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Will it stand the test of law?

V. Jayanth

The Tamil Nadu Government justifies its move to take over two major cable television networks in the State as being in the public interest. The DMK has made it a major issue of media freedom. How will it play out in the run-up to the State Assembly election.

THE LATEST offensive by Tamil Nadu Chief Minister Jayalalithaa, a dramatic legislative move to take over the two major cable television networks in the State, Sumangali Cable Vision (SCV) and Hathway, has created a political storm of sorts. With just four more days to go for the last session of the State Assembly, she got the Minister to introduce legislation for the State to take over the assets — both physical and financial — of the Multi System Operators (MSOs).

SCV, the cable company that is closely allied to the Sun TV Network and is headed by Kalanithi Maran, is way and ahead the State's largest multi system operator. Aside from the political controversy the Tamil Nadu Government's Bill has sparked, these questions have come to the fore. Will the Bill, after its adoption, get the necessary approval from the Governor and, if it is reserved for the President's assent, from the Centre to become law? And if it does, will it stand up to the scrutiny of courts? Since the MSOs came into operation under a Central law and the Telecom Regulatory Authority of India (TRAI) is the regulatory body in charge of them, the question arises whether a State Government can take over cable TV networks and that too on such a selective basis.

In its statement of objects and reasons, the Government asserts that it decided to act to remedy the situation after receiving a large number of complaints about unsatisfactory cable network facilities, excessive charging, "disrupting proper telecast" and "selective blurring" of certain channels, and the resort to threats and coercion by distributors and operators "in the process of exhibition of telecasts." The Government will not acquire "the small street-level tail end operators" because their operations are small and "function at the fag end of the distribution system."

In a reference to Article 19(1)(g) of the Constitution, the Tamil Nadu Government cites the provision to impose "reasonable restrictions" by law in "the interests of the general public" on the fundamental right "to practise any... trade." It justifies its move to take over SCV and Hathway as being in the interest of the general public since "the public viewing and welfare is of paramount consideration."

The sharp response of authoritative DMK sources is this: "On the face of it, this Bill cannot be cleared either by the Governor or by the Centre. There is a parent Central Act on Cable television networks and the State cannot interfere with the rights granted under it. TRAI is the regulatory authority and the tariff is prescribed by it. In five years, the rates have just been increased and that too by four per cent." There also remains the question of how the State can legislate on a subject outside its domain. "Posts and telegraphs, telephones, wireless, broadcasting and other like forms of communication" are included in Entry 31 of List 1 of the Seventh Schedule of the Constitution over which Parliament has the exclusive power to make laws. The DMK has decided to make this proposed takeover a major issue of media freedom and freedom of expression. Its allies are expected to rally to its support on this sensitive issue.

Government sources express confidence that the legislation will stand the test of law. "It is not a retrograde step, but an essential move in the public interest and to protect the interests of the consumers — in this case, the subscribers," claims a senior official. He contends that if the State Government can take over sand quarrying and the retail sales of Indian Made Foreign Liquor (IMFL), there can be no good reason to shy away from cable networks. The courts upheld the earlier actions and the Government seems ready to meet this challenge as well.

While some smaller operators have welcomed the Bill, both SCV and Hathway are determined to oppose it head on. SCV, a part of the massive Sun TV network, has characterised the Bill as "political vendetta." It has expressed confidence that it will neither secure the Governor's assent nor, if it comes to that, withstand legal scrutiny. There are indications that once the Bill is passed by the Assembly, which concludes its session on Friday as the programme stands now, it will be challenged in court. "Aside from the clear discrimination, the timing of the decision to take over the operations smacks of political vendetta and a motive," argues a Sun TV source.

Ruling All India Anna Dravida Munnetra Kazhagam (AIADMK) sources say that the Government has obtained legal opinion and is ready to face the legal challenge. But they point out that if the DMK uses its clout with the Centre to stall the legislation by withholding assent, or by getting the Centre to intervene in an improper way, "they will stand fully exposed." This might then become a political campaigning point in the run-up to the Tamil Nadu Assembly election.

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