[cr-india] Take Govt to Court/ Run CR trng camps!!!

[Subramaniam Vincent]

People,

The following is my intervention.

I think its important express our points with the kind of determination
and diligence that we've done here thus far. But perhaps we ought to
see things in a broader light. This is not to criticize anyone at all.

My central assertion is that I don't believe that the discussion
involves mutually exclusive agendas, and here is why. Please
convince me otherwise.

There are three sectors of CR in India as I see it.

A. Classical CR - This is what the discussions on this list have
mosly been about. The DDS case is my main reference here.

B. Govt offered "CR" - This is what the Govt has been and will be
offering, for which, as Bandana points out, there has not been a whole
lot of "taking". Forget the reasons for the moment.

C. New generation CR - Arun Mehta and Vickram Crishna are key
stakeholders in that sector that I know. [Sorry if I missed out other
names].

A. My assertions on Classical-CR
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1. Clearly, the Govt is not approaching the issue of CR from a
constitutionally responsible perspective, but from a political perspective.
As has been pointed out several times on this list, they don't hear a
drumbeat in terms of scores of for classical-CR applications.

2. However, the fact that there AREN'T 100s and 1000s of
communities in this country geared up for CR does not legitimize
the denial of the right to freedom of speech and receiving information
for the handful who ARE. The fact that ONE has been denied, is
enough for THAT community to resort to legal recourse, since THEY
BELIEVE they have been denied. It's a secondary matter that
others support their cause.

3. If there were 1000s of communities already geared up technically
and financially to run their own classical-CR stations, and drumming
at the doorsteps, then we'd perhaps, perhaps, perhaps, already
have the climate for the sort of constructive engagement with the
MIB that could lead to some results without the Judiciary's intervention.

But we don't have that situation today, that is Bandana's rightful
assertion. In my opinion, the MIB has the upper hand on the politics
of this, and classical-CR wanting community has the upper hand on
the legal side of this, and in particular, DDS. By "politics", I mean
power play.

4. OK, so let's take the Govt to the Supreme Court on the DDS case.

First off, taken together, the Constitution of India and the SC 95 ruling on
airwaves do NOT provide for broadcasting freedom as a Right to
citizens. What does emerge, however is the the following -

    The monopoly granted to the Govt by the 1885 Telegraph act
    poses serious problems to constitutional rights of citizens, and
    to the balance of democracy. If a situation prevails where the
    the form of airwave governance itself becomes an UNREASONABLE
    RESTRICTION on citizens right to freedom or speech and
    receive information, then there is a potential Article 19 related
    violation.

    Furthermore, such a case would give the Judiciary the opportunity
    and space to mandate action from the Govt to remove the unreasonable
    restrictions, either for the public at large, or for the petitioner
alone,
    depending on HOW the case is being fought.

    Even the 1885 Act provides a rather obtuse window of opportunity
    to citizens rights to airwaves, if you have read Lawrence Liang's
    views on this.

    The Communications Convergence Bill, when passed will
    repeal the Telegraph Act, but does not in anyway provide for
    operationalized CR, so in practical terms, as the bill worded now,
    the unreasonable restriction question still holds.

So, if we take DDS's case, [again hypothetically speaking], the legal
challenge would need to be fought, I believe, not on the community's right
to broadcasting freedom, but on the fact that the Central Govt's governance
over broadcasting thus far, specifically the developmental-FM space offered
thus far, IS INDEED AN UNREASONABLE restriction on the right to freedom
of speech for the citizens of India belonging to that particular community.

In other words, it is the GoI that would have to explain the Courts, why it
thinks the petitioner can or should use AIR/FM and/or IGNOU-FM
why such provisioning is not a violation of that particular communities
rights.

Several folks are suggesting that we ALREADY have a case here. The
question in my mind is whether we have a "WINNABLE" case. We don't
want to go to the courts, to test something, and loose. If we loose we
setback
the nation by several years. If we want to take the Govt to court, needs
to make sure they have an idea of EXACTLY what arguments the govt might
make, and make sure we understand the detailed nitty gritties of those
arguments. If the Govt rakes the issue of national security and monitoring
costs,
the petitioners cannot answer that with idealogy. The rebuttals may well
have
to be policy and implementation insights from an amicus curae or the
petitioners themselves.

Lawrence Liang suggests in his interview on TheHoot that a petitioner
could file a write of mandamus asking the court fo the direct the government
to process their applications on grounds of the right to impart and receive
information. In otherwords he is advocating a more cautious approach than
a PIL approach.

5. OK, so let's say DDS succeeds. Hurrah? Not yet.

Even it was a PIL and the SC issued a ruling tomorrow to the GoI,
it would more than likely ask the GoI to do two things.

One - long term - the GoI might be asked to effectively expand the
Convergence Bill for the legislative aspects, and perhaps also to setup
the machinery that do the expanded regulation and monitoring needed.
[Dreaming? Yes].

Two - short term - the SC might mandate the GoI to do whatever is
needed to create the temporary space that would clear classical-CR
for the petitioners.

If the petition was filed using the Mandamamus option then the GoI might
just be asked to take the short-term measure for DDS' license. And
DDS would be up an running, and the rest would be upto what else
in the ruling that the Court said.

There are several points here that people on this list have the background
and ability to contribute to.

(*) Regulatory and monitoring mechanisms need to include for CR in its
multiplicity of forms AND for commerical-FM as well. This has implications.
For a PIL, the court would have go into that since the Govt is quite
likely to have something to say about that. For e.g., setting a regulatory
and monitoring framework for CR stations, even at a very preliminary level
of fledgling demand around the country, will still need govt money, and that
will need the MIB to get financial clearance from the Finance Ministry.
They already had to do that for commerical-FM.

(*) Assume for a moment that the MIB actually does want implement a
progressive
SC ruling.  We do not want the Finance Ministry to play football with our SC
verdict saying that limited money has already been allocated for Prasar
Bharati
and for commercial FM facilitation and that there is no money for Govt's CR
related facilitatory expenses. This can happen, for genuine reasons or for
political
reasons.

Look at the 73/74th amendments. Karnataka's State finance commission has not
passed a State Bill to actually effect some aspects district level
decentralised
governance, in part because the commission says the state has no money to
implement such a Bill. It is quite likely that there IS NO money, but it is
equally
likely that money could be found if the state govt WANTED to. But that needs
progressive political pressure.

(*) There is another larger issue. Every day these days we hear of the
Supreme
Court and lower courts writing to the State Govts and the Centre asking for
action,
setting deadlines, and mandating implementation of certain laws. And each
day
passes with Govt flouting laws with impunity. Ineffective judicial activism
tends to
finally erode people's confidence in the Judiciary, especially when Govts
stop taking Judiciary seriously. [Again, this is a political situation, the
Judiciary
cannot help it]. The point is that we ought to know what we're in for.

B. These are my assertions regarding Govt offered "CR"
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1. There ought to be more takers for the Govt's offers. And it is happening,
but slowly. If you look at the IGNOU-FM schedule for Bangalore you will
know. I saw some feedback from the IGNOU-FM folks that the quality
of programming needs to be improved. There seems to be a huge disconnect
between the Govt's notifications of these "community spaces" and the
potential
consumers of these spaces, that stem from various reasons already
referred to several times in postings on this group. Clearly there is
scope for progressive engagement with the Prasar Bharati/AIR/Govt on that.

Groups like VOICES are already doing that. It would be useful if they
described
here in some detail what the challenges are in best utilizing the govt
machinery
already on offer for community use, with respect to communities where the
Govt-CR-space is relevant.  [Some may not call it CR, but forget the
nomenclature
for the moment].

2. I believe that utilizing the Govt-CR facilities in whatever limited way
does not damage the LEGAL case that other communities who cannot
use these services might have. On the one hand it sets the stage for
maturity
in the classical-radio sector, which is still infrastructurally the most
developed,
and two we know that capacity building in general is desperately needed.