Just when it seemed as if the draft Broadcast Bill and the accompanying Content Code had once again been left to simmer on the back burner, the Delhi High Court has turned up the heat, seeking a status report from the Government on the draft legislation.
Last week a Division Bench comprising Chief Justice M K Sharma and Justice Sanjeev Khanna heard a public interest litigation filed by social worker Rahul Verma, demanding regulation of sting operations by television channels. The judges asked the Government to inform the court about provisions in the Bill for regulating such practices.
These developments came in the wake of recent reports about the fraudulent and rabble-rousing sting operation aired by a TV channel called Live India, which claimed that a school teacher in the capital was luring girls into sex work. "If the sting is concocted, it is your responsibility to take action," the court stated, obviously addressing the Government. "Some kind of restriction has to be there. It is not about an individual case but about broader policy." The Ministry has since announced a one-month ban on Live India, effective from 20 September.
The bench also observed: "There have been discussions regarding the Bill. The Minister has said that the government is bringing the Bill. What has come out so far?" Whatever the Ministry may claim in court or elsewhere, the real answer to that question is: a lot of sound and fury signifying next to nothing.
When the Bill and Code were unveiled in July, the Minister of Information and Broadcasting Priya Ranjan Dasmunsi certainly seemed determined to introduce it in Parliament during the monsoon session. He did not get his way mainly because he had his hands full, with several political hot potatoes to juggle in his role as Minister for Parliamentary Affairs. In any case, only 11 of the slotted 25 Bills were passed during what turned out to be a partial session, with the Lok Sabha losing 40 per cent and the Rajya Sabha 49 per cent of the allotted work hours, thanks to repeated adjournments.
Of course the draft legislation was also stymied by objections from the broadcast industry, especially news channels, particularly in relation to the Code. After a meeting with "stakeholders" (primarily representatives of private broadcasters) on 7 September, the Minister claimed that the Bill was "not ready as yet" (although he has gone on to claim otherwise in other settings). According to him, television channels were being given time to evolve and establish their own guidelines and systems of self-regulation. The broadcasters had sought a 12-month moratorium on the Bill, but the government has kept the deadline open.
State regulation or self-regulation of content?
On 7 September, the day of the I&B Minister's latest meeting on the Bill and Code, Members of Parliament cutting across party lines reacted to revelations about the fake sting against the school teacher by seeking "some kind of regulation." At the meeting itself, VOICE (Voluntary Organization in Interest of Consumer Education), a Delhi-based non-governmental organisation supposedly representing consumers, was apparently vociferous in its criticism of broadcasters, demanding that they be made more responsible. Letters to the editor published in newspapers also reflect discomfort among many citizens about recent trends in the media.
While such sentiments are understandable in the present context, kneejerk reactions to media malpractices do not bode well for media regulation in a democracy. The regulation of mass media in the public interest involves a complex set of measures meant to maintain a delicate balance between the market and the state so that neither can interfere with freedom of expression and thereby prevent the media from serving the public well.
At the same time, the media need to recognise that there is a difference between public interest and what may or may not interest the public. Although the term "public interest" defies precise definition, it is generally understood to relate to the well-being, convenience and concern of the public at large. It is also worth bearing in mind that "Press freedom belongs, not to media owners, not to ministers of information, not even to journalists, but to the people," as French scholar Claude-Jean Bertrand, an authority on media ethics, has pointed out.
A number of well-known broadcast professionals have admitted in print and on public platforms over the past month and a half that journalism in India - particularly the television variety - is at risk from a "crisis of credibility" and that the time has come for a serious and sincere attempt at self-regulation.
After the meeting with the Minister, Annie Joseph, a spokesperson for the recently established News Broadcasters Association (NBA), said a committee had been set up to formulate guidelines for self-regulation. She did not disclose the composition of the committee but, having cited the need for a "genuine, country-wide public debate" in their arguments with the Ministry, the NBA will presumably find ways to generate such a debate in the process of evolving these guidelines. If not, the broadcast media will be as guilty as the government has been of ignoring the importance of public consultation for media regulation in a democracy.
Interestingly, discussions on the Code have so far focused primarily on Chapter Four of the Content Certification Rules, 2007, contained in Appendix One of the Self-Regulation Guidelines for the Broadcasting Sector (Draft 2007). Since this chapter covers news and current affairs programming it is only natural that it has been the main preoccupation of news broadcasters, who have been the most visible and vocal opponents of the draft legislation. A number of other organisations that have publicised their views on the legislation - such as the Editors' Guild and the International Federation of Journalists (and its Indian affiliates) - have also understandably concentrated on this section of the Code.
What about non-news programming?
There has been surprising silence, at least in public forums, regarding the rest of the Code, which covers all forms of broadcasting services. While the Ministry appears to have "softened" its stand by agreeing to let news broadcasters formulate their own code, it is not clear what it intends to do about non-news programming.
Chapter Three, for example, introduces categorisation and certification systems that will affect all content -- every film, programme or advertisement that is broadcast. According to the Alternative Law Forum, Bangalore, one of the few organisations whose detailed comments and recommendations to the Ministry on the Bill and Code are in the public domain, this chapter is redundant. (See: http://www.altlawforum.org/ADVOCACY_CAMPAIGNS)
They argue that the Cinematograph Act, 1952 and the Cinematograph Rules already deal with certification and categorisation of film and there is no rational basis to distinguish between film and broadcast media. In their opinion, doing so would amount to an "unreasonable classification" under Article 14 of the Constitution. Besides, they point out, enacting a separate Content Code for broadcast media would lead to confusion and unnecessary litigation. They recommend instead the extension of relevant sections of the Cinematograph Act and Rules (Section 5-B and Rule 22 respectively) to the broadcast media.
While this may take care of the immediate problem of superfluous provisions in the Code, a wider debate may be required to tackle problems with the way the film censorship system currently operates. For example, documentaries on "sensitive" subjects often have to cross innumerable, sometimes insurmountable, hurdles before they can be publicly screened, not to mention telecast on Doordarshan. A broad-based discussion on issues relating to censorship in a democracy could be a necessary and useful byproduct of the controversy over the Ministry's Code but so far there is no sign that the opportunity will be used for this purpose.
Chapter Two of the Rules, which covers time schedules for different categories of programmes and is to replace Rules 6 and 7 of the Cable Television Networks Rules, 1994, appears uncontroversial. However, several of the definitions outlined in Chapter One seem to be problematic, requiring some debate.
Problems with vague terminology
Take, for example, the use of the term "warranted" in the Code: "where broadcasters wish to justify an infringement of privacy as warranted, they should be able to demonstrate why, in the particular circumstances of the case, it is warranted. If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy."
ALF points out that any restrictions on the right to freedom of expression must be specifically asserted since such limits are in the nature of exceptions to this right. In their view, the burden to demonstrate that the broadcast of certain information is not in the identifiable larger public interest must rest on the person who claims his or her privacy has been breached and must be specifically asserted by the person concerned.
Similarly, they propose two additions to the definition of "identifiable larger public interest" which, according to the draft Code, "includes revealing or detecting crime or disreputable behaviour, protecting public health or safety, exposing misleading claims made by individuals or organisations, or disclosing significant incompetence in public office."
One is based on the notion that the media play an essential role in ensuring that people can make more informed decisions about things that affect them on an every day basis or on matters of larger public importance. ALF recommends this addition to the definition: "disclosing information that allows people to make a significantly more informed decision about matters of public importance". The other calls for recognition of the fact that freedom of expression is, in and of itself, in the larger public interest. Accordingly, they argue, if information is available or is about to become available in the public domain, there is an identifiable larger public interest in ensuring that the public gains access to it.
The main body of the Ministry's draft Self-Regulation Guidelines -- which includes an introduction, a statement of principles and outlines for a mechanism for self-regulation and a procedure for complaint redressal -- has also received little attention.
The only part of it that has attracted some criticism so far concerns the requirement that the internal "Content Auditor" within each broadcast organisation (required by the Code) must provide the Central Government or the proposed Broadcasting Regulatory Authority of India - "as the case may be" - with an annual certificate confirming that the Chief Editor (or equivalent) has duly reported (to the government or BRAI) all cases in which the Content Auditor's recommendations concerning violations of the Certification Rules or other laws were over-ruled.
The document states that the "basic underlying principle of these Guidelines is that the responsibility of complying with the provisions of the Certification Rules vests with the Broadcast Service Provider." Accordingly, it relies on a self-regulatory mechanism, first at the level of the BSP itself and then at the industry level. Only issues that cannot be settled at either of these two levels is to be referred to BRAI, which in turn is to adhere to the principle of regulation by "forbearance" even while enforcing compliance with the guidelines.
However, there are some catches. For instance, BRAI will have the right to take suitable action, either suo-motu or on the basis of a complaint, in cases of serious violations of the Certification Rules that may have repercussions on the "security or integrity of the country" or which contravene restrictions under Theme 6 (Religion & Community) or Theme 9 (General Restrictions) of the Certification Rules.
Some other terminology used in the Code is also vague and therefore liable to subjective interpretation that may restrict freedom of expression. For example, it is difficult to imagine what "acceptable contemporary community standards" would be taken to mean in a country where moral policing and vigilante justice now routinely circumvent or contravene the law. Similarly, the exhortation that "Great care and sensitivity should be exercised to avoid shocking or offending the audience" can conceivably mean anything in a society where the sentiments of all kinds of groups are so readily hurt.
In the final analysis, to paraphrase educationist A S Neill, while everyone in a democracy is entitled to freedom, an excess of freedom constitutes license. Freedom deals with the rights of the individual; license constitutes trespassing on the rights of others. The media, the government and, indeed, citizens need to figure out the line between the two.