Countless renditions of Spiderman have meant that even those who have not read the comic / watched the movie know that "with great power comes great responsibility". This piece is about the existence of great powers and the complete abdication of responsibility that has been on show thus far in a very specific context: The regulation of hate speech and objectionable content over television broadcasts in India.
I will essentially argue that the existing statutory framework confers enormous powers for active regulation of content and that this potential is being wasted at present, as it takes a High Court order to get authorities to do what they should have been doing themselves in the first place. I will also argue that arguing in favour of active regulation, even for pre-censoring content, is something that is within the realm of the constitutional position on free speech in India which limits the contours of this right. Lastly, I point out certain problems with the existing regulatory framework, which likens it to a medieval despot rather than a regulator for a democratic polity.
Powers of Regulation in TV Broadcasting
The Cable Television Networks (Regulation) Act of 1995 is a peculiar document, and historians might have a great time reading through the legislative debates which led to this legislation that is designed to safeguard Indian culture from western media influences and protect subscribers against "anti-national" broadcasts. What I am concerned about is the regulatory framework that the Act installed not only for cable television providers, but also for content that is broadcast on the networks. There are various sources of regulation, but I'll flag only some here:
- Content must be in line with the Programme Code stipulated under Rule 6 and the Advertisement Code (under Rule 7) of the Cable Television Networks Rules 1994 (which have been amended from time to time), and Section 5 of the Act demands that content which is not compliant with the Code should not be broadcast. The Programme Code is a diverse set of regulations in itself and prohibits airing content which, among other things, "offends good taste or decency", or; "contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes", or; "criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country". The Advertising Code is similarly broad in scope.
- Section 19 of the Act confers powers upon an "Authorised Officer" [who may be a District Magistrate, Sub-Divisional Magistrate, or a Commissioner of Police], with the power to prohibit the transmission of "any programme or channel" which is "not in conformity with the prescribed [codes]", or, content which is "likely to promote on grounds of religion, race, language, caste or community or other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities" or, "which is likely to disturb the public tranquility".
- Section 20 of the Act confers similar powers upon the Central Government to regulate / prohibit the transmission of content which it considers is contrary to the Programme Code or the Advertising Code [Section 20(3)]. It allows content transmission to be blocked if it is seen as being necessary to do so in the interest of, among other things, public order, decency, or morality.
These are enormously broad powers conferred upon executive authorities bordering on the unconstitutional insofar as some grounds for exercising power appear extremely vague. But at the same time, some of these categories for exercising censorship functions are not as ridiculous as others. For instance, and this is where I want to focus, it is difficult to argue against actively preventing content which stirs communal passions from being aired on television.
Bindaas Bol, Sudarshan News, and The Absent Regulator
It has been established that the Cable Television Networks (Regulation) Act confers enormous regulatory potential upon government officials. The scope of their vast discretion definitely takes within its fold actively screening out content which flares communal passions or denigrates any individuals or groups. If this is the case, one wonders, where is the regulator?
It says something that at a time when a particular brand of television broadcasting routinely engages in branding a section of the population with a term commonly used for those indulging in terrorist acts, there has been no reported use of powers under the Act. Rather, the most notable examples from the past decade or so remain the bans suffered by AXN for broadcasting indecent content, and the one-day ban on NDTV India for its coverage of the 2016 violence in Pathankot.
So much so, that despite there being ample advance publicity by Sudarshan News that it was going to run a broadcast at the prime time 8 PM slot about the "massive infiltration of Muslims in Government Service" and to ask people what would happen "if a Jihadi from Jamia becomes your District Collector", there was no intervention from the regulator. The promo tweet for the show called "Bindaas Bol" was available from 25th August, three days before the scheduled broadcast on the 28th, and yet, no action had been taken by the regulator up to this point to consider whether the content might be contrary to the regulations.
Or at least, nobody knew if there had been any consideration, such being the beautiful opacity with which this regulator functions. It was only when the Delhi High Court took cognizance of the matter on a petition brought about by current and former students of JMI [Syed Mujtaba Athar & Ors. v. UOI & Ors., WP (C) 5792/2020] that the government revealed that it was in receipt of many complaints, and that it had asked for the channel to clarify the situation in light of the Programme Code [Order dated 28.08.2020].
Could the situation have been resolved in advance? Of course! Three days is more than enough time to consider the content and decide whether content it is to law. But this did not happen. Instead, at the last minute, a desperate plea was made to the High Court to intervene and stop the telecast of what appeared to be prima facie illegal content. This was not by invoking any higher-order logic, but by simply citing the clear mandate of the Cable Television Networks (Regulation) Act and the Programme Code under the 1994 Rules. The High Court, after looking at the content shared on twitter, and passed a temporary restraining order against the broadcast of the 8 PM expose for it found that on a prima facie view of the matter the content did appear contrary to the regulations.
Free Speech and Hate Speech
A small maelstrom of controversy was generated as the Supreme Court also was asked to look at the content that same evening and it refused to pass a restraining order [Firoz Iqbal Khan v. UOI, WP (C) 956/2020]. While Sudarshan News obeyed the High Court's orders and did not go ahead with the scheduled broadcast, it engaged in a toned-down version of that same rhetoric and also pu up an impromptu caller-session to remind us just how hotly anticipated the channel's journalistic foray was. It also prompted the channel to move the Delhi High Court on the very next day asking that the restrictions ordered by it be lifted. In the middle of all this was a heated debate across social media about the limits of free speech in India (which, as most social media debates, was ephemeral).
Let us first see what the High Court did. Taking up the matter, it rationally distinguished the Supreme Court order where only an unverified transcript of the allegedly offending content had been shown to the Court. As against this, the High Court had the benefit of the actual clip, the authenticity of which was not being disputed by Sudarshan News. It found no reason to vacate the restraining orders passed in respect of, what it still considered, to be offending content. Does support for the High Court's actions mean that free speech proponents are guilty of the sin of hypocrisy? I think the criticism could well be levelled at the more extreme libertarian section of the free-speech proponent category, but for more moderate ones like myself, pre-censorship of content which a judicial body considers to be hate speech and potentially the subject of criminal action is quite justifiable.
Descending from the realm of abstract debate into the constitutional position on free speech, we find that the moderate position is what the law endorses as well. The limits on free speech is a feature of Article 19 often cited when an "anti-national" activist makes a speech. Well, the same Article 19 is what prohibits referring to an entire section of the population with labels akin to terrorists on national television, and incites disaffection between communities and religious groups.
Going Beyond Power to Improve Procedures
Not only did the High Court dispose of this request, it also disposed of the petition by directing the channel to file its response to the Government Notice by 01.09.2020, and further directing the government to decide the matter within 48 hours while giving the channel an opportunity to be heard. Till such a decision comes, the High Court ruled that the restraining order shall remain in force.
The Delhi High Court's elegant intervention in the Sudarshan News incident shows us just what all is lacking from the current regulatory sphere when it comes to television broadcasting in India. Despite a statutory framework that empowers regulators to easily take a proactive stance by conferring them possibly unconstitutionally broad discretion to intervene in matters, we have a situation where the regulator continues to sleep while television anchors lambast entire sets of persons as quasi-terrorists and anti-nationals.
The problem is not only one of the arbitrariness that naturally goes along with any regulator, but in this context much of the problem comes from the ill-defined nature of the regulatory framework. If the High Court did not intervene in the case of Sudarshan News and set clear timelines for deciding the notice, who knows when the matter would have reached its conclusion? Without the High Court's intervention, would Sudarshan News have had a right to be heard to clarify the content that it wishes to air? At the same time, without the twitter-storm that the offending content generated upon being posted on 25.08.2020, who knows whether the government would have issued a notice to begin with?
All of these questions are legitimate because nothing in the Act or its many Rules sets out how any complaint is to be registered, or the timelines in which it must be disposed, or even the process for its disposal. Nothing stipulates that the content provider must be heard before a decision is made, and there is nothing like an internal appellate mechanism for an aggrieved party to make use of, requiring challenges to a restraining order must go before High Courts. The paucity of detail in the regulatory sphere is not novel and it is something we see quite often in rules and regulations that were authored before the turn of this century — a surprisingly similar scenario could be seen with the law on surveillance). Unfortunately, while the Supreme Court trained its lens on the surveillance regime in 1996 to improve the situation on that front, no comparable episode of judicial attention has yet been witnessed in the cable TV context.
Conclusion — Despairing the Despot
It is fair to say that the "mushrooming" of television networks and programmes which the Cable Television Networks Act spoke about back in 1995 has reached critical mass today. There are a ton of channels in all languages, where fighting words are all we hear upon tuning in, all to secure our limited attention span for the next advertisement. The hunger for revenue has led to creation of content which plays upon the worst in all of us and infantilizes our ability to comprehend tough questions by presenting them as contests between good and evil.
Things would obviously be a bit different if more people questioned the many assertions that drive such content. But things would also be different if the existing regulatory mechanism woke up to take notice of just what is going on. It is not that the television broadcasting sector does not have a powerful regulator; a look at the Cable Television Networks (Regulation) Act and the Rules would confirm that it has an enormously powerful one. The problem is that this regulator is more akin to a despot — it is opaque in its functioning, unaccountable for its inaction, and has no objective restraints upon exercise of its power. Despots are also known for being swayed by majoritarian opinion and routinely result in the oppression of minority rights.
Forgetting that we have a regulator and imagining it to be a despot certainly helps explain a lot of what is going on, I think, but it does not help improve the status quo for anyone. So next time you are aggrieved about what you end up seeing on TV — and it might yet be the Bindaas Bol broadcast that the government is mulling over now — try not to change the channel but confront the content. There is ample scope for something to happen if you do.
Views are personal only.