'Penalties Against TV Channels Must Be Proportionate To Profits; ₹ 1 Lakh Fine Ineffective' : Supreme Court To NBDA

The Supreme Court on Monday expressed its concerns about the ineffectiveness of the self-regulatory mechanism set up by the News Broadcasters and Digital Association (NBDA), namely, the News Broadcasting and Digital Standards Authority (NBSA).

While acknowledging the NBDA's stance against pre-censorship or post-censorship on news channels through statutory mechanism, the bench led by Chief Justice of India DY Chandrachud stressed upon the necessity for an effective self-regulatory mechanism. CJI Chandrachud questioned the adequacy of the existing penalties imposed by the NBDA, citing a need for proportional fines that reflect the profits earned from news channels by airing disputed news. The bench noted that the penalty for violations is Rupees 1 lakh, a figure which was set in 2008.

The bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing a plea filed by the NBDA(formerly News Broadcasters Association) challenging the critical observations made by the Bombay High Court against the self-regulatory mechanism for media. The High Court's observations came in a judgment passed in January 2021 while deciding a batch of PILs questioning the media trial in the actor Sushant Singh Rajput death case.

Senior Advocate Arvind Datar, representing the NBDA, argued before the bench that the High Court's assertion that the self-regulatory mechanism lacks sanctity within the statutory framework is flawed. He emphasized that while the NBDA acknowledges is not a statutory body, it opposes the adverse remarks made by the High Court that question its credibility and effectiveness. Datar pointed out that the self-regulatory mechanism plays a crucial role in addressing grievances and maintaining responsible journalism. Datar contended that the self-regulatory body functions similarly to an alternate dispute resolution mechanism, allowing citizens to raise grievances against media content they find objectionable. He said– 

"This started during the Sushant Singh Rajput matter. There was a media frenzy. PILs were filed against media trials and that is where the matter was filed...The remarks (of Bombay HC) had a damaging impact on the integrity of our body...The scheme of the law is that TV Channels should be left to be regulated by themselves. The state is not supposed to regulate."

Datar highlighted the importance of the self-regulatory mechanism and its recognition by respected members of the industry. He also referred to the approval of the Nariman Committee report by the Supreme Court, which advocated for a self-regulatory approach to media regulation and emphasised the avoidance of state control. He also said that the authority has disposed of over 4000 complaints and in many cases, the violating media channels were asked to run public apologies, in addition to monetary penalties.

He added–

"Your lordships may ask what about the channels who are not a part of this? Fortunately, all leading channels are a part. And those who aren't a part, their reports go to IMC- Inter ministerial committee. Our body has been recognised..This is a self regulatory mechanism. We can impose up to 1 lakh. But fortunately, they are responsible channels."

In response, CJI DY Chandrachud expressed concerns about the efficacy of the self-regulatory mechanism, particularly in cases where media coverage potentially hampers criminal investigations and infringes upon an individual's reputation. He said–

"Mr Datar, you say that barring a few channels, all media channels exercise self restraint. I don't know if you can take a headcount of people in this court who would agree with this. We understand that you don't want the government to intervene and you want the self regulatory mechanism to continue. Equally, the self regulatory mechanism is to be made effective".

CJI also said that in the media went "berserk" after the actor's death and created a "frenzy".

Questioning the quantum of punishment, the CJI then asked–

"A fine of Rs 1 lakh for a channel- is that really effective? Your fine must be of proportion to profits you make from that show. We don't want to impose a pre censorship or post censorship on media. But the self regulatory mechanism has to be effective. You virtually preempt the criminal investigation in such cases.  While we appreciate the fact that there has to be self regulation, that has to be the principle, that self regulatory body must be effective".

CJI added that while the NBDSA is headed by former Supreme Court judges, their remit is limited by the NBDA guidelines.

At this juncture, Advocate Amit Pai, appearing for certain party respondents, also underlined the ineffectiveness of self regulatory mechanism by NBA. He said–

"Earlier there was an instance of a TV channel. I don't want to name. But the reality is when the NBA imposed a penalty of Rs 1 lakh, they left the membership of the association and joined another one."

The bench then urged that there was a need to strengthen the self regulatory mechanism. The court directed that a counter affidavit be filed within three weeks and emphasized the need to reconsider the penalty structure, which has remained unchanged since 2008. "We have seen the uplinking and downlinking guidelines. We will tweak the Bombay High Court judgment. But we will strengthen the regulations now," the Court remarked.

"This court has to consider whether steps taken to frame self regulatory mechanism needs to be strengthened with regard to framework and final orders to be passed," the bench observed in the order while issuing notice on the petition.

Case Title: News Broadcasters Association v. Union Of India And Ors Diary No. 10801-2021

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