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Mahendra Subhash Khairnar*




“Whereas airwaves are public property and it is felt necessary to regulate the use of such airwaves in national and public interest, particularly with a view to ensuring proper dissemination of content and in the widest possible manner” are the opening words of the preamble of the present bill, which sought to achieve the objects mentioned there under.

However, it would not suffice to say that ‘quoad principi placuit legis habet vigorem’ i.e. “the sovereign’s will has the force of law” but that law can be tested on the touchstone of reasonableness.[1]

The need for public information and consultation is one aspect of the issue that has received little attention to date. Yet the primary objective of media regulation in a democracy is to preserve and protect citizens' fundamental rights to information and freedom of expression. So citizens are in fact the most important stakeholders in media policy and regulation.

Here are some of the chunk points which need to be understood to have better look toward the Bill.

1.                    Broadcast Bill and Content Code is to go beyond a power struggle between the Information and broadcasting Ministry and the Media industry. Or Regulatory Bill would shackle the industry.

2.                    Need of such Regulatory bill in the democratic state.

3.                    vesting the command and control of the electroni9c media with the Govt.


These issues will lead us to analyze the present Bill in better and informed manner.

So far as dealing with First issue following points need to be considered:

In its landmark 1995 judgment relating to the broadcast media[2] the Supreme Court of India made it very clear that the rationale for media regulation is the public interest. According to the apex court, "The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights."

“The Content Code[3],” Mr. Singh emphasized “already exists. It is merely being fleshed out. I feel there isn’t much fear (amongst the private players) than the fact this sector has not been regulated. In any case the code would be finalized by the Regulator in consultation with media representatives.[4]


While discussing Second issue regarding need of such Regulatory Bill in democratic state following matter need to be highlighted-


The need has been felt to regulate the content going into public domain to ensure conformity with acceptable contemporary community standards and to protect the vulnerable sections from harmful and undesirable content on TV. The Broadcasting Services Regulation Bill has been redrafted after considering the comments of stakeholders.


Speaking at the FICCI Seminar on “Regulation in the Entertainment Sector[5], Ms. Asha Swarup, Secretary, Ministry of Information & Broadcasting said: “The revised Bill on the Proposed Broadcast Services Regulation which was announced to the media and put on the Ministry’s website on July 20 incorporates the comments and views of the industry received during the past several years.”

 It was incorrect, she said, to say that India was the only country that was proposing to have a content code for the broadcast sector, as such codes in different forms were in existence in other countries[6].

The Self Regulation Guidelines (Guidelines) formulated and posted on the Ministry website set 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 Certification Rules prescribed under the Cable Television Networks (regulations) Act 1995, irrespective of the medium/platform used for broadcasting of the programme[7]. 

India’s advertising fraternity is concerned about the overriding powers that the draft Broadcasting Services a Regulation Bill, 2007 has envisaged for regulating content of promotional campaigns despite the Advertising Standard Council of India (ASCI) having its own model code of conduct.

“We are happy that most of the recommendations made by the ASCI have been incorporated in the Bill[8]


Third issue regarding Govt. control here tried to justify.


Whereas Government has issued guidelines from time to time for regulating the Broadcasting Services and it is felt necessary to give a statutory effect to these guidelines and provide for a comprehensive legislation[9].

The Bill need to be read along with Chapter 5 and Section 51particularly sections 45-47. These provisions provides for the legislative, executive and adjudicatory functions of the Authorities.[10]

For example, the document is peppered with references to the central government and its powers. In addition, with both the proposed Broadcasting Regulatory Authority of India (BRAI) and its regional offices to be headed by government officers, and various Licensing Authorities and Authorised Officers also to be drawn from the bureaucracy, the proposed regulatory infrastructure appears indistinguishable from the government. Further, several provisions convey the impression that BRAI is meant to merely implement policy determined by the government.[11]

If the tussle between the Ministry and the broadcast industry over the Bill and Code is to really benefit the public, the breather provided by the delay in tabling the legislation in Parliament must be used to generate an authentic, informed public debate on the many complex issues involved in media regulation, ranging from professional norms and ethical practice to ownership and accountability.[12]


Due to the emergence of the welfare state and due to active effort on its part to bring out a just social order. State now undertakes to provide social security and social welfare for the common man, regulates the industrial relations. However the private initiative in many matters cannot be excluded. But private enterprises even in the US is subject to heavy state regulation and control. In India also, where mixed economy adopted,  the private enterprises are bound to be subject to extensive state regulation and control. While the extent of such control and regulation depends upon the need of the economy and the nature of the social and political challenges.

The present Bill which sought to done away with redundant laws and regulations and to establish a new socio-eco friendly regulatory bodies with certain elasticity and control, therefore this is a good piece of legislative work. However as said by Robert McChesney, a media scholar , “the act should be made of public concern rather than that of business”. The breather provided by the delay in tabling the legislation in the parliament must be used to generate an authentic, informed public debate.

The analysis of the Bill shows a strong will and mechanism, sought for, by the Central govt. to control broadcasting network and the industry through rational, legal provision which will definitely be interpreted in just, fair and reasonable manner by the apex court whenever the question came before it. The Bill also recognized and protect the ‘private communication[13]’ which never ever recognized by existing law.






* LL.M II, Dept. of Law, University of Pune, (M.S)

[1] Lectures on administrative Law, C K Takwani, 3rd Ed. Eastern Book Company, 2004

[2] Union of India v Cricket Association of Bengal, Feb.9, 1995- (i) The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an in-built restriction on its use as in the case of any other public property.

[3] Section 2 (o) ‘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.

   Sec.4 (3) No service provider shall provide any broadcasting content that is not in conformity with the broadcasting content certification and regulation rules, hereafter referred to as ‘the Content Code’, as may be prescribed by the Government under this Act

Provided that till such time as the Content code is notified under this Act, all service providers shall adhere to the Programme Code and the Advertising Code prescribed under the Cable Television Network Rules 1994.


[4] The Additional Secretary, Ministry of I & B, Mr. Pradeep Singh, Speaking at the FICCI Seminar on “Regulation in the Entertainment Sector’.

[5] Speaking at the FICCI Seminar on “Regulation in the Entertainment Sector, New Delhi, July 23, 2007

[6] ‘Within the country itself, there has always been a programme code and an advertising code as part of the licence conditions for the service providers to abide by,’ Ms. Swarup said, adding that “We have only revised these codes and propose to present them in a Content Code in view of the discussions with industry that have been taking place since October 2005”.

[7] These Guidelines have been drafted to introduce 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 principles of these Guidelines is that the responsibility of complying with the provisions of the Certification Rules vests with the BSP.


[8] Advertising Agencies Association of India (AAAI), PTI, New Delhi, Aug. 1, 2007 President Madhukar Kamath.


[9]  Preamble of the Proposed Act

[10]  Administrative Law, S P Sathe, 5th Ed. N M Tripathi pvt. Ltd. Bombay, 1991“The modern welfare state, however, requires more complex mechanism for dealing with various problems. Therefore in addition to tribunals and quasi-judicial authorities, we have administrative agencies which perform policy making cum adjudicatory functions”.

[11] Ammu Joseph, 15 Aug. 2007,

[12] ibid

[13] Sec. 2  (sa)“Private communication” means:

(i) A communication between two or more persons that is of a private or domestic nature;

(ii) An internal communication of a business, government agency or other organization for the purpose of the operation of the business, agency or organization; and

(iii) Communication in such other circumstances as may be prescribed.


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