Enough bad faith and weasel words

BY EDARA GOPI CHAND| IN Media Practice | 28/07/2014
It's time for a fresh look at the pressing need for a regulator for the broadcast media. The government's fence-sitting and the media's delaying tactics have to stop,
says EDARA GOPI CHAND

On August 5th, the Supreme Court has scheduled its next hearing on two petitions regarding the regulation of the broadcasting sector. One (WP(C) 963/2013) was by ‘Hindu Janjagruti Samithi’ and another (WP(C) 1024/2013) was by ‘MediaWatch-India’, the organisation the author of this article represents. These two cases have been bunched along with the long pending petition (WP(C) 387/2000) of Common Cause and are being heard together.

The Court earlier indicated 12-3-2014 as the date of the final hearing and wanted the pleadings to be completed by that time. However, as of now, only the NBA (News Broadcasters Association) and the IBF (Indian Broadcasting Foundation) have filed their counter affidavits in the case filed by MediaWatch-India. The government, the Association of Radio Operators India (AROI) and the Advertising Standards Council of India (ASCI), who are the other respondents, are yet to file theirs.

With the new government in place, it remains to be seen what stand it is going to take on the broadcasting legislation before the Supreme Court. ‘Our Government doesn’t seek to regulate the media’ has become a standard statement of every new Information and Broadcasting Minister upon assuming office.

Prakash Javadekar, the current I&B Minister, is proving no exception. He emphasized that in the coming years, words like 'government-run', 'government-controlled' or 'government intervention' will be heard less and less. If the minister really meant what he said, he should be putting an end to the present anomalous situation of government regulation of broadcast media through the Cable Networks Act, and the Uplinking & Downlinking Guidelines.

This requires a genuine attempt to revive the legislative effort towards setting up an independent regulator, a body which should be truly autonomous in composition, powers and finances. Most importantly, it demands courage and confidence to face the broadcasters’ lobby, which always hastens to equate any talk about ‘regulation’ with the ‘gagging’ of media freedoms.

If its election manifesto is any indication of the BJP’s priorities, it is doubtful that the government will act swiftly on broadcasting reform. For the record, except for the Aam Aadmi Party, the CPI & the CPI (M), no other political party, including the Congress and BJP has the word ‘media policy’ in their election manifestos.

The media’s self-imposed ban

 ‘Airwaves’ being public property, any debate or discussion on their usage and management by an independent authority should be in the public domain. However, there is a self-imposed ban by sections of the media on any talk about regulation and it works in three ways: (i) by self-imposed censorship on initiating any discussion or debate on broadcast media regulation (ii) by painting a lopsided picture equating regulation with ‘strangulation’ and ‘silencing’ anyone who talks about the need to regulate the broadcast sector (iii) by offering ‘self-regulation’ as the only solution for all the ills plaguing the broadcast media and extolling the efficacy of the so-called ‘self-regulatory’ mechanisms, NBSA (News Broadcasting Standards Authority) & BCCC (Broadcasting Content Complaints Council) on every possible occasion.

This reluctance to discuss the issue and the ‘silent’ approach of the government has made people forget that in 1995, there was a specific ruling by the Supreme Court in the ‘Airwaves’ case, to set up an independent regulator for the broadcast media. This lack of discussion ensures that no one gets to hear about the independent/statutory regulatory regimes working in most jurisdictions of the world, some of which are more mature democracies than ours.

Now that the issue is before the Supreme Court, all the stakeholders are going to be forced to speak their mind on this ‘controversial’ subject. The Court has also given signals that it is going to take a final view on the matter soon.

The UPA’s double game

The Government has been the ‘supporting actor’ in this whole drama of scuttling debate on reform. From the Broadcast Bill of 1997 and the Communications Convergence Bill of 2000 through to the ‘latest’ Broadcasting Services Regulation Bill, 2007, the Government lists its ‘endless’ efforts towards setting up a statutory regulator.

In 2000, the Delhi-based NGO, Common Cause, filed a PILin the Supreme Court against the growing violence and vulgarity on television channels (far fewer in number in those days). This case came up for hearing before the Court 24 times in the last 14 years, the latest being in March this year. There were no arguments at all except for the Government’s ad nauseam plea that it was  ‘working’ on broadcast legislation and the Court has been quick to adjourn the case.  The way the adjournments were given liberally without insisting that the government submit specific information on the progress it was making on  broadcast legislation, gives an impression that even the Apex Court wanted to adopt a ‘wait-and-watch’ approach on the issue.

To know the ‘real’ stand of the UPA government on broadcast reform ‘outside the Supreme Court’, one has to go through the official documents of the Ministry of I&B and the occasional statements by its ministers. Strategic Plan (2011-17) of the Ministry reads:"…One of the major apprehensions of the broadcasters is that such a regulator will not be allowed to function independently and the Government was likely to interfere with the content in one way or the other. The view of the broadcasters is that the issues relating to content should be left to self-regulation…In view of this, the strategy for the Ministry in the context of self-regulation is to put in place a self-regulating mechanism which is acceptable to all stakeholders.” (Pages No. 62 & 63) The same line was reiterated in the Annual Reports (2011-12, 2012-13) of the Ministry. In April, 2013, the then Minister, Manish Tewari, assured the broadcaster CEOs that ‘Regulation will not come from the political executive’ and warned that this may happen ‘from the judicial side’.

In the Strategic Plan (2011-17), the Ministry of I&B stated that a Task Force had been constituted in 2009 under the chairmanship of Secretary, I&B and that it had held ‘wide ranging consultations with different stakeholders’ and concluded that ‘self-regulation is the best way to regulate the media and no purpose would be served by introducing any other measures to regulate content.’

However, when asked under the RTI Act for the minutes of the ‘wide-ranging consultations’, the Ministry replied that no meeting of the task force had been held so far! This means that no formal consultations were made with any of the stakeholders and, if any were made, they were informal and not even minuted, leave alone available in the public domain.  

Thus, almost throughout its tenure, the UPA Government played a double game with the Supreme Court and media houses on broadcast legislation, apart from fooling the public, who are the ‘owners’ of the ‘airwaves’, at least as per the 1995 judgment of the Supreme Court.

Unsurprisingly, the opposition also maintained a safe silence on the issue at that time, given its ‘explosive’ character. The Government openly misled the Apex Court by citing consultations and consensus-building etc. when it fact it virtually bowed to the pressure from influential broadcasters and shelved the broadcast bill completely.

The fact that the Ministry has chosen not to publish the comments received on the draft broadcast bill on its website for the last seven years reveals its effort to bury the debate on broadcast regulation.

Broadcasters should come forward with their model scheme

It is true that there are provisions in the draft Broadcast Bill, 2007 which sought to give sweeping powers to the Central Government and no one can accept the bill in its present form. The way forward is to oppose those regressive provisions, insist on genuine independence for the regulator and to suggest suitable ways to insulate the functioning of the regulator from government interference.

This requires a careful study of global best practices in broadcasting regulation and brainstorming on how to adapt them to India. The broadcasting industry can itself take the initiative and come out with a model scheme for public discussion and for the consideration of the Government.

But instead of adopting this positive and proactive approach, the media houses, owing to their vested interests, are putting up a blanket opposition to any move towards broadcast reform. The Government had been unabashedly playing along in utter disregard of viewers’ interests.

The regulator cometh, no matter what….

Given the present anomalous regime of government regulation of the broadcast media, the Apex Court’s categorical ruling in the ‘Airwaves’ case and given  international experience, no one can wish away the advent of an independent statutory regulator. Sooner or later it has to come and it will come. It’s only a matter of time.

Knowing this, the strategy of the broadcasting fraternity, led by the Indian Broadcasting Foundation (IBF) & the News Broadcasters Association (NBA), appears to be to delay its emergence as long as they can so that they can remain unaccountable for their omissions and commissions as long as possible.

They enjoyed sharing a comfortable equation with the Ministry of I&B during the tenure of the last government, which was known for its silence even over cases of serious violations. (For illustrative examples, see this article.)

According to the Annual Report (2012-13) of the Ministry of I&B, the Electronic Media Monitoring Centre (EMMC) reported around 43,076 violations of the statutory Programme & Advertisement Codes by private TV channels (out of which 14403 violations have been submitted before the Scrutiny Committee).

See the paltry figures of ‘action’ taken by the Ministry in the same period: 28 show cause notices, 15 orders including 7 Advisories, 7 Warnings and 1 Directive. Further, when asked under the RTI Act about the legal basis for the issue of such ‘advisories’ and ‘warnings’ to offending channels, the Ministry gave a reply which reveals its pampering of broadcasters: “It is informed that there is no separate notification / order / provision in the Cable Television Networks (Regulation) Act, 1995 and Uplinking / Downlinking Guidelines for issuing of Advisory / Warning / Apology Scroll or for closing the matter. It is further informed that no restriction has been imposed on the Ministry regarding not taking such action for cautioning and educating the TV channels before the action of prohibition of transmission is resorted to as per Cable Television Networks (Regulation) Act, 1995 and Uplinking / Downlinking Guidelines.(This ultra vires and illegal practice of issuing token advisories by the Ministry instead of imposing statutory penalties on erring channels is being challenged very soon by ‘MediaWatch-India’ in the Court of law.)

What the broadcasters want is crystal clear: a dummy regime of ‘government regulation’ and a self-serving farce of ‘self-regulation’ to co-exist so that they are answerable to nobody.

Now, the big question is: will the Modi government have the gumption to bring in an independent regulator for the broadcast media or will it also not touch this hot potato?

Edara Gopi Chand is Vice-President, ‘MediaWatch-India’, a civil society initiative to promote decency and accountability in the media - www.mediawatchindia.orge-mail: mediawatchindia123@gmail.com

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