The Information and Broadcasting Ministry’s direction requiring NDTV India to go off air for a day because of its coverage of the Pathankot terror attack in January has generated a storm of controversy, even though the government said on Monday that it was putting the decision on hold. Supporters of the government have accused their opponents of irresponsibly sacrificing national security at the altar of freedom of speech, and have pointed to Rule 6(1)(p) of the Cable TV Programme Code, which sensibly proscribes live coverage of anti-terrorist operations. Supporters of NDTV India, on the other hand, have protested that the channel’s broadcast took place long after the operations were over, that the footage was already available in the public domain through Google Maps, and that the government’s singling out of NDTV India, which was just one among many channels broadcasting similar footage, smacks of both arbitrariness and vindictiveness against an entity perceived to be “anti-establishment”.
This conversation is essential. Democracy thrives upon intense scrutiny of governmental action, especially action that infringes upon basic liberties such as freedom of speech and freedom of the press. “National security” must mark the beginning of the debate, not the end of it. And ultimately, the issue might be taken to court, for an independent judiciary to hear both sides and to decide whether, all things considered, the government’s decision was necessary and proportionate. All this exemplifies a healthy, functioning democracy, committed to security, individual rights, and the rule of law, without allowing one to swallow the others.
Wide berth for the state
However, this conversation remains incomplete. NDTV’s location at the heart of the national capital, and its primary channel’s broadcasts being in English, the language of economic and political power, has cast a particularly acute spotlight upon the government’s actions. The truth is that Central and State governments, past and present, have regularly forced TV channels to “go off air” for flimsy, and often politically motivated, reasons. The fault lies with India’s broadcast laws, which allow the government sweeping powers of censorship with negligible attendant costs, and in the perennial clash between the freedom of speech and the state’s regulatory power, almost entirely subordinating the former to the latter.
The law that governs cable broadcasts is the Cable Television Networks (Regulation) Act of 1995. Section 5 of this Act prohibits any cable TV transmission that is not “in conformity with the prescribed programme code”. The Programme Code contains a bouquet of blissfully vague, boundlessly manipulable, and entirely subjective terms. Programmes may not “offend against good taste or decency”, or present “half-truths”, or “criticise” any individual, or reflect a “snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups”. Such exquisitely vague language not only permits, but positively invites censorship and abuse of power. Not only that, it goes far beyond Article 19(2) of the Constitution, which allows the state to limit the freedom of speech only through “reasonable restrictions” in the interests of specific, narrow-drawn categories such as “public order”, “defamation”, or the “security of the State”.
The Programme Code constitutes a serious infringement of Article 19(1)(a) of the Constitution, and is evidently unconstitutional. Unfortunately, however, the prospects of having it struck down by the Supreme Court look bleak. In 1970, the court upheld the Censor Board guidelines, which were equally vague when it came to film certification. For example, the guidelines prohibited “sensuous” postures and “dual meaning words as obviously cater to the baser instincts”. However, the Supreme Court was too caught up in its desire to ensure that Indian film-goers were exposed to good, “wholesome” cinema, and perfunctorily dismissed the constitutional challenge to both the Cinematograph Act and the guidelines. It is yet to show any inclination to revisit that ruling. Furthermore, in the intervening years, even the court’s speech-protective judgments have been based more upon the belief that films running into hot water with the censors — such as Bandit Queen (1994) — serve socially useful purposes, rather than a conviction that the rights of artists and viewers to choose what kind of film they want to create, or watch, is paramount. The Programme Code is likely to survive as long as this judicial attitude continues to predominate.
If the provisions of the Programme Code are destructive of the freedom of speech, then the procedure contemplated by the Cable Television Act creates problems of a different — yet equally severe — kind. Section 19 of the Act authorises the government to prohibit cable operators from transmitting programmes or channels that are not in conformity with the Programme Code. The Act effectively vests the power of banning television with the government, without any judicial oversight. Once the prohibitory order has been passed, the burden is then upon the TV channel or cable operator to approach the courts and attempt to have it invalidated.
Apart from the substantive content of speech that a legal regime might aim to restrict, the regulatory procedure that it establishes can end up causing far greater damage to free expression. Regulatory procedure determines how and where the costs and burdens of censorship are located. For instance, if you think that I have defamed you, then it is your prerogative to file a case against me, and satisfy an independent court that I have violated the law. The burden of proceeding against me — the speaker — lies upon you, the person who considers herself to have been harmed by my speech. The Cable Television Act, however, reverses this burden by giving a carte blanche to the government to ban channels or programmes which, in its subjective assessment, have violated the Programme Code.
The most well-intentioned of governments tend to be wary of criticism, prone to over-regulation, and (understandably) sensitive about the possibility of public disorder. Governments whose intentions are less noble — and there have been such governments — can be paranoid, malicious, and unforgiving towards political opponents. By shifting the costs of censorship entirely from the government to the speaker, who must move the courts to get a ban overturned, the Cable Television Networks (Regulation) Act rewards state overreach. This is not only a problem with cable television. The Code of Criminal Procedure allows the state to ban books in a similar manner, and the Cinematograph Act contains an even more stringent regulatory regime for films.
Need for judicial vetting
There is an easy way to remedy this. The Cable Television Act (and similar laws in other domains) should require that if the government wishes to ban something, it must first convince an independent court, in adversarial proceedings, that its request is justified. The court ought to carefully scrutinise the government’s arguments, refuse to accord it undue deference, and grant its request only if it is convinced that a ban is both necessary and proportionate in the circumstances. In this case, the debate that is now raging in the public sphere over the correctness of the government’s action in taking NDTV India off air would first be had within the courtroom. There may, of course, be emergencies where time is of the essence, and the government must act. In such circumstances, it must be nonetheless be called upon to justify itself in court after the fact, and compensate speakers if it is found that it acted wrongly.
No reasonable person would argue — in the words of the American Supreme Court in the famous Pentagon Papers case — that the freedom of expression extends to “publishing troop movements in wartime”. However, reasonable citizens should also be wary of vague and ill-defined laws that confer censorial powers upon the state without any effective oversight. If one might damage national security, the other will certainly lead to tyranny. And what good are secure borders without the security of the basic rights that transform us from subjects to citizens?
Gautam Bhatia is a Delhi-based lawyer.