The Communication Convergence bill envisages a high power Commission which will administer all the provisions of the envisaged Act. Already the Bill and consequently the proposed Commission has started receiving brickbats from the media questioning its ability to discharge the envisaged functions including “Cultural Policing”. Should the Commission be subjected to the barrage of attacks that it is receiving now?. Will this continue even after the Commission is functional? What will be the respectability of the institution represented by the Commission in the light of such criticisms? Will the Commission come down on the criticisms once it assumes powers so that the criticism can be silenced? If so , will it by its own actions, validate the criticisms now being levied on the Bill? .. are some of the issues that need to be debated. If there is any solution that can avoid an open confrontation of the society and the Commission, this is the time to discuss it. 

Some quick thoughts on this subject are contained in this article.

Powers of Cultural Policing:

One of the provisions of the Convergence Bill that has attracted adverse attention of the media is the power given to the Communication Commission under Sec 20 and 21 to “Specify Programme Code and Standards”.
 

Under Sec 20 (viii), the bill states that the Communication Commission will have the power to  formulate and lay down programme and advertising codes in respect of content application services.

Under Sec 20 (X), the Bill also provides power to the Commission to curtail “harmful” and “Illegal” content on the Internet and other Communication services.

The Section 21 further elaborates the function of the Commission in this regard, stating as follows:
 

Codes and Standards

21.  The Commission shall by regulations from time to time specify programme codes and standards which may include inter alia practices  –

(i) to ensure that nothing is contained in any programme which is Prejudicial to the interests of the Sovereignty and Integrity of India, the Security of State, Friendly relations with foreign States,  Public order or which may constitute Contempt of Court, Defamation or Incitement to an offence. 
 
(ii) to ensure Fairness and Impartiality in presentation of news and other programmes.  

(iii) to ensure emphasis on Promotion of Indian culture,  values of National Integration, Religious and Communal Harmony,  and a Scientific temper. 

(iv) to ensure in all programmes Decency in Portrayal of Women, and Restraint in Portrayal of Violence and Sexual conduct; 

(v) to enhance General Standards of Good Taste, Decency and Morality.

 A quick glance of the sections clearly indicate that the powers are omnibus. First of all they cover not only the broadcast media but also the Internet Media. Secondly, it doesn't stop at expressing intention to protect the Country against external threats or even internal disturbances. It  talks of “Promoting” such vague concepts such as “Scientific Temper”, “Good taste”, “Friendly relations with Foreign States”, ”Morality” etc. It also covers “Defamation”, “Contempt of Court”, “Obscenity”, ”Depiction of Violence” etc.

One may recall that the Information Technology Act-2000 was more moderate in its approach to the powers to intercept communication. It provided under section 69 that the Controller could intercept communication and decode them in the interest of the Sovereignty and Integrity of the State.  There were punishments envisaged for non cooperation in this effort. The judgment of what is finally punishable was left to the judicial process that could follow.
 
In the  Communication Bill, the Commission has not only been given powers to define what is punishable but also has been given the powers to adjudicate on “Defamation” and “Contempt of Court” which would have normally been tried in a Court of law. 

In these respects and many more, it appears that the Government has looked at the Commission as a “Quasi Judicial Body.

These provisions have therefore been branded as “Cultural Policing” and “Backdoor Censorship”, “Draconian” etc. The private sector TV media appears to be unhappy that this kind of provision is not presently imposed on the Print Media and hence is a discriminatory provision against the TV media.

Since appeals against the  orders of the Commission lie only with the Appellate Tribunal and then to Supreme Court, there is a logic in considering the Commission as judicially equivalent to a “High Court”.  

The acceptability of the Commission and the respect it can command as a “Quasi judicial body” of a standing equivalent to a High Court will depend to a large extent on the actual members who will be finally appointed for the Commission.  We were disappointed with the Composition of the Cyber Regulatory Advisory Committee under the Information Technology Act and going by the approach adopted there, we can presume that the Commission would be constituted  predominantly with an objective to act as a “Quasi Judicial Body.

Is Communication Commission only a Court?

However it must be remembered that the Commission is not simply a “Court”. The Commission  will have many other functions to discharge such as development of the  “Programme Code” which media persons are now strongly objecting to. 

It also has to manage the responsibility of “Facilitating Convergence at the Provider’s and User’s levels”, Protecting “Consumer Interest” etc. These  functions are of Commercial and Technical  nature. The Commission will therefore have the responsibility of both “Regulation” and “Facilitation”. 

Unfortunately, Regulation and Facilitation  require visions and approaches which could be conflicting. While “Regulation” will adopt a  “Suspect and Restrict” approach, “Facilitation” needs “Trust and Encourage”. The two functions cannot easily be handled by one body and one person. One cannot make the Chief Justice of India a successful  CEO of a Consumer Electronic Company.  

Yet another area where the Commission will have divergent aspects to manage is in respect of protecting Consumer interests. This is a function of a “Public Spirited” “Freedom Respecting” person and not a function that would come naturally to a “Regulator”.

Just as SEBI cannot itself be an “Investor’s Association”, RBI cannot be the head of a “NBFC association” and an Employer cannot be the head of an “Employee’s Association”, the Commission cannot effectively discharge the responsibilities of Consumer Protection.

The  functions of “Developing code for  Media Content”, “Promoting Convergence of the Industry”, and “Protecting Consumer Interests” etc., are “Non Judicial Functions” and if an “Excellent Judge” is placed in charge of such responsibility, he could prove himself to be an “Inefficient Marketing, Content Creation and Consumer Representative” .
 

The Solution:

The functions of “Developing”  a code for the broadcasters is best done through ”Self Regulation”. However since the Commercial interests are likely to corrupt and blunt any “Self Regulating Efforts”, considering the criticality particularly of the TV media which can reach to masses and whip up sentiments across the Country within seconds, a “Reasonable Right to Regulate” must be held by the Government. This would require a participation of the industry representatives and Consumers in development and management of any such codes along with the representatives of the regulator.

The Bill sorts out this type of dilemma in respect of  “Spectrum Management Decisions” by resorting to the set up of a separate “Spectrum Committee”. The Commission with Judicial expertise will therefore be spared from entering into diplomatic negotiations with International Frequency management bodies to manage what they are not equipped to manage.

A Similar approach is required to be adopted by the Commission in respect of “Content Control”, “Promotion of Convergence Industry” and “Protection of Consumer Interests".

It is therefore necessary for the Government to consider three Committees similar to “Spectrum Committee” who will have independent responsibilities to discharge the larger objectives of the Bill in ”Monitoring Content ”, “Promoting  Industry” and “Protecting Consumer Interests”. They should be comprising of appropriate persons from the industry and the public..

In such an approach, the “Super Regulator” which the Commission is, will be able to “Delegate”  “Non Judicial powers” to appropriate persons and restrict itself to the discharge of “Judicial Powers”. Such a body would be respected for its “Judicial Expertise” rather than ridiculed for “Technical Ignorance” and “Mis-representation of  Consumer interests.” Or” Un acceptable Cultural Policing”.

Naavi
March 5, 2001

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