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The Information & Broadcasting Ministry’s order banning the Malayalam channels Asianet and MediaOne has yet again demonstrated the weak foundations of the legal regime dealing with television content regulation. The legal authority for the ban flows from the Programme Code, passed under the Cable Network (Regulation Act). In a series of posts, Apar Gupta has extensively discussed the constitutional problems with this legislative scheme. I will summarise them briefly:

  • The Act and the Code allocate the costs of censorship to the speaker: They do so by granting the government the power to ban channels, leaving the burden (financial and otherwise) upon the channels (then) to fight it out in Court. This effectively makes censorship costless for the government, as all it has to do is pass censorship orders; contrast this with a situation in which the government would first have to prove a legal violation in court, and a judicial order was required for banning channels. This would place the initial burden upon the government (and not on the citizen), and would create a judicial safeguard before speech could be taken out of the marketplace of ideas, instead of after. Now in the wake of Puttaswamy and the advent of the proportionality standard, I would argue that it is at least arguable now that this choice of legal architecture (government bans that have to be then contested in Court by TV channels) is evidently not the “least restrictive method” of achieving the government’s goals of ensuring compliance with the law. When a less restrictive method – judicial sanction (except arguably in cases of emergencies) is available, the Act and the Code fail the test of proportionality.
  • The chilling and the conforming effect: as a related point, the legal architecture of the Programme Code creates both a chilling effect and what free speech scholar Margot Kaminski calls a “conforming effect.” That is, given that censorship is costless (and challenging it is costly), a number of bans of this kind will go unchallenged in Court. What this leads to is a “conforming effect”, where grounds set out in one banning order serve as signals to other channels to comply with them, whatever the legality might be. For example, the present orders cite apparent bias against the Delhi Police and the Rashtriya Swayamsevak Sangh (RSS) as grounds for the ban. It should be abundantly clear that this is grossly illegal; as the illegality, however, is effectively costless to the State (at best, the TV channels will fight the ban and get it overturned a few months – or years – later), it can do it again, and again – in the future. Channels know that fact just as well, and are likely to modify their behaviour to not criticise the police or the RSS, if the likely consequence is going to be an immediate 48-hour ban. This too infringes Article 19(1)(a) of the Constitution.
  • Vagueness: This is, by now, almost tedious to repeat. The provisions of the Programme Code are exceedingly vague, leaving its implementation almost entirely at the mercy of the government. Once again, this feeds into the first point about legal architecture: if, at the first instance, a Court was examining the question, then presumably – even to these vague provisions – it would apply constitutional tests (such as the incitement standard for public order). But this is not the case when it comes to the structure of the Act and the Code. The original sin in this case lies in the judgment of K.A. Abbas, where a similar legal structure – including the direct transplantation of Article 19(2) into the statute – was held to be constitutional. Perhaps, in the age of the proportionality standard, it is time to reconsider that as well.
  • In this case, specifically, the impact of the vague provisions of the Programme Code is seen particularly vividly, as the banning orders take advantage of its loose language, and mirror it with even looser language (a point discussed in the previous post). Phrases such as “biased”, “siding with a particular community”, “promoting anti-national attitudes” are so boundlessly manipulable, that they can effectively mean whatever those with brute power want them to mean. Note that this is not a case of the government abusing the law; this is a case of how a badly-drafted law enables unconstitutional use by the State. This is why both the Act and the Code ought to be struck down – it is long overdue.