Will the draft Broadcasting Services Regulation Bill, 2006, go the way of previous unsuccessful attempts to regulate the burgeoning broadcast sector in India -- in 1997 and 2001? The proposed legislation, drafted in needless isolation and unwarranted secrecy by the Union Ministry of Information and Broadcasting (I&B), has been stirring up passions within the media over the past month and more.

Journalists have been up in arms over the draconian provisions of the Bill, which give sweeping powers to the government and its representatives to cripple the media through pre-censorship and a particularly severe and potent form of inspector raj. The media industry has been furiously lobbying against the Bill's attempt to regulate media ownership, joined in its efforts by leading organisations representing business and industry as a whole.

Most comments on this aspect of the proposed legislation have come from representatives of industry, who appear to be almost more concerned about the impact of the Bill on business than its threat to freedom of expression.

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In the midst of all this, civil society has been strangely silent, as if the question of who is to determine what news and entertainment is available to the public through the airwaves, and on what basis, is none of its business. This is despite the fact that all opposition to the controversial legislation, as well as to the equally problematic draft code and guidelines to regulate television content -- also waiting in the wings -- is premised upon the notion that they threaten freedom of expression. Apparently forgotten in the furore is the fact that freedom of the press (or media) is a part of the broader democratic right to freedom of expression to which all citizens are supposed to be entitled.

Since the controversy has so far been framed primarily as a tug-of-war between the government and the media, it is not surprising that the latest word on the Bill (at the time of writing) is that the government will hold meetings with top representatives of the media and entertainment industry before finalising the Bill and tabling it in Parliament, possibly during the next session. The Media Committee of the Confederation of Indian Industry (CII) has reportedly been assured that the views and inputs of the media industry and other stake-holders would be sought on all issues, including the proposed restrictions on media ownership.

The news that the process of consultation and discussion that should have preceded the drafting of the legislation is now scheduled to take place in the near future may provide a welcome breather to the media. However, it is not yet clear who or what the government means by "other stake-holders," and when and how their views are to be taken on board. Perhaps the decision-makers in the I&B Ministry need to be reminded that the primary objective of media regulation in a democracy is to preserve and protect citizens' fundamental rights to information and freedom of expression. Citizens, therefore, have a major stake in media policy and regulation.

Of course, if citizens are to participate meaningfully in any discussion on the Bill, they need access to the draft legislation. It is significant that the Ministry has not even posted the document on its official website (the Telecom Regulatory Authority of India, which has been involved with media regulation in recent years, is at least more prompt about making documents available online). In fact, it has been virtually impossible to find the text of the Bill online, which makes it difficult for anyone not based in the capital to access it.

Democratic regulation

Contrary to the impression created by much of the debate around the Bill over the past few weeks, regulation – as opposed to control – of the media is a well-established feature of modern democratic societies. Clearly the purpose of such regulation is not to serve the interests of the State, to shield the government or other influential sections of society from scrutiny, or to prevent the dissemination of news and views that could be embarrassing or damaging to the powers-that-be. The point of media regulation is to ensure that the media serve the interests of the public.

As the Supreme Court of India noted in its landmark judgment of 1995, with special reference to the broadcast media, "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 only legitimate role for the state in this regard is as trustees for the public. On the other hand, broadcasters are allotted use of airwaves on the understanding that they will be used to serve the public interest.

The apex court also stated then that the central government must take immediate steps to establish an independent, autonomous public authority -- representative of all classes and interests in society -- to control and regulate the use of airwaves. That was over a decade ago and no such organisation has come into being. The introduction to the present Bill points out that the judgment provides the guiding principles for regulating the broadcast sector in the country. However, instead of first setting up the independent and broad-based regulatory body mandated by the court, the Bill makes it possible for the State and its representatives to pre-empt and take over important functions of the proposed public institution.

Nowhere in the draft is there any mention of how the public, in all its variety, is to be involved in the process of determining the nature and content of this influential section of the media, which has been entrusted with a valuable public resource (airwaves) in order to serve the public interest. It is also worth noting, in this context, that the government has been dragging its feet on enabling public -- as opposed to State-controlled -- broadcasting, including community radio (if not television).

It has been virtually impossible to find the text of the Bill online, which makes it difficult for anyone not based in the capital to access it.

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The rationale for public involvement in media matters is based on the crucial role of the media in creating what is known as the "public sphere." This is where events and issues of importance to a political community are supposed to be discussed and debated, and where information and ideas can be exchanged which are essential to citizen participation in community life, as well as in current affairs at the national and, increasingly, international levels. According to historian K N Panikkar, "Among the institutions that contribute to the make-up of a public sphere in society, the media perhaps perform the most critical function."

Contrary to what one might expect in the midst of the powerful and proliferating media that constitute a vital part of life today, the public sphere has been shrinking rather than expanding over the past couple of decades. Certain trends in the media are believed to have contributed to this erosion of the public sphere, which is by all accounts a worldwide phenomenon. One of these trends is the movement towards greater concentration of media ownership (a.k.a. media concentration) that is evident in many parts of the world.

The provisions in the present Bill aiming to curb such concentration – referred to in the draft as "restrictions on accumulation of interest" -- are likely to loom large in the anticipated discussions between the government and industry. The latter has been particularly exercised over this aspect of the legislation, which it describes variously as anti-consumer, anti-choice and anti-market, not to mention "against the spirit of free enterprise."

In the absence of public discussion on issues like media ownership and management, it is not surprising that most comments on this aspect of the proposed legislation have come from representatives of industry, who appear to be almost more concerned about the impact of the Bill on business than its threat to freedom of expression.

The Bill's proposed restrictions on content and the excessive powers given to the State in that regard, which journalists are justifiably anxious about, are relatively easy for the general public to identify with, understand and form opinions on. Not only are ownership patterns less transparent, but issues related to ownership and management are so much more complex that even media professionals often do not bother with them.

It is worth noting, however, that several serious and disinterested commentators who oppose other provisions of the Bill as anti-democratic have welcomed its proposed restrictions on ownership. Even the International Federation of Journalists (IFJ), one of the few professional associations to intervene in the debate so far, prefaced its opposition to any effort to restrict or violate press freedom with the observation that it "supports any move to prevent monopolistic control of the media in the hands of a few corporations."

The fact is that restrictions on ownership have been important features of media regulation in most mature democracies. And that it is efforts towards media deregulation which have led to a situation where the number of major corporations that dominate television, movies, music, radio, cable, publishing and the Internet across the globe has dwindled from 50 to less than two dozen over the past two decades. In fact, much of this control is concentrated in fewer than ten massive conglomerates.

Renewed public campaign in the US

Thanks to such developments, questions relating to media ownership are at the centre of many ongoing popular movements for media reform in different parts of the world. For example, in 2003, when the Federal Communications Commission (FCC) sought to further deregulate media in the United States, at least three million Americans protested against the possibility of even more concentrated ownership. With the FCC now considering a fresh review of broadcast ownership rules, a broad-based coalition of public interest groups has again launched a public campaign to urge it to put public service before the self-interest of large media corporations. (www.stopbigmedia.com)

The coalition wants the Commission to agree to public hearings on the subject, such as those that took place in 2003. They also want it to put forward specific proposals for the public to consider, providing sufficient time for citizens to respond to them in an informed manner. According to media reform groups in the US, any FCC action on media ownership must reaffirm – if not strengthen – the public interest obligations of broadcasters.

Elected representatives of the people of that country are also active on this front. The Future of American Media (FAM) Caucus, chaired by Representative Maurice Hinchey, came together to educate members of Congress and their staff about media issues, and is open to both Republicans and Democrats "who believe in an accountable, diverse, fair and independent media." The Caucus has already registered its objection to the FCC's new attempt to relax media ownership rules. According to Hinchey, they hope that "the Commission will strengthen existing rules, and not further damage an already weak structure intended to protect diversity in American broadcasting."

Reacting to the FCC's latest moves, Andrew Jay Schwartzman, head of the Media Access Project, pointed out: "Diversity in media ownership is good for democratic self-governance… Media consolidation is incompatible with effective public service." The Media Access Project was the public interest law firm involved in the landmark case in which the US Supreme Court overturned the Commission's 2003 decision to ease ownership regulation.

Media concentration in India

Indian industry groups lobbying against what are being loosely referred to as "cross-media restrictions" in the Bill have argued that they would result in fragmentation, when consolidation is the need of the times (no pun intended!). But, according to German media economist Manfred Kops, whose deconstruction of media concentration throws considerable light on the complex issue, the disadvantages of economic concentration are especially high in the media industry: "Concentration in the media sector…not only impairs economic competition, but also journalistic competition" (that is, competition between alternative ideas and opinions). He suggests that such a situation affects the public both directly and indirectly: it curtails freedom of opinion, reduces political and cultural diversity in media content, and impairs the media's ability to promote political competition and balance of power, as well as social integration.

The minority opinion in the Supreme Court's 1995 ruling was emphatically opposed to media concentration. Pointing out that diversity of opinions, views, ideas and ideologies was essential for citizens to develop informed opinions on issues of concern to them, it stated that such plurality could not be provided by a medium controlled by a monopoly – whether the monopoly is of the State or any other individual, group or organisation. It also endorsed the view of the majority opinion that the broadcast media should be under the control of the public, as distinct from the government.

There is at present little to prevent media concentration in India other than the linguistic and socio-cultural heterogeneity of Indian society, and the fact that media houses here have traditionally been family-owned. These realities had so far ensured some diversity in both ownership patterns and organizational forms. However, there is considerable evidence that the process of consolidation is well under way. As South Asia and media scholar Robin Jeffrey has pointed out, the 2001 figures of the Audit Bureau of Circulation indicated trends towards market domination, if not monopolies, within the press. And several media houses already have stakes in print, radio, television, the Internet and cable operations. Although the relevant section in the draft Bill mentions the need to prevent monopolies across different segments of the media, the present provisions are confined to the broadcast sector.

There are bound to be differences of opinion on whether restrictions on ownership are now necessary in the Indian context and, if so, how much, of what nature, and so on. Views will also differ on other aspects of the proposed law and code. But, as American media scholar Robert McChesney has pointed out, the democratic solution to the problem is to increase informed public participation in media policy making. In the absence of such participation, policies will continue to be made in the public's name without the public's informed consent.