NEW DELHI, 12 Jan: The India Freedom of Expression Initiative (IFEI) – a platform of action of NGOs – in a submission on Friday to the union information & broadcasting ministry termed the Broadcasting Regulation Services Bill, 2023 (BRSB, 2023) “India’s censorship code to silence social media users by applying the programme and advertisement code to any person, whether industrialist owner of broadcast media or individual social media user, who broadcasts news and current affairs, including through social media.”
“Even though the Press & Registration of Books Act of 1867 and its new proposed incarnation, the Press & Registration of Periodical Bills, 2023, passed by the Rajya Sabha on 3 August, 2023 allow the state governments, political parties and other stakeholders to own/run press and periodicals, Section 4(2) of the Broadcasting Services (Regulation) Bill, 2023 prohibits them from registering as a broadcaster or broadcasting network operator. The operation as broadcasters or broadcasting network operators by the state governments like Tamil Nadu and Andhra Pradesh or political parties like the CPM under the Cable Television Networks (Regulation) Act of 1995 has not caused any problem till date to warrant any prohibition or concentration of broadcasting services at the hands of only the union government under the BRSB, 2023,” IFEI coordinator Suhas Chakma said in a release.
“The prohibition of certain entities from entering into broadcasting services under Section 4 of the Broadcasting Services (Regulation) Bill, 2023 will turn the Prasar Bharti into India’s ‘Pravda’, based on the recommendations made by the Telecom Regulatory Authority of India (TRAI) in its report, ‘Issues relating to entry of certain entities into broadcasting and distribution activities’ in November 2008. The TRAI report was flawed and had made no reference to Para 204 of the apex court judgment that specifically highlighted that government control in effect means the control of the political party or parties in power for the time being, and that such control is bound to colour the electronic media subject and, in some cases, even distort the news, views and opinions expressed through electronic media.”
The TRAI had also failed to stress on the recommendation of the Sarkaria Commission about “the need for a watchdog for both the union and the states” and therefore, for the broadcast media, a watchdog akin to the Press Council of India (PCI) has not been established as on date,” Chakma said.
The BSRB, 2023 does not provide for appropriate appellate authority. Though Section 8(c)(1) of the Press & Registration of Books Act, 1867 and Section 15(1) of the Press & Registration of Periodicals Bill, 2023 as passed by the Rajya Sabha on 3 August, 2023 provide for an appellate board consisting of chairperson, PCI and two members to be nominated by the PCI, Section 10 of the BSRB, 2023 provides no such appellate authority.
“The refusal of the grant of registration, renewal of registration and suspension or revocation of registration is a case for application of judicial mind and requires an appellate body headed by a retired judge of the Supreme Court. Under the BSRB, 2023 the appellate authority is effectively the same governmental authority and it is a classic case of the government of India reviewing its own order and acting as the judge, jury, and executioner,” Chakma further said.
Section 19 of the BSRB, 2023 provides that programme code and advertising code shall have to be mandatorily complied with or face massive penalties as per the first schedule of the bill. This jeopardises the right to freedom of expression itself, he said.
“No such programme code and advertisement code are provided under the Press Council of India Act of 1978, the Cable Television Networks (Regulation) Act of 1995 or the Press & Registration of Periodical Bills, 2023. If there is no restriction for the press and periodicals, there cannot be such separate code exercising the same freedom of opinion and expression guaranteed under Article 19 of the Constitution of India. In fact, Section 20 of the BSRB, 2023 specifically excludes publishers of newspapers and replica e-papers of such newspapers which broadcast news from applying the codes,” the IFEI said.
Section 20 of the BSRB, 2023 is the most draconian provision, as it brings any person, whether an industrialist owner of a broadcast network or individual social media user, who broadcasts news and current affairs programmes through an online paper, news portal, website, social media intermediary, or other similar medium under the ambit of the programme code and advertisement code, it said.
“Self-certification by the Content Evaluation Committee (CEC) under Section 24 of the BSRB 2023 is nothing but an institutionalised self-censorship mechanism, given its mandatory compliance. As per the first schedule, approval by the CEC and display of the approval by the CEC are mandatory, and not intimating the central government, or/and not publicising the names, credentials and other details of members of CEC is punishable with Rs 50 lakhs for the first contravention and Rs 2.5 crore for the subsequent contravention within three years. Similarly, broadcasting programmes without certification from CEC is punishable with Rs 1 crore for the first contravention and Rs 5 crore for the subsequent contravention within three years.
“In addition, not displaying CEC certificate in a proper manner is punishable with Rs 20 lakhs for the first contravention and Rs 1 crore for subsequent contravention,” the IFEI said, and called for “amendment of the Broadcast Advisory Council under Section 27 of the BSRB, 2023,” stating that “an adjudicating, not advisory, body is what is required.”
Under Section 15(1) of the PCI Act, the PCI has been given the powers of civil court for performing its functions or holding any inquiry, and each proceeding before the PCI is deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.
“If the PCI is mandated to preserve the freedom of the press and to maintain and improve the standards of newspapers and news agencies in India can be given the powers of a civil court, there is no reason to have an advisory board regarding the freedom of opinion and expression exercised through broadcasting/communications medium,” said Chakma.
The IFEI lamented the powers to seize and confiscate all instruments under Section 31 of the BSRB, 2023. It stated that Section 11 of the Cable Television Networks (Regulation) Act, 1995 had limited seizure and confiscation “to the programming service provided on the channel generated at the level of the cable operator.”
“This expansion of the seizure of all equipments under the BSRB, 2023 has the potential to close down an operator of broadcasting network or broadcasting services and also violate the right to privacy,” he said.
Calling the quantum of punishment of imprisonment up to two years for first offence and up to five years for subsequent offence, in addition to fines under the BSRB, 2023, the IFEI stated that the Press & Registration of Books Act, 1867 and the Press & Registration of Periodicals Bill, 2023 passed by the Rajya Sabha on 3 August, 2023 provides for punishment for a term which may extend to six months.
It also accused the Centre of “rewriting libel laws by making libel under the BSRB, 2023 more draconian than in Singapore.”
“The Copyright Act of 1957 imposes maximum penalty of Rs 2 lakhs on second and subsequent convictions under Section 63A, but under the first schedule of the BSRB, 2023 the fine for copyright violations is Rs 50 lakhs, without assessing whether the value of copyright violation is of Rs 50 lakhs.
“There is no intelligible or rational classification between print and broadcasting media exercising the same freedom of opinion and expression guaranteed under Article 19 of the Constitution of India to jeapordise the freedom of expression itself under the BSRB, 2023, Chakma said. (The submission can be accessed at https://ifei.in/submission-on-the-draft-broadcasting-regulation-service-bill-2023/latest/)
