Last fortnight the Ministry of Information and Broadcasting shrugged off its regulatory lethargy and issued orders prohibiting the telecast of three private television channels. One of the channels which found itself in the crosshairs was Comedy Central for telecasting last year a stand up show which according to the Ministry, “offended good taste and decency”. This is not the first time such orders have been passed with the present set of prohibitary orders continuing a trend of ad-hocism and arbitrary enforcement of content regulation of broadcast media in India.
The legal rules from which such powers arise as well as the process by which this power is exercised in many ways offends the constitutional guarantees and limitations towards freedom of speech and expression. This short piece analyses the problems a plenty which arise from such prohibitary orders.
Absence of bright line rules
Any debate on broadcast regulation has to commence from an examination of the content code itself. The content code is essentially Rule 6 of the Cable Television Network Rules which contains the substantive grounds under which these actions are taken. A summary view of these rules demonstrates that they are widely worded and do not contain the ingredients for the phrases contained in the grounds. For instance, “denigrates children”, which is one of the grounds does not contain any specificity. What constitutes the term “denigrates” is not defined within the principal statute or even these rules. Moreover no further guidance is provided in the uplinking or downlinking guidelines. No reference is made to any laws (the general clauses act does not define many of these terms) and the only guidance if any is provided by an English dictionary.
This lack of definition inheres a lack of limitation making the application of many of the grounds possible in a variety of circumstances. This allows for subjectivity where the personal taste of a person becomes the “good taste” of the Content Code.
For instance take a recent case where Star India approached the Delhi High Court questioning a prohibitory order issued against it for airing the show “Sapna Babul Ka – Bidai”. The issue in the case arose from a passing reference to Maharishi Valmiki as a thief by one of the characters in the telecast. Based on this reference, a warning was issued by the Ministry to Star India which approached the Delhi High Court challenging it. The Delhi High Court by its judgement held that firstly the determination failed to take into account the portrayal holistically and picked upon the term “chor” or thief in isolation and secondly that it did not approach the examination of the episode from the standards of a reasonable person but of a hypersensitive one.
This case amply demonstrates the tremendous laxity afforded by the content code.
Compliance in terms of over-censorship
In the absence of objective criteria broadcasters are often left to determine compliance in a legal vacuum. It is reasonable to anticipate that the absence of bright lines emerging from the Content Code a fuzzy self-censorship is imposed to avoid penalties. This is clearly an affront to artistic freedom as any visual or dialogue which is even remotely controversial may end up under the regulatory hammer of the content code.
This pattern is quite clear from the self-censorship which Comedy Central places on its shows. Often a floating CC logo obscures the customary liplock shown in American sitcoms, acting as the rose shrub which found its way in romantic numbers in Bollywood in the 1980’s. Not only is this process arbitrary but also promotes content broadcast which only caters to the conventional mores of the majority negating any conception of artistic freedom.
Composition of the IMC
A major concern with the enforcement of the programme code, is with the enforcers who grasp our remote controls.The enforcement of the regulation is left to the Ministry for Information and Broadcasting which has constituted a body called the Inter-Ministerial Committee on Regulating Television Content. The Inter-Ministerial Committee composes of high ranking bureaucrats drawn from various ministries chaired by the Additional Secretary, Ministry of Information and Broadcasting. Out of its eleven members only one member does not share their background, being a representative from the Advertising Standards Council of India.
The composition of the IMC was called into question by a writ petition filed by Star India in 2009 when a warning was issued to it for broadcasting the show, “Sach Ka Saamna”. It’s submissions that the IMC being composed entirely of bureaucrats who did not have specialised knowledge to form an objective opinion with regard to violations of the content code found favour with the Delhi High Court. The Court stated that it was important for the IMC to have a broad based membership reflecting the competing interests involved in protecting the freedom of speech and expression. This was substantiated by the Court citing the example of the 13 member body of the Broadcasting Content Complaints Council set up by the Indian Broadcasting Federation which includes members from various fields.
Inefficiency of Appeals
Another system which coerces compliance from broadcasters is the absence of any statutory appeal under the law. In case a warning or a prohibitory order is passed for a violation of the content code a broadcaster has no other remedy except to approach a High Court in its writ jurisdiction. Such a remedy is not only costly but is also often terribly inefficient.
The most recent case of Comedy Central where its broadcast was prohibited by an Order dated 17.05.2013. Under this Order the broadcast was prohibited from 25.05.2013 to 5.06.2013 (a period of ten days). On 23.05.2013, their case came up for hearing before the Delhi High Court which was pleased to dismiss it on 24.05.2013. Comedy Central then filed an appeal which came up for hearing on 28.05.2013 by which time the Delhi High Court was pleased to finally stay the prohibitory Order.
There is much to be read in between these dates. Firstly, the broadcaster has to approach the High Court within a period of one week and get a stay order or the broadcast of its channel is prohibited. Secondly, in case it fails to obtain any such stay or interim relief it has to suffer the disruption in transmission. Even in this case Comedy Central was taken off from viewing for a period of three days. Hence, in cases where a smaller period of prohibition is imposed, say a day or two, even a highly resourceful and well funded television channel may not approach the Courts. Finally, the stay which has been obtained by Comedy Central is with an undertaking that it will not broadcast the shows for which the actions were taken under the Content Code. In many ways, any victory for the freedom of expression is pyrrhic.
This article is about the law of broadcast, however much of law is about common sense which the Cable Television Regulation Act deftly evades. In the garb of moral purity and cultural integrity they impose Victorian values which do not bear a correlation with the demographics of India.A majority of India’s population was born after the law and the regulations were enacted. Moreover, much of the rationale for imposing these rules strictly has become moot with an increase in sources of media platforms and outlets. No wonder many young people today consider the law not to be an ass, but a joke.
Orignally written for and published at the Hoot available here