The proposed Broadcast Bill — Part III

IN Law and Policy | 25/08/2006

CHAPTER 4

OFFENCES, PENALTIES AND APPEALS

28. Punishment for offences under this Act:

(1) A person who in contravention of the provisions of this Act, provides, distributes or receives any broadcasting service which is not licensed under sub-section (1) of section 3 or broadcasts a channel which is not registered or a program which is not permitted under sub-section (1) of section 4, or abets or assists transmission or distribution of such service or content, as the case may be, in any manner which may include collection of subscription for his principal, issuing of advertisements to such service, dealing in or distribution of decoders, shall be guilty of committing an offence of illegal broadcasting, and on conviction, shall be punishable with imprisonment which may extend up to three years, or with fine which may extend up to rupees twenty five Lakhs or both, and for subsequent offence and conviction such imprisonment may extend to five years or fine up to rupees fifty Lakhs, or with both.

Provided that unauthorized decoding or receiving of a program that is not permitted or of a channel that is not registered or dealing in or distribution of equipment for the purpose shall also constitute an offence of illegal broadcasting and shall be dealt with accordingly.

(2) Whoever contravenes the provisions of sections 5 of this Act shall be punishable:

(a) For the first offence, with imprisonment for a term which may extend to two years or with fine which may extend to rupees ten lakhs or with both,

(b) For every subsequent offence, with imprisonment for a term which may extend to five years and with fine which may extend to rupees twenty-five lakhs.

29. Offences by companies:         

(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;

Provided that nothing contained in this sub-section shall render any such person liable for such punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that it has been committed with the consent or connivance of, or is attributable to the negligence on the part of, ay director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation: For the purpose of this section,

(a)   "Company" means any body corporate and includes a firm or other association of individuals; and

(b)   "Director" in relation to a firm, means a partner in the firm.

30. Cognizance of offences:

(1) No court shall take cognizance of any offence punishable under this Act except upon a complaint made in writing by any authorized officer.

(2) No Court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate of First Class shall try any offence punishable under this Act.

31. The Authority to prescribe penalties for violations of license conditions etc.: The Authority  may  prescribe the penalties to be imposed for violation of various terms and conditions of the license / permission / registration subject to the condition that such penalties shall not exceed a fine of rupees fifty lakhs, besides suspension or revocation of such license / permission / registration, subject further to the condition that no penalty shall be imposed unless and until a reasonable opportunity has been given to the service provider to explain its position.

32. The Licensing Authorities to impose penalties: (1) Subject to the provisions of section 31 of this Act, every licensing authority shall have the power to impose any of the following penalties, individually or in combination, on its licensee service providers, in case of breach of any terms and conditions of the license or permission or registration, as the case may be, namely: -

(i)     Direct the licensee to broadcast a correction or an apology or not to repeat a programme; and/or
(ii)      Impose a fine which may extend up to rupees twenty five lakhs
(iii)     Suspend the license for a specified period; or
(iv)     Curtail the period of the license; or
(v)      Revoke the license.

Provided that no such penalty shall be imposed without giving a reasonable opportunity to the concerned service provider of being heard in person or through a legal representative.

Comment: nowhere is it clearly spelt out who the licensing authorities are. In the case of channel licenses it has been the ministry of information and broadcasting after clearance from the ministry of communications. Why not spell this out?  As of today it is ministries of the government of India and the Telecom Regulatory Authority for some things.

It is significant that courts are being kept out of adjudicating on matters relating to broadcasting. If courts cannot take cognizance of offences under section 30 why go on immediately to specify which courts can try such offences?

Provided that the violations of the Content Code shall be punishable only by the Authority, and the licensing authority shall have the power to enforce compliance with such punishment by the service provider.

(2) Pending disposal of the case, the Licensing Authority may, if it considers it expedient or desirable in public interest to do so, direct the concerned service provider to stop the repeat broadcast or broadcasts of a particular program or portion thereof which is under investigation or enquiry, and the service provider shall immediately comply with such a direction

Provided that no such interim direction shall be issued without giving a reasonable opportunity, as far as practical, to the concerned service provider of being heard in person or through a legal representative.

33. Appeals against the orders of the Licensing Authorities: An aggrieved person may prefer an appeal against an order or direction of any of the Licensing Authorities to the Authority within a period of thirty days of such an order or direction.

34. Appeals against the orders of the Authority: An aggrieved person may prefer an appeal against the order or direction of the Authority before the Film Certification Appellate Tribunal (FCAT) in respect of cases of violations of the Content Code, and before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) in respect of cases of all other violations of the terms and conditions of license.

35. Appeals before the Supreme Court: (1) Notwithstanding anything contained in the Code of Civil Procedure or in any other law, an appeal by either party to the dispute shall lie against any order, not being an interlocutory order, of the TDSAT or FCAT, as the case may be, to the Supreme Court on one or more of the grounds specified in Section 100 of that Code.

(2) No appeal shall lie against any decision or order made by the TDSAT or FCAT, as the case may be, with the consent of the parties.

(3) Every appeal under this section shall be preferred within a period of 90 days from the date of the decision or order appealed against,

Provided that the Supreme Court may entertain the appeal after expiry of the said period of 90 days if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

36. Transfer of pending cases to the Authority:

(1) On the date to be notified by the Central Government, after the establishment of the Authority, all proceedings pending before the Telecom Regulatory Authority of India (TRAI) shall be deemed to be pending before the Authority and shall be disposed off in accordance with the provisions of this Act.

(2) On the date to be notified by the Central Government, after the establishment of the Authority, all proceedings pending before the Ministry of Information and Broadcasting, Government of India shall be deemed to be pending before the Authority and shall be disposed of in accordance with the provisions of this Act.

37. Civil Court not to have jurisdiction: No Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which the Authority or the Licensing Authority, as the case may be, is empowered by or under this Act to determine and no injunction shall be granted by any civil court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by and under this Act.

Comment: The implications of this draft bill cannot be discussed without taking into account the draft Content Code which the government has not posted on the Internet.  Both the basis for content regulation and its mechanism are part of a draft prepared by industry members in consultation with others nominated by the ministry. 

Discuss the Bill on the Hoot¿s discussion board.