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
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
(ii) to ensure Fairness and Impartiality in presentation of news and
(iii) to ensure emphasis on Promotion of Indian culture, values
of National Integration, Religious and Communal Harmony, and a Scientific
(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
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
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”
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 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
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”.
March 5, 2001
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