Regulatory anarchy

BY Padmaja Shaw| IN Law and Policy | 23/09/2014
The question to ask is, would we want the CM to ban and unban channels at will? By which constitutional or legal authority is the CM of a state being bestowed such powers,
wonders PADMAJA SHAW. PIX: Appeal to unban TV9 and ABN Andhra Jyothi

The chief minister of Telangana state, K Chandrasekhar Rao, aka KCR, has threatened to bury anti-Telangana media 10 kilometres deep if they do not get their act together. This was at a public meeting to celebrate the birth centenary of a rebel poet of Telangana, Kaloji Narayana Rao, who expressed similar sentiments using similar metaphors with poetic license for those who betray the interests of Telangana people. KCR went on to endorse the boycott of TV9 and ABN Andhra Jyothi channels by the MSOs/LCOs in Telangana.

Predictably all hell broke loose on national and regional media protesting the ‘Hitlerian’ tendencies of KCR, accompanied by demands for the restoration of transmissions of the two ‘banned’ channels in Telangana. On September, a large public meeting was held in Sundarayya Vignana Kendram where the cream of the civil society organisations and politics in Hyderabad expressed their deep concern at the erosion of democratic rights in the new state of Telangana. TV9 carried the programme live.

The burden of argument of many of the speakers was that the chief minister was behind the ban on the two channels and that he is responsible to restore the transmission of the channels. This line of argument in itself is dangerous. Speaker after speaker was giving the right of restoration of the channels to the chief minister on a platter. The question to ask is, would we want the CM to ban and unban channels at will? By which constitutional or legal authority is the CM of a state being bestowed such powers? Will it be something to celebrate if after receiving a letter from the CM’s office, the MSOs restore the channels? What other mechanisms can there be that do not empower satraps to browbeat the media?

Both the state and the civil society will do well to recognise the crux of the problem – that there is no grievance redress mechanism in the current broadcasting scene in India. It is the clout of the corporations, the juggernaut of the unscrupulous media, or the disgraceful excesses of election time speeches from the most senior politicians of the country (KCR’s statement came a day before the Medak by-poll was held. The media houses also ratcheted up the issue before the polls) that has time and again compelled us to wonder about the meaning of right to free speech as a constitutionally guaranteed fundamental right. Whose right? Whose speech?

Will the problem go away if the two channels are restored? MSOs have been exercising the power to show or not show some channels often in different contexts. Sometimes it is the carriage fee. Sometimes it is the rivalry between the political bosses who own MSOs/LCOs. In Andhra Pradesh, no Telangana channel is shown under the pretext that the viewing public is not interested. Shouldn’t the Andhra Pradesh chief minister protect the right of free speech in Andhra Pradesh by intervening there on behalf of Telangana channels?

The last mile monopoly of LCOs that existed since the beginning of the cable industry in India was never a matter of debate as a free speech issue, despite the consumer disputes and controversies that arose routinely during cricket matches. The industry and others chose to see it indulgently as a phenomenon of market forces at work. The issue of carriage fee is also not seen as an issue of free speech. Those who can afford will pay in the market place. The fact that these factors killed channels producing responsible programming also was not a free speech issue. The business arrangement clearly privileged those who can pay over those who are able to generate more diverse programming. Access to the consumer was mediated through the bottleneck of the local pipeline. Even DTH operators like Tatasky are not transmitting Saptagiri channel of Doordarshan since a long time now.  

The MSOs and LCOs are themselves entrenched in politics and one need not be surprised if they administer the same medicine now applauded by KCR to KCR himself one of these days. This is clearly regulatory anarchy that has long-term significance unless acted on swiftly. Not by the chief minister’s office of a state but by the Union Information and Broadcasting Ministry. Shouldn’t there be a set of basic guidelines for the way MSOs and LCOs do their business? Who should be the independent authority that oversees this industry?

In an earlier piece on the subject Madabhushi Sridhar explains: “The Constitution of India does not permit prior restraints on the media. Even the judiciary did not allow a prolonged ban or prohibition of the voices however unethical, hostile, defamatory or contemptuous they could be.” Both the rights and the laws are in the books but are they rights and laws in action? Most media observers would agree that the media has made it its business to censor views that they do not agree with. In a discussion on one of the Maoist incidents or perhaps during one of the Nirbhaya case debates, the anchor of an English channel was heard loudly declaring, “Today, I will not allow any one who is opposed to the death penalty on my show!” He is also a champion of free speech. His.

The state of free speech is the way it is because there is no regulator for content or supervision of transmission practices. The feeble fig-leaf of self-regulation that the media houses attempted seems dead on arrival. Just a handful of the 400-odd news channels are members of the regulatory body, NBA. Those who are pulled up can throw a tantrum and leave in defiance.

Or, the member channels just ignore the directives. In an NBSA order dated 25.10.2012, the Times Now channel was asked to disclose full information about the panellists invited to Newshour discussions. This was in response to a complaint regarding the participation of Mr Maroof Raza in debates on military affairs. The NBSA was of the view: “In the present case, considering the fact that Mr. Maroof Raza was expressing his opinion as an expert on military affairs in relation to the Tatra truck deal conducted by the Indian Army and on related issues, it was necessary for Times Now to have disclosed that (emphasis added) Mr. Maroof Raza was also engaged in the business of consulting for and representing manufacturers, suppliers and dealers of military hardware and equipment under the name and style of M/s Maroof Raza & Associates, since by virtue of such business, Mr Raza’s views on the Tatra trucks deal could have been coloured by his business interests or those of his clients or potential clients. It is high time the central government came up with a credible regulatory framework.”

Mr Raza continues to be a regular participant in similar programmes. The channel, a member of NBA, has not made any effort to disclose his credentials to the public.

Major channels are known to lean on media watch websites to remove criticism that they find unacceptable. No need for free speech there.

Nevertheless, since the industry is keen on self-regulation, perhaps, the I&B Ministry should recognise the NBSA as a national regulator headed by a retired Supreme Court judge, provided all licensed channels are mandatorily paid members of it and the orders passed by the body have the same sanctity as those passed by a court of law. The penalties imposed by the body must be given wide publicity by all the broadcast channels of the language group through a must carry provision (mandatory scrolls on prime-time transmission), and not just by the offending channel. Repeated violations also must invite more serious repercussions for the channels.

In the absence of a framework, the channels with clout like TV9 and ABN Andhra Jyothi will mobilise the kind of public opinion that they have been doing all over India. But smaller players, including public broadcasters stand no chance in this jungle raj. Even if a public khap of channels, MSOs and the politicians arrives at a negotiated settlement, the overall scene will remain the same till some other issue arises. A regulator is necessary to take an impartial look at the conduct of the industry players.

During the public meeting held on September 22, the channel was asserting that they have apologised and were still being victimised. It is true that TV9 apologised. But does that mean they will refrain from making similar abusive programming? Without a regulator, that is an option still open to the channel.

It was interesting to see the 2pm bulletin on TV9 showing the live coverage from Sundarayya Vignana Kendram. The last two speakers were Prof Lakshman from Osmania University followed by Ramana, representing Telangana journalists. Ramana was given two minutes to speak by the organizers. Even as he was beginning to present his views on the subject, the channel cut him mid-sentence to break into a Hero Honda bikes commercial. The bulletin was resumed soon after, by then Ramana’s presentation was over.

I agree. We must defend free speech. Everybody’s.

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The new term for self censorship is voluntary censorship, as proposed by companies like Netflix and Hotstar. ET reports that streaming video service Amazon Prime is opposing a move by its peers to adopt a voluntary censorship code in anticipation of the Indian government coming up with its own rules. Amazon is resisting because it fears that it may alienate paying subscribers.                   

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