Bleeping out your Freedom? Broadcast Regulation for General Entertainment Channels

The post that follows is a Guest Post by Nivedita Saksena, a Fourth Year student at NUJS.

The censorship of content on Indian General Entertainment Channels (‘GECs’) has been the subject of much discussion and even ridicule recently, with a spate of orders and warnings (see here and here) being passed by regulatory authorities against television channels for broadcasting content that did not match up to standards. The television channels too, in turn, have resorted to self-censorship, which has resulted in many shows being reduced to incoherent and unfunny versions of themselves. Comedy Central, a television channel dedicated to (as the name suggests) telecasting comedic content, could afford to poke fun at this practice before it too came under the scanner of the authorities, and was recently temporarily pulled off the air.

This post analyses the process through which content on GECs is regulated. Some problems that have arisen in this process will be highlighted through a discussion of the Comedy Central order. These include the existence of conflicting regulatory mechanisms and the subjectivity of the standards that are applied while passing these orders.

How Your Favourite Shows Are Regulated

Given the failure of Parliament to establish a central authority to regulate broadcasting in the country, televised content is currently governed by the Cable Television Networks (Regulation) Act, 1995 (‘CTNRA’). Under Section 20 of this Act, the Central Government is given the power to prohibit the operation of a cable television network in the public interest on certain grounds (the sovereignty or integrity of India, the security of India, friendly relations of India with any foreign state, public order, decency or morality). It may also impose these restrictions if it considers that a programme shown was not in conformity with the Program Code contained in Section 5 (read with Rule 6 of the Cable Television Networks Rules, 1994 (‘CTN Rules’)). It has also been given certain powers under the Uplinking Guidelines and Downlinking Guidelines to refuse to grant licenses if compliance with the Program Code is not ensured.

To implement these provisions, an Inter-Ministerial Committee (‘IMC’) chaired by the Additional Secretary of the Ministry of Information and Broadcasting (‘the Ministry’) and composed of representatives from various other government ministries has been set up. The IMC can only make recommendations in relation to decisions taken by the Ministry, which usually issues show cause notices, warnings, advisories or might ask the channel to scroll an apology. Occasionally, a channel might be temporarily or permanently taken off the air, depending on the gravity of the violation. Monitoring is carried out through the Electronic Media Monitoring Centre, which records up to 300 channels 24X7 to spot violations and preserve records of the same. Other channels are not directly monitored, but the Ministry may take cognizance if any violations are reported.

Additionally, the Indian Broadcasting Federation has also set up a mechanism for self-regulation through the Broadcasting Content Complaints Council (‘BCCC’) which addresses complaints through a two-tier process. It is guided by the Content Code and Certification Rules, 2011.

The Comedy Central Order

In June 2012, the Ministry issued a Show Cause Notice (‘SCN’) to the channel Comedy Central with respect to two programmes broadcast by it: ‘Comedy Central Presents’ and ‘Popcorn TV’. It stated that these shows violated Rules 6(1)(a) [offence against good taste and decency], 6(1)(d) [obscene, defamatory material, innuendos and half-truths], 6(1)(k) [denigration of women], 6(1)(o) [content unsuited for unrestricted public exhibition] and 6(5) [telecast timings for content unsuitable for child viewers] of the CTN Rules.

In its response, the channel stated that a self-regulatory mechanism was already in place and that it was the correct forum to address these concerns. They had accordingly forwarded a copy of the SCN to the BCCC for its consideration and the Ministry should raise any further concerns with the BCCC itself. The BCCC, after examining the episodes, was of the opinion that its content was objectionable and that the channel must be careful about airing similar content in the future. However, these violations were found to be the result of a genuine operational error and given the written assurance of the channel to be more careful in the future, they did not recommend any punitive action.

However, the IMC also simultaneously took up the matter. It determined that the channel had violated the provisions mentioned in the SCN and recommended that the transmission of the channel should not be permitted for 10 days. An order to this effect was subsequently passed by the Ministry in May 2013.

Issues Arising Due to Parallel Regulatory Mechanisms

The existence of two parallel regulatory mechanisms (BCCC and IMC) gives rise to some confusion with respect to the procedure for complaint redressal and the hierarchy of orders/directives passed by them. This issue also arose with the Comedy Central Order, and has been discussed below.

Viacom 18 Media Pvt. Ltd., which owns Comedy Central, challenged this order before the Delhi High Court. They raised two main contentions. First, they argued that it was mandatory for the Ministry to consult the BCCC before passing such an order. For this, it relied on the decision of the Delhi High Court in Indraprastha People v. Union of India where it was held that the Ministry would have to treat the decisions of the BCCC as ‘the foundation to take appropriate action and pass necessary directions as also orders against the offender’ given that they would otherwise lack the requisite statutory authority to be legally implementable. In this case, since the BCCC had not recommended a penalty, the same could not be unilaterally imposed by the Ministry. Second, they argued that the quantum of punishment imposed was disproportionate to the alleged violation.

A single judge of the Delhi High Court dismissed the petition, stating that under Clause 10.2 of the Uplinking Policy Guidelines, consultation with the BCCC was mandatory only to the extent of determining whether a violation of the Program Code had taken place. Once a violation had been established, the Ministry could determine the quantum of punishment on its own. In this instance, the question of a conflict between the findings of the IMC and the BCCC did not arise since the latter had also concluded that the impugned content was objectionable. As a result of the decision, the IMC can now unilaterally decide the quantum of punishment, and the order cannot be set aside for a lack of consultation with the BCCC. A reading of this order suggests that if the BCCC were to find that any show was not objectionable, and a conflict between the findings of the two bodies as to a violation was to arise, it would not be possible for the Ministry to take any action in this regard, except under section 20(1) of the CTNRA.

The quantum of punishment was considered appropriate considering that fact that under the Uplinking Guidelines, the Ministry ordinarily has powers to ban a channel for 30 days for the first violation.

The Court also examined the decision in Star India Pvt. Ltd. v. Union of India, wherein a warning had been issued to the petitioners with respect to the show ‘Sach ka Saamna’. It observed that in this case, since the Court had upheld the government action (that had been taken without consulting the BCCC), it had impliedly made such a consultation a non-mandatory requirement. However, in Star India, the Court had clearly stated that such a consultation would not have been possible as the BCCC had not been constituted yet. In future cases, however, the BCCC was to be the first forum to be approached as it was a broad-based expert body, as opposed to the IMC which was a body composed only of government bureaucrats. The BCCC may further approach the Ministry for appropriate legal action in case of non-compliance with its directives.

This ban was later stayed by a division bench of the High Court on an assurance that the impugned content will not be telecast in the future.

Subjectivity of the Findings

This case also highlights the issue of subjectivity with respect to the content which is the subject matter of such orders. The court itself acknowledges this problem, and attempts to draw a distinction between content that was ‘ex facie vulgar and obscene’ and content where ‘more than one views [sic] may be possible with respect to their nature’. It opines that if the content falls in the former category, failure to consult with the BCCC would not vitiate a penalty, and it would also be possible for the court to pass an order to restrict the telecast of such content. But for content in the latter category, examination by an ‘independent broad-based body’ should be necessary. But the question still remains: who determines whether a show was ex facie vulgar or if multiple opinions were possible with respect to it?

If one were to examine the impugned content in this case itself, this problem becomes very apparent. According to the court, it fell in the ‘ex facie vulgar and obscene’ category. But the first video (from ‘Comedy Central Presents’), for example, would only seem vulgar if it was seen in isolation from its context. Some familiarity with the work of the comedian Jon Lajoie would demonstrate that he often uses parody in his comedy, as has clearly been employed here. Further, even though the second video (from ‘Popcorn TV’) may be crass, it is not graphic in nature. It does not portray real women, but only a ludicrous disproportionate blow-up doll. The subjects of the prank are aware of its nature at all times.

The Comedy Central order, then, is our latest reminder for the need to ensure transparency and non-arbitrariness in Indian broadcasting regulation.

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