It’s nearly Christmas, and as ‘headlines of the year’ are feted, the Internet Freedom Foundation description of the Modi government’s latest censorship drive – ‘Broadcast Services Bill Not Looking Like a Wow’ must stand on the podium.
As a charter for censorship, the Broadcasting Services (Regulation) Bill, 2023 (Broadcast Bill) drafted by the Ministry of Information and Broadcasting (MIB) is a remarkable instrument. Released for public comment on November 11, this is an omnibus set of rules aimed at shutting down any news or views even mildly not in the service of those who happen to be in government. Comments can be given until January 15 (the deadline was initially December 8 and was later extended).
If enacted, it is hard to see how any future government would want to get rid of it.
That it runs to 72 pages, compared to the nine pages that the Cable Television Networks (Regulation) Act, 1995 it purportedly is intended to replace, is also a statement.
Who is sought to be controlled through this? Unlike the Cable TV Act, which only covered broadcasts uplinked or downlinked via satellite, the Broadcast Bill includes broadcasting via the Internet. This means any content published via YouTube or any website will automatically be covered. Thus, all Over-the-Top (OTT) content and digital news providers are to be brought under government oversight. But who else exactly is still not very clear, and not because unsmart people have drawn this up. Quite the contrary. The idea is to give enough room in the clauses to hustle every kind of animal into the tent. OTT, those doing video online, those reposting it, forwarding content are covered, if you read this definition of the “programme” under review – in definitions, 1 (dd) on page 6 of the draft – “Programme” means any audio, visual or audio-visual content, sign, signals, writing, images which is transmitted using a broadcasting network, and includes
(i) Exhibition of films, features, dramas, documentaries, advertisements and serials;
(ii) Any audio or visual or audio-visual live performance or presentation and the expression ‘programming service’ shall be construed accordingly.
So, are digital websites included in the phrase, “writing”? They may not, but they could be! The writing is suitably vague to not be restricted to a reference to just captions or astons on audio-visual, but “writing” – such as what you are reading now.
The least wow
The most egregious over-reach in the draft is the clubbing of news (independent news websites, individuals now established as popular points for news and views, explainer videos, other audio-visual material available online) with OTT content, shows, serials, documentaries and other features traditionally subject to a certification norm. By introducing this as a “combo-pack” as Jawhar Sircar, an ex-CEO of Prasar Bharti put it, news for the first time is being put into a Central Board of Film Certification or CBFC inspired regime reserved for cinema. These are the first steps to establish a blueprint for pre-censorship.
All data points to India’s 692 million mobile users increasingly using their phones to “watch online videos”, news, movies, other things – that is, pull content and not push, like TV or the screening of cinema in public spaces. So where is the case for uber-regulation of this medium? Lawyer Nikhil Pahwa cited the case made by Mukul Rohtagi as attorney general, for the government not wanting to regulate porn, as it is viewed in one’s private space, “We cannot become a totalitarian state,” he told the court in 2015. So where is the case to pre-censor news on digital?
As the Internet Freedom Foundation’s brief points out, even when it comes to the CBFC regime, or pre-viewing certification regime, or the one observed by cinema and other public audio-visual material goes, this government’s own Shyam Benegal committee from 2016 had suggested a revamp and explicitly said a “moral” approach to censoring content must be avoided, so there is a backslide on that. Not only are the Benegal committee ideas being junked, news is being pushed down the same dark road.
A blueprint for pre-censorship and censorship
The phrase pre-censorship is not used lightly, as the ‘three-tier’ system – the so-called regulation being proposed – ensures there is “central government” presence at all tiers of the structure. The government comes in again in the end, deciding on whether content needs to be taken down, news persons fined, imprisoned or if devices can be confiscated.
The three tiers proposed are:
- Self-regulation by broadcasters and broadcasting network operators
- Self-regulatory organisations (SROs)
- Broadcast Advisory Council (BAC)
The ‘self-regulation’ mandates each broadcaster/operator to set up a grievance redressal cell. In addition to that, each broadcaster must have a Content Evaluation Committee (CEC), which will have to certify all material going out. The composition of this committee, its size, quorum and other details, will all be decided by the government. Editorial boards are passe, clearly, as a ‘committee’ would now be required to pre-certify, for example, whether a Ravish Kumar can do a show on the BCCI on Friday afternoon.
As all broadcasters/operators are expected to join “SROs”, Clause 26 stipulates that these “SROs” will address all grievances, appeals, other things not addressed by the individual broadcasters and issue guidelines, to ensure compliance to the “codes” decided by the government (a programme code and an advertising code, not yet made public). Punishment can mean temporary suspension, expulsion from membership, advisory, warning, censure, and/or fine up to Rs 5 lakh.
Clause 27 tells us how the Broadcast Advisory Council (BAC) will be set up and function.
An independent member with 25 years of experience in the media industry will function as the chairperson. There would be in addition, five ex officio government officers representing the MIB, Ministry of Women and Child Development, Ministry of Home Affairs, Ministry of External Affairs, and Ministry of Social Justice and Empowerment. The clause also says there would be five additional “eminent independent persons”, all central government appointees. “The terms and conditions related to the appointment of members to the Broadcast Advisory Council, the manner of their selection, tenure and the manner of performance of their functions shall be such as may be prescribed.”
The BAC shall “hear complaints regarding violation or contravention of the Programme Code or Advertisement Code”, and also hear appeals on decisions of “SROs”. The BAC will then give its recommendations to – who else – the “central government”, which will be able to inspect, intercept, monitor, and seize the equipment of broadcasting networks and services.
What’s wrong with this? First, this controversial three-tier structure is all “central government”, of dubious constitutionality, and is not based upon wide and deep public consultation.
Second, it mimics what the controversial IT Rules, 2021 prescribe. These have been challenged in court, including this ‘three-tier’ mechanism, and have been stayed by at least two high courts, Bombay and Madras.
Not being left to your own ‘devices’
Something of deep concern has been the casual snatching/confiscation of devices of journalists, researchers and others during the course of coercive police action. Hash values are often not given, police don’t do this supported by court orders or even warrants. This is an extraordinary attack on the ability of a free press to function and has been done with increasing impunity over some years now. The normalisation of the practice, and for hundreds of journalists, makes stories of the Indira Gandhi government in 1975 stopping water and cutting electricity to newspapers seem like a dress rehearsal.
The courts have only just woken up to the far-reaching implications of this impunity, and on November 9, 2023, the Supreme Court directed that guidelines suggested by five academics as part of a petition filed in 2021, be circulated to the Union government and the states. On November 7, while hearing a petition by the Foundation for Media Professionals, the Supreme Court asked the Union to frame guidelines on this point, and remarked that uncontrolled power to access the devices of journalists was unacceptable.
(Five renowned academics, Ram Ramaswamy, Madhava Prasad, Sujata Patel, Deepak Malghan and Mukul Kesavan petitioned the Supreme Court in 2021 to regulate the search of electronic devices by agents of the state, usually the police. In the course of hearings, these petitioners have suggested a set of guidelines to be issued as directions by the court.)
Almost as a way to again normalise the snatching of devices and tools of a researcher and journalist, Clauses 31 onwards till 35, discuss in detail how “equipment” of said broadcasters/operators are to be treated. Clause 36(2) is the king of all clauses in this category, as it involves provision for blanket censorship. The Union government gives itself – if it deems it necessary or expedient to do so in public interest – the power to prohibit the operation of any broadcasting services or broadcasting network operators in the areas notified.
When it comes to ‘minimum government, maximum governance’, the case is always made for regulating everything. So, of course, the press must be regulated.
But regulation is regulation, not control. To term control by the Union government as ‘regulation’ is the biggest typo you will be seeing this year. The Bill has 60 places where the words “as may be prescribed” features and 17 times when “as notified by the Central Government” finds a place. All agency for rule making, which will further restrict a free press, remains with the “central government.”
The draft bill excludes traditional newspaper ‘replicas’ online and ‘legacy’ media is out of its remit. This may have been done to reduce the noise that could be made over this. The resistance from ‘big tech’ will not be big at all. The Washington Post has reported on the “69A meetings”, when Twitter authorities were called in to ‘adhere’ to the draconian 69A of the IT Act and pull down views and news not palatable to the central government. As per the report, an effective carrot and stick policy is in place, which ‘big tech’ is happy to play along with, as long as the cash tills keep ringing.
PM Modi on September 27 said, “subscribe to my channel and hit the Bell Icon to receive all my updates.” This was no casual comment. Digital is vital in the run-up to the 2024 elections and the build up has been clear for some time now. The union government’s spend on digital advertising has rapidly outstripped that on print. As The Morning Context reported, “the annual reports of the Digital Corporation of India, a not-for-profit set up under the Ministry of Electronics and Information Technology, show that in 2016-17, the Modi government’s grant to MyGov was Rs 18.8 crore. In 2017-18, this shot up to Rs 58.2 crore, followed by Rs 58.5 crore in 2018-19 and Rs 84.88 crore in 2019-20.”
This draft bill is a clear reflection of the government’s panic over diversity online. If newspapers and TV channels are controlled by restricting ads or giving the proprietor a phone call, the Broadcast Bill is an attempt to formalise the threat of punitive government action and also extend its reach to digital media.
If 2019 was described by some as “India’s first Whatsapp election”, then this one appears to be heading towards being India’s first one on YouTube. Digital is clearly the big cheese and how to make India’s digital environment as monochrome as the one on television (or print) appears to be the problem this bill has set out to crack.