Hate Speech In News– Inefficacies Of The Regulatory Framework

In recent months, we have seen a deeply communal narrative arising in the wake of the pandemic which appears to have been fuelled by irresponsible media reporting. The last few months saw criminal complaints filed against journalists from electronic media for alleged hate speech. Most recently, another electronic media house broadcasted a program claiming Muslim youth qualifying for recruitment to Indian Civil Services was another form of 'jihad'.

Apart from this, there have been cases of electronic media channels displaying private information and communication under the guise of investigative journalism in an actor's death by suicide case. A full-blown media trial is underway, and privacy of individuals has been ripped to shreds in a matter which is sub-judice.

So, the question arises – what is the framework for regulation of news media in India and are the existing regulations sufficient to address these issues?

The Press Council of India Act of 1978 established the Press Council of India (PCI) with an object to preserve freedom of press and to maintain and improve the standards of newspapers and news agencies in India with, inter alia, the following functions:

"13. Objects and functions of the Council –

(2) The council may, in furtherance of its objects, perform the following functions, namely:

…

(b) to build up a code of conduct for newspapers, news agencies and journalists in accordance with high professional standards;
(c) to ensure on the part of newspapers, news agencies and journalists, the maintenance of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship;

…"

Pursuant thereto, the PCI has the power to censure newspapers or news agencies if it has a reason to believe that the offender had violated standards of journalistic ethics or public taste etc. Upon an inquiry, and for written reasons, the PCI has the power to admonish or censure the offender. For the purpose of such inquiry the PCI has the powers similar to a Civil Court under the Code of Civil Procedure, 1908, and is thus empowered to summon and examine people and receive evidence, and such inquiry is deemed to be a judicial proceeding.

From a perusal of the PCI Act, it is clear that the PCI can only regulate print media and news agencies and not any other news outlets, either electronic or digital. Further, the only punitive power that the PCI has is that to 'admonish or censure', which surely does not appear to be of any deterrence to print media.

With the advent of cable television in India, the Cable Television Networks (Regulation) Act, 1995 (Cable TV Act) was enacted to regulate the operation of cable television networks in the country. It mandates that no person shall broadcast any programme through a cable service unless it complies with the 'Programme Code'. Programme here means any television broadcast in India. In 2011, the Cable TV Act was amended to bring the transmission of programs through digital systems within the purview of the Act thus bringing all the television channels broadcast via Direct to Home (DTH) systems too within its purview. The Programme Code referred to in the Act is defined in the Cable Television Network Rules, 1994 (Cable TV Rules), as amended from time to time, which inter alia provides that no programme should be broadcast on television which:

• Offends against good taste and decency;
• Contains attack on religions or communities or religious groups which "promote communal attitude"; or
• Contains obscene, defamatory, deliberate false and suggestive innuendos and half-truths.

Pursuant thereto, the Government of India constituted an Inter-Ministerial Committee (IMC) on 25.01.2005 to investigate and adjudicate complaints against programmes which may be in violation of the Programme Code laid down in the Cable TV Rules. The IMC can also take suo motu cognizance of any such violation. The Additional Secretary, Ministry of I&B is the Chairperson of the IMC with the Joint Secretary (Broadcasting) as the convenor member. Other members of the IMC are Joint Secretaries from Ministries of Home Affairs, Law & Justice, Women & Child Development, Health & Family Welfare, External Affairs, Defence, Consumer Affairs and a Representative from the Advertising Standards Council of India.

Upon a complaint being made, or the IMC taking suo motu cognizance, of any violation of the Programme Code the alleged offender is issued a show cause notice and the offending programme reviewed. Thereafter, if the programme is found to be in violation of the Code then appropriate recommendations are made, or punitive action directed. This position was affirmed by the Supreme Court in Common Cause vs. Union of India & Ors. [WP(C) No. 387/2000] in an order dated 12.01.2017 when the issue regarding a complaint redressal mechanism against television and radio channels was brought before the Court.

After noting that the redressal mechanism already existed, the Supreme Court directed the Government to raise awareness about the process. It also recommended that the Government should create a statutory framework for grievance redressal by virtue of its rule making power under section 22 of the Cable TV Act – viz. the Government is empowered to make Rules pertaining to the Programme Code. The Court said:

"11. Even though we have concluded in the manner recorded hereinabove, we are of the view, that the Central Government, having framed Rules in the nature of Cable Television Networks Rules, 1994, would be well advised, to frame similar Rules, in exercise of the power vested with it under Section 22 of the Cable Television Networks (Regulation) Act, 1995, to formalize the complaint redressal mechanism, including the period of limitation within which a complaint can be filed, and the concerned statutory authority which shall adjudicate upon the same, including the appellate and other redressal mechanisms, leading to a final conclusive determination. We, therefore, hereby recommend, that the Central Government, within the framework of Section 22 of the Cable Television Networks (Regulation) Act, 1995, deliberate on the issue, and take a conscious decision thereon, and to finalise a similar statutory framework for radio programmes, as well. Till the above issue is considered and finalized, the existing mechanism of complaint redressal, shall remain in place."

However, the Government is yet to follow the advice and recommendation of the Supreme Court and the grievance redressal system still does not have a statutory authority or procedure. Under these circumstances, the current statutory regulatory framework under the PCI Act and the Cable TV Act does not appear to be sufficient or confidence inspiring.

Now, coming to the issue of self-regulation by news channels – the News Broadcasters Association (NBA) established a grievance redressal mechanism under the aegis of the News Broadcasting Standards Authority (NBSA). The NBA currently comprises of twenty-six news and current affairs broadcasters (total seventy-one channels). The NBA has also issued a 'Code of Ethics and Broadcasting Standards' which are intended to be the model of self-governance to be followed by its members. According to the Code, the purpose of self-regulation is to avoid broadcasting content which is "…malicious, biased, regressive, knowingly inaccurate, hurtful, misleading, or aimed at wilfully concealing a conflict of interest."

Among the areas where news broadcasters seek to self-regulate are impartiality & objectivity, and privacy of individuals except in cases of public interest. The Code states, "The underlying principle that news channels abide by is that the intrusion of private spaces, records, transcripts, telephone conversations and any other material will not be for salacious interest, but only when warranted in public interest." After Sushant Singh Rajput's alleged death by suicide, most news channels have been guilty of violating this principle of self-regulation. However, one imagines that they would take the misconceived defence that violation of privacy of the individuals concerned is warranted in public interest.

To test the above mentioned defence if someone wanted to file a complaint with the NBSA, the News Broadcasting Standards Regulations provide that that the NBSA would have jurisdiction only over broadcasters which are members of associate members of the NBA. Conveniently, many news channels are not members of NBA and thus not governed by the Code or Regulations of the NBA. Even in case of complaints against a member or associate member, the worst penalty the NBSA can prescribe for violation of the Code is a fine of a majestic sum of One Lakh Rupees, if deemed necessary. Otherwise the NBSA can warn, admonish, censure or express its disapproval against the broadcaster. Like in the case of the PCI, the punitive powers of the NBSA are hardly a deterrent.

This further underlines the need for establishment of a statutory authority as recommended by the Supreme Court in the Common Cause case, and prescription of penalties which would actually act as deterrent and make the editorial staff accountable. Until then errant news channels will continue to create communal disharmony with hate speech and continue with media trials and violation of people's privacy.

Views are personal only.

(The author is an Advocate on Record of the Supreme Court and the author of  the book 'The Great Repression : The Story of Sedition in India' (Penguin – 2019). He tweets at @Ghair_Kanooni)