IN DEPTH: The Broadcasting Bill
The Broadcasting Bill drafted secretly, discussed belatedly in the Parliamentary consultative committee, has now been cleared by a Cabinet sub-committee. After objections in the Cabinet, primarily by the CPIs Chaturanan Mishra, a sub-committee of the I&B Minister C.M. Ibrahim, Finance Minister P. Chidambaram, Communications Minister Beni Prasad Verma and Law Minister Ramakant Khalap was set up with a mandate to report back within three weeks. Since these worthies have scarcely changed the draft, any careful observer may well wonder to what extent they applied their minds to this vital subject.
The Bill represents a major deviation from the earlier national consensus against foreign control\ownership of the electronic media, reflected in the Verghese Committee on TV and Radio (1977- 78), the Prasar Bharati Act, 1990, and the National Media Policy, 1996. Major provisions of the Bill violate the entire spirit of the Common Minimum Program. Yet this major policy decision was not discussed in the UFs Steering Committee prior to the original discussion in the Cabinet.
The most shocking feature of the Bill is its
prohibition of public ownership of radio\TV channels (apart from
those already run by Doordarshan and Akashvani), which is
replaced by that of the private sector.
This is justified on two grounds:
On these flimsy grounds, the Bill debars all publicly funded bodies including other Union Ministries like the Human Resource Development Ministry which may like to telecast\broadcast educational material, State governments, municipalities, panchayats, cooperatives, universities, or any agency, from obtaining broadcasting and TV licenses. Public bodies which are either "(e) Governments or local authorities" or "3 (a) a body (other than a local authority) which has in its last financial year received more than half its income from public funds" are debarred. [Part I, 1(e) & 3(a)].
In fact the Supreme Court ruled quite differently. It noted that, "The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights". The Court unequivocally ruled that, "The question whether to permit private broadcasting or not is a matter of policy for the Parliament to decide. If it decides to permit it, it is for the Parliament to decide, subject to what conditions and restrictions should it be permitted. Private broadcasting, even if allowed, should not be left to market forces, in the interest of ensuring that a wide variety of voices enjoy access to it". The Supreme Court even advocated regulation to guard against "the potential danger flowing from the concentration of the right to broadcast\telecast in the hands either of a central agency or of a few affluent broadcasters".[Part I, 6(ii),(iii)].
The Supreme Court logic is therefore quite contrary to that of the Bill. The Court has ruled in favor of public control of the electronic media, against private sector monopolies. Even the right of the private sector to enter into the electronic media was left to Parliament to decide.
The Bills blanket ban on State Governments and local authorities having licensed radio\TV channels militates against the federal principle of State\local authorities\Union Government sharing public broadcast\television facilities. Such an action is clearly contrary to the CMP and the federal basis of the UF.
The drafters of the Bill have made no effort to explain the reversal of policy in allowing foreign equity participation. Reasons for such a major policy shift should at least have been explained. In the Schedule dealing with "Restrictions on the Holding of Licenses" is it laid down that foreign equity not exceeding 25 per cent "in case of (radio) broadcast services" and "foreign equity (not) exceeding 49% in case of non-domestic satellite broadcast services and local delivery services" will be permitted. The drafters must be aware of the universal practice of not allowing substantial foreign equity in domestic radio\TV channels. The USA, European Union, Japan and most countries do not allow such levels of foreign ownership. France prohibits any foreign participation.
Foreign ownership upto 49 per cent in TV channels, would give foreign media virtual control, if shareholdings are dispersed, or if benami shareholdings exist. And if 49% foreign equity is allowed today, 51% and then 74% may be allowed later, as has happened in other sectors. In the advanced capitalist countries there are public broadcasting\TV channels, largely autonomous of Government, which represent the plurality of interest groups and social interests. This Bill because of its exclusive reliance on the private sector, both Indian and foreign, would rule out such public channels, against the earlier national consensus, and all earlier, publicly debated public policy.
Most strikingly, this Bill is quite contrary to consistent Government policy on the print media. The ban on foreign entry in the print media, on which the Cabinet decided as early as 1955, and which the UF Government and its predecessor reiterated, now must be open to question. If foreign media can be permitted into the increasingly influential and lucrative electronic media, how can it be denied in the print media?
The Supreme Court recognized the particular importance of the electronic media: "...the electronic media is the most powerful media both because of its audio visual impact, and its widest reach covering the section of society where the print media does not reach. The right to use airwaves and the content of programs, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed which is a potential danger.."[Para. 6(ii)].
The proposed Broadcast Authority of India is not the "independent autonomous public authority representative of all sections and interests in society to control and regulate the use of airwaves" directed by the Supreme Court. The Authority consists of: (i) one whole time Chairman; (ii) four whole time members; (iii) six part time members; (iv) three ex-officio members: Secretary, Ministry of Information & Broadcasting; Secretary, Dept. of Telecommunication; & Secretary, Dept. of Space. These members will be appointed by the President on the recommendation of a 3 person selection committee including the Chairman of the Rajya Sabha, i.e. the Vice President, who shall chair the committee; the Chairman of the Press Council; and a nominee of the President of India. So, at least two of the three selectors will be represent state interests. The key executive member of the Authority: the Secretary General shall be a Secretary of the Government of India. Through these mechanisms of appointment and executive authority, the Union Government will ensure its control over this Authority.
While the accounts and report of the Authority will be submitted to Parliament, the actual accountability of this body to Parliament or its committees, is not spelt out. In view of the influence the Union Government will have on the Authority, the extensive powers that the Authority has been invested with, the importance of the electronic media, and the extent of foreign and other private sector control of radio\TV, this lack of accountability is likely to have serious consequences.
The restrictions on cross-media holdings are legally ambiguous. Part III of the Bill lays down that, "No proprietor of a newspaper shall be a participant with more than 20% interest in a body corporate which is a holder of a license" under this Act. Similarly, no licensee can hold "more than 20% interest in a body corporate which runs a newspaper". The proprietor is defined as a person who must "control a body which is the proprietor of such a newspaper". This definition of control would permit legal loopholes and exceptions in cases of multiple owners\proprietors, including benami shareholders of newspapers.
Though this draft Broadcasting Bill has yet to be placed before Parliament, it is far too important a matter to be left to the political class alone. The secretive way it has been drafted, the systematic misrepresentation of the Supreme Courts views, the confidential manner of its scrutiny, and above all the inexplicable reversal of the earlier publicly debated national consensus on national ownership of the media, make open public debate on this issue a national imperative.
Kamal Mitra Chenoy (Is an Associate Professor at the School of International Studies JNU, New Delhi)