A notice issued by the Ministry of Information and Broadcasting (“MIBs”) dated October 21, 2022 (“Advisory”), makes waves and stirs the waves. The Council directs central government departments, as well as all state and union territory governments to: (i) not engage in the business of broadcasting or the distribution of broadcasting business (including for educational content), in the future; (ii) perform all broadcasting activities henceforth through the public broadcaster (i.e. Prasar Bharati), in case these entities are already broadcasting content; and (iii) refrain from continuing to engage in distribution activities, in the event that they are already engaged in such activities. These entities must comply with the actions listed in subsections (ii) and (iii) above no later than December 31, 2023. This notice is expected to impact the operations and activities of several government departments and governments from several states, including Tamil. Nadu and his educational channel Kalvi TV, who currently own and operate television channels.
The Council derives its legitimacy from the position that activities related to “Publish and telegraphs, telephones, wireless, broadcasting and other similar forms of communication” occupies in the Union List of the Constitution of India and hence notes that only the Union Government is authorized to legislate on matters related to communication and dissemination of content. The notice also cites some recommendations issued by the Telecom Regulatory Authority of India (“TRAI”) in 2012, in which the regulator recommended that no government (whether Union or state) or state government entities be allowed to engage in distribution of television and/or radio channels. In accordance with the opinion, the TRAI has been inspired by the principles set out in the reports of the Sarkaria Commission, the Verghese Committee and the Honorable Supreme Court of India in relation to The Secretary of the Ministry of Information and Broadcasting v Bengal Cricket Association and NRA. (1995AIR (SC) 1236) in its recommendations and concluded that states should not be accorded the requirement of concurrent or exclusive authority over broadcasting.
The Sarkaria Commission, whose “spirit” inspired the TRAI, was constituted with the aim of examining centre-state relations and suggested certain constitutional reforms to fill in the gaps and clarify the position relating to the powers, functions and responsibilities related to the economy and social planning, agriculture, financial relations, etc. Akashvani and Doordarshan. The conclusions and recommendations of the Verghese Committee included: (i) that the Akashvani and Doordarshan should operate as an autonomous national trust; (ii) radio and television must operate for a public purpose; (iii) this national trust should belong to the people and should be accountable only to Parliament; (iv) broadcasting authority should be decentralized; and (v) its autonomy and independence from governmental or state control must be guaranteed by the Constitution.
It was only after the task force report that the Prasar Bharati (Broadcasting Corporation of India) Act 1990 (the “Law“) was passed by Parliament, which provides “the establishment of a Broadcasting Corporation for India, known as Prasar Bharati, to define its composition, functions and powers and to settle matters related or incidental thereto”. The Act led to the creation of the Indian Public Broadcaster, responsible for Akashvani and the Doordarshan (and, in accordance with the advice, taking over all broadcasting activities currently undertaken by central and state governments). The law further provides for certain members of the board of Prasar Bharati to be appointed by the President of India, which has raised doubts and skepticism about the apolitical nature of the organization and the effectiveness of the organization. to have the Prasar Bharati as an intermediary. whereby all state channels can broadcast in accordance with the notice.
Following the creation of a public broadcaster and the need to strengthen such an entity, the Supreme Court of Cricket Association the case revealed that “what takes precedence is the right of listeners and viewers and not the right of the broadcaster – whether the broadcaster is the state, a public corporation or a private individual or body. A monopoly on broadcasting, whether by the government or anyone else, is incompatible with the citizens’ right to freedom of expression. State control actually means government control, which in turn means control of the political party or parties in power at the moment. Such control can only color the views, information and opinions conveyed by the media. Citizens’ right to freedom of expression is best served by keeping broadcast media under public scrutiny. Public control control by one or more independent public persons, as the case may be, constituted under a law … The company or companies must be incorporated and composed in such a way as to ensure their independence from the government and their impartiality on matters of public interest.” In light of the judgment in this case, the opinion states that the Prasar Bharati “nor should we lose sight of“and, according to TRAI’s suggestions, should be used to meet the broadcasting aspirations of government entities, while maintaining and building on the autonomy and independence that can be offered by the Prasar Bharati and the ‘arm length‘ relationship he enjoys from the government.
However, it is important to note that the advisory only “requests” the named government entities to follow the guidelines it has issued and does not compel compliance. Furthermore, a noticeable absence from the notice is an indication of how it would affect the distribution of content by government entities on webcasting services such as YouTube, Facebook and WhatsApp or even for text messages, which are of increasingly used to disseminate information. . Interestingly, several government departments (notably the MIB) have official YouTube channels which are currently live and operational, with the MIB having uploaded content to its official YouTube page as recently as November 8, 2022.
While the notice has certainly sparked public debate, we await further clarification and clarification from the MIB on the future state of broadcasting through government instruments.