NO one would have imagined that a law made to regulate the operation of the cable television network in 1994, and the rules framed thereunder would prove so inconsistent with the constitutional guarantee of freedom of expression, which also includes the freedom of the press and the electronic media. Professional media organisations and the community of journalists have ignored the inconsistency for the past 20 years because they did not apprehend a situation where the government of the day would use a little-noticed provision in the rules to threaten and bully the media. The hanging of the 1993 Mumbai blasts convict Yakub Memon on July 30 at the Nagpur Central Jail after the Supreme Court’s dramatic rejection of his last-minute challenge to his death warrant and the media’s coverage of the event provided the perfect setting to prove that such an inconsistency could indeed be real.
The Union Ministry of Information and Broadcasting (I&B) issued notices to three channels, ABP News, Aaj Tak and NDTV 24x7, asking them to explain why action should not be taken against them for violating Rules 6 (1)(d), (e), and (g) of the Cable Television Networks Rules, 1994, on the specious ground that their coverage of issues relating to Yakub Memon’s hanging was violative of these rules.
In the notices, the Ministry referred to specific content it found objectionable. In the first instance, both Aaj Tak and ABP News telecast a phone interview of the underworld don Chhota Shakeel in which he claimed that Memon was innocent. In the second, NDTV telecast an interview of Yakub Memon’s lawyer, Majeeb Memon, in which he talked about how a lot of countries had done away with the death penalty. He also expressed his doubts about the correctness of the pardon granted by the trial court to one of the co-accused in the case who testified against Yakub Memon and whose complicity in the blasts, according to Majeeb Memon, was 10 times more than that of Yakub Memon. The lawyer, to paraphrase, had also claimed that if such pardon had been granted to any person in jurisdictions such as the United Kingdom and the United States, it would have invited ridicule.
The notice to NDTV 24x7 alleged that the channel allowed transmission of content that not only questioned the judicial system of India but tended to denigrate the very institution by hinting that it was not on a par with the judicial systems existing in the U.K. and the U.S. The notices issued to ABP and Aaj Tak accused them of denigrating the office of the President.
The Ministry threatened to cancel the licences of these channels for uplinking and downlinking if their responses to the notices were not satisfactory. Doubts have been expressed whether the Ministry has the requisite powers under the Cable Television Networks (Regulation) Act, 1995, and the Rules, to act against the channels, which are content providers, as distinct from cable operators.
Section 5 of the Act says that no person shall transmit or retransmit through a cable service any programme unless such programme is in conformity with the prescribed Programme Code. The 1995 Act replaced an ordinance, promulgated in 1994 by the Central government, which also led to the framing of relevant rules under it.
Rule 6 (1)(d) says no programme should be carried in the cable service which contains anything obscene, defamatory, deliberate and false and suggestive innuendos and half-truths. Rule 6(1)(e) seeks to bar any programme likely to encourage or incite violence or contains anything against maintenance of law and order or which promotes anti-national attitudes.
Rule 6 (1)(g) says that no programme should be carried in the cable service which contains aspersions against the integrity of the President and the judiciary.
The eminent lawyer Indira Jaising has observed that the word “integrity” in this rule must be interpreted to mean “financial integrity” and is not to be confused with criticism of their decisions. The government cannot fight surrogate battles on behalf of the President and the Supreme Court of India, she said in an article, published on thewire.in.
Other rules dealing with the Programme Code, like the above three, are equally questionable. Thus, Rule 6(1)(a) insists that no programme should be carried in the cable service which offends against good taste and decency. But Rule 2, which has definitions for certain expressions used in the Rules, does not define “good taste” and “decency”, thus leaving it to the discretion of the authorities to decide what is meant by these terms. Rule 6(1)(b) bars criticism of friendly countries.
Rule 6(1)(f) seeks to restrict anything amounting to contempt of court, as if the Ministry wants to lighten the burden of courts, which, under the Contempt of Courts Act, 1971, are the sole authority to decide what constitutes contempt of court and what the punishment should be for the offence.
Other rules carry vague expressions such as “anything affecting the integrity of the Nation” (Rule 6(1)(h)) and “criticising, maligning or slandering any individual in person or certain groups, segments of social, public and moral life of the country” (Rule 6(1)(i)). Maligning or slandering are obviously actions that need to be curbed. But the addition of the word “criticising” to this list gives the government a broad licence to keep the channels under check and get them to toe its line on almost everything. The Supreme Court recently, in Shreya Singhal vs Union of India, struck down Section 66A of the Information Technology Act because its language was loose and capable of being abused to make the constitutional guarantee of free expression meaningless.
Rule 6(1)(j), which restricts encouragement of superstition or blind belief, if strictly applied, could result in the closure of several channels. Obviously, the government is guilty of selective application of these rules.
It is surprising that the government relies on the evidence submitted by a government-run body, the Electronic Media and Monitoring Centre (EMMC), which scans all channels, to form a prima facie opinion that the channels might have violated the Programme Code. The code itself is so loosely worded as to bring under its ambit even innocuous content aimed at informing viewers, which may be out of sync with the view held by the government.
The EMMC is a subordinate office under the Ministry of I&B and it monitors the content of various television channels for any violation of the Programme Code, Advertisement Code and various provisions of the Cable Television Networks (Regulation) Act. It monitors around 600 television channels round the clock and carries out a scrutiny of violations, if any, by them. The EMMC prepares reports on purported violations, along with recorded clips, for the Scrutiny Committee, which examines them and forwards its findings to the Inter-Ministerial Committee and other bodies for action.
The EMMC classifies the violations in terms of rough and gross violations. Thus, in April this year, it reported 2,626 rough violations and just two gross violations, and sent 11 clips to the Broadcasting Content Complaint Council. Among the EMMC’s achievements, as stated in its website, are comparative analyses of the coverage of Prime Minister Narendra Modi’s “Mann Ki Baat” programme on All India Radio and his foreign tours by the various news channels. No wonder that the EMMC found the coverage of Yakub Memon’s hanging by the television channels an apt subject to please its political masters.
While the monitoring of content in the electronic media for violations of programme and advertisement codes makes sense, it has to be done in a professional manner by an agency known for its commitment to professional standards and objectivity. The EMMC, which largely sees itself in a “policing” role to inform the government about the nature of the media content, is ill-equipped to make a dispassionate assessment of violations of the Programme Code, which, in view of its loose language, has to be interpreted liberally in favour of the media.
The EMMC owes its genesis to the Central Monitoring Centre (CMC) set up in Shimla during the Second World War to monitor anti-war propaganda carried out by various international radio programmes. The CMC was renamed Central Monitoring Services (CMS) and brought under the direct control of the I&B Ministry in 2003. In 2008, it was again renamed, as the EMMC. This background robs the EMMC of any competence to sit in professional judgment of the possible violations of the Programme Code by broadcasters. The Broadcast Editors Association, therefore, rightly feels that the Ministry must refer violations to the self-regulatory mechanism established by the BEA.
Representatives of the BEA met I&B Minister Arun Jaitley and shared their concern about the notices. Their concern stems from the fact that violations of the Programme Code could lead to serious consequences under the Act. First, the authorised officer could seize the equipment being used by a cable operator for operating the cable television network. Second, whoever contravenes any of the provisions of the Act shall be punished with imprisonment for a term which may extend up to two years, or with a fine of up to Rs.1,000, or with both, if it is the first offence. For every subsequent offence, the Act imposes a punishment of five years’ imprisonment with a fine of up to Rs.5,000.
The Editors Guild of India, on August 8, condemned the issue of show-cause notices to the three channels and sought their immediate withdrawal. The Guild’s president, N. Ravi, termed the Ministry’s action shocking and stated that the regulations were never meant to be used to stop the free and vigorous discussion of matters of public interest, however disagreeable the content might be to the government. He described the controversy over Yakub Memon’s hanging as a “matter of widespread public interest with sharply polarised viewpoints”.
He added that viewpoints unacceptable to the government ought not to be penalised on the specious plea that they would incite violence or spread hatred. Ravi called for a re-examination of the broadcasting regulations that look too broad and leave room for misuse in violation of the right to freedom of expression under Article 19(1)(a) of the Constitution.
The outrage over the notices should, hopefully, make the government introspect and drop further action in the matter. Otherwise, a judicial challenge to these rules may be in the offing.
As N. Ram, chairman of Kasturi and Sons Ltd, put the issue succinctly in his article published on ndtv.com, regulation under the guise of enforcing the Programme Code is imposing crude censorship and going after the messenger. Ram described as insidious the distinction drawn between print and electronic media by the government for the purpose of applying this censorship to the latter.
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