Last night millions of homes in Mumbai had their first conversation in ages. The reason, television channels were blanked out by cable operators. The reason, Cable operators were protesting against police raids following a High Court Order in December to restrain
cable operators and service providers from showing any film with an Adult’s only (A) certificate on television.
Before we all cry out freedom of expression being gagged or the Goverment/System/Judiciary/Police are out to curtail our freedoms – including the freedom to do business, let’s look at what the high court ruling was about. It was really about a political science teacher from an elite Mumbai college deciding TV channels are showing obscene content, and filing a PIL to prevent them from doing so. The matter was compounded by a tech illiterate judiciary – which instead of instructing TV companies to create time bands & watersheds and put out clear ratings warings and take responsibility for the content that they put out – instructed the Police to penalise cable operators, who are mere carriers of the signals. As i had blogged last year on this, the ruling is bizzare because :
They have placed the onus on what we get on our Television screens, not on the broadcaster but on the cable operator who brings the feed to our homes. It is incomprehensible because the cable operator has no control over the content of the channel. There is one way that the cable operator can be absolutely sure that he is complying with the ruling – and that is by dropping the channel. This in itself has implications on revenue and profitability for the channels concerned. If the channels go ahead and stop buying films with adult certification – then it is going to impact the film production company. Afterall, in today’s day and change cable and satellite rights form a key part of revenues. Also the ruling does not apply to DTH. Nor does it apply to the friendly neighbourhood DVD/VCD wallah!
If this had been a Government ruling, we would have all been screaming blue murder – but, when this is a judicial ruling based on an appeal from a member of the public – what do we do? Whom do we hold accountable for loss in revenue, entertainment and information? The Police – they were doing their job as directed by the High Court. The High Court – they were responding to a member of the public -who obviously had built a good case. The petitioner -she has the right to appeal to the court. The channels – they show what is popular, the Cabel operators – they supply what we want. SoWho? The tyranny of a ‘well meaning individual’ is far worse than tyranny of the state. (as with all fast posts, the crucial phrase left out here is the last – in a democratic society)
“The High Court – they were responding to a member of the public -who obviously had built a good case.”
Harini, I have to disagree with htis, I’m afraid. There is no “good case” for such censorship in a free society. The High Court make a lousy judgement, enabled by the fact that there aren’t enough contitutional provisions protecting freedom of expression. That’s all there is to it.
It surely is a scenario that makes me uneasy… What’s next? For a relatively young democracy, our nation is already erring too many times with curtailing civil liberties.
I agree with Amit here. In fact I was going to make the same argument in my comment here until I read Amit’s comment.
If an individual presents a ‘good case’ against something that goes against the spirit of free civil society and a court rules in that individual’s favour, then it is extremely disappointing. One individual’s ethics/value system should NOT decide what is best for the society at large.
In addition to the above point, there’s also the issue of Conditional Access System (CAS), which would effectively put the power of choice in the hands of the people. Once CAS comes in, this whole ‘unrestricted viewing of adult content’ argument will be rendered untenable. I wonder if the court could’ve asked the government to expedite the rollout of CAS.
The tyranny of a ‘well meaning individual’ is far worse than tyranny of the state.
You are making a mistake by accusing the individual here. It is the judiciary’s job to interpret the law. Who makes the law? The legislators do, i.e. the government. It is not the “well-meaning” individual who caused the mess, but the fact there was a stupidly framed law:
The order is based on a Cable Television Network (Regulation) Act provision, which prohibits operators from showing any material “unsuitable for unrestricted public viewing”.
So it is not the tyranny of a well-meaning individual, it IS the tyranny of a Nanny/Mai-Baap Sarkar.
Here is a thougt that sprang to my mind after I read your post. I suspect there is more to the whole fracas than what meets the eyes. If cable operators are being singled out, maybe there is a move to marginalize them in the great Indian content game. At the moment, cable operators are a fragmeneted lot and control the last mile access to millions of homes, and maybe if their role is minimized then the bigger players can step in with their step-top box and other VOD plans.
I coule be way of the mark…
Kamla
I totally agree with Amit and Sameer. The judiciary is supposed to protect the fundamental rights of the people. Good gracious, we Indians have to be eternally vigilant. Is anyone protesting? Maybe we can all sign a petition or something or support a counter PIL.
Thanks for the enlightening post!
hi Amit & Sameer
This particular ruling is not a freedom of expression issue – it is the implementation of the 1995 Act – the Programme Code of which is very clear
(1) No programme should be carried in the cable service which:-
As per The Cinematograph Act of 1952 (please note the date 🙂
The job of the court is not to come up with legislation – it is to ensure that the legislation – passed by Parliament – is implemented. The Nathani PIL was primarily on the basis of subsection N & O. Her contention was that if the censor board has declared it either A or U/A – it can’t be aired, because it has already been declared as restrictive viewing. The court – very rightly – upheld her argument under the current law. If there is a PIL filed against subsection N and O – because these are the only two clauses that are implementable, the rest are a code – saying that it contravenes the Fundamental Right to Expression – then the court can pass its judgement accordingly. Until that happens – the court has to rule as per existing legislation.
As far as the rest of the code is concerned, if a broadcaster followed each and every aspect of the programming code – we probably wouldn’t have anything on air.
My problem with the ruling, as i pointed out in the main blog post – is that it is unimplementable. As per the same, a cable operator cannot cut into the signal of a broadcaster – so as far as the MSO is concerned a channel is? either on or off. And putting the onus on the Cable operator when the signal (content) belongs to the broadcaster is illogical. The loss to the industry over the last two days is quite phenomenal. And this does not even begin to calculate future losses – shows that just opened, not getting audiences because viewers could not bond with the characters.
Should Subsection (o) go – not until the broadcast compnaies come together and set up their own code of watershed programming. It isn’t about censoring content – it is simply about running it in slots that are the most appropriate.
Finally on the Freedom of expession question – for me neither the ruling nor the act are as much crimping the freedom of exprssion as the thought of a government appointed body of bureaucrats and has been actors figuring what should be A and what should be U/A. As an industry and as a people we have Freedom when we take responsibility for our actions. For me, as a broadcast industry we would have the freedom of expression when we take responsibilty of regulating our own industy ourselves. And this would mean an industry body with teeth that evolves a code of behaviour, ratings, classifcations and transparency, and which keeps the process dynamic.
Also read : Indiantelevision.com’s fairly well researched article on censorship on TV
Hi Witwisdumb
welcome to POV.
It makes me uneasy too – there are just too many interest groups that are extremely busy whittling away at our basic freedoms. Be they the fundamentalist parties that restrict my enjoyment, or the moral brigade that tries to stem my entertainment, governments that prevent me from drinking cola …. what next?
Hi Sameer
On the CAS issue – it wouldn’t really address the ‘unrestricted viewing of adult content’ – all that CAS is supposed to do is to ensure that I get to choose the channels that i pay for. So instead of paying Rs.300 for 80 channels of which i watch 10. I get to pay about 50% less for the 20 channels i want to watch!
Channels will probably still have to schedule keeping in mind certain social parameters. And the problem is as much with music videos – which have to be now censor certified – as with films. With films there can be a greater degree of parental control, simply because it runs in a pre described schedule. However, with music videos, they often work as fillers and run through the day. And if i am not mistaken, the primary thrust of the PIL when it started was the music video issue.
While banning content types is not the solution – sensible slotting probably needs to be — certain kinds of content will not be shown before a certain time. It will also possibly open up the market for certain kinds of adult content and associated advertising- and by adult i don’t necessarily only mean sex.
Hi Kamla
its an interesting theory,
But, given that the big three broadcasters own large chunks of cable operators, and given that mass DTH is a few years away, and that VoD is even further away – i would be surprised if the channels were playing this game.
Harini, thanks for the detailed reply. My point still is that it is a freedom of expresson issue, and that the laws that you have cited are precisely the problem. There are too many caveats to freedom of speech in this country, and too much left to the discretion of the authorities. After all, who is the arbiter of ‘good taste’ and ‘decency’? Almost anything can be banned under one or other of the clauses of the 1995 Act that you have cited, and such power in the hands of a government is dangerous.
Indeed, I’d point you to the first amendment of the US constitution as a far better document, far less prone to abuse.
The cable operators, not the big three, but all the others in India are highly fragmented. Bangalore is a great example of this market.
I don’t think DTH and VOD are that far away. You will be surprised at how much work has gone into this and how close they might be in deloying it. I believe a couple of the players are already testing the market.
This is again just a thought.
Kamla
Hi Phoenix
thx for commenting.
On the legislation part – every major legislation vis-a-vis the broadcasting industry has had the inputs of every major player. The code of conduct is something that is followed as part of general business policy.
As far as most legislation on most issues are concerned – it goes through a draft stage where interest groups and concerned citizens can comment. Can ensure that clauses are modified before they become legislation.
There is no point blaming the politician if we as citizens abbrogate our responsibiity with respect to participative democracy.
Hi Amit
at the meta level everything is freedom of one sort or the other.
I think that any Democratic Set up the state & special interest groups will always try and curb some freedoms, and it is up to us the citizens to ensure that they don’t. It really doesn’t matter whether it is the first ammendment or the fundamental rights.
If activists in the US did not push the envelope in terms of freedom of expression, much as they push the envelope in terms of the 2nd ammendment – the right to bear arms – then they too would just be words on paper.
The 1st ammendment is effective because people fight for it.
Fundamental rights guaranteed by the constitution will be effective if we fight for it.
Both will be impotent if we are apathetic.
Hi Kamla
the last time i read the FICCI report – i remember something around 60% of cable operators owned or controlled by the big 3.
Cable operators have always been a sort of double edged sword for the big channels – granting connectivity, but witholding declarations. Which means that channel distribution revenues are way below what they should be in a transparent declaration system.
Having said that – DTH only launched last year. I read figures of 1 million odd homes a couple of months ago. Currently there are 3 packages all of which offer the samething (another idiotic piece of legislation – if a DTH platform does not have exclusive content, then what differenciates it — i the consumer do not buy the platform, i buy hte content). And the confusion levels are phenomenal. In my building society all 3 turned up and we still don’t know who gives what. In any case I don’t see a vertical growth path for DTH – but a much steadier growth. It’s not going to be like cable or mobile penetration. Its’ going to be more like internet growth.
C&S homes on the other hand deliver 60-65 million homes to the channel. Now while the channel may only get a fraction of it as distribution revenue, the 60-65 million base makes it attractive to advertisers.
VOD requires atleast a T1 line for making it worthwhile to the consumer. Those will take a bit of time to permeate.
Until all these platforms reach a certain critical number – in terms of revenues, cable will still play an important role. advertisers look at households. And cable gives the numbers
Nice post and discussion. But this act has been there for 10 years – just like a number of other stupid laws which languish in the books without implementation. (One of the newspapers carried a series of articles on such laws a long time ago). And the Bombay High Court has subsequently expanded the ban on A certified movies to include DTH. Any sensible Court would have struck down the sections of the law – and would certianly not try and regulate channels broadcast from outside India which are not governed by Indian law. So this is yet another case of judicial activism run amuck. For my views, please read this
Hi Unknown Indian
welcome to POV. Thank you.
I agree that the law is silly, but i disagree that the court ought to strike it down arbidly. If someone takes out a PIL against the law – for violation of fundamental rights – and then the court stirkes out down it is one thing, but in situations like this I am not sure that the judiciary can over rule the legislature. And nor should it.
ultimately our legislators are directly accountable to us – not the judiciary. And, I personally see too much judicial intervention as being dangerous for democracy in the long run.
I really don’t think that this particular case is judicial activism – it is more a situation of implemening a clearly stated law.
It is more a case of moral majority gone haywire, and possibly many of us armchair activists need to get off our armchairs and counter this kind of shit 🙂