[This piece was originally published in The Wire on 8 September 2015]
It is tempting to think of the Ministry of Information and Broadcasting’s attack on Sathiyam TV solely as another authoritarian exhibition of Prime Minister Narendra Modi’s government’s intolerance of criticism and dissent. It certainly is. But it is also another manifestation of the Indian state’s paranoia of the medium of film and television, and consequently, the irrational controlling impulse of the law.
Sathiyam TV’s transgressions
Sathiyam’s transgressions began more than a year ago, on 9 May 2014, when it broadcast a preacher saying of an unnamed person: “Oh Lord! Remove this satanic person from the world!” The preacher also allegedly claimed this “dreadful person” was threatening Christianity. This, the government reticently claims, “appeared to be targeting a political leader”, referring presumably to Modi, to “potentially give rise to a communally sensitive situation and incite the public to violent tendencies.”
The government was also offended by a “senior journalist” who, on the same day, participated in a non-religious news discussion to allegedly claim Modi “engineered crowds at his rallies” and used “his oratorical skills to make people believe his false statements”. According to the government, this was defamatory and “appeared to malign and slander the Prime Minister which was repugnant to (his) esteemed office”.
For these two incidents, Sathiyam was served a show-cause notice on 16 December 2014 which it responded to the next day, denying the government’s claims. Sathiyam was heard in-person by a committee of bureaucrats. But, on 12 May 2015, the government handed Sathiyam an official “Warning” which appears to be unsupported by law. Sathiyam moved the Delhi High Court to challenge this Warning.
As Sathiyam sought judicial protection, the government issued the channel a second warning on 26 August 2016 citing three more objectionable news broadcasts of: a child being subjected to cruelty by a traditional healer in Assam [caution: disturbing images]; a gun murder inside a government hospital in Madhya Pradesh [disturbing visuals]; and, a self-immolating man rushing the dais at a BJP rally in Telangana [disturbing visuals]. All three news items were carried by other news channels and websites.
Most news providers use multiple media to transmit their content and hence suffer complex and confusing regulation. Cable television is one such medium, so is the Internet; both media swiftly evolve to follow technological change. As the law struggles to keep up, governmental anxiety at the inability to perfectly control this vast field of speech and expression frequently expresses itself through acts of overreach and censorship.
In the newly-liberalized media landscape of the early 1990s, cable television sprang up in a legal vacuum. Doordarshan, the sole broadcaster, flourished in the Centre’s constitutionally-sanctioned monopoly of broadcasting which was only broken by the Supreme Court in 1995. The same year, Parliament enacted the Cable Television Networks (Regulation) Act, 1995 (“Cable TV Act”) to create a licence regime to control cable television channels. The Cable TV Act is supplemented by the Cable Television Network Rules, 1994 (“Cable Rules”).
The state’s disquiet with communications technology is a recurring motif in modern Indian history. When the first telegraph line was laid in India, the colonial state was quick to recognize its potential for transmitting subversive speech and responded with strict controls. The fourth iteration of the telegraph law represents the colonial government’s perfection of the architecture of control. That law is the Indian Telegraph Act, 1885, which continues to dominate communications governance in India today including, since 2004, broadcasting.
Vague and arbitrary law
The Cable TV Act requires cable news channels such as Sathiyam to obey a list of restrictions on content that is contained in the Cable Rules (“Programme Code“). Failure to conform to the Programme Code can result in seizure of equipment and imprisonment; but, more importantly, creates the momentum necessary to invoke broad powers of censorship to ban a programme, channel, or even the cable operator. But the Programme Code is littered with vague phrases and undefined terms that can mean anything the government wants them to mean.
In its first Warning, the government claims Sathiyam violated four rules in the Programme Code. These include rule 6(1)(c) which bans visuals or words “which promote communal attitudes”; rule 6(1)(d) which bans “deliberate, false and suggestive innuendos and half-truths”; rule 6(1)(e) which bans anything “which promotes anti-national attitudes”; and, rule 6(1)(i) which bans anything that “criticises, maligns or slanders any…person or…groups, segments of social, public and moral life of the country” (sic).
The rest of the Programme Code is no less imprecise. It proscribes content that “offends against good taste” and “reflects a slandering, ironical and snobbish attitude” against communities. On the face of it, several provisions of the Programme Code travel beyond the permissible restrictions on free speech listed in Article 19(2) of the Constitution; consequently, they may be unconstitutional. The fiasco of implementing the vague provisions of the erstwhile section 66A of the Information Technology Act, 2000 is a recent reminder of the dangers presented by poorly-drafted censorship law, which is why it was struck down by the Supreme Court for infringing the right to free speech. The Programme Code is an older creation, it has simply evaded scrutiny for two decades.
The arbitrariness of the Programme Code is amplified manifold by the authorities responsible for interpreting and implementing it. An Inter-Ministerial Committee of bureaucrats, supposedly a recommendatory body, interprets the Programme Code before the government takes action against channels. This is an executive power of censorship that must survive legal and constitutional scrutiny, but has never been subjected to it. Curiously, the courts have shied away from a proper analysis of the Programme Code and the Inter-Ministerial Committee.
In 2011, a Single Judge of the Delhi High Court in the Star India case (2011) was asked to examine the legitimacy of the Inter-Ministerial Committee as well as four separate clauses of the Programme Code including rule 6(1)(i), which has been invoked against Sathiyam. But the Single Judge neatly sidestepped the issues. This feat of judicial adroitness was made possible by the crass indecency of the content in question, which appeared to permit reasonable restrictions. Since the show clearly attracted at least one ground of legitimate censorship, the Single Judge saw no cause to examine the other provisions of the Programme Code or even the composition of the Inter-Ministerial Committee.
This judicial restraint has proved detrimental. In May 2013, another Single Judge of the Delhi High Court, who was asked by Comedy Central to adjudge the validity of the Inter-Ministerial Committee’s decision-making process, relied on Star India (2011) to uphold the government’s actions. The channel’s appeal to the Supreme Court is currently pending. If the Supreme Court decides to examine the validity of the Inter-Ministerial Committee, the Delhi High Court may put Sathiyam’s petition aside to await legal clarity.
As it happens, in the Shreya Singhal case (2015) that struck down section 66A of the Information Technology Act, the Supreme Court has an excellent precedent to follow to demand clarity and precision from the Programme Code, perhaps even strike it down, and extract due process from the government. On the accusation of defaming the Prime Minister, probably the only clearly stated objection by the government, the Supreme Court’s past law is clear: generally, speech directed at the non-personal acts of public servants cannot be defamatory.
Censorship by blunt force
Beyond the Inter-Ministerial Committee’s advisories and warnings, the Cable TV Act contains two broad powers of censorship. The first empowerment in section 19 enables a government official to ban any programme or channel if it fails to comply with the Programme Code or, “if it is likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquility.”
The second empowerment is much wider. Section 20 of the Cable TV Act permits the Central Government to ban an entire cable television operator, as opposed to a single channel or programmes within channels, if it “thinks it necessary or expedient so to do in public interest”. No reasons need to be given and no grounds need to be considered. Such a blunt use of force creates an overwhelming power of censorship. It is not a coincidence that section 20 resembles some provisions of nineteenth-century telegraph laws, which were designed to enable the colonial state to control the flow of information to its native subjects.
A manual for television bans
Film and television have always attracted political attention and state censorship. In 1970, Justice Hidayatullah of the Supreme Court explained why: “[T]he treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture…The motion picture is able to stir up emotions more deeply than any other product of art.”
Within this historical narrative of censorship, television regulation is relatively new. Past governments have also been quick to threaten censorship for attacking incumbent prime ministers. There seems to be a pan-governmental consensus that senior political leaders ought to be beyond reproach, irrespective of their words and deeds.
But on what grounds could the state justify these absurd bans? Lord Atkins’ celebrated war-time dissent in Liversidge (1941), which quotes Lewis Carroll, offers an unlikely answer:
“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’”