Media Regulation is not Censorship

Media regulation has been back on the public agenda for a few weeks, thanks to the widely, roundly and rightly criticised coverage, especially on television, of the apparent death by suicide of actor Sushant Singh Rajput and subsequent developments.

The severe harassment and character assassination to which the late actor’s girlfriend, Rhea Chakraborty, was subjected in the weeks leading up to her questionable arrest on September 8 led to widespread public outrage at the troubling extra-judicial trial by media, as well as calls for “some kind of media regulation.”

A less universally known case involving a Hindi news channel came to a head on September 15 when the Supreme Court of India (SC) temporarily stayed the further broadcast of a programme called Bindaas Bol by Sudarshan News. Touted as an exposé of an alleged conspiracy (“UPSC Jihad”) leading to the “infiltration” of Muslims into the civil services, the ten-part programme was originally scheduled to be aired from August 28 onwards.

Separate petitions filed in the High Court of Delhi (HC) and the apex court, based on a brief but telling video promoting the show, led to different decisions in August. While the HC stayed the telecast, the SC refused to intervene at the pre-broadcast stage but, significantly, did not dismiss the case, choosing instead to keep it pending.

Eventually, the first four episodes were telecast from September 11 onwards with permission from the Ministry of Information and Broadcasting (MIB), based on the understanding that it will not violate any existing codes of conduct applicable to TV programmes and that action under the law would be taken in case of any such violation.

The decision of the SC bench headed by Justice DY Chandrachud on September 15 was obviously based on its view that the “intent, object and purpose of the episodes which have been telecast is to vilify the Muslim community” and that they were therefore violative of several rules in the Programme Code drawn up under the Cable Television Networks (Regulation) Act 1995 – the latest amendment to which was mooted in January 2020.

The hearing continued on September 18, 21 and 23, with more and more individuals and groups intervening in the case.

In a surprise development on Wednesday afternoon, the central government informed the Court that it has issued a four-page show cause notice to Sudarshan News, presenting facts that establish that its programme was not in accordance with the Programme Code and requiring it to provide a written submission on September 28 in this regard. According to the Solicitor General, Tushar Mehta, appearing for the government, if no reply was received by the deadline, an ex parte decision would be taken regarding action against the channel. Having consulted the lawyers involved, the Court decided to adjourn the hearing and resume proceedings on October 5.

It is interesting that the Solicitor General had thus far been batting for freedom of the press and against pre-censorship in this case. Just a few months ago he had represented the government as it (unsuccessfully) sought a direction from the apex court that would have imposed prior censorship on media reports relating to the COVID 19 pandemic.

It is ironic that the counsel for Sudarshan News, Shyam Divan, invoked free speech and investigative journalism while arguing against restrictions on the programme, considering that the channel’s consistent Unique Selling Point (USP) has reportedly been fake news designed to incite communal tensions, if not violence. What’s more, this particular programme has been found to be riddled with false claims.

The insouciance, if not impunity, with which the channel operates is clear from the fact that it aired a discussion on the 15th with participants reportedly criticising the SC’s injunction and repeating the allegations made in the proscribed programme. On the 18th Sudarshan News moved an application seeking live telecast of the Court’s proceedings, ominously stating that “lakhs and crores” of viewers wanted to know who was saying what during the proceedings. On the 21st the channel more or less refused to effect any change in the controversial programme based on the Court’s observations and objections.

Much of the discussion on the case has focused on the complexities of the free speech vs. hate speech issue. Little attention has been paid so far to what the hearings reveal about the apparent ignorance and confusion regarding the equally important matter of media regulation among individuals expected to know better.

On September 15 the Court reportedly called for the setting up of a committee of five citizens who can come up with standards for electronic media. It is surprising that no reference was made by anyone to the Supreme Court’s landmark “airwaves” judgment of 1995, which held that “the airwaves or frequencies are a public property (and that) their use had to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights.”

For 25 years both the government and the broadcast industry have conveniently ignored the Court’s clear instruction to the former “to take immediate steps to establish an independent, autonomous public authority representative of all sections and interests in society to control and regulate the use of the airwaves.” An ad hoc committee of five persons, however eminent, is no substitute for the kind of public authority that exists in all mature democracies across the world but is still missing in India.

The Court also reportedly said it was necessary “to look at the ownership of the visual media.” The draft Broadcasting Services Regulation Bill, 2006, attempted to tackle "concentration of media ownership" (i.e., the worldwide trend of ownership of media increasingly concentrated in a decreasing number of conglomerates, which is widely seen to be inimical to freedom of expression).

The 2006 Bill, which remained a dead letter, was the third in the series of ill-conceived and ill-fated attempts made by the Government of India to regulate the broadcast media (the first two were the Broadcast Bill of 1997 and the Communications Convergence Bill, 2000).

The last such attempt – equally unsuccessful – was the Broadcasting Services Regulation Bill, 2007, which also dealt with ownership, and was accompanied by a Content Code (or Self-Regulation Guidelines). The problem with all these initiatives was that they were clearly intended to institutionalise government control over the media, which is clearly not acceptable. In this context, it is worth recalling the aphorism attributed to writer and philosopher George Santayana: "Those who cannot remember the past are condemned to repeat it."

The controversy over the 2007 Bill led to the two organisations representing television channels at the time (the Indian Broadcasting Foundation and the News Broadcasters Association – the latter established in July 2007) undertaking to draft their own guidelines for self-regulation, about which more later.

Despite the apparent truce between the government and the broadcasting industry in 2007-08, the MIB continued to make decisions and take actions that fit under the media regulation umbrella, such as the establishment in 2008 of the Electronic Media Monitoring Centre (EMMC) meant to monitor the content of all news channels and FM radio stations, and the setting up in 2009 of a Media Consultative Committee, supposedly a forum for regular consultations between the government and professional media bodies.

In the Sudarshan News case the government has repeatedly emphasised, using very strong terms, that the need of the hour is a regulatory mechanism for the “completely uncontrolled” web-based digital media. Whatever happened to the March 2018 announcement by the then Minister for Information & Broadcasting, Smriti Irani, of the ministry’s intention to regulate online media, and the 10-member committee reportedly set up in April 2018 to frame a regulatory framework for online media/news portals including digital broadcasting and entertainment/infotainment sites and news/media aggregators?

It is another matter that a 2018 report on hate speech laws in India, published by the Centre for Communication Governance at the National Law University, Delhi, revealed that online platforms are, in fact, already subjected to heavy regulation – in some ways more than television and print platforms – for both news and non-news content.

Meanwhile, the Sudarshan News case has again highlighted the inadequacies of the existing self-regulatory bodies. The News Broadcasting Standards Authority (NBSA) could not take action on the complaint it received about the Bindaas Bol programme and directed it instead to the MIB because Sudarshan News is not a member of the News Broadcasters Association (NBA).

In its affidavit to the Court, the NBA repeated its long-standing proposal that its code of ethics be given statutory recognition (by making it a part of the Programme Code under the Cable TV Rules) so that it would be binding on all news channels. It also suggested that the NBSA, established in 2008, be recognised as the “independent self-regulatory mechanism” so that complaints against all news broadcasters, whether members of the NBA or not, could be entertained by the Authority and its orders would be binding and enforceable on all news channels.

It is worth noting that at present all four “independent” members of the NBSA are bureaucrats, however distinguished the individuals may be.

In any case, the NBA’s pitch was somewhat queered by the late entry into the case of the News Broadcasters Federation (NBF), which came into being in July 2019 and established its own self-regulatory standards organisation, the News Broadcasters Federation Authority (NBFA), in November.

Former Attorney General Mukul Rohatgi, appearing for the NBF, claimed it was “the largest body of channels” with “the majority of all regional channels from all across India.” He stressed that the “NBA does not really represent the entire spectrum” and the NBF would inform the Court about self-regulation. Sudarshan News is evidently not a member of the NBF either.

In December 2019 the NBF claimed to have “over 78 news channels” as members. The latest available membership count for the NBA is 29 broadcasters representing 71 channels. The most up-to-date official data puts the number of permitted private satellite TV channels in India at 915. If earlier estimates of the percentage of news to non-news channels are correct (approximately 44%), the total number of News & Current Affairs channels is now probably 402, up from 383 in 2018. Do the math, as they say.

Quite apart from the parallel self-regulatory bodies and the mine is bigger than yours competition between them, the fact that the NBF came into being two weeks after Republic TV rejected a summons from the NBSA for having “violated the principles of the Code of Ethics” (not for the first or last time presumably!) points to a fundamental flaw in the present system of self-regulation, which has been evident since its inception.

Republic TV is not the first channel to have walked out of the NBA when it fell afoul of the NBSA – although it is particularly interesting that Arnab Goswami (Managing Director, Editor-in-Chief and co-founder of the channel) was convenor of the committee set up to draft the NBA’s code of ethics in 2008 (when he was Editor-in-Chief at Times Now) and is now President of the NBF’s governing board.

In 2009, India TV (headed then and now by Rajat Sharma, the current President of the NBA) pulled out after a complaint of plagiarism was upheld by the NBSA; this was one of the first cases taken up by the relatively new body, then chaired by Justice JS Verma.

In 2011 TV9 left the NBA after it was reprimanded for a controversial story on “gay culture” in Hyderabad and stayed out of the self-regulation arena until it joined the NBF last year.

Even when members do not stage walkouts, they do not always accept and act upon the NBSA’s decisions. A relatively recent example is that of Zee News, which took its own time to partially comply with the NBSA’s order directing the channel to apologise for a show that had maligned eminent poet and scientist Gauhar Raza – only once they lost their appeal two years after the show was aired. While the offending programme seems to have been eventually removed from Zee’s website and YouTube channel, it is not known whether they ever broadcast the apology and/or paid the fine as directed. Sudhir Chaudhary, Chief Executive Officer - Cluster 1, Zee Media Corporation Ltd., is currently on the NBA’s Board of Directors.

It is worth noting that Chaudhary was CEO of Live India when, in 2007, it telecast a notorious sting operation implicating a school teacher in Delhi in a sex racket, which turned out to be fake. The false report led to mob violence during which the teacher was attacked and vehicles damaged. The teacher was also arrested and dismissed from her job.

After the bogus sting was exposed, she had filed a defamation case against both the channel and Chaudhary, but withdrew the case a year later. Live India, which was evidently operating on a license given to Janmat TV, was banned by the government (prohibited from transmitting or re-transmitting any programming) for a month. In an interview conducted just two years after this debacle Chaudhary was able to hold forth on content regulation, clean and responsible journalism, and Live India as a serious, thought-provoking channel without having to comment on the staged sting that happened on his watch.

The fact that both broadcasters and their various organisations seem to operate on a perpetually revolving stage is another cause for concern. Apart from their associations with the NBA and NBF, Arnab Goswami and Sudhir Chaudhary were among the five original office bearers (Vice President and Treasurer respectively) of the Broadcast Editors’ Association (BEA), set up in 2009 “to strengthen the values of objective and fair broadcast journalism and to protect and promote the freedom of expression.”

In 2017 Goswami was again elected Vice President. Meanwhile, Chaudhary moved from Zee News to Sahara Samay National to India TV to Live India & Mi Marathi before returning to Zee.

Zee News has, of course, been accused of misconduct on a number of occasions over the years, including one that predated “self-regulation”: the infamous mock panchayat conducted in 2004 in what is known as the Gudiya case. Then there was the strange case of the reverse sting by an industrialist that led to the arrest of senior editors of the channel, including Chaudhary, in 2012 and litigation that continued for six years before a truce was called.

In more recent memory, the channel came under fire for its coverage of student protests in Jawaharlal Nehru University (JNU) in 2016 and its role in the lodging of a police complaint against the students. Of course, Goswami’s Times Now was also active in feeding the manufactured outrage over slogans allegedly shouted on the JNU campus.

The inescapable fact is that many news channels, irrespective of membership of associations or federations and their respective self-regulation bodies, have been flouting existing programme codes and guidelines on conduct, and violating established professional standards and ethics, on a daily basis for at least a couple of decades. Their numerous transgressions over the years have well been documented and criticised by both the public and fellow media professionals. But another undeniable fact is that they obviously do not care.

The futility of appealing to TV news channels, especially decision-makers, to change their ways has become clearer than ever in the wake of the Sushant Singh Rajput case. Broadcast journalists with reservations about the shrill, speculative and brutal manner in which the case and its aftermath has been handled by TV newsrooms have found their objections dismissed on the basis of clinching evidence of the sharp increase in TV news viewership even after the COVID-related lockdown, which is attributed to the over-the-top coverage of the SSR case. They have been further silenced by the job and income insecurity that has accompanied the pandemic, with hundreds – if not thousands – of journalists having been laid off by many media houses over the past several months.

Never before has the absence of an independent, autonomous public authority made up of members with expertise in relevant fields, representing different sections of society, who know the difference between the public interest and what may interest the public, been felt so keenly.

At present the important matter of media regulation that respects and protects the fundamental rights to freedom of expression and right to information, recognises established professional standards and ethics, but is also mindful of the need to prevent misconduct by the media that outrages public decency and/or violates citizens’ right to privacy, a fair trial, etc., is stuck between the devil of the government and the deep sea of the industry. Perhaps the silver jubilee of one of the most significant judgments of the Supreme Court on media matters is an appropriate occasion to revive the demand for it to be implemented at least now – better late than never.