What’s Right or Wrong With the Convergence Bill?

In the recent seminar held at Chennai to discuss the Communication Convergence Bill draft, many media passed highly critical comments on the draft. They held that the draft Bill is “Draconian” and should not be passed in its present form.

The principle objection of the media stalwarts was that the bill is an “Indirect Censorship” of the private sector broadcast media and infringes on the “Freedom of Speech” guaranteed in the constitution.

 In the light of such severe comments and recognizing the fact that this is not the first draft of the proposed legislation, let’s look at the provisions that have agitated the minds of the media persons and identify further action points.

All Legislations Infringe on Freedom :

It is to be accepted that all “Legislations” by definition represent some curbs on the freedom of some members of the society. The purpose of law is to ensure that there is an equitable distribution of scarce resources in the society. If legislation does not “Regulate”, there will not be “Freedom for All” but only “Freedom for the Privileged”. It is one of the fundamental duties of any Government that society needs to be regulated if it has to remain “Civilized”.

The Indian private sector TV media has shown in the past that they are politically as partisan as a Government media could be in respect of a ruling party. Channels such as Fashion TV and Star World are  obscene as an Indian average citizen would view.

 Before the advent of private sector TV broadcasters in India, Indian common man relied more on BBC (Radio) for authentic information about controversial happenings in India. However, in recent days, BBC TV’s coverage of Kashmir, particularly its coverage on a non-existent military excess using clippings from Chechnaya has proved that BBC is also a partisan media.  

In fact the Indian TV viewer is today aware that the truth always lies in between two rival media reports. Public know that due to Political or Commercial considerations, there is rarely a media that cannot  be manipulated and is not manipulated.  There are many non-partisan reporters and journalists but they are often used by the media owners to project one particular view point only. After all, we all know what happened during the 1975 emergency in India when barring a few publications such as “Indian Express” the others “Crawled when they were asked to Bend”. 

In such a scenario, the visually powerful media such as the TV Broadcasting  cannot escape being brought under some kind of regulation. Hence the question of not having regulations has no place for discussion.

What is  relevant however is that the regulation has to be “Fair”, “Reasonable” and “Safe guarded against possible misuse”. One way by which the “Saftey Catch” can be built into legislation is to make the administrators accountable to judiciary. But such an effort will work only if “Judiciary” is itself “Fair” and “Efficient”. For the time being, we can accept that the judiciary in India is by far “Fair”. However no body can vouch for its efficiency. 
The inefficiency of the judiciary comes from two aspects. In “Technology” related legal aspects covered by acts such as the proposed Convergence Act , the Judges may not be able to understand the “technological intricacies” and can be led to give erroneous judgments.  The examples are the recent Information technology Act related cases such as Copyright infringement case against Radiant Software, Obscenity case against Indian Times and Rediff.com as well as the Go2nextjob.com case on ISP’s rights.

The other bane of Indian judiciary is the inherent delays in the judicial process, which makes a mockery of justice. 

What to Look For in a Legislation:

In view of what is stated above, in any legislation what we need to look forward are those aspects of a proposed legislation that try to make it “Fair”, “Reasonable” and "Amenable for Easy Justice".

We also need to see if the legislation is “Citizen Centric” or “Regulator Centric” or “Business Centric”.

naavi.org has always held that any legislation exists for the “People” and therefore every legislation has to be “Citizen Centric”. At the same time, since as already stated, we have to concede that every legislation is an attempt to balance the conflicting interests of different stake holders in the society there is always a necessity to accommodate some regulations which may restrict the rights of the citizens or try to promote business interests. 

We must also remember that even amongst the Citizens, there will be widely differing views on various issues  and hence the legislation has to take a path, which is of acceptance to the maximum number of people in the community. If this is not done, the risk is that the legislation will not be promoting voluntary compliance and there will be organized attempt to defeat the purpose of the legislation, creating “Criminals” who are not “Criminals” by  attitude but become so since the regulation is impractical.

 A legislation that does not recognize this possibility will breed “Cyber Terrorists” and make the work of law enforcement people more difficult.

The attempt to publish the legislation in draft form and seek public opinion is an attempt by the Government to understand the will of the society so that the legislation can be as close to the aspirations of the people as practically possible. Hence we need to appreciate the Government in this respect and provide  balanced  suggestions to improve the legislation where required rather than denouncing it . Let’ not forget that there is a perception in the political circles that this Bill will change the power equations between three ministries namely the Communication, Telecom and Information Technology. Some leeway may have to be given for meeting such apprehensions. We shall try to analyse the Communication Convergence Bill under this perspective.

What’s Right With the Bill?

The objectives of the Bill have been specified in Appendix I as well as Chapter IV of the draft bill.

The basic objectives as stated are to facilitate  convergence of Communication both at the provider’s level as well as the user’s level. It recognizes that the technology makes it possible to provide and receive different services from common facilities or equipments.

 Chapter IV  talks about the objectives of the commission,  and several interesting objectives have been listed here. 

They are:

 1.Promotion of Competition and regulation of market dominance.
 2.Affordable Cost and Coverage of Rural areas
 3.Increasing access to information for the public
 4.Promotion of Quality, Plurality, Diversity, and Choice of services 
 5.Setting up of a modern communication infrastructure
 6.Protection of Defense and Security Interests.
7.Promotion of Investments in new technologies, maximization of 
communication facilities
 8.Promotion of Equitable , Non Descriminatory Interconnection across Networks
 9.Transparent Licensing Criteria
 10.Open Licensing policy
 11.Maintenance of Level playing field for all operators including existing 
12. Serving Consumer interest.

The objectives are fairly well drafted and the intention to bring about a convergence between conflicting interests of all segments including the Government, Business and the Consumer are well stated. 

 Is this convergence carried through the other features of  the regulations? Let’s look at the detailed provisions to check whether thee lofty objectives are addressed optimally in the provisions.

The Control Center:

The main control center for the Convergence legislation lies with the Communication Commission of India (CCI) as defined in  Chapter III. This will be a body corporate  with perpetual succession with power to hold and dispose property. The Commission will consist of 9 members including the Chairman and ex-officio member namely the Spectrum Manager. 

The Chairperson and not less than 5 members of the commission will be permanent members. The members would be appointed by Central Government, by notification from amongst persons from various specialized fields such as broadcasting, telecommunications, information technology, finance, management and law. A person who is in Government has to retire or resign to take up this appointment and shall not have any financial or other interests  as is likely to affect prejudicially his functions.
The permanent members will hold office for 5 years.  A member (Other than the Chairman) who doesn’t attend three consecutive meetings shall be deemed to have vacated his office.

The above provisions provide for representation of different specialists, reasonably  insulates them from Government influence so that the Commission can be administered impartially. 

It is only in case of Spectrum management that the Government has retained direct control since the Spectrum Management Committee will have a cabinet secretary as its Chairman. The Spectrum Manager who will be a member secretary of the Commission will be appointed by the Government and nothing prevents a “Professional of Impeccable International Standing “ being appointed for the purpose.

Considering the importance of regulating the spectrum allocation  as a part of  international understanding, one cannot disagree with the need for a “Spectrum Management Committee “ in addition to the Commission.

This committee will probably have “Technical Experts” while the Commission may have Judicial and Business Management Experts.

A lot of criticism has already been made on this part of the draft bill stating that the “Commission” will be a puppet in the hands of the Government. The basis for such comment has been Section 23 of the Draft bill (Chapter V) which states that 

Directives by the Central Government.

23. (1) In exercising its licensing and regulatory functions the Commission shall follow such policy directives as may be communicated to it in writing by the Central Government from time to time.  Such directives may include the route and the mode in which any services are to be licensed, whether by way of auction or in any other form. 

(2) In framing the policy directives the Central Government shall take into account the objectives and guiding principles governing the administration of the Act. 

(3)  The decision of the Central Government whether a question is one of policy or not shall be final.

(4) The Commission may request the Central Government by means of a written communication for a review of any policy directive, and if any such request is made the Central Government will respond in writing to such request with all expeditious despatch.

The above provisions have to be read together with the powers of Judiciary conferred on the Commission under Section 14 of the draft Bill and the sections 8 and 10 of the draft protecting the members from arbitrary dismissal and harassment from the Government.

If therefore the Commission consists of “Men Of Steel” “Who donot crawl when asked to Bend”, the Commission can work independently of the Government influence. On the other hand, the Sec 23 will address ugly situations when the Commission may try to assume for itself arrogatory powers and take  up a confrontationist attitude with the Government. The experience of TRAI may be behind the framers who drafted this clause.

It may be noted that the Powers of the Government over the Commission is restricted to “Policy” matters and not operational matters. The first option to determine what is a “Policy Matter” of course lies with the Government but is subject to judicial review if required. Hence this may be treated as an “Enabling Provision” and not an attempt at  “Backdoor Control of the Media”.

It must be admitted however that at this point of time we are commenting on the provisions of the draft Bill without imputing any prejudice to the Government in its future actions.  We may not rule out the possibility of some members of the Commission towing the political line of the Government and the Commission not being “Citizen Centric”. We feel that this should be criticized at the appropriate time when and if it happens rather than pulling down the proposed legislation on a speculative fear. 

Even though in respect of the formation of the “Cyber Regulations Committee”, and in defining the powers for the “Adjudicating officer” under the Information Technology Act, the Government did disappoint the Citizens, and a similar approach to the CCB cannot be ruled out, it would still be a speculation and hence we need to moderate our criticism if any.

One reason for us to be more optimistic this time is the fact that one of the problems that had been pointed out with reference to the Information Technology Act namely the need to have a “Multi Member Appellate Tribunal” has been implemented in this Bill showing some responsiveness to public opinion. Let’s hope that such wisdom will continue in the appointment of persons to the Commission.

In the mean time, experts in the industry can start identifying persons whom they would like to see in the Commission. Even after the formation of the Commission, the society can form a “Shadow Commission” with a private initiative to act as a pressure group on Policy matters. naavi.org had made similar suggestions with regard to the Information Technology Act also (Please refer to the Concept of Netizen’s Forum for Credible Cyber Regulations”.). 

It is such voluntary Citizen watchdogs that are necessary to prevent misuse of the provisions of the Bill. Such bodies can also take the responsibility for representing Consumer interest if required.

Otherwise the provisions of the draft bill regarding the Composition of the Communication Commission appear to be reasonable and do not require major modifications.

Watch out  for the Continuation….

February 27, 2001

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