Television today offers viewers an immense amount of variety-daily soap operas, reality TV shows, news, fashion, music videos etc. With the exponential increase in satellite channels in India and the mad rush for TRPs, channel owners are increasingly devising content which is purely market driven, as a result of which issues concerning censorship of the content on TV have assumed grave significance.
In India, content on television is primarily governed by the Cable Television Networks (Regulation) Act, 1995 (“Cable Act”) and the Cable Television Networks Rules, 1994 (“Cable Rules”). Section 5 and 6 of the Cable Act prohibits any person from transmitting or re-transmitting through a cable service any programme or advertisement respectively, unless it is in conformity with the Programme Code or the Advertisement Code, as laid down in the Cable Rules. Further, under the Cable Act, the Central Government or an authorised officer, in public interest or in the interest of security or sovereignty of India, may prohibit a cable operator from transmitting or re-transmitting a programme or a channel if it is not in conformity with the Programme Code or the Advertisement Code or if it is likely to promote ill will, disharmony, hatred between different religious, racial, linguistic groups or is perhaps is likely to disturb public tranquillity.
Under the Programme Code, programmes which inter alia offend good taste or decency or are unsuitable for unrestricted public exhibition are prohibited from being carried on the cable network. The Programme Code further states that no film song promo or film promo or film trailer or music video or music albums or their promos, whether produced in India or abroad, shall be carried on the cable TV network unless it has been certified by the Central Board of Film Certification (“CBFC”) as suitable for unrestricted public exhibition in India. However, the certification mechanism is not required for other types of programme content. Although, the Cable Act and the Cable Rules are not applicable to direct-to-home (DTH) operators, DTH operators are bound by the provisions of the same including the Programme Code as it is made a part of the terms and conditions under which a DTH license is issued.
Several experts in the field have expressed a need for setting up of a regulator to regulate content on TV on the lines of CBFC under the Cinematograph Act, 1952. This issue came up before the Delhi High Court in Deepak Maini v. Star Plus & Ors. [162(2009)DLT352]. In this case, a petition was filed to ban the reality TV show Sach ka Samna on grounds of obscenity, and for the Court to issue appropriate orders for regulating TV broadcasting and for setting up a regulatory body. The Court refused to interfere and held that the guidelines were already in place and that the Central Government was the most appropriate authority to initiate any action or for framing any other regulatory guidelines.
Although the Programme Code regulates content on television, there is a dearth of Court decisions interpreting the provisions of the Programme Code and as such no bright line rule exists in this regard. The Supreme Court of India in Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana [AIR1998SC1642], refused to stop telecast of the serial Honi Anhoni as it would be a violation of the fundamental right to freedom of speech and expression. Similarly in the case of Ramesh s/o Chotalal Dalal v. Union of India & Ors. [AIR1988SC755], the Supreme Court refused to stop the telecast of a documentary serial titled Tamas on the partition of India rejecting the argument that it could cause disharmony on grounds of religion. The Supreme Court considered the movie as a whole and the fact that CBFC had granted the serial a ‘U’ certificate for unrestricted public exhibition and held that the serial was unlikely to cause any disharmony.
Whether there is a need for the Government to specifically regulate content shown on TV or encourage self-regulation by the broadcasting industry is an issue that will be dealt with over time. The key for the judiciary and regulators would be to maintain a balance between protecting free speech and expression on one hand and public decency and morality on the other.
By Nandan Pendsey and Himanie Katoch of AZB & Partners, Advocates and Solicitors