7/27/2019 Broadcast Regulation

1/3

Economic and Political Weekly September 15, 20073690

Broadcast Regulation:Narrow Consultations,

Indifferent ResultsYet another attempt the fourth in a decade at introducingregulation of the broadcast industry has come a cropper, as beforebecause of opposition from powerful media groups. However, thelarger issue is that the government continues to defne publicownership of the airwaves (as decreed by a Supreme Court

judgment) in very narrow terms and what goes by the name ofpublic consultations on the text of draft legislation is also narrow.

Sukumarmuralidharan

Broadcast regulation, for all itsimportance from a public intereststandpoint, today seems reduced

to an elaborate game of feint and ma-noeuvre between the ministry of informa-tion and broadcasting and the countrys

bigger media houses. Played out every sooften in public view, there is yet no ac-counting for the specic intervals at whichthe two principals choose to enact their

practised routine, except perhaps theministrys reading of when it is in needof some media attention.

In its two most recent visitations, thedrama has played itself out with remark-able similarity. A bill is introduced andopened for public comments; it is greetedwith a torrent of adverse comment bythe countrys main media houses; theministry concedes the need for furtherconsultation and organises a few suchevents, marked more by the exertion oflung-power than reason. Finally, theministry, in acknowledgement of the strongsentiments of the media industry, acceptsthe need for further deliberations and

defers the introduction of the bill inParliament a little longer.

In its phrasing, the new version of theBroadcast Services Regulation Bill (BSRB)differs in a few minor matters of detailfrom its immediate predecessor. In spiritthough, it partakes of the same inspiration,making no more than a pretence of lettingzealously guarded governmental powers go.That these powers are now a pale shadowof what they once were, is seemingly ofno consequence. The erosion of the govern-mental monopoly over the airwaves hasnot yet engendered a constructive spiritof engagement with the potential rewards

of open access to the airwaves.The BSRB in its most recent avatar was

introduced for public discussion on July 21,with the stipulationthat all comments besubmitted within two weeks. Even by thestandards of a bureaucracy that has reduced

public consultations to an empty ritual,this was rather cavalier. In the days thatfollowed, the minister for information and

broadcasting, Priya Ranjan Dasmunshi,seemed to retreat from his earlier expressedintent to introduce the bill in the monsoonsession of Parliament.

The reasons for the ministers reticencecan only be guessed at. But it was almostcertainly a powerful consideration thatindustry associations and the big mediahouses had uniformly reacted adverselyto the draft bill. And thus, after one moreround of public consultations, conned torepresentatives of the broadcast industryand a few other bodies that the ministry

chose to identify as stakeholders, thefourth attempt at broadcast regulation ina decade passed into history. Like its

predecessors, it had fallen victim to thehostility of the broadcast industry and thefailure of the ministry to go beyond anarrow circle in assessing the larger

public stakes in broadcast regulation.This most recent attempt at introducing

a broadcast law has shown more clearlythan ever before that the government isunlikely to get very far if it continues touse the approval of big players in the

broadcast industry as the touchstone forassessing the worth of any proposedlegislation. But while the governmentdithers, facts on the ground are beingcreated that make the job of regulationincreasingly difcult. Cross-media owner-ship was once non-existent in India. Today,giant companies with entrenched interestsin print, radio and television are increas-ingly dominating the media scene andexercising a virtual veto over any proposedlegislation.

In Default

The consequence is that, 12 years aftera historic judgment by the Supreme Court,which laid down the principle of publicownership over the broadcast spectrum,the government continues to be in defaulton the task it was specically enjoined toundertake: the creation of a public authoritythat would oversee the allocation of thespectrum for optimal public benet.

Civil society groups, anxious to see theprinciple of public ownership operation-

alised, have focused on the many seriouslacunae in the process of drafting andintroducing broadcast legislation. Invari-ably, there has been little public consulta-tion. Committees are formed in accordancewith opaque criteria and these committees,in turn, function without any serious effortat eliciting a broad range of opinion. Theynally arrive at legislative drafts that arean uneasy compromise between the govern-ments reluctance to let go of its controllingurge, and the broadcast industrys aversionto accepting any form of oversight.

7/27/2019 Broadcast Regulation

2/3

Economic and Political Weekly September 15, 2007 3691

Yet, with every successive cycle throughwhich this game is played out, the govern-ments hand steadily weakens. Its monopolyover the airwaves has long since been

breached by technological changes. Andits voice, once a decisive inuence in the

policy debate, is steadily being diminishedby the growing clout of the broadcastindustry and its ability to tap the resources

of the print media, to further its cause.Though the ministry has been insistent

that it has factored in the perceptions ofmedia consumers in producing its draft

bill, there has yet been no credible ac-count of how these consumer groups areidentied. Other civil society groups have

perhaps, by design, been a marginal pres-ence in the discussions so far. They have,moreover, been reluctant to join the debateon terms determined by the governmentand the broadcast industry.

These aspects of the process that has

been followed by the ministry are re-ected in the text of the BSRB, in itslatest draft. At no point does the bill makethe slightest concession to public as op-

posed topoliticalcontrol of the broadcastspectrum. The process that it conceivesof for the appointment of a BroadcastRegulatory Authority of India (BRAI) isentirely political and involves little con-sultation with the public on a broaderscale. The powers of the BRAI, moreover,are not derived from the public in ac-cordance with the mandate of the Supreme

Courts 1995 judgment, but delegated fromthe government.

Who Is the Public?

Discussions organised by advocacygroups around the most recent draft ofthe broadcast bill have thrown up a sig-nicant issue of process. The 1995 airwaves

judgment gives the government contingentrights of custodianship over the airwaves,

but no enduring powers to determine howthey should be utilised. Broadcast regula-

tion, certain civil society groups haveargued, should in this sense, begin withthe constitution of a broad-based forumthat would represent the public in the mostcomprehensive possible manner. The in-stitutional forms and procedures of broad-cast regulation should then be worked out

by this body, rather than be assigned toit by the government.

Media houses have for obvious reasonsfocused on the powers of search andseizure that the BSRB confers, as an areaof serious concern. This apart, the bill

identies certain contingencies, such asan external threat, public order andmore mysteriously, friendly relations withforeign countries, as occasions when thegovernment would feel entitled to abridgethe content of broadcasts, or even proscribecertain categories of broadcast. This con-stitutes the introduction of a doctrine of

prior restraint into the jurisprudence on

the media and the right to free speech. Itis a legislative provision with far-reachingconsequences, which obviously deservesmore than the cursory attention it hasattracted so far.

Among the grounds on which the BRAIcould stop certain categories of broadcasts,is a failure to abide by the so-called Self-Regulation Guidelines for the Broadcast-ing Sector that have been introduced asa corollary to the new draft of the BSRB.These guidelines, otherwise known asthe content code, are partly about re-

lieving the judiciary and the governmentof some of the burden of administering

post facto remedies and sanctions. Broad-cast service providers will be expected toset up in-house content auditors to ensurethat all broadcasts are in conformity withagreed norms. Complaints from the publicif any, would rst be dealt with throughthis in-house mechanism.

If redress is unavailable at this level, thecomplainant would be entitled to take hisgrievance to the next tier in the hierarchy,which would be the industry body. All apex

associations in the industry such as theNews Broadcasters Association, theIndian Broadcasting Federation, the Com-munity Radio Forum, the Cable OperatorsForum of India and the Advertising Stan-dards Council of India would be ex-

pected to set up complaints commissionsto address these public grievances.

Beyond this, the BRAI comes into thepicture and then the higher judiciary.Though this regulatory mechanism doesnot supercede the judicial process, it isexpected to relieve some of the stresses

that the courts endure when called upon toadjudicate on matters of media practice.

The utility of this very intrusive charter,which goes by the name of self-regulation, should be weighed againstthe possible impact that a minimal num-

ber of sound judicial precedents wouldhave. A set of clear and transparent judi-cial rulings could conceivably be of fargreater signicance in this respect, thana policy that seeks to internalise withinevery media house, certain restraints onfree speech.

Viewed from this perspective, there isultimately no alternative to establishingthe juridical foundations of free speechand media practice. Anything less wouldmean undue concessions to a doctrine of

prior restraint. In this respect, there havebeen proposals mooted by professionalbodies to widen the ambit of the PressCouncil of India, to enable it to deal with

the broadcast media and to tighten up itsprocedures so that its ndings are mini-mally binding on the industry.

Yet the government in addressing themission of broadcast regulation seems toadopt the reverse perspective: that postfactoremedies are impossible or useless,and that prior restraint is the only feasiblerecourse. In seeking to justify the strictapplication of the content code to themedia for instance, the ministry arguesthat damage or injustice resulting fromnews and current affairs contents of tele-

vision cannot be undone post facto.

Curious Plea

This must seem a rather curious pleain an age of proliferating media channels,when erstwhile constraints that weredeemed to arise from the physical limita-tions of the broadcast spectrum are nolonger operative. The changes that havearisen from these changes are apparentall around. In 1949, for instance, theFederal Communications Commission

(FCC) in the United States enacted whatcame to be called the Fairness Doctrine,which was premised upon the notion that

broadcast companies were no more thanpublic trustees over the airwaves andobliged as such to provide a fair hearingfor every conceivable viewpoint withinsociety. It was always a doctrine that wasclumsy and selective in its application.But in 1987, with erstwhile limitationson the broadcast spectrum proving inap-

plicable, the FCC felt emboldened torepeal the Fairness Doctrine, on the grounds

that no member of the public would bedeprived of the means to access the airwavesto put his viewpoints across. Though adecision based as much on ideology asfact, it does highlight how a regulatoryregime that guarantees fair rules of accesscan make notions of prior restraint thor-oughly superuous.

The remedy, in other words, lies not inconstraining the right to free speech, butin allowing it greater latitude. Though thegovernment has chosen to overlook theinnite possibilities available on that front,

7/27/2019 Broadcast Regulation

3/3

Economic and Political Weekly September 15, 20073692

recasting the Prasar Bharati apparatus totransform it into an authentic publicservice broadcaster that ensures fair rulesof access would be one way to guaranteethat false and scurrilous news reports inother channels do not go unchallenged.But with its well known aversion toletting go, the government seems un-willing to consider any progressive change

on that front.Certain other locutions within the

content code seem to give rise to a fairsuspicion that its true purpose may be torestrain the public scrutiny of ofcialmalfeasance. The following, patentlyillogical clause hints at this hidden intent:Any infringement of privacy in themaking of a news based/related pro-gramme should be with the persons and/ororganisations consent or be otherwisewarranted (Chapter IV, clause 14.4).

Though poorly enforced and understood,

laws protecting an individuals privacyare very much a part of the Indian PenalCode. Any intrusion into an individuals

privacy by the media has in this sense,to clear certain legal hurdles. Over time,it has become an accepted principle that incases involving the public interest, mediaintrusions into an individuals privacymay be warranted. But if the revelationsdo not measure up in their seriousness tothe gravity of the intrusion, the mediawould be laying itself open to sanctionsunder the law. Privacy, in other words,

cannot be a shroud for gross acts ofmalfeasance. The content code seeks toreduce this common sense to absurdity

by insisting on an individuals consentfor an invasion into his privacy.

These are matters involving mediapractice in its most fundamental sense,as a duty to inform the public and tocontribute to the quality of the publicdiscourse. Viewed in this manner, it wouldseem inadmissible that the ministry should

proceed with broadcast legislation in thecomplete absence of any consultations

with accredited bodies of media practi-tioners and the larger public. That in shortis the reason why the fourth effort at

broadcast regulation, like its immediatepredecessor, has lacked public acceptanceand legitimacy. Indeed, the principalreason why broadcast regulation has sunkinto a rut may well be the determinationof the government to keep the publicinterest, dened in as broad a manner as

possible, out of the debate.

Email: sukumar.md@gmail.com

EPW