Words spoken or written which obstruct or tend to obstruct the administration of justice can be contempt. Article 129 and 215 give the power of contempt of court to higher judiciary. Somehow it might appear that it limits the freedom granted by article 19(1) (a). But the whole idea behind continuing with this colonial act is that people do have the right to criticize judges but they should not go to the extent of making the functioning of judiciary difficult.
The Act and its features:
The “contempt of court” can be either civil contempt or criminal contempt;
(a) Civil contempt: wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court
(b) Criminal contempt: publication (whether by words. spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-
(i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court
(ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner
Innocent publication and distribution of matter not contempt:
(1) A person shall not be guilty of contempt of court
-on the ground that he has published (whether by words spoken or written or by signs or by visible representations or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at the time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending at that time of publishing he had no reasonable grounds for believing that the proceeding was pending.
-in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court.
-he has distributed a publication containing any objectionable matter and at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter: Provided that this sub-section shall not apply in respect of the distribution of:
(i) any publication which is a book or paper printed or published otherwise than in conformity with the rules contained in section 3 of the Press and Registration of Books Act, 1867 ;(25 of 1867)
(ii) Any publication which is a newspaper published otherwise than in conformity with the rules contained in section 5 of the said Act. It includes a pending judicial proceeding, when the charge-sheet or challan is filed, or when the court issues summons or warrant. The limitations apply until it is heard and finally decided.
Fair and accurate report of judicial proceeding not contempt
A person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.
Fair criticism of judicial act not contempt:
A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.
Complaint against presiding officers of subordinate courts when not contempt:
A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to- (a) any other subordinate court, or (b) the High Court, to which it is subordinate.
Publication of information relating to proceedings in chambers or in camera not contempt except in certain cases:
(1) A person shall not be guilty of contempt of court for publishing a fair and a accurate report of a judicial proceeding before any court sitting in chambers or in camera except in the following cases, that is to say,-
(a) Where the publication is contrary to the provisions of any enactment for the time being in force;
(b) Where the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication of all information relating to the proceeding or of information of the description which is published;
(c) Where the court sits in chambers or in camera for reasons connected with public order or the security of the State, the publication of information relating to those proceedings;
(d) Where the information relates to a secret process, discovery or invention which is an issue in the proceedings.
(2) A person shall not be guilty of contempt of court for publishing the text or a fair and accurate summary of the whole, or any part, of an order made by a court sitting in chambers or in camera, unless the court has expressly prohibited the publication thereof on grounds of public policy, or for reasons connected with public order or the security of the State, or on the ground that it contains information relating to a secret process, discovery or invention, or in exercise of any power vested in it.
Power of High Court to punish contempt of subordinate courts:
Every High Court shall have and exercise the same jurisdiction, powers and authority in respect of contempt of courts subordinate to it as it has in respect of contempt of itself: Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).
Power of High Court to try offences committed or offenders found outside jurisdiction:
A High Court shall have jurisdiction to inquire into or try contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits.
Punishment for contempt of court:
(1) A contempt of court may be punished with simple imprisonment for up to six months, or with fine up to two thousand rupees, or with both. The accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. The court, if it feels that the ends of justice will not be met without imprisonment may direct that he be detained in a civil prison.
(2) In case of contempt committed by a company, if it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such an officer officer shall also be deemed to be guilty of the contempt and such a person may also be punished.
Contempt not punishable in certain cases:
The court is not supposed to impose a sentence under this unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.
Procedure where contempt is in the face of the Supreme Court or a High Court:
- When the court is of the opinion that a person has committed contempt in its presence or hearing, the Court may cause such person to be detained in custody.
- As early as possible thereafter the guilty shall be informed in writing of the contempt with which he is charged with an opportunity to make his defence to the charge.
- After the hearing the court may proceedto determine the matter of the charge; and make such order for the punishment or discharge, as may be just.
- Pending the determination of the charge, the Court may direct that the person be detained in such custody as it may specify: Provided that he shall be released on bail, if a bond for such sum of money as the Court thinks sufficient is executed with or without sureties.
Cognizance of criminal contempt in other cases:
(1) In the case of a criminal contempt the Supreme Court or the High Court may take action on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate General or Law Officer (in case of some Union Territory).
(2) The High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or Law.
Contempt by judge, magistrate or other person acting judicially:
(1) A judge, magistrate or other person acting judicially is also liable for contempt of his own court or of any other court in the same manner as any other individual and the provisions of this Act shall applies to them as well accordingly.
(2) Although this doesn’t apply to any observations or remarks made regarding a subordinate court in an appeal or revision pending before such judge, magistrate or other person against the order or judgment of the subordinate court.
Limitation for actions for contempt:
A court can initiate contempt proceedings only within a period of one year from the date on which the contempt is alleged to have been committed.
Act not to apply to Nyaya Panchyats or other village courts:
This Act does not apply to contempt of Nyaya Panchayats or other village courts.
Power of Supreme Court and High Courts to make rules:
The Supreme Court or any High Court may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure.
Looking at the act from the present context:
In the Contempt of Courts Act 1952, there was no definition of ‘contempt’. When the definition was introduced by the Contempt of Courts Act 1971 (vide section 2), there was no definition of what constitutes scandalizing the court, or what prejudices or interferes with the course of justice. What was regarded as scandalous, or prejudice or interfering earlier may not be regarded as scandalous today.
To quote Supreme Court judge Markandeya Katju, ‘In a democracy, the object of this act is not to protect the dignity of courts but to protect the administration of justice.
The Contempt of Courts Amendment Act, 2006, has introduced a new section 13(b) that states: “The court may permit, in any proceedings for contempt of court, justification by truth as a valid defece if it is satisfied that it is in public interest and request for said defence is bona fide.” The amendment is the right culmination of the Contempt of Courts Act 1971.
Monday, March 22, 2010
On Cable TV Network Act 1995
When CNN first broadcast the Gulf War into India in 1991, millions of unemployed young people found that stringing wires over trees to cable connect homes was the best way to make money.
It went on till 1995 as the archaic Indian Posts and Telegraph Act defined broadcasting and it was totally unprepared for a signal coming from outside the country. There was nothing to suggest whether what was happening was legal or not. That is when a controversy broke over ESPN's attempt to uplink from India to telecast a cricket match. In the litigation that followed, the Supreme Court ruled that 'The airwaves are not a monopoly of the government'. The result was the Cable Networks Act, regularizing what was technically an illegal business.
The Act:
An Act to regulate the operation of cable television networks in the country and for matters connected therewith or incidental thereto. The act says that no person shall operate a cable television network unless he is registered as a cable operator under this Act. The act also lays down certain guidelines for transmission:
1. Programme code: Any programme which is not in conformity with the prescribed programme code can’t be transmitted.
2. Advertisement code: Any advertisement unless such advertisement is in conformity with the prescribed advertisement code can’t be transmitted.
3. Maintenance of register: Every cable operator is to maintain a register in the prescribed form carrying details of programmes (in brief) transmitted or retransmitted during a month. Such register has to be maintained for a period of one year after the actual transmission or re-transmission of the said programmes.
4. Compulsory transmission of two Doordarshan channels:
(A) Every cable operator shall retransmit
(i) Channels operated by or on behalf of Parliament in the manner and name as may be specified by the CentralGovernment by notification in the Official Gazette;
(ii) At least two Doordarshan terrestrial Channels and one regional language channel of a State in the Prime band, in satellite mode on frequencies other than those carrying terrestrial frequencies
(B) The Prasar Bharti may, by notification, specify the number and name of every Doordarshan channel to be retransmitted by cable operators in their cable service and the manner of reception and retransmission of such channels.
5. Use of standard equipment in cable Television network: Any equipment in cable television network can’t be used be unless it conforms to the Indian Standard in accordance with the provisions of the Bureau of Indian Standards Act, 1986.
6. Cable Television network not to interfere with any telecommunication system: - The cable Television network being operated should not interfere, in any way, with the functioning of the authorized telecommunication systems.
The act lays down provisions to seize and confiscate equipments in case of failure to follow the above rules and regulations. The cable operator has right to appeal against any such seizure or confiscation.
Finally the government retains the right to prohibit transmission of certain programmes in public interest if it thinks that the laid provisions are being violated. It also has the power to prohibit operation of cable television network in public interest.
By an amendment bill brought in 2002 the Cable Television Networks (Regulation) Act, 1995 became the Cable Television Networks (Regulation) Amendment Act 2002. By this amendment bill a new section 4A was added and section 9, 11, 16 and 22 were amended. Many amendments have been brought in the bill from time to time. Following were the main changes brought by the 2002 amendment:
(1). Transmission of programmes through addressable systems, etc:
Where the Central Government is satisfied that it is necessary in the public interest to do so, it may make it obligatory to transmit or retransmit programme of any pay channel through an addressable system.
(2) By the same logic it may also specify one or more free to air channels to be included in the package of channels genre wise for providing a programme mix of entertainment, information, and education, and such other programmes.
(3) It may also specify the maximum amount which a cable operator may demand from the subscriber including different maximum amounts for different States, cities, towns or areas as the case may be.
(4) Every cable operator shall publicize, in the prescribed manner, to the subscribers the subscription rates and the periodic intervals after which such subscriptions are payable for receiving each pay channel provided by such cable operator.
(5) The cable operator shall not require any subscriber to have a receiver set of a particular type to receive signals of cable television network.
(6) Every cable operator shall submit a report to the Central Government in the prescribed form and manner containing the information regarding:-
(i) The number of total subscribers:
(ii) Subscription rates:
(iii) Number of subscribers receiving programmes transmitted in basic service tier or particular programme or set of programmes transmitted on pay channel.
The Telecom Regulatory Authority of India (TRAI), the ad hoc broadcasting regulator —has been proposing amendment in the Cable Television Networks (Regulation) Act, and the telecom licensing agreement. This will enable viewers watch, Internet Protocol Television (IPTV), which is television that can be viewed on the computer if one has a broadband connection. Last year TRAI proposed a tariff for cable TV and DTH (direct to home) subscribers.
As of now there are 60,000 cable operators, 6,000 multi-system operators, 173 channels and seven DTH operators. There has been a growing chorus that the highly fractionalized cable TV distribution market in particular and the broadcasting industry, in general, needs a dedicated regulation regime, not only to quickly form regulations and settle disputes but also to save interest of the viewers.
It went on till 1995 as the archaic Indian Posts and Telegraph Act defined broadcasting and it was totally unprepared for a signal coming from outside the country. There was nothing to suggest whether what was happening was legal or not. That is when a controversy broke over ESPN's attempt to uplink from India to telecast a cricket match. In the litigation that followed, the Supreme Court ruled that 'The airwaves are not a monopoly of the government'. The result was the Cable Networks Act, regularizing what was technically an illegal business.
The Act:
An Act to regulate the operation of cable television networks in the country and for matters connected therewith or incidental thereto. The act says that no person shall operate a cable television network unless he is registered as a cable operator under this Act. The act also lays down certain guidelines for transmission:
1. Programme code: Any programme which is not in conformity with the prescribed programme code can’t be transmitted.
2. Advertisement code: Any advertisement unless such advertisement is in conformity with the prescribed advertisement code can’t be transmitted.
3. Maintenance of register: Every cable operator is to maintain a register in the prescribed form carrying details of programmes (in brief) transmitted or retransmitted during a month. Such register has to be maintained for a period of one year after the actual transmission or re-transmission of the said programmes.
4. Compulsory transmission of two Doordarshan channels:
(A) Every cable operator shall retransmit
(i) Channels operated by or on behalf of Parliament in the manner and name as may be specified by the CentralGovernment by notification in the Official Gazette;
(ii) At least two Doordarshan terrestrial Channels and one regional language channel of a State in the Prime band, in satellite mode on frequencies other than those carrying terrestrial frequencies
(B) The Prasar Bharti may, by notification, specify the number and name of every Doordarshan channel to be retransmitted by cable operators in their cable service and the manner of reception and retransmission of such channels.
5. Use of standard equipment in cable Television network: Any equipment in cable television network can’t be used be unless it conforms to the Indian Standard in accordance with the provisions of the Bureau of Indian Standards Act, 1986.
6. Cable Television network not to interfere with any telecommunication system: - The cable Television network being operated should not interfere, in any way, with the functioning of the authorized telecommunication systems.
The act lays down provisions to seize and confiscate equipments in case of failure to follow the above rules and regulations. The cable operator has right to appeal against any such seizure or confiscation.
Finally the government retains the right to prohibit transmission of certain programmes in public interest if it thinks that the laid provisions are being violated. It also has the power to prohibit operation of cable television network in public interest.
By an amendment bill brought in 2002 the Cable Television Networks (Regulation) Act, 1995 became the Cable Television Networks (Regulation) Amendment Act 2002. By this amendment bill a new section 4A was added and section 9, 11, 16 and 22 were amended. Many amendments have been brought in the bill from time to time. Following were the main changes brought by the 2002 amendment:
(1). Transmission of programmes through addressable systems, etc:
Where the Central Government is satisfied that it is necessary in the public interest to do so, it may make it obligatory to transmit or retransmit programme of any pay channel through an addressable system.
(2) By the same logic it may also specify one or more free to air channels to be included in the package of channels genre wise for providing a programme mix of entertainment, information, and education, and such other programmes.
(3) It may also specify the maximum amount which a cable operator may demand from the subscriber including different maximum amounts for different States, cities, towns or areas as the case may be.
(4) Every cable operator shall publicize, in the prescribed manner, to the subscribers the subscription rates and the periodic intervals after which such subscriptions are payable for receiving each pay channel provided by such cable operator.
(5) The cable operator shall not require any subscriber to have a receiver set of a particular type to receive signals of cable television network.
(6) Every cable operator shall submit a report to the Central Government in the prescribed form and manner containing the information regarding:-
(i) The number of total subscribers:
(ii) Subscription rates:
(iii) Number of subscribers receiving programmes transmitted in basic service tier or particular programme or set of programmes transmitted on pay channel.
The Telecom Regulatory Authority of India (TRAI), the ad hoc broadcasting regulator —has been proposing amendment in the Cable Television Networks (Regulation) Act, and the telecom licensing agreement. This will enable viewers watch, Internet Protocol Television (IPTV), which is television that can be viewed on the computer if one has a broadband connection. Last year TRAI proposed a tariff for cable TV and DTH (direct to home) subscribers.
As of now there are 60,000 cable operators, 6,000 multi-system operators, 173 channels and seven DTH operators. There has been a growing chorus that the highly fractionalized cable TV distribution market in particular and the broadcasting industry, in general, needs a dedicated regulation regime, not only to quickly form regulations and settle disputes but also to save interest of the viewers.
Thursday, March 11, 2010
Critique of the RTI Act 2005
Constitutional:
Information is necessary to form opinions, express dissent or support on any matter. The right to know is derived from the concept of freedom of speech and expression. RTI is not included in part III of the constitution (Art.12 -35) and hence is not a fundamental right.
Awareness:
Under section 26 (1) (a), (b), (c), the state government and its public authorities were required to organize educational program for the public to promote understanding but nothing significant had been done. The people in general are still unaware about the act. Even those who apply seek policy related information in very few numbers of cases.
Probably the greatest paradox about the act is that despite, India being world’s largest democracy; it took us more than 55 years to pass this act and that too with a penalty clause.
Misuse:
A large number of application information seekers are government employees. They seek information regarding each other to settle personal scores. Many others have used it to get information about issues in which they are themselves being invested. Overall, it has been used mostly by journalists, civil right activists and NGOs than the actual common man.
Proactive disclosures:
Proactive disclosures under section 4(1) (b) are very important for obtaining information even without asking for it. The public authorities are duty bound to widely disseminate the information through various means of communication. But this has not been happening as intended.
PIO’s and Appellate Authorities:
PIO’s are mostly untrained to handle an RTI request. PIO’s are often represented by junior officials and incompetent clerks. Also, at least the first appellate authority remains dysfunctional.
Delays:
Due to the above inherent incompetency, there have been inordinate delays in cases. Frequent and long adjournments of 30-45 days are normal.
Enabling the defaulters:
It is mandatory for the commission to levy penalty u/s 20, if information is not provided in 30 days @ Rs.250 per day subject to a maximum of Rs.25000. but the commission arbitrarily refuses to impose penalty. As a result, the fear of RTI in the minds of government officials is losing its grip. Of late, the commission has been almost obliging decisions in favor of senior government officials.
Finally to improve governance citizens can vote only once in five years but they can use RTI on a daily basis. This powerful piece of legislation can’t and shouldn’t be let to be used to settle frivolous, partisan and vengeful ends.
Information is necessary to form opinions, express dissent or support on any matter. The right to know is derived from the concept of freedom of speech and expression. RTI is not included in part III of the constitution (Art.12 -35) and hence is not a fundamental right.
Awareness:
Under section 26 (1) (a), (b), (c), the state government and its public authorities were required to organize educational program for the public to promote understanding but nothing significant had been done. The people in general are still unaware about the act. Even those who apply seek policy related information in very few numbers of cases.
Probably the greatest paradox about the act is that despite, India being world’s largest democracy; it took us more than 55 years to pass this act and that too with a penalty clause.
Misuse:
A large number of application information seekers are government employees. They seek information regarding each other to settle personal scores. Many others have used it to get information about issues in which they are themselves being invested. Overall, it has been used mostly by journalists, civil right activists and NGOs than the actual common man.
Proactive disclosures:
Proactive disclosures under section 4(1) (b) are very important for obtaining information even without asking for it. The public authorities are duty bound to widely disseminate the information through various means of communication. But this has not been happening as intended.
PIO’s and Appellate Authorities:
PIO’s are mostly untrained to handle an RTI request. PIO’s are often represented by junior officials and incompetent clerks. Also, at least the first appellate authority remains dysfunctional.
Delays:
Due to the above inherent incompetency, there have been inordinate delays in cases. Frequent and long adjournments of 30-45 days are normal.
Enabling the defaulters:
It is mandatory for the commission to levy penalty u/s 20, if information is not provided in 30 days @ Rs.250 per day subject to a maximum of Rs.25000. but the commission arbitrarily refuses to impose penalty. As a result, the fear of RTI in the minds of government officials is losing its grip. Of late, the commission has been almost obliging decisions in favor of senior government officials.
Finally to improve governance citizens can vote only once in five years but they can use RTI on a daily basis. This powerful piece of legislation can’t and shouldn’t be let to be used to settle frivolous, partisan and vengeful ends.
RTI: The history and the historical background
As a signatory to the International Covenant on Civil and Political Rights (ICCPR), India was under an international obligation to effectively guarantee the right to information as per Article 19 of the ICCPR.
The formal recognition of a legal right to information in India occurred more than two decades before RTI Act 2005 was finally enacted. The reason why it took so much time lies in the many inbuilt hurdles. The most important were the pre-constitutional laws: The Official Secrets Act 1923, Section 123 of the Indian evidence Act 1872 which provides that the Head of the Department can refuse to part with information, Rule 11 of CCS Conduct Rules 1964 which states that no govt. servant shall communicate any official document or information to any other person to whom he is not authorized to communicate such document or information. Add to all these colonial hangovers, the Archives Policy Resolution of 22 December 1972 which states that all documents are classified for 30 years and thereafter only non-confidential material is available to a restricted range of people. Even unclassified material cannot be communicated to any one outside the government without permission.
Not a surprise that it took even the Supreme Court many decisions, in several cases from time to time to conceptualize that the right to information is implicit in the constitutionally enshrined rights to freedom of speech and expression (Article 19 (1) (a) and right to life and liberty (Article 21).
The first Supreme Court ruling on the right to information dates back to 1975 when Justice K. K. Mathew in the State of UP vs. Raj Narain, (1975) (4) SCC 428 explicitly held the right to information to be our fundamental right. Justice Mathew ruled, “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing.”
In 1982 the right to know matured to the status of a constitutional right in the celebrated case of S P Gupta vs. Union of India (AIR) 1982 SC (149), popularly known as Judges case. The Supreme Court elevated the right to know and the right to information to the status of a fundamental right, on the principle that certain unarticulated rights are immanent and implicit in the enumerated guarantees.
The court declared - The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under article 19 (1) (a).
The Supreme Court of India has emphasized in the SP Gupta case (1982) that open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception.
In 1986, the Bombay High Court followed the SP Gupta judgment in the well-known case Bombay Environmental Group and others vs. Pune Cantonment Board.
The Bombay High Court distinguished between the ordinary citizen looking for information and groups of social activists. This was considered another landmark judgment concerning access to information.
In the Peoples Union for Civil Liberties Vs Union of India, 2000, the court opined: The right to participate in the affairs of the country is meaningless unless the citizens are well informed on issues in respect of which they are called upon to express their views. Even in 2002 in the Union of India Vs Association for Democratic Reform, the court said: The right to get information in democracy is well recognized and it is natural right flowing from the concept of democracy.
Despite all this, there was no serious attempt to enact suitable legislation to ensure simple and simple and effective access to information regime for the common man until after the launching of campaigns for freedom of information by civil society.
The first and most well-known right to information movement in India was the Mazdoor Kisan Shakti Sangathan (MKSS). In early 1990s, in the Bhim Tehsil of Rajasthan, MKSS took the initiative to lead people to assert their right to information by asking for copies of bills and vouchers and names of persons who have been paid wages mentioned in muster rolls on the construction of schools, dispensaries, small dams and community centres. On paper such development projects were all completed, but it was common knowledge of the villagers that there was gross misappropriation of funds. MKSS's struggle for access to village accounts and transparency in administration is widely credited with having sparked off the right to information movement across India.
In 1996, Justice PB Sawant, the Chairman of the Press Council of India, drafted the right to information bill. The core of the Bill is clause 3 which says:
1. Every citizen shall have the Right to Information from public body;
2. It shall be the duty of the public body to maintain all records duly catalogued and indexed;
3. The public body shall be under a duty to make available to the person requesting information, as it is under an obligation to obtain and furnish and shall not withhold any information or limit its availability to the public except the information specified in Clause 4, and
4. All individuals whether citizens or not, shall have the right to such information that affects their life and liberty;
The Govt. of India, Department of Personnel decided to set-up a Working Group on January 2, 1997 under the chairmanship of Mr. H D Shouri.
The Working Group on the ‘Right to Information and Promotion of Open and Transparent Government’ submitted its comprehensive and detailed report and the draft Bill on Freedom of Information on 24 May 1997. Apart from recommendations like appointment of a Public Information Officer to the time limit of 30 days, it suggested suitable amendment in section 5 of the Official Secrets Act and clauses 123 and 124 of the Indian Evidence Act.
Finally the Central Government enacted the Indian Freedom of Information Act in 2002. The Act represents an important step towards actualizing the Right to Information, but has been criticized for not going far enough.
At the state level Tamil Nadu was the first State to enact a right to information law, in 1997, followed by Goa in the same year. Seven other States had passed legislation by 2003 - Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Assam (2002), Madhya Pradesh (2003) and Jammu and Kashmir (2003). Uttar Pradesh framed an executive code on access to information in 2000 and draft bills have been prepared by the Governments of Kerala and Orissa.
What proved to be the landmark legislative action was the Right to Information Act (RTI) 2005. Subject to a few exceptions the act gives the right to information on matters in the possession of the state and public agencies that are covered by the Act. It seeks to promote transparency, arrest corruption and to hold government and its instrumentalities accountable to the governed.
The formal recognition of a legal right to information in India occurred more than two decades before RTI Act 2005 was finally enacted. The reason why it took so much time lies in the many inbuilt hurdles. The most important were the pre-constitutional laws: The Official Secrets Act 1923, Section 123 of the Indian evidence Act 1872 which provides that the Head of the Department can refuse to part with information, Rule 11 of CCS Conduct Rules 1964 which states that no govt. servant shall communicate any official document or information to any other person to whom he is not authorized to communicate such document or information. Add to all these colonial hangovers, the Archives Policy Resolution of 22 December 1972 which states that all documents are classified for 30 years and thereafter only non-confidential material is available to a restricted range of people. Even unclassified material cannot be communicated to any one outside the government without permission.
Not a surprise that it took even the Supreme Court many decisions, in several cases from time to time to conceptualize that the right to information is implicit in the constitutionally enshrined rights to freedom of speech and expression (Article 19 (1) (a) and right to life and liberty (Article 21).
The first Supreme Court ruling on the right to information dates back to 1975 when Justice K. K. Mathew in the State of UP vs. Raj Narain, (1975) (4) SCC 428 explicitly held the right to information to be our fundamental right. Justice Mathew ruled, “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing.”
In 1982 the right to know matured to the status of a constitutional right in the celebrated case of S P Gupta vs. Union of India (AIR) 1982 SC (149), popularly known as Judges case. The Supreme Court elevated the right to know and the right to information to the status of a fundamental right, on the principle that certain unarticulated rights are immanent and implicit in the enumerated guarantees.
The court declared - The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under article 19 (1) (a).
The Supreme Court of India has emphasized in the SP Gupta case (1982) that open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception.
In 1986, the Bombay High Court followed the SP Gupta judgment in the well-known case Bombay Environmental Group and others vs. Pune Cantonment Board.
The Bombay High Court distinguished between the ordinary citizen looking for information and groups of social activists. This was considered another landmark judgment concerning access to information.
In the Peoples Union for Civil Liberties Vs Union of India, 2000, the court opined: The right to participate in the affairs of the country is meaningless unless the citizens are well informed on issues in respect of which they are called upon to express their views. Even in 2002 in the Union of India Vs Association for Democratic Reform, the court said: The right to get information in democracy is well recognized and it is natural right flowing from the concept of democracy.
Despite all this, there was no serious attempt to enact suitable legislation to ensure simple and simple and effective access to information regime for the common man until after the launching of campaigns for freedom of information by civil society.
The first and most well-known right to information movement in India was the Mazdoor Kisan Shakti Sangathan (MKSS). In early 1990s, in the Bhim Tehsil of Rajasthan, MKSS took the initiative to lead people to assert their right to information by asking for copies of bills and vouchers and names of persons who have been paid wages mentioned in muster rolls on the construction of schools, dispensaries, small dams and community centres. On paper such development projects were all completed, but it was common knowledge of the villagers that there was gross misappropriation of funds. MKSS's struggle for access to village accounts and transparency in administration is widely credited with having sparked off the right to information movement across India.
In 1996, Justice PB Sawant, the Chairman of the Press Council of India, drafted the right to information bill. The core of the Bill is clause 3 which says:
1. Every citizen shall have the Right to Information from public body;
2. It shall be the duty of the public body to maintain all records duly catalogued and indexed;
3. The public body shall be under a duty to make available to the person requesting information, as it is under an obligation to obtain and furnish and shall not withhold any information or limit its availability to the public except the information specified in Clause 4, and
4. All individuals whether citizens or not, shall have the right to such information that affects their life and liberty;
The Govt. of India, Department of Personnel decided to set-up a Working Group on January 2, 1997 under the chairmanship of Mr. H D Shouri.
The Working Group on the ‘Right to Information and Promotion of Open and Transparent Government’ submitted its comprehensive and detailed report and the draft Bill on Freedom of Information on 24 May 1997. Apart from recommendations like appointment of a Public Information Officer to the time limit of 30 days, it suggested suitable amendment in section 5 of the Official Secrets Act and clauses 123 and 124 of the Indian Evidence Act.
Finally the Central Government enacted the Indian Freedom of Information Act in 2002. The Act represents an important step towards actualizing the Right to Information, but has been criticized for not going far enough.
At the state level Tamil Nadu was the first State to enact a right to information law, in 1997, followed by Goa in the same year. Seven other States had passed legislation by 2003 - Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Assam (2002), Madhya Pradesh (2003) and Jammu and Kashmir (2003). Uttar Pradesh framed an executive code on access to information in 2000 and draft bills have been prepared by the Governments of Kerala and Orissa.
What proved to be the landmark legislative action was the Right to Information Act (RTI) 2005. Subject to a few exceptions the act gives the right to information on matters in the possession of the state and public agencies that are covered by the Act. It seeks to promote transparency, arrest corruption and to hold government and its instrumentalities accountable to the governed.
Monday, March 1, 2010
Twenty Media Related Legal Terms
Ultra vires:
An act which is beyond the powers or authority of the person or organization which took it… Without authority…When a decision is taken ultra vires, it is for a higher level judicial body, such as a Court, to assess and rule on it.
Locus standi:
Person's right to take an action or be heard by a court.
Habeas corpus:
A procedure to have a person brought before a court to enquire into the lawfulness of that person’s detention...
First Information Report FIR:
A written document prepared by the police when they receive information about a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the FIR. It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf.
Prima facie:
Latin for "on its face"…A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. Such a case must be refuted in some way by the defendant for him to have a chance of prevailing at trial.
Mandamus:
High Court order commanding an individual, organisation, administrative tribunal or court to perform a certain action usually to correct an earlier action or failure to fulfil some duty…
Suo motu:
"The existing state of affairs (at a particular time)" or "the situation as it currently exists."
Deponent:
A person who swears on oath that a statement is correct…
Quasi-judicial:
It refers to an agency, boards or other government entity in which there are hearings, orders, judgments or other activities similar to those conducted by courts. Example: TRAI, IRDA, TDSAT and all such regulatory bodies act as quasi judicial authorities and they issue guidelines from time to time to ensure legal and fair working condition.
Will:
A legal document which people use to leave as a gift money and property when they die...
Deposition:
The official statement by a witness under oath taken in writing (as opposed to testimony where witnesses give their perception of the facts verbally)…
Sine die:
Indefinitely…Without assigning a specific day for further hearing; from the Latin for "without a day"...
Slander:
Attacking another’s reputation by a false publication tending to bring the person into disrepute… It is an oral defamation, in which someone tells one or more persons an untruth about another. It is a civil wrong (tort) and can be the basis for a lawsuit. Damages for slander (payoff for worth) may be limited, since such damages are usually difficult to prove.
Quo warranto:
By what authority…Legal procedure taken to stop a person or organization from doing something for which it may not have the legal authority, by demanding to know by what right they exercise the controversial authority.
Amicus curiae:
"Friend of the court": one who assists the court by furnishing information or advice regarding questions of law or fact. He is not a party to a lawsuit and therefore permitted to participate as a party to the suit.
Plaintiff:
The person who goes to court to make a claim against someone else…
Bar & Bench:
The collective term for barristers… When a person becomes a barrister it is called 'being called to the bar'. Bench is the name for the judges in a court…
suo motu:
On its own motion…For example: ‘There was no clarity in the Constitution whether the CEC had suo motu power to recommend the removal of an Election Commissioner.’
Benami transaction:
Purchase or holding of properties or even carrying out business in the name of other than those of the real owners, is usually known as benami transaction in India. The legal nature of such transaction is that the person in whose name the transaction is made does not benefit.
Injunction:
A writ issued by a court of law in civil proceedings, requiring a party to do or not to do a specified act or acts. An injunction is called prohibitory if it forbids the doing of an act and mandatory if it orders that an act be done. Disobedience to the order is punishable by contempt of court. Injunctions may be perpetual or temporary. A temporary injunction is normally in effect only until the hearing of the action is held, or for some lesser period; it is intended to preserve the status quo or prevent irreparable harm before the case can be fully heard. It may include return of property, keeping a gate to a road unlocked or depositing disputed funds with the court.
An act which is beyond the powers or authority of the person or organization which took it… Without authority…When a decision is taken ultra vires, it is for a higher level judicial body, such as a Court, to assess and rule on it.
Locus standi:
Person's right to take an action or be heard by a court.
Habeas corpus:
A procedure to have a person brought before a court to enquire into the lawfulness of that person’s detention...
First Information Report FIR:
A written document prepared by the police when they receive information about a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the FIR. It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf.
Prima facie:
Latin for "on its face"…A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. Such a case must be refuted in some way by the defendant for him to have a chance of prevailing at trial.
Mandamus:
High Court order commanding an individual, organisation, administrative tribunal or court to perform a certain action usually to correct an earlier action or failure to fulfil some duty…
Suo motu:
"The existing state of affairs (at a particular time)" or "the situation as it currently exists."
Deponent:
A person who swears on oath that a statement is correct…
Quasi-judicial:
It refers to an agency, boards or other government entity in which there are hearings, orders, judgments or other activities similar to those conducted by courts. Example: TRAI, IRDA, TDSAT and all such regulatory bodies act as quasi judicial authorities and they issue guidelines from time to time to ensure legal and fair working condition.
Will:
A legal document which people use to leave as a gift money and property when they die...
Deposition:
The official statement by a witness under oath taken in writing (as opposed to testimony where witnesses give their perception of the facts verbally)…
Sine die:
Indefinitely…Without assigning a specific day for further hearing; from the Latin for "without a day"...
Slander:
Attacking another’s reputation by a false publication tending to bring the person into disrepute… It is an oral defamation, in which someone tells one or more persons an untruth about another. It is a civil wrong (tort) and can be the basis for a lawsuit. Damages for slander (payoff for worth) may be limited, since such damages are usually difficult to prove.
Quo warranto:
By what authority…Legal procedure taken to stop a person or organization from doing something for which it may not have the legal authority, by demanding to know by what right they exercise the controversial authority.
Amicus curiae:
"Friend of the court": one who assists the court by furnishing information or advice regarding questions of law or fact. He is not a party to a lawsuit and therefore permitted to participate as a party to the suit.
Plaintiff:
The person who goes to court to make a claim against someone else…
Bar & Bench:
The collective term for barristers… When a person becomes a barrister it is called 'being called to the bar'. Bench is the name for the judges in a court…
suo motu:
On its own motion…For example: ‘There was no clarity in the Constitution whether the CEC had suo motu power to recommend the removal of an Election Commissioner.’
Benami transaction:
Purchase or holding of properties or even carrying out business in the name of other than those of the real owners, is usually known as benami transaction in India. The legal nature of such transaction is that the person in whose name the transaction is made does not benefit.
Injunction:
A writ issued by a court of law in civil proceedings, requiring a party to do or not to do a specified act or acts. An injunction is called prohibitory if it forbids the doing of an act and mandatory if it orders that an act be done. Disobedience to the order is punishable by contempt of court. Injunctions may be perpetual or temporary. A temporary injunction is normally in effect only until the hearing of the action is held, or for some lesser period; it is intended to preserve the status quo or prevent irreparable harm before the case can be fully heard. It may include return of property, keeping a gate to a road unlocked or depositing disputed funds with the court.
Media Related Legal Terms
Accused:
The person charged with a criminal offence.
Ad hoc:
For a particular purpose.
Affidavit:
A written statement which is sworn to be true by the person signing it.
Appeal:
Challenge to a court decision in a higher court.
Attorney:
A person appointed to act for another person.
Attorney General:
Legal adviser to the Government.
Bail:
To pay, or promise to pay, an amount of money so that an accused person is not put in
Bailiff:
An officer of the court who carries out the court's orders.
Bar:
The collective term for barristers. When a person becomes a barrister it is called 'being called to the bar'.
Bench:
The name for the judges in a court.
Bona fide:
In good faith.
Caveat:
A formal warning.
Certiorari:
An order by the High Court that a case should be reviewed.
Charge sheet:
The document on which a garda records details of the accusation against a suspect.
Contempt:
Deliberate disregard of a court order.
Copyright:
A legal right which stops things being copied without permission.
Counterfeit:
Something that is forged or copied with the intention of deceiving.
Culpa:
A fault.
De facto:
In fact or in reality.
De jure:
Rightfully.
Decree:
Order by a court.
Deed:
A legal document which commits the person signing it to something.
Defamation:
Making a statement, either orally (slander) or in writing (libel) which damages someone's reputation.
Deponent:
A person who swears on oath that a statement is correct.prison before the trial.
Ex gratia:
Describing something done or given as a favour rather than a legal obligation
Habeas corpus:
A procedure to have a person brought before a court to enquire into the lawfulness of that person’s detention.
Indict:
Using legal means to officially accuse someone of committing an offence. Interim order
Temporary court order of limited duration.
Ipso facto:
By the mere fact.
Jurisdiction:
The territory in which a court can operate; or the power it has to deal with particular cases or the power it has to issue orders.
Jury:
A group of people, usually 12, who review all the evidence in a court case and then come to a verdict.
Lawsuit:
A claim made in a court of law.
Lease:
A contract between the owner of a property and a tenant, giving the tenant sole use of the property for an agreed time.
Libel:
A false statement made in writing or in some other permanent record.
Litigation:
Taking legal action through the courts.
Locus standi:
Person's right to take an action or be heard by a court.
Mala fides:
Bad faith.
Mandamus:
High Court order commanding an individual, organisation, administrative tribunal or court to perform a certain action usually to correct an earlier action or failure to fulfil some duty.
Notary:
A lawyer, usually a solicitor, who is authorised to certify documents, take affidavits and swear oaths.
Plaintiff:
The person who goes to court to make a claim against someone else.
Plead:
To declare to the court whether you are guilty or not guilty.
Power of attorney:
A document which gives power to the person appointed to act for the person who signed the document.
Prima facie:
On the face of it
Quo warranto:
By what authority.
Sedition:
Writing things or saying things which encourage people to rise up against the Government.
Sine die:
Indefinitely.
Slander:
Saying something untrue about a person.
Sub judice:
Something being dealt with by a court which cannot be discussed outside the court.
Subpoena:
A summons or order requiring the person to whom it is addressed to attend at a court on a specific date and at a stated time
Surety:
Someone who takes responsibility for someone else's debts or promises, and guarantees that they will be paid or done.
Testify:
Give evidence.
Treason:
The crime of betraying your country.
Tribunal:
A body set up to act like a court outside the normal court system. A forum to hear disputes and with the authority to settle them
Ultra vires:
Beyond one's powers.
Void:
Without legal effect.
Warrant:
A certificate which gives the person holding it the right to buy shares at a given price; a Judge's written instruction to arrest someone or to search a property.
Will:
A legal document which people use to leave as a gift money and property when they die.
Witness:
Someone who watches a signature being put on a document, and then signs as well to verify the signature's authenticity; or attends court to testify about events they know about
Writ:
A summons or order from a court of law.
Cer•ti•o•ra•ri:
/ˌsɜrʃiəˈrɛəraɪ,
A writ issuing from a superior court calling up the record of a proceeding in an inferior court for review.,,
The person charged with a criminal offence.
Ad hoc:
For a particular purpose.
Affidavit:
A written statement which is sworn to be true by the person signing it.
Appeal:
Challenge to a court decision in a higher court.
Attorney:
A person appointed to act for another person.
Attorney General:
Legal adviser to the Government.
Bail:
To pay, or promise to pay, an amount of money so that an accused person is not put in
Bailiff:
An officer of the court who carries out the court's orders.
Bar:
The collective term for barristers. When a person becomes a barrister it is called 'being called to the bar'.
Bench:
The name for the judges in a court.
Bona fide:
In good faith.
Caveat:
A formal warning.
Certiorari:
An order by the High Court that a case should be reviewed.
Charge sheet:
The document on which a garda records details of the accusation against a suspect.
Contempt:
Deliberate disregard of a court order.
Copyright:
A legal right which stops things being copied without permission.
Counterfeit:
Something that is forged or copied with the intention of deceiving.
Culpa:
A fault.
De facto:
In fact or in reality.
De jure:
Rightfully.
Decree:
Order by a court.
Deed:
A legal document which commits the person signing it to something.
Defamation:
Making a statement, either orally (slander) or in writing (libel) which damages someone's reputation.
Deponent:
A person who swears on oath that a statement is correct.prison before the trial.
Ex gratia:
Describing something done or given as a favour rather than a legal obligation
Habeas corpus:
A procedure to have a person brought before a court to enquire into the lawfulness of that person’s detention.
Indict:
Using legal means to officially accuse someone of committing an offence. Interim order
Temporary court order of limited duration.
Ipso facto:
By the mere fact.
Jurisdiction:
The territory in which a court can operate; or the power it has to deal with particular cases or the power it has to issue orders.
Jury:
A group of people, usually 12, who review all the evidence in a court case and then come to a verdict.
Lawsuit:
A claim made in a court of law.
Lease:
A contract between the owner of a property and a tenant, giving the tenant sole use of the property for an agreed time.
Libel:
A false statement made in writing or in some other permanent record.
Litigation:
Taking legal action through the courts.
Locus standi:
Person's right to take an action or be heard by a court.
Mala fides:
Bad faith.
Mandamus:
High Court order commanding an individual, organisation, administrative tribunal or court to perform a certain action usually to correct an earlier action or failure to fulfil some duty.
Notary:
A lawyer, usually a solicitor, who is authorised to certify documents, take affidavits and swear oaths.
Plaintiff:
The person who goes to court to make a claim against someone else.
Plead:
To declare to the court whether you are guilty or not guilty.
Power of attorney:
A document which gives power to the person appointed to act for the person who signed the document.
Prima facie:
On the face of it
Quo warranto:
By what authority.
Sedition:
Writing things or saying things which encourage people to rise up against the Government.
Sine die:
Indefinitely.
Slander:
Saying something untrue about a person.
Sub judice:
Something being dealt with by a court which cannot be discussed outside the court.
Subpoena:
A summons or order requiring the person to whom it is addressed to attend at a court on a specific date and at a stated time
Surety:
Someone who takes responsibility for someone else's debts or promises, and guarantees that they will be paid or done.
Testify:
Give evidence.
Treason:
The crime of betraying your country.
Tribunal:
A body set up to act like a court outside the normal court system. A forum to hear disputes and with the authority to settle them
Ultra vires:
Beyond one's powers.
Void:
Without legal effect.
Warrant:
A certificate which gives the person holding it the right to buy shares at a given price; a Judge's written instruction to arrest someone or to search a property.
Will:
A legal document which people use to leave as a gift money and property when they die.
Witness:
Someone who watches a signature being put on a document, and then signs as well to verify the signature's authenticity; or attends court to testify about events they know about
Writ:
A summons or order from a court of law.
Cer•ti•o•ra•ri:
/ˌsɜrʃiəˈrɛəraɪ,
A writ issuing from a superior court calling up the record of a proceeding in an inferior court for review.,,
Cable TV Network Act: A brief Perspective
When CNN first broadcast the Gulf War into India in 1991, millions of unemployed young people found that stringing wires over trees to cable connect homes was the best way to make money.
It went on till 1995 as the archaic Indian Posts and Telegraph Act defined broadcasting and it was totally unprepared for a signal coming from outside the country. There was nothing to suggest whether what was happening was legal or not. That is when a controversy broke over ESPN's attempt to uplink from India to telecast a cricket match. In the litigation that followed, the Supreme Court ruled that 'The airwaves are not a monopoly of the government'. The result was the Cable Networks Act, regularizing what was technically an illegal business.
The Act:
An Act to regulate the operation of cable television networks in the country and for matters connected therewith or incidental thereto. The act says that no person shall operate a cable television network unless he is registered as a cable operator under this Act. The act also lays down certain guidelines for transmission:
1. Programme code: Any programme which is not in conformity with the prescribed programme code can’t be transmitted.
2. Advertisement code: Any advertisement unless such advertisement is in conformity with the prescribed advertisement code can’t be transmitted.
3. Maintenance of register: Every cable operator is to maintain a register in the prescribed form carrying details of programmes (in brief) transmitted or retransmitted during a month. Such register has to be maintained for a period of one year after the actual transmission or re-transmission of the said programmes.
4. Compulsory transmission of two Doordarshan channels:
(A) Every cable operator shall retransmit
(i) Channels operated by or on behalf of Parliament in the manner and name as may be specified by the CentralGovernment by notification in the Official Gazette;
(ii) At least two Doordarshan terrestrial Channels and one regional language channel of a State in the Prime band, in satellite mode on frequencies other than those carrying terrestrial frequencies
(B) The Prasar Bharti may, by notification, specify the number and name of every Doordarshan channel to be retransmitted by cable operators in their cable service and the manner of reception and retransmission of such channels.
5. Use of standard equipment in cable Television network: Any equipment in cable television network can’t be used be unless it conforms to the Indian Standard in accordance with the provisions of the Bureau of Indian Standards Act, 1986.
6. Cable Television network not to interfere with any telecommunication system: - The cable Television network being operated should not interfere, in any way, with the functioning of the authorized telecommunication systems.
The act lays down provisions to seize and confiscate equipments in case of failure to follow the above rules and regulations. The cable operator has right to appeal against any such seizure or confiscation.
Finally the government retains the right to prohibit transmission of certain programmes in public interest if it thinks that the laid provisions are being violated. It also has the power to prohibit operation of cable television network in public interest.
By an amendment bill brought in 2002 the Cable Television Networks (Regulation) Act, 1995 became the Cable Television Networks (Regulation) Amendment Act 2002. By this amendment bill a new section 4A was added and section 9, 11, 16 and 22 were amended. Many amendments have been brought in the bill from time to time. Following were the main changes brought by the 2002 amendment:
(1). Transmission of programmes through addressable systems, etc:
Where the Central Government is satisfied that it is necessary in the public interest to do so, it may make it obligatory to transmit or retransmit programme of any pay channel through an addressable system.
(2) By the same logic it may also specify one or more free to air channels to be included in the package of channels genre wise for providing a programme mix of entertainment, information, and education, and such other programmes.
(3) It may also specify the maximum amount which a cable operator may demand from the subscriber including different maximum amounts for different States, cities, towns or areas as the case may be.
(4) Every cable operator shall publicize, in the prescribed manner, to the subscribers the subscription rates and the periodic intervals after which such subscriptions are payable for receiving each pay channel provided by such cable operator.
(5) The cable operator shall not require any subscriber to have a receiver set of a particular type to receive signals of cable television network.
(6) Every cable operator shall submit a report to the Central Government in the prescribed form and manner containing the information regarding:-
(i) The number of total subscribers:
(ii) Subscription rates:
(iii) Number of subscribers receiving programmes transmitted in basic service tier or particular programme or set of programmes transmitted on pay channel.
The Telecom Regulatory Authority of India (TRAI), the ad hoc broadcasting regulator —has been proposing amendment in the Cable Television Networks (Regulation) Act, and the telecom licensing agreement. This will enable viewers watch, Internet Protocol Television (IPTV), which is television that can be viewed on the computer if one has a broadband connection. Last year TRAI proposed a tariff for cable TV and DTH (direct to home) subscribers.
As of now there are 60,000 cable operators, 6,000 multi-system operators, 173 channels and seven DTH operators. There has been a growing chorus that the highly fractionalized cable TV distribution market in particular and the broadcasting industry, in general, needs a dedicated regulation regime, not only to quickly form regulations and settle disputes but also to save interest of the viewers.
It went on till 1995 as the archaic Indian Posts and Telegraph Act defined broadcasting and it was totally unprepared for a signal coming from outside the country. There was nothing to suggest whether what was happening was legal or not. That is when a controversy broke over ESPN's attempt to uplink from India to telecast a cricket match. In the litigation that followed, the Supreme Court ruled that 'The airwaves are not a monopoly of the government'. The result was the Cable Networks Act, regularizing what was technically an illegal business.
The Act:
An Act to regulate the operation of cable television networks in the country and for matters connected therewith or incidental thereto. The act says that no person shall operate a cable television network unless he is registered as a cable operator under this Act. The act also lays down certain guidelines for transmission:
1. Programme code: Any programme which is not in conformity with the prescribed programme code can’t be transmitted.
2. Advertisement code: Any advertisement unless such advertisement is in conformity with the prescribed advertisement code can’t be transmitted.
3. Maintenance of register: Every cable operator is to maintain a register in the prescribed form carrying details of programmes (in brief) transmitted or retransmitted during a month. Such register has to be maintained for a period of one year after the actual transmission or re-transmission of the said programmes.
4. Compulsory transmission of two Doordarshan channels:
(A) Every cable operator shall retransmit
(i) Channels operated by or on behalf of Parliament in the manner and name as may be specified by the CentralGovernment by notification in the Official Gazette;
(ii) At least two Doordarshan terrestrial Channels and one regional language channel of a State in the Prime band, in satellite mode on frequencies other than those carrying terrestrial frequencies
(B) The Prasar Bharti may, by notification, specify the number and name of every Doordarshan channel to be retransmitted by cable operators in their cable service and the manner of reception and retransmission of such channels.
5. Use of standard equipment in cable Television network: Any equipment in cable television network can’t be used be unless it conforms to the Indian Standard in accordance with the provisions of the Bureau of Indian Standards Act, 1986.
6. Cable Television network not to interfere with any telecommunication system: - The cable Television network being operated should not interfere, in any way, with the functioning of the authorized telecommunication systems.
The act lays down provisions to seize and confiscate equipments in case of failure to follow the above rules and regulations. The cable operator has right to appeal against any such seizure or confiscation.
Finally the government retains the right to prohibit transmission of certain programmes in public interest if it thinks that the laid provisions are being violated. It also has the power to prohibit operation of cable television network in public interest.
By an amendment bill brought in 2002 the Cable Television Networks (Regulation) Act, 1995 became the Cable Television Networks (Regulation) Amendment Act 2002. By this amendment bill a new section 4A was added and section 9, 11, 16 and 22 were amended. Many amendments have been brought in the bill from time to time. Following were the main changes brought by the 2002 amendment:
(1). Transmission of programmes through addressable systems, etc:
Where the Central Government is satisfied that it is necessary in the public interest to do so, it may make it obligatory to transmit or retransmit programme of any pay channel through an addressable system.
(2) By the same logic it may also specify one or more free to air channels to be included in the package of channels genre wise for providing a programme mix of entertainment, information, and education, and such other programmes.
(3) It may also specify the maximum amount which a cable operator may demand from the subscriber including different maximum amounts for different States, cities, towns or areas as the case may be.
(4) Every cable operator shall publicize, in the prescribed manner, to the subscribers the subscription rates and the periodic intervals after which such subscriptions are payable for receiving each pay channel provided by such cable operator.
(5) The cable operator shall not require any subscriber to have a receiver set of a particular type to receive signals of cable television network.
(6) Every cable operator shall submit a report to the Central Government in the prescribed form and manner containing the information regarding:-
(i) The number of total subscribers:
(ii) Subscription rates:
(iii) Number of subscribers receiving programmes transmitted in basic service tier or particular programme or set of programmes transmitted on pay channel.
The Telecom Regulatory Authority of India (TRAI), the ad hoc broadcasting regulator —has been proposing amendment in the Cable Television Networks (Regulation) Act, and the telecom licensing agreement. This will enable viewers watch, Internet Protocol Television (IPTV), which is television that can be viewed on the computer if one has a broadband connection. Last year TRAI proposed a tariff for cable TV and DTH (direct to home) subscribers.
As of now there are 60,000 cable operators, 6,000 multi-system operators, 173 channels and seven DTH operators. There has been a growing chorus that the highly fractionalized cable TV distribution market in particular and the broadcasting industry, in general, needs a dedicated regulation regime, not only to quickly form regulations and settle disputes but also to save interest of the viewers.
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