India has changed radically and exponentially in the last few decades. Since we live amid these changes, we tend to ignore them or they go unnoticed. If one is asked to identify only two areas where India has changed the most, the first would be telecom and the second, the explosion of TV channels. From the India of 1959 with Doordarshan as the sole government-controlled monopoly to over hundred channels and 415 million viewers, the journey has hardly taken a decade. India is the third largest TV market with revenues of $ 3.4 billion (2005) and 21 per cent annual growth in advertisement spending.
This kind of reach and the future potential not only generates rights but also means more duties and responsibilities for all stakeholders, including the service providers and the government. The proposed broadcasting bill and the existing Prasar Bharati Act together constitutes India’s response to the growing demand for regulation and autonomy. With a plethora of technology options, India has to tread carefully through a maze of opinion makers, lobbyists and power brokers. It is not easy for a young democracy, living in a coalition era, to navigate through the crosscurrents generated by lobbies and proxies — both domestic and global — which camouflage personal interest as public interest. It is in this context that the proposed Bill has to be objectively analysed.
At the outset, it should be clarified that no bill is or can be perfect. Therefore, additions can be made to the interactions with the stakeholders held already, if there are constructive suggestions. It, however, needs to be stated that some of the vocal, even hysterical reactions, from certain segments of the media shows a lack of appreciation of the finer points of the bill and seeks to put private commercial interest above public interest.
Before any constructive debate can even begin, some ground rules have to be set. First, the media have to accept that they function within the ambit of certain laws as much as the executive, legislative and the judiciary. To seek an island of immunity, in the name of press freedom, would be deleterious in the long-run to the fourth estate itself. Fortunately, this is not the intent of the majority in the media.
Changes to individual words or clauses can undoubtedly be made if suggestions are genuine and constructive. But as things stand now, the opposition to clause 6 appears to be exaggerated and hyper-reactive. The clause empowers the central government to stop broadcasting in exceptional circumstances in public interest, if the relevant broadcast is prejudicial to relations with a foreign country, public order or internal security. This provision is there in several developed countries. No country can allow broadcasts if the tests subsumed under the aforesaid phrases are factually fulfilled. Moreover, a subjective, arbitrary, whimsical or capricious exercise of power under such authorisation by any executive authority would be struck down under the judicial review exercised by our strong and independent courts. The Bill only confers the power and jurisdiction; it does not legitimise wanton abuse of such power.
Clause 7 of the Bill mandates compulsory sharing of broadcasting signals of “sporting events of national importance”. It is nothing but a statutory recognition of a pre-existing executive order. It seeks to prevent situations where exorbitant commercial demands by the franchisor of the signals or legal disputes between the latter and his franchisees or sub-franchisees would deprive the public of the telecast. The phrase, however, quoted above needs to be defined more specifically and guidelines in detail have to be created to prevent subjectivity.
Much hullabaloo has been raised regarding the content code in clause 4. The newly-created Authority would have the power to refuse registration to a broadcaster if the content it airs is “likely to threaten the security and integrity of the State or threaten peace and harmony or public order... or threaten relations with foreign countries”. The arguments made in respect to clause 6 will apply here. No civilised democracy can function without the existence of such authorisation.
The visual media exercise hypnotic control over the hearts and minds of the public and even the most liberal democracy cannot deny itself the residual power to regulate such telecasts if it impinges on the fundamental values of the democracy. To confer such power is not to pre-suppose its abuse with impunity. Press freedom — a phrase not even mentioned in the constitution — has been zealously guarded and assiduously expanded over the decades by the vigilant courts and public opinion. To even fear a muzzling of the media through a mere regulatory statute like the present Bill is to be less than fair to the cherished chaos and cacophony of Indian democracy.
Many of the legal tests quoted above are identical to those found in the constitution on the basis of which even fundamental rights can be diluted, regulated or diminished. However, the content code must and will undoubtedly be thrashed out, word by word. The creation of a new Authority is vital but has already been delayed. The conflict of interest rules in the proposed bill seek to prevent cross-holdings, monopolistic interests, proxy controls and camouflaged access to the Indian market and address all significant areas of public interest. A mature democracy is not the one with constant refrains about rights; it is the one which blends them with responsibilities. I have little doubt that we will strike the right balance.
Abhishek Singhvi is MP, National Spokesperson, Congress, and a senior advocate