Madras High Court
M.R.Saravanan @ Cine Saravanan vs The Joint Secretary on 31 July, 2019
Bench: S.Manikumar, Subramonium Prasad
W.P.No.21497 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.07.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.21497 of 2017
M.R.Saravanan @ Cine Saravanan ... Petitioner
vs.
1.The Joint Secretary
Ministry of Information & Broad Casting
Government of India,
"A" Wing Shastri Bhawan
New Delhi-100
2. The Secretary to Government
Social Reforms Department
Secretariat, Chennai-600 009
3. Director General of Police
Radhakrishan Salai, Chennai.
4.The Managing Director
Vijay Television
No.15, Jaganathan Street
Nungambakkam, Chennai-600 034
5.Mr.Kamal Hassan ... Respondents
WRIT Petition filed under Article 226 of the Constitution of India, praying
for the issuance of a writ of mandamus, directing the respondents 1 to 3 to
take appropriate action expeditiously to restrain the Vijay Television Tamil
http://www.judis.nic.in
1/78
W.P.No.21497 of 2017
version media from telecasting the famous reality show named " BIG BOSS"
by considering the interest and welfare of the general public and to protect
the culture and tradition considering the interest of the public.
For Petitioner : Mr.S.Vijay
For Respondents : Mr.C.V.Ramachandramurthy SCGSC for R1
Mr.Akhil Akbar Ali, Govt.Adv for R2 and 3
Mr.Sathish Parasaran, Senior Counsel
for
Mr.S.V.Pravin Rathinam for R4
Mr.Cibi Vishnu for R5
ORDER
(Order of the Court was made by S.MANIKUMAR, J) Instant Writ petition is filed seeking a writ of mandamus, directing the respondents 1 to 3 to take appropriate action expeditiously to restrain the Vijay Television Tamil version media from telecasting the famous reality show named " BIG BOSS" by considering the interest and welfare of the general public, to protect the culture and tradition considering the interest of the public.
2. Short facts leading to the filing of the writ petition, are as follows:
(i) Petitioner a resident of Chennai, involved in social work for the http://www.judis.nic.in 2/78 W.P.No.21497 of 2017 past 10 years has filed this public interest litigation for the relief stated supra. Petitioner has submitted that on 27.06.2017, while watching the Television Star Vijay Channel about 09.00 p.m the reality show, by name "BIG BOSS" in his home with his family members to his shock and surprise, the female contestant in the show was dressed in vulgar and obscene manner which lead uncomfort to him and his family members. One of the female contestants was using "cherri behavior" hurting the downtrodden people which leads to affecting communal harmony, adding fuel to the fire, the contestants in the show use the vulgar words with double meanings.
3. Petitioner has submitted that in the show, female contestant are wearing obscene dress code which unequivocally insult the dignities of females and polluting the mindset of the public. Petitioner has further submitted that without posting any prior condition before the commencement of the show and pre censorship the said reality show has been telecasting, which is violatin of reasonable restrictions which guaranteed under Article 19(2) of Indian Constitution.
4. Petitioner has submitted that the said programme will pollute the mindset of the public who are watching the progarm along with family members and especially children. Petitioner has submitted that the said http://www.judis.nic.in 3/78 W.P.No.21497 of 2017 programme has to be controlled and regulated by authorities concerned, to be telecasted in the media since it is creating instant mass impact in the society and further it is playing with the mental emotions of a person in general, the contestants and making the programme to be watched by more than 3 crores of people and for the abovesaid reason the same has to be restricted as soon as possible.
5. Heard Mr.S.Vijay, learned counsel for the petitioner and Mr.C.V.Ramachandramurthy learned SCGSC for R1, Mr.Akhil Akbar Ali, learned Government Advocate for R2 and 3, Mr.Sathish Parasaran, learned Senior Counsel for Mr.S.V.Pravin Rathinam for R4 and Mr.Cibi Vishnu, learned counsel appearing for R5.
6. Self Regulation Guidelines, Content Code and Certification Rules for General Entertainment, Non-News & Current Affairs Broadcasting Sector, are as follows:
“ SELF-REGULATION GUIDELINES, CONTENT CODE AND CERTIFICATION RULES FOR THE GENERAL ENTERTAINMENT & NON NEWS & CURRENT AFFAIRS BROADCASTING SECTOR INTRODUCTION, STATEMENT OF OBJECTS & REASONS & PREAMBLE A. INTRODUCTION The Supreme Court in its landmark judgment on http://www.judis.nic.in 4/78 W.P.No.21497 of 2017 “airwaves” summed up the significance and importance of television in the modern world by stating as follows:
“Most people obtain the bulk of their information on matters of contemporary interest from the broadcasting medium. The television is unique in a way in which intrudes into our homes. The combination of picture and voice makes it an irresistibly attractive medium of presentation. It has tremendous appeal and influence over millions of people. Television is shaping the food habits, cultural values, social mores and what not of the society in a manner no other medium has done so far….” The airwaves judgment laid down the law that that “airwaves were public property” and that it was the obligation of the State under our constitutional system to ensure that they are used for public good. What was meant by public good was further elaborated to mean that in a democracy people govern themselves and they cannot govern themselves properly, unless they are “aware” of the social, political, economical and other issues confronting them. In order to create “awareness”, it was important for a broadcaster to ensure freedom from State or government control, in particular censorship by the government. This freedom implied freedom over the selection, content, and scheduling of programs.
It is in this context that the private television broadcast media (the “Broadcast Media”) in India, which was a relatively nascent industry till fairly recently, (primarily due to Government monopoly control on the http://www.judis.nic.in 5/78 W.P.No.21497 of 2017 broadcast sector), played its biggest role as guardian of the citizens `right to freedom of speech and expression as guaranteed under Article 19 (1) (a) of the Constitution of India. The freedom of speech and expression has inherent in it, the right to receive information and ideas as well as the right to impart them. Hence, in order to ensure that the free speech and expression goals are achieved, it is important for the State to implement, positive and enabling legislation or guidelines to prevent domination, control and/or censorship by a government or public authority.
Unfortunately successive Governments have failed to take positive measures to encourage and promote the growth and development of television content in India free from Government intervention in accordance with the specific directions of the Supreme Court in the 1995 “airwaves” case wherein the Hon’ble Court said that “the broadcasting media should be under the control of the public as distinct from the government”. In essence, this meant that the Government should refrain from controlling the content and programming of radio and TV broadcasts, and an independent and autonomous body/organization/corporation with adequate representation from the industry and public should oversee the functioning of the media. The goal was to create world class content and programming by giving media the freedom and scope for enhancing their creativity.
http://www.judis.nic.in 6/78 W.P.No.21497 of 2017 Even after 15 years, an independent autonomous regulatory body continues to remain illusory. In fact, far from freeing the “airwaves” and ensuring that the broadcast medium is free from government control and censorship, successive governments have instead many a time through various versions of the Broadcast Bill, Convergence Bill, Cable TV Act & Rules and licensing conditions attempted to do the exact opposite i.e. exert control over the Broadcast Media.
It has, therefore been left to the efforts of the Broadcast Media to continue to resist any Government, or quasi-Government attempt to censor media by invoking grounds such as obscenity, morality, decency, public interest, race or religion. Here it is heartening to note that the Indian judiciary has time and again come to the rescue of the Broadcast Media on the above issues and has displayed maturity and reasonableness while evolving jurisprudence around the subject of freedom of speech and expression in keeping with evolving contemporary standards of society. The Supreme Court in the case of K.A. Abbas laid down the test for determining obscenity, by holding the “test that would be applied to determine obscenity must be judged by the standards of reasonable, strong and firmminded men who possess ordinary common sense and prudence and not by an out of the ordinary or hyper-sensitive mind”. In the recent landmark case of Naz Foundation, the Delhi High Court recognized that “morals and standards of the society are continuously evolving and http://www.judis.nic.in 7/78 W.P.No.21497 of 2017 the rights enshrined to a citizen of this country cannot be defeated by using an arbitrary interpretation of public morality and decency”.
In the absence of an independent and autonomous regulatory body, the Broadcast Media stakeholders agree that it is the urgent need of the hour to expedite the implementation of a Self-Regulatory body to be set up and implemented by the IBF so that it functions as an independent, autonomous organization, free from government intervention and free from influence of any one or more organizations, private or otherwise, in order to provide an enabling environment to facilitate creativity, promote viewpoint diversity and the plurality of ideas.
In light of the above, the IBF has adopted with suitable modifications the Ministry of Information Broadcasting Self-Regulation Guidelines for Broadcasting Sector draft version of 2008, which has been formulated after a comprehensive consultative process by over 40 stakeholders from across the Government, civil society, NGOs, Industry. These Self Regulation Guidelines (Guidelines), Content Code & certification rules sets out principles, guidelines and ethical practices, which shall guide the Broadcasting Service Provider (BSP) in offering their programming services in India so as to conform to the Programme Code prescribed under the Cable Television Networks (Regulations) Act 1995, irrespective of the medium/platform used for broadcasting of the programme.
1. These Guidelines have been drafted to introduce http://www.judis.nic.in 8/78 W.P.No.21497 of 2017 greater specificity and detail with a view to facilitate self-
regulation by the broadcasting industry and minimize scope for subjective decision by regulatory authorities or the broadcasting service providers. The basic underlying principle of these Guidelines is that the responsibility of complying with the provisions of the Certification Rules vests with the BSP.
2. The principles in these Guidelines are sought to be implemented at the first instance through a self-regulatory mechanism of the BSP. Regulation by ‘forbearance’, as present in the telecommunications industry, shall guide the Broadcasting Content Complaints Council (BCCC) whilst enforcing adherence by the BSP, with the guidelines. Such selfregulatory mechanism shall be subject to a credible and time-bound default/grievance redressal mechanism, which shall function under the guidance of the BCCC.
3. The BCCC may offer general guidance on the interpretation of the Guidelines. However, any such advice is given on the strict understanding that it will not affect its discretion to judge cases and complaints after broadcast/transmission and will not affect the exercise of its regulatory adjudicatory responsibilities. The BSP should seek its own legal advice on any compliance issues that may arise.
4. As the Guidelines are based on self-regulation, these set out the factors, which should be taken into account by the BSP when forming a view about the http://www.judis.nic.in 9/78 W.P.No.21497 of 2017 acceptability of any programme.
5. These Guidelines do not profess to address every case that may arise. The BSP may face a number of individual situations, which are not specifically referred to therein. The principles, as outlined in the following sections, should make clear what the Guidelines are designed to achieve and help the Service Provider make the necessary judgments.
6. The BSP has to adhere to the Certification Rules under the Cable Television Networks (Regulation) Act, 1995, which are in addition and not in derogation of the Drugs and Cosmetics Act 1940, the Emblems and Names (Prevention of Improper Use) Act, 1950, the Drugs (Control) Act, 1950, the Drugs and Magic Remedies (Prevention of Improper Use) Act, 1954, the Prevention of Food & Adulteration Act, 1954, the Prize Competitions Act, 1995, the Indecent Representation of Women (Prohibition) Act, 1986, the Trade and Merchandise Marks Act, 1999, the Copyright Act, 1957, the Prevention of Cruelty to Animals Act, 1960, the Cigarette and other Tobacco Products Act 2003, the Cinematograph Act, 1952, the Consumer Protection Act, 1986, and such other existing or new statutes, and Rules/Regulations/Guidelines framed there under from time, relating to exhibition of films or broadcasting of programmes.
B. PRINCIPLES
1. Broadcasters are seized of the importance and the impact of broadcast media in the lives of Indian citizens.
http://www.judis.nic.in 10/78 W.P.No.21497 of 2017 While the debate is often raised about the impact of news on society, it is the non-news and particularly the so called “entertainment” broadcast that has a much deeper impact on the society primarily because of the aspect and the manners in which it touches popular lives.
2. This is the moment of destiny for India and as broadcasters it falls upon us as much as any other stakeholder to ensure that we reach out to touch the life of every Indian without discrimination. Today broadcasters in India have a duty not only to communicate, but also to inspire, empower, embolden, encourage and include all members of Indian society. This responsibility must be discharged with full commitment to preserving, promoting and projecting the diversity of Indian culture.
3. To fulfill the goals stated above, the non-news broadcasters of India in conjunction with the Indian Broadcasting Foundation (‘IBF’) solemnly pledge to create, comply with and be bound by the SELF-REGULATORY GUIDELINES FOR ALL NON-NEWS CHANNELS as set out herein.
4. Content by its very nature is an evolving, creative medium that is subjective in nature and the guidelines can therefore not be frozen in time. They do therefore enshrine in themselves a commitment from all signatories to a periodic review to align the guidelines to evolving social mores, scientific developments, legal precedents and constitutional obligations. The principles as outlined in the following sections, while not being exhaustive and http://www.judis.nic.in 11/78 W.P.No.21497 of 2017 professing to address every situation that a broadcaster may face, are designed to achieve and help the broadcaster make necessary judgment. While making any such judgment, the broadcaster shall abide by the relevant laws of India as applicable to television broadcasting.
5. The scope of the guidelines extends to all non- news broadcast programming that appears on television, irrespective of the medium of transmission whether cable, terrestrial, satellite, DTH, IPTV, Mobile or HITS or through any other platform now known or developed in future.
6. By making broadcasters responsible to their peer group and by creating a forum for transparent accountability to all stakeholders, these regulations are also aim to thwart the veiled and ingenious designs of vested interest groups to covertly subjugate the power of media to support their own agenda.
7. These Guidelines are intended to guide the BSP and are based on enduring principles; that all programming should not mislead, cause offence, or lead to harm, particularly to the vulnerable.
8. For the purposes of the Guidelines, “Progamme” in relation to a broadcasting services, means, any television or radio broadcast and includes:
(a) Exhibition or films, features, dramas, news, promos, trailers, songs, music videos and serials through video/audio cassette recorder or video/audio cassette players
(b) Any audio or visual or audio-visual live performance or http://www.judis.nic.in 12/78 W.P.No.21497 of 2017 presentation and the expression “programming service” shall be construed accordingly, but does not include any matter that is wholly related to or connected with any private communication.
(c) This section should be read in conjunction with Content Code & Certification Rules hereunder;
9. Basic principles of these Guidelines are the following:
(a) Programmes should always be scheduled with an awareness of the likely audience in mind. Great care and sensitivity should be exercised to avoid shocking or offending the audience.
(b) Each BSP shall categorize each of their programs based on its theme, subjectmatter treatment, language and audiovisual presentation and slot it accordingly. The BSP will ensure that all programmes broadcast are in accordance with scheduling as per Certification Rules.
(c) The BSP should take reasonable steps to protect minors.
The BSP should be vigilant in gaining an understanding of how material shown on television could impact the development of minors. Minors cover a wide age group and levels of maturity. It is therefore necessary for the BSP to exercise judgment on the capacity of minors in different age groups in coping with the depiction and treatment of material, which may not be suitable for them.
(d) There is a progressive decline in the proportion of minors present as television audience through the evening and during the night. The restrictions on the broadcast of http://www.judis.nic.in 13/78 W.P.No.21497 of 2017 programmes unsuitable for minors should be relaxed on a gradual and progressive basis after 8 pm. The assumption is that after 8 pm parents are expected to share responsibility for what their children are permitted to watch on television.
(e) By and large, the Certification Rules shall uniformly apply to all types of BSPs.
C. SELF-REGULATION MECHANISM This section sets out the mechanism for self-regulation of content. Self-regulation shall operate at two levels – at the BSP level and the Industry level. These are described below:
PREFACE:
1. The complaints regarding content carried on TV Channels are being addressed by Ministry of Information and Broadcasting, as per the extant provisions under the Cable Television Networks (Regulation) Act, 1995, the rules thereunder and the Uplinking and Downlinking Guidelines.
A need has also been felt to put in place a system of selfregulation of content by the Broadcasting industry. Accordingly, these Guidelines provide for a two-tier mechanism for ensuring compliance to the Content Code & Certification Rules under the aegis of the Programme Code by the GEC, Non-news and current affairs Channels and redressal of consumer grievances at the industry level.
2. The self-regulation at the individual TV Channel (TVC) level would be the responsibility of the Standards and Practices Department of the concerned Broadcasters. At http://www.judis.nic.in 14/78 W.P.No.21497 of 2017 the next higher industry level, a Broadcasting Content Complaints Council (BCCC), would examine complaints about television programmes, received from the viewers or any other sources, including NGOs, RWAs Ministry of Information and Broadcasting etc., and ensure that the programmes are in conformity with the Content Guidelines. This mechanism would not cover films, movie videos, film trailers or any other production that can be telecast only after obtaining a certificate from Central Board of Film Certification (CBFC).
II. RECEIPT, PROCESSING AND DISPOSAL OF COMPLAINTS:
(BROADCASTER / CHANNEL LEVEL: TIER – I)
1. Each Broadcaster shall set up a Standards and Practices (S&P) Department with a Head of department for its channel(s) or nominate a dedicated person as Content Auditor to deal with the complaints received for content aired on its channels. In the absence of an S&P Head, the Content Auditor will be construed as S&P head.
2. Each broadcaster shall provide complete contact details of its Content Auditor(s) on its own website and channel for pubic information. This information will also be notified to the Ministry of Information and Broadcasting and BCCC who will post the same on their respective website also. This person/s shall also be the contact point for any feedback on compliance etc. from the public regarding content violation.
III. Duties of the Content Auditor/Head of Standards & Practices http://www.judis.nic.in 15/78 W.P.No.21497 of 2017
(a) The Content Auditor and/or Head, Standard & Practices (S&P) shall ensure that theBSP is in compliance with the IBF’s Content Code.
(b) The Content Auditor and/or Head, Standard & Practices (S&P) shall be the point of contact for any issues, complaints in relation to any programmes broadcast by the BSP.
(c) The Content Auditor and/or Head, Standard & Practices (S&P) will be responsible for examining all the programmes and recommending appropriate categorization as per the IBF’s Content Code.
(d) The Content Auditor and/or Head, Standard & Practices (S&P) will examine the complaints against content and guide the BSP to satisfy itself with regard to compliance with all the relevant legal and administrative requirements under various statutes and regulations having a bearing on content.
(e) The Content Auditor and/or Head, Standard & Practices (S&P) shall bring to the notice of the Head of Programming of the BSP, by whatever designation he is called, which requires to be rectified. The ultimate decision in such matter shall be responsibility of the Head of Programming of the BSP.
(f) The Content Auditor and/or Head, Standard & Practices (S&P) shall not be held personally liable for any violation of the IBF’s Content Code and it will be only the Head of Programming of the BSP who will be liable for any non- compliance.
http://www.judis.nic.in 16/78 W.P.No.21497 of 2017 IV. PROCESS OF HANDLING A COMPLAINT AT THE BSP LEVEL (TIER-I)
(a) A consumer may send a written complaint as soon as possible and not later than a week of the telecast of the offending programme to the Content Auditor and/or Head, Standard & Practices (S&P) Department of the concerned Broadcaster/Television Channel, who shall be expected to carefully consider the complaint. The name, age, complete address along with the fax number/ e-mail ID, if available, of the complainant must be given in clear handwriting or typed. An acknowledgment to the complaint shall be sent to the complainant within two days after the receipt of the complaint.
(b) The complainant must furnish all relevant particulars including the name of the Television Channel, the date and time of telecast of the offending content, the title of the programme, details about the alleged offence, etc. and also give reasons, as to why s/he feels that the particular programme was not in compliance with the Content Guidelines.
(c) If the Head of the S&P Department considers that there has been a violation of the Content Guidelines, s/he shall reply to the complainant within one week of the channel’s receipt of the complaint, indicating the breach of the Guidelines and informing whether the offending content has been modified or withdrawn. A copy of the reply, along with the complaint shall also be endorsed to BCCC Secretariat.
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(d) If in the opinion of the Head of the S&P Department, the complaint is, prima-facie, frivolous, vexatious or motivated/ biased etc., the Head of the S & P Department would be within her/his right to take no action on such complaint and reply in an appropriate manner to the complainant.
V. BROADCASTING CONTENT COMPLAINTS COUNCIL (BCCC):
TIER II CONSTITUTION OF BCCC
(a) The BCCC shall be a thirteen (13) Member body consisting of a Chairperson being retired Judge of the Supreme Court or High Court and 12 other Members. The Chairperson of the BCCC will be appointed by the board of IBF by a majoritydecision.
(b) The Composition of other Members of BCCC shall be as under:
1. Four (4) non-broadcaster Members
2. Four (4) Members from national-level Statutory Commissions
3. Four (4) broadcaster Members
(c) Four (4) non-broadcaster Members should be selected by a separate panel of eminent persons, to be appointed by the IBF Board. The 4 non-broadcaster Members shall be renowned persons of impeccable integrity, high social standing and outstanding achievements from the following fields:
1. An eminent administrator with relevant experience http://www.judis.nic.in 18/78 W.P.No.21497 of 2017
2. An eminent media critic/expert
3. A person who has been a member of the CBFC for two years or more
4. An eminent social worker
(d) Four (4) Members from National-level Statutory Commissions shall either be the Chairperson or any other Member of such Commission so nominated by Chairperson of the Commission.
Provided that one Member each shall be from National Commission for Women (NCW), National Commission for Protection of Child Rights (NCPCR) and National Commission for Schedule Caste respectively. The fourth Member shall be from any of the national-level Statutory Commissions such as, National Commission for Schedule Tribes, National Commission for Minorities, National Commission for Backward Classes, National Human Rights Commission (NHRC), to be selected on a rotational basis, depending on the nature of complaint being dealt by BCCC in a particular meeting.
(e) Four (4) broadcaster Members should be nominated by voting at the Annual General Body Meeting (AGM) of the IBF, to ensure fair and transparent representation.
(f) Quorum of meeting of BCCC shall be at least seven (7) Members, out of which, at least three would be non-broadcaster members. But if any meeting has to be adjourned for want of quorum, then at the adjourned meeting the Members present whatever their number shall http://www.judis.nic.in 19/78 W.P.No.21497 of 2017 form a quorum and shall have power to decide upon all matters, which could have been disposed off at the adjourned meeting.
(g) All decisions of the BCCC shall be by simple majority of the Members present and shall be in writing and may specify the action to be taken by the concerned Television Channel in respect of the television programmes complained against. The Chairperson’s view shall have the same weightage as that of any other Member of BCCC. VI. TERMS & CONDITIONS:
(a) The Chairperson and other Members, shall hold office for a period of three (3) years.
Provided that the Chairperson shall continue to hold office until the BCCC is re-constituted in accordance with the procedure, as enunciated at sub para 1.1 to 1.5 above, or for a period of Three (3) months whichever is earlier. Process of appointment of new BCCC shall be initiated by IBF at least 60 days prior to the expiry of the term of the BCCC.
Provided also that where a person nominated as a Member of the BCCC is found unfit to hold office as Member of the BCCC, the Chairperson may remove such person from being Member and thereupon, such Member shall forthwith cease to be a Member of the BCCC.
(b) Non-broadcaster Members nominated in the BCCC shall not be eligible for renomination after expiry of his/her tenure of 3 years.
(c) Broadcasters Members nominated in the BCCC http://www.judis.nic.in 20/78 W.P.No.21497 of 2017 shall not be eligible for renomination at least for one year.
(d) A Member shall be deemed to have vacated his/her seat if he/she is, in the opinion of the Chairperson, absent without sufficient cause, from three (3) consecutive meetings of the BCCC.
(e) The Chairperson may resign his office by giving notice in writing to the IBF Board, and any other Member may resign his office by giving notice in writing to the Chairperson, and upon such resignation being accepted by the IBF Board or by the Chairperson, as the case may be, the Chairperson or the Member shall be deemed to have vacated his office.
(f) Any vacancy arising as above or otherwise shall be filled, as soon as may be, by nomination in the same manner in which the Member vacating office was nominated and the Member so nominated shall hold office for the remaining period in which the Member in whose place he is nominated would have held office. VII. TERMS OF SERVICE OF CHAIRPERSON AND MEMBERS:
The Chairperson and non-Broadcaster Members will be paid sitting fee of Rupees five thousand (Rs.5000/-) for attending each meeting of BCCC. They will also be provided pick and drop facility for attending the meetings. Economy class air fare and suitable accommodation, as per arrangement made by IBF, will be provided to outstation Members. Broadcast Members in the BCCC will not be entitled for any sitting fee, reimbursement of traveling, boarding and lodging expenses.
http://www.judis.nic.in 21/78 W.P.No.21497 of 2017 VIII. PROCEDURE:
(a) Any person or a group of persons may, either individually or jointly, file a complaint directly to BCCC against any programme broadcast on any of the TV Channels within 14 (fourteen) days from the date of the first broadcast.
The complainant may write to the Secretary, BCCC C/o Indian Broadcasting Foundation, B-304, 3rd Floor, Ansal Plaza, Khelgaon Marg, New Delhi - 110 049. A complaint must be made in writing, either in English or Hindi, and must include the following:
1. Name, age, complete address of the complainant
2. Name of TV Channel and specify the programme
3. Date and time of broadcast
4. Short summary of the subject matter of the complaint.
However, in order to facilitate the General Public making complaints, the Secretariat will not insist on accepting complaints in the prescribed format.
In case the complaint is sent by e-mail, a hard copy of the complete complaint with enclosures may also be sent by post to Secretary, BCCC. Complainant can also register his/her complaints online as well. On receipt of a complaint, the BCCC Secretariat will acknowledge the complaint within two working days of the receipt of the complaint.
(b) All complaints so received will be put up for orders of Chairperson by BCCC Secretariat within three working days from the receipt of the complaint(s). If the http://www.judis.nic.in 22/78 W.P.No.21497 of 2017 complaint appears prima facie vexatious, frivolous or motivated or appears baseless, the Chairperson shall initiate no action but will direct BCCC Secretariat to put up the same at the next meeting of BCCC to decide whether the complaint should be processed or not. The BCCC shall direct further action to be taken.
(c) In case of any complaints received by the BCCC for a channel which is not a member of IBF, then such complaint shall be forwarded to the Ministry of Information and Broadcasting for appropriate action.
(d) If Chairperson feels that complaint appears to, prima facie, indicate a possible violation of the Code, the Chairperson will direct BCCC Secretariat to ask the concerned Channel to submit their views on the offending content within one (1) working week from the receipt of the letter from BCCC in the matter. On receipt of request from BCCC, the Electronic Monitoring Media Center (EMMC), Ministry of Information and Broadcasting shall submit tape/CD on the offending content within two (2) working days.
(e) The reply of the Channel, if any, along with video/footage as received from EMMC will be put up for consideration of BCCC in its next meeting.
(f) If BCCC is not satisfied with the response of the concerned Channel, the BCCC should decide whether the offending content has violated the Guidelines. In case a violation is detected, BCCC shall direct the concerned Channel to modify or withdraw such content within a week http://www.judis.nic.in 23/78 W.P.No.21497 of 2017 on receipt of direction from BCCC.
(g) It shall be open to the Channel to seek a personal hearing and to BCCC to seek the Channel’s presence at their meeting. However, this shall not be construed to grant any further time extension but must be allowed within the same period granted by sub section 3(iii).
(h) If the representative of the Channel fails to appear before BCCC on the stipulated date, the BCCC may decide the complaint ex-parte as the BCCC may deem fit.
(i) In the event of a channel found to have been/being telecast any objectionable unauthorized content, messages, or communication inconsistent with public interest or national security or its continued telecast may create a serious law and order problem or incite violence, BCCC may, upon due consideration, pass an interim order directing immediate withholding of the offending telecast by the Channel and direct the Channel to send its justification within twenty four hours to enable issue of final order by the BCCC in the matter. If the channel defies the order of the BCCC, the matter may be referred to Ministry of Information and Broadcasting within the next 24 hours for appropriate action.
(j) If it appears to BCCC that a motivated complaint has been made with the objective of tarnishing the reputation and or the goodwill of the concerned Channel in the market, the BCCC can blacklist such complainants for three years and no complaint shall be entertained thereafter from such complainants.
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(k) The BCCC shall not entertain anonymous as well as pseudo-anonymous complaints.
IX. PROCEDURE FOR IMPOSING DIRECTIONS/ORDERS BY BCCC AND COMPLIANCE THEREOF I. DIRECTIONS/ORDERS This section of the Guidelines prescribes the procedure to be followed by BCCC when considering direction/penalty against the channel for non-compliance of the Guidelines. Imposition of direction/penalty against a channel is a very serious matter. After following the due process of complaint redressal and the principles of natural justice, if BCCC arrives at decision that a channel has seriously, deliberately, repeatedly or recklessly violated IBF’s Self-Regulatory Guidelines, then BCCC may consider imposition of following direction/penalty to establish seriousness in compliance of the Guidelines:
1. Issue a Warning to the channel to be more cautious in future in its depiction while telecasting particular kind of content.
2. Issue a Direction to the channel to not repeat particular episode of a programme.
3. Issue a Direction to avoid particular kind of reference in the programme or to edit/ modify the programme.
4. In a rare case, issue a Directive giving option to channel either to modify the content of the episode for viewing during general hours or to shift the telecast of the episode to restrictive viewing hours.
BCCC must observe the following principle of the http://www.judis.nic.in 25/78 W.P.No.21497 of 2017 Guidelines while passing direction under this sub-clause:
“There is a progressive decline in the proportion of minors present as television audience through the evening and during the night. The restriction on the broadcast of programmes unsuitable for minors should be relaxed on a gradual basis after 8 pm. The assumption is that after 8 pm parents are expected to share responsibility for what their children are permitted to watch on television.”
5. Issue an Order to telecast an Apology Scroll in a standard format that shall be applicable to all similar decisions. There should be gradation of violations, ranging from mild to severe, and frequency of apology scroll should be determined accordingly.
6. Impose a Financial Penalty in a graded manner up to a maximum of Rupees 30 lakh. There shall be gradation of violations, ranging from mild to severe, and amount of Financial Penalty should be determined accordingly. The financial Penalty could be graded in six buckets – Rs 1 lakh, Rs 2.5 lakh, Rs 5 lakh, Rs 10 lakh, Rs 15 lakh, Rs 20 lakh and Rs 30 lakh.
BCCC, while passing order, must clarify that IBF’s Self-Regulatory Guidelines’ violations in no manner can be considered as violation as per Ministry of I&B Guidelines since that would amount to double jeopardy and there are separate laws and policy guidelines for the same.
II. FACTORS TO DECIDE GRADATION OF PENALTIES To determine whether the breach is serious, deliberate, repeated or reckless, the BCCC must consider the following http://www.judis.nic.in 26/78 W.P.No.21497 of 2017 factors:
1. The degree of breach - this refers to the extent and severity of the breach
2. The duration of the breach - the time period for which breach was alive
3. The harm caused as a result of the breach - Assess the degree of harm, both actual and potential, caused by the breach that may affect the audience
4. The financial gain made by the broadcaster as a result of the breach - Is it the case that broadcaster has committed breach to gain Television Ratings?
5. The reversibility of the harm - whether the harm can be corrected through any measure
6. The steps taken by the broadcaster to remedy and correct the consequences of the breach, including complying with the initial recommendations of the BCCC III. REMEDIAL ACTIONS In case a channel/broadcaster does not comply with the Orders passed by the BCCC, following recommendation, ANY ONE or a COMBINATION, can be made by BCCCto the IBF Board of Directors:
1. To not consider any request of the said TV channel/broadcaster pertaining to outstanding of collection monies from the concerned advertiser for a limited period until the matter is resolved.
2. To recommend to the Ministry of Information & Broadcasting, in exceptional cases, for initiating appropriate action against the channel concerned as per http://www.judis.nic.in 27/78 W.P.No.21497 of 2017 the law.
3. Adopt a resolution to expel the said TV channel/broadcaster from the membership of IBF IV. TIMELINE FOR DISPOSAL OF A COMPLAINT BY BCCC It would be the endeavor of BCCC to pass the final orders within Three (3) weeks of the receipt of the complaint. In case the BCCC is not able to dispose of a complaint within Three (3) weeks, the Chairperson, BCCC would write to the Ministry of I&B, giving brief reasons for the non-disposal of complaint.
V. SUO MOTU PROCEEDINGS OF BCCC The BCCC may initiate suo motu proceedings against any programme broadcast on any of the TV Channels as and when it deems necessary VI. SUO MOTU COMPLAINTS When a member of the IBF Board or BCCC makes a complaint, then it is treated as a suo motu complaint. The IBF Board member or BCCC member is required to register a complaint in writing with the BCCC Secretariat, as is done by other complainants.
When a complaint is deliberated upon by the BCCC, it can raise a suo motu complaint on another matter against other claims made in the originally complained broadcast.
A suo motu complaint goes through the same process as other complaints, ensuring that the Broadcaster is given an opportunity. The BCCC member/s, who make a complaint, should not be part of the deliberations and http://www.judis.nic.in 28/78 W.P.No.21497 of 2017 evaluation of the specific complaint.
VII. OTHER PROVISIONS
(a) Each complaint to the BCCC, along with all supporting information provided by the Complainant and the Broadcaster complained against, will be placed as part of the agenda of the next BCCC meeting
(b) Once the BCCC has made a decision on the complaint, both the complainant and the party complained against will be informed of the BCCC decision, along with a copy of the order immediately Orders/directions of BCCC will be invariably endorsed to Ministry of Information and Broadcasting as well as EMMC and also put on the website of BCCC.
(c) Unless specifically sought, the BCCC’s meeting protocols will not provide for personal representation by the complainant/Channel concerned in respect of complaints being deliberated upon at the BCCC’s meeting
(d) Any BCCC member who has any interest in the complaint by virtue of being associated with the concerned Broadcaster or the complainant should automatically recuse and Secretariat should not send papers relating to the complaint and even if such papers have been sent such member shall voluntarily withdraw from the proceeding if it transpires that such member is associated with either of the parties
(e) If a positive response is not received or compliance is not assured by the Television Channel within one (1) week, BCCC may initiate action, as indicated at http://www.judis.nic.in 29/78 W.P.No.21497 of 2017 para 4 above immediately.
(f) IBF Secretariat will put on their website monthly details of complaints received, decisions taken by the BCCC and action taken by the concerned channels on the decisions of BCCC. The same will be circulated it to all IBF members. BCCC Secretariat will separately send a monthly report of cases of non-compliance by Television Channels to BCCC.
(g) BCCC Secretariat will put the details of Content Auditor of each Channel in their website for facilitating the general public.
D. IBF’S CONTENT CODE & CERTIFICATION RULES 2011 CHAPTER–1: PRELIMINARY Short title, extent and commencement - This Code and Rules may be called the Indian Broadcasting Foundation “Content Code & Certification Rules 2011 (hereinafter the IBF Content Code 2011)”, as approved and adopted by the Board of Indian Broadcasting Foundation.
It shall extend to all general entertainment and non- news and current affairs television channels operating in India.
It shall come into effect on the date as notified the by Board of the IBF.
Definitions - In this IBF Content Code, unless the context otherwise requires;
(a) “Broadcaster or Broadcast Service provider (BSP)” means any person who provides a content http://www.judis.nic.in 30/78 W.P.No.21497 of 2017 broadcasting service and includes a broadcasting network service provider when he manages and operates his own television channel;
(b) “Broadcasting Network Service” means a service, which provides a network of infrastructure of cables or transmitting devices for carrying broadcasting content in electronic form on specified frequencies by means of guided or unguided electromagnetic waves to multiple users, and includes such other Network Service as may be prescribed by the Authority;
(c) Broadcasting Content Complaints Council (BCCC) – means the independent, autonomous complaints redressal authority prescribed under this IBF Content Code as adopted and ratified by the Board of the IBF.
(d) “Categorization”- of a programme implies calibration of a program according to theme, subject matter treatment and audio visual depiction suitable for the two categories of Generally Accessible “G” and Restricted Access “R” programs. All programmes/scenes will be categorized based on the following:
Theme: Subject matter, topic or idea of content Subject matter treatment: the treatment given to the overall theme keeping in view the `Likely impact” among viewers or listeners.
Audio visual presentation: On screen/ on air presentation of the theme.
(e) “Category ’G’ ” Programmes which are suitable for unrestricted viewing by all viewers and/or under http://www.judis.nic.in 31/78 W.P.No.21497 of 2017 Parental Guidance.
“Category ’R’ ” means restricted programmes that are not meant for children and young viewers.
(f) “Content” means any sound, text, data, picture (still or moving), other audio-visual representation, signal or intelligence of any nature or any combination thereof which is capable of being created, processed, stored, retrieved or communicated electronically;
(g) “Content Broadcasting service” means the assembling, programming and placing content in electronic form and transmitting or re-transmitting the same on electromagnetic waves on specified frequencies, on a broadcasting network so as to make it available for access by multiple users by connecting their receiving devices to the network, and includes such other content broadcasting services as may be prescribed by the Central Government from time to time.
(h) “Channel” means a set of frequencies used for transmission of a programme;
(i) “Content Code” means the IBF Content Code and Certification rules as prescribed herein;
(j) “Defamation” : It will have the same meaning as given in the Indian Penal Code (IPC) or any amendments thereto or in any other law for the time being in force.
(k) “Depiction of cruelty to animals” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image or sound recording, of conduct in which a living animal is http://www.judis.nic.in 32/78 W.P.No.21497 of 2017 intentionally harmed, maimed, mutilated, tortured, wounded or killed or any other such conduct that is illegal under the animal-protection laws.
(l) “Identifiable larger public interest” shall mean the subject matter treatment or audio visual presentation of themes relating to social evils, gender or caste based issues, criminal or disreputable behavior, protecting public health or safety; exposing misleading claims made by individuals or organizations; or depicting significant incompetence or corruption in public office for the larger public interest.
(m) “Libel”: A published (including broadcast) false statement with the intent to damage a person’s reputation; a written defamation.
(n) “Pornography” means Description or depiction of sexual acts or naked people in a way that is intended to cause sexual excitement but would be considered of no artistic value or unpleasant or offensive by most people.
(o) “Programme” in relation to broadcasting service, means:
1. Any matter the purpose of which is related to entertain, educate or inform public or
2. Any sponsorship matter, whether or not of a commercial kind;
But does not include any matter that is wholly related to or connected with any private communication.
(p) “Prescribed” means prescribed by the IBF Content Code and /or the BCCC http://www.judis.nic.in 33/78 W.P.No.21497 of 2017
(q) “Slander”: The action or crime of intentionally and deliberately making a false spoken statement damaging to a person’s reputation
(r) “Suffering” shall mean and include physical or mental pain or distress or trauma caused to a human being or an animal by mistreatment.
(s) “Trophy” means the whole or any part of any captive animal or wild animal that has been kept or preserved by any means, whether artificial or natural, and includes;
1. Rugs, skins and specimens of such animals mounted in whole or in part through aprocess of taxidermy; and
2. Antlers, horns, hair, feathers, nails, teeth, musks, eggs, nests rhinoceros horn.
(t) “Violence” means any overt depiction of a credible threat of physical force or the actual use of such force intended to physically harm an animate being or group of beings and includes domestic violence and all kinds of sexual harassment and torture in word, gesture or action. Violence also includes certain depictions of physically harmful consequences against an animate being or group that occur as a result of unseen violent means.
(u) “Warranted” means that where broadcasters wish to justify an infringement of privacy or the subject matter treatment or audio visual presentation of themes of identifiable larger public interest as warranted, they should be able to demonstrate why in the particular circumstances http://www.judis.nic.in 34/78 W.P.No.21497 of 2017 of the case, it is warranted. If the reason is that it is in identifiable larger public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy and /or does not violate any of the provisions of the IBF Content Code and restrictions on subject matter treatment and audio visual presentation of themes under this Code.
CHAPTER-2: PROGRAMME CLASSIFICATION SYSTEM
1. Scheduling Rules
1. The BSP shall ensure that all Programmes are categorized and self certified by each BSP as either (a) Category ‘“G”’ Programmes which are suitable for unrestricted viewing by all viewers and/or under Parental Guidance and (b) Category ‘R’ Programmes which may not be suitable for Children & Young viewers.
2. The BSP shall broadcast each category of programme in accordance with scheduling set out below:
S.No Category of Programme Scheduling of programme 1 Categories ‘Generally Accessible ‘G’ At all times Programmes which are suitable for unrestricted viewing by all viewers and/or under Parental Guidance’ 2 Category ‘Restricted Access ‘R’ Programmes 11:00 pm to which may not be suitable for Children & 5:00 am Young viewers Provided that the BSP shall ensure that Category Restricted Access ‘R’ programmes which may not be suitable for Children & Young viewers will be edited in http://www.judis.nic.in 35/78 W.P.No.21497 of 2017 conformity with restrictions given in the Categorization System.
3. Notwithstanding anything contained in any other rules or regulations in force for the time being, the BSP shall obtain prior certification from the CBFC or any other authority as may be authorized by the Central Government, for:
“All films (including foreign films, music videos, albums, trailers, promos, songs,etc.)”;
And shall broadcast them on television or radio only after such certification and shall schedule them consistent with their certified categorization as above.
4. As per the Cable TV Networks (Regulation) Act, all complaints related to advertisements shall be regulated by Advertising Standards Council of India (ASCI) CHAPTER–3: CATEGORISATION SYSTEM Except in cases where preview and certification by the CBFC or any other-competent authority is prescribed, all content i.e. every film, programme shall be self-certified by a Broadcasting Service Provider (BSP) under any one of the categories on the basis of the subject matter treatment and audio-visual presentation of various themes as may be prescribed from time to time. Each film, programme shall be certified and given an overall categorization by the CBFC or the BSP or any other competent authority, as the case may be It is mandatory that each programme is adjudged ‘Generally Accessible’ [Programmes for unrestricted viewing and/or under Parental Guidance] to http://www.judis.nic.in 36/78 W.P.No.21497 of 2017 obtain overall ‘G’ certification. Any content that violates the prescribed restrictions may be refused certification by the CBFC or the BSP or any other competent authority for reasons to be recorded in writing and after giving a reasonable opportunity to the applicant/content provider to explain his position or make suitable modification in the content.
Unless the context otherwise requires by storyline/theme, all other content shall be categorized in accordance with the following norms:
PROGRAMME CATEGORIZATION SYSTEM [“G” Programmes for unrestricted viewing and/or under Parental Guidance and “R” Programmes which may not be suitable for Children & Young viewers] Theme 1: Crime & Violence Subject Matter Treatment: While the overall theme, storyline and characterization may justify one or more specific scenes of crime or violence, the subject-matter treatment of such content under all categories shall not:
1. Induce, incite, encourage, justify, reinforce or glorify violence or terror or its perpetrators or contain anything against the maintenance of law and order or promote anti-national attitudes.
2. Present violence as glamorous or an acceptable solution to human conflict.
3. Incite violence against specific groups identified by race, national or ethnic origin, colour, class, religion, gender, sexual orientation, age or mental or physical disabilities.
4. Present criminality as desirable and / or glamorous.
5. Endanger human lives or prejudice the success of attempts to deal with a hijack or “hostage” or kidnapping crisis or a law & order situation or any other security-related or criminal investigation.
6. Have a traumatic, desensitizing or dehumanizing effect that could lead to psychological disorders or unsocial attitudes or behavior, particularly among minors.
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7. Encourage emulation of criminal or violent behavior.
8. Provide opportunities to copy the modus operandii of criminals and thereby encourage commission of any offences or crimes.
9. Encourage the possession of wildlife as trophies Audio – Visual Presentation: The audio visuals presentation of any content will be given in a responsible and aesthetic manner, subject to the condition that the following shall not be included in respective categories below:
Category “G” Category “R”
Programmes for unrestricted Programmes which may not be
viewing and/or under Parental suitable for Children & Young
Guidance viewers
a) Excessively explicit or gruesome a) Prolonged or frequent close-
crime or violence. up shots of gruesome crime or
b) Excessively explicit portrayal of violence. eccentric or abnormal violence or b) Prolonged or frequent dangerous behavior. portrayal of explicit eccentric or
c) Close-ups or prolonged shots of abnormal violence or dangerous dismembered or disfigured limbs behavior.
or c) Prolonged close-up shots of
bodies. blood and gore or dismembered
d) Depict images of dead or or disfigured limbs or bodies.
seriously wounded people or d) Excessive depiction images of
gruesome and gory scenes while dead or seriously wounded
showing violent events, natural people or gruesome and gory
calamities or accidents. scenes while showing violent
e) Depict explicit cruelty or events, natural calamities or
violence towards animals, or accidents,
whose production may subject e) Prolonged or frequent
animals to excessive pain, fear or depiction of simulated explicit
suffering. cruelty or violence towards
f) Show details of methods of animals, or whose productive
suicide or self harm may subject animals to excessive
pain, fear or suffering.
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W.P.No.21497 of 2017
Theme 2: Sex, Obscenity & Nudity
Subject Matter Treatment: While subjects of themes exploring human relationships may include sexual relations, the subject- matter treatment of such content under all categories shall not:
1. Incite or encourage induce viewers to obscene or indecent behavior or breach of law.
2. Present sex, nudity, kissing or offensive behavior or language so as to glorify, encourage or justify induce or incite indecent or obscene behavior.
3. Present the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent degrading or derogatory to woman or depict women as mere objects or symbols of sexual desires or behavior.
Audio – Visual Presentation: The audio visual presentation of any content will be given in a responsible and aesthetic manner, subject to the condition that the following shall not be included in respective categories below:
Category “G” Category “R”
Programmes for unrestricted Programmes which may not be
viewing and/or under Parental suitable
Guidance for Children & Young viewers
a) Highly coarse language with a) Prolonged use of highly coarse
explicit sexual connotations. language or dialogues with
b) Show nudity, with full exposure explicit sexual connotations
of lower abdomen or sexual organs unless the storyline, or subject
or posterior or full female’s matter or the context justifies its
breast/s. use.
c) Show fondling of female breasts b) Show complete nudity with full
or human or animal sexual organs. exposure of sexual organs or full
d) Close-up shots of crude gestures female or movements, suggestive of breast/s except under sexual activity. exceptional circumstances such
e) Show explicit images of sexual as programmes featuring activity or sexual perversions or historical or dramatized events violence including rape, e.g. tribal ways of life, health http://www.judis.nic.in 39/78 W.P.No.21497 of 2017 Audio – Visual Presentation: The audio visual presentation of any content will be given in a responsible and aesthetic manner, subject to the condition that the following shall not be included in respective categories below:
molestation etc: programmes or in restricted
f) Show pornography programming.
c) Fondling of female’s breasts or human or animal sexual organs.
d) Prolonged depiction of crude movements of sexual activity.
e) Show explicit images of sexual perversions or acts of sexual intercourse
- 24 - being performed. Show explicit images of violence including rape, molestation etc., unless the storyline, or subject matter or context justifies its use.
f) Show pornography Theme 3: Horror & Occult Subject Matter Treatment: While subjects or themes dealing with exorcism, the occult, the paranormal, divination, human or animal sacrifice or such other practices depicting horror may be covered only in `R’ category [programmes not suitable for Children & young viewers] provided the storyline or the characters justify these and the subjects matter treatment does not in any way:
1. Justify, encourage or glamorize such practices
2. Instill fear or revulsion about the consequences of not following such practices
3. Encourage blind belief or superstitions in the efficacy of such practices
4. Enable the viewer to emulate such practices or learn their details or sources.
5. Depict women as witches in programs on occult http://www.judis.nic.in 40/78 W.P.No.21497 of 2017 Theme 3: Horror & Occult Audio – Visual Presentation: The audio visual presentation of any content will be given in a responsible and aesthetic manner, subject to the condition that the following shall not be included in respective categories below:
Category “G” Category “R”
Programmes for unrestricted Programmes which may not be
viewing and/or under Parental suitable for Children & Young
Guidance viewers
a) Prolonged, frequent or a) Prolonged, frequent or
gratuitous depiction of horror gratuitous depiction of excessive
related to the occult, exorcism, horror related to the occult,
the paranormal, divination or exorcism, the paranormal,
human or animal sacrifice or other divination or human or animal
such practices. sacrifice or other such practices.
b) Depiction of such practices in
such morbid details so as to make
them look realistic and efficacious.
Theme 4: Drugs, Smoking, Tobacco, Solvents & alcohol Subject Matter Treatment: While use of illegal or narcotic drugs or tobacco and tobacco products or smoking, or the abuse or misuse of drugs, alcohol or solvents, may be shown only under `R’ category [programmes not suitable for Children & young viewers] if the theme, storyline or the characters justify these, provided the subject-matter treatment shall not in any way:
1. Justify, promote, encourage or glamorize use or misuse of such products
2. Enable the viewers to learn and emulate various ways of their abuse or misuse
3. Omit to highlight their ill effects on personal health or social behaviour or criminal tendencies Note : Depiction of public health messages or programs on de-addiction shall not be governed by the above restrictions.
Audio – Visual Presentation: The audio visual presentation of any content will be given in a responsible and aesthetic manner, subject to the condition that the following shall not be included in respective categories below:
http://www.judis.nic.in 41/78 W.P.No.21497 of 2017 Category “G” Category “R” Programmes for unrestricted Programmes which may not be viewing and/or under Parental suitable for Children & Young Guidance viewers
a) Depict the use of illegal or a) Prolonged or frequent or narcotic drugs or tobacco and gratuitous depiction of the use of tobacco products or smoking, or illegal or narcotic drugs or tobacco the abuse or misuse ofdrugs, and tobacco products or smoking, alcohol or solvents or other such or the abuse or misuse of drugs, harmful products. alcohol or solvents or other such
b) Depict the details of methods of harmful products.
preparation or procurement or b) Depict the details of methods of such use or abuse or misuse of such preparation or procurement or harmful products. such use or abuse or misuse of such harmful products.
Theme 5: Religion & Community Subject Matter Treatment: The subject-matter treatment of any program under all categories shall not in any manner:
1. Defame religions or communities or be contemptuous of religious groups or promote communal attitudes or be likely to incite religious strife or communal or caste violence.
2. Incite disharmony, animosity, conflict, hatred or ill will between different religious, racial, linguistic groups, castes or communities.
3. Counsel, plead, advise, appeal or provoke any person to destroy, damage or defile any place of worship or any object held sacred by any religious groups or class of persons.
4. Proselytize any particular religion as the `only’ or `true’ religion or faith or provoke, appeal, advise, implore or counsel any person to change his religion or faith.
5. Play on fear of explicit or implicit adverse consequences of not being religious or not subscribing to a particular faith or belief.
6. Promote any dangerous, retrogressive or gender discriminatory practices in the name of religion or faith or ideology.
Audio – Visual Presentation: The audio visual presentation of any content will be given in a responsible and aesthetic manner, subject to the condition that the following shall not be included under all http://www.judis.nic.in 42/78 W.P.No.21497 of 2017 categories (“G” Programmes for unrestricted viewing and/or under Parental Guidance or “R” Programmes not suitable for children & young viewers)
a) Distort or demean or depict in a derogatory manner the physical attributes or social customs and practices of any ethnic, linguistic, religious groups or any caste or communities.
b) Distort or demean or depict religious or community symbols or idols or rituals or practices in a derogatory manner.
Theme 6: Harm & Offence Subject Matter Treatment: The subject-matter treatment of any program under all categories shall not in any manner:
1. Create public panic or unnecessary alarm, which is likely to encourage or incite the public to crime or lead to disorder or be offensive to public feeling.
2. Ridicule, mock or scorn physically or mentally challenged persons.
3. Encourage superstition about the causes of mental illness or stigmatize the mentally sick as violent or dangerous.
4. Stereotype mental health practitioners as unethical or exploitative
5. Disclose the location of a person’s home or family without permission, unless it is warranted
6. Question minors about private matters without the consent of a parent or legal guardian unless it is warranted to proceed without such consent for an identifiable larger public interest.
7. Stereotype women as passive or submissive so as to promote or glorify their subordinate or secondary role in the family or society.
8. Portray women as primarily driven by sexual impulses or the female body or form as an object of sexual exploitation.
9. Promote, glorify or justify social evils such as child marriage, dowry, bigamy, son preference, etc.
10. Glamorize, promote, encourage such activities & sports, which encourage ecological imbalance and hurt animals.
Audio – Visual Presentation: The audio visual presentation of any content will be given in a responsible and aesthetic manner, subject to the condition that the following shall not be included under “G” Programmes for unrestricted viewing and/or under Parental Guidance and “R” Programmes not suitable for children & young viewers categories http://www.judis.nic.in 43/78 W.P.No.21497 of 2017 below:-
a) Depict the physical attributes or personality traits or mental deficiencies of an individual or a class of individuals in a derogatory manner so as to evoke ridicule or contempt.
b) Depict mentally challenged people as more violent or dangerous than the common persons.
c) Show scenes involving children in violence as victims or as perpetrators or as forced witnesses to violence or being subjected to any form of child abuse.
d) Portray by gestures or expressions or words or images that women are primarily driven by sexual impulses or that the female body or form is an object of sexual exploitation.
e) Reveal the identity of an individual or his family or location of his home or fail to protect the privacy of his personal or private activities by failing to use suitable techniques such as masking blurring, changing names or identities etc., particularly in the cases of minors, victims of sexual violence or dreaded diseases like HIV/AIDS or natural or other disasters unless there is an identifiable larger public interest involved.
Theme 7: General Restrictions Subject Matter Treatment: The subject-matter treatment of any program under all categories shall not in any manner:
1. Contravene the Constitution of India or the applicable Indian laws
2. Cast aspersions against integrity of the Nation
3. Involve defamation or contempt of court.
4. Adversely affect the judicial process of the country
5. Affect the integrity of the country or jeopardize or endanger the security of the State
6. Cast aspersions against the integrity of the President or the Judiciary
7. Exploit the national emblem .
Audio – Visual Presentation: The audio visual presentation of any content will be given in a responsible and aesthetic manner, subject to the condition that the following shall not be included in all categories (“G” Programmes for unrestricted viewing and/or under Parental Guidance or ”R” Programmes not suitable for Children & young viewers) below:-
a) Distort or demean or depict national emblem or symbols or national geographical boundaries in a derogatory manner deliberately.
http://www.judis.nic.in 44/78 W.P.No.21497 of 2017 In Indraprastha People & Anr v. Union of India, a Hon'ble Division Bench of Delhi High Court, considered a Public Interest Writ petition, a reality show, should be investigated and the licence be cancelled, on the grounds offensive to the sentiments of children, indecent and, and vulgar language uses. After considering it the The Cable Television Networks (Regulation) Act, 1995 and the rules framed. Program Code and Advertising Code. Powers of the BCCI, (Broadcasting Content complaints council) self Regulating Body, at paragraphs 18 to 72, considered and ordered thus:
“....
18. Admittedly, neither under 'The Cable Television Networks (Regulation) Act 1995´ or the Rules of 1994, a regulatory body has been constituted. In other words, the provisions of the Act and the Rules are enforced by the executive, and this would be any functionary of the Government of India working in the Ministry of Broadcasting. The Union of India claims that an administrative decision has been taken that complaints would be examined by a Committee consisting of: (i) Additional Secretary, Ministry of Information and Broadcasting - as Chairperson; (ii) Joint Secretary, Ministry of Home Affairs; (iii) Joint Secretary, Ministry of Law & Justice; (iv) Joint Secretary, Ministry of Women and Child Development; (v) Joint Secretary, Ministry of Health and Family Welfare; (vi) Joint Secretary, Ministry of External http://www.judis.nic.in 45/78 W.P.No.21497 of 2017 Affairs; (vii) Joint Secretary, Ministry of Defence, (viii) Representative from the 'Advertising Standards Council of India (A Self Regulatory Body of the Advertising Industry)'; and (ix) Joint Secretary (Broadcasting).
19. And we simply highlight that we fail to understand as to what would the Joint Secretary in the Ministry of Home Affairs, Ministry of External Affairs and Ministry of Defence be doing?
20. In the year 2008 the Government of India had prepared a draft of 'Self-Regulation Guidelines for the Broadcasting Sector - 2008', proposing a two-tier self regulatory mechanism. Firstly a self-regulatory system where a broadcaster would nominate an individual charged with the duty to comply with the law, to whom a complaint could be addressed. At the second tier was, if we may use the expression, an Appellate Forum at the industry level being 'Broadcasting Consumers Complaint Committee' (BCCC) consisting of professional experts representing all stake holders such as industry, consumer, civil society and organizations of eminence in social sciences. As per the Union of India concerns were expressed by various sections in the media. A wide ranging consultative process was put into motion with all stake holders, but a consensus eluded.
Conceding that the regulations of 2008 have no statutory force, as per Union of India and respondent No.3 the Indian Broadcasting Foundation, a body of broadcasters has set up BCCC which is functioning from July 01, 2011. The Committee consists of:-
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(i) A retired Judge of the Supreme Court or a High Court.
(ii) Four eminent persons.
(iii) Four members from any National
level Statutory
Commissions.
(iv) Four broadcast members.
i.e. 13 members in all.
21. As informed to us under cover of written submissions filed by respondent No.3, as of today the 13 member board consists of:-
(i) Justice (Retd.) A.P.Shah (Ex Chief Justice of Delhi High Court)
(ii) Mr.Bhaskar Ghose, eminent theatre personality and Retd.IAS Officer
(iii) Ms.Shabana Azmi, eminent actress and activist
(iv) Mr.Vir Sanghvi, eminent journalist
(v) Prof.Anand Kumar from Jawaharlal Nehru University
(vi) Ms.Mamta Sharma, Chairperson, National Commission for Women (NCW)
(vii) Dr.P.L.Punia, Chairperson, National Commission for Schedule Castes (NCSC)
(viii) Ms.Dipa Dixit, Member, National Commission for Protection of Child Rights (NCPCR)
(ix) Mr.Ashok Nambissan, Multi Screen Media Pvt. Ltd.
(x) Mr.Himavat Chaudhuri, Turner General http://www.judis.nic.in 47/78 W.P.No.21497 of 2017 Entertainment Network
(xi) Mr.Nittin Keni, Zee Network
(xii) Mr.Sujeet Jain, Viacom 18 Media Pvt. Ltd.
22. A peep into the statute would reveal, as per Section 3 of The Cable Television Networks (Regulation) Act 1995, hereinafter referred to as 'the Act', that no person can operate a cable television network without being registered as a cable operator under the Act. As per the definition clause i.e. Section 2(aa), a cable operator would be a person who provides a service through a cable television network; and as per clause (c) of Section 2, a cable television network would mean any system consisting of a set of closed transmission paths and associated signal generation designed to provide cable service for reception by multiple subscribers.
23. Suffice would it be to state that a term of registration to operate a cable television network is that the cable operator would abide by the statutory provisions of the Act.
24. Section 5 of the Act and Section 6 of the Act read as under:-
-5. Programme Code.- No person shall transmit or re- transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code.
6. Advertisement code.- No person shall transmit or re- transmit through a cable service any advertisement unless such advertisement is in conformity with the http://www.judis.nic.in 48/78 W.P.No.21497 of 2017 prescribed advertisement code.
25. Sections 16 and 17 provide for punishment for contravention of the provisions of the Act and offences by companies respectively. The two provisions read as under:-
"16. Punishment for contravention of provisions of this Act. -
1. Whoever contravenes any of the provisions of this Act shall be punishable, -
(a) for the first offence, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both;
(b) for every subsequent offence, with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees.
2. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the contravention of section 4A shall be a cognizable offence under this section.
17. Offences by companies. -
(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub- section shall render any such person liable to any punishment, if he http://www.judis.nic.in 49/78 W.P.No.21497 of 2017 proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-
section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation. - For the purposes of this section, -
(a)Company' means any body corporate and includes a firm or other association of individuals; and
(b) director' in relation to a firm means a partner in the firm.”
26. Sections 19 and 20, enable the authorized officer to prohibit a cable operator from transmitting or re- transmitting a programme which is not in conformity with the prescribed programme code or the advertisement code referred to in Sections 5 and 6 as also such programmes which are found to be within the ambit of the latter part of Section 19. Section 20 empowers the Central Government to prohibit the operation of a cable television network itself if as contemplated by Section 20 it becomes necessary in public interest to do so. Sections 19 and 20 http://www.judis.nic.in 50/78 W.P.No.21497 of 2017 read as under:-
"19. Power to prohibit transmission of certain programmes in public interest. -
Where any authorized officer, thinks it necessary or expedient so to do in the public interest, he may, by order, prohibit any cable operator from transmitting or re- transmitting any programme or channel if, it is not in conformity with the prescribed programme code referred to in section 5and advertisement code referred to in section 6 or if it is likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquility.
20. Power to prohibit operation of cable television network in public interest. -
1. Where the Central Government thinks it necessary or expedient so to do in public interest, it may prohibit the operation of any cable television network in such areas as it may, by notification in the Official Gazette, specify in this behalf.
2. Where the Central Government thinks it necessary or expedient so to do in the interest of the -
(i) sovereignty or integrity of India; or
(ii) security of India; or
(iii) friendly relations of India with any foreign State; or http://www.judis.nic.in 51/78 W.P.No.21497 of 2017
(iv) public order, decency or morality, it may, by order, regulate or prohibit the transmission or re-
transmission of any channel or programme.
3. Where the Central Government considers that any programme of any channel is not in conformity with the prescribed programme code referred to in Section 5 or the prescribed advertisement code referred to in section 6, it may by order, regulate or prohibit the transmission or re- transmission of such programme.
27. Providing flesh and blood to the skeleton of Section 5 and Section 6 of the Act, pertaining to ' Programme Code' and 'Advertising Code', Rule 6 and 7 of The Cable Television Networks Rules 1994 enumerate as under:-
"6. Programme Code. -
(1) No programme should be carried in the cable service which -
(a) offends against good taste or decency;
(b) contains criticism of friendly countries;
(c) contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes;
(d) contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths;
(e) is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes.
(f) contains anything amounting to contempt of http://www.judis.nic.in 52/78 W.P.No.21497 of 2017 court.
(g) contains aspersions against the integrity of the President and Judiciary;
(h) contains anything affecting the integrity of the Nation;
(i) criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country;
(j) encourages superstition or blind belief;
(k) denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals;
(l) denigrates children;
(m) contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups;
(n) contravenes the provisions of the Cinematograph Act, 1952 (37 of 1952).
(o) is not suitable for unrestricted public exhibition. (2) The cable operator should strive to carry programmes in his cable service which project women in a positive, leader ship role of sobriety, moral and character building qualities.
(3) No cable operator shall carry or include in his cable service any programme in respect of which copyright subsists under the [Copyright Act, 1957 (14 of 1957] unless http://www.judis.nic.in 53/78 W.P.No.21497 of 2017 he has been granted a licence by owners of copyright under that Act in respect of such programme.
(4) Care should be taken to ensure that programmes meant for children do not contain any bad language or explicit scenes of violence.
(5) Programmes unsuitable for children must not be carried in the cable service at times when the largest number of children are viewing.
7. Advertising Code. -
(1) Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers.
(2) No advertisement shall be permitted which -
(i) derides any race, caste, colour, creed and nationality;
(ii) is against any provision of the Constitution of India:
(iii) tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way;
(iv) presents criminality as desirable;
(v) exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary;
(vi) in its depiction of women violates the Constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages http://www.judis.nic.in 54/78 W.P.No.21497 of 2017 them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service is tasteful and aesthetic, and is within the well established norms of good taste and decency;
(vii) exploits social evils like dowry, child marriage.
(viii) promotes directly or indirectly production, sale or consumption of--
(a) cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants;
(b) infant milk substitutes, feeding bottle or infant foods. (3) No advertisement shall be permitted the objects whereof are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end.
(3A) No advertisement shall contain reference which hurt religious sentiments.
(4) The goods or services advertised shall not suffer from any defect or deficiency as mentioned in the Consumer Protection Act, 1986.
(5) No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super-natural property or quality, which is difficult of being proved.
(6) The picture and the audible matter of the advertisement shall not be excessively 'loud' (7) No advertisement which endangers the safety of children or http://www.judis.nic.in 55/78 W.P.No.21497 of 2017 creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner shall not be carried in the cable service. (8) Indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements.
(9) No advertisement which violates the standards of practice for advertising agencies as approved by the Advertising Agencies Association of India, Bombay, from time to time shall be carried in the cable service. (10) All advertisements should be clearly distinguishable from the programme and should not in any manner interfere with the programme viz., use of lower part of screen to carry captions, static or moving alongside the programme.
28. As per the petitioner, the programmes of respondent No.3 offend good taste and decency as also denigrate women in such way that the mind thinks derogatory of women; in any case, says the petitioner, the format of the programmes not only corrupts but even injures public morality as also the morals of the society.
29. As a matter of fact, though the respondent No.3 never admitted it, but the Union of India admits that the three violations as alleged by the petitioner have been found to have been committed. Pertaining to the first violation, the content of the programme was found to be not suitable for children, requiring the time slot to be shifted post 11:00 PM i.e. after the children have gone to http://www.judis.nic.in 56/78 W.P.No.21497 of 2017 bed, and we understand that this would be the time when ' Wee Willie Winkie runs through the town; Upstairs and Downstairs, in his night gown. Peeping through the windows and knocking at the doors : are all the children in their bed for it is past 8 O'clock.' When the second set of violations were detected, after issuing a show-cause notice, on July 26, 2011 (Annexure R-1/5) an order was passed to run Apology Scroll every hour for seven days between July 29, 2011 to August 05, 2011. It was informed that any further violation would entail stringent action which may include suspension or prohibition of the broadcast.
30. The grievance of the petitioner was that in spite of a third violation being found as per minutes of the meeting dated August 08, 2011, Annexure R-1/6, no order was passed because instant writ petition was pending. Learned counsel would urge that even the BCCC i.e. the Self Regulatory Body found two programmes dated June 25, 2011 and July 02, 2011 to be having objectionable content, but passed no directions since instant writ petition was pending.
31. To summarize, learned counsel for the petitioner urged that since the Act and the Rules envisage that any broadcast which is vulgar, offensive of public morality, is indecent or not in good taste should not only be prohibited but even registration of the broadcaster cancelled, an authority to enforce the Act and the Rules has to be put in place and it should not be left to the discretion of the http://www.judis.nic.in 57/78 W.P.No.21497 of 2017 Executive to take cognizance of complaints and adjudicate thereon. On facts, learned counsel urged that three violations were found by the Executive and one by BCCC. Counsel urged that respondent No.3 is a proved incorrigible violator of the law warranting the strictest action to be taken against it i.e. power to be exercised under Section 20 and hence a direction to be issued to prohibit respondent No.3 from transmitting the broadcast ? Emotional Atyachar'. In fact, Mr.Rahul Mehra, pleaded that the facts admitted by the Union of India pertaining to the four violations, were sufficient to even direct the registration of respondent No.3, to function as a cable operator, to be cancelled.
32. Responding to the factual aspect of the matter, i.e. the four violations alleged against the respondent No.3, Shri Ashok Desai, learned senior counsel urged that Emotional Atyachar was envisaged to be having four parts, called Season-1, Season-2, Season-3 and Season-4. Learned senior counsel highlighted that whereas Season-1, 2 and 3 were an unscripted reality show, having a theme of the loyalty of a partner, Emotional Atyachar Season-4 is a dramatized show of real life incidents of a person, who have themselves undertaken or conducted a loyalty test on their partners. The social relevance was explained by urging that in today's modern society, infidelity in relationship is a fact of life and thus a media house was entitled to hold a mirror up to the society, portraying life and society as it exists in its many hues, with unsavoury http://www.judis.nic.in 58/78 W.P.No.21497 of 2017 truths of relationships being one of the many colours of the society. Learned senior counsel urged that it is useless to portray only good, the perfect or the idyll for unless the worst is shown to the society, it would be difficult to make the society understand what plagues the society. Learned senior counsel urged that respondent No.3 had to experiment with the truth. Thus, the respondent No.3 itself was on a learning curve; but striving to improve, based upon public reaction to the programmes it improved the broadcasts. Learned senior counsel urged that there may be aberrations in an episode or two out of roughly 25 episodes constituting each Season. Therefore, learned senior counsel would urge that reality shows have to be viewed not episode by episode but collectively. Learned senior counsel urged that based upon the reaction received pertaining to the earlier shows, the respondent No.3 kept on making improvements: offensive scenes were blurred, offensive language was muted. Learned senior counsel argued that neither episode contained overt scenes of nudity of the body or that of the language, which would be objectionable to ordinary prudent persons. With respect to the four violations, learned counsel urged that the first alleged violation pertained to the timing of the programme and not to the content per se i.e. the content was found unsuitable for viewing by children and hence the time slot was directed to be shifted. Compliance was made. With respect to the second violation it was urged that the explanation being found justified; notwithstanding the http://www.judis.nic.in 59/78 W.P.No.21497 of 2017 wrong being opined, the Executive thought it advisable that a self published admonition i.e. running scrolls of apology would suffice. With respect to the next two violations, it was urged that since only prima facie findings were recorded and no final order was passed, the respondent No.3 would explain its case before the Authorities concerned. But undertook to comply with the directions if any issued. With respect to the regulatory mechanism, Mr.Ashok Desai, learned senior counsel urged that in a democratic society, self regulation is the best. Learned counsel urged that as regards the substantive law, Sections 5, 6, 16, 17, 19 and 20 of the Act coupled with Rule 6 and 7 of the Rules, were sufficient guarantee to the nation, the society and the State, that cable operators using cable television network would not destroy the moral fibre of the society. BCCC, was urged to be, a body of persons of eminence inspiring confidence in the civil society to perform the task of taking to task such cable operators who were found polluting the ethos of the society.
33. Print media is regulated by ' The Press Council Act 1978'. To enforce the Act, a Council called ' The Press Council of India' is constituted as per Section 4 of the Act, and as per Section 5 thereof, the composition of the Council is : a Chairman and 28 other members. The Chairman is to be nominated by a Committee constituting of the Chairman of the Council of States (Rajya Sabha), the Speaker of the House of the People (Lok Sabha) and a http://www.judis.nic.in 60/78 W.P.No.21497 of 2017 person elected by the members of the Council. Of the 28 members, 13 are nominated by working journalists, 6 are nominated from amongst persons who own or carry on business of management of newspapers, 1 is nominated in accordance with such procedure as may be prescribed from among persons who manage news services, 3 persons are nominated, 1 each by the University Grants Commission, Bar Council of India and Sahitya Academy, i.e. persons having special knowledge in Education, Law and Literature, and 5 persons being Members of Parliament are nominated; 3 by the Speaker of the Lok Sabha and 2 by the Chairman of the Rajya Sabha. The Chairman and the Members of the Council hold office for a period of 3 years. As per Section 7 of the Act, the Chairman is a whole-time officer to be paid a salary by the Central Government; and notwithstanding who could be the Chairman, by tradition it has always been a retired Judge of the Supreme Court of India.
34. As per the Cinematograph Act 1952, a Board is constituted as per Section 3, consisting of a Chairman and not less than 12 but not more than 25 members appointed by the Central Government. The Chairman of the Board has to be paid a salary as determined by the Central Government. As per Section 5, to enable the Board to discharge its functions efficiently, at Regional Centres, Advisory Panels have to be established. An Appellate Forum i.e. a Tribunal is constituted under Section 5(d) of the Act consisting of a Chairman who shall be a person who has held the office of a Judge of a High Court or is qualified to http://www.judis.nic.in 61/78 W.P.No.21497 of 2017 be appointed as a Judge of the High Court; the Chairman receives salary as determined by the Central Government, and not more than 4 members.
35. Pertaining to publications, if a newspaper, a document or a book is opined to contain matters, publication whereof would be punishable under Section 124A, 153A, 153B, 292, 293 or 295A of the Indian Penal Code, stating the grounds for its opinion, by notification, Government can direct such document, newspaper or book to be seized as per Section 95 of the Code of Criminal Procedure 1973. But, as per Section 96 thereof, a person interested can seek a declaration from the High Court to set aside the notification issued and such an application has to be heard by 3 Judges, where the High Court consists of 3 or more Judges and by a Special Bench if the High Court consists of less than 3 Judges.
36. The Press Council Act 1978, The Cinematographic Act 1952 and the applicable provisions of the Code of Criminal Procedure 1973 highlight that freedom of expression, Print and Celluloid has been accorded a very high status in India, in conformity with the march of times by State which claims democratic credentials. Recognizing that freedom enjoyed by the media cannot be unregulated, at the same time unshackling from State control the freedom of the media, a balance is struck by constituting Boards consisting of men and women of stature enjoying public confidence, charged with the duty to ensure that the media does not become http://www.judis.nic.in 62/78 W.P.No.21497 of 2017 a ?feral beast'.
37. In the United Kingdom we find that the Communications Act 2003 regulates media broadcast. A statutory body named 'Office of Communication' (OFCOM), consisting of a Chairman and such number of members as OFCOM deems fit has been constituted which is charged with the duty to ensure that broadcast media conforms to The Communication Act 2003.
38. But, does television have any impact on social behaviour? Does a particular kind of broadcast have an impact on social behaviour?
39. We do not find much literature on the subject which is based on empirical data. But would hasten to add that social scientists are of the opinion that television has impacted the behaviour of the society as also that a particular kind of a broadcast can also impact social behaviour. These opinions are unsupported by any empirical data.
40. We could lay our hands on one publication by sociologists in Canada. The publication is called 'The Impact of Television : A Natural Experiment in Three Communities'.
41. Television is awful! Kids watch too much of it! Are exclaims commonly heard in soft discussions at social gatherings.
42. Of the various usages of Cathode rays, one led to the invention of television. T.V. broadcast began on July 02, 1928 in the United States of America. The next year http://www.judis.nic.in 63/78 W.P.No.21497 of 2017 1929 we had television in the United Kingdom and Germany. Followed by France and USSR in the year 1931. With single TV channels : Unitel, commencing from news only, slowly and steadily various kinds of programmes were introduced. Came along multi channels. Simultaneously, the industrial revolution was also having its impact on the society in the said countries. World War-I was over. These countries were re-building themselves. It was the age of travel, discovery and of reason. Which factor outweighed the others in the changing behavioral pattern leading towards consumerism, it was difficult to guess. Depending upon the sample size and the method adopted to study the sample, different social scientists propounded different theories.
43. Television broadcasts were introduced in Canada in the year 1952. They were available in most parts of Canada by the year 1973 except for a few towns in Central British Columbia. The terrain was mountainous and therefore the TV signals didn't carry far. In the year 1973, the town elders convinced the Canadian Broadcasting Corporation (CBC) the official channel of the Government to install transmitter for them. The towns would be exposed to television, not in its early formative stage, but in its mature and virulent form. Tannis MacBeth Williams, a Professor of Sociology at the University of British Columbia in Vancouver, learnt about the transmitters being installed and decided to test the hypothesis about the effects of television by studying the social behavioural pattern in the http://www.judis.nic.in 64/78 W.P.No.21497 of 2017 towns before and after the television arrived.
44. Hard Science students routinely denigrate the subject of Sociology for its lack of controlled experiments, ignoring the fact that even the field scientists have the same problem. Just as astronomers do not get to try out different galactic structures in the laboratory nor do geologists get to bang continents together to see what happens, like sociologists, they too have to find reasons for things from studying them as they are. But in this case in Canada there was a beautiful example of a community where the effect of a change in one variable could be observed.
45. Williams and 12 other faculty and students from the University of British Columbia did extensive surveys around the towns which they code-named 'Notel'. They did control studies in towns having a single TV channel and towns having four broadcast channels. They studied the towns twice : once before TV came and once after two years of the advent of TV.
46. Fortunately, the homogenous character of the towns was the same. Nearly similar in size. Around same population. Similar economic base : logging, mining and farming being the activities yielding income. Income level being around C$ 7000 per family. The class structure being similar : 10% business; 60% skilled labour/farmer and 20% - 30% unskilled labour. All towns had small libraries, weekly newspapers, telephones and a regular road and rail service.
http://www.judis.nic.in 65/78 W.P.No.21497 of 2017
47. So, what did the team discover?
48. It was observed that the introduction of television had caused significant changes in the attitudes and behavior of the people of the towns where television had been introduced, especially in the case of young children. It was observed that television seemed to increase the differences that the children saw between the sexes, mainly between boys and girls. It led to increase gender awareness at a young and tender age. A drastic effect was noticed concerning social activities in the form of religious, civic, business or sports events wherein participation dropped significantly. The group most affected was those over 55 years of age and their participation dropped dramatically. The number of activities did not change, however the amount of participation reduced. Upon examination of the reading fluency of young children using a Tachistoscope, an instrument which flashes a word on a screen for a few milliseconds, and the speed of response determines the reading fluency of the reader, it was observed that the reading skills of children below the 8th grade (whose reading skills had already developed) had been hindered since television distracted and consumed reading time, thus reducing time dedicated to reading and hampering the children's reading abilities and habits. The most profound effect was noted in relation to the behavior of the children. It was observed that there was increased aggression in children of a young age reflected by http://www.judis.nic.in 66/78 W.P.No.21497 of 2017 increased acts of pushing, taunting, scuffles etc. in the class room and in the playground. Boys were more physically aggressive than girls; however, they were both equally verbally aggressive. The overall level of aggression was noted to have increased in both boys and girls. Interestingly, no significant effect was found in the behavioural pattern where single TV channel was broadcast and where four channels were broadcast. Meaning thereby, the advent of television made the impact and not the particular contents of a programme.
49. In conclusion of the study it was observed that the introduction of television had made children more aggressive, harmed the reading skills of the children, decreased creativity and cut participation in leisure activities amongst children and adults as well. Overall, introduction of television had a negative effect on the community where it was introduced.
50. The virulent form of television in a virgin community would have no better study, in any case we have not come across any.
51. The reason for changed social behaviour is obvious. Take children. In the play field with a football, they learn to form two teams : adversaries and yet friends. Inter personal skills such as dribble, tackle and pass the ball to a team mate are learnt. A rough tackle by the adversarial friend would result in physical pain and the child learns to live with the pain. The child learns that if you seek pleasure (playing the game) you must bear some http://www.judis.nic.in 67/78 W.P.No.21497 of 2017 pain as well. The child learns to let somebody else take the credit for the hard work, for when dribbling past the defenders of the adversarial friends' team, the ball is passed on to a team member on the other side of the field to score the goal since the goal keeper has rushed towards one corner of the 'D'. All this learning holds steadfast in life as well, for after all, life is one big game/gamble. Sitting and watching television in the house deprives the child the games of learning on the football field and this explains the change in behavioural pattern. Speaking of young housewives, walking together to the market to buy vegetables and groceries, having time at hand, one would walk slowly and talk. There is no hurry to return home to watch a favourite television programme. One would tend to be with the neighbour in the market till all have completed the purchases. Time is well spent. If the neighbour has purchased more groceries, a helping hand is extended to cart the groceries home. If the neighbour has run short of money in the market, some money is lent on trust. But if there is a television, one tends to go to the market at a time convenient to oneself and return quick and fast, lest the programme is missed. The helping hand attitude, the care and trust which is developed as a matter of habit while shopping with a friend is not then to be found. We could multiply the examples to bring home the point, but it would be of no use because we are not writing a thesis on social analysis. We are writing a judicial opinion and thus would only illustratively speak with reference to http://www.judis.nic.in 68/78 W.P.No.21497 of 2017 two examples.
52. Whether Emotional Atyachar or Sach Ka Samna is to be blamed for the ills in the society or over 200 channels 24 x 7, 365 days a year, and not to forget 366 in the leap year.
53. The study by Professor Williams and his team, with empirical data, and a good sample, tell us that it is the latter and not the former.
54. The test whether a piece of writing, a cinematograph film, a painting or a TV serial is vulgar or is against good taste or decency is to keep in mind the mythical 'common man' who has been created by creative judicial minds. Now, this common man is supposed to be a person with ordinary prudence, robust common sense, sense of humour, sense of rationale and understanding, of course with the usual failings of an imperfect mind. One would ordinarily expect such a common man to shun something which is not in good taste or is against decency. Do we not instinctively grimace when foul odour is smelt? Do we not instinctively cover our nose? Do we not instinctively spit bitter and festered food? Do we not instinctively put our hands on the ears if we hear a loud bang? Do we not instinctively remove our hand if it touches hot iron? But why is it that when the eyes perceive something sensational, some look the other side and like Gandhiji's first monkey, shut the eyes, but the gaze of some gets fixed to that sensational something. Are those who shut their eyes the mythical common man or is it http://www.judis.nic.in 69/78 W.P.No.21497 of 2017 those who do not?
55. We have no answer. We venture none. Who are we to say that 50% of the people in society are foolish.
56. But, we have an explanation for such diametrically opposite behaviour in society when it comes to doing things which some perceive as objectionable and worthy of a response by shutting of the eyes and some consider it worthy of a gaze. Human nature is a union of opposites : love and hatred; peace and violence; truth and falsehood; unselfishness and self-centeredness; saintliness and sinfulness; and the spiritual and the physical. These opposite traits are inseparable from one another.
57. This appears to be the reason why the 'Self- Regulation Guidelines for the Broadcasting Sector - 2008', remained a subject matter of debate; with a consensus eluding the Government, as informed to us by the respondents.
58. We have reached far enough to realize that two Judges sitting on a Division Bench would hardly be capable of carrying the mantle and resolve the deadlock of two competing claims and in particular how to regulate the mass media.
59. But fortunately for us we are not called upon to lay down guidelines pertaining to broadcast for the reason we have a Statutory Programme Code and we have statutory provisions to enforce the same. The limited question with which we are concerned is whether or not to accept self regulation as sufficient or nudge the http://www.judis.nic.in 70/78 W.P.No.21497 of 2017 Government to put in place a statutory body to enforce the Programme Code or leave it to the Executive to do the needful.
60. Learned counsel for the petitioner and the learned senior counsel for respondent No.3 conceded that the third option was the worst. The debate therefore was on the first two i.e. self regulation vis-à-vis a statutory body composed of men and women of eminence to regulate mass media.
61. The freedom of expression is a pivotal component of our individual development - as human beings and as political animals - and to improve and radicalize democracies. The invention of the Press was a turning point in the debate about freedom of expression. The printing press magnified the reach of opinions, information and ideas. Indeed, the pen became mightier than the sword. Guaranteeing each individual the right to freely give and receive information was perceived as a threat to the sovereign and sometimes even the State; when ideologies clashed. It was the era of mass media. Except for the United States of America, due to the First Amendment, democracies all over the world regulated mass media.
62. The countervailing viewpoints i.e. society would be better off without any regulation versus that society would be better off with a regulation has of lately been debated by Professor Amartya Sen who has persuasively argued that it is the precondition of social and economic http://www.judis.nic.in 71/78 W.P.No.21497 of 2017 development that transparent and open communications are necessary to ensure economic and social development that benefit everyone. There is often a tussle between the forces of media and state authorities over the communication of certain material with the general view that the State tries to limit media exposure. The response of the Media and the citizenry to state control and intervention in a democratic government may be summated in a quote: 'If liberty means anything to all, it means the right to tell people what they do not want to hear'. George Orwell.
63. However, the absence of state intervention on its own is no guarantee of a rich media environment. On the contrary: to promote a media environment characterized by pluralism and diversity, State intervention is necessary. To guarantee pluralism and diversity of opinion requires provisions for public broadcasting, commercial broadcast and print media and community- based broadcast. To ensure media pluralism may require the application of competition law by the State to prevent monopoly of forms of communications, airwaves etc. The other circumstance where the State plays a role, through its judicial arm, is in the regulation of content in certain limited circumstances. Freedom of expression is not an absolute right and it can be restricted to protect the rights of others for example by prohibiting speech that incites violence or hatred against a particular racial group; to protect children from sexual exploitation or to protect the http://www.judis.nic.in 72/78 W.P.No.21497 of 2017 reputation of individuals from false accusations etc. But only be legislation.
64. This debate in India has been won by the latter viewpoint evidenced by the fact that the print as also the broadcast media and the third form of mass communication i.e. cinema has been regulated by legislation.
65. Under self-regulation the media voluntarily commits to uphold a code of ethics that it itself drafts. It establishes a complaints mechanism, often called a media council or complaints commission, to which the public can complain about perceived breaches of the code. The independent council adjudicates on the complaints and decides upon appropriate remedies. The courts play no role in enforcing the code of practice. Compliance with the code is voluntary and the media does so out of a desire to secure the credibility of its profession and the trust of the public. Self regulation is combination of standards setting out the appropriate codes of behaviour for the media that are necessary to support freedom of expression, and process how those behaviours will be monitored or held to account. But as observed by us in para 4 above, ethics itself is a complex and controversial subject due to society not being homogeneous.
66. Some of the Advantages of self regulations could be :
(i) Self regulation preserves independence of the media and protects it from partisan government http://www.judis.nic.in 73/78 W.P.No.21497 of 2017 interference.
(ii) It leads to more efficiency since the media understand their own environment better than an external agency.
(iii) As the media environment becomes global (through the development of the internet and digital platforms) questions of jurisdiction become complex in an external adjudicatory system. The self regulatory system can fill the resulting gap.
(iv) It is beneficial to the society in terms of money because the tax payer is not burdened and the industry bears the cost.
(v) Peer pressure is believed to be the best self regulatory form of discipline.
(vi) Self regulation can also drive up professional standards by requiring organizations to think about and even develop their own standards of behaviour.
67. Some of the Disadvantages of promoting self- regulation of media could be :
(i) Lack of faith by the society and the feeling that the media having appointed its own Judge may curry favour from the Judge, thereby diminishing the acceptability of the verdict by the self regulatory body.
(ii) Lack of legal sanction to enforce the decision of the self regulatory body, because moral sanction may not be perceived as a deterrent by the society.
(iii) Security of tenure, salary and allowances of the members of the regulatory body being perceived by the http://www.judis.nic.in 74/78 W.P.No.21497 of 2017 society as a possible source of fear in the minds of the members of the regulatory body, thereby diminishing the acceptability of the decision of the self regulatory body.
68. Self regulation therefore is not a simple matter; it places requirements upon every level of the media organization, on the journalist themselves, on their editors and managers, on the approach of the media organization to the production of content and the overall behaviour of the media company.
69. Even media personnel can be heard crying that the taint of money has polluted the clear stream of reason which should dictate the conscience of mass media. In the print media, paid news has already started sullying the stream of news. Similarly, the desperate rush to grab eyeballs due to higher revenue earned if viewership is more has led the broadcast media to sully itself with sensationalization by adding colour and spice to events. Transgression of individual privacy and the rush to produce programmes which may be tainted but attract viewership has been witnessed in the past.
70. Thus, as we find in the United Kingdom and as we find pertaining to cinema and print media, there is no reason why the legislature does not put in place a statutory, regulatory body, and taking cue from The Cinematograph Act 1952 and The Press Council Act 1978 legislate to have a statutory Board comprising men and women of eminence in the field of Law, Science, Art and Culture, Literature, History and Social Sciences.
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71. Since broadcast has been regulated by The Cable Television Networks (Regulation) Act 1995 and The Cable Television Network Rules 1994 and there exists a Programme Code as also an Advertising Code, violation whereof entails action under Section 16, 17, 19 and 20 of The Cable Television Networks (Regulation) Act 1995, finding no statutory regulatory body constituted, meaning thereby, as per the extant law the duty would fall on the executive to ensure that the mandate of the legislation is complied with, a situation which would be an anathema in a democratic set up inasmuch as it would put broadcast under the direct control of the state, we recommend that a statutory regulatory body be constituted consisting of men and women of eminence. Security of tenure of a kind should be provided for the Members of the Board so that they are free from Government interference.
72. Till said happens, since the law as it stands today has to be enforced, taking on record the stand of Union of India that as a stop gap mechanism the self- regulatory body formed by the Indian Broadcasting Foundation named 'Broadcasting Consumers Complaint Committee' is recognized by the Union of India as a body competent to take cognizance of and decide complaints pertaining to violation of the law by broadcasters, but since decisions by said committee would lack the legal foundation to take action i.e. the non statutory committee cannot direct a particular kind of action to be taken or an order passed; its decisions shall be treated by the Union of http://www.judis.nic.in 76/78 W.P.No.21497 of 2017 India as the foundation to take appropriate action and pass necessary directions as also orders against the offender.” As a separate complaint mechanism is provided under the guidelines, with remedial actions etc., the petitioner cannot be said to be remediless and writ petition cannot be entertained. Decision quoted supports our view.
In view of the above, writ petition is dismissed. No costs.
(S.M.K., J.) (S.P., J.) 31.07.2019 Index: Yes/No. Internet: Yes Speaking/Non speaking kpr To
1.The Joint Secretary Ministry of Information & Broad Casting Government of India, "A" Wing Shastri Bhawan New Delhi-100
2. The Secretary to Government Social Reforms Department Secretariat, Chennai-600 009
3. Director General of Police Radhakrishan Salai, Chennai.
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AND SUBRAMONIUM PRASAD, J.
kpr WP.No.21497 of 2017 31.07.2019 http://www.judis.nic.in 78/78