On 10 November 2023, the Ministry of Information and Broadcasting solicited suggestions/ feedbacks/ comments/ inputs/ views from general public/ stakeholders on the Draft Broadcasting Services (Regulation) Bill of 2023. This submission is being made pursuant to the said call.
A cursory comparison of the Draft Broadcasting Services (Regulation) Bill, 2023 vis-à-vis Press and Registration of Periodical Bills as passed by the Rajya Sabha and the Lok Sabha, Cable Television Networks (Regulation) Act of 1995, Information Technology Act of 2000, Press Council of India Act of 1978 and the Copyright Act of 1957 exposes the serious shortcomings of the Draft Broadcasting Services (Regulation) Bill, 2023 which jeopardize the right to freedom of opinion and expression under Article 19 of the Constitution.
The views/comments and recommendations are given below:
| Serial No | Particulars (clause, Sub-Section, Section) | Views/Comments/Suggestions/Remarks/Recommendations |
| 1 | 4. Requirements for Broadcasters and Broadcasting Network Operators Subsection 4(2) & 4(3) | Section 4(2) of theBroadcasting Services (Regulation) Bill, 2023 prohibits a number of “persons” from registering as a broadcaster or broadcasting network operator. Those prohibited to be registered as a broadcaster or broadcasting network operator include (a) the Central Government, Central Government Departments, Central Government owned companies, Central Government undertakings, Joint ventures of the Central Government and any other entity, and entities solely or primarily funded by the Central Government; (b) State Governments, State Government Departments, State Government owned companies, State Government undertakings, Joint ventures of the State Government and the private sector and entities solely or primarily funded by the State Government; (c) Gram Sabha, Panchayats, Municipal Councils or Municipal Corporations; (d) Public authorities; (e) Political parties registered under the Representation of People Act, 1951 (43 of 1951), etc. Sub-section 3 provides for “transfer their operations, assets, liabilities, obligations and entitlements”. The Press and Registration of Books Act of 1867 and its new proposed incarnation, the Press and Registration of Periodical Bills, 2023 already passed by the Rajya Sabha and Lok Sabha by the same Ministry of Information and Broadcasting of the government of the day allows the political parties to own/run press and periodicals. Furthermore, the Cable Television Networks (Regulation) Act of 1995 did not impose such prohibition. Therefore, a number of State governments have been acting as broadcasters or broadcasting network operators such as the Tamil Nadu government-run Arasu Cable and Kalvi TV, Andhra Pradesh Government’s IPTV venture, the Ministry of Electronics and Information Technology’s Dighishala; Gujarat government’s Bhaskaracharya Institute of Space Applications and Geo-Informatics etc. Even political parties have been running TVs including the CPM run Kairali TV in Kerala. The existence of these broadcasters or broadcasting network operators has not caused any problem till date to warrant any prohibition or concentration of broadcasting services at the hands of only the Union Government of India under the Broadcasting Services (Regulation) Bill, 2023. Misinterpretation of the Supreme Court judgment and Sarkaria Commission Report by the TRAI 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. It is submitted that the recommendation of the TRAI itself is based on selective and/or misinterpretation of the Supreme Court judgment in the matter of Secretary, Ministry of Information & Broadcasting, Vs. Cricket Association of Bengal & Anr [1995 AIR 1236; 1995 SCC (2) 161] and the 1988 report of the Sarkaria Commission on Centre-State relations whose observations are no longer valid in the age of information technology. In its report, “Issues relating to entry of certain entities into Broadcasting and Distribution activities”, the TRAI referred to paragraphs 78, 82, 194, 199 and 201 of the Supreme Court judgment in Secretary, Ministry of Information & Broadcasting, Vs. Cricket Association of Bengal & Anr [1995 AIR 1236; 1995 SCC (2) 161] but failed to refer to Para 204. Para 204 of the judgment 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 and/or the electronic media subject of and in some cases, may even distort the news, views and opinions expressed through the media. The apex Court therefore held that the broadcast media should be placed under the control of public i.e., in the hands of statutory corporation or corporations as implicitly commanded of Article 19(1)(a). Para 204 of the judgment is reproduced below: “204. All the Constitutional Courts whose opinions have been referred to hereinbefore have taken the uniform view that in the interest of ensuring plurality of opinions, views, ideas and ideologies, the broadcasting media cannot be allowed to be under the monopoly of any one – be it the monopoly of Government or an individual, body or Organisation. Government control in effect means the control of the political party or parties in power for the time being. Such control is bound to colour and/or the electronic media subject of and in some cases, may even distort the news, views and opinions expressed through the media. It is not conducive to free expression of contending viewpoints and opinions which is essential for the growth of a healthy democracy. I have said enough hereinbefore in support of the above propositions and we do not think it necessary to repeat the same over again here. I have also mentioned hereinbefore that for ensuring plurality of views, opinions and also to ensure a fair and balanced presentation of news and public issues, the broadcast media should be placed under the control of public, i.e., in the hands of statutory corporation or corporations, as the case may be. This is the implicit command of Article 19(1)(a). I have also stressed the importance of constituting and composing these corporations in such a manner that they ensure impartiality in political, economic and social and other matters touching the public and to ensure plurality of views, opinions and ideas. This again is the implicit command of Article 19(1)(a). This medium should promote the public interest by providing information, knowledge and entertainment of good quality in a balanced way. Radio and Television should serve the role of public educators as well. Indeed, more than one corporation for each media can be provided with a view to provide competition among them (as has been done in France) or for convenience, as the case may be.” The TRAI had also taken a jaundiced view of the recommendations of the Sarkaria Commission which categorically stated “19.2.05 Nevertheless, it cannot be forgotten that it is a political party which controls the Union Executive. Lest there be a temptation to use these powerful media wrongly in the party interest and not necessarily in the national interest, ‘Ground Rules’ of behaviour have to be established and observed meticulously. The need for a watch-dog for both the Union and the States becomes obvious. We shall deal with these aspects in the next section.” While in Para 3.8.3, the TRAI stated that “the Sarkaria Commission has dealt with this issue extensively and recommended against allowing State Governments to have their own broadcasting stations or broadcasting corporations”, the TRAI made no reference to two specific recommendations made by the Sarkaria Commission i.e. “19.8.10 The Inter-Governmental Council recommended to be established under Article 263, may consider whether any relaxation of the existing Ground Rules for political use of the broadcasting system should be allowed, and, if so, under what conditions” and “19.8.11 If a State Government has serious complaints about the use of the media, it can approach the Inter-Governmental Council proposed in Chapter IX.” Be that as it may, these recommendations of the Sarkaria Commission were not implemented and the observations of the Sarkaria Commission made in 1988 before the digital age are no longer valid. There is no doubt that as per Entry No.31 in List I (Union List) of the Seventh Schedule to the Constitution of India relating to “posts and telegraphs, telephones, wireless, broadcasting and other like forms of communication” falls within the jurisdiction of the Central Government for legislation as per Article 246 of the Constitution. The question arises whether the power to legislate includes the right to exclude/deny the State government and other entities to act as broadcasters or network of broadcasters if they complying with terms and conditions set-forth by the Union of India. There are a number of critical issues that ought to be addressed with respect to recommendations drawn from the Supreme Court judgment in the matter of Secretary, Ministry of Information & Broadcasting, Vs. Cricket Association of Bengal & Anr [1995 AIR 1236; 1995 SCC (2) 161] and the 1988 report of the Sarkaria Commission on Centre-State relations as relied upon by the TRAI. The same are highlighted below: First, the question remains whether the Central Government is immune from “political colour” to be bestowed with the sole authority for running broadcasting services? The answer is no. Numerous judgments of the Supreme Court from S R Bomai vs Union of India [1994] to Subhash Desai Versus Principal Secretary, Governor of Maharashtra & Ors [2023] show that the Central government is not immune from “political colour”. Second, does the Prasar Bharti addresses “political colour” by the Union executive? The Prasar Bharti is known to act as the arm of the Government of India, shunting out criticism against the government of the day. Third, the Sarkaria Commission stated that “the need for a watch-dog for both the Union and the States becomes obvious” for proper functioning of the mass media. This has not been complied with and no watchdog for the broadcasting media has been established as on date, akin to the Press Council of India for the print media. Consequently, no watchdog for the broadcasting media has been established. As per Section 12 of the Prasar Bharti Act, the function of the Prasar Bharti is “to organise and conduct public broadcasting services to inform, educate and entertain the public and to ensure a balanced development of broadcasting on radio and television”. Prasar Bharti is not a watchdog but like any under Public Sector Undertaking of the Government of India. Fourth, the opinion expressed by the Sarkaria Commission that the international community had agreed to control the wave lengths and bands on which each country can work and every country has to honour the agreement to transmit within the agreed frequencies as set by the International Telecommunications Union (ITU) no longer holds true. At present, private players such as Starlinks and not International Telecommunications Union determine on providing frequencies whether regarding the request of Ukraine to attack on Russia orprovidingconnectivity to humanitarian aid groups in Gaza. The context has changed and will dramatically change in the coming years. Finally, there is no intelligible or rational classification between print and broadcasting media at a time when most print media also run the broadcasting media using social media intermediaries without registering as entities as per Section 11 of the Draft Regulation relating to “approval for uplinking or downlinking of programmes or channels by Broadcaster”. The Prasar Bharti, which has become akin to India’s erstwhile national aircraft, Air India, cannot be used as the basis for denial of any rights to any of the entities prohibited to be broadcasters especially when political leaders in the country or their relatives own/run many broadcasting channels. Recommendations: The status quo should be maintained and Section 4 of the proposed Bill should be deleted. |
| 2 | 10. Appeals.- | APPELLATE AUTHORITY CANNOT BE THE GOVERNMENT OF INDIA BUT REQUIRE A QUASI-JUDICIAL INSTITUTION LIKE THE PRESS COUNCIL OF INDIA The Sarkaria Commission mindful of a political party which controls the Union Executive and the temptation to use these powerful media wrongly in the party interest and not necessarily in the national interest, called for framing of ‘Ground Rules’ of behaviour and importantly, “the need for a watch-dog for both the Union and the States becomes obvious”. Section 10 of the Broadcasting Services (Regulation) Bill, 2023 provides for appellate authority “against the order of the registering authority for refusing grant of registration, renewal of registration and suspension or revocation of registration to the Appellate Authority”. The appellate authority has not been defined and it is the registration authority of the government of India. This is nothing but registering authority reviewing its own order and a classic case of the Government of India acting as the judge, jury and executioner. Section 8(c)(1) of the Press and Registration of Books Act, 1867 provides for preferring appeal to the Appellate Board i.e. the Press and Registration Appellate Board consisting of a Chairman and another member to be appointed by the Central Government which consists of the Chairman of the Press Council of India (PCI) and another member to be nominated by the Press Council of India from among its members. The current members of the Board are Hon’ble Chairman with Shri Jai Shankar Gupta and Shri Gurinder Singh. Even Section 15(1) of the Press and the Registration of Periodicals Bill, 2023 as passed by the Rajya Sabha and Lok Sabha provides that “there shall be an Appellate Board to be called the Press and Registration Appellate Board consisting of Chairperson, Press Council of India and two members to be nominated by the Press Council of India, from among its members” to consider complaint of “any person aggrieved by an order of refusal to issue the certificate of registration under sub-section (5) of section 7, or cancellation or suspension of registration under section 11, or order of imposition of penalty under section 14”. Therefore, Section 10 of the Broadcasting Services (Regulation) Bill, 2023 ought to be amended to provide for a Board exercising the powers of a civil court headed by a retired judge of the Supreme Court. The consideration of appeals requires application of judicial mind and not only technical mind. Ultimately, refusal of the grant of registration, renewal of registration and suspension or revocation of registration shall be subject to adjudication by the Constitutional Courts. Therefore, if proper appellate authority with the powers of a civil court headed by a retired judge of the Supreme Court is established, it will only reduce court cases. Recommendation: Section 10 of the Broadcasting Services (Regulation) Bill, 2023 should be amended to provide for a Board with powers of a civil court like the Press Council of India headed by a retired judge of the Supreme Court. |
| 3 | 19. Programme Code and Advertising | NO CODE FOR MEDIA UNDER THE PCI ACT, 1978 OR THE CABLE TELEVISION NETWORKS (REGULATION) ACT, 1995 Section 19 of the Broadcasting Services (Regulation) Bill, 2023 provides for Programme Code and Advertising Code which shall have to be mandatorily complied with as per the First Schedule or face penalty and prosecution. It is pertinent to mention that no such Code was provided under the Press Council of India Act of 1978, the Cable Television Networks (Regulation) Act of 1995 or the Press and Registration of Periodical Bills, 2023 as passed by the Rajya Sabha and Lok Sabha. If there is no restriction for the press and periodicals, there cannot be such separate code for (a) Broadcasters and Cable and Satellite Broadcasting Networks, (b) Radio Broadcasting Networks, (c) Internet Broadcasting Networks; (d) Terrestrial Broadcasting Networks etc exercising the same freedom of opinion and expression guaranteed under Article 19 of the constitution of India. Once again, there is no intelligible or rational classification between print and broadcasting media at a time when most print media also run the broadcasting media through social media intermediaries. Furthermore, if any entity violates any other law while exercising the right to freedom of speech and expression under Article 19 of the Constitution, the law shall take its own course. There is no need for Programme Code and Advertising Code. The imposition of penalty for contraventions of Programme Code and Advertisement Code under Section 35 of the Bill and the power to prohibit transmission of programme or operation of broadcaster or broadcasting network of Section 36 of the Bill can jeopardize the right to freedom of expression and opinion itself. Recommendation: Section 19 of the Broadcasting Services (Regulation) Bill, 2023 should be deleted. |
| 4 | 20. News and Current Affairs Programmes | NEWS AND CURRENT AFFAIRS PROGRAMME: IT IS INDIA’S NEW CENSORSHIP CODE! Section 20 of the Broadcasting Services (Regulation) Bill, 2023 provides that any person who broadcasts news and current affairs programs through an online paper, news portal, website, social media intermediary, or other similar medium but excluding publishers of newspapers and replica e-papers of such newspapers, as part of a systematic business, professional, or commercial activity and the OTT broadcasting network shall adhere to the Programme Code and Advertisement Code referred to in Section 19. This effectively brings every “person” including individual social media users like YouTubers for compliance with the Programme Code and Advertise Code. It equates individual YouTubers and industrialists owning and/or running news broadcast for compliance with the Programme Code and Advertisement Code. Furthermore, no such Code is provided under the Press Council of India Act of 1978, the Cable Television Networks (Regulation) Act of 1995 or the Press and Registration of Periodical Bills as passed by the Rajya Sabha and Lok Sabha. In fact, Section 20 of the Broadcasting Services (Regulation) Bill, 2023 specifically excludes “publishers of newspapers and replica e-papers of such newspapers” which broadcast news. If “publishers of newspapers and replica e-papers of such newspapers, as part of a systematic business, professional, or commercial activity” can be exempted from the Code, there is no justification to impose the Codes on those who broadcast through online paper, news portal, website, social media intermediary or other similar medium. Once again, there is no intelligible or rational classification between print and broadcasting media at a time when most print media also broadcast using social media intermediaries or their own mediums. Furthermore, if any law of the land is violated while exercising the right to freedom speech and expression, the law shall take its own course. There is no need for specific code. Recommendation: Section 20 of the Broadcasting Services (Regulation) Bill, 2023 should be deleted. |
| 5 | 24.Regulatory structure (2) Self-certification by the Content Evaluation Committee (CEC) | CONTENT EVALUATION COMMITTEE: LEGALISING & INSTITUTIONALISING SELF-CENSORSHIP Section 24(2)(a) of the Broadcasting Services (Regulation) Bill, 2023 provides that “Every broadcaster or broadcasting network operator shall constitute one or more Content Evaluation Committee“ (CEC), consisting of members who are eminent individuals representing different social groups, including but not limited to women, child welfare, scheduled castes, scheduled tribes, minorities etc., and with such other relevant criteria as may be prescribed”. The Content Evaluation Committee should not exist if Programme Code and Advertisement under Section 19 are removed. In any case, the Content Evaluation Committee shall be a self-censorship unit given its mandatory compliance. As per the “FIRST SCHEDULE: Quantum of penalties for different contraventions and repeated contraventions”, approval by the Content Evaluation Committee and the display of the approval by the Content Evaluation Committee are mandatory. Furthermore, “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 250 lakh for the subsequent contravention within three years. Similarly, broadcasting programmes without certification from CEC is punishable with Rs 100 lakhs for the first contravention and Rs 500 lakhs for the subsequent contravention within 3 years. In addition, not displaying CEC Certificate in proper manner is punishable with Rs 20 lakhs for the first contravention and Rs 100 lakhs for the subsequent contravention. The CEC will not only kill creativity but impose self censorship. The CEC will destroy the right to freedom of opinion and expression itself. Recommendation: The sections relating to Content Evaluation should be deleted. |
| 6 | 27.Broadcast Advisory Council and 28.Functions of the Broadcast Advisory Council | Section 27 of the Broadcasting Services (Regulation) Bill, 2023 provides for the establishment of the Broadcast Advisory Council while Section 28 deals with functions of the Broadcast Advisory Council. The functions of the Broadcast Advisory Council are advisory and contrary to the recommendations of the Sarkaria Commission for a watch-dog for both the Union and the States. The issues dealt by the Broadcasting Services (Regulation) Bill, 2023 relate to the freedom of opinion and expression as guaranteed under Article 19 of the Constitution of India. Under Section 15(1) of the PCI Act, the Press Council of India for the purpose of performing its functions or holding any inquiry under the Act had been vested powers given to “a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908)”. Furthermore, under Sub-Section (3) of the PCI Act, every inquiry held by the Council shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860). If the PCI 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 merely have an advisory board regarding the freedom of opinion and expression exercised through broadcasting/ communications including online paper, news portal, website, social media intermediary, or other similar medium. Ultimately, the issues relate to the freedom of opinion and expression and it requires adjudication and application of judicial mind. These are not mere technical issues. Further, while the officers of the PCI are designated as public servants under Section 24 of the PCI Act, no such designation has been provided to the members of the Broadcast Advisory Council. Recommendation: Section 27 of the Broadcasting Services (Regulation) Bill, 2023 should be amended (1) to establish a Broadcasting Council with powers of to “a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) and further that every inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860) and (2) the Broadcasting Council to be headed by a former justice of the Supreme Court. |
| 7 | 31. Power to seize and confiscate equipment | ONLY SPECIFIC INSTRUMENTS MUST BE SEIZED & CONFISTCATED AS PROVIDED THE CABLE TELEVISION (REGULATION) ACT OF 1995 Section 31 of theBroadcasting Services (Regulation) Bill, 2023 relating to “power to seize and confiscate equipment” provides for seizure of all equipments by any authorised officer if s/he has reason to believe that provisions under this Act, or rules or Guidelines are being contravened by the operator of broadcasting network or broadcasting services specified in the Second Schedule. This is contrary to Section 11of the Cable Television Networks (Regulation) Act, 1995 relating to power to seize equipment used for operating cable television network. Section 11 had provided that “the seizure of equipment in case of contravention of sections 5 and 6 shall be limited 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 theBroadcasting Services (Regulation) Bill, 2023 ought to be rejected. The seizure of all equipments has the potential to close down an operator of broadcasting network or broadcasting services. Recommendation: Amend section 31 of the Broadcasting Services (Regulation) Bill, 2023 to provide “(1) If any officer, not below the rank of a Group ‘A’ officer of the Central Government authorised in this behalf by the Government (hereinafter referred to as the authorised officer), has reason to believe that the provisions of this Action have been or are being contravened by any, cable operator, he may seize the specific equipment used by the operator of broadcasting network or broadcasting services specified in the Second Schedule”. |
| 8. | 33. Punishment for contravention of provisions of this Act THIRD SCHEDULE: OFFENCES AND PUNISHMENTS 2. The quantum of fine and term of imprisonment for offences under this Act, Rules or Guidelines made thereunder: – | PUNISHMENT TOO HARSH The quantum of punishment with respect to the violations of Programme Code and Advertisement code under the Act, Rules or Guidelines under the First Schedule of the Broadcasting Services (Regulation) Bill, 2023 is imprisonment up to two years for first offence and up to five years for subsequent offence in addition to fines with respect of offences of (i) operating Broadcasting Networks or providing broadcasting services under this Act, Rules or Guidelines without Registration or after expiry of validity of the registration; (ii) providing Services other than broadcasting services requiring registration under this Act, Rules or Guidelines without Registration or after expiry of validity of the registration (iii) obtaining Registration by an ineligible person by making misrepresentation before the Registering Authority and (iv) furnishing incorrect information or false affidavit in connection to any proceeding under this Act, Rules or Guidelines made thereunder. The punishment for imprisonment up to two years for first offence and up to five years for subsequent offence is absolutely harsh if such offence is committed by the press and periodicals under the Press and Registration of Books Act, 1867. Section 15(4) of the Press and Registration of Books Act, 1867 provides that “whoever shall edit, print or publish any newspaper, without conforming to the rules hereinbefore laid down, or whoever shall edit, print or publish, or shall cause to be edited, printed or published, any newspaper, knowing that the said rules have not been observed with respect to that news paper, shall on conviction before a Magistrate, be punished with fine not exceeding two thousand rupees, or imprisonment for a term not exceeding six months or both”, and “where an offence is committed in relation to a newspaper under sub-section (1), the Magistrate may, in addition to the punishment imposed under the said sub-section, also cancel the declaration in respect of the newspaper”. Section 14(4) of the Press and the Registration of Periodicals Bill, 2023 passed by the Rajya Sabha and Lok Sabha states that “whoever fails to cease publication of periodical even after six months of issue of a direction under sub-section (2), or publishes any other periodical without obtaining a certificate of registration under section 7, shall be punishable with imprisonment for a term which may extend to six months”. Therefore, there is no rational for imposing harsher punishment committed for the same offence. This cannot be treated as heinous offence/non-compoundable offence to be punished with five years imprisonment specially when if any other law is violated, the law shall take its own course. Recommendation: The quantum of penalty with respect to the violation of programme code and Advertisement code under the Act, Rules or Guidelines” under the First Schedule of the Broadcasting Services (Regulation) Bill, 2023 should be amended to provide for imprisonment after conviction by a Magistrate for a term not exceeding six months or upto two years for subsequent conviction and fine of Rs five lakhs or both. |
| 9 | 34. Penalty for contravention of provisions other than Programme code and Advertisement Code, of this Act FIRST SCHEDULE: Quantum of penalties for different contraventions and repeated contraventions. 2. The quantum of penalty for contravention of provisions other than those related to programme code and Advertisement code, under this Act, Rules or Guidelines: – 3. The quantum of penalty with respect to the violation of programme code and Advertisement code under the Act, Rules or Guidelines: – | QUANTUM OF PENALTIES: INDUSTRIALISTS AND INDIVIDUAL SOCIAL MEDIA USERS ARE TO PAY SAME PENALTY AS INDIA REWRITES DEFAMATION LAWS! Section 34 of the of the Broadcasting Services (Regulation) Bill, 2023 read with the First Schedule of the Broadcasting Services (Regulation) Bill, 2023 specify the quantum of penalties for different contraventions and repeated contraventions without any distinction between persons i.e. an individual who is a citizen of India vis-à-vis an association of persons or a body of individuals, whether incorporated or not, whose members are citizens of India; a company and a limited liability partnership as defined in section 3 of the Limited Liability Partnership Act, 2008 (6 of 2009). It identifies persons as (i) micro with turnover during the financial year previous to the one in which contravention is made upto Rs. 5 Crore or Investment as on last date of financial year previous to the one in which contravention is made upto Rs. 1 Crore; (ii) small with turnover during the financial year previous to the one in which contravention is made more than Rs. 5 to 50 Crore or investment as on last date of financial year previous to the one in which contravention is made More than Rs. 1 Crore to 10 crore (iii) Medium with turnover during the financial year previous to the one in which contravention is made More than Rs. 50 Crore to 250 crore or investment as on last date of financial year previous to the one in which contravention is made More than Rs. 10 Crore to 50 Crore; and (iv) major with turnover during the financial year previous to the one in which contravention is made More than Rs. 250 Crore or investment as on last date of financial year previous to the one in which contravention is made more than Rs. 50 crore. What is more draconian is the proviso that “if the Books of Accounts are not available for the relevant period for any reason then the decision of the Authorised officer for determination of category based material available on record shall be final” and the “maximum penalty for un-registered persons under this Act, Rules or Guidelines shall be 100%”. This is nothing but targeting of the social media broadcasters of news and current affairs. The chilling effect becomes obvious if Section 2(z) relating to definition of “person” and Section 20 relating a person “who broadcasts news and current affairs programs through online paper, news portal, website, social media intermediary, or other similar medium” of the Broadcasting Services (Regulation) Bill, 2023 are read together. Section 20 of the Broadcasting Services (Regulation) Bill, 2023 provides that any person who broadcasts news and current affairs programs through an online paper, news portal, website, social media intermediary, or other similar medium but excluding publishers of newspapers and replica e-papers of such newspapers, as part of a systematic business, professional, or commercial activity and the OTT broadcasting network shall adhere to the Programme Code and Advertisement code referred to in Section 19. This implies that individual citizen of India who uses social media intermediary too shall have to comply with the Programme and Advertisement Codes. As per the First Schedule relating to the quantum of penalty for contravention of provisions other than those related to programme code and advertisement code, the minimum penalty is Rs 10 lakhs for the first contravention and Rs 1 (one) lakh per day for continued violation of any order or direction issued under the Act, Rules or Guidelines and Rs 5 (five akh) per day for continued violation of any order or direction issued under the Act, Rules or Guidelines and Rs 5 (five) lakh per day for subsequent Contravention within 3 years. For example, as per “2. The quantum of penalty for contravention of provisions other than those related to programme code and Advertisement code, under this Act, Rules or Guidelines” under the First Schedule, the penalty for infringement of copyright by a person is 100 lakh for the first contravention irrespective of whether the contravention is of the value of Rs 100 lakh or not; and Rs 500 lakh for subsequent contravention within 3 years! This is contrary to the Copyright Act of 1957 which imposes maximum penalty of Rs two lakh on second and subsequent convictions under Section 63A. Furthermore, this also tantamounts to re-writing civil defamation suit to grant because Rs 50 lakh fine is imposed without even assessing whether the value of copyright violation is of Rs 50 lakh. To file a suit, necessary ad valorem court fees have to be paid. The suits for infringement of copyright are not new such as India Today Vs News Laundry. This proviso amounts to killing innovation and freedom of speech and expression. As it makes no distinction among the “persons” broadcasting news and current affairs, the quantum of penalty for contravention of provisions other than those related to programme code and advertisement code, under the Act, Rules or Guidelines are quite harsh. Indian State is arming itself to financially destroy the critics in social media broadcasting news and current affairs through libel. The Broadcasting Services (Regulation) Bill, 2023 is more draconian than the libel laws in Singapore. Recommendation: The First Schedule should be deleted/removed. |
| 10 | 43. Power to make rules | Under Section 43 of the of the Broadcasting Services (Regulation) Bill, 2023 “(1) The Central Government may, by notification, make rules for carrying out the provisions of this Act”. It is pertinent to mention that Section 25 of the Press Council of India Act provided that “when the Council has been established, no such rules shall be made without consulting the Council.” Furthermore, as per Section 26 of the PCI Act, the PCI has been empowered to make regulations not inconsistent with the Act thereof and the rules made thereunder. It is essential that the bodies established under this Act are given the power to make regulations not inconsistent with the Act thereof and the rules made thereunder and further that no rule shall be made without consulting the bodies. |
