the influence of national security adviser Henry Kissinger, to secretly broaden the barbaric aerial war then underway against Vietnam. Bombing Cambodia was considered a necessary military response to the prolonged stalemate in Vietnam – where the U.S. was evidently losing strategically even as it won every tactical engagement. As documented by the investigative journalist Seymour Hersh, who has provided the sharpest insights into the deeply paranoiac mood of the Nixon administration: “The bombing became a turning point not only in the war but also in the mentality of the White House. The secret of that bombing - and hundreds of later missions - would be kept for five years. Eventually, the secret became more important to the White House than the bombing…”.[12]
Far from engaging Iran and Syria in talks, the Bush administration has taken the option that comes naturally to it. This shift of focus since the ISG report was submitted – from the possibility of cooperation to the certainty of confrontation – was entirely foretold. Initial responses from Bush were dismissive of the potential rewards of diplomatic engagement with Iran and Syria. And the Israeli government for its part, chipped in with loud disclaimers about any connection between the turmoil in Iraq and the wider issue of justice for the Palestinians.[13] British Prime Minister Tony Blair meanwhile, executed a trademark political pirouette: he initially welcomed the ISG recommendation to engage all the states in the region,[14] but realising soon enough that he had stepped out of line of the U.S. diktat, began an arduous effort to make amends.[15]
Blair’s rather shifty approach represents the very real tensions that have begun to surface, which have even unsettled the self-righteous complacence of the Saudi Arabian ruling family. Saudi King Abdullah in November summoned U.S. Vice President Dick Cheney to Riyadh, to lecture him on the need for greater urgency over the multiple crises in the region. He is also reported to have told Cheney that the Saudis would be obliged to fill any vacuum that may be caused by a precipitate U.S. withdrawal.[16] This undertaking came in the shape of a vow to fund and arm the Sunni militias in Iraq. By early-January, the Saudi regime had by some accounts, raised the stakes, vowing to send its armed forces into Iraq to counter the growing power of the Shi’a militias.[17]
The alarms sounding within Saudi ruling circles offer compelling evidence that the wheel of history has turned full circle. If Iraq’s declaration of war against Iran in 1980 was tragedy, then the Saudi dynasty’s call to arms against the same adversary is history repeating itself as farce. For Iraq, Shi’a militancy was a constant internal threat all through the 1970s. Imam Khomeini, the spiritual guide of the Shi’a faith in Iran, was for much of this decade, living in the Iraqi city of Najaf, a silent but powerful influence on denominational politics in his country of exile. As Vice President then – and the principal architect of the modernisation programme that unleashed violent forces of tribal and sectarian revanchism – Saddam was relentless in his attitude towards this brand of politics, spearheaded in the main by the Hakim and Sadr clerical dynasties. “What we must do”, he argued, “is to oppose the institutionalisation of religion in the state and society… Let us return to the roots of our religion, glorifying them – but not introduce it into politics”.[18]
The Hakim clan was the first to face the ruthless determination of Saddam’s modernisation drive. By 1979, Shi’a resentment at their exclusion from political power had fused with the dislocations of modernisation. Though Saddam's reforms through the 1970s had targeted the Shi’a population for special benefits, aspirations for a share in political power remained unfulfilled. The secularisation programmes of the 1970s - including the state takeover of the revenues of religious institutions and the land reforms that terminated traditional tribal forms of control - had moreover, created a disgruntled elite among the Shi’a, who responded with expected fervour to the appeal of the Islamic revolution in Iran.
In June 1980, an assassination attempt on Saddam’s close associate Tariq Aziz brought forth another crackdown. This time the Sadr dynasty bore the brunt of the regime’s fury. But with an unrelenting chorus from Teheran calling for the overthrow of Saddam’s apostate regime and the continual harassment of the Da’wa, then rightly regarded by much of the world as a terrorist group, Iraq was reluctantly pushed towards war.[19]
Quite in contrast to the version currently afloat, Saddam was no manic dictator driven by uncontrollable impulses into gratuitous acts of warfare. The war against Iran, rather, was launched after much deliberation and with the explicit approval of other Arab states, notably Saudi Arabia. Indeed, a 1981 memorandum from the then U.S. Secretary of State Alexander Haig, recently come to light, speaks of the Saudis being the conduit through which the U.S. tacitly signalled its consent for Iraq’s declaration of war.[20] There was never any serious doubt that Iraq was waging war not merely for its own security, but for all the Arab states in the Gulf. As a recent expert assessment puts it: “The war was not Iraq’s private business… but rather a defence of the eastern flank of the Arab world against fundamentalist Iran. While the Gulf states were not asked to pay with rivers of blood for the protection of their own security, since Iraq did that on their behalf, they could not expect to take a ‘free ride’..”[21]
For Saudi Arabia and the oil emirates of the Gulf, the U.S. forces are now the last remaining fortification against Iran. Strategic thinkers have in recent times begun to talk of an epic confrontation in the region that will pit Shi’a against Sunni, sparing no sovereign territory. Abdullah, the Hashemite ruler of Jordan, recently warned in his turn, that the Arab world now faces the imminent prospect of three civil wars – in Iraq, Lebanon and the occupied territories of Palestine.
Yet it is unclear that the shorthand description of the axis of estrangement, as a split between Sunni and Shi’a is really accurate. It serves the western audience’s need for easy comprehension, but is certainly untrue of the Palestinian territories. Hamas radicals and Fatah collaborationists, belong to the same religious denomination. It is also untrue of Lebanon, where the Maronite Christian leader, Michel Aoun, a former general in the national army and head of one of the contending governments in the country in the late-1980s, has quite decisively sworn his allegiance to Hezbollah, the party of the Lebanese Shi’a. Though best remembered for his opposition to growing Syrian influence in his country in the 1980s, Aoun’s record as a Lebanese patriot committed to harmony between all confessional groupings in the country’s complex political mosaic, is beyond question.
The confrontation that is brewing in the West Asian theatre rather, is all about the political formations and the regimes that have played along with the U.S.-Israeli plan to recast the political geography of the region and those that have opposed it. It is a fight against colonialism of a particularly unreconstructed variety. And it is a struggle to reaffirm the broad cross-border solidarities that have long been undermined by U.S.-Israeli stratagems and the collusion of the oil emirates. The U.S. invasion of Iraq was designed to extinguish for all time, the threat that these solidarities represented to Israel’s regional pre-eminence. Its final outcome may well be the opposite.
[1] “Reality based community” is a phrase taken from the journalist Ron Suskind’s account of an encounter with a senior official from the Bush administration (See “Faith, Certainty and the Presidency of George W. Bush, The New York Times, Magazine, October 17, 2004).
[2] “Bush, After Talk With Iraq Panel, Says He’s Open to Change, but ...”, The New York Times, November 14, 2006.
[3] James A. Baker, Lee H. Hamilton, et al, The Iraq Study Group report, Vintage Books, New York, December 2006. The essential points are in the executive summary between pages xiii and xviii.
[4] See this writer’s “Iraq: The Descent into Chaos, And a case for war reparations”, EPW, September 25, 2004; available at: http://www.epw.org.in/showArticles.php?root=2004&leaf=09&filename=7718&filetype=html.
[5] From the U.S. President’s website, at the following URL: http://www.whitehouse.gov/news/releases/2006/06/20060617.html
[6] “The president’s last throw”, The Economist, January 13, 2007, pp 22-4, provides details of how Operation Together Forward rapidly degenerated into an unfettered round of sectarian bloodletting. Also see Frank Rich, “Dying to Save the GOP Congress”, The New York Times, October 29, 2006, for the following assessment of the security operations launched in June: “As we’ve learned from Operation Together Forward, when Iraqis do stand up, violence goes up. And when American and British troops stand down, murderous sectarian militias, some of them allied with that ‘unity’ government, fill the vacuum, taking over entire cities like Amara and Balad in broad daylight”.
[7] The document was published in full in The New York Times dated November 29, 2006, headlined “Text of U.S. Security Advisor’s Iraq memo”.
[8] Stephen Moss, “Was Saddam’s death dignified?”, The Guardian, January 2, 2007; available at: http://www.guardian.co.uk/Iraq/Story/0,,1981195,00.html.
[9] The New York Times posted on its website a story which reported, early hours of January 3, as follows: “… one of the officials who attended the hanging, a prosecutor at the trial that condemned Mr. Hussein to death, said that one of two men he had seen holding a cellphone camera aloft to make a video of Mr. Hussein’s last moments — up to and past the point where he fell through the trapdoor — was Mowaffak al-Rubaie, Mr. Maliki’s national security adviser. Attempts to reach Mr. Rubaie were unsuccessful. The prosecutor, Munkith Al-Faroun, said the other man holding a cellphone above his head was also an official, but he could not recall his name”. These references were omitted in a later version posted on the website, but were retained in the print edition of the newspaper. See “Iraq to examine abusive conduct toward Hussein”, The New York Times, January 3, 2007, available at: http://select.nytimes.com/search/restricted/article?res=FB0913FA3C540C708CDDA80894DF404482 (link requires subscription). If another account provided by Munkith Al-Faroun, this time to the BBC, were to be considered, it would become virtually impossible to dispel the suspicion that shrouds Mowaffak Al-Rubaie. This eyewitness account records him saying as follows: “Fourteen people were present, … including me who was there for the prosecution and the judge, who represented the court… I don't know the names of the officials who attended the execution except Dr Mowaffak Al Rubaie - I'd seen him on television”. If Rubaie was the only person that Faroun recognised in the gathering, then it stands to reason that he could not have misidentified him as one among the two Iraqi government officials recording the event on video-enabled cellphone. (See: Mahdi Abdelhadi, “Witness tells of Saddam’s last moments”, available at this writing at: http://news.bbc.co.uk/2/hi/middle_east/6257077.stm).
[10] “Iraq to examine abusive conduct toward Hussein”, The New York Times, January 3, 2007, available at: http://select.nytimes.com/search/restricted/article?res=FB0913FA3C540C708CDDA80894DF404482
[11] See: David Ignatius, “In Iraq’s Choice, a Chance for Unity”, The Washington Post, April 26, 2006, page A25.
[12] Seymour Hersh, The Price of Power, Kissinger in the Nixon White House, Summit Books, 1983, p 53.
[13] The New York Times, December 8, 2006, “Israeli Leader Rejects Link Between Iraq and Mideast Woes”.
[14] “Bush-Blair split over report’s key proposals, President rejects talks with Iran and Syria”, The Guardian, December 8, 2006.
[15] “Iran fury at Blair 'tirade of allegations'”, The Times, London, December 28, 2006; available at: http://www.timesonline.co.uk/article/0,,251-2520628,00.html.
[16] “If US leaves Iraq we will arm Sunni militias, Saudis say”, The Guardian, December 14, 2006.
[17] These reports were carried by a number of news channels, such as Al Jazeera. See: http://www.aljazeera.com/cgi-bin/conspiracy_theory/fullstory.asp?id=362
[18] Quoted in Efraim Karsh and Inari Rautsi, Saddam Hussein, A Political Biography, Brassey’s, 1991, page 142.
[19] The path to war is retraced with admirable clarity in Karsh and Rautsi, op. cit., chapter 6.
[20] The “talking points” memo filed by Alexander Haig is marked “top secret” and reports a series of fruitful diplomatic engagements in Egypt and Saudi Arabia. This document is available in facsimile at the website of the investigative journalist Robert Parry: www.consortiumnews.com. It is at the moment of writing, accessible through the archives of the website http://www.consortiumnews.com/archive/xfile5.html.
[21] Michael T. Klare in Andrew J. Bacevic and Efraim Inbar (editors), The Gulf War of 1991 Reconsidered, Frank Cass, 2003, p 14.
Friday, February 09, 2007
Sunday, February 04, 2007
After Saddam, Nobody left to blame
With Saddam out of the way, the U.S. will have nobody left to blame for the looming catastrophe in West Asia
Sukumar Muralidharan
There is a personality trait that George Bush, president of the U.S.A., has never been able to shake off. As governor of the state of Texas, he won great eminence as the most prolific executioner in the U.S., sparing nobody who had been convicted under the state’s infamously lax judicial processes from an experience of the after-life. This quirk has lived with him since and is so strongly manifest at times that it could well be a pathological condition requiring professional assistance.
Saddam Hussein, the president of Iraq who for all of a quarter-century, survived the adversities of war, neighbourly hostility, and the most brutal regime of economic sanctions ever devised, was on November 5, 2006, sentenced to die on the gallows. The date of the verdict was chosen with deliberate attention to the midterm elections to the U.S. Congress on November 7. It was in media parlance, designed to dominate the “news cycle” before the balloting began, to enable Bush to gather a rich harvest of votes from a U.S. populace grateful for the imminent demise of a dictator.
The U.S. electorate though, proved cussedly ungrateful and Bush went down to ignominious defeat. Shortly afterwards, the boy-president was administered a stern rebuke from a group of elders in the business of international geopolitics, who told him that quite contrary to his blithe predictions of imminent victory just weeks before, the situation in Iraq was “grave and deteriorating”. The Iraq Study Group co-chaired by former Secretary of State James Baker, who has loyally served Bush senior through election campaigns and wars, also reprimanded junior for his reckless, go-it-alone strategy, strongly urging him to bring major players in the region, like Iran and Syria, into the endeavour of pacifying Iraq.
Bush’s response was not to heed the advice of elders, but to fall back once again on the gratuitous excitement afforded by the spectacle of a judicial murder. On December 30, after an appeals process that failed to meet the most rudimentary standards of judicial fairness, Saddam Hussein was hanged in a dank and dinghy chamber in Baghdad. The Eid Al-Adha observance was just beginning for the Sunni Muslim faith and the timing of the execution was a deliberate cultural affront, confected by the U.S. masters and a narrow clique within Iraq’s Shi’a community, intent on revenge for real and imagined indignities suffered under Saddam.
Even those who retained some residual faith in the bonafides of the Iraqi government, thought the decision to make a public spectacle of a hanging rather bizarre, though in the final instance, they were willing to grudgingly accept it as a well-intended effort to establish that a page had been turned in a nation’s tortured history.
The plot though, went awry when the man expected to play the part of the criminal brought to justice, refused to play by the script. The official video released soon after the hanging, showed a man who went to his death with the dignity of a warrior. And a cellphone video recording – put into circulation on the internet shortly afterwards with the suspected complicity of the Iraqi government – gave a new definition to the term “gallows humour”. It showed the deposed president cordially engaging his hangmen in mutual insults as he stood with a noose around his neck, unequivocally emerging with the advantage in the exchanges, until the trapdoor opened up under him.
As the import of the unauthorised video began to sink in, the Bush administration authorised senior officials to go public about its efforts to defer the execution till after the Eid observance, so that questions about legal process could be answered. And as a puppet regime’s actions turned into an international public relations disaster, U.S. officials – anxious to avoid renewed obloquy – went public with their perception that Iraqi Prime Minister Nuri Al-Maliki “never fully explained his urgency in carrying out the death sentence”. But the U.S. had ostensibly been reluctant to stand in the way of a sovereign decision by the Iraqi government to put the former president out of the way.
Less than a fortnight afterwards, Bush returned to form after that brief interlude of concern for Iraqi sovereignty. In defiance of the popular mood in the U.S. and the explicit objections of the Iraqi government, he ordered another 20,000 U.S. troops into Iraq in a final gambit to save his war enterprise from an ignominy greater than Vietnam.
The new U.S. force deployments would be tasked with securing Baghdad, in league with police and army personnel to be mobilised by the Iraqi government. No catchy name has yet been coined for the new phase in the evolving disaster. But Bush’s final throw of the dice strongly brings to mind his bravado from just months before, when he announced “Operation Together Forward”, a military campaign undertaken in association with Iraqi forces, to finally clear Baghdad of all its irksome insurgents.
Then as now, Bush had a trophy to display in gratification of his most sordid instincts. He had for long put down all the troubles in Iraq to the Al Qaeda operation ostensibly headed by the Jordanian born Ayman Al-Zawahari. Following Zawahari’s elimination in June 2006, Bush made a hugely hyped visit to Baghdad to link hands with Maliki and celebrate the new trophy he had added to his ample collection. In a radio address following his return home, Bush assured the U.S. public that Maliki was a leader who could be trusted to act in the best interests of Iraq. By “embedding” military teams in “Iraqi army and police units”, he announced, the U.S. would assist in the final transition to peace and harmony by “improving” command and control and “rooting out” corruption.
Operation Together Forward got off to a rocky start and was quickly returned to the drawing board for serious reassessment. It was then relaunched and abandoned soon afterwards, since Maliki seemed uninterested in keeping his side of the bargain. Rather, his main priority seemed to be to save the Shi’a militias, especially the Jaish-Al Mahdi led by his clerical patron, Muqtada Al-Sadr, from the intrusive attentions of the U.S. military force.
This much indeed was recorded by Stephen Hadley, National Security Advisor to the U.S. President, in a top secret report filed early in November, after an extended series of interactions with Maliki. But the U.S. has no other horse to back in Iraq. And if it wants to return a semblance of order to the country, it needs necessarily to recruit the goodwill of neighbouring states like Iran and Syria.
Needless to say, this is an admission of failure that is completely contrary to Bush’s fundamental instincts. And he has responded to the looming certainty of defeat the only way he knows – by escalating the threats against Iraq’s neighbours. Thus has it come to pass, that much like the catastrophe of Vietnam, which spilled over national boundaries to embrace Cambodia and Laos in its malevolence, Iraq too seems on the verge of sparking off a full-fledged regional war. And this conflagration will, if anything, be infinitely more traumatic, not merely for West Asia but for the whole world.
Sukumar Muralidharan
There is a personality trait that George Bush, president of the U.S.A., has never been able to shake off. As governor of the state of Texas, he won great eminence as the most prolific executioner in the U.S., sparing nobody who had been convicted under the state’s infamously lax judicial processes from an experience of the after-life. This quirk has lived with him since and is so strongly manifest at times that it could well be a pathological condition requiring professional assistance.
Saddam Hussein, the president of Iraq who for all of a quarter-century, survived the adversities of war, neighbourly hostility, and the most brutal regime of economic sanctions ever devised, was on November 5, 2006, sentenced to die on the gallows. The date of the verdict was chosen with deliberate attention to the midterm elections to the U.S. Congress on November 7. It was in media parlance, designed to dominate the “news cycle” before the balloting began, to enable Bush to gather a rich harvest of votes from a U.S. populace grateful for the imminent demise of a dictator.
The U.S. electorate though, proved cussedly ungrateful and Bush went down to ignominious defeat. Shortly afterwards, the boy-president was administered a stern rebuke from a group of elders in the business of international geopolitics, who told him that quite contrary to his blithe predictions of imminent victory just weeks before, the situation in Iraq was “grave and deteriorating”. The Iraq Study Group co-chaired by former Secretary of State James Baker, who has loyally served Bush senior through election campaigns and wars, also reprimanded junior for his reckless, go-it-alone strategy, strongly urging him to bring major players in the region, like Iran and Syria, into the endeavour of pacifying Iraq.
Bush’s response was not to heed the advice of elders, but to fall back once again on the gratuitous excitement afforded by the spectacle of a judicial murder. On December 30, after an appeals process that failed to meet the most rudimentary standards of judicial fairness, Saddam Hussein was hanged in a dank and dinghy chamber in Baghdad. The Eid Al-Adha observance was just beginning for the Sunni Muslim faith and the timing of the execution was a deliberate cultural affront, confected by the U.S. masters and a narrow clique within Iraq’s Shi’a community, intent on revenge for real and imagined indignities suffered under Saddam.
Even those who retained some residual faith in the bonafides of the Iraqi government, thought the decision to make a public spectacle of a hanging rather bizarre, though in the final instance, they were willing to grudgingly accept it as a well-intended effort to establish that a page had been turned in a nation’s tortured history.
The plot though, went awry when the man expected to play the part of the criminal brought to justice, refused to play by the script. The official video released soon after the hanging, showed a man who went to his death with the dignity of a warrior. And a cellphone video recording – put into circulation on the internet shortly afterwards with the suspected complicity of the Iraqi government – gave a new definition to the term “gallows humour”. It showed the deposed president cordially engaging his hangmen in mutual insults as he stood with a noose around his neck, unequivocally emerging with the advantage in the exchanges, until the trapdoor opened up under him.
As the import of the unauthorised video began to sink in, the Bush administration authorised senior officials to go public about its efforts to defer the execution till after the Eid observance, so that questions about legal process could be answered. And as a puppet regime’s actions turned into an international public relations disaster, U.S. officials – anxious to avoid renewed obloquy – went public with their perception that Iraqi Prime Minister Nuri Al-Maliki “never fully explained his urgency in carrying out the death sentence”. But the U.S. had ostensibly been reluctant to stand in the way of a sovereign decision by the Iraqi government to put the former president out of the way.
Less than a fortnight afterwards, Bush returned to form after that brief interlude of concern for Iraqi sovereignty. In defiance of the popular mood in the U.S. and the explicit objections of the Iraqi government, he ordered another 20,000 U.S. troops into Iraq in a final gambit to save his war enterprise from an ignominy greater than Vietnam.
The new U.S. force deployments would be tasked with securing Baghdad, in league with police and army personnel to be mobilised by the Iraqi government. No catchy name has yet been coined for the new phase in the evolving disaster. But Bush’s final throw of the dice strongly brings to mind his bravado from just months before, when he announced “Operation Together Forward”, a military campaign undertaken in association with Iraqi forces, to finally clear Baghdad of all its irksome insurgents.
Then as now, Bush had a trophy to display in gratification of his most sordid instincts. He had for long put down all the troubles in Iraq to the Al Qaeda operation ostensibly headed by the Jordanian born Ayman Al-Zawahari. Following Zawahari’s elimination in June 2006, Bush made a hugely hyped visit to Baghdad to link hands with Maliki and celebrate the new trophy he had added to his ample collection. In a radio address following his return home, Bush assured the U.S. public that Maliki was a leader who could be trusted to act in the best interests of Iraq. By “embedding” military teams in “Iraqi army and police units”, he announced, the U.S. would assist in the final transition to peace and harmony by “improving” command and control and “rooting out” corruption.
Operation Together Forward got off to a rocky start and was quickly returned to the drawing board for serious reassessment. It was then relaunched and abandoned soon afterwards, since Maliki seemed uninterested in keeping his side of the bargain. Rather, his main priority seemed to be to save the Shi’a militias, especially the Jaish-Al Mahdi led by his clerical patron, Muqtada Al-Sadr, from the intrusive attentions of the U.S. military force.
This much indeed was recorded by Stephen Hadley, National Security Advisor to the U.S. President, in a top secret report filed early in November, after an extended series of interactions with Maliki. But the U.S. has no other horse to back in Iraq. And if it wants to return a semblance of order to the country, it needs necessarily to recruit the goodwill of neighbouring states like Iran and Syria.
Needless to say, this is an admission of failure that is completely contrary to Bush’s fundamental instincts. And he has responded to the looming certainty of defeat the only way he knows – by escalating the threats against Iraq’s neighbours. Thus has it come to pass, that much like the catastrophe of Vietnam, which spilled over national boundaries to embrace Cambodia and Laos in its malevolence, Iraq too seems on the verge of sparking off a full-fledged regional war. And this conflagration will, if anything, be infinitely more traumatic, not merely for West Asia but for the whole world.
Thursday, December 28, 2006
Broadcast Regulation and the Public Right to Know
Satellite broadcasting is a visible presence in everyday life and one of the faster growing sectors of the last decade or more. But in India it has largely functioned within a legislative and regulatory vacuum. This is a reality that lends itself to different interpretations. Champions of the free market would see the electronic media in India as testimony to the entrepreneurial dynamism that has been unleashed since liberalisation became the reigning ethos of economic policy. In this perception, the revolution in media matters has not come a moment too soon, since creativity has remained suppressed far too long under the meddlesome regulatory zeal of the government. Even if governments were to rouse themselves out of the inertia of incomprehension and seek to legislate for the broadcast sector, they are unlikely to get very far, since the inherent dynamism of the sector would elude all efforts at regulation.
Unsurprisingly, this version of events has held the field with little challenge, since the media, uniquely among industries, is in a position to mould public perceptions about itself. In brief and sporadic intervals, though, an alternative perspective is heard, which purports to speak on behalf of an ill-defined “public interest”. The broadcast industry has in this account, remained for too long free of constructive legislative inputs, since every effort at regulation, in part because of the ill-remembered days of the controlled economy, has swiftly come undone. In the circumstances, the broadcast industry, dominated by giant media houses, has managed to colonise the electromagnetic spectrum for private benefit, flouting an explicit judicial finding that the airwaves are the property of the public.
Since the Supreme Court's judgment of 1995 in the case of the Cricket Association of Bengal versus the Ministry of Information and Broadcasting, it has become part of the orthodoxy on media regulation that the airwaves belong to the public. It is a principle that lends itself to easy and often rather passionate enunciation. Unfortunately, very little of the same passion, not to mention clarity, has been evident in negotiating two basic issues involved in translating this principle into practice: instrumentality and agency. What possible agency could operationalise the constitutional principle that the airwaves belong to the public? And what instrumentality could this agency, when it is appropriately empowered, deploy in pursuit of its mission?
Early in August 2006, the Ministry of Information and Broadcasting (MIB) posted on its official website, the draft of a law, titled the Broadcast Services Regulation Bill (BSRB), which sought among other things, to provide legal backing for the principle of the public ownership over the airwaves.[i] Apart from this rather laudable object, another of the stated purposes of the bill was to give legislative backing to the numerous regulatory orders pertaining to satellite broadcasting, issued since the mid-1990s.
A first evaluation of the BSRB reveals that it does not spend much time or effort on the issue of agency. Like many other legislative initiatives, the BSRB displays the conceit of governments that believe they can appropriate the mantle of speaking on behalf of the public. And where instrumentality is concerned, the BSRB displays very little creativity, falling back instead on the discredited old device of reserving for the government the arbitrary - and in the final instance, overbearing - powers of police enforcement inherited from colonial law. Judging from its fleeting appearance in the public discourse, the BSRB could well be another legislative effort defeated by a deficit of the policy imagination, not to mention the assiduous efforts of powerful lobbies.
As if to reaffirm that the power to mould public opinion suffers from a serious skew, the media industry was permitted by circumstances, to have its say on the BSRB well before the public was brought into the discussion. Public perceptions of a major legislative initiative, in short, were moulded by the industry that has the greatest stake in diluting the scope of the law and preserving the largest area of autonomy for itself. This is a situation abounding in curiosities, though there is little novelty in the media being, uniquely among business sectors, the arbiter of public opinion in matters involving itself.
Media groups have their say
Towards the end of July 2006, Delhi's leading newspaper, which has recently acquired a presence in Mumbai, carried a sequence of three articles warning that the proposed broadcast legislation was a significant threat to all the free speech guarantees of the Indian constitution. All three articles were published under the caption “Media Muzzled” and their basic purport was that the BSRB embodied a familiar pattern of official paranoia and unreason. “Every few years”, began the first of the articles, “a nervous government decides that the media has gone overboard and must be subject to regulation. Democracy and free speech do not mean spreading canard about public authority, endangering national security and allowing for obscenity, runs the argument (sic)”. With the draft of the BSRB having leaked out, the article continued, considerable “disquiet” had arisen over what looked like “another attempt ... to muzzle the media”.[ii]
Inevitably and it must be said, rather self-servingly, the media chose to highlight those provisions of the BSRB that endowed the government and its official machinery with punitive powers. There was moreover, a consistent attempt to play up the circumstances under which the media would become the target of vindictive official action. The country's largest English newspaper for instance, observed in its report, that the BSRB “expanded on the already existing draconian provisions present in the Cable Network Regulations Act and the direct-to-home (broadcasting) guidelines”. The newsreport then went on to describe, with little attention to nuance or detail, the powers of search and seizure that the BSRB proposed to invest the government with, before concluding with an account of the penalties that the media would attract if it incurred official displeasure.[iii]
A recent debutant among Mumbai newspapers, that seemingly represents the new era of cross-linked media partnerships, had meanwhile, had its say on the matter. Under a vivid and exhortatory headline, the newspaper – in which both India’s largest satellite broadcaster and the company that owns the country’s largest circulated newspaper have equity investments – urged that the BSRB be “killed”. Effortlessly conflating the rights of the media into those enjoyed by the public under the Constitution, the newspaper asked: “What is it with our officialdom that when it comes to fundamentals of democracy they can't seem to get it after five decades of experience? Their latest attempt at bullying the citizen is a Bill that the Information & Broadcasting ministry (sic) has drafted, ostensibly to restrain media monopolies but in fact to subvert freedom of the press, and therefore of the right to free expression as guaranteed by our fine Constitution drawn up in 1950”.[iv]
Sifting through this relentless campaign against the BSRB, it would be possible to discern two quite distinct currents of opinion. There is one perception that tends to view the rights of the media as a category apart, deserving protection in themselves. Then there is another, that views the media as an institution embodying the broader civil rights of the citizens of India.
Media rights are not a separate category
It is a well-established principle in Indian jurisprudence that the media enjoys rights coterminous with the public. This is quite unlike the situation in the U.S., where the First Amendment to the Constitution - whether by oversight or intent - ensured that the “press” enjoys rights that go beyond the public right to free speech.[v] In contrast, the Indian Constitution confers on the media no more and no less, than the rights due to it as an institution that benefits from the public right to free speech and expression, as enshrined in Article 19(1)(a).
Media freedom is derived from the right to free expression, which in turn is related to the public right to information. Media freedom and the public right to free speech, are coextensive in Indian jurisprudence. Commercial media institutions and the private individual derive identical rights from a single article of the Indian Constitution. But since the right to information is a counterpart right to free speech, the media's freedom is in part, the fulfilment of the public right to information. From here, it would be a short transition to a legal doctrine that media freedom is justified - in whole or in part - by the public function it performs, of informing citizens and the wider community about the various facets of their lives and the times they live in. This is the constitutional position as advanced in significant judgments involving the media, such as Sakal Newspapers versus the Union of India[vi] and Bennett Coleman and Company Ltd versus the Union of India[vii].
The latter judgment is especially significant for the insights it affords into the media as an institutional beneficiary of the public right to free speech. At issue in the Bennett Coleman case was a government directive limiting the allocation of newsprint to publishers in accordance with their reported consumption of the commodity. In a context of acute shortage, it seemed that the only means available to keep the newspaper industry functioning, was to ration the allotment of newsprint. This made it imperative that newspapers publish no more than ten pages. Those that did, were obliged to bring down their daily offering to that number. They would not be permitted to reduce circulation to maintain or increase the number of pages. To provide a full day’s complement of news, publishers could rationalise their allocation of space between editorial and advertisement material. Or they could maintain profitability by curtailing news coverage to accommodate advertisements.[viii]
All this would seem a thoroughly unwarranted intrusion into the micro-management of a newspaper. Expectedly, the entire scheme was held to be in violation of the Constitution by the Supreme Court. The majority opinion in the case, authored by Justice A.N. Ray, held that the “individual rights of freedom of speech and expression of editors, directors and shareholders, are all expressed through their newspapers”. But if this seemed too narrow a construction of a fundamental right, the Court a few paragraphs on, applied the necessary remedies, though without explaining the logic through which the rights of “editors, directors and shareholders” mutated into a right enjoyed by all citizens. “It is indisputable” said the Court, “that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express”.[ix]
This judicial formulation presented in an incipient form, a potential area of conflict in the relationship between the media and the public. In one formulation, the public is given the “right to read” all that it is provided by the “editors, directors and shareholders” of the press. In another, the public is accorded the right to “speak and express”. In its elision of the reasoning by which one species of rights is transformed into another, the Supreme Court majority in the Bennett Coleman judgment, lost an opportunity to provide some measure of clarity on this issue.
To some degree, that absence in judicial reasoning was remedied in the significant dissent entered by Justice K.K. Mathew in Bennett Coleman. Alone on the bench of five judges that heard the case, Justice Mathew spoke of press freedom in terms of the preservation of social diversity and choice. The Court had before it the challenge of ensuring that the appropriate conditions existed for bringing “all ideas into the market (to) make the freedom of speech a live one having its roots in reality”. In pursuit of this ideal, it was necessary as a first step, to recognise that “the right of expression” would be “somewhat thin if it can be exercised only on the sufferance of the managers of the leading newspapers”.
Freedom of expression, in other words, also involved the right of access to media space. And this requirement would be met only through the “creation of new opportunities for expression or greater opportunities (being provided) to small and medium dailies to reach a position of equality with the big ones”. This was as important, said Justice Mathew, “as the right to express ideas without fear of governmental restraint”.[x]
Free speech and the right of access
“Access” was one of the crucial questions raised in Justice Mathew’s dissent: access both of the public to the media environment and of the media organisation to the essential resources of its trade. Though the latter was the key issue before the bench, the dissenting judgment tied it into the larger question of the public function of a newspaper and its socially enjoined duty to reflect the diversity of its milieu.
Though these criteria are not quite so easily transported to the broadcast domain, the underlying principles have a certain universality. Newsprint in the 1970s was regarded as a scarce commodity, much as the electromagnetic spectrum was in the early years of satellite broadcasting. Newsprint has since become abundantly available, much like frequency slots for broadcast channels. Advertisement revenue, then regarded as a limited resource, has since grown enormously, though the competition between newspaper groups for cornering increasing shares of this expanded cake, has greatly intensified. And even if the proliferating broadcast channels of the last decade-and-a-half have not been very transparent in their financial accounting, the mere fact that they exist, is sufficient proof that the aggregate of advertisement spending in the Indian economy has been percolating, albeit in varying degrees, to all of them.
The principal restraint then to using the electromagnetic spectrum as a public resource, lies not in its scarcity, as in the powers and privileges that the government may have arrogated to itself. In this respect, the Supreme Court ruling in the airwaves case has been very clear: the government may have a custodian's responsibility, but no inherent right to monopolise the airwaves, since the spectrum belongs to the people. As Justice P.B. Sawant put it, in one of two concurring judgments in the case: “the airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights”.[xi] In other words, the uppermost concern in the deployment of the airwaves would be the preservation of the peoples' right to free speech and its correlate: the right to information. In Justice Sawant’s words: “the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained”. The challenge of regulation is to harmonise the two, one of which is the “right of the telecaster” and the other, “that of the viewers”.[xii]
In turn, this requires a regulatory response that departs from an absolutist notion of media freedom. “Broadcasting freedom”, in the words of Justice B.P. Jeevan Reddy - author of the other opinion in the airwaves case - “involves and includes the right of the viewers and listeners who retain their interest in free speech”. With public interest being dominant rather than private profit, Justice Reddy observed, “European courts have taken the view that restraints on freedom of broadcasters are justifiable on the very ground of free speech”. The reason simply, is that “freedom of expression includes the right to receive information and ideas as well as freedom to impart them”.[xiii]
The airwaves judgment in short, urges the adoption of a new paradigm that transcends the dichotomy between government control and free enterprise. On one side, it asserts in Justice Sawant’s words, the paramount need to “rescue the electronic media from the government monopoly and bureaucratic control and to have an independent authority to manage and control it”. When the electronic media is controlled “by one central agency or (a) few private agencies of the rich”, there is a need for another body, “representing all sections of society”.[xiv] Justice Reddy observed that the nature of this body was for the legislative authorities to determine. The central point simply, was that “private broadcasting, even if allowed, should not be left to market forces, in the interest of ensuring that a wide variety of voices enjoy access”.[xv]
With these being the central principles, the Supreme Court directed -- in Justice Sawant's words -- that “the Central Government shall take immediate steps to establish an independent autonomous public authority representative of all sections and interests in the society to control and regulate the use of the airwaves”.[xvi] Justice Reddy laid down the principles on which this body should function: “it is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions and ideas. … The free speech right guaranteed to every citizen of this country does not encompass the right to use these airwaves at his choosing. Conceding such a right would be detrimental to the free speech rights of the body of citizens inasmuch as only the privileged few - powerful economic, commercial and political interests - would come to dominate the media”.[xvii]
Before turning again to the BSRB to examine how well it fulfils the specifications laid down by the country’s highest judicial body, it may be useful to consider two concrete policy decisions taken by the government in recent months. These could be tested for their conformity with the constitutional principles laid down in the airwaves judgment.
The record in community radio
Early in December 2006, the MIB announced detailed policy guidelines on community radio services (CRS). This was a long-delayed correction for the unduly restrictive policy introduced in December 2002, which reserved community radio for “well established education institutions”. Even so, the policy as it stands now is rife with clauses requiring CRS applicants to meet a number of stringent requirements. In the case of aspirants other than publicly funded and managed educational institutions, sanction for entering the CRS domain would be subject to clearance from the Home Affairs Ministry and the Defence Ministry, not to mention the allocation of a radio frequency by still another ministry. Programmes broadcast over the community radio should be designed to serve a “specific well-defined local community” and should be relevant to its “educational, developmental, social and cultural needs”. Broadcasts that relate to “news and current affairs and are otherwise political in nature” are specifically proscribed. Sponsored programmes would not be permitted except where the sponsor is an arm of the government. Advertisements and public announcements that yield revenue would be permitted to the limit of five minutes in an hour's broadcast. All earnings would necessarily have to be used in meeting operational and capital costs. A surplus, if available, could, with the explicit written permission of the MIB, be transferred into the primary activity of the organisation running the service.[xviii]
This regime of policy may be instructively compared with that prevalent in the realm of private radio broadcasting. In July 2005, policy guidelines were announced under which bids were invited for the second round of allocation of FM radio broadcast circles. Under the tendering principles drawn up, allocations were to be made on the strength of the entry-fee offered by each bidder. Moreover, a share of annual revenue would be paid by the operator as a form of annual fee for the use of the broadcast spectrum. Advertisements would be the principal revenue source, but there would be no limit imposed on the quantum of advertising that each broadcaster could carry.[xix]
When it came to the allocation of frequencies for FM radio broadcasting, the government seemed inclined to view the airwaves as a public resource to be auctioned off to the highest corporate bidder. After the bidding for FM radio licences that ensued, the vast majority was granted to companies or entities that were already strongly established in other sectors of the media.[xx] Entertainment Networks (India) Ltd., a company owned by the Times of India Group, which happens to be the largest enterprise in the print media, won 25 FM radio broadcast circles, to add to the seven that it was running under its brand name, Radio Mirchi. South Asia FM Ltd., a company controlled by the Chennai-based satellite broadcaster, Sun TV, won no fewer than 23 FM circles in the northern part of the country. This is quite apart from the 18 it won in the south through its affiliate company, Kal Radio Ltd. Sun TV it needs to be added, had in early-2006, bought up the Tamil daily, Dinakaran, then ranked third in terms of readership in Tamilnadu. With an aggressive price-cutting campaign, it had soon catapulted the newspaper to an undisputed second position in the market and quite possibly the first – though this remains contentious – in the readership stakes.[xxi]
Sun TV is a media entity that began in the realm of cable and satellite (C&S) broadcasting and rapidly expanded its influence into print and radio. The Times of India group, headquartered in Delhi, offers another case study of a business group of considerably greater vintage, diversifying out of print into TV, radio, internet advertising and a variety of other media ventures, with little resistance from regulatory policy.[xxii]
These two routes to media consolidation, though different, would be regarded with equal concern under any reasonable regime of supervision over the right to information. But with policy being inattentive, these are by no means the only pathways available for well-endowed business houses that seek to capture increasing shares of the space available for information transactions.
It takes only a cursory glance at the last round of licences allocated for FM radio, to see that any notion of cross-media ownership restrictions has effectively been shredded and the pathway opened up for growing business monopolies in the media. Illustratively: the Rajasthan Patrika group, a significant player in the newspaper space in Rajasthan state, was awarded four FM circles, while Malayala Manorama and Matrubhumi, the two largest newspaper groups in Kerala, were awarded four each in their home state, and the Mid-day group of Mumbai was given six circles, all of them in highly lucrative metropolitan cities. HT Media and Entertainment, a company controlled by the Hindustan Times group – with its significant print media presence in Delhi and Mumbai – was awarded radio licences in both these cities, with the two metropolitan centres of Kolkata and Bangalore also thrown in as a bonus.
Beyond this story of media consolidation, a significant new presence was entering the scene. Adlabs Films Ltd., flush with an infusion of funds after its takeover by the Reliance-ADAG group -- one of the country's biggest industrial conglomerates -- won no fewer than 45 circles in the most recent round of FM radio allocations.[xxiii]
Growing corporate control over the airwaves
These quite unconcealed concessions to corporate control over the airwaves should be seen in the context of existing global norms on cross-media ownership restrictions. These norms indeed, have been repeatedly affirmed in India by broadcast legislation that curiously, seldom makes it beyond the first draft to the stage of enactment. Though the evolution of the new media and the realities of convergence with information technology, have often allowed big media corporations to effect a flanking operation around them, cross-media ownership restrictions remain a valuable part of the statute in several countries.[xxiv] In recent years, a move by the Federal Communications Council (FCC) in the U.S. to undo some of the restraints on cross-media ownership, was met with a vigorous public signature campaign that effectively forced the regulatory body to retreat.[xxv] This is in some measure, an index of the value attached by the public to the sustenance of these norms.
A monopoly over the airwaves was part of the initial conditions in India, in contrast with the U.S., which began with a large assortment of broadcasters that were rapidly consolidated into a handful of dominant entities. It might appear that an oligopoly of private broadcasters – however small in number – would be far preferable to a government monopoly. Interestingly though, in the doctrine of fundamental rights laid down by India’s Supreme Court, the fact of monopoly ownership over broadcast platforms does not, in itself, constitute a curb on the twin rights of information and free speech. It is only from the denial of public access to the broadcast media, that such an abridgment of the fundamental rights could be deemed to occur.[xxvi] In other words, the existence of a monopoly broadcaster does not in itself negate free speech, provided the right to public access is ensured.
The history of the legislative effort to transform a zealously guarded governmental monopoly over the airwaves into a more benign public trust is rather well recorded.[xxvii] Aside from the advisory bodies that were periodically commissioned to come up with creative solutions, the first concrete effort at legislation was the Akash Bharati bill, introduced in Parliament after much deliberation, only to lapse with the dissolution of the Sixth Lok Sabha in 1979. Its successor, renamed the Prasar Bharati bill, was enacted but not notified when the National Front government elected in 1989 – comprising numerous fragments, with one conspicuous exclusion, from the political formation that had dominated the Sixth Lok Sabha – passed into history. It took till 1997, with another avatar of the National Front in power – now called the United Front - for Prasar Bharati to be notified and thus become law.
The government that soon followed, allowed the ordinance notifying Prasar Bharati to lapse and a few months afterwards, disbanded the board of trustees that had been appointed to supervise the functioning of the public broadcaster. In all these respects, the government led by the Bharatiya Janata Party (BJP) signalled that it preferred the strict control over the airwaves to the doctrine of freedom upheld by the Supreme Court. The entire episode seemed to underline a certain reality about the political tutelage that broadcasting reform has laboured under. Where governments unsure of their tenure are in power, led by political formations that are convinced of their imminent mortality, there is a possibility that the oppressive, official, hold over the airwaves will be relaxed. This is a narrow window of political opportunity that would invariably be shut tight when governments are led by parties that believe, for whatever reason, in their historical destiny as eternal wielders of political power. The Congress Party’s persistent record of default on the Prasar Bharati Act, the United Front’s restoration of the agenda of broadcasting reform and the BJP’s unceremonious termination of the experiment, bring to mind the very strong warning issued by Justice Reddy in the airwaves case: “Government control in effect means the control of the political party or parties in power for the time being. Such control is bound to colour and in some cases, may even distort the news, views and opinions expressed through the media. It is not conducive to free expression of contending viewpoints and opinions which is essential for the growth of a healthy democracy”.[xxviii]
Viewed in this context, it is rather easy to spot out the many deficiencies of the BSRB, especially when assessed against the stated purpose of operationalising the airwaves judgment. Drafted in 2006, when the government monopoly had been irreversibly eroded, the BSRB should reasonably have been expected to take into account the experience of corporate control over the airwaves and factor this into its regulatory philosophy. Though a first glance would show that the BSRB does indeed pay due obeisance to the objectives of preserving diversity of choice on the airwaves, these turn out on closer examination, to be no more than a token acknowledgment. Correlatively, the clause that vests the government with the power to curb monopolies in the media, is numerically imprecise and unaccompanied by any construction of a mode of intervention to secure the public interest.[xxix]
How the broadcast bill falls short in its newest avatar
This is to be contrasted with the Broadcast Bill mooted in 1997 as a means of ensuring a reasonable framework of rules for private broadcasters, even as the counterpart policy initiative of notifying Prasar Bharati brought government channels under a variety of public control. Drafted during a brief interlude of openness within the MIB, the 1997 bill provided for “inter-category restrictions on licences (for broadcasting) as well as on the number of licences within a category”. It restricted the “ownership and control of a broadcasting company by newspaper proprietors up to 20 percent and vice versa” and specifically prohibited religious bodies, political organisations, foreign nationals and entities, and advertising agencies from holding broadcasting licences in India. Further, it limited a single person or entity to licences in any two (or less) of the following activities: terrestrial radio, terrestrial television, satellite television or radio, direct-to-home broadcasting, and local C&S delivery.[xxx]
A prolonged legislative vacuum ensued once the 1997 draft lapsed, during which facts on the ground were altered by the country's big media players, progressively making the job of regulation more difficult. Powerful print media groups moved into the broadcast sector, and others that had begun as C&S broadcast companies, integrated horizontally into the newspaper industry. C&S companies in turn, ventured into the domain of retail distribution of television signals and succeeded in establishing their dominance in the most lucrative markets.
For reasons that have more to do with the evasion of tough decisions than with inherent difficulties, the rules evolved for radio have been immensely more stringent than those applicable to TV. This is in part because the stakes in TV broadcasting are high and the power of the medium so great, that multinational media enterprises and big domestic corporations, have always been an aggressive presence influencing policy decisions. Even if governments would like to pretend otherwise, there is little question that policy decisions in the broadcast sector broadly fit into one of two categories: they are either defensive responses to predatory moves by media corporations, particularly those of foreign origin, or signals of acquiescence in the larger designs of these corporations, dressed in the garb of pragmatism.
Towards the end of 1996, News Television India Ltd., a corporate entity owned by the global media czar Rupert Murdoch, announced its readiness to start “direct to home” (or DTH) telecasts in India. This was followed by an advertising campaign in the print media promising Indian TV viewers a new deal that would secure them their independence from the ever-unreliable local cable operator. By April 1997, this campaign had peaked and the Murdoch enterprise seemed all set to manoeuvre its way past the areas of silence in the prevalent policy, to begin an entirely new category of broadcast services. After months of silence which had been construed as acquiescence, the government in July 1997, issued a formal notification prohibiting the transmission or reception on Indian soil of any broadcast signal above the frequency range of 4800 megahertz. In effect, this prohibited the commencement of DTH broadcasts in India.[xxxi]
If this was a defensive policy response, the official attitude towards uplinking from Indian territory for broadcast through satellite, bears all the telltale scars of compliance with an agenda set by players operating beyond the reach of regulatory efforts. The story begins in May 1991 when the Hong Kong based STAR TV network began beaming programmes into India, where audience interest had already been stoked by the satellite broadcast network CNN's coverage of the Gulf War some weeks before. The first of many committees to examine possible policy and regulatory responses, constituted almost immediately afterwards, submitted its recommendations by October 1991.[xxxii]
Certain conditions were taken for granted in all the early, official, examinations of the broadcasting reform. Though thinking on autonomy for the sector had evolved over the years, there was little acceptance yet that the government monopoly over the airwaves would have to yield to new realities. The most that would be conceded was a degree of access for the public to broadcast platforms, that would nevertheless remain the exclusive domain of the government.
The number of broadcast channels beaming into India was by now proliferating. Yet the government remained unwavering in its refusal to allow any Indian entity to establish an upward link to a satellite for diffusion of broadcast signals over the country. This compelled a number of Indian broadcasters to physically transport their programmes on magnetic media to other countries - notably Singapore - from where an uplink was established for beaming signals into India.
The inherent illogic of broadcast regulation in India
This was a situation rife with ironies. Singapore till today zealously guards its airwaves, allowing incoming broadcasts only with a time delay, so that diligent censors continually monitoring the signals can screen out any material deemed objectionable. But despite all its authoritarian attitudes, the government of Singapore had little reservation early in the C&S television boom, in allowing uplinking from its territory. The Indian government in contrast, disallowed any uplinking of broadcast signals, but effectively admitted that it was powerless to monitor or regulate incoming television programmes. To draw attention to this contrast is not to endorse the Singaporean policy of censorship, or to advocate a police regime that would monitor all broadcasts for conformity with an official line. Rather, it is only to underline the inherent illogic of the Indian government's position, which remained a persistent feature for long years into the C&S television boom.
By late–1996, a minor concession was granted with domestic C&S broadcasters being allowed to uplink to satellites owned by India’s Department of Space, for the limited purpose of gathering “news feeds” from remote locations. Though successive committees had recommended that uplinking rights be granted to Indian-owned broadcasters, the government dithered endlessly over what always seemed a fairly simple issue.[xxxiii] By early-1998, the Murdoch-owned STAR TV contracted with an Indian production company to provide the feed for a 24-hour news channel. Senior officials of STAR TV, many of whom had till just prior to joining the Murdoch enterprise, been working for the MIB, were then under investigation in matters involving possible conflicts of interest and even corruption. But Prime Minister I.K. Gujral found little amiss in throwing open the premises of his official residence for the inauguration of STAR’s 24-hour news channel. Uplink rights were granted, ostensibly for a trial period of six weeks, so that the news channel could provide coverage of the upcoming general elections to Parliament.[xxxiv] And once the uplink right was granted to a foreign-owned broadcaster, there was no credible basis on which it could be denied to Indian entities.
Against this background, it is easy to guess why policy on radio continues to remain excessively restrictive: the poor cousin within the broadcasting family has simply not had any powerful lobbies arguing its case.[xxxv] A record of inconsistent – even duplicitous – standards, is especially evident in the record on community broadcasting. The concept note prepared by the MIB in 1996, by way of a preface to the legislation it proposed to bring in, mentioned community broadcasting as an “extremely useful” device in “providing voices to the local community in managing their affairs and participating in (the) overall developmental process”. It proposed moreover, to award broadcasting licences in restricted areas – “on the basis of either a restricted bid or no bid at all” -- to local organisations “to facilitate better education and communication”.[xxxvi]
Since these words were written, big business control over the airwaves has only been consolidated. In the process, the priorities of community broadcasting and public access to the airwaves have vanished from the policy discourse. It was only several months after the spectrum auction for FM radio that the Union Cabinet finally approved a policy that would open up opportunities in community radio to entities other than privileged universities and institutions of learning. And with all the changes that have grudgingly been allowed, the policy on CRS remains highly restrictive in terms of eligibility, content and revenue sources.
These multiple forms of control over CRS stands in striking contrast to the total absence of any regulation over TV broadcasts. Regulatory efforts in C&S TV in fact, are currently focused on the cable operator rather than the broadcaster. The onus of ensuring that all material broadcast is in conformity with the “programme code” and the “advertisement code” rests entirely with the cable operator. This curiosity of Indian broadcast law has been inscribed into the Cable Television Network Rules of 1994 and continues to hold the field till now. The “programme code” in turn, is a bunch of fairly vacuous strictures that have in practice been reduced to nullity.[xxxvii]
Revisiting the ratio of advertisement to subscription revenue
Where regulatory efforts threaten to have a substantive impact on media monopolies and thus on the overall ambience of the right to information and free speech, these are swiftly abandoned for reasons that should not challenge an average intelligence. A recent move by the Central Government, to limit the advertisement time that particular television channels carry, was abandoned within a month of its announcement, without any kind of public debate.[xxxviii] While the proposal may seem absurd on the face of things, it has a long and hoary vintage as a regulatory device with a vital bearing on the fundamental rights. Successive Press Commissions in India have for instance, suggested that the limitation of advertisement revenue earned by particular media organisations, though seemingly an intrusion into their rights, is a necessary evil in the larger cause of the rights to information and free speech. Both the Price-Page Schedule, which requires newspapers to price their product in accordance with number of pages printed, and the directive to limit the number of pages that a newspaper publishes, have been ruled unconstitutional by the Supreme Court in the Sakal and Bennett Coleman cases[xxxix]. Yet they continue to be advocated – not just by control fanatics in the government but also by people with vital stakes in the industry – as an imperative of media regulation.
In 2003 for instance, the Indian Parliament's Standing Committee on Information Technology urged the Government to prescribe a “ratio for coverage of news contents and advertisements in newspapers”. This was necessary since, as the Committee observed, “a tendency is being noticed in the leading newspapers to provide more and more space for advertisements at the cost of news items”. Though in itself, this was not a cause for public concern, there was adequate reason to worry, that with advertisement expenditure migrating towards particular newspapers, others that catered to lower income groups - of lesser importance to advertisers - would be starved of revenues and be compelled to cut back on newsgathering expenses. This in turn, would impair the socially desirable objectives of ensuring diversity and plurality of news media.[xl]
The print media, despite all its traditions in India, is today rapidly losing its rich plurality, as the pressure mounts for conformity with the demands of advertisers and the affluent. The broadcast media because of its specific features, is more prone to surrender its autonomy when faced with advertiser interests.[xli] The public character of the airwaves as a resource, could in short, soon be completely subverted by a sustained campaign of disinformation that essentially denies the public its right to know. Circumstances perhaps have never been more appropriate than now, for a credible regulatory authority, committed to the public interest, to revisit the issue of advertisement and subscription revenue. There is also the need to examine the issue of cross-media ownership restrictions from a public interest viewpoint, rather than the governmental-bureaucratic perspective that has so far been customary in India.
The latest visitation of a law for the broadcast sector, the BSRB, proposes as a public authority to regulate the airwaves, a “Broadcasting Regulatory Authority of India” (or BRAI) that will have the final word in matters related to the broadcast spectrum. Perhaps some of the true motivations behind the BSRB as a legislative proposal would become clearer if the mandate that it invests the BRAI with were to be examined.
The BSRB conceives of a situation when the Central Government will, by notification, transfer all “proceedings pending” before the existing frequency spectrum oversight body, the Telecom Regulatory Authority of India (or, TRAI) to the BRAI. It is significant that over the weeks between June and August 2006 -- with the BSRB being debated in public -- TRAI had sought for the first time to go beyond its assigned job of mediating between telecom companies and adjudicating on matters of frequency spectrum allocation, to seek to establish its authority over the tariffs levied by C&S companies.[xlii] This was within TRAI's mandate as the regulator of the broadcast sector, a status it was conferred with in 2004, ostensibly to hasten the process of convergence between broadcasting, communications and information technology.[xliii] Yet it was never a secret that the MIB was particularly unhappy with this seeming encroachment into its domain. The emergence of the TRAI in its avatar as regulator of subscriber rates that C&S broadcasters could charge, created a further sense of alarm within the MIB, at the possibility that a rival body could win immense populist acclaim in ostensible pursuit of the public cause. The BSRB in other words, was no more than a temporary expedient in a long-running bureaucratic turf war. That, finally is the most charitable assessment that can be made of the last effort to provide a legal framework for the Indian broadcast sector.
December 27, 2006
[i] The text of the Broadcast Services (Regulation) Bill was for long a mystery, with one commentator going to the extent of observing as late as July 28, 2006, that despite all the comment that had been heard in public forums, the Bill was not officially “in the public domain”. This commentator, who happened to be chairperson of the Public Service Broadcasting Trust, had by his own account “requested a copy” of the bill from the MIB, and been told that he could not “legitimately” be given one. “This means”, he wryly concluded, “that all those in possession of a copy of the Bill and those writing about it are in violation of the Official Secrets Act”. (See Rajiv Mehrotra, “Social Justice on the Airwaves”, The Hindustan Times, July 28, 2006, p 11). The full draft of the bill was finally posted on the MIB website on August 11, 2006, with the stated purpose of inviting public comments on an issue of general importance. The bill and the consultation paper that explains its concepts and intents, are available at this writing at the following web address: http://mib.nic.in/informationb/POLICY/BroadcastingBill.htm.
[ii] "Media Muzzled I: Is the Broadcast Bill Media Friendly?", The Hindustan Times, Delhi, July 26, 2006, page 11.
[iii] “New Broadcast Bill just a rehash of existing provisions?”, The Times of India, Delhi and Mumbai, July 3, 2006.
[iv] “Kill this Broadcast Bill before it kills your rights”, Daily News and Analysis, Mumbai, July 1, 2006. This newspaper was launched in the Mumbai market in 2004 and its principal financial backers are the Zee Telefilms group, which operates a number of entertainment and news channels and is by far India’s largest satellite broadcaster, and the Dainik Jagaran group, publishers of the newspaper that was reckoned by the last round of the National Readership Survey, to have a readership of 21 million.
[v] The first amendment to the U.S. constitution forbids Congress from making any law “abridging the freedom of speech, or of the press”. This has led to a considerable jurisprudential debate in the U.S. to determine whether freedom of the press is in some way a redundancy given the unequivocal fashion in which the First Amendment upholds the freedom of speech. The judicial consensus has tended to the view that it is not, which means in effect, that the press enjoys rights that go beyond the public right to free speech. This question is addressed, with appropriate referencing, in an earlier article by this author, "The Challenge to the Media", Seminar, Number 551, July 2005, pp 41-45 (available at this writing at the website: http://www.india-seminar.com/.
[vi] 1962 SCR (3) 842; this is the standard citation format, in which SCR stands for Supreme Court Recorder.
[vii] 1973 SCR (2) 759.
[viii] A fuller examination of both the Sakal and the Bennett Coleman judgments is available in a recent article by this author. See “Freedom, responsibility and regulation”, Seminar, Number 561, May 2006, pp 20-25; available at this writing through the website: http://www.india-seminar.com/.
[ix] 1973 SCR (2), p 760.
[x] Ibid, pp 803-14.
[xi] 1995 SCC (2) 161), para 124(i), SCC here refers to Supreme Court Cases in accordance with the accepted format of citation.
[xii] 1995 SCC (2) 161, para 78.
[xiii] 1995 SCC (2) 161, para 181.
[xiv] Ibid, para 107, 85.
[xv] Ibid, para 205.
[xvi] Ibid, para 81.
[xvii] Ibid, para 205.
[xviii] The policy guidelines for community radio services are available in a document posed on the website of the Ministry of Information and Broadcasting. See: http://mib.nic.in/informationb/CODES/CRBGUIDELINES041206.doc.
[xix] The policy guidelines for the second round of FM radio broadcast licences are available at the website of the Ministry of Information and Broadcasting, at the following URL: http://mib.nic.in/informationb/POLICY/frames.htm.
[xx] The details of the broadcast circles awarded after the last round of FM spectrum auctions, is available at this writing, from the website of the Ministry of Information and Broadcasting: http://mib.nic.in/fm/fmmainpg.htm.
[xxi] It may not be out of place to mention here that Sun TV is a business group controlled by the family of the incumbent Union Minister for Communications and Information Technology, a first-term Member of Parliament from Tamilnadu. Aside from the intrusion of monopoly elements into the media, which is an issue meriting considerable attention in itself, this also raises serious questions about conflicts of interest, which have surprisingly, not attracted much public comment or discussion. For a rare discussion in a public forum on the multiplicity of issues involved in Sun TV’s expansion, see S.R. Ramanujan’s column dated May 14, 2006 in http://www.thehoot.org/, “Why is Tamil media so biased?”
[xxii] For an account of the Times of India’s growth, consolidation and diversification, see this writer’s essay in Himal South Asia, August 2006, “The Times of India’s final frontier”, available at: http://www.himalmag.com/2006/august/essay.htm. Also see the article published in the Delhi-based magazine Hard News, “Demoting news and the reader”, December 2006, pp 17-20, available at: http://www.hardnewsmedia.com/portal/2006/12/697. Both articles in turn, are derived from a case study on the media group published by the Inter-Press Service (Asia Pacific) in December 2006. See: “Times of India: A Catastrophic Success”, in Asia Media Report, A Crisis Within, Inter Press Service (Asia Pacific), Bangkok, 2006, pp 99-110.
[xxiii] On the acquisition of Adlabs by the Reliance-ADAG group, see Sevanti Ninan, “The New Moguls”, The Hindu, Sunday magazine, October 8, 2006. Details of FM broadcast circles awarded till this point have been drawn from the source cited above, i.e., http://mib.nic.in/fm/fmmainpg.htm.
[xxiv] The classic work on this issue of course, is Ben Bagdikian’s The Media Monopoly, Beacon Press, New York, 1983. Detailed rules on the cross-media ownership restrictions in force in the U.S. can be found on the website of the Federal Communications Commission: http://www.fcc.gov/ownership/rules.html. Illustratively, the rules that are currently in force prohibit “common ownership of a full-service broadcast station (television or radio) and a daily newspaper if the station’s service area completely encompasses the newspaper’s city of publication”. The FCC’s 2002 effort to relax these rules in some degree, was met with an organised show of public dissent that compelled it to put the proposed changes on hold. It could be argued that none of the FM broadcast licences given out recently is a “full-service broadcast station”, since they are all explicitly forbidden from engaging in news and current affairs. But with understanding of media economics having progressed much further since the U.S. norms were written, it should be evident that dominance over the advertisement market, particularly in concentrated pockets of high-purchasing power demographic groups, is really the material issue.
[xxv] Associated Press story, “Media ownership issues return to spotlight”, Washington DC, October 3, 2006. This story, issued just when the FCC was beginning a series of public hearings, usefully describes the level of mobilisation of consumer advocacy groups on the issue of cross-media ownership.
[xxvi] The precise formulation in Justice Sawant's judgment is as follows: “A mere creation of the monopoly-agency to telecast does not per se violate Article 19(1)(a) as long as the access is not denied to the media either absolutely or by imposition of terms which are unreasonable. Article 19(1)(a) proscribes monopoly in ideas and as long as this is not done, the mere fact that the access to the media is through the Government controlled agency, is not per se violative of Article 19(1)(a)”. 1995 SCC (2) 161, para 61.
[xxvii] A most comprehensive recent account, focused on television, is Sevanti Ninan, “History of Indian Broadcasting Reform”, in Monroe E. Price and Stefaan G. Verhulst (editors), Broadcasting Reform in India, Media Law from a Global Perspective, Oxford University Press, Delhi, 1998, pp 1-21. A comprehensive survey and critique, focused on radio, is available in Kanchan Kumar, “Mixed Signals, Radio Broadcasting Policy in India”, Economic and Political Weekly, May 31, 2003, pp 2173- 82.
[xxviii] 1995 SCC (2) 161, para 199.
[xxix] Article 10 of the BSRB merely reserves for the Central Government “the authority to prescribe such eligibility conditions and restrictions with regard to accumulation of interest in the print and broadcast segments of the media as may be considered necessary from time to time, to prevent monopolies across different segments of the media as well as within the broadcast segment, to ensure diversity of news and views”. The full text of the BSRB is available at the time of this writing at: http://mib.nic.in/informationb/POLICY/BROADCASTSERVICESREGULATIONBILL.htm.
[xxx] The full text of the draft is available in Price and Verhulst (editors), op. cit., pp 191-222. Also included (pp 223-33) is a concept note circulated by the Ministry of Information and Broadcasting, explaining its overall approach to regulatory issues.
[xxxi] Sevanti Ninan, op. cit., p 18-9.
[xxxii] Ibid.
[xxxiii] This complex regulatory history is summarised in two articles in the fortnightly magazine Frontline. See: “Uplinking rights, The outlook for private Indian broadcasters”, November 1, 1996, pp 93-4; and “A TV debate, questions of broadcast policy”, February 21, 1997, pp 114-5.
[xxxiv] This sequence of events is covered in concurrent issues of the weekly newsmagazine, India Today, especially in the special page titled “Teletalk”, devoted to visual media issues.
[xxxv] Vinod Pavaral asks a pertinent question that still remains unanswered: “why does this government find Rupert Murdoch more trustworthy than a poor, unlettered dalit woman who wants to use a media channel to communicate?” See “Breaking Free, Battle over the Airwaves”, Economic and Political Weekly, May 31, 2003. This is the introductory piece to a collection of papers on broadcasting in India with a focus on community radio, a collection that includes inter alia, Kanchan Kumar, op. cit.
[xxxvi] Price and Verhulst, (editors), op. cit., p 233.
[xxxvii] Among other things, the programme code explicitly forbids the broadcasting of material that contains the “criticism of friendly countries” or “criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country”. Material that “denigrates children”, or projects an “ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups” is also forbidden. And in a revelation that would surely be of interest to the numerous channels that begin the day with astrological predictions – and the sports channels that preface the telecast of important cricket matches with the wisdom of tarot-card readers – anything that propagates “superstition and blind belief” is also proscribed.
[xxxviii][xxxviii] The Hindu, “Decision on advertisement component in TV channels withdrawn”, August 20, 2006, available at this writing at: http://www.thehindu.com/2006/08/20/stories/2006082006131000.htm.
[xxxix] See footnotes 6 and 7 above.
[xl] Standing Committee on Information Technology, Thirteenth Lok Sabha, 63rd Report, Lok Sabha Secretariat, December 2003, pp 39-42.
[xli] The weekly newsmagazine India Today, part of a business group that includes two news channels – Aaj Tak in Hindi and Headlines Today in English – recently ran a cover story that was rather evocatively titled “Tamasha News”. The subtitle read: “Sensational, Shocking, Pervasive, Trivial”. But in a one-line summation of the purport of its story, the newsmagazine refrained from exercising its judgment on the merits of the phenomenon, perhaps because it could not be seen in public to be engaged in an act of self-condemnation. “Intense competition has compelled news channels to feed the voyeuristic appetite of today’s viewers”, it said, “for better or worse”.
[xlii] The Hindu Businessline, "Pay Channels @ Rs 5 per month", September 1, 2006, page 1.
[xliii] See the Press Trust of India story, posted on the website of The Economic Times on January 10, 2004, available at this writing at: http://economictimes.indiatimes.com/articleshow/415625.cms.
Unsurprisingly, this version of events has held the field with little challenge, since the media, uniquely among industries, is in a position to mould public perceptions about itself. In brief and sporadic intervals, though, an alternative perspective is heard, which purports to speak on behalf of an ill-defined “public interest”. The broadcast industry has in this account, remained for too long free of constructive legislative inputs, since every effort at regulation, in part because of the ill-remembered days of the controlled economy, has swiftly come undone. In the circumstances, the broadcast industry, dominated by giant media houses, has managed to colonise the electromagnetic spectrum for private benefit, flouting an explicit judicial finding that the airwaves are the property of the public.
Since the Supreme Court's judgment of 1995 in the case of the Cricket Association of Bengal versus the Ministry of Information and Broadcasting, it has become part of the orthodoxy on media regulation that the airwaves belong to the public. It is a principle that lends itself to easy and often rather passionate enunciation. Unfortunately, very little of the same passion, not to mention clarity, has been evident in negotiating two basic issues involved in translating this principle into practice: instrumentality and agency. What possible agency could operationalise the constitutional principle that the airwaves belong to the public? And what instrumentality could this agency, when it is appropriately empowered, deploy in pursuit of its mission?
Early in August 2006, the Ministry of Information and Broadcasting (MIB) posted on its official website, the draft of a law, titled the Broadcast Services Regulation Bill (BSRB), which sought among other things, to provide legal backing for the principle of the public ownership over the airwaves.[i] Apart from this rather laudable object, another of the stated purposes of the bill was to give legislative backing to the numerous regulatory orders pertaining to satellite broadcasting, issued since the mid-1990s.
A first evaluation of the BSRB reveals that it does not spend much time or effort on the issue of agency. Like many other legislative initiatives, the BSRB displays the conceit of governments that believe they can appropriate the mantle of speaking on behalf of the public. And where instrumentality is concerned, the BSRB displays very little creativity, falling back instead on the discredited old device of reserving for the government the arbitrary - and in the final instance, overbearing - powers of police enforcement inherited from colonial law. Judging from its fleeting appearance in the public discourse, the BSRB could well be another legislative effort defeated by a deficit of the policy imagination, not to mention the assiduous efforts of powerful lobbies.
As if to reaffirm that the power to mould public opinion suffers from a serious skew, the media industry was permitted by circumstances, to have its say on the BSRB well before the public was brought into the discussion. Public perceptions of a major legislative initiative, in short, were moulded by the industry that has the greatest stake in diluting the scope of the law and preserving the largest area of autonomy for itself. This is a situation abounding in curiosities, though there is little novelty in the media being, uniquely among business sectors, the arbiter of public opinion in matters involving itself.
Media groups have their say
Towards the end of July 2006, Delhi's leading newspaper, which has recently acquired a presence in Mumbai, carried a sequence of three articles warning that the proposed broadcast legislation was a significant threat to all the free speech guarantees of the Indian constitution. All three articles were published under the caption “Media Muzzled” and their basic purport was that the BSRB embodied a familiar pattern of official paranoia and unreason. “Every few years”, began the first of the articles, “a nervous government decides that the media has gone overboard and must be subject to regulation. Democracy and free speech do not mean spreading canard about public authority, endangering national security and allowing for obscenity, runs the argument (sic)”. With the draft of the BSRB having leaked out, the article continued, considerable “disquiet” had arisen over what looked like “another attempt ... to muzzle the media”.[ii]
Inevitably and it must be said, rather self-servingly, the media chose to highlight those provisions of the BSRB that endowed the government and its official machinery with punitive powers. There was moreover, a consistent attempt to play up the circumstances under which the media would become the target of vindictive official action. The country's largest English newspaper for instance, observed in its report, that the BSRB “expanded on the already existing draconian provisions present in the Cable Network Regulations Act and the direct-to-home (broadcasting) guidelines”. The newsreport then went on to describe, with little attention to nuance or detail, the powers of search and seizure that the BSRB proposed to invest the government with, before concluding with an account of the penalties that the media would attract if it incurred official displeasure.[iii]
A recent debutant among Mumbai newspapers, that seemingly represents the new era of cross-linked media partnerships, had meanwhile, had its say on the matter. Under a vivid and exhortatory headline, the newspaper – in which both India’s largest satellite broadcaster and the company that owns the country’s largest circulated newspaper have equity investments – urged that the BSRB be “killed”. Effortlessly conflating the rights of the media into those enjoyed by the public under the Constitution, the newspaper asked: “What is it with our officialdom that when it comes to fundamentals of democracy they can't seem to get it after five decades of experience? Their latest attempt at bullying the citizen is a Bill that the Information & Broadcasting ministry (sic) has drafted, ostensibly to restrain media monopolies but in fact to subvert freedom of the press, and therefore of the right to free expression as guaranteed by our fine Constitution drawn up in 1950”.[iv]
Sifting through this relentless campaign against the BSRB, it would be possible to discern two quite distinct currents of opinion. There is one perception that tends to view the rights of the media as a category apart, deserving protection in themselves. Then there is another, that views the media as an institution embodying the broader civil rights of the citizens of India.
Media rights are not a separate category
It is a well-established principle in Indian jurisprudence that the media enjoys rights coterminous with the public. This is quite unlike the situation in the U.S., where the First Amendment to the Constitution - whether by oversight or intent - ensured that the “press” enjoys rights that go beyond the public right to free speech.[v] In contrast, the Indian Constitution confers on the media no more and no less, than the rights due to it as an institution that benefits from the public right to free speech and expression, as enshrined in Article 19(1)(a).
Media freedom is derived from the right to free expression, which in turn is related to the public right to information. Media freedom and the public right to free speech, are coextensive in Indian jurisprudence. Commercial media institutions and the private individual derive identical rights from a single article of the Indian Constitution. But since the right to information is a counterpart right to free speech, the media's freedom is in part, the fulfilment of the public right to information. From here, it would be a short transition to a legal doctrine that media freedom is justified - in whole or in part - by the public function it performs, of informing citizens and the wider community about the various facets of their lives and the times they live in. This is the constitutional position as advanced in significant judgments involving the media, such as Sakal Newspapers versus the Union of India[vi] and Bennett Coleman and Company Ltd versus the Union of India[vii].
The latter judgment is especially significant for the insights it affords into the media as an institutional beneficiary of the public right to free speech. At issue in the Bennett Coleman case was a government directive limiting the allocation of newsprint to publishers in accordance with their reported consumption of the commodity. In a context of acute shortage, it seemed that the only means available to keep the newspaper industry functioning, was to ration the allotment of newsprint. This made it imperative that newspapers publish no more than ten pages. Those that did, were obliged to bring down their daily offering to that number. They would not be permitted to reduce circulation to maintain or increase the number of pages. To provide a full day’s complement of news, publishers could rationalise their allocation of space between editorial and advertisement material. Or they could maintain profitability by curtailing news coverage to accommodate advertisements.[viii]
All this would seem a thoroughly unwarranted intrusion into the micro-management of a newspaper. Expectedly, the entire scheme was held to be in violation of the Constitution by the Supreme Court. The majority opinion in the case, authored by Justice A.N. Ray, held that the “individual rights of freedom of speech and expression of editors, directors and shareholders, are all expressed through their newspapers”. But if this seemed too narrow a construction of a fundamental right, the Court a few paragraphs on, applied the necessary remedies, though without explaining the logic through which the rights of “editors, directors and shareholders” mutated into a right enjoyed by all citizens. “It is indisputable” said the Court, “that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express”.[ix]
This judicial formulation presented in an incipient form, a potential area of conflict in the relationship between the media and the public. In one formulation, the public is given the “right to read” all that it is provided by the “editors, directors and shareholders” of the press. In another, the public is accorded the right to “speak and express”. In its elision of the reasoning by which one species of rights is transformed into another, the Supreme Court majority in the Bennett Coleman judgment, lost an opportunity to provide some measure of clarity on this issue.
To some degree, that absence in judicial reasoning was remedied in the significant dissent entered by Justice K.K. Mathew in Bennett Coleman. Alone on the bench of five judges that heard the case, Justice Mathew spoke of press freedom in terms of the preservation of social diversity and choice. The Court had before it the challenge of ensuring that the appropriate conditions existed for bringing “all ideas into the market (to) make the freedom of speech a live one having its roots in reality”. In pursuit of this ideal, it was necessary as a first step, to recognise that “the right of expression” would be “somewhat thin if it can be exercised only on the sufferance of the managers of the leading newspapers”.
Freedom of expression, in other words, also involved the right of access to media space. And this requirement would be met only through the “creation of new opportunities for expression or greater opportunities (being provided) to small and medium dailies to reach a position of equality with the big ones”. This was as important, said Justice Mathew, “as the right to express ideas without fear of governmental restraint”.[x]
Free speech and the right of access
“Access” was one of the crucial questions raised in Justice Mathew’s dissent: access both of the public to the media environment and of the media organisation to the essential resources of its trade. Though the latter was the key issue before the bench, the dissenting judgment tied it into the larger question of the public function of a newspaper and its socially enjoined duty to reflect the diversity of its milieu.
Though these criteria are not quite so easily transported to the broadcast domain, the underlying principles have a certain universality. Newsprint in the 1970s was regarded as a scarce commodity, much as the electromagnetic spectrum was in the early years of satellite broadcasting. Newsprint has since become abundantly available, much like frequency slots for broadcast channels. Advertisement revenue, then regarded as a limited resource, has since grown enormously, though the competition between newspaper groups for cornering increasing shares of this expanded cake, has greatly intensified. And even if the proliferating broadcast channels of the last decade-and-a-half have not been very transparent in their financial accounting, the mere fact that they exist, is sufficient proof that the aggregate of advertisement spending in the Indian economy has been percolating, albeit in varying degrees, to all of them.
The principal restraint then to using the electromagnetic spectrum as a public resource, lies not in its scarcity, as in the powers and privileges that the government may have arrogated to itself. In this respect, the Supreme Court ruling in the airwaves case has been very clear: the government may have a custodian's responsibility, but no inherent right to monopolise the airwaves, since the spectrum belongs to the people. As Justice P.B. Sawant put it, in one of two concurring judgments in the case: “the airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights”.[xi] In other words, the uppermost concern in the deployment of the airwaves would be the preservation of the peoples' right to free speech and its correlate: the right to information. In Justice Sawant’s words: “the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained”. The challenge of regulation is to harmonise the two, one of which is the “right of the telecaster” and the other, “that of the viewers”.[xii]
In turn, this requires a regulatory response that departs from an absolutist notion of media freedom. “Broadcasting freedom”, in the words of Justice B.P. Jeevan Reddy - author of the other opinion in the airwaves case - “involves and includes the right of the viewers and listeners who retain their interest in free speech”. With public interest being dominant rather than private profit, Justice Reddy observed, “European courts have taken the view that restraints on freedom of broadcasters are justifiable on the very ground of free speech”. The reason simply, is that “freedom of expression includes the right to receive information and ideas as well as freedom to impart them”.[xiii]
The airwaves judgment in short, urges the adoption of a new paradigm that transcends the dichotomy between government control and free enterprise. On one side, it asserts in Justice Sawant’s words, the paramount need to “rescue the electronic media from the government monopoly and bureaucratic control and to have an independent authority to manage and control it”. When the electronic media is controlled “by one central agency or (a) few private agencies of the rich”, there is a need for another body, “representing all sections of society”.[xiv] Justice Reddy observed that the nature of this body was for the legislative authorities to determine. The central point simply, was that “private broadcasting, even if allowed, should not be left to market forces, in the interest of ensuring that a wide variety of voices enjoy access”.[xv]
With these being the central principles, the Supreme Court directed -- in Justice Sawant's words -- that “the Central Government shall take immediate steps to establish an independent autonomous public authority representative of all sections and interests in the society to control and regulate the use of the airwaves”.[xvi] Justice Reddy laid down the principles on which this body should function: “it is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions and ideas. … The free speech right guaranteed to every citizen of this country does not encompass the right to use these airwaves at his choosing. Conceding such a right would be detrimental to the free speech rights of the body of citizens inasmuch as only the privileged few - powerful economic, commercial and political interests - would come to dominate the media”.[xvii]
Before turning again to the BSRB to examine how well it fulfils the specifications laid down by the country’s highest judicial body, it may be useful to consider two concrete policy decisions taken by the government in recent months. These could be tested for their conformity with the constitutional principles laid down in the airwaves judgment.
The record in community radio
Early in December 2006, the MIB announced detailed policy guidelines on community radio services (CRS). This was a long-delayed correction for the unduly restrictive policy introduced in December 2002, which reserved community radio for “well established education institutions”. Even so, the policy as it stands now is rife with clauses requiring CRS applicants to meet a number of stringent requirements. In the case of aspirants other than publicly funded and managed educational institutions, sanction for entering the CRS domain would be subject to clearance from the Home Affairs Ministry and the Defence Ministry, not to mention the allocation of a radio frequency by still another ministry. Programmes broadcast over the community radio should be designed to serve a “specific well-defined local community” and should be relevant to its “educational, developmental, social and cultural needs”. Broadcasts that relate to “news and current affairs and are otherwise political in nature” are specifically proscribed. Sponsored programmes would not be permitted except where the sponsor is an arm of the government. Advertisements and public announcements that yield revenue would be permitted to the limit of five minutes in an hour's broadcast. All earnings would necessarily have to be used in meeting operational and capital costs. A surplus, if available, could, with the explicit written permission of the MIB, be transferred into the primary activity of the organisation running the service.[xviii]
This regime of policy may be instructively compared with that prevalent in the realm of private radio broadcasting. In July 2005, policy guidelines were announced under which bids were invited for the second round of allocation of FM radio broadcast circles. Under the tendering principles drawn up, allocations were to be made on the strength of the entry-fee offered by each bidder. Moreover, a share of annual revenue would be paid by the operator as a form of annual fee for the use of the broadcast spectrum. Advertisements would be the principal revenue source, but there would be no limit imposed on the quantum of advertising that each broadcaster could carry.[xix]
When it came to the allocation of frequencies for FM radio broadcasting, the government seemed inclined to view the airwaves as a public resource to be auctioned off to the highest corporate bidder. After the bidding for FM radio licences that ensued, the vast majority was granted to companies or entities that were already strongly established in other sectors of the media.[xx] Entertainment Networks (India) Ltd., a company owned by the Times of India Group, which happens to be the largest enterprise in the print media, won 25 FM radio broadcast circles, to add to the seven that it was running under its brand name, Radio Mirchi. South Asia FM Ltd., a company controlled by the Chennai-based satellite broadcaster, Sun TV, won no fewer than 23 FM circles in the northern part of the country. This is quite apart from the 18 it won in the south through its affiliate company, Kal Radio Ltd. Sun TV it needs to be added, had in early-2006, bought up the Tamil daily, Dinakaran, then ranked third in terms of readership in Tamilnadu. With an aggressive price-cutting campaign, it had soon catapulted the newspaper to an undisputed second position in the market and quite possibly the first – though this remains contentious – in the readership stakes.[xxi]
Sun TV is a media entity that began in the realm of cable and satellite (C&S) broadcasting and rapidly expanded its influence into print and radio. The Times of India group, headquartered in Delhi, offers another case study of a business group of considerably greater vintage, diversifying out of print into TV, radio, internet advertising and a variety of other media ventures, with little resistance from regulatory policy.[xxii]
These two routes to media consolidation, though different, would be regarded with equal concern under any reasonable regime of supervision over the right to information. But with policy being inattentive, these are by no means the only pathways available for well-endowed business houses that seek to capture increasing shares of the space available for information transactions.
It takes only a cursory glance at the last round of licences allocated for FM radio, to see that any notion of cross-media ownership restrictions has effectively been shredded and the pathway opened up for growing business monopolies in the media. Illustratively: the Rajasthan Patrika group, a significant player in the newspaper space in Rajasthan state, was awarded four FM circles, while Malayala Manorama and Matrubhumi, the two largest newspaper groups in Kerala, were awarded four each in their home state, and the Mid-day group of Mumbai was given six circles, all of them in highly lucrative metropolitan cities. HT Media and Entertainment, a company controlled by the Hindustan Times group – with its significant print media presence in Delhi and Mumbai – was awarded radio licences in both these cities, with the two metropolitan centres of Kolkata and Bangalore also thrown in as a bonus.
Beyond this story of media consolidation, a significant new presence was entering the scene. Adlabs Films Ltd., flush with an infusion of funds after its takeover by the Reliance-ADAG group -- one of the country's biggest industrial conglomerates -- won no fewer than 45 circles in the most recent round of FM radio allocations.[xxiii]
Growing corporate control over the airwaves
These quite unconcealed concessions to corporate control over the airwaves should be seen in the context of existing global norms on cross-media ownership restrictions. These norms indeed, have been repeatedly affirmed in India by broadcast legislation that curiously, seldom makes it beyond the first draft to the stage of enactment. Though the evolution of the new media and the realities of convergence with information technology, have often allowed big media corporations to effect a flanking operation around them, cross-media ownership restrictions remain a valuable part of the statute in several countries.[xxiv] In recent years, a move by the Federal Communications Council (FCC) in the U.S. to undo some of the restraints on cross-media ownership, was met with a vigorous public signature campaign that effectively forced the regulatory body to retreat.[xxv] This is in some measure, an index of the value attached by the public to the sustenance of these norms.
A monopoly over the airwaves was part of the initial conditions in India, in contrast with the U.S., which began with a large assortment of broadcasters that were rapidly consolidated into a handful of dominant entities. It might appear that an oligopoly of private broadcasters – however small in number – would be far preferable to a government monopoly. Interestingly though, in the doctrine of fundamental rights laid down by India’s Supreme Court, the fact of monopoly ownership over broadcast platforms does not, in itself, constitute a curb on the twin rights of information and free speech. It is only from the denial of public access to the broadcast media, that such an abridgment of the fundamental rights could be deemed to occur.[xxvi] In other words, the existence of a monopoly broadcaster does not in itself negate free speech, provided the right to public access is ensured.
The history of the legislative effort to transform a zealously guarded governmental monopoly over the airwaves into a more benign public trust is rather well recorded.[xxvii] Aside from the advisory bodies that were periodically commissioned to come up with creative solutions, the first concrete effort at legislation was the Akash Bharati bill, introduced in Parliament after much deliberation, only to lapse with the dissolution of the Sixth Lok Sabha in 1979. Its successor, renamed the Prasar Bharati bill, was enacted but not notified when the National Front government elected in 1989 – comprising numerous fragments, with one conspicuous exclusion, from the political formation that had dominated the Sixth Lok Sabha – passed into history. It took till 1997, with another avatar of the National Front in power – now called the United Front - for Prasar Bharati to be notified and thus become law.
The government that soon followed, allowed the ordinance notifying Prasar Bharati to lapse and a few months afterwards, disbanded the board of trustees that had been appointed to supervise the functioning of the public broadcaster. In all these respects, the government led by the Bharatiya Janata Party (BJP) signalled that it preferred the strict control over the airwaves to the doctrine of freedom upheld by the Supreme Court. The entire episode seemed to underline a certain reality about the political tutelage that broadcasting reform has laboured under. Where governments unsure of their tenure are in power, led by political formations that are convinced of their imminent mortality, there is a possibility that the oppressive, official, hold over the airwaves will be relaxed. This is a narrow window of political opportunity that would invariably be shut tight when governments are led by parties that believe, for whatever reason, in their historical destiny as eternal wielders of political power. The Congress Party’s persistent record of default on the Prasar Bharati Act, the United Front’s restoration of the agenda of broadcasting reform and the BJP’s unceremonious termination of the experiment, bring to mind the very strong warning issued by Justice Reddy in the airwaves case: “Government control in effect means the control of the political party or parties in power for the time being. Such control is bound to colour and in some cases, may even distort the news, views and opinions expressed through the media. It is not conducive to free expression of contending viewpoints and opinions which is essential for the growth of a healthy democracy”.[xxviii]
Viewed in this context, it is rather easy to spot out the many deficiencies of the BSRB, especially when assessed against the stated purpose of operationalising the airwaves judgment. Drafted in 2006, when the government monopoly had been irreversibly eroded, the BSRB should reasonably have been expected to take into account the experience of corporate control over the airwaves and factor this into its regulatory philosophy. Though a first glance would show that the BSRB does indeed pay due obeisance to the objectives of preserving diversity of choice on the airwaves, these turn out on closer examination, to be no more than a token acknowledgment. Correlatively, the clause that vests the government with the power to curb monopolies in the media, is numerically imprecise and unaccompanied by any construction of a mode of intervention to secure the public interest.[xxix]
How the broadcast bill falls short in its newest avatar
This is to be contrasted with the Broadcast Bill mooted in 1997 as a means of ensuring a reasonable framework of rules for private broadcasters, even as the counterpart policy initiative of notifying Prasar Bharati brought government channels under a variety of public control. Drafted during a brief interlude of openness within the MIB, the 1997 bill provided for “inter-category restrictions on licences (for broadcasting) as well as on the number of licences within a category”. It restricted the “ownership and control of a broadcasting company by newspaper proprietors up to 20 percent and vice versa” and specifically prohibited religious bodies, political organisations, foreign nationals and entities, and advertising agencies from holding broadcasting licences in India. Further, it limited a single person or entity to licences in any two (or less) of the following activities: terrestrial radio, terrestrial television, satellite television or radio, direct-to-home broadcasting, and local C&S delivery.[xxx]
A prolonged legislative vacuum ensued once the 1997 draft lapsed, during which facts on the ground were altered by the country's big media players, progressively making the job of regulation more difficult. Powerful print media groups moved into the broadcast sector, and others that had begun as C&S broadcast companies, integrated horizontally into the newspaper industry. C&S companies in turn, ventured into the domain of retail distribution of television signals and succeeded in establishing their dominance in the most lucrative markets.
For reasons that have more to do with the evasion of tough decisions than with inherent difficulties, the rules evolved for radio have been immensely more stringent than those applicable to TV. This is in part because the stakes in TV broadcasting are high and the power of the medium so great, that multinational media enterprises and big domestic corporations, have always been an aggressive presence influencing policy decisions. Even if governments would like to pretend otherwise, there is little question that policy decisions in the broadcast sector broadly fit into one of two categories: they are either defensive responses to predatory moves by media corporations, particularly those of foreign origin, or signals of acquiescence in the larger designs of these corporations, dressed in the garb of pragmatism.
Towards the end of 1996, News Television India Ltd., a corporate entity owned by the global media czar Rupert Murdoch, announced its readiness to start “direct to home” (or DTH) telecasts in India. This was followed by an advertising campaign in the print media promising Indian TV viewers a new deal that would secure them their independence from the ever-unreliable local cable operator. By April 1997, this campaign had peaked and the Murdoch enterprise seemed all set to manoeuvre its way past the areas of silence in the prevalent policy, to begin an entirely new category of broadcast services. After months of silence which had been construed as acquiescence, the government in July 1997, issued a formal notification prohibiting the transmission or reception on Indian soil of any broadcast signal above the frequency range of 4800 megahertz. In effect, this prohibited the commencement of DTH broadcasts in India.[xxxi]
If this was a defensive policy response, the official attitude towards uplinking from Indian territory for broadcast through satellite, bears all the telltale scars of compliance with an agenda set by players operating beyond the reach of regulatory efforts. The story begins in May 1991 when the Hong Kong based STAR TV network began beaming programmes into India, where audience interest had already been stoked by the satellite broadcast network CNN's coverage of the Gulf War some weeks before. The first of many committees to examine possible policy and regulatory responses, constituted almost immediately afterwards, submitted its recommendations by October 1991.[xxxii]
Certain conditions were taken for granted in all the early, official, examinations of the broadcasting reform. Though thinking on autonomy for the sector had evolved over the years, there was little acceptance yet that the government monopoly over the airwaves would have to yield to new realities. The most that would be conceded was a degree of access for the public to broadcast platforms, that would nevertheless remain the exclusive domain of the government.
The number of broadcast channels beaming into India was by now proliferating. Yet the government remained unwavering in its refusal to allow any Indian entity to establish an upward link to a satellite for diffusion of broadcast signals over the country. This compelled a number of Indian broadcasters to physically transport their programmes on magnetic media to other countries - notably Singapore - from where an uplink was established for beaming signals into India.
The inherent illogic of broadcast regulation in India
This was a situation rife with ironies. Singapore till today zealously guards its airwaves, allowing incoming broadcasts only with a time delay, so that diligent censors continually monitoring the signals can screen out any material deemed objectionable. But despite all its authoritarian attitudes, the government of Singapore had little reservation early in the C&S television boom, in allowing uplinking from its territory. The Indian government in contrast, disallowed any uplinking of broadcast signals, but effectively admitted that it was powerless to monitor or regulate incoming television programmes. To draw attention to this contrast is not to endorse the Singaporean policy of censorship, or to advocate a police regime that would monitor all broadcasts for conformity with an official line. Rather, it is only to underline the inherent illogic of the Indian government's position, which remained a persistent feature for long years into the C&S television boom.
By late–1996, a minor concession was granted with domestic C&S broadcasters being allowed to uplink to satellites owned by India’s Department of Space, for the limited purpose of gathering “news feeds” from remote locations. Though successive committees had recommended that uplinking rights be granted to Indian-owned broadcasters, the government dithered endlessly over what always seemed a fairly simple issue.[xxxiii] By early-1998, the Murdoch-owned STAR TV contracted with an Indian production company to provide the feed for a 24-hour news channel. Senior officials of STAR TV, many of whom had till just prior to joining the Murdoch enterprise, been working for the MIB, were then under investigation in matters involving possible conflicts of interest and even corruption. But Prime Minister I.K. Gujral found little amiss in throwing open the premises of his official residence for the inauguration of STAR’s 24-hour news channel. Uplink rights were granted, ostensibly for a trial period of six weeks, so that the news channel could provide coverage of the upcoming general elections to Parliament.[xxxiv] And once the uplink right was granted to a foreign-owned broadcaster, there was no credible basis on which it could be denied to Indian entities.
Against this background, it is easy to guess why policy on radio continues to remain excessively restrictive: the poor cousin within the broadcasting family has simply not had any powerful lobbies arguing its case.[xxxv] A record of inconsistent – even duplicitous – standards, is especially evident in the record on community broadcasting. The concept note prepared by the MIB in 1996, by way of a preface to the legislation it proposed to bring in, mentioned community broadcasting as an “extremely useful” device in “providing voices to the local community in managing their affairs and participating in (the) overall developmental process”. It proposed moreover, to award broadcasting licences in restricted areas – “on the basis of either a restricted bid or no bid at all” -- to local organisations “to facilitate better education and communication”.[xxxvi]
Since these words were written, big business control over the airwaves has only been consolidated. In the process, the priorities of community broadcasting and public access to the airwaves have vanished from the policy discourse. It was only several months after the spectrum auction for FM radio that the Union Cabinet finally approved a policy that would open up opportunities in community radio to entities other than privileged universities and institutions of learning. And with all the changes that have grudgingly been allowed, the policy on CRS remains highly restrictive in terms of eligibility, content and revenue sources.
These multiple forms of control over CRS stands in striking contrast to the total absence of any regulation over TV broadcasts. Regulatory efforts in C&S TV in fact, are currently focused on the cable operator rather than the broadcaster. The onus of ensuring that all material broadcast is in conformity with the “programme code” and the “advertisement code” rests entirely with the cable operator. This curiosity of Indian broadcast law has been inscribed into the Cable Television Network Rules of 1994 and continues to hold the field till now. The “programme code” in turn, is a bunch of fairly vacuous strictures that have in practice been reduced to nullity.[xxxvii]
Revisiting the ratio of advertisement to subscription revenue
Where regulatory efforts threaten to have a substantive impact on media monopolies and thus on the overall ambience of the right to information and free speech, these are swiftly abandoned for reasons that should not challenge an average intelligence. A recent move by the Central Government, to limit the advertisement time that particular television channels carry, was abandoned within a month of its announcement, without any kind of public debate.[xxxviii] While the proposal may seem absurd on the face of things, it has a long and hoary vintage as a regulatory device with a vital bearing on the fundamental rights. Successive Press Commissions in India have for instance, suggested that the limitation of advertisement revenue earned by particular media organisations, though seemingly an intrusion into their rights, is a necessary evil in the larger cause of the rights to information and free speech. Both the Price-Page Schedule, which requires newspapers to price their product in accordance with number of pages printed, and the directive to limit the number of pages that a newspaper publishes, have been ruled unconstitutional by the Supreme Court in the Sakal and Bennett Coleman cases[xxxix]. Yet they continue to be advocated – not just by control fanatics in the government but also by people with vital stakes in the industry – as an imperative of media regulation.
In 2003 for instance, the Indian Parliament's Standing Committee on Information Technology urged the Government to prescribe a “ratio for coverage of news contents and advertisements in newspapers”. This was necessary since, as the Committee observed, “a tendency is being noticed in the leading newspapers to provide more and more space for advertisements at the cost of news items”. Though in itself, this was not a cause for public concern, there was adequate reason to worry, that with advertisement expenditure migrating towards particular newspapers, others that catered to lower income groups - of lesser importance to advertisers - would be starved of revenues and be compelled to cut back on newsgathering expenses. This in turn, would impair the socially desirable objectives of ensuring diversity and plurality of news media.[xl]
The print media, despite all its traditions in India, is today rapidly losing its rich plurality, as the pressure mounts for conformity with the demands of advertisers and the affluent. The broadcast media because of its specific features, is more prone to surrender its autonomy when faced with advertiser interests.[xli] The public character of the airwaves as a resource, could in short, soon be completely subverted by a sustained campaign of disinformation that essentially denies the public its right to know. Circumstances perhaps have never been more appropriate than now, for a credible regulatory authority, committed to the public interest, to revisit the issue of advertisement and subscription revenue. There is also the need to examine the issue of cross-media ownership restrictions from a public interest viewpoint, rather than the governmental-bureaucratic perspective that has so far been customary in India.
The latest visitation of a law for the broadcast sector, the BSRB, proposes as a public authority to regulate the airwaves, a “Broadcasting Regulatory Authority of India” (or BRAI) that will have the final word in matters related to the broadcast spectrum. Perhaps some of the true motivations behind the BSRB as a legislative proposal would become clearer if the mandate that it invests the BRAI with were to be examined.
The BSRB conceives of a situation when the Central Government will, by notification, transfer all “proceedings pending” before the existing frequency spectrum oversight body, the Telecom Regulatory Authority of India (or, TRAI) to the BRAI. It is significant that over the weeks between June and August 2006 -- with the BSRB being debated in public -- TRAI had sought for the first time to go beyond its assigned job of mediating between telecom companies and adjudicating on matters of frequency spectrum allocation, to seek to establish its authority over the tariffs levied by C&S companies.[xlii] This was within TRAI's mandate as the regulator of the broadcast sector, a status it was conferred with in 2004, ostensibly to hasten the process of convergence between broadcasting, communications and information technology.[xliii] Yet it was never a secret that the MIB was particularly unhappy with this seeming encroachment into its domain. The emergence of the TRAI in its avatar as regulator of subscriber rates that C&S broadcasters could charge, created a further sense of alarm within the MIB, at the possibility that a rival body could win immense populist acclaim in ostensible pursuit of the public cause. The BSRB in other words, was no more than a temporary expedient in a long-running bureaucratic turf war. That, finally is the most charitable assessment that can be made of the last effort to provide a legal framework for the Indian broadcast sector.
December 27, 2006
[i] The text of the Broadcast Services (Regulation) Bill was for long a mystery, with one commentator going to the extent of observing as late as July 28, 2006, that despite all the comment that had been heard in public forums, the Bill was not officially “in the public domain”. This commentator, who happened to be chairperson of the Public Service Broadcasting Trust, had by his own account “requested a copy” of the bill from the MIB, and been told that he could not “legitimately” be given one. “This means”, he wryly concluded, “that all those in possession of a copy of the Bill and those writing about it are in violation of the Official Secrets Act”. (See Rajiv Mehrotra, “Social Justice on the Airwaves”, The Hindustan Times, July 28, 2006, p 11). The full draft of the bill was finally posted on the MIB website on August 11, 2006, with the stated purpose of inviting public comments on an issue of general importance. The bill and the consultation paper that explains its concepts and intents, are available at this writing at the following web address: http://mib.nic.in/informationb/POLICY/BroadcastingBill.htm.
[ii] "Media Muzzled I: Is the Broadcast Bill Media Friendly?", The Hindustan Times, Delhi, July 26, 2006, page 11.
[iii] “New Broadcast Bill just a rehash of existing provisions?”, The Times of India, Delhi and Mumbai, July 3, 2006.
[iv] “Kill this Broadcast Bill before it kills your rights”, Daily News and Analysis, Mumbai, July 1, 2006. This newspaper was launched in the Mumbai market in 2004 and its principal financial backers are the Zee Telefilms group, which operates a number of entertainment and news channels and is by far India’s largest satellite broadcaster, and the Dainik Jagaran group, publishers of the newspaper that was reckoned by the last round of the National Readership Survey, to have a readership of 21 million.
[v] The first amendment to the U.S. constitution forbids Congress from making any law “abridging the freedom of speech, or of the press”. This has led to a considerable jurisprudential debate in the U.S. to determine whether freedom of the press is in some way a redundancy given the unequivocal fashion in which the First Amendment upholds the freedom of speech. The judicial consensus has tended to the view that it is not, which means in effect, that the press enjoys rights that go beyond the public right to free speech. This question is addressed, with appropriate referencing, in an earlier article by this author, "The Challenge to the Media", Seminar, Number 551, July 2005, pp 41-45 (available at this writing at the website: http://www.india-seminar.com/.
[vi] 1962 SCR (3) 842; this is the standard citation format, in which SCR stands for Supreme Court Recorder.
[vii] 1973 SCR (2) 759.
[viii] A fuller examination of both the Sakal and the Bennett Coleman judgments is available in a recent article by this author. See “Freedom, responsibility and regulation”, Seminar, Number 561, May 2006, pp 20-25; available at this writing through the website: http://www.india-seminar.com/.
[ix] 1973 SCR (2), p 760.
[x] Ibid, pp 803-14.
[xi] 1995 SCC (2) 161), para 124(i), SCC here refers to Supreme Court Cases in accordance with the accepted format of citation.
[xii] 1995 SCC (2) 161, para 78.
[xiii] 1995 SCC (2) 161, para 181.
[xiv] Ibid, para 107, 85.
[xv] Ibid, para 205.
[xvi] Ibid, para 81.
[xvii] Ibid, para 205.
[xviii] The policy guidelines for community radio services are available in a document posed on the website of the Ministry of Information and Broadcasting. See: http://mib.nic.in/informationb/CODES/CRBGUIDELINES041206.doc.
[xix] The policy guidelines for the second round of FM radio broadcast licences are available at the website of the Ministry of Information and Broadcasting, at the following URL: http://mib.nic.in/informationb/POLICY/frames.htm.
[xx] The details of the broadcast circles awarded after the last round of FM spectrum auctions, is available at this writing, from the website of the Ministry of Information and Broadcasting: http://mib.nic.in/fm/fmmainpg.htm.
[xxi] It may not be out of place to mention here that Sun TV is a business group controlled by the family of the incumbent Union Minister for Communications and Information Technology, a first-term Member of Parliament from Tamilnadu. Aside from the intrusion of monopoly elements into the media, which is an issue meriting considerable attention in itself, this also raises serious questions about conflicts of interest, which have surprisingly, not attracted much public comment or discussion. For a rare discussion in a public forum on the multiplicity of issues involved in Sun TV’s expansion, see S.R. Ramanujan’s column dated May 14, 2006 in http://www.thehoot.org/, “Why is Tamil media so biased?”
[xxii] For an account of the Times of India’s growth, consolidation and diversification, see this writer’s essay in Himal South Asia, August 2006, “The Times of India’s final frontier”, available at: http://www.himalmag.com/2006/august/essay.htm. Also see the article published in the Delhi-based magazine Hard News, “Demoting news and the reader”, December 2006, pp 17-20, available at: http://www.hardnewsmedia.com/portal/2006/12/697. Both articles in turn, are derived from a case study on the media group published by the Inter-Press Service (Asia Pacific) in December 2006. See: “Times of India: A Catastrophic Success”, in Asia Media Report, A Crisis Within, Inter Press Service (Asia Pacific), Bangkok, 2006, pp 99-110.
[xxiii] On the acquisition of Adlabs by the Reliance-ADAG group, see Sevanti Ninan, “The New Moguls”, The Hindu, Sunday magazine, October 8, 2006. Details of FM broadcast circles awarded till this point have been drawn from the source cited above, i.e., http://mib.nic.in/fm/fmmainpg.htm.
[xxiv] The classic work on this issue of course, is Ben Bagdikian’s The Media Monopoly, Beacon Press, New York, 1983. Detailed rules on the cross-media ownership restrictions in force in the U.S. can be found on the website of the Federal Communications Commission: http://www.fcc.gov/ownership/rules.html. Illustratively, the rules that are currently in force prohibit “common ownership of a full-service broadcast station (television or radio) and a daily newspaper if the station’s service area completely encompasses the newspaper’s city of publication”. The FCC’s 2002 effort to relax these rules in some degree, was met with an organised show of public dissent that compelled it to put the proposed changes on hold. It could be argued that none of the FM broadcast licences given out recently is a “full-service broadcast station”, since they are all explicitly forbidden from engaging in news and current affairs. But with understanding of media economics having progressed much further since the U.S. norms were written, it should be evident that dominance over the advertisement market, particularly in concentrated pockets of high-purchasing power demographic groups, is really the material issue.
[xxv] Associated Press story, “Media ownership issues return to spotlight”, Washington DC, October 3, 2006. This story, issued just when the FCC was beginning a series of public hearings, usefully describes the level of mobilisation of consumer advocacy groups on the issue of cross-media ownership.
[xxvi] The precise formulation in Justice Sawant's judgment is as follows: “A mere creation of the monopoly-agency to telecast does not per se violate Article 19(1)(a) as long as the access is not denied to the media either absolutely or by imposition of terms which are unreasonable. Article 19(1)(a) proscribes monopoly in ideas and as long as this is not done, the mere fact that the access to the media is through the Government controlled agency, is not per se violative of Article 19(1)(a)”. 1995 SCC (2) 161, para 61.
[xxvii] A most comprehensive recent account, focused on television, is Sevanti Ninan, “History of Indian Broadcasting Reform”, in Monroe E. Price and Stefaan G. Verhulst (editors), Broadcasting Reform in India, Media Law from a Global Perspective, Oxford University Press, Delhi, 1998, pp 1-21. A comprehensive survey and critique, focused on radio, is available in Kanchan Kumar, “Mixed Signals, Radio Broadcasting Policy in India”, Economic and Political Weekly, May 31, 2003, pp 2173- 82.
[xxviii] 1995 SCC (2) 161, para 199.
[xxix] Article 10 of the BSRB merely reserves for the Central Government “the authority to prescribe such eligibility conditions and restrictions with regard to accumulation of interest in the print and broadcast segments of the media as may be considered necessary from time to time, to prevent monopolies across different segments of the media as well as within the broadcast segment, to ensure diversity of news and views”. The full text of the BSRB is available at the time of this writing at: http://mib.nic.in/informationb/POLICY/BROADCASTSERVICESREGULATIONBILL.htm.
[xxx] The full text of the draft is available in Price and Verhulst (editors), op. cit., pp 191-222. Also included (pp 223-33) is a concept note circulated by the Ministry of Information and Broadcasting, explaining its overall approach to regulatory issues.
[xxxi] Sevanti Ninan, op. cit., p 18-9.
[xxxii] Ibid.
[xxxiii] This complex regulatory history is summarised in two articles in the fortnightly magazine Frontline. See: “Uplinking rights, The outlook for private Indian broadcasters”, November 1, 1996, pp 93-4; and “A TV debate, questions of broadcast policy”, February 21, 1997, pp 114-5.
[xxxiv] This sequence of events is covered in concurrent issues of the weekly newsmagazine, India Today, especially in the special page titled “Teletalk”, devoted to visual media issues.
[xxxv] Vinod Pavaral asks a pertinent question that still remains unanswered: “why does this government find Rupert Murdoch more trustworthy than a poor, unlettered dalit woman who wants to use a media channel to communicate?” See “Breaking Free, Battle over the Airwaves”, Economic and Political Weekly, May 31, 2003. This is the introductory piece to a collection of papers on broadcasting in India with a focus on community radio, a collection that includes inter alia, Kanchan Kumar, op. cit.
[xxxvi] Price and Verhulst, (editors), op. cit., p 233.
[xxxvii] Among other things, the programme code explicitly forbids the broadcasting of material that contains the “criticism of friendly countries” or “criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country”. Material that “denigrates children”, or projects an “ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups” is also forbidden. And in a revelation that would surely be of interest to the numerous channels that begin the day with astrological predictions – and the sports channels that preface the telecast of important cricket matches with the wisdom of tarot-card readers – anything that propagates “superstition and blind belief” is also proscribed.
[xxxviii][xxxviii] The Hindu, “Decision on advertisement component in TV channels withdrawn”, August 20, 2006, available at this writing at: http://www.thehindu.com/2006/08/20/stories/2006082006131000.htm.
[xxxix] See footnotes 6 and 7 above.
[xl] Standing Committee on Information Technology, Thirteenth Lok Sabha, 63rd Report, Lok Sabha Secretariat, December 2003, pp 39-42.
[xli] The weekly newsmagazine India Today, part of a business group that includes two news channels – Aaj Tak in Hindi and Headlines Today in English – recently ran a cover story that was rather evocatively titled “Tamasha News”. The subtitle read: “Sensational, Shocking, Pervasive, Trivial”. But in a one-line summation of the purport of its story, the newsmagazine refrained from exercising its judgment on the merits of the phenomenon, perhaps because it could not be seen in public to be engaged in an act of self-condemnation. “Intense competition has compelled news channels to feed the voyeuristic appetite of today’s viewers”, it said, “for better or worse”.
[xlii] The Hindu Businessline, "Pay Channels @ Rs 5 per month", September 1, 2006, page 1.
[xliii] See the Press Trust of India story, posted on the website of The Economic Times on January 10, 2004, available at this writing at: http://economictimes.indiatimes.com/articleshow/415625.cms.
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