Broadcasting Bill: Effort to modernize regulation, but requires more transparent approach

Introduction

The Broadcasting Services (Regulation) Bill, 2024 ("Bill") is a comprehensive legislative attempt by the Legislature to regulate the dynamic and rapidly evolving broadcasting sector. The Bill extends its regulatory ambit to encompass traditional broadcast media, Over-The-Top (OTT) platforms, and digital news broadcasters. This article seeks to critically examine the Bill, its objectives, grievance mechanisms, the manner of its introduction, and its practical implications.

Stated Purpose of the Bill

The Bill's Statement of Objects and Reasons is stated as “bringing uniformity in regulating content across various platforms and addressing technological advancements to adapt regulatory frameworks to contemporary technological advancements”. Another stated objective of the Bill is to ensure that content across all platforms, including digital news broadcasters and social media influencers, adhere to centrally prescribed standards and codes. These objectives aim to create a cohesive and modern regulatory environment for the broadcasting sector, ensuring that all forms of media, are held to consistent standards.

Unbridled Power

The Bill provides that any programme transmitted as a broadcasting service must conform to the “programme code”. However, the power to prescribe ‘programme code’ vests exclusively with the central government. Thus, the code may vary for each type of broadcasting service as the Bill fails to provide any guidelines with respect to the formulation of the programme code. This may lead to several legal backlashes. With the programme code not defined and there being no guiding principles to determine such code, there will always exist ambiguities as to what might result into contravention of such a code. Moreover, any contravention of the programme code may lead to measures such as deletion of or modification of the programme; compliance with an advisory, censure or warning; taking the channel off-air for a certain period of time; and imposition of monetary penalty, among others. Since, the Bill fails to provide any principles for defining the programme code, it grants unbridled powers to the executive and thus defeats the constitutional values.

The Hon’ble Supreme Court of India has already settled the law regarding this in Satwant Singh Sawhney v. D. Ramarathnam, 1967 SCC OnLine SC 21 : (1967) 3 SCR 525 : AIR 1967 SC 1836, wherein it held as follows:

32. The next question is whether the act of the respondents in refusing to issue the passport infringes the petitioner's fundamental right under Article 14 of the Constitution. Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This doctrine of equality before the law is a necessary corollary to the high concept of the rule of law accepted by our Constitution. One of the aspects of rule of law is that every executive action, if it is to operate to the prejudice of any person, must be supported by some legislative authority : see State of Madhya Pradesh v. Thakur Bharat Singh [ Civil Appeal No. 1066 of 1965 (decided on 23-1-1967)] . Secondly, such a law would be void, if it discriminates or enables an authority to discriminate between persons without just classification. What a legislature could not do, the executive could not obviously do. But in the present case the executive claims a right to issue a passport at its discretion; that is to say, it can at its discretion prevent a person from leaving India on foreign travel. Whether the right to travel is part of personal liberty or not within the meaning of Article 21 of the Constitution, such an arbitrary prevention of a person from travelling abroad will certainly affect him prejudicially. A person may like to go abroad for many reasons. He may like to see the world, to study abroad, to undergo medical treatment that is not available in our country, to collaborate in scientific research, to develop his mental horizon in different fields and such others. An executive arbitrariness can prevent one from doing so and permit another to travel merely for pleasure. While in the case of enacted law one knows where he stands, in the case of unchannelled arbitrary discretion, discrimination is writ large on the face of it. Such a discretion patently violates the doctrine of equality, for the difference in the treatment of persons rests solely on the arbitrary selection of the executive. The argument that the said discretionary power of the State is a political or a diplomatic one does not make it anytheless an executive power. We, therefore, hold that the order refusing to issue the passport to the petitioner offends Article 14 of the Constitution.

The draft Bill appears to violate the aforesaid principle as it supposes to grant unbridled power to the central government to prescribe the programme code without setting the governing principles.

Four-Tier Grievance Mechanism – Eyewash?

The Bill introduces a four-tier grievance redressal mechanism designed to ensure compliance and address content-related complaints. It is first necessary to understand the mechanism:

1. Self-Regulation by Broadcasters: Individual broadcasters are expected to self-regulate their content according to the prescribed codes.
2. Self-Regulatory Organizations (SROs): Groups of broadcasters can form SROs to oversee content regulation among their members.
3. Broadcast Advisory Council (BAC): A government-appointed body that addresses complaints not resolved by SROs, with the power to impose penalties and recommend further action.
4. Review Panel: Appeal against the decisions of the BAC can be filed before the Review Panel, who shall have the final authority to decide the matter.

Absence of a Quasi Judicial Body:

As effective and exhaustive as it may seem, the four-tier system is anything but confidence inspiring. The four-tier system adds layers of bureaucracy that could delay the resolution of grievances. The involvement of multiple bodies at different levels can lead to inefficiencies and inconsistent decision-making. Moreover, the BAC's composition, which includes government-appointed members, raises concerns about impartiality and potential government influence over content regulation. This could undermine the objectivity needed in addressing grievances related to freedom of expression and media content. Furthermore, the reliance on self-regulation and SROs presupposes that broadcasters will diligently adhere to standards without bias or conflict of interest. This assumption may not hold true, particularly in a competitive and politically charged media landscape.

When the Cinematograph Act, 1952 originally gave power to the central government powers to decide on appeals involving certifications, the Supreme Court expressed it views and held that in such matters, a quasi-judicial body will inspire more confidence than a government secretary. Following this, the Act was amended in 1981 to provide for a dedicated appellate tribunal, which later changed to High Court in 2021.

The Bill fails to provide any dedicated appellate body. The appeals from SROs will be heard by the BAC who shall be entitled to make ‘recommendations’ to the central government. Since, the Bill fails to specify whether the ‘recommendations’ will be binding or not, it seems to grant the final decision-making power to the central government, with no means of appeal against any decision of the central government.  The central government has almost unlimited powers to delete or modify the programme or advertisement, and/or direct the channel to be off-air for a specified number of hours or days, with no recourse to the service provider.

Control and Regulation over influencers

The Bill seeks to regulate and control influencers working across various platforms. Such an attempt to control and regulate influencers is a clear overreach that threatens the core principles of free speech and hampers digital innovation. Influencers thrive on the ability to produce and share content without the heavy-handed constraints typical of traditional media. Imposing stringent regulations on these digital voices stifles creativity and restricts the diverse viewpoints that flourish online. Moreover, the Bill's broad and vague definitions could lead to arbitrary enforcement, disproportionately affecting small creators who lack the resources to navigate complex regulatory frameworks. This not only hampers the growth of digital entrepreneurship but also undermines the democratic nature of the internet, where diverse voices should be celebrated, not censored. In an era where digital platforms are integral to public discourse, such regulatory measures are both regressive and detrimental to the free exchange of ideas.

Secretive Distribution of the Bill

The Bill's introduction was marred by a lack of transparency. Copies of the Bill were distributed to select stakeholders, excluding many key players and public interest groups. This secretive approach has several implications including the exclusion of broader stakeholder participation erodes trust in the legislative process. Transparency is crucial in democratic law-making, especially for legislation that impacts fundamental rights like freedom of expression. Moreover, restricting access to the Bill prevented a comprehensive review and critique from diverse perspectives. This can lead to an incomplete understanding of its potential impacts and the omission of valuable insights that could improve the Bill.

Conclusion

The Broadcasting Services (Regulation) Bill, 2024, represents a significant legislative effort to modernize the regulation of India's broadcasting sector. However, its ambitious objectives are undermined by potential challenge to its constitutional maintainability, practical implementation challenges, a convoluted grievance mechanism, and a lack of transparency in its introduction et al. To truly achieve its goals, the Bill requires a more inclusive and transparent approach, greater clarity in its regulatory framework, and mechanisms that balance regulation with the protection of media freedom.