One Lakh As Penalty On Errant News Channels Ineffective, There Must Be A Disgorgement Action: Supreme Court To NBDA

The NBDA is a private association established on July 3, 2007, which formulates the guidelines and regulates the standards to be followed by the channels in relation to the content they broadcast. It is to be noted that it came before the Apex Court challenging a judgment of the Bombay High Court, which has observed that the association has no sanctity in law, as it does not have any statutory recognition, and that it hardly meets the constitutional expectations of the citizens of fair and responsible broadcasting.

Chief Justice of India DY Chandrachud while questioning, remarked, “What are the fines that you impose? How much do the TV channel make from advertisement in one program? No TV channel has any motivation to comply with your self regulatory mechanism, and if at the end of a violation, you are going to impose a penalty of a lakh of rupees, there you have it. We see your point that as Mr Nariman has said in his committee report, that it should be self-regulation because at the same time, you don’t want the government to start intruding into this space of Article 19(1)a, you want the channels to be self-regulated, that point you validly made. That is the view that even our Court took after the Nariman Committee report in In Re: Destruction of Public Property’s case but equally the self-regulatory mechanism has to be made effective. If you are going to impose a fine of a lakh rupees on errant channels, is that really effective? The bench also comprised Justice J.B. Pardiwala and Justice Manoj Misra.

Senior Advocate Arvind P. Datar appeared for the petitioner, Solicitor General Tushar Mehta appeared for the Union of India, and Advocate Amit Pai appeared on caveat for some television news channels.

At the outset, Justice Chandrachud said, “The NBDA is strictly speaking, not a statutory body...”.

“I must admit that your lordship's statement is absolutely correct that it is not like ITAT or SEBI appellate authority. But where the High Court has gone wrong is that we have no sanctity within the statutory framework”, responded Datar.

Stating that a complete redressal mechanism is in place to address issues relating to television and video programs, Datar further stated, “…a body of 9 people headed by the supreme court judge, where 4 are editors from the tv channels, 4 are civil society members, and hearings are conducted with advocates also representing the channels”.

While reading the uplinking guidelines, Datar further submitted, “I agree with the adverse remarks, we accept that we are not a statutory body, but to say we have no sanctity, we have completely failed, we have belied the hopes of the citizens…those should not be held against me milords”. The main matter in Bombay was…there was a famous actor named Sushant Singh Rajput, there was a controversy that he died under suspicious circumstances or he committed suicide, and it was a media frenzy. And then the PIL was filed by some public-spirited citizen saying that you can’t have a trial by media even before the trial starts, you can’t have a media report saying you are guilty, you are doing this, you are doing that…that was the main matter and the Court said what is the self-regulatory mechanism etc…”.

However, Justice Chandrachud on not being satisfied with the contention, asked, "You say barring a few instances almost all TV channels maintain self restraint in telecasting, I don’t know if you take a headcount of people in the Court whether they will agree with what you say…all this is because of the kind of frenzy after the death of that actor, everybody went berserk presuming whether it was a murder or suicide…you pre-empt criminal investigation by doing it".

On which, Datar submitted, "We have no power of imprisonment, we have no power of contempt, that is for the Court. Once the Court gives an injunction, it becomes contempt. We are not testing it from the point of view of an extreme case of Aarushi Murder case…”.

After which, the bench enquired into the cost or penalty that the association imposes on a TV channel for a violation. The court was apprised that Rs. 1 lakh is the penalty that is imposed on the channels, along with a public apology.

Justice Chandrachud then remarked, “…So for, the last 15 years, the NBA has not considered it appropriate to raise the fine. Your fine must be in proportion or more than the entirety of the profits, which you made from that particular show. It must be a disgorgement action”.

Noting the above facets, the bench was of the opinion that it might have to issue regulatory guidelines to be adhered to by the channels.

The question before the Bombay High Court was whether the regime of self-regulation adopted by the news channels would have any sanctity within the statutory framework.

The High Court was of the opinion that although the objects of the NBDA and the National Broadcasters Federation (NBF) "could be laudable", the course and the regime of self- regulation as adopted by its bodies cannot have any sanctity within the statutory framework.

Accordingly, in its 251-page judgment, a bench of the then CJ Dipankar Datta and Justice G.S. Kulkarni of the Bombay High Court observed, "In our opinion, such self-regulatory mechanism would hardly meet the constitutional expectations of the citizens of a fair and responsible broadcasting, which would not be of a nature of an unwarranted sensitization, excessive publicity, leakage of evidence, and vilifying coverage, affecting public confidence in the judicial system and in the administration of criminal justice. The Government being the owner of air-waves, which the electronic media uses, it would not amount to any breach of the freedom the media enjoys under Article 19(1)(a) of the Constitution if such erring channels are hauled up and/or paralyzed by the relevant authority for violation of the Programme Code".

"The self-regulatory mechanism does not have any statutory recognition, in the absence of which, it is not possible for us to hold that the self-regulatory mechanism would have any sanctity in law. These are the bodies formed by private channels. There is no control whatsoever on the functioning of these bodies by the Central Government or any other statutory agencies. The regime of penalties prescribed also, in our opinion, is not a deterrent of such measure which in a given case could be said to be in the proportion of the damage, an objectional broadcast may cause, by media excesses or irresponsible reporting of the nature complained of by the petitioners", the High Court's judgment further read.

Cause Title: News Broadcasters Association v Union of India And ors.