[Reader-list] WSJ on Broadcasting Services Regulation Bill

[Naeem Mohaiemen]

>From this week's WSJ, apologies if repetition.

-N

THE WALL STREET JOURNAL
September 27, 2007
COMMENTARY

Big Brother
By SHRUTI RAJAGOPALAN
Ms. Rajagopalan is a lawyer based in New Delhi.

NEW DELHI -- When Richard Gere kissed Shilpa Shetty, the star of Britain's
"Big Brother" program last year, India's moral police professed shock, and
many called for media censorship. What they didn't say was that New
Delhi's policy makers were already well on their way to doing just that.

This November, India's parliament will consider the Broadcasting Services
Regulation Bill, the country's most sweeping attempt yet to infringe on
free speech. The proposed law is the result of a Supreme Court decision
that came down in 1995, when the court mediated a dispute over telecasting
rights of a live cricket match. The justices deemed India's airwaves a
scarce resource and "public property" which should not be monopolized by
the government or private broadcasters but regulated for national
interest. It recommended that New Delhi create an independent statutory
body -- an oxymoron in itself -- to act as the custodian of airwaves.

That bill ignores decades of evidence that government control over the
airwaves just doesn't work in a democracy. Britain may have created the
British Broadcasting Service in 1922, ostensibly an independent body to
regulate media, but it was later stripped of that role and the British
media market opened to competition. The United States created the Federal
Communications Act of 1934 to monitor against private monopolies and also
regulate content and coverage in public interest. This relic has also
undergone dilution over the years and given way to the somewhat less
restrictive Telecommunications Act of 1996.

No matter; the Indian Ministry of Information and Broadcasting intends to
replicate their peers' mistakes decades later. The Broadcasting Services
Regulation Bill 2007 sets out a comprehensive policy on broadcasting that
is concerned with both carriage and content. It proposes to set up the
Broadcasting Regulatory Authority of India (BRAI) which will ostensibly be
an independent authority; establish an independent content code; and
develop the system for censorship and certification.

If the bill passes -- which is likely under a left-leaning Congress Party
coalition -- the government's powers will be greatly extended. The
legislation prohibits any person from broadcasting any channel or program
without a license from an authority designated by the government. The
proposed agency isn't really an independent authority and would be run by
bureaucrats handpicked by the government. Thus the government would be
able to arm-twist the media through the BRAI medium of licensing and
registration, which allows it to mandate content as well as impose severe
penalties on unlicensed broadcasters. The bill requires all shows to be
broadcast only if they are in the greatest interest of the general public
-- a judgment that will be made in New Delhi.

Policy makers also propose to free ride off of the profitable parts of the
private sector. The bill makes it mandatory for every cable or satellite
service to provide two government-owned channels: "Doordarshan," the
long-running national government broadcaster, and one regional channel for
the respective state government. The government also proposes to force
private broadcasters to share live telecasting rights of any sporting
event of national importance with the state-owned channels.

Just in case anyone objects to these repressive rules, the bill requires
every channel to register with the BRAI -- which may refuse registration
if it is of the considered opinion that the content of the channel is
likely to "threaten the security and integrity of the State," "threaten
peace and harmony or public order," or "threaten relations with foreign
countries." The central government has also reserved the power to prevent
a broadcast or revoke the license of a broadcaster in case of external
threat or in "exceptional circumstances." In a pluralistic democracy like
India, which has every conceivable kind of moral and religious police,
whose ideas of what's proper would prevail?

The man best positioned to answer these questions is the minister for
information and broadcasting, Priyaranjan Dasmunshi, who is responsible
for this legislation. After the Gere-Shetty kiss was aired, Mr. Dasmunshi
declared that he felt the media had been "irresponsible" for showing the
image many times over, offending sensitivities with "frivolous news"; thus
making a case for stringent regulation of news channels. So would Mr.
Gere's affectionate embrace of Ms. Shetty be deemed an "exceptional
circumstance"?

While the minister's views are cause for alarm, they pale in comparison to
the "content code" drafted by the ministry. The code stipulates, for
example, that broadcasters shall not present the figure of a woman as mere
"sexual objects." Noble as the idea may be, it's scarcely a good reason
for censoring the press, especially when pornographic material is already
banned in its entirety. Similarly, the code prevents broadcasters from
distorting religious symbols or practices in a derogatory manner.

The government has called the code a "roadmap for self regulation" whereby
the broadcasters will follow the guidelines and manage their content
accordingly. But the government's track record in regulating content
doesn't inspire confidence.

This July the government banned an underwear advertisement for being
vulgar and suggestive; oddly enough, no one was wearing underwear or
appearing nude and it only showed a woman doing her husband's laundry. In
January, the Ministry banned AXN, a cable network, for two months for
airing a show called World's Sexiest Commercials. In May, the same policy
makers banned Fashion TV, another cable channel, for a show called
Midnight Hot, on grounds that it violated public decency.

Both shows were aired after 11 p.m. and the channels are considered
mainstream everywhere else in the free world. But Mr. Dasmunshi responded
to criticism of the bans by saying, "If out of 75 complaints we banned
only two channels, why the hue and cry?"

The larger design of this government is to control political free speech.
This legislation, if passed, will come down heavily on channels conducting
"sting operations" to expose corrupt government officials or scams. This
seems ominous given the ban last week on Live India for conducting a
"fake" sting operation exposing an alleged prostitution racket. The
Ministry of Information and Broadcasting banned the channel for a month as
it aired material which "incited violence and contained content against
maintenance of law and order."

Media censorship was seen last during the 1970s, when Indira Gandhi
imposed emergency rule. The suspension of all civil and political rights
soon followed, as well as political censorship. It was the only
dictatorship that modern India has ever witnessed. While this legislation
cannot be compared with the Emergency, the agenda to control free speech
is alarmingly similar.