September 17, 2021

Public Interest and Judicial Trends in Broadcasting: An Indian Perspective

A parliamentary act was established in 1997 by Prasar Bharati, the Indian public service broadcaster. He runs the Doordarshan (DD) and All India Radio (AIR) national television and radio networks. It is administered by the Prasar Bharati board, which is tasked with fulfilling the broadcaster’s statutory mandate of informing, educating and entertaining the public while promoting ideas of national integration.

Prasar Bharati is charged with providing content that addresses India’s opportunities-deprived population’s human development needs. A major part of its programming therefore includes education , health, agriculture, women and so on.

However, in recent years DD ‘s share of commercial entertainment has risen because of the need for publicity revenues. Most DD contents are outsourced, while the most in-house AIR produces.

The radios and TV weapons of Prasar Bharati are photographic. AIR meets 99.2% of the 1,3 billion inhabitants of the country. DD has a possible coverage of 90% of its population with its 1,416 terrestrial transmitters. The lacklustre programming, which is largely due to the dropping number of listeners and viewers, is plaguing the two divisions of public broadcasters. The 2014 study, which was funded by the government, shows that DD’s viewership was down to just 8 percent, with poor rural households mostly moving to satellite television.

The only occasions that a large-scale occurrence, such as cricket matches or the iconic monthly radio address of the prime minister, Mann Ki Baat, is transmitted by DD and AIR. However, in remote areas, where FM signals do not penetrate enough, AIR scores over private radio matches.

Whereas the legislation allows the public broadcaster complete autonomy, the Board requires the permission of the Minister of Information and Broadcasting on subjects such as development ventures, recruiting, development posts and assets sales or mortgages. This has also created frictions in relation to alleged unequal interference between the Board and government. Additional concerns have been raised, including the Board of Directors being political appointees, and the DD and AIR top bosses being senior bureaucrats.

Rules of Cable Television

The Indian government was unprepared for the sudden arrival of television and mobile networks in the early nineties. Initially, the DoT replied with new rules aimed at the new networks, requesting that all satellite equipment consumers and distributors be given special operating licences. The commercial delivery of programmes downloaded from satellites was explicitly forbidden to consumers and dealers. Users had to undertake to avoid using their equipment to create non-authorized networks in order to receive these licences.

Cable providers in various high courts have unsuccessfully challenged the government’s action against cable television networks. Nevertheless, the development of these networks, particularly in urban areas, continued. A Committee was formed by the government to advise censors to cover up all cable network programmes. It also proposed that direct transmission of programmes received from satellites could be avoided by cable networks. However, these recommendations were not adopted by the Government.

Shiv Cable v State of Rajasthan

Shiv Cable TV System v. State of Radyastan tested cable networks’ reality. The case emerged from the order from the District Government to compel the local police to stop the cable TV networks because they did not have the licences needed to operate the cable. The operators involved questioned the Rajasthan High order of the district administration

Court because there was no legislation forcing them to receive their network licences. They claimed that the actions of the district government violated their constitutional right to conduct business and company. The state administration said to the high court that the cable companies had to receive telegraph licences the Wireless Telegraphy Act to legally operate their networks.

The High Court agreed with the government’s arguments. It explained that cable networks typically comprise two elements:

1) A dish antenna to receive programmes transmitted by satellites.

2) A cable network to physically distribute these programmes to subscribers.

Since the cable antenna would transmit transient images from satellites of fixed and moving objects, the cable antenna was a wireless telecast system under the Wireless Telegraphy Act. It concluded that the dish antenna required a wireless permit for service unless it was protected by an exception. The Court held that cables and lines within a cable network were known as The ‘telegraph line’ under the Telegraph Act and the cable operator had to obtain legal licences to stream satellite programmes from their dish antennas and to transmit them to their customers through their networks.

In 1994 , the government issued this decision which provides the legal basis for the regulation of cable networks. The declaration was subsequently adopted by Parliament and approved under the Act of 1995 on Cable Networks. In 2003, this statute was amended.

Enable cable subscribers to receive premium channels using conditional access schemes. The New Telecom Policy of the government in 1999 was aimed at getting the cable industry closer to the telecom services sector. Cable operators and fixed and wireless licencees were known as providers of access.

Cable providers were able to have final miles of connexions, Shifted facilities in their respective service areas and one-way entertainment services. Cable operators were permitted to interconnect directly with and share assets with other service providers in their service area. The government has agreed not to encourage cable providers to talk in two directions as well as theirs. Set product package. However, the legislation required cable operators to receive a separate fixed licence.

The Rules prohibit advertisements that

• Are wholly or mainly of a religious or political nature or directed towards any religious or political end 36

• Contain references that hurt religious sentiments

• Contain references that are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or supernatural property or quality, which is difficult of being proved

• Contain pictures and audible matter of the advertisement that are excessively loud

• Endanger the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner

• Contain indecent, vulgar, suggestive, repulsive or offensive themes or treatment

• Contain advertisements that violate the standards of practice for advertising agencies as approved by the Advertising Agencies Association of India, Bombay, from time to time.

Information Technology Act 2000

The IT Act was introduced in 2000 to deal with a variety of concerns resulting from the growing usage of the Internet in commercial transactions and to incorporate this new technology into the law. Although the Act did not plan to control the broadcast sector, the quality of the broadcasting service would be affected Providers utilise the Internet for the transfer of content.

In addition, the information technology legislation has gained significance in the broadcast sector with an growing number of broadcasters using websites for telecast content.

Section 67 of the IT Act, which deals with “publication of obscene information through electronic means,” provides for “Punishing of any content that is laciest or which appeals to the primitive or if its purpose tends to deprave and corrupt through published media in an electronic format; “with imprisonment of up to ten years and a fine of up to two lakh rupees.

This material restriction is identical to the requirements of the Indian Penal Code and the Hicklin test adopted by Indian courts. How this clause is enforced in practise remains to be seen. Significantly, the proposed Broadcast Bill 2007 broadly describes “broadcasting,” such that internet media can be included. “Anyone who administers and operates a multi-system operator” is specified in the Act. Cable network to offer cable television to a variety of customers, including telecommunications and other value-added services, And Internet. “And Internet.”

The 1868 English case R v. Hicklin or the Hicklin test which defined obscenity as matter which had the tendency:“to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall. … it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of most impure and libidinous character”.

According to the Indian Supreme Court, there are 3 aspects to the obscenity test:

– the material is offensive to decency and modesty and has the effect of depraving and corrupting

– having regard to community mores, the text is without a preponderant social purpose or profit

– the material is not redeemed by artistic merit or literary defence.

The Court has thus moved away from the primary focus Hicklin on the effect of depraving and corrupting, and has added that obscenity also includes concerns of decency and modesty. A piece of work, would thus be offensive if it involved treating sex in a way that appealed to ‘the carnal sides of human nature’ or had such a tendency. The Court held that such treatment of sex was offensive to modesty and decency, ‘as judged by national standards, and considered likely to pander to lascivious, prurient, or sexually precocious minds.’

Author Details: Pragya Jaishwal (Symbiosis Law School, Noida)


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