The licence raj is alive and kicking – and it is being used to control the media

One of the seminal moments for broadcast censorship in India occurred much before there were widespread television broadcasts in India. It was defined by the refusal of film certification to KA Abbas’s documentary, A Tale of Four Cities, for universal exhibition. In 1972, Abbas challenged not only the refusal for certification but also the very basis of the power to pre-censor films. His lawyers argued in the Supreme Court that mandatory certification prior to the release of a movie constituted a prior restraint that was unconstitutional and contrary to the fundamental right to speech and expression.

Rejecting the challenge on several grounds the court made some interesting comments on how visuals are to be distinguished from text and sound. It stated that by

“…co-ordination of the visual and the aural senses…the motion picture is able to stir up emotions more deeply…a person reading a book or other writing…is not so deeply stirred as by seeing a motion picture.” 

On such reasoning, it found the pre-censorship of motion pictures constitutionally tolerable. We should well remember that these observations are not limited to film as a work of fiction but would extend to all forms of video broadcasts.

In the same case the Supreme Court further articulated a consequential basis to the vague content controls that exist for film certification. These controls over content are couched in phrases that are subjective and escape precise legal definition. But this did not seem to perturb the court when it reasoned:

“We are quite clear that expressions like, 'seduction', 'immoral traffic in women', 'soliciting, prostituting or procuration', 'indelicate sexual situation' and 'scenes suggestive of immorality', 'traffic and use of drugs', 'class hatred', 'blackmail associated with immorality' are within the understanding to the average man and more so of persons who are likely to be [on] a panel for purposes of censorship. Any more definiteness is not only not expected but is not possible”. 

The legal challenge and its failure set a trend for censorship of video by using a power of licensing in excess of print that obligates compliance with vague content restrictions. This has extended to television broadcasts.

Licence raj is alive – and as arbitrary

Each television broadcaster needs to possess a technical ability to beam signals to a satellite that re-transmits them to millions of viewers in India. To legally possess this power, an Uplinking and a Downlinking Licence is necessary from the central government.

Within the technicality of the licence lurk important details that create a coercive environment for broadcasters. Such licences set high thresholds of eligibility – financial, technical and discretionary. They contain further compliances including a reference to the Programme Code that is supposed to regulate television broadcasts in India – the Cable Televisions Regulations Act, 1994.

Several commentators over the past few days have already pointed to the vague, uncertain provisions of the Programme Code. Having written on it extensively in the past (please see here: Table of discontents, and here: When Breast becomes Chest), suffice it for now to only point out the latest amendment via Rule 6(1)(p), which continues the trend of providing broad prescriptions that can easily be interpreted subjectively. This amendment prevents

“live coverage of any anti-terrorist operation by security forces” 

and further restricts the coverage to

“periodic briefing by an officer designated by the appropriate Government”. 

What is also important to consider is the nature of the penalty that results from a finding of violation of such a broad code. The penalties vary widely in their severity – from a warning to suspending broadcast for a number of days. On three such findings of violation (even if the penalties are mere warnings), the licence of the channel can be revoked. Immense discretion is built both in the programme code and the penalties enforced under it.

To circumvent these wide powers of censorship, television channels have over time adopted several strategies. The most obvious is seeking pardon and apologising to the government body that administers these penalties. Several orders available in the public domain show this pattern. Responding to a show cause notice, invariably a television channel would challenge a show cause notice initially, only to admit its fault and submit an apology at the subsequent stage of making oral submissions. One can only surmise that the reason for such a change in stand is not a process of introspection.

Another widespread strategy is the institutionalised process of self-censorship. Today, most entertainment and news channels are part of self-regulatory organisations that invite viewers to complain to them instead of the government.

Big Brother is (not just) watching you

But given recent cases, such measures are clearly proving to be ineffective as instances of government imposed censorship become institutionalised and widespread. Setting new precedent and with increased frequency, the Programme Code is being applied beyond general entertainment to news and current affairs channels.

Part of the reason is the additional staffing in Electronic Media Monitoring Centre that actively monitors all television broadcasts in India and forwards any content that is in violation. Some television channels have findings of violations or legal process underway. Many are hanging by tenterhooks onto their broadcast licences.

The works of Aldous Huxley and George Orwell are good prisms to see broadcasting law and its enforcement through. Both pointed to the dangers of media consumption preventing informed public opinion in vastly different ways. Orwell wrote about a totalitarian state that rations information and manufactures fact. Huxley wrote of a future in which people are saturated beyond objective thought by copious consumption. Rather than exclusively relying on either method, broadcast censorship in India is adopting both the scenarios.

While news channels increase in number, the law is drawing the tolerable circle of public debate, often merging news with entertainment. It is not just a question of what is not shown but also what is. The licence raj thrives as carrots and sticks can be used with media not to question the government but to instead act as its propaganda arms by providing coverage to governmental programmes such as yoga days, investor summits, tourism promotions, not to mention the more recent chest thumping of surgical strikes and war hysteria.

The last names of both Huxley and Orwell have in time been turned into adjectives. The media channels, expected to be watchdogs over government, are sought to be turned into its lapdogs.

​Apar Gupta, is a lawyer practising in Delhi. He has represented media channels in proceedings related to content censorship under the Programme Code. ​