Free Speech

ON May 29, the information and broadcasting ministry stripped away from India’s public broadcaster, the Prasar Bharati, all pretence to autonomy. It appointed a new director general of news, and instructed her to report directly to the ministry. The DG serves both All India Radio (AIR) and Doordarshan TV.

In 1990 was enacted the Prasar Bharati (Broadcasting Corporation of India) Act, 1990. But the requisite notification for bringing it in to force was issued seven years later on July 22 1997.

It is not overburdened with credibility. To begin with, Section 13 of the act sets up a committee of 22 MPs “to oversee that the corporation discharges its functions in accordance with the provisions of this act and … submit a report thereon to parliament”.

Is there any autonomous corporation in this sensitive realm in any democracy which has MPs breathing down its neck “to oversee” it? The chilling, inhibitive effect of the very existence of such a provision is obvious. Its implementation will have worse consequences.

The Prasar Bharati board consists of a chairman, an executive member, two others to deal with finance and personnel, six part-time members, including DGs of AIR and Doordarshan as ex-officio members and, indefensibly, a nominee of the information and broadcasting ministry, plus two elected nominees of the employees. They are appointed by the president on the recommendation of a panel consisting of the president, the chairman of the Rajya Sabha, and the chairman of the Press Council. The executive member will be the chief executive of the corporation.

The airwaves are public property held in trust.
Shortly before the act came into force, the Supreme Court of India gave a landmark ruling on Feb 9, 1995 which renders the act unconstitutional in two concurring judgements.

One said: “The central government shall 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 airwaves”.

The other amplified: “The broadcasting media should be under the control of the public as distinct from government. This is the command implicit in Article 19(1)(a) [the fundamental right to free speech]. It should be operated by a public statutory corporation or corporations, as the case may be, whose constitution and composition must be such as to ensure its/their impartiality in political, economic and social matters and on all other public issues.

“It/they must be required by law to present news, views and opinions in a balanced way ensuring pluralism and diversity of opinions and views. It/they must provide equal access to all the citizens and groups to avail of the medium.”

Both judgements agreed on the major premises underlying the order. “Since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies.

“...[T]he electronic media is the most powerful media both because of its audio-visual impact and its widest reach covering the section of society where the print media does not reach. The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters.

“That is why the need to have a central agency representative of all sections of society free from control both of the government and the dominant influential sections of society.”

The court also added, “This is particularly so in a country” where the majority of the population is illiterate. “When, therefore, the electronic media is controlled by one central agency or few private agencies of the rich, there is a need to have a central agency ... representing all sections of the society. Hence to have a representative central agency to ensure the viewers’ right to be informed adequately and truthfully is a part of the right of the viewers under Article 19(1)(a).” The citizen’s right to a truly autonomous public broadcaster follows inexorably from his right to free speech.

Thus private TV channels also owe a legal duty to maintain a fair balance. The airwaves are public property held in trust, as the US Supreme Court held in the ‘Red Lion’ case in 1969. “It is the right of viewers and listeners, not the right of the broadcasters which is paramount.” That right is legally enforceable against private broadcasters as much as against the state broadcasting corporation.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, June 13th, 2015

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