Broadcasting as a citizen's right

Using the airwaves to impart or receive information is a part of the fundamental right to freedom of speech and expression and charging exorbitant licence fees for radio broadcasting amounts to a denial of this right to public-spirited citizens.

STATE policy towards radio broadcasting has traditionally been schizophrenic. There has been one policy for All India Radio, a policy that has emerged over the years in which complete control has been tempered, to a greater or lesser degree, with a certain amount of freedom and discretion. This has varied with the kind of Minister in charge of Information and Broadcasting - the more enlightened ones have given AIR a degree of freedom and defended that freedom in public and in Parliament; others have claimed to do so and have actually done their best to make it a mouthpiece of the government. And there have been some who have made no bones about declaring it to be a government agency bound to propagate the views of the government.

But across the board the over-riding concern was to see that AIR broadcast programmes were informative and of a certain standard. True, it was the only medium-wave broadcaster and, therefore, had no competition. But even so, AIR did produce some memorable programmes. Practically, every Bengali of a certain age remembers Birendra Krishna Bhadra's Mahalaya programmes which he produced every year for several years, and has fond memories of waking up at 4 a.m. to listen to it. Most media watchers agree now that if classical music, both Hindustani and Carnatic, is popular today it is owing in no small measure to the regular broadcasts of programmes by the finest exponents of such music of those times.

The other kind of broadcasting policy has to do with the curious attitude to private radio broadcasters. Initially, the government allowed private broadcasters but in a very limited way - they were allowed to use AIR transmitters for certain hours of the day and charged a hefty fee for doing it. They were not allowed to broadcast news and current affairs programmes; only entertainment - music, shows, radio plays and so on. The fees charged were exorbitant for reasons I could never understand. Naturally those who initially took the licences, perhaps excited at the prospect of being able to communicate to a very large audience, soon realised that the revenues that their broadcasts generated were not enough to make the ventures worthwhile. Gradually they closed down, one by one.

The government revised its policy thereafter, and recently gave licences to applicants who could broadcast programmes using their own transmitters; they were allocated certain FM (frequency modulation) bands and they did not have to depend on AIR transmitters. This change prompted a number of media houses and others to apply for licences. But, again, the fees charged were astronomical, and with even less justification than before. Earlier the Finance Ministry could justify the charges because the private broadcasters were using AIR equipment - transmitters and related peripherals, and the rent for these, for the staff, charges for power and other facilities were sufficient to silence those of us who felt the private broadcasters were being fleeced.

But now it has no excuse for charging the exorbitant licence fees. The government provides nothing except the FM bands; that costs it nothing. So what exactly is it charging for? For the privilege of using the medium of radio to communicate with listeners? If that is the reason, the government needs to do its homework urgently, before it is asked to appear in court in a case that it is bound to lose.

The government needs to look at what the Supreme Court said in Civil Appeal Nos. 1429-30 of 1995 The Secretary Information & Broadcasting, Government of India & Others vs Cricket Association of Bengal & Others with W. P. [Civil] No: 836 of 1993 Cricket Association of Bengal and Anr. vs Union of India and Others. The court said: "The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent an invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an in-built restriction on its use as in the case of any other public property."

The court went on to say that "the right to impart and receive information is a species of the right of freedom of speech and expression guaranteed by Article 19[1] (a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose." It is pretty obvious that this applies as much to radio broadcasting as to telecasting. But the implications of this ruling must be fundamental to the government approach to broadcasting.

The Supreme Court has said in clear terms that using the airwaves to impart or receive information is a part of the fundamental right to freedom of speech and expression. This means that the government cannot use the airwaves as a matter of right. Fundamental rights are those of citizens, not of institutions or administrative systems. They may use it, but only if permitted to do so by a lawful authority. It also means that the right can be abridged only by the provisions of Article 19 [2] that is, where security, public morality or decency and some other matters are concerned. In other words, access to the airwaves cannot be denied to a citizen except on these grounds.

The Supreme Court has, in the same judgment, directed the Union government to set up a public authority to regulate the use of the airwaves - because there would be many wanting access but only a limited availability of frequencies - `immediately'. That word has been construed very liberally by the government, to put it mildly; the judgment was passed in 1995. This is 2003 and no public authority has yet been set up; the government is itself performing the functions that the Supreme Court wanted the public authority to do.

Not only is the government doing that, it is also issuing licences to citizens to use the airwaves and charging them these astronomical fees, which are so high that you and I can never ever hope to obtain a licence. To make things worse, the government has attached all kinds of conditions to the licences - they cannot carry news bulletins, for example. This in spite of the Supreme Court's declaration that access to the airwaves is a fundamental right.

So who gets the licence? The privileged few who have the money to pay the huge licence fee, and who then use the licence to set up radio stations that are purely commercial in order to earn money. (That many of them are not earning as much as they would like to is beside the point.) And what if someone wants to set up a radio station to inform citizens, to create an awareness in them of social issues that are considered important and relevant? They cannot get a licence, because they cannot pay the fee, and they will not be allowed to broadcast the kind of programmes that they may want to - public service programmes. The government may say that Prasar Bharati is doing precisely that. It may well be doing it, but who gave it a monopoly on public service broadcasting? The government cannot even pass a law on the subject, given the fact that it will involve amending the Constitution, which this government is hardly in a position to do.

It is more than time that the government took a good look at its policy on radio broadcasting. And it is more than time that it took the Supreme Court judgment seriously and set up the public authority the court has directed the government to do, a body on the lines if the Federal Communications Commission in the United States, or the Broadcasting Authority in the United Kingdom. The government cannot pass a law saying that Prasar Bharati is exempt from applying for and taking out a licence; because it is an organisation and does not have the right that a citizen has.

So far no one has taken the government to court on this. But it should not count on this happy state of affairs continuing for very long. One day or the other someone will file a contempt case against the government and then it will have nowhere to turn. Unless it takes a good look at its policies immediately and ensures that access to the airwaves is what it was meant to be, and what the Supreme Court says it is - a fundamental right of a citizen of India.