The Broadcasting bill broadly casts the citizen as a subject

A sense of déjà vu pervades as one reads the text and the sub-text of the revised Broadcasting Services (Regulation) Bill (henceforth BB). The new Broadcast Bill, as a report rightly describes, “is scene two of the same act”, only burlier and bigger in its capacity to curb, curtail and control online content and news (which basically means most of everything).

For those under the impression that the proposed law is only to regulate OTT platforms, there’s more “bad news” to be handled – the BB aims to also bring all news and news-adjacent content online – text, podcasts, audio, video – under its sole regulatory oversight. With “textual” content also now under purview and within the meaning of “broadcast”, it is clear the BB is breaching not just democratic but also lexical thresholds.

The Internet Freedom Foundation describes the application of these restrictive regulations, to OTT content and digital news, as a form of “executive control over online free speech and artistic content” and as a “censorship tool”. Let me state three reasons why this law is very problematic, even by the standards of a dwindling democracy. As long as we call ourselves one, we must constantly seek to find good reasons to brighten its lines.

First and foremost, in the absence of actual “malice standards”, this law will pare down and diminish the quality of public debate in India.

A malice-standard (a globally established feature of jurisprudence) provides that when speaking about powerful individuals and about matters of public concern, only those who knowingly or recklessly lie need to fear liability. As explained by Langford et al, “it holds taut for those who intentionally seek to skew public debate by lying … but provides necessary slack for inadvertent mis-statements, which are inevitable in public debate and do not threaten to cut public opinion adrift from reality”. A malice standard protects the core idea and conduct of democratic speech and spares unintentional falsehoods about matters of public concern.

Forget malice standards, thus far the existing Bill does not even lay out the different “programme codes”. All it says is that different categories of broadcasts “shall be in conformity with the Programme Code, as may be prescribed.”

Second, this law is likely to have a selective and arbitrary application. A democratic government always seeks voluntary social cooperation. In an electoral democracy, no political authority has an incentive to treat all social groups equally. This is because it needs the social cooperation of some groups more than that of others. In particular it needs the cooperation of those groups whose assets can be easily mobilised to win perception and political and/or electoral battles.

Because governments favour groups with political leverage, this law is unlikely to be used against those whose cooperation is sought by the ruling regime.

“Programme codes” and certification (by the Content Evaluation Committee) may predictably apply differently for disseminators of “godipedia” and for critics of “government business”. Law in such cases can operate at two levels: it can become highly predictable for a privileged social group while remaining arbitrary and erratic for the critics and less valued groups.

Things get worse when a bad law is applied unequally. As French philosopher Rousseau famously said: Inequality before law never gives way to equality before the law.

Third, repressive laws typically flourish when the rules of the game are unclear and unreliable. Are the “programme code” and “advertising code” codes for moral and content policing? Are there separate standards that apply to the “facticity” of news and news analysis, interviews and podcasts? Are there standards that’ll help the law distinguish between critical content and malicious content? How is it that written-text also becomes part of definitions of programme and broadcasting? Why are differential standards applicable to online textual content and “replica e-papers”?

There are no answers, or even pointers, to these very important questions in the law. The important point to understand here is that, it will not be law that’ll be the adjudicator but the marzi of the government.

The prognosis of this law for free press and the “argumentative Indian” is uncertain. The only thing of certainty is that it adds to the general ecosystem of censorship in which each of us police our own selves. “Self regulation” is a key aspect of the BB. Matters of news, opinion, interpretation, inference, deductions, understanding, theories, explanation, analyses, critique, satire and art will require certification and approval, rendering them even more vulnerable.

What is also important to understand is that the BB’s regulations belong to a large set of restrictions – defamation, sedition, anti-terror, promoting enmity, hurting religious sentiments, spreading disaffection – that have systematically shrunk the exercise of free-speech in recent years. It is like an invisible asterisk that has come to hover over how, when and what we speak: *provided it is not repugnant to the government. That this diminishes a democracy is known and acknowledged and routinised. But there’s another aspect that needs to emphasised.

It is not just democracy that gets diminished – but also the lofty project of decoloniality. Far from becoming an “act” that signals a departure from colonial antecedents, the forthcoming law mimics the coloniser mentality. Like the coloniser, it believes that “subjects” are not rational citizens who can be trusted to follow the protocols of a rational public sphere. They may have uncontrolled, reckless, irresponsible minds. And therefore, the broadcast of their speech, the conduits of their speech, need to be regulated and legally policed.

The intent of law then and now is the same: it was and is to discipline and punish the native subject, the citizen designation notwithstanding. The Wire