Tackling Expression Crimes of Media shops

By: Prof. Madabhushi Sridhar

It is not the same story of bloody crimes in streets. Bloodless crimes with potential of spilling blood are being committed by ‘expression’ shops. Whether expressions ‘democracy’ and ‘press freedom’ fit in, in the present scenario of political fight in TV and social media?

Freedom of speech and expression as guaranteed under Article 19 of the Constitution of India will encompass all sorts of communication including TV, social media or cell phone media. The earlier debate and demand in India to make express provision for Freedom of Press as in US Constitution became irrelevant because of advent of new media. The Electronic Media grew very strong and extended is reach beyond that of print media. The words used in Article 19 were recognized to be very apt as they can include any new kind of expression technology might invent in future. The technological ease and speed of communication facilitated every person to express and reach others, without being a journalist. It is unprecedented phenomenon that media, which enjoyed reputation as fourth estate, is under scan by social media and civil society has grown as ‘fifth estate’ empowered by the Internet. However in developing countries like India, the TV channels are dominating the media world in spite of speedy growth of broadband power. Surpassing barrier of illiteracy, the TV is reaching every one. With hundreds of channels there is a quantum leap in communication of news content which is either on par with or excelled over the entertainment content. This technology created a strong business group of cable TV operators while channels were started by business and political groups. The expression related crimes grew in number necessitating the regulation and introduction of new criminal law.

The Cable TV Network Regulation Act 1995 created an obligation on TV channels and Cable TV operators (or any person) not to telecast offensive programs, which, if done would be a crime attracting imprisonment and penalty. They shall not transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code, as per section 5 of the Act. If this provision is violated, as section 16 provided, they can be punished, for the first offence, with imprisonment for a term up to two years or with fine which may extend to one thousand rupees or with both. Punishment for subsequent crime or repeated crime is enhanced. The Act says for every subsequent offence, there can be imprisonment up to five years and with fine which may extend to five thousand rupees. Apparently this provision looks innocent but it poses a serious problem for those who ever telecast, i.e., any person, such as TV channel, operator, Internet content developer, or sending text messages or images through cell phone based computers via Internet. Every repeat telecast might attract separate punishment as a different unit of crime. Thus the TV channels who repeat a program at least once in one hour would be facing the a dozen charges of this crime and if proved will have to be in jail for multiples of ‘five year’ terms. The danger of punishment stares at every ‘irresponsible’ remark with defamatory content. The Act does not directly define a crime. One section simply says shall not telecast in violation of program code, and the other say it will be punished with imprisonment and fine. Real problem lies in the program code, which is put beyond the Act as an annexe.

Program code says: (1) No programme should be carried in the cable service which:- (a) Offends against good taste or decency;… (d) Contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; … (i) Criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country; … (m) Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups. Any program which violate the above rules will attract two to five years imprisonment, and perhaps every day the tv operator might end up paying five or ten thousand.

With this group of catch all legal expressions it is difficult to script content of a tv program without getting into the net of cable law criminality. It is still an ‘unused’ penal potentiality retained by the state to be used against the expression crimes. As the defamation law punishes any publisher (printer or financier) who does not have any knowledge or control over the content, this law also can punish cable tv operator who just facilitates transmission.

The argument of Telangana MSOs is interesting. They say: if every day a crime such as telecasting an offensive or insulting and degrading (Telangana legislators) program is telecast repeated by one or two channels, it might pose a serious risk of imprisonments i.e., five years x number of repeats. Then why should they telecast? Assuming that there is a single such crime a day, they will be facing the risk of five year penalty every day as certain channels are bent upon committing this crime knowingly and wantonly to achieve their political or business targets. One of the operators justified their decision to blockade the channels saying, instead of facing risk of prosecution every day why not we prevent such crime by disconnecting the channels. It may not be a breach of contract also because the agreement contains a term not to generate an illegal content. Facing one or two criminal prosecutions a day is not possible. If Cable law imposes an obligation to telecast, it also mandates not to telecast offensive programs. Why society should tolerate suppression of Telangana by media’s excesses, the cable operators questioned.

Fighting Media’s bias
In Telangana it turned out to be a war between pro and anti-Telangana elements laced with cast and political hostilities. Its private censorship verses commercial-cum-political expression in Hyderabad. The TV9 and The ABN Andhra Jyothi are rich and reputed channels in both Telugu states. While the complaint against TV9 is specific about a nasty telecast insulting MLAs, there was no such specific issue against ABN Andhra Jyothi channel, except for their steadfast bias for Telugu Desham party and against TRS. In general, most of the electronic media in two Telugu states are neither free nor objective. Their editorial policy is dictated by political agenda of shareholders. They market the politicians and parties to the people, promote their own political parties and campaign against opposition. Most of them make money by disrobing the leaders and artists of opposite group. The public interest and objective news analysis could be just bye products or side effects.

Besides strong political party controls, the caste dominates the media organizations which incite political wars as a matter of policy. Till June, 90 percent Telugu media was opposing bifurcation of AP. Now they attack and denounce Telangana Rasthra Samithi Government in Telangana and promote TDP Government in Andhra Pradesh. Print and Electronic media have come up with Telangana and Andhra Pradesh editions. The stuff is almost the same in both channels except that the respective CMs and Ministries get extra coverage. One can clearly notice anti Telangana CM and pro AP CM programs in these channels. The anti-Telangana channels are beaming debates and special stories with abuses, innuendos, insulting and defamatory remarks against Telangana leaders. Professionally speaking, only headlines are debated on biased lines and details of news are never made available to viewers.

Commercial use of constitutional freedom for promoting a political party at the cost of the other is not the objective of Article 19(1)(a). The tv screen is occupied by channels building opinions in favour of and against political parties. While Telangana has one or two channels and newspapers, anti-TRS parties have several channels and papers. When democracy becomes a conflict between opinions intermixed with vested interests, the socio-legal equations are bound to change. The present law is confused and insufficient to deal with commercially designed and politically biased media content.

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