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Prasar Bharati-Autonomy To Broadcasting-Media ?
by Dr. Y.S. Chitale
Cite as : (1990) 1 SCC (Jour) 1
The present Government has introduced a Bill called Prasar Bharati (Broadcasting Corporation of India) Bill, 1989. As far as one can see, the Bill is more or less drafted on a pattern of law for broadcasting found elsewhere, particularly in England. It is generally described by newspapers and politicians as a bill on autonomy to media. The Statement of Objects and Reasons shows that it is in pursuance of the Government's declared policy to confer autonomy on the broadcasting media that the Bill was formulated. By Section 3 it is provided that the Central Government may, by notification establish for the purposes of the Act a Corporation to be known as the Prasar Bharati (Broadcasting Corporation of India). The provisions of the Bill on subjects like where will the Head Office be and in whom will the property of the Corporation etc. rest are not of any importance. The main object is to see how far the Bill attains the object of autonomy. It is interesting to note that under the Government of India Act, 1935, Section 129 provided for some sort of autonomy in matters of broadcasting to the Provincial Governments. Sub-clause (2) of that section provided for Federal Government control but added that "it shall not be lawful for the Federal Government so to impose any conditions regulating the matter broadcast by, or by authority of, the Government or Ruler". Sir S. Hoare said in the Parliamentary debate that "in India the Provinces must have considerable latitude as to their programmes.... We, therefore, come to the conclusion that the arrangement should be, first, that the subject of broadcasting should be a Federal subject, that the bigger questions of policy should be controlled by the Federation, that the greatest possible latitude should be allowed to the Units as to their local programmes and that the Governor-General in his discretion should hold the balance between the two and ensure that the Federation was not withholding unreasonably licenses and facilities from the Provinces or the Federal Units". There seems to be some attempt in the said section to maintain a balance in the matter of programmes between the Federation and the Provinces. This aspect also could have been considered in some detail in the present statute. In the present statute, however, under Section 3, sub-clause (5) the Board of Governors of the Corporation are to consist of a Chairman, one Executive Governor, one Governor (Finance), one Governor (Personnel) and six part-time Governors plus one representative of the Union Ministry of Information and Broadcasting, to be nominated by that Ministry. Power is conferred on the Corporation to appoint committees as may be necessary for the efficient performance, exercise and discharge of its functions, powers and duties. Majority of the members which the Corporation may appoint shall consist of Governors and a member of any such committee who is not a Governor shall have only the right to attend the meetings of the committee and take part in the proceedings thereof, but shall not have the right to vote. The Act provides that no Act or proceedings of the Board of Governors or any committee appointed by it shall be invalidated merely by reason of any vacancy or defect in its constitution or in the appointment of a person acting as a Governor or any irregularity in the procedure of the Board. Section 4 provides that the Chairman and the other Governors shall be appointed by the President of India on the recommendations of a Committee consisting of (a) the Chairman of the Council of States, (b) the Chairman of the Press Council of India, and (c) one nominee of the President of India. I do not know why the expression "Chairman of the Council of States" has been used because that only means Vice-President under Article 64 of the Constitution. In other words, it is the Vice-President and the Chairman of the Press Council and one nominee of the President who will recommend to the President the names of persons to be appointed as Chairman and other Governors. Presumably, if more than one name is recommended for the post, the President has choice of selection which he would have to make on the advice of the Council of Ministers in view of Article 74 of the Constitution. Even assuming, however, that there is an element of independence in the President in making the appointment, it is only the substantive provisions of the Act which would mainly show the autonomy in action. The same section further provides that no appointment shall be invalidated because of any vacancy or any defect in the Constitution of the Committee appointed under sub-section (1). Sub-section (3) lays down what should be the qualifications of the persons who can be appointed Governors or part-time Governors. The real question is who makes appointment and how are they made and after the appointment who has the control over the appointee? Under the Constitution of India both the President and the Vice-President presumably are bound by the advice of the Cabinet. It is, therefore, the persons recommended by the Cabinet that may be appointed. This is not to suggest that such persons cannot be independent men and will not try to distribute fairly and in a proper manner the rights of broadcasting and distribution to the various opposite views. The question is whether the Act seems to achieve such objective or it still leaves it to the Government in power to decide on such issues and in that case how far is it independent of the Government? The object mentioned in the Act are undoubtedly important but it must be remembered that the very laudable objectives of the Act can only be enforced by appropriate provisions in the statute. There are provisions in the statutes for the appointment of officers and other employees in consultation with the Recruitment Board. Section 12(1) provides that subject to the provisions of the Act the primary duty of the Corporation is to organise and conduct public broadcasting services to inform, educate and entertain the public and to ensure a balanced development by broadcasting on radio and television. The objects mentioned in Section 12, sub-clause (2) are undoubtedly praiseworthy and these objects should always inform a broadcasting corporation as proposed under the Bill. The only question is how far these objectives are capable of withstanding every change in Government without affecting its independent character. There is also a provision in Section 13 for the establishment of a Broadcasting Council. The Council is to receive and consider complaints mentioned in Section 14 and advise the Corporation in the discharge of its functions under Section 12. Under sub-clause (2) of Section 13 the Broadcasting Council is to consist of a President and ten other members. They are to be appointed by the President of India in consultation with the Chairman. The appointment of the Chairman is also to be made by the President on the recommendations of a Committee consisting of persons mentioned in Section 4(1) as stated above. If these appointments are again to be made on the advise of the Council of Ministers then the alleged independence is illusory. The Broadcasting Council is also authorised to constitute Regional Councils. Section 14 provides that the Broadcasting council may receive and consider complaints from any person or group of persons alleging that a certain programme or broadcast or the function or the functioning of the Corporation in specific cases or in general is not in accordance with the objectives for which the Corporation is established. The Broadcasting Council as the provisions of the Act also show, in a sense, consists of government appointees/nominees.
Under sub-clause (4) of Section 14 if a complaint is found to be justified either wholly or in part the Broadcasting Council shall advise the Executive Governor to take appropriate action. It is therefore provided in sub-clause (5) of Section 14 that if the Executive Governor is unable to accept the recommendation of the Broadcasting Council he shall place such recommendations before the Board of Governors for decision. If the Board of Governors is also unable to accept the recommendations of the Broadcasting Council it shall record its reasons therefor and inform the Broadcasting Council accordingly. The object, the purport and the scheme of the Act undoubtedly is that the Broadcasting media (I use this word in a general sense) should deal fairly with the public and should not give one sided or unbalanced information and views. Certain aspects, which should have been considered and emphasised are found absent in the Bill. In the Indian Constitution, Article 19(l)(a) provides freedom of expression or speech to all citizens. This freedom of expression as has been consistently held by the Supreme Court includes the freedom of publishing newspapers. It is difficult to understand why this freedom shall not include also radio or television broadcasting. Entry 31 of the Union List describes them as a form of communication.
Although Article 19 confers rights on the citizens it is now well-settled that share-holders and directors can also file petitions for enforcement of a right. Article 19 also provides in sub-clause (l)(g) a right to carry on any profession, occupation, trade or business. Under sub-clause (6) the carrying on by a State or by a Corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial, of citizens or otherwise is permissible. In other words, if autonomy is to be granted for the broadcasting media i.e. television or radio, obviously it cannot be done by establishing independent corporation. There is no reason why any other corporation willing to give similar service should not be permitted to do so. Only solution therefore, to have a broadcasting programme is through a corporation owned or controlled by the State. Even here it may be possible to argue that the rights of a citizen under Article 19(l)(a) cannot be taken away. It is doubtful whether a State can nationalise publication of newspapers. In such a situation the very language of "owned or controlled by the State" indicates that it may not always be an independent corporation depending upon the party in power at the particular time. The experience of the last 40 years shows hardly any independent functioning of Government Corporation. In England, Willmer, L.J. in B.B.C. v. John1 said that B.B.C. was created by charter as an independent legal person and licensed to carry on broadcasting. He ventured to add that in his view the B.B.C. was doubtless created an independent body precisely for the reason that it was desired to avoid any suggestion that broadcasting in the country was an instrument of the Government. It appears to me from the provisions of the Act that government control is only highly implicit and it must always depend upon the Government in power to decide whether such control should be exercised or not. In such a situation one tends to come back to square one, because the autonomy would depend upon the nature of the Government and it is always open to the Government, if it so desired, to give or suppress autonomy to the broadcasting media in certain respects. Such autonomy therefore has to be necessarily based on either the good sense of the particular Government at the time in power or by putting in some provisions in the Act which as far as one can see may be able to provide autonomy to a certain extent. Under the Indian Telegraphs Act "Telegraph" has been defined so widely as to include either Television, radio waves or otherwise and under sub-clause (4) the exclusive privilege in respect of Telegraph and the power to grant licence is in the Central Government. Therefore, under Section 4 of the said Act either the Central Government itself runs the broadcasting media or grants licence. The conditions of granting licence will arise only if there is a body which cannot answer the description as the Central Government. It appears to me, that there is, therefore, a little Constitutional problem in the sense that broadcasting cannot be made the exclusive right or privilege of an independent body. Section 12(1) of the Act says that it shall be the primary duty of the corporation to organise and conduct public broadcasting system. It is not the duty of the corporation in an exclusive capacity. The only remedy is therefore to hedge the power of the Central Government with certain provisions. This I find totally lacking in the present Act. The American situation in this behalf seems to be worth considering. It is clear that Congress may exercise the power to regulate radio and other communications and to establish agencies to give effect to its authority. It is further clear that Congress may exercise this power to the utmost extent with no limitations other than such as is prescribed by the Constitution. In the United States the FCC has imposed upon broadcasters the requirement that a discussion of public issues be presented, and that each side of these issues be given fair coverage. This is called in United States as the "fairness doctrine" and is in a sense different from the "equal time doctrine" which is also in vogue. When broadcaster gives cover to one side of a public issue, he must give the other side an opportunity to state the opposing view and this must be done at the broadcaster's expense if sponsorship is not available. The clear objective as held by the U.S. Supreme Court in Columbia Broadcasting case2 seems to be that it is the right of the public to be informed rather than any right on the part of the Government, or any broadcasting licensee, or any individual member of the public, to broadcast its or his own particular views on any matter. The role of the FCC in these matters is not to substitute its judgment for that of the licensee, but rather to determine whether the licensee has acted reasonably and in good faith. The presentation of a view conflicting with that expressed by the broadcaster may be arranged for by the broadcaster, who may seek out someone to present the conflicting view and he has considerable discretion in the matter so long as the balance in format, time, and protagonists meets the test of reasonableness. For example when the President makes an address on television on a controversial issue, the licensee then grants the opposing political party the right to broadcast its view on the subject. The licensee must bona fide believe that their coverage of the issue is a balanced one. The President's party or anybody else is not entitled to have additional time to controvert the statements of the other party. It is very interesting to know that when during the presentation of views on a controversial issue of public importance an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time, transmit to the person or group attacked a script or tape of the attack and an offer of a reasonable opportunity to respond over the licensee's facilities. The obligation to comply with the statutes and regulations in this respect rests squarely on the licensee. The President requires the Federal Communications Council to make a finding pursuant to the requirements of the statute. Although it is not bound by the findings and recommendations of its examiner whose duty under the Act is to take testimony and make a report and recommendations. There is also in the American System "equal time" rule as to political candidates. Congress has provided that if any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station, and that the licensee shall have no power of censorship over the material broadcast. This provision applies only to the candidates themselves and not to appearances by campaign managers or other supporters. Broadcast licenses cannot remove allegedly libellous matter from speeches made by a political candidate under the "equal time" provision of the U.S. statute since the statute also provides that the licensee shall have no power of censorship over the material broadcast. But licensees are not liable for libel contained in "equal time" broadcasts. A broadcaster who refuses to grant "equal time" to a candidate for public office is not liable to damages to the candidate.
It should have been also provided that the report of such Commission or Council has to be presented to Parliament. Section 27 only provides for the preparation and placing before Parliament an annual statement and the suggestions of the Broadcasting Council and the action taken thereon. Section 30 requires every rule or regulation to be laid before Parliament for a period of 30 days. In any event the above provisions are brought into focus not for the purpose of saying that these provisions should or should not have been incorporated in the proposed Prasar Bharati Bill. If the object is to make it autonomous, some of these features are a necessary consequence. In the absence of these features Prasar Bharati would only be a government agency with laudable objects prescribed in the statute but, may never be enforced. One finds on the other hand that Section 22 enables the Central Government in the interests of security of State or public order to order not to make a broadcast specified in the direction or to make a broadcast on a matter of public importance stating that such a broadcast is made pursuant to such direction. The expression "a matter of public importance" leaves free scope for considerable manoeuvrability. For example, the books on Tipu and City of Joy were freely available in the market for any one to read and yet the Central Government bans the televising of these on the grounds of historical inaccuracies and on the ground that it is not necessary to show the slums of Calcutta. What was Salaam Bombay, I wonder. However, any direction issued has to be laid before Parliament. In order to avoid such a situation it is necessary to have a look at the provisions of such other acts and to see whether they can be incorporated in the statute itself or in the regulations. In the absence of some such provisions the statute would have no teeth and would only be a paper promise.
- (1964) 1 All ER 923
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