Right to Express Vs Power to Prohibit

- Prof. Madabhushi Sridhar

The first half of 2014 saw the blockade of TV channels in several states. The Chief Ministers came down heavily against ‘free (!) press’ either directly or indirectly and reputed tv channels were forced to go off the air.  While two states banned on TV channels was based on Intellectual property rights and national security, one state acted against negative criticism of media. The MSOs in Telangana banned telecast of two channels who challenged it in High Court. The Assembly of Telangana State is invoking Legislative privileges against a nasty show ridiculing its MLAs.

Right to telecast FIFA

Delhi High Court on June 4, 2014 directed to ban over 400 unauthorised websites from broadcasting FIFA World Cup matches, after a petition was filed by Multi Screen Media (MSM), formerly known as Sony Entertainment Television India. It is an intellectual property rights related petition. The MSM owns all rights related to live, delayed and repeat telecast and streaming of 2014 world cup matches in Indian subcontinent. also directed the various Internet Service Providers (ISPs) to block the websites mentioned in the petition of Multi Screen Media (MSM) as well as any other portals which are later found to be violating the rights of the official broadcaster of FIFA 2014 in Indian subcontinent. This ban has a legal basis and to protect the intellectual property rights based on the contract.

For National Security

The news and current affairs operations on all cable TV channels had been ‘banned’ till elections were over 2014, in the Jammu and Kashmir due to the violent political turmoil of 2010. Chief Minister told the Assembly some text data and communication services were also suspended so as “to prevent breach of peace and any law and order situation.” He said that the private TV channels had violated the Cable Television Network (Regulation) Act. The SMS on the pre-paid mobile phones were also restricted for spreading “false and frivolous rumours which have a potential to incite violence.” This ban is for the purposes of security of the State.

Suppressing the political criticism

In UP there was different type of ban on tv channels. After its expensive carnival at Saifai was severely criticized by the Media, the UP Government came down heavily against the media. Times Now channel was running an investigative story on UP legislators on a multi-nation junket on tax-payer’s expense.  The CM called the media “anti-Urdu” and opponents of “Lucknow’s tezheeb” for criticizing actors who were “promoting Awadhi culture through their films”. The furious Akhilesh Yadav sarkar has allegedly caused blockade of two tv channels.  ‘Times Now’ went off the air across several parts of UP including Lucknow and Ghaziabad. The cable operators have not given any specific reason for not broadcasting two tv channels in 12 TRP centres of UP. Opposition parties have slammed the SP government for punishing the media for exposing its failures. The Cable Operators denied any order from Government to block the channels.  Times viewed it as an attempt to muzzling the media because Akhilesh Government was not pleased with the coverage. They called it state-sponsored intimidation which has no place in democracy. Times also demanded the government to immediately withdraw its verbal instructions to cable operators to black out these channels and to pay damages to the affected cable operators and TV channels for having illegally disrupted their businesses.

Fighting Bias

Even after bifurcation of Andhra Pradesh into two states forming Telangana as 29^th State, couple of TV channels were continuing their anti-Telangana campaign in Hyderabad. They also bifurcated tv editions as Andhra and Telangana, but the channels are basically promoting the political, commercial and land interests of Seemandhra parties and businessmen in Telangana.  When a channel telecast a nasty program insulting the newly elected MLAs, the anger against these channels flared up and MSOs blocked two channels. Telangana Assembly took it up as an issue of privileges.

The Cable TV Networks Regulation Act 1995 provided for protection of subscribers from anti-national broadcasts and to enforce the rights under laws like Cinematography Act, Copyright Act and Indecent Representation of Women (Prohibition) Act. It also imposes obligation on operators to be transparent, to ensure quality of service, etc. This Act regulates the operators by insisting on registration (section 3) violation which would lead to seizure of equipment (s11) and continued operation without registration results in confiscation (s12).  This period of seizure was limited to 10 days and could be extended by an order of the District Judge. After 2011 amendment, seizure could be unlimited.  By amendment the central government is empowered to revoke or suspend a cable operator’s registration if he violates the terms of registration.  

Content Regulation

Section 19 gives power to prohibit transmission of a particular program in public interest, if it is likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquillity.  Certain cases are registered against channels in Telangana under this section.

Prohibition of cable tv network: 

Under section 20 where the Central Government thinks it necessary or expedient so to do in public interest, it may prohibit the operation of any cable television network in such areas as it may, by notification in the Official Gazette, specify in this behalf. These provisions show that a program or a cable tv network can be prohibited but not a tv channel not even for a day. 

No powers to impose ban:

As per the Constitution, the state cannot impose any ban which amounts to pre-censorship on tv channel or publication under this Act. Even when the content is cheap, unethical, defamatory and also amounting to breach of privileges, the Constitution has not justified state sponsored ban on tv channels or publication, while the aggrieved are entitled to pursue the rights and seek legal remedies. These are post-publication legal actions. Prepublication restrictions on freedom of expression are unconstitutional and illegal.

Hence banning tv channels will be a serious violation of cable law. If Telangana Assembly wants to punish or admonish tv channels for insulting their members, it has every authority to do so. But channels cannot be banned for a day or indefinite period. While the ‘crime’ of media is being taken to court and legislature, the media is preparing to launch fight against blockade which amounted to pre-censorship, breach of contract and violation of Cable TV Network Act.  As in Telangana, neither UP Government nor operators there cannot disconnect the tv channels.

Consumer interests: To protect consumer-interests, law empowered TRAI to specify a package of free-to-air channels, called basic service tier, which shall be offered by every cable operator to the consumers (viewers). The Act mandates the cable operator to offer channels in the basic service tier on a la carte (individual) basis to consumers at a tariff fixed by TRAI.  The Cable operators have to give guarantee for transmission. The Amendment Act 2011 empowered the central government to issue notifications requiring all cable operators to transmit any channel, including free-to-air channels, in an encrypted form through a digital addressable system. 

Right to telecast is surely part of the freedom of speech and expression, which can be reasonably restrained. However this right cannot extend to insult, ridicule and suppress a particular section of people like in Telangana.  States do not have any power to regulate the contents of the tv channels, which is retained only by Central Government. Especially when tv channels have business and political interests, their claims to press freedom to protect democracy does not carry any credibility, but invite regulations or social pressures.