Insight

over the airwaves.1 Apart from this rather laudable object, another of the stated Broadcast Regulation and purposes of the bill was to give legislative backing to the numerous regulatory orders pertaining to satellite broadcasting, issued Public Right to Know since the mid-1990s. A first evaluation of the BSRB reveals The question of how satellite television is to be regulated has been that it does not spend much time or effort differently interpreted in India. The orthodox viewpoint of airwaves on the issue of agency. Like many other “belonging” to the public is one that is difficult to enunciate legislative initiatives, the BSRB displays the conceit of governments that believe especially with regard to the principles of instrumentality and they can appropriate the mantle of speak- agency. While constitutional provisions ensuring “freedom of ing on behalf of the public. And where expression” remain open-ended on the matter of regulation, the instrumentality is concerned, the BSRB debate itself has juxtaposed the interests of the television networks displays very little creativity, falling back vis-à-vis the ministry of information and broadcasting, while the instead on the discredited old device of reserving for the government the arbitrary public, in whose ostensible interests the debate is being waged, – and in the final instance, overbearing – remains entirely in the dark. powers of police enforcement inherited from colonial law. Judging from its fleet- SUKUMAR MURALIDHARAN since every effort at regulation, in part ing appearance in the public discourse, the because of the ill-remembered days of BSRB could well be another legislative atellite broadcasting is a visible the controlled economy, has swiftly come effort defeated by a deficit of the policy presence in everyday life and one of undone. In the circumstances, the broad- imagination, not to mention the assiduous Sthe faster growing sectors of the last cast industry, dominated by giant media efforts of powerful lobbies. decade or more. But in India it has largely houses, has managed to colonise the As if to reaffirm that the power to mould functioned within a legislative and regu- electromagnetic spectrum for private public opinion suffers from a serious latory vacuum. This is a reality that lends benefit, flouting an explicit judicial find- skew, the media industry was permitted itself to different interpretations. Cham- ing that the airwaves are the property of by circumstances, to have its say on the pions of the free market would see the the public. BSRB well before the public was brought electronic media in India as testimony to Since the Supreme Court’s judgment of into the discussion. Public perceptions the entrepreneurial dynamism that has been 1995 in the case of the Cricket Association of a major legislative initiative, in short, unleashed since liberalisation became the of Bengal versus the Ministry of Informa- were moulded by the industry that has reigning ethos of economic policy. In this tion and Broadcasting, it has become part the greatest stake in diluting the scope perception, the revolution in media mat- of the orthodoxy on media regulation that of the law and preserving the largest ters has not come a moment too soon, since the airwaves belong to the public. It is a area of autonomy for itself. This is a creativity has remained suppressed far too principle that lends itself to easy and often situation abounding in curiosities, long under the meddlesome regulatory rather passionate enunciation. Unfortu- though there is little novelty in the media zeal of the government. Even if govern- nately, very little of the same passion, not being, uniquely among business sectors, ments were to rouse themselves out of the to mention clarity, has been evident in the arbiter of public opinion in matters inertia of incomprehension and seek to negotiating two basic issues involved in involving itself. legislate for the broadcast sector, they are translating this principle into practice: unlikely to get very far, since the inherent instrumentality and agency. What pos- Media Groups dynamism of the sector would elude all sible agency could operationalise the efforts at regulation. constitutional principle that the airwaves Towards the end of July 2006, Delhi’s Unsurprisingly, this version of events belong to the public? And what instru- leading newspaper, which has recently has held the field with little challenge, mentality could this agency, when it is acquired a presence in Mumbai, carried since the media, uniquely among indus- appropriately empowered, deploy in pur- a sequence of three articles warning that tries, is in a position to mould public suit of its mission? the proposed broadcast legislation was a perceptions about itself. In brief and spo- Early in August 2006, the ministry of significant threat to all the free speech radic intervals, though, an alternative information and broadcasting (MIB) guarantees of the Indian Constitution. All perspective is heard, which purports to posted on its official website, the draft of three articles were published under the speak on behalf of an ill-defined “public a law, titled the Broadcast Services Regu- caption, ‘Media Muzzled’ and their basic interest”. The broadcast industry has lation Bill (BSRB), which sought, among purport was that the BSRB embodied a in this account remained for too long other things, to provide legal backing familiar pattern of official paranoia and free of constructive legislative inputs, for the principle of the public ownership unreason. “Every few years”, began the

Economic and Political Weekly March 3, 2007 743 first of the articles, “a nervous government opinion. There is one perception that tends Those that did were obliged to bring decides that the media has gone over- to view the rights of the media as a category down their daily offering to that number. board and must be subject to regulation. apart, deserving protection in themselves. They would not be permitted to reduce Democracy and free speech do not mean Then there is another, that views the media circulation to maintain or increase the spreading canard about public authority, as an institution embodying the broader number of pages. To provide a full day’s endangering national security and al- civil rights of the citizens of India. complement of news, publishers could lowing for obscenity, runs the argument rationalise their allocation of space between (sic)”. With the draft of the BSRB having Debating Media Rights editorial and advertisement material. Or leaked out, the article continued, they could maintain profitability by considerable “disquiet” had arisen over It is a well-established principle in curtailing news coverage to accommodate what looked like “another attempt ... to Indian jurisprudence that the media enjoys advertisements.8 muzzle the media”.2 rights coterminous with the public. This All this would seem a thoroughly un- Inevitably and it must be said, rather is quite unlike the situation in the US, warranted intrusion into the micro- self-servingly, the media chose to high- where the First Amendment to the Con- management of a newspaper. Expectedly, light those provisions of the BSRB that stitution – whether by oversight or intent the entire scheme was held to be in violation endowed the government and its official – ensured that the “press” enjoys rights that of the Constitution by the Supreme machinery with punitive powers. There go beyond the public right to free speech.5 Court. The majority opinion in the case, was moreover a consistent attempt to play In contrast, the Indian Constitution confers authored by justice A N Ray, held that up the circumstances under which the media on the media no more and no less, than the “individual rights of freedom of speech would become the target of vindictive the rights due to it as an institution that and expression of editors, directors and official action. The country’s largest benefits from the public right to free shareholders, are all expressed through English newspaper, for instance, observed speech and expression, as enshrined in their newspapers”. But if this seemed too in its report, that the BSRB “expanded on Article 19(1)(a). narrow a construction of a fundamental the already existing draconian provisions Media freedom is derived from the right right, the Court, a few paragraphs on, present in the Cable Network Regulations to free expression, which in turn is related applied the necessary remedies, though Act and the direct-to-home (broadcasting) to the public right to information. Media without explaining the logic through which guidelines”. The news report then went freedom and the public right to free speech, the rights of “editors, directors and share- on to describe, with little attention to nuance are coextensive in Indian jurisprudence. holders” mutated into a right enjoyed by or detail, the powers of search and seizure Commercial media institutions and the all citizens. “It is indisputable” said the that the BSRB proposed to invest the private individual derive identical rights Court, “that by freedom of the press is meant government with, before concluding from a single article of the Indian Consti- the right of all citizens to speak, publish with an account of the penalties that the tution. But since the right to information and express their views. The freedom of media would attract if it incurred official is a counterpart right to free speech, the the press embodies the right of the people displeasure.3 media’s freedom is in part the fulfilment to read. The freedom of the press is not A recent debutant among Mumbai news- of the public right to information. From antithetical to the right of the people to papers, that seemingly represents the new here, it would be a short transition to a legal speak and express”.9 era of cross-linked media partnerships, had doctrine that media freedom is justified – This judicial formulation presented in an meanwhile, had its say on the matter. Under in whole or in part – by the public function incipient form, a potential area of conflict a vivid and exhortatory headline, the it performs, of informing citizens and the in the relationship between the media and newspaper – in which both India’s largest wider community about the various facets the public. In one formulation, the public satellite broadcaster and the company that of their lives and the times they live in. is given the “right to read” all that it is owns the country’s largest circulated news- This is the constitutional position as ad- provided by the “editors, directors and paper have equity investments – urged that vanced in significant judgments involving shareholders” of the press. In another, the the BSRB be “killed”. Effortlessly the media, such as Sakal Newspapers versus public is accorded the right to “speak and conflating the rights of the media into the Union of India6 and Bennett Coleman express”. In its elision of the reasoning by those enjoyed by the public under the and Company Ltd versus the Union of which one species of rights is transformed Constitution, the newspaper asked: “What India.7 into another, the Supreme Court majority is it with our officialdom that when it The latter judgment is especially in the Bennett Coleman judgment lost an comes to fundamentals of democracy they significant for the insights it affords into opportunity to provide some measure of can’t seem to get it after five decades of the media as an institutional beneficiary clarity on this issue. experience? Their latest attempt at bully- of the public right to free speech. At issue To some degree, that absence in judicial ing the citizen is a bill that the information in the Bennett Coleman case was a reasoning was remedied in the significant & broadcasting ministry (sic) has drafted, government directive limiting the alloca- dissent entered by justice K K Mathew in ostensibly to restrain media monopolies tion of newsprint to publishers in accor- the Bennett Coleman case. Alone on the but in fact to subvert freedom of the press, dance with their reported consumption of bench of five judges that heard the case, and therefore of the right to free expression the commodity. In a context of acute the judge spoke of press freedom in terms as guaranteed by our fine Constitution shortage, it seemed that the only means of the preservation of social diversity drawn up in 1950”.4 available to keep the newspaper industry and choice. The Court had before it the Sifting through this relentless campaign functioning was to ration the allotment of challenge of ensuring that the appropriate against the BSRB, it would be possible to newsprint. This made it imperative that conditions existed for bringing “all discern two quite distinct currents of newspapers publish no more than 10 pages. ideas into the market (to) make the

744 Economic and Political Weekly March 3, 2007 freedom of speech a live one having its case has been very clear: the government With these being the central principles, roots in reality”. In pursuit of this ideal, may have a custodian’s responsibility, but the Supreme Court directed – in justice it was necessary as a first step, to recognise no inherent right to monopolise the air- Sawant’s words – that “the central govern- that “the right of expression” would be waves, since the spectrum belongs to the ment shall take immediate steps to establish “somewhat thin if it can be exercised only people. As justice P B Sawant put it, in one an independent autonomous public on the sufferance of the managers of the of two concurring judgments in the case: authority representative of all sections and leading newspapers”. “the airwaves or frequencies are a public interests in the society to control and Freedom of expression, in other words, property. Their use has to be controlled regulate the use of the airwaves”.16 Justice also involved the right of access to media and regulated by a public authority in the Reddy laid down the principles on which space. And this requirement would be met interests of the public and to prevent the this body should function: “it is the duty only through the “creation of new oppor- invasion of their rights”.11 In other words, of the State to see that airwaves are so tunities for expression or greater oppor- the uppermost concern in the deployment utilised as to advance the free speech tunities (being provided) to small and of the airwaves would be the preservation right of the citizens which is served by medium dailies to reach a position of of the people’s right to free speech and its ensuring plurality and diversity of views, equality with the big ones”. This was as correlate: the right to information. In justice opinions and ideas. …The free speech right important, said justice Mathew, “as the Sawant’s words: “the right to freedom of guaranteed to every citizen of this country right to express ideas without fear of speech and expression also includes the does not encompass the right to use governmental restraint”.10 right to educate, to inform and to entertain these airwaves at his choosing. Conceding and also the right to be educated, informed such a right would be detrimental to the Free Speech and the Right and entertained”. The challenge of regu- free speech rights of the body of citizens of Access lation is to harmonise the two, one of inasmuch as only the privileged few – which is the “right of the telecaster” and powerful economic, commercial and “Access” was one of the crucial questions the other, “that of the viewers”.12 political interests – would come to raised in justice K K Mathew’s dissent: In turn, this requires a regulatory res- dominate the media.”17 access both of the public to the media ponse that departs from an absolutist notion Before turning again to the BSRB to environment and of the media organisation of media freedom. “Broadcasting freedom”, examine how well it fulfils the specifica- to the essential resources of its trade. in the words of justice B P Jeevan Reddy tions laid down by the country’s highest Though the latter was the key issue before – author of the other opinion in the air- judicial body, it may be useful to consider the bench, the dissenting judgment tied it waves case – “involves and includes the two concrete policy-decisions taken by the into the larger question of the public func- right of the viewers and listeners who government in 2006. These could be tested tion of a newspaper and its socially enjoined retain their interest in free speech”. With for their conformity with the constitutional duty to reflect the diversity of its milieu. public interest being dominant rather than principles laid down in the airwaves Though these criteria are not quite so private profit, justice Reddy observed, judgment. easily transported to the broadcast domain, “European courts have taken the view that the underlying principles have a certain restraints on freedom of broadcasters are Record in Community Radio universality. Newsprint in the 1970s was justifiable on the very ground of free regarded as a scarce commodity, much as speech”. The reason simply is that “free- Early in December 2006, the MIB an- the electromagnetic spectrum was in the dom of expression includes the right to nounced detailed policy guidelines on early years of satellite broadcasting. News- receive information and ideas as well as community radio services (CRS). This print has since become abundantly avail- freedom to impart them”.13 was a long-delayed correction for the able, much like frequency slots for broad- The airwaves judgment, in short, urges unduly restrictive policy introduced in cast channels. Advertisement revenue, then the adoption of a new paradigm that tran- December 2002, which reserved commu- regarded as a limited resource, has since scends the dichotomy between government nity radio for “well established education grown enormously, though the competi- control and free enterprise. On one side, institutions”. Even so, the policy as it stands tion between newspaper groups for corner- it asserts in justice Sawant’s words, the now is rife with clauses requiring CRS ing increasing shares of this expanded paramount need to “rescue the electronic applicants to meet a number of stringent cake, has greatly intensified. And even if media from the government monopoly requirements. In the case of aspirants other the proliferating broadcast channels of the and bureaucratic control and to have an than publicly funded and managed educa- last decade and a half have not been very independent authority to manage and tional institutions, sanction for entering transparent in their financial accounting, control it”. When the electronic media is the CRS domain would be subject to the mere fact that they exist is sufficient controlled “by one central agency or (a) few clearance from the ministry of home affairs proof that the aggregate of advertisement private agencies of the rich”, there is a and the defence ministry, not to mention spending in the Indian economy has been need for another body, “representing all the allocation of a radio frequency by still percolating, albeit in varying degrees, to sections of society”.14 Justice Reddy ob- another ministry. Programmes broadcast all of them. served that the nature of this body was for over the community radio should be The principal restraint then to using the the legislative authorities to determine. designed to serve a “specific well-defined electromagnetic spectrum as a public The central point simply, was that “private local community” and should be relevant resource lies not in its scarcity, as in the broadcasting, even if allowed, should not to its “educational, developmental, social powers and privileges that the government be left to market forces, in the interest of and cultural needs”. Broadcasts that may have arrogated to itself. In this respect, ensuring that a wide variety of voices relate to “news and current affairs and the Supreme Court ruling in the airwaves enjoy access”.15 are otherwise political in nature” are

Economic and Political Weekly March 3, 2007 745 Winter 2007 Research Competition

South Asian Network for Development Deadline: March 22, 2007 and Environmental Economics The South Asian Network for Development and as well as on-going erosion of coastal resources. Can Environmental Economics (SANDEE) invites research economic instruments (fees, permits, subsidies) be used pre-proposals on the interlinkages among economic to better manage coastal development? What incentives development, poverty and environmental change. Pre- and dis-incentives lead to inefficient use of coastal/ riverine proposals, if accepted, will lead to an invitation to submit resources, particularly fisheries? Further, what is the role a full research proposal. Four thematic areas have been of insurance markets in responding to coastal/riverine identified for the current round of research grants. While disasters? What is the role of natural and man-made some common research questions are identified below, barriers in mitigating disasters? How can we value the researchers can explore a wider range of questions within services provided by natural barriers? How and what kind each sub-area. of institutional change will improve well-being or reduce disaster risks? 1. Economics of Natural Resource Use and Regulations Large groups of people depend on land, forests, rivers 4. Economics of Climate Change and other natural resources. Market as well as non- The scientific evidence is quite overwhelming that Planet market processes facilitate the extraction, exchange and Earth’s average temperatures are rising. This has both consumption of these goods and services. Some natural a large direct impact due to productivity losses etc., but resources are undervalued and over-extracted, while also in terms of adaptation and mitigation costs that others may be underutilized. Four policy questions are society will have to bear. How will the agricultural output of interest: What specific regulations and institutional change? How will sea level rise affect coastal communities? innovations can correct existing market and policy failures? Rising temperatures will affect precipitation, and therefore What are the implementation challenges associated with river flows and groundwater stocks. How would this impact accurately pricing natural resources and services? Is on human well-being? What kind of costs are involved there a role for new policy instruments such as ‘payments in mitigating risks? How much would communities have for environmental services?’ And, how do we account for to spend in order maintain equivalent well-being to adapt environmental costs in designing economic policies to the rising temperatures? (including trade, macro etc.)? SANDEE supports economics research related to 2. Economics of Pollution Management environmental problems. Thus, pre-proposals that do not Dirty water, waste, toxic chemicals, and indoor and have a strong economics component will not be considered. outdoor air pollution have serious implications for human Pre-proposals are sought from junior to mid-career faculty health and productivity. What are some viable policy and researchers; multidisciplinary/ country projects and instruments (taxes, subsidies, user-fees etc.) or institutional use of secondary data are encouraged. Institutional changes (community water user groups, private affiliation is required for receiving support. Pre-proposals contracts for waste management etc.) that can will be evaluated on their academic merit and policy contribute to clean air and water? And what are the significance. Selected researchers will be invited to submit distributional outcomes associated with these a full research proposal. instruments? The private sector has an important role to play in cleaning up the environment – whether through SANDEE’s grants are in the range from $10,000 to $15,000 the use of abatement technologies, new innovations or for 12-24 months. Please visit www.sandeeonline.org for increased efficiency. What economic incentives or responses to frequently asked questions and for examples disincentives would promote increased private sector of previously funded proposals. participation in improving environmental quality? What are some political-economy considerations? The guidelines and format for pre-proposals are presented on SANDEE’s website (http://www.sandeeonline.org). 3. Economics of Coastal / Riverine Zone Management Pre-proposals need to be directly loaded on to the Coastal/riverine communities are vulnerable to sudden website by March 22, 2007. Pre-proposals received after on-set of disasters, long-term impacts of climate change, this date will not be accepted.

746 Economic and Political Weekly March 3, 2007 specifically proscribed. Sponsored Sun TV is a media entity that began in legislation that curiously, seldom makes programmes would not be permitted the realm of cable and satellite (C and S) it beyond the first draft to the stage of except where the sponsor is an arm of the broadcasting and rapidly expanded its enactment. Though the evolution of the government. Advertisements and public influence into print and radio. The Times new media and the realities of convergence announcements that yield revenue would of India group, headquartered in Delhi, with information technology have often be permitted to the limit of five minutes offers another case study of a business allowed big media corporations to effect in an hour’s broadcast. All earnings would group of considerably greater vintage, a flanking operation around them, cross- necessarily have to be used in meeting diversifying out of print into TV, radio, media ownership restrictions remain a operational and capital costs. A surplus, internet advertising and a variety of other valuable part of the statute in several if available, could, with the explicit written media ventures, with little resistance from countries.24 In recent years, a move by the permission of the MIB, be transferred into regulatory policy.22 Federal Communications Council (FCC) the primary activity of the organisation These two routes to media consolida- in the US to undo some of the restraints running the service.18 tion, though different, would be regarded on cross-media ownership, was met with This regime of policy may be instruc- with equal concern under any reasonable a vigorous public signature campaign that tively compared with that prevalent in the regime of supervision over the right to effectively forced the regulatory body to realm of private radio broadcasting. In July information. But with policy being retreat.25 This is in some measure, an index 2005, policy guidelines were announced inattentive, these are by no means the only of the value attached by the public to the under which bids were invited for the pathways available for well-endowed sustenance of these norms. second round of allocation of FM radio business houses that seek to capture A monopoly over the airwaves was part broadcast circles. Under the tendering increasing shares of the space available for of the initial conditions in India, in contrast principles drawn up, allocations were to information transactions. with the US, which began with a large be made on the strength of the entry fee It takes only a cursory glance at the last assortment of broadcasters that were offered by each bidder. Moreover, a share round of licences allocated for FM radio, rapidly consolidated into a handful of of annual revenue would be paid by the to see that any notion of cross-media dominant entities. It might appear that an operator as a form of annual fee for the ownership restrictions has effectively been oligopoly of private broadcasters – how- use of the broadcast spectrum. Advertise- shredded and the pathway opened up for ever small in number – would be far ments would be the principal revenue growing business monopolies in the me- preferable to a government monopoly. source, but there would be no limit imposed dia. Illustratively: the Rajasthan Patrika Interestingly though, in the doctrine of on the quantum of advertising that each group, a significant player in the newspaper fundamental rights laid down by India’s broadcaster could carry.19 space in Rajasthan state, was awarded four Supreme Court, the fact of monopoly When it came to the allocation of FM circles, while Malayala Manorama ownership over broadcast platforms frequencies for FM radio broadcasting, the and Matrubhumi, the two largest newspaper does not, in itself, constitute a curb on the government seemed inclined to view the groups in Kerala, were awarded four each twin rights of information and free speech. airwaves as a public resource to be auc- in their home state, and the Mid-day group It is only from the denial of public access tioned off to the highest corporate bidder. of Mumbai was given six circles, all of to the broadcast media, that such an After the bidding for FM radio licences them in highly lucrative metropolitan abridgment of the fundamental rights that ensued, the vast majority was granted cities. HT Media and Entertainment, a could be deemed to occur.26 In other to companies or entities that were already company controlled by the Hindustan words, the existence of a monopoly strongly established in other sectors of the Times group – with its significant print broadcaster does not in itself negate free media.20 Entertainment Networks (India), media presence in Delhi and Mumbai – speech, provided the right to public access a company owned by the Times of India was awarded radio licences in both these is ensured. group, which happens to be the largest cities, with the two metropolitan centres The history of the legislative effort to enterprise in the print media, won 25 FM of Kolkata and Bangalore also thrown in transform a zealously guarded govern- radio broadcast circles, to add to the seven as a bonus. mental monopoly over the airwaves into that it was running under its brand name, Beyond this story of media consolida- a more benign public trust is rather well Radio Mirchi. South Asia FM, a company tion, a significant new presence was en- recorded.27 Aside from the advisory bodies controlled by the Chennai-based satellite tering the scene. Adlabs Films, flush with that were periodically commissioned to broadcaster, Sun TV, won no fewer than an infusion of funds after its takeover by come up with creative solutions, the first 23 FM circles in the northern part of the the Reliance-ADAG group – one of the concrete effort at legislation was the Akash country. This is quite apart from the 18 it country’s biggest industrial conglomerates Bharati bill, introduced in Parliament after won in the south through its affiliate – won no fewer than 45 circles in the 2006 much deliberation, only to lapse with the company, Kal Radio. Sun TV, it needs to round of FM radio allocations.23 dissolution of the sixth Lok Sabha in 1979. be added, had in early 2006, bought up Its successor, renamed the Prasar Bharati the Tamil daily, Dinakaran, then ranked Growing Corporate Control bill, was enacted but not notified when third in terms of readership in Tamil Nadu. the National Front government elected in With an aggressive price-cutting campaign, These quite unconcealed concessions to 1989 – comprising numerous fragments, it had soon catapulted the newspaper to an corporate control over the airwaves should with one conspicuous exclusion, from the undisputed second position in the market be seen in the context of existing global political formation that had dominated the and quite possibly the first – though this norms on cross-media ownership restric- sixth Lok Sabha – passed into history. It remains contentious – in the readership tions. These norms indeed, have been took till 1997, with another avatar of the stakes.21 repeatedly affirmed in India by broadcast National Front in power – now called the

Economic and Political Weekly March 3, 2007 747 United Front – for Prasar Bharati to be curb monopolies in the media is numeri- broadly fit into one of two categories: they notified and thus become law. cally imprecise and unaccompanied by any are either defensive responses to predatory The government that soon followed, construction of a mode of intervention to moves by media corporations, particularly allowed the ordinance notifying Prasar secure the public interest.29 those of foreign origin, or signals of Bharati to lapse and a few months after- acquiescence in the larger designs of wards, disbanded the board of trustees that Broadcast Bill and Its Newest these corporations, dressed in the garb of had been appointed to supervise the func- Avatar pragmatism. tioning of the public broadcaster. In all Towards the end of 1996, News Tele- these respects, the government led by the This is to be contrasted with the Broad- vision India, a corporate entity owned by Bharatiya Janata Party (BJP) signalled that cast bill mooted in 1997 as a means of the global media czar Rupert Murdoch, it preferred the strict control over the ensuring a reasonable framework of rules announced its readiness to start “direct-to- airwaves to the doctrine of freedom upheld for private broadcasters, even as the home” (or DTH) telecasts in India. This by the Supreme Court. The entire episode counterpart policy initiative of notifying was followed by an advertising campaign seemed to underline a certain reality about Prasar Bharati brought government in the print media promising Indian TV the political tutelage that broadcasting channels under a variety of public control. viewers a new deal that would secure them reform has laboured under. Where govern- Drafted during a brief interlude of open- their independence from the ever- ments unsure of their tenure are in power, ness within the MIB, the 1997 bill unreliable local cable operator. By April led by political formations that are con- provided for “inter-category restrictions 1997, this campaign had peaked and the vinced of their imminent mortality, there on licences (for broadcasting) as well Murdoch enterprise seemed all set to is a possibility that the oppressive, official, as on the number of licences within a manoeuvre its way past the areas of silence hold over the airwaves will be relaxed. category”. It restricted the “ownership in the prevalent policy, to begin an entirely This is a narrow window of political and control of a broadcasting company new category of broadcast services. After opportunity that would invariably be shut by newspaper proprietors up to 20 per months of silence which had been con- tight when governments are led by parties cent and vice versa” and specifically strued as acquiescence, the government in that believe, for whatever reason, in their prohibited religious bodies, political July 1997 issued a formal notification historical destiny as eternal wielders of organisations, foreign nationals and enti- prohibiting the transmission or reception political power. The Congress Party’s ties, and advertising agencies from hold- on Indian soil of any broadcast signal above persistent record of default on the Prasar ing broadcasting licences in India. Fur- the frequency range of 4800 megahertz. Bharati Act, the United Front’s restoration ther, it limited a single person or entity to In effect, this prohibited the commence- of the agenda of broadcasting reform and licences in any two (or less) of the follow- ment of DTH broadcasts in India.31 the BJP’s unceremonious termination of ing activities: terrestrial radio, terrestrial If this was a defensive policy response, the experiment, bring to mind the very television, satellite television or radio, the official attitude towards uplinking from strong warning issued by justice Reddy in direct-to-home broadcasting, and local Indian territory for broadcast through the airwaves case: “Government control in C&S delivery.30 satellite, bears all the telltale scars of effect means the control of the political A prolonged legislative vacuum ensued compliance with an agenda set by players party or parties in power for the time being. once the 1997 draft lapsed, during which operating beyond the reach of regulatory Such control is bound to colour and in facts on the ground were altered by the efforts. The story begins in May 1991 some cases, may even distort the news, country’s big media players, progressively when the Hong Kong based STAR TV views and opinions expressed through the making the job of regulation more diffi- network began beaming programmes into media. It is not conducive to free expres- cult. Powerful print media groups moved India, where audience interest had already sion of contending viewpoints and opin- into the broadcast sector, and others that been stoked by the satellite broadcast ions which is essential for the growth of had begun as C&S broadcast companies, network CNN’s coverage of the Gulf War a healthy democracy.”28 integrated horizontally into the newspaper some weeks before. The first of many Viewed in this context, it is rather easy industry. C&S companies in turn ventured committees to examine possible policy and to point out the many deficiencies of the into the domain of retail distribution of regulatory responses, constituted almost BSRB, especially when assessed against television signals and succeeded in estab- immediately afterwards, submitted its the stated purpose of operationalising the lishing their dominance in the most lucra- recommendations by October 1991.32 airwaves judgment. Drafted in 2006, when tive markets. Certain conditions were taken for granted the government monopoly had been irre- For reasons that have more to do with in all the early, official, examinations of versibly eroded, the BSRB should reason- the evasion of tough decisions than with the broadcasting reform. Though thinking ably have been expected to take into account inherent difficulties, the rules evolved for on autonomy for the sector had evolved the experience of corporate control over radio have been immensely more stringent over the years, there was little acceptance the airwaves and factor this into its regu- than those applicable to TV. This is in part yet that the government monopoly over the latory philosophy. Though a first glance because the stakes in TV broadcasting are airwaves would have to yield to new would show that the BSRB does indeed high and the power of the medium so great, realities. The most that would be conceded pay due obeisance to the objectives of that multinational media enterprises and was a degree of access for the public to preserving diversity of choice on the air- big domestic corporations have always been broadcast platforms, that would neverthe- waves, these turn out on closer examina- an aggressive presence influencing policy less remain the exclusive domain of the tion, to be no more than a token acknow- decisions. Even if governments would like government. ledgement. Correlatively, the clause that to pretend otherwise, there is little question The number of broadcast channels beam- vests the government with the power to that policy decisions in the broadcast sector ing into India was by now proliferating.

748 Economic and Political Weekly March 3, 2007 Yet the government remained unwavering 24-hour news channel. Uplink rights strictures that have in practice been in its refusal to allow any Indian entity to were granted, ostensibly for a trial period reduced to nullity.37 establish an upward link to a satellite for of six weeks, so that the news channel diffusion of broadcast signals over the could provide coverage of the upcoming Revisiting Ratios country. This compelled a number of Indian general elections to Parliament.34 And once broadcasters to physically transport their the uplink right was granted to a foreign- Where regulatory efforts threaten to have programmes on magnetic media to other owned broadcaster, there was no credible a substantive impact on media monopolies countries – notably Singapore – from where basis on which it could be denied to Indian and thus on the overall ambience of the an uplink was established for beaming entities. right to information and free speech, these signals into India. Against this background, it is easy to are swiftly abandoned for reasons that guess why policy on radio continues to should not challenge an average intelli- Inherent Illogic of Broadcast remain excessively restrictive: the poor gence. A recent move by the central govern- Regulation cousin within the broadcasting family has ment, to limit the advertisement time that simply not had any powerful lobbies particular television channels carry, was This was a situation rife with ironies. arguing its case.35 A record of inconsistent abandoned within a month of its announce- Singapore till today zealously guards its – even duplicitous – standards, is espe- ment, without any kind of public debate.38 airwaves, allowing incoming broadcasts cially evident in the record on community While the proposal may seem absurd on only with a time delay, so that diligent broadcasting. The concept note prepared the face of things, it has a long and hoary censors continually monitoring the signals by the MIB in 1996, by way of a preface vintage as a regulatory device with a vital can screen out any material deemed ob- to the legislation it proposed to bring in, bearing on the fundamental rights. Succes- jectionable. But despite all its authoritar- mentioned community broadcasting as an sive press commissions in India have for ian attitudes, the government of Singapore “extremely useful” device in “providing instance, suggested that the limitation of had little reservation early in the C&S voices to the local community in managing advertisement revenue earned by particu- television boom, in allowing uplinking from their affairs and participating in (the) overall lar media organisations, though seemingly its territory. The Indian government in developmental process”. It proposed an intrusion into their rights, is a necessary contrast, disallowed any uplinking of moreover, to award broadcasting licences evil in the larger cause of the rights to broadcast signals, but effectively admitted in restricted areas – “on the basis of either information and free speech. Both the price- that it was powerless to monitor or regulate a restricted bid or no bid at all” – to local page schedule, which requires newspapers incoming television programmes. To draw organisations “to facilitate better educa- to price their product in accordance with attention to this contrast is not to endorse tion and communication”.36 number of pages printed, and the directive the Singaporean policy of censorship, or Since these words were written, big to limit the number of pages that a news- to advocate a police regime that would business control over the airwaves has paper publishes, have been ruled unconsti- monitor all broadcasts for conformity with only been consolidated. In the process, the tutional by the Supreme Court in the Sakal an official line. Rather, it is only to un- priorities of community broadcasting and and Bennett Coleman cases.39 Yet they derline the inherent illogic of the Indian public access to the airwaves have van- continue to be advocated – not just by government’s position, which remained a ished from the policy discourse. It was control fanatics in the government but also persistent feature for long years into the only several months after the spectrum by people with vital stakes in the industry C&S television boom. auction for FM radio that the union cabinet – as an imperative of media regulation. By late-1996, a minor concession was finally approved a policy that would open In 2003 for instance, the Indian Parlia- granted with domestic C&S broadcasters up opportunities in community radio to ment’s standing committee on information being allowed to uplink to satellites owned entities other than privileged universities technology urged the government to pres- by India’s Department of Space, for the and institutions of learning. And with all cribe a “ratio for coverage of news con- limited purpose of gathering “news feeds” the changes that have grudgingly been tents and advertisements in newspapers”. from remote locations. Though successive allowed, the policy on CRS remains highly This was necessary since, as the Commit- committees had recommended that restrictive in terms of eligibility, content tee observed, “a tendency is being noticed uplinking rights be granted to Indian-owned and revenue sources. in the leading newspapers to provide more broadcasters, the government dithered These multiple forms of control over and more space for advertisements at the endlessly over what always seemed a fairly CRS stands in striking contrast to the cost of news items”. Though in itself, this simple issue.33 By early-1998, the total absence of any regulation over TV was not a cause for public concern, there Murdoch-owned STAR TV contracted broadcasts. Regulatory efforts in C&S TV was adequate reason to worry, that with with an Indian production company to in fact, are currently focused on the cable advertisement expenditure migrating to- provide the feed for a 24-hour news operator rather than the broadcaster. The wards particular newspapers, others that channel. Senior officials of STAR TV, onus of ensuring that all material broad- catered to lower income groups – of lesser many of whom had till just prior to joining cast is in conformity with the “programme importance to advertisers – would be the Murdoch enterprise, been working for code” and the “advertisement code” rests starved of revenues and be compelled to the MIB, were then under investigation in entirely with the cable operator. This cut back on newsgathering expenses. This matters involving possible conflicts of curiosity of Indian broadcast law has in turn, would impair the socially desirable interest and even corruption. But then prime been inscribed into the Cable Television objectives of ensuring diversity and minister I K Gujral found little amiss in Network Rules of 1994 and continues to plurality of news media.40 throwing open the premises of his official hold the field till now. The “programme The print media, despite all its traditions residence for the inauguration of STAR’s code” in turn, is a bunch of fairly vacuous in India, is today rapidly losing its rich

Economic and Political Weekly March 3, 2007 749 plurality, as the pressure mounts for con- pursuit of the public cause. The BSRB in 3 ‘New Broadcast Bill Just a Rehash of Existing formity with the demands of advertisers other words, was no more than a temporary Provisions?’, The Times of India, Delhi and Mumbai, July 3, 2006. and the affluent. The broadcast media expedient in a long-running bureaucratic 4 ‘Kill this Broadcast Bill before It Kills Your because of its specific features, is more turf war. That, finally is the most charitable Rights’, Daily News and Analysis, Mumbai, prone to surrender its autonomy when faced assessment that can be made of the last July 1, 2006. This newspaper was launched in with advertiser interests.41 The public effort to provide a legal framework for the the Mumbai market in 2004 and its principal character of the airwaves as a resource, Indian broadcast sector. EPW financial backers are the Zee Telefilms group, which operates a number of entertainment and could in short, soon be completely sub- news channels and is by far India’s largest verted by a sustained campaign of Email: [email protected] satellite broadcaster, and the Dainik Jagaran disinformation that essentially denies the group, publishers of the newspaper that was public its right to know. Circumstances Notes reckoned by the last round of the National perhaps have never been more appropriate Readership Survey, to have a readership of 21 million. than now, for a credible regulatory author- 1 The text of the Broadcast Services (Regulation) 5 The first amendment to the US constitution ity, committed to the public interest, to Bill was for long a mystery, with one forbids Congress from making any law revisit the issue of advertisement and commentator going to the extent of observing “abridging the freedom of speech, or of the subscription revenue. There is also the as late as July 28, 2006, that despite all the press”. This has led to a considerable comment that had been heard in public forums, need to examine the issue of cross-media jurisprudential debate in the US to determine the bill was not officially “in the public domain”. whether freedom of the press is in some way ownership restrictions from a public inter- This commentator, who happened to be a redundancy given the unequivocal fashion in est viewpoint, rather than the governmen- chairperson of the Public Service Broadcasting which the First Amendment upholds the freedom tal-bureaucratic perspective that has so far Trust, had by his own account “requested a of speech. The judicial consensus has tended been customary in India. copy” of the bill from the MIB, and been told to the view that it is not, which means in effect, The latest visitation of a law for the that he could not “legitimately” be given one. that the press enjoys rights that go beyond the “This means”, he wryly concluded, “that all public right to free speech. This question is broadcast sector, the BSRB, proposes as those in possession of a copy of the bill and addressed, with appropriate referencing, in an a public authority to regulate the airwaves, those writing about it are in violation of the earlier article by this author, ‘The Challenge a “Broadcasting Regulatory Authority of Official Secrets Act”. (See Rajiv Mehrotra, to the Media’, Seminar, Number 551, July India” (or BRAI) that will have the final ‘Social Justice on the Airwaves’, The Hindustan 2005, pp 41-45 (available at this writing at the word in matters related to the broadcast Times, July 28, 2006, p 11). The full draft of website: www.india-seminar.com. the bill was finally posted on the MIB website 6 1962 SCR (3) 842; this is the standard citation spectrum. Perhaps some of the true on August 11, 2006, with the stated purpose format, in which SCR stands for Supreme Court motivations behind the BSRB as a legis- of inviting public comments on an issue of Recorder. lative proposal would become clearer if general importance. The bill and the consultation 7 1973 SCR (2) 759. the mandate that it invests the BRAI with paper that explains its concepts and intents, are 8 A fuller examination of both the Sakal and the were to be examined. available at this writing at the following web Bennett Coleman judgments is available in a address: http://mib.nic.in/informationb/ recent article by this author. See ‘Freedom, The BSRB conceives of a situation when POLICY/BroadcastingBill.htm. Responsibility and Regulation’, Seminar, the central government will, by notification, 2 ‘Media Muzzled I: Is the Broadcast Bill Media Number 561, May 2006, pp 20-25; available transfer all “proceedings pending” before Friendly?’, The Hindustan Times, Delhi, July at this writing through the website: www.india- the existing frequency spectrum oversight 26, 2006, p 11. seminar.com. body, the Telecom Regulatory Authority of India (or TRAI) to the BRAI. It is significant that over the weeks between June and August 2006 – with the BSRB being debated in public – TRAI had sought for the first time to go beyond its assigned job of mediating between telecom compa- nies and adjudicating on matters of fre- quency spectrum allocation, to seek to establish its authority over the tariffs levied by C&S companies.42 This was within TRAI’s mandate as the regulator of the broadcast sector, a status it was con- ferred with in 2004, ostensibly to hasten the process of convergence between broad- casting, communications and information technology.43 Yet it was never a secret that the MIB was particularly unhappy with this seeming encroachment into its do- main. The emergence of the TRAI in its avatar as regulator of subscriber rates that C&S broadcasters could charge, created a further sense of alarm within the MIB, at the possibility that a rival body could win immense populist acclaim in ostensible

750 Economic and Political Weekly March 3, 2007 9 1973 SCR (2), p 760. http:// www.fcc.gov/ownership/rules.html. 33 This complex regulatory history is summarised 10 Ibid, pp 803-14. Illustratively, the rules that are currently in in two articles in the fortnightly magazine 11 1995 SCC (2) 161, para 124(i), SCC here refers force prohibit “common ownership of a full- Frontline. See: ‘Uplinking Rights, The Outlook to Supreme Court Cases in accordance with the service broadcast station (television or radio) for Private Indian Broadcasters’, November 1, accepted format of citation. and a daily newspaper if the station’s service 1996, pp 93-4; and ‘A TV Debate, Questions of 12 1995 SCC (2) 161, para 78. area completely encompasses the newspaper’s Broadcast policy’, February 21, 1997, 13 1995 SCC (2) 161, para 181. city of publication”. The FCC’s 2002 effort to pp 114-15. 14 Ibid, para 107, 85. relax these rules in some degree was met with 34 This sequence of events is covered in concurrent 15 Ibid, para 205. an organised show of public dissent that issues of the weekly newsmagazine, India 16 Ibid, para 81. compelled it to put the proposed changes on Today, especially in the special page titled 17 Ibid, para 205. hold. It could be argued that none of the FM “Teletalk”, devoted to visual media issues. 18 The policy guidelines for community radio broadcast licences given out recently is a “full- 35 Vinod Pavaral asks a pertinent question that services are available in a document posed on service broadcast station”, since they are all still remains unanswered: “why does this the website of the Ministry of Information and explicitly forbidden from engaging in news and government find Rupert Murdoch more Broadcasting. See: http://mib.nic.in/ current affairs. But with understanding of media trustworthy than a poor, unlettered dalit woman informationb/CODES/CRBGUIDELINES economics having progressed much further who wants to use a media channel to 041206.doc. since the US norms were written, it should be communicate?” See ‘Breaking Free, Battle over 19 The policy guidelines for the second round of evident that dominance over the advertisement the Airwaves’, Economic and Political Weekly, FM radio broadcast licences are available at market, particularly in concentrated pockets of May 31, 2003. This is the introductory piece the website of the ministry of information and high-purchasing power demographic groups, to a collection of papers on broadcasting in broadcasting, at the following URL: http:// is really the material issue. India with a focus on community radio, a mib.nic.in/informationb/POLICY/frames.htm. 25 Associated Press story, ‘Media Ownership collection that includes inter alia, Kanchan 20 The details of the broadcast circles awarded Issues Return to Spotlight’, Washington DC, Kumar, op cit. after the last round of FM spectrum auctions, October 3, 2006. This story, issued just when 36 Price and Verhulst (editors), op cit, p 233. is available at this writing, from the website the FCC was beginning a series of public 37 Among other things, the programme code of the Ministry of Information and Broadcasting: hearings, usefully describes the level of explicitly forbids the broadcasting of material http://mib.nic.in/fm/fmmainpg.htm. mobilisation of consumer advocacy groups on that contains the “criticism of friendly countries” 21 It may not be out of place to mention here that the issue of cross-media ownership. or “criticises, maligns or slanders any individual Sun TV is a business group controlled by the 26 The precise formulation in justice Sawant’s in person or certain groups, segments of social, family of the incumbent minister for judgment is as follows: “A mere creation of public and moral life of the country”. Material communications and information technology, the monopoly-agency to telecast does not per that “denigrates children”, or projects an a first-term member of parliament from Tamil se violate Article 19(1)(a) as long as the access “ironical and snobbish attitude in the portrayal Nadu. Aside from the intrusion of monopoly is not denied to the media either absolutely or of certain ethnic, linguistic and regional groups” elements into the media, which is an issue by imposition of terms which are unreasonable. is also forbidden. And in a revelation that meriting considerable attention in itself, this Article 19(1)(a) proscribes monopoly in ideas would surely be of interest to the numerous also raises serious questions about conflicts of and as long as this is not done, the mere fact channels that begin the day with astrological interest, which have surprisingly, not attracted that the access to the media is through the predictions – and the sports channels that preface much public comment or discussion. For a rare Government controlled agency, is not per se the telecast of important cricket matches with discussion in a public forum on the multiplicity violative of Article 19(1)(a)”. 1995 SCC (2) the wisdom of tarot-card readers – anything of issues involved in Sun TV’s expansion, see 161, para 61. that propagates “superstition and blind belief” S R Ramanujan’s column dated May 14, 2006 27 A most comprehensive recent account, focused is also proscribed. in www.thehoot.org, ‘Why Is Tamil Media So on television, is Sevanti Ninan, ‘History of 38 The Hindu, ‘Decision on Advertisement Biased? Indian Broadcasting Reform’ in Monroe E Component in TV Channels Withdrawn’, 22 For an account of the Times of India’s growth, Price and Stefaan G Verhulst (eds), August 20, 2006, available at this writing at: consolidation and diversification, see this Broadcasting Reform in India, Media Law from http://www.thehindu.com/2006/08/20/stories/ writer’s essay in Himal South Asia, August a Global Perspective, Oxford University Press, 2006082006131000.htm. 2006, ‘The Times of India’s Final Frontier’, Delhi, 1998, pp 1-21. A comprehensive survey 39 See footnotes 6 and 7 above. available at: http://www.himalmag.com/2006/ and critique, focused on radio, is available in 40 Standing Committee on Information Techno- august/essay.htm. Also see the article published Kanchan Kumar, ‘Mixed Signals, Radio logy, Thirteenth Lok Sabha, 63rd Report, Lok in the Delhi-based magazine Hard News, Broadcasting Policy in India’, Economic and Sabha Secretariat, December 2003, pp 39-42. ‘Demoting News and the Reader’, December Political Weekly, May 31, 2003, pp 2173-82. 41 The weekly newsmagazine India Today, part 2006, pp 17-20, available at: http:// 28 1995 SCC (2) 161, para 199. of a business group that includes two news www.hardnewsmedia.com/portal/2006/12/ 29 Article 10 of the BSRB merely reserves for the channels – Aaj Tak in Hindi and Headlines 697. Both articles in turn, are derived from a central government “the authority to prescribe Today in English – recently ran a cover story case study on the media group published by such eligibility conditions and restrictions with that was rather evocatively titled “Tamasha the Inter-Press Service (Asia Pacific) in regard to accumulation of interest in the print News”. The subtitle read: “Sensational, December 2006. See: ‘Times of India: A and broadcast segments of the media as may Shocking, Pervasive, Trivial”. But in a one-line Catastrophic Success’, in Asia Media Report, be considered necessary from time to time, to summation of the purport of its story, the A Crisis Within, Inter Press Service (Asia prevent monopolies across different segments newsmagazine refrained from exercising its Pacific), Bangkok, 2006, pp 99-110. of the media as well as within the broadcast judgment on the merits of the phenomenon, 23 On the acquisition of Adlabs by the Reliance- segment, to ensure diversity of news and views”. perhaps because it could not be seen in public ADAG group, see Sevanti Ninan, ‘The New The full text of the BSRB is available at the to be engaged in an act of self-condemnation. Moguls’, The Hindu, Sunday magazine, October time of this writing at: http://mib.nic.in/ “Intense competition has compelled 8, 2006. Details of FM broadcast circles awarded informationb/POLICY/BROADCASTSER news channels to feed the voyeuristic till this point have been drawn from the source VICESREGULATIONBILL.htm. appetite of today’s viewers”, it said, “for better cited above, i e, http://mib.nic.in/fm/ 30 The full text of the draft is available in Price or worse”. fmmainpg.htm. and Verhulst (editors), op cit, pp 191-222. Also 42 The Hindu Businessline, ‘Pay Channels @ Rs 5 24 The classic work on this issue of course is Ben included (pp 223-33) is a concept note circulated Per Month’, September 1, 2006, page 1. Bagdikian’s The Media Monopoly, Beacon by the ministry of information and broadcasting, 43 See the Press Trust of India story, posted on Press, New York, 1983. Detailed rules on the explaining its overall approach to regulatory the website of The Economic Times on cross-media ownership restrictions in force issues. January 10, 2004, available at this writing at: in the US can be found on the website of 31 Sevanti Ninan, op cit, pp 18-19. http://economictimes.indiatimes.com/ the Federal Communications Commission: 32 Ibid. articleshow/415625.cms.

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