Targeted strike

Print edition : January 20, 2017
The NDTV India case illustrates how the Programme Code enables subjective action by the state against TV channels.

ON the evening of November 7, 2016, as Union Minister for Information and Broadcasting M. Venkaiah Naidu announced the government’s decision to keep the day-long ban on NDTV India “on hold”, it was widely assumed that the issue had been resolved and the possibility of a ban effectively nullified. However, the prospect of a ban continues to hang over the Hindi news channel. Frontline has learnt that the government resumed a process in early December which may put the channel in a difficult spot yet again.

Documents accessed through a Right to Information (RTI) application show that the Director of Broadcast Content in the Information and Broadcasting (I&B) Ministry, Neeti Sarkar, wrote to the managing director of New Delhi Television Ltd (NDTV) on December 2. Referring to a “representation” made to Venkaiah Naidu regarding the ban order, she said that the I&B Minister had “graciously placed the Ministry’s decision on hold. Hence, you are requested to put forth the facts and submissions and adduce evidence in support of your point of view in the matter within 15 days so that this Ministry can take a considered view”.

The representation referred to by Neeti Sarkar in her letter was made by the co-founder and executive co-chairperson of NDTV, Prannoy Roy, in a meeting with Venkaiah Naidu on the evening of November 7. When protests by journalists and opposition parties against the decision peaked, Venkaiah Naidu met with Prannoy Roy and members of NDTV’s “top leadership”. In his “representation” to Venkaiah Naidu, Prannoy Roy wrote: “We feel that the IMC [Inter-Ministerial Committee] decision to take NDTV India off-air for a day did not fully take into account our views and facts of this case and therefore the Honourable Minister for I&B, Shri Venkaiah Naidu, may put on hold and review the decision.” In response, Venkaiah Naidu wrote a terse note on this document: “Put the decision on hold as discussed. Sec, take necessary action further [sic].” On Twitter, though, he cited the government’s “liberal democratic ethos and principles” as reasons for putting the decision on hold, despite the IMC clearly stating that the channel had “compromised national security”.

Months before this controversial decision was put on hold, a single-page “violation report” prepared by the Electronic Media Monitoring Centre (EMMC) on January 6, 2016, set in motion official processes that eventually led to the ban. The EMMC is a unit of the I&B Ministry responsible for monitoring the content of television programmes for any possible violations of the Programme Code.

In her report analysing NDTV India’s coverage of the Pathankot terror attacks on January 3 and 4, EMMC Assistant Director Parvathy Rahul said: “This is to inform that NDTV India, while covering the Pathankot terror attack on January 4, 2016, has divulged sensitive information and thus, apparently violated Programme Code 6 (1) (p) prescribed under the Cable Television Network Rules, 1994. A CD containing clip on the same is enclosed for further perusal.”

She also noted that a previous report of the EMMC had found both NDTV 24x7 and NDTV India not in violation of the code in their coverage of the attacks on January 3. Officials in the Ministry were quick to prepare a note detailing the observations in the “violation report” and made a case that “prima facie” this appeared to be a violation of the code and that a show-cause notice needed to be sent to the channel. On this note, the observations of “IMPT” (presumably short for important) and “may examine and discuss quickly” were made. This urgency was felt not only by mid- and senior-level officials, including a Joint Secretary and the I&B Secretary, both of whom signed the note on January 14, but also by Minister of State Rajyavardhan Rathore and the then I&B Minister, Arun Jaitley.

On January 18, Rathore wrote a short note that “HMIB may like to see before issuance of notice”. HMIB is the official acronym for “Honourable Minister of Information and Broadcasting. On January 27, Jaitley signed on the note. The show-cause notice was issued to the channel on January 29. It asked why action as per “the provisions of uplinking/downlinking guidelines, the terms and conditions of the permission granted and Section 20 of the Cable Act” should not be taken against it.

Over the next seven months, before the order recommending a ban was passed on November 2, the IMC scrutinised the contents of a press conference addressed by three senior Defence Ministry officials and a report broadcast on NDTV India after the press conference on January 4, when the anti-terrorist operations at the Pathankot Indian Air Force base were in progress. The IMC is a committee of bureaucrats of the rank of Joint Secretary from the Ministries of Home, Defence, I&B, Health and Family Welfare, Consumer Affairs, Law and Justice, External Affairs, and Women and Child Development. It also has representatives from the Advertising Standards Council of India. NDTV responded to the January 29 notice on February 5. The channel’s representatives also attended a “personal hearing” on July 25 to explain their position.

Programme code

The IMC’s order rests on prohibitions imposed on reporting anti-terror operations by Rule 6 (1) (p) of the Programme Code, which regulates television news content. The rule was introduced by the Bharatiya Janata Party (BJP)-led National Democratic Alliance government in 2015. The committee objected to details discussed by a reporter and an NDTV anchor concerning the long-drawn-out anti-terror operation at Pathankot. In the excerpt quoted in the order, the reporter says two terrorists are still alive inside the airbase “near a depot of weapons” and security officials fear that if the terrorists come in close proximity to it, that could create unforeseen problems. He also names some of the weapons in the depot and mentions the presence of a school and residential areas nearby. The IMC sees this information as violating the rule.

NDTV has argued that most of its information was already reported by newspapers. However, the IMC pointed out that these two specific details were “neither based on nor limited to the information given in the media briefing by the designated officers as required under Rule (1) (p)”. It also said that this information “could have been readily picked up by their handlers, which had the potential to cause massive harm not only to the national security, but also to lives of civilians and defence personnel”.

The order does not confirm if any of the information reported by the channel actually helped terrorist handlers. Rule 6 (1) (p) is part of the Programme Code contained in the overall Cable Television Networks (Regulation) Act. It says: “No programme shall be carried in the cable service which contains live coverage of any anti-terrorist operation by security forces, wherein media coverage shall be restricted to periodic briefing by an officer designated by the appropriate government till such operation concludes.”

The Pathankot anti-terror operation went on for more than three days during which several news channels and newspapers reported extensively on it. However, the IMC resorted to analysing mass psychology to come to what appears like a predetermined conclusion on NDTV India’s coverage. It said that “unlike print, TV is an audiovisual medium which have [sic] a far wide and instantaneous impact”, and therefore broadcasting information live during anti-terror operations could cause “demoralisation of the citizenry and security forces”.

Unsurprisingly, those well aware of media law are not pleased. Paranjoy Guha Thakurta, Editor of Economic & Political Weekly and author of multiple books on media practice, said: “Rule (6 (1) (p)) should not be there. If the government wants to keep the media out of reporting live or otherwise an anti-terror operation, there are many ways it can do it without using the means of the Cable Network Act.” He pointed out that calls from the political class to regulate anti-terror operations began soon after the attacks in Mumbai in 2008. The United Progressive Alliance government had made up its mind to implement contentious legal measures to rein in the news media, but some media owners met Prime Minister Manmohan Singh in 2009 and he assured them that no changes would be made without consultations. But the BJP brought in the new rule soon after it came to power.

Anup J. Bhambhani, a senior lawyer, said that the entire Programme Code was problematic. “The Programme Code is replete with vague words and phrases. Ambiguity in the law is an invitation to authoritarianism and sounds a death knell for free speech,” he told Frontline.

The code can prevent the broadcast of programmes that bureaucrats feel are offensive to good taste, decency, morality. In fact, most of the six past warnings and show-cause notices issued to NDTV, as per the I&B Ministry’s records, were largely related to content which the bureaucrats felt was vulgar, indecent or obscene. While ambiguity in the code is certainly an issue, the necessity of independent and credible regulation of the media is also being voiced increasingly. At a gathering of journalists on November 7 to protest the order, the veteran editor Rajdeep Sardesai emphasised the need for a statutory regulator that would act independently of the government to address genuine grievances about TV news coverage. The current system allows the government’s “arbitrariness and overreach”, he said.

While the prospects of an independent regulator remain remote at present, uncertainty continues to build in the ongoing case of NDTV India. Neeti Sarkar’s letter to NDTV quoted earlier has followed the further “necessary action” mentioned by Venkaiah Naidu on November 7. On December 6, when this correspondent looked at the case files in the Ministry, the response from the channel’s legal team was yet to arrive. Lawyers representing the channel in the Supreme Court refused to comment given the sensitivity of the case. Sources in NDTV India said journalists employed by the channel had been instructed not to comment on the issue, and news about the matter is broadcast on NDTV’s English channel since NDTV India is a party to the case.