Who’s the Boss?

Mumbai.HighCourt.1

Two recent posts (1 and 2) on ILTB concerned the regulatory regime governing reality television shows. As reported by the Legally India Blog, there has been an interesting legal development in this domain. It seems that the Ministry of Information and Broadcasting issued a directive dated 17.11.2010 to the producers of Big Boss and Rakhi ka Insaaf asking them to shift them the show timings from 9 p.m. slot to 11 p.m. The shift was asked as 9 p.m. is categorized as unrestricted prime viewing time and the shows contained vulgar content. Subsequently the Producers of Big Boss and the Channel airing the show, filed a writ petition in the Bombay High Court challenging the validity of the notice. The Hon. High Court was pleased to by its Order dated 18.11.2010 to provide relief to the producers by making an interim order, keeping the notice dated 17.11.2010 in abeyance till the next date of hearing. A copy of the Order is embedded below.

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My take on this entire controversy is limited to the two main lines of arguments which are recorded in the Order dated 18.11.2010 made by the Hon’ble Bombay High Court. The discussion here is limited and is general, since I have yet to come across a copy of the direction which was issued by the I&B Ministry.

The first main ground of challenge which appears from the Order is the absence of a show cause to the producers of the show/channel before the directive was made. A show-cause notice is a part of the principles of natural justice which are ingrained in Latin (audi alteram partem) as well as Indian administrative law. It is an essential pre-requisite broadly mandating that a person who may be prejudiced by an administrative action has a right to be heard and present his side of the story, before the prejudicial action is taken. Non-compliance with this legal principle can be fatal, as has now been discovered by the I&B Ministry. To comply with the requirement of providing a hearing, a better course of action would have been an interim direction in the show-cause notice itself. This would have made the order seem more reasonable, fair and legal.

The second main ground of challenge was the absence of reasons which were present in the directive. The requirement of providing reasons for a decision is another part of the principles of natural justice and even here non-compliance makes the decision bad in law. Press reports, as well as the Order dated 18.11.2010 note that, the Directive did state that the program contained lewd visuals and language and was not suitable for general public telecast. However these bald statements do not satisfy the legal requirements as the touchstones for providing reasons are contained in the specifics. Hence, the Directive should have contained specific instances of the use of such language and visuals. In the absence of such specific reasons the directive is liable to be set aside.

There is long line of case law on this point with respect to the power of the government to prohibit publications (ban books) contained under Sec. 95 of the Code of Criminal Procedure. I am attaching a chart made by me sometime back on several notifications made under Sec. 95 which provide a ready reckoner on the point below.

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Another pattern which is discovered from an examination of the case law is that when the notification issued under Sec. 95 is discovered to be issued in haste and lacks legal prerequisites (such as adequate reasons), it is withdrawn and a fresh legally compliant notification is issued. Hence, if the Ministry of Information and Broadcasting withdraws its notification (directive) of 17.11.2010 and then issues another one after a show-cause notice and containing adequate reasons then it can quickly achieve its objective as well as end the litigation. Coming to the effect of the litigation, even though only interim orders have been passed it seems the writ petition has already achieved its purpose. The producers of the show, shortly before the directive was issued entered into contracts with Pamela Anderson to appear for 3 days as well as entered into advertising deals. Hence, the shifting of the time slot would have had, “civil consequences” as alluded to in the High Court Order.

The first two posts on this subject did seem academic however the recent litigation under discussion has demonstrated the lacunas which were highlighted before. The point made and reiterated was that there is an absence of a clear procedure and authority to administer content regulation in India. Even the procedure and the substantive prescriptions which exist do not serve the purpose they are made for. As a necessary sequitor, the take away from the big boss litigation is that in the absence of clarity and established procedures we can expect many more challenges and court cases.

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