[Published in The Wire on 12 November 2016]

The blackout order against NDTV India has refocused public attention on the government’s anachronistic power to censor television channels. The power has been used many times by many governments but never so forcefully against a major Indian news channel. It may have been a step too far.

There is a difference between the content of speech and the manner of its carriage. Content refers to words, carriage to the medium by which the words are transmitted. Freedom of speech covers both content and carriage. But depending on the medium of its transmission – television, radio, and so on – speech is differently regulated. Cable television is a particularly heavily-regulated medium. A brief background is necessary to understand why.

Government monopoly

Free speech threatens authoritarian governments. In colonised India, the government not only controlled content, it completely dominated carriage through its exclusive monopoly over all broadcasting media. That monopoly derives from mid-nineteenth century colonial laws to regulate telegraphs. The same monopoly manifests today by an arcane licence raj. No broadcasting can take place without multiple licences.

The state’s stranglehold over the content of speech was broken when the Constitution recognised the right to free speech. But the government jealously guarded its monopoly over carriage by banning everyone except itself from television and radio broadcasting. Without a medium to transmit ideas, the right to free speech was diminished.

In 1952, broadcasting minister B.V. Keskar purged radio of film music because he thought it was too vulgar. During the Emergency, Indira Gandhi abused the government’s monopoly to ceaselessly broadcast propaganda. To avoid such capriciousness, there was a proposal to create an autonomous broadcaster. Successive Congress governments stymied that proposal for two decades before Prasar Bharti was brought into force in 1997.

The rise of cable

In the 1990s, private cable television threatened the government’s broadcasting monopoly and offered people alternate carriageways of speech. Unwilling to cede control, the government banned cable television, a flat-footed response which failed miserably. Cable television proliferated in a legal grey area until 1995 when the Supreme Court declared that private broadcasting was constitutionally protected.

Reacting to the state’s loss of control over broadcasting, Parliament enacted the Cable Television Act in 1995. It gave the government vast powers of censorship. A district-level officer now has the power to ban a channel. The Centre has even broader powers: it can ban not just a channel but the cable operator itself.

The Programme Code

The Act forced all channels to obey the Programme Code – a laundry list of censorship grounds contained in the Cable Rules which do not need Parliament’s approval. But the code is vague and imprecise. It permits censorship if a programme “offends against good taste,” criticises friendly countries, or promotes “anti-national attitudes.” It bans innuendo. It prohibits content that “reflects a slandering, ironical and snobbish attitude.” It bans content that “criticises…any individual” or “maligns…[the] public and moral life of the country” (sic).

The Programme Code is an astonishingly badly drafted law. Many of its provisions are clearly unconstitutional because they fall outside the permissible limits of censorship listed in Article 19(2) of the Constitution. There is a touch of the bizarre too. Cable operators are ordered to “project women in a…leader ship role of sobriety, moral and character building qualities” (sic).

To police the Programme Code, there is a special body in the broadcasting ministry known as the Electronic Media Monitoring Centre. It hunts for content to ban. The bans themselves are ordered by a group of mid-level bureaucrats known as the inter-ministerial committee who have neither judicial nor film-making expertise. This is executive censorship of the worst kind.

The NDTV ban

Last year, Narendra Modi’s government added a new ground of censorship to the Programme Code which drastically curtails how news channels can report terror incidents. Channels can report only a “periodic live briefing by an officer designated by the government.”

Not a single news channel that covered the Pathankot attack trained their cameras solely on the government’s spokesperson. They did what news channels are supposed to do: report the news. The ministry claims NDTV revealed sensitive information during the attack but ironically many of those details had already been revealed by the government spokesperson himself.

There are two aspects of NDTV’s blackout order which are illegal. Administrative law demands that all actions against licensees, such as cable television channels like NDTV, must be reasonable. There are many legal tests for reasonableness but the blackout order does not pass any of them. In particular, the action against NDTV is blatantly impartial. Consequently, the blackout order can be struck down for unreasonableness.

The larger issue pertains to the Programme Code. The last time the Supreme Court was asked to review a badly-drafted censorship law was in the Shreya Singhal case (2015) concerning section 66A of the IT Act. The law was struck down. The Programme Code is worse. It has just escaped constitutional scrutiny for a long time. That will hopefully change.

History shows that the Indian state has a propensity to censor regardless of the government in power. When in power, all political parties have been equally censorious. Nevertheless, the attack on NDTV is a significant escalation against India’s free press. It must be forcefully repelled by a court. Freedom of speech is too important to be taken away on the whims of bureaucrats.