On April 30 this year, during the third phase of the nationwide lockdown, the information and broadcasting ministry released new draft guidelines for uplinking and downlinking TV channels.

In an attached circular, the ministry claimed that the update was necessitated by “fast evolving broadcasting technology” and “changes in the market scenarios”.

Updating the 2011 guidelines, the ministry reworked several aspects crucial to the business of private TV channels such as the net worth, name and logo criteria; annual fees; renewal of permission; and foreign ownership.

Most notably, it expanded the scope for intervention by the home ministry, which was empowered to revoke or reassess a channel’s security clearance if there was a specified change in its ownership.

The ministry had sought responses to the updated draft guidelines from the Indian Broadcasting Foundation, the News Broadcasters Association, and private TV channels, including news channels, within 15 days.

Newslaundry accessed the responses submitted by FICCI and the ABP Group, which runs a bouquet of newspapers and TV channels.

Both the industry association and the media house raised multiple objections to the new guidelines, particularly the expanded role of the home ministry, which is proposed to wield the stick of security clearance, and the “disproportionate penalties” prescribed for non-compliance.

Role of the home ministry

One section of the draft guidelines – section 23 – has garnered more attention than others for the scope of intervention it provides to the home ministry.

It lays out that a news agency, a private channel seeking a teleport, or a company seeking uplinking and downlinking permission will have to seek security clearance for 10 years from the home ministry. The clearance won’t be limited to the company, but will cover its directors and any shareholder with over 10 percent stake in the company.

The process will also apply to those seeking downlinking of a foreign news channel.

The security clearance will also be required if a company appoints new directors, if someone buys over 10 percent stake in a company, or if a company downlinking a foreign television channel appoints a new executive.

“Provided that if at any time the MHA withdraws security clearance to a permission holder, the permission of the company/LLP shall be forthwith terminated, after giving an opportunity of being heard,” section 23 of the draft states.

In section 22, the draft mandates penalties for a company if it delays or does not intimate the I&B ministry about a change in shareholding pattern, appoints a director without permission or doesn’t remove a director who has been denied security clearance. In the first two cases, the ministry can warn the company or prohibit it from broadcasting for 30 days. In the third, it can additionally suspend or withdraw its permissions.

Responses by FICCI, ABP Group

A legal note on the draft guidelines submitted to the I&B ministry by the ABP Group argued that they significantly increased the home ministry’s powers.

“A lot of discretionary powers have been vested with MHA whereby the 10-year permission can be withdrawn in the event MHA withdraws the security clearance,” the note said. “The security clearance is also mandatory for the directors, shareholding patterns.”

The note admitted that the ABP Group had requested the ministry to avoid security clearances by the home ministry because it was “time consuming and uncertain,” adding that the penalties for not complying with these guidelines were “disproportionate”.

“The control and discretion with MHA on security conditions and the disproportionate penalties even for minor procedural non-compliances clearly indicates the intent of the government to control the electronic media for both News & Non-News genre,” the note concluded.

A report in The Print last month anonymously quoted “a top industry source” as saying the clauses pertaining to security clearance in the draft guidelines left “a lot of discretionary powers with the MHA”.

In its suggestions, FICCI, an association of Indian businesses, gave priority to the clauses regarding the home ministry and security clearance.

“We believe that the security clearance process by MHA should be applied only once for the entity when it seeks permission from MIB for the first time and then it should be exempted from seeking security clearance every time it launches a new TV channel,” FICCI noted, adding that the threshold for change in shareholding should be increased from 10 percent to 20 percent.

Buttressing its argument, FICCI noted that the granting of security clearance required the gathering of many records related to the company and its direction which was a “time-consuming process”.

Regarding its suggestion on shareholding, the association said the 20 percent mark was in consonance with the “suggestive definition of control and influence” in the Companies Act of 2013.

Additionally, FICCI said the process of revoking the security clearance should be “subject to a defined process in spirit of principles of natural justice and due process of law”.

“A due process requiring MHA to send notice containing reasons in writing for revocation of security clearance with minimum 30 days for the permitted entity to respond needs to be instituted and 15 days should be given to approach a court of law in case MHA passes an adverse order with reasoning,” it explained. “Also, it should be clearly stated that the said TV channel(s) will not be discontinued till the proceedings before MHA are pending and time to approach Courts remains.”

The reason for this, the association pointed out, was that the right to operate a TV channel was constitutionally protected by Article 19 as the right to carry on the business of circulating “commercial speech”. It had also been “sanctified” by the Supreme Court “in the cases of Sakal Newspapers and Bennett Coleman Ltd”.

It added: “Such a right can only be subject to reasonable restrictions of ‘the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence’ as provided in Article 19(2) of the Constitution.”

FICCI further argued that the penalties outlined in the draft guidelines needed to be “pruned and modified” to financial penalties because they ensured better compliance by businesses. Only if a company continued to violate the guidelines after three penalties should “it be forced to suspend broadcast for not more than 24 hours” rather than 30 days. The reason for this, FICCI stated, was that any order to suspend broadcast by a TV channel “may be seen as a gross violation of freedom of speech and expression on hands of the state and may actually be held to be unconstitutional consequentially by the writ courts”.

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