1. Title of the Study: Assessment of National
Broadcasting Act (1993)
2. Background
Since its
arrival, mass media have become an integral part of human society. Regardless
of their cultural and spatial differences, people have always lent their
attention to media because of its utility in life. Mass media have been
instrumental in informing people about the happening going around. All the
forms of media like books, newspaper, magazines, radio, television and internet
are known for their potential strengths to inform society. Media has been a solid
pillar in democratic world, while been a headache for autocratic rulers in the
past.
Unlike its
South-Asian counterparts, Nepal has a younger history of mass media. The
country ruled by autocratic Rana rulers had passed through a dark age of 104
years, completely unaware about the external world. Still, Nepal can boast a slightly
more than a century old history of news media, referring to the beginning of
publication of Gorkhapatra.
Credit goes to
the first Rana Prime Minister Jung Bahadur for bringing to the country its
first printing press when he returned from his visit to Britain and several
countries in 1851, i.e. 400 years after Germany's Gutenberg first invented the printing
press whose duplications soon spread quickly all over Europe and other parts of
the world. The first newspaper in the country was Gorkhapatra (1901), a brainchild of Dev Shamsher, who was regarded
by many as the most liberal of Rana prime ministers. It remained the country's only
news publication for half a century till the democratic revolution in 1951
ended the Rana oligarchy, heralding an era of political reform and mass media. Scores
of publications sprang up soon, not only in Kathmandu but also elsewhere in the
country (Kharel, 2010).
With the
introduction of a friendly political system as democracy, people had found
their way to freedom of expression. Citizens had started enjoying their access
to the outer world with the presence of throngs of newspapers. Soon, people enjoying
the radio of neighboring India, could listen to their own radio station.
The broadcast
media and democracy arrived in almost at the same time in 1951. Broadcasting
began in Nepal with the establishment of Radio Nepal on 2 April 1951 following
the establishment of democracy on 19 February the same year. Nepal Television
came into being 35 years later, in December 1985. Government monopoly in
broadcasting continued for 47 years until the establishment of Radio Sagarmatha
on 19 May 1997. Channel Nepal Television ended the 16-year monopoly of the
Nepal Television in July 2001 (Dhungel, 2012).
The tangible
achievement in Nepali media sector can be traced out after the restoration of multiparty-democracy
in 1990. The ideal political system not only saw the arrival of private sector
in media but also gifted freedom of expression and opinion to citizens like
never before. Constitutional provisions incorporated in Constitution of 1990
and 2007 did all the floorings for development of media whether print,
broadcasting and also online media in the country. According to the latest
statistic released by Ministry of Information and Communication, altogether 75
television and 453 FM radio stations have got license. Various legal frameworks
developed to strengthen freedom of press and protect the right to be informed
of citizens have brought in the golden age of media in Nepal.
3. Development of Media Related Laws in Nepal
Political
setting of any territory has always been a factor for defining the role and
responsibilities of media around the world. The idea has been profoundly
supported by the 'Four Theories of Press', propagated by Siebert, Peterson and Schramm.
The existing political system prescribes what media 'should be' and also 'do'
while doing their day to day business. Like many underdeveloped countries,
Nepal also has a blurred political history in the past. The South Asian
landlocked nation, though, not ever been colonized, has gone through a series
of political turmoil that could not be viewed as the favorable one for media.
People had
limited freedom of expression and opinion during century long Rana oligarchy. Going
against the state or their autocratic rule can throw the citizen or journalists
inside the four walls of a dark prison. Similarly, the trend was impressively
followed by the successors and the control over media has continued throughout
the history of the country. However, amidst all these doldrums, the first
newspaper of the country Gorkhapatra came
into being, which also introduced the first media related law in Nepal. Dev Shamsher,
who arranged the publication of Gorkhapatra
in Nepal, also issued a royal decree known as 'Sanad'[1]
. The Sanad provided guidelines for covering items in Gorkhapatra. Sanad had 15 points on what to publish and 6 points as
what not to publish in Gorkhapatra
respectively. Similarly, the Muluki Ain[2]
(General Code) also had provisions on publishing books. It said that if one
wants to get their books published then the copy of the book should be
submitted to the Gorkha Bhasha Prakashini
Samiti[3]
for prior check. Upon the approval, the books could be published.
The authentic
beginning of media related laws can be traced out only after the fall of the
Rana regime and restoration of democracy in Nepal. However, the first written
constitution of Nepal – The Nepal Government Act 1948 – had incorporated 'Freedom
of Speech and Publication' under Fundamental Rights in its 2nd part[4].
After the
introduction of democracy in Nepal, the first people's constitution came into
action. The Interim Constitution of Nepal 2007 BS provided Freedom of Speech
and Publication in the Article 16, with liable restriction to preserve peace
and security in the country.[5] Another
constitution, Interim Constitution of Nepal 2011 BS also promised 'Freedom of
Speech and Publication to Citizens' in Article 17, sub-article 2(a).[6] Likewise,
the 'Freedom of Speech and Publication' was guaranteed in clause (a) of Article
16 under Political Freedom Section of The Constitution of the Kingdom of Nepal
2015 BS[7].
The juvenile
democracy was soon kidnapped by King Mahendra and introduced a party-less Panchayat system[8]
in 1960, which continued for next three decades. To sustain his regime, King
Mahendra came up with another constitution, which also promised limited 'Freedom
of Speech and Publication under Right to Freedom in Article 11.[9] Many
other new acts like – National News Agency (1962 AD), Gorkhapatra Act (1963
AD), Press and Publication Act (1991 AD) and Press Council Act (1992 AD) – were
formulated to develop media and also exercise control over media.
The downfall of Panchayat System after the successful
people's movement in 1990 brought the hopeful dawn for Nepali media. The
Constitution of Kingdom of Nepal 1990 provided the maximum freedom to citizens
under Fundamental Rights. Article 12 sub-clause (a) of clause (2) of the
Constitution of Nepal talks about 'Freedom of Opinion and Expression', Article
13 'Right to Press and Publication' guarantees freedom to run a press without
any prior censorship. Similarly, Article 16 and Article 22 provide 'Right to
Information' and 'Right to Privacy' to citizens respectively.[10]
With the
restoration of multiparty democracy in 1990, the media environment in Nepal
took a dramatic turn. Freedom of expression became not only a constitutional provision,
it also became for the first time a tool for expressing people's
long-suppressed desires, hopes and vision for a better Nepal. Media houses were
granted licenses, and as a result, newspapers, FM radios and television channels
mushroomed (Kharel, 2006).
The Interim
Constitution of Nepal 2007 introduced after the Mass Movement II is seen as the
one of the strongest legal support relating to media sector. This Constitution
guarantees 'Freedom of Expression and Opinion' to citizens in sub-clause (a) of
clause (3) of Article 12. Similarly, the Right Regarding Publication,
Broadcasting and Press have been incorporated in Article 15, while the Right to
Information has been attached in Article 27. Another provision related to media
is 'Right to Privacy' is included in Article 28[11].
Besides, these constitutional
guarantees, there have been some other prominent media related laws formulated to
constantly support and develop media sector to guarantee people's right to
freedom of expression, opinion and information by making media more effective,
professional and developed. Some other important media related laws are; Defamation
Libel and Slander Act, (1959), National News Agency (1962 AD), Gorkhapatra Act
(1963 AD, Press and Publication Act
(1991 AD) Press Council Act (1992 AD), National Broadcasting Act (1993)[12]
and Working Journalists Act (1995). Apart from these constitutional and
national laws, Nepal follows the obligation to adhere to all the human rights
and media related international laws, treaties, commissions, declarations and
other mechanisms, where Nepal has been a signatory.
4. Objectives of the Study
Formulating laws
and policies are not enough. Reviewing such laws whether they are suitable,
logical, practical and timely applicable is an imperative. Such laws should be
regularly observed, reviewed and analysed (Acharya and Dahal, 2008). Based on
these assumptions, the study focuses on reviewing the National Broadcasting Act
1993.
The major
objective of this study is to assess the existing National Broadcasting Act
1993. However, some other specific objectives are as follows;
·
To check the relevance of the Act at
present;
·
To find out the strength and weakness
within the Act; and
·
To draw possible recommendation required
for amendment.
5. Methodology
Assessment of
any laws aims to look through any given laws and weigh its practicability and
authenticity in real life along with its efficiency in addressing concerned issues.
In other words, an assessment of laws and policies can be termed as an observational
study of a particular legal framework and how they are functioning.
The major approaches
adopted for carrying out this study were;
- Literature Review/ Secondary Data Analysis
- Content Analysis
6. Assessment of National Broadcasting Act 1993
When the
National Broadcasting Act (NBA) was formulated in 1993, Nepal had already
entered the era of broadcasting media with state-owned Nepal Television and
Radio Nepal operating to inform the citizens across the country. There was also
growing demand from private sector to run broadcasting media like FM radios and
Television. Realizing this demand, the then His Majesty Government of Nepal prepared
the NBA, which was the first legal provision related to broadcasting media. Introduction
of NBA, being the first such provision of its kind, opened the way for
broadcasting media development in the country.
NBA was forged
with the following objectives;
Objectives:
·
To protect and promote the freedom of
expression and the right to be informed guaranteed to the people by the
Constitution of Nepal;
·
To make economic, social and cultural
activities reach to all citizens of Nepal through broadcast mechanism;
·
To promote awareness, equality, mutual
good faith, establish harmony through broadcasting system;
·
Expedient to make legal provisions on
the broadcasting without any obstruction for the flow of message and right to
information;
·
To inform about impartial as well as
authentic news; and
·
To make broadcasting media reliable,
credible, effective and strong with the use of modern technology.
6.1
Key Features of National Broadcasting Act
The National
Broadcasting Act 1993 holds significant importance in the development of broadcasting
media in the country. It's the NBA which has invited the private sector or even
individual to join the mainstream media and contribute in the overall
development of the nation through media. The mushrooming of FM radios and
Television, the country has seen in the last decade is undeniably the outcome
of the supporting foundation led by NBA. It also promotes the right to be
informed of citizens guaranteed by the constitution of the country without disturbing
the harmony existing among the various communities.
The NBA has many
specific characteristics. Some of them are discussed here.
6.1.1 Wider Definitions
The National Broadcasting
Act 1993, the principal act for broadcasting media, provides wider definitions on
various key concepts of broadcasting. Section 2 covers the terminologies
related to broadcasting and provides definitions in the following clauses. Altogether,
9 terminologies – Broadcasting, Program, Frequency, License, Broadcasting
Institution, Satellite, Cable, Earth Station, and Broadcaster – have been
defined in the act.[13]
6.1.2 Provision of
License
The NBA stresses
the need of license for broadcasting any broadcast material. The broadcaster
should seek to obtain license before airing their program. No one is allowed to
do so without acquiring the license.[14]
6.1.3 Green Signal to
Private Sector
For the first
time in Nepali media history, an individual or private organization or
corporate body could own a radio or television channel or broadcast any program
on their own. The NBA gives the permission to an individual or organization to broadcast
any educational, entertaining or informative programs by means of satellite,
cable or other means of communication from anywhere in the country. The
interested people or organization should file an application for receiving license.
Upon the receipt of the application, Government of Nepal after holding
necessary inquiry will issue the license. However, the recipient of
broadcasting license has to follow the guidelines for broadcasting programs and
formats prescribed by the act.[15]
Additionally,
the private sector can also get involved in production and broadcast of any
program to such program fair, simple, efficient and effective.[16]
6.1.4 Provision on Earth
station Establishment
Regarding giving
permission to private sector, the NBA has gone across the oceans. The NBA gives right to any person or
corporate body or a native and foreign person or corporate body in joint
investment to broadcast Programs by establishing the earth station relating to
satellite and cable television inside the country. The interested people or
organize has to submit an application to Government of Nepal. Following the
application, the Government of Nepal will hold an inquiry into that application
before giving permission to broadcast any Program by establishing the earth station
or other prescribed means.[17]
6.1.5 Time Allocation
for Foreign Broadcasting Institution and Advertisement
The act states
that if any foreign broadcasting institutions or national communication media
wants to have their program broadcast through the broadcasting channels, then,
time will be allotted to such interested organizations to air their program
which should be educational, entertaining and informative as per the prescribed
standards of this act, which should not harm the national interest.[18]
This provision can be seen as inviting the foreign investment in media sector. Similarly,
the time can be allocated to the person or organize who wish to advertise
through broadcast channel, after charging prescribed amount of money.[19]
6.1.6
Security Assurance to Broadcasters
Government's
assurance of providing utmost security to broadcasters from any possible threat
is yet another strength of the Act. Through this Act, government is responsible
for providing security to broadcasting institution assessing the possibility of
any kind of loss or damage to the organization during riot or any unrest. In
this circumstance, Government of Nepal will send security personnel to protect
such institution from any sorts of loss or damage.[20]
6.1.7 Opportunity for Defense
This Act
promises a chance to the individual or institutional broadcasters for filing an
appeal to the concerned Court of Appeal within thirty five days, if the
broadcaster is not satisfied with any order made or penalties imposed by
Government of Nepal for breaching the prescribed standards adopted or going
against the notion of the Act.[21]
7.
Major Drawbacks in the Act
Though, the
National Broadcasting Act 1993 deserves all the accolades for being the first directly
broadcasting related laws in Nepal, one can come up with some drawbacks of the
Act upon closer analysis. These shortcomings within the act can be minimized which
can improve the implementation side of the Act.
Some of the
major drawbacks observed during this study are as follows;
7.1 Exclusion of other
Broadcasting Media
Undeniably, the
Act has extensively included definitions on several broadcasting terminologies.
The inclusion of definition has been one of the distinct features of this Act.
However, the Act seems to be more concentrated on prioritizing radio as the
only broadcasting media. The Act has ignored other modern broadcasting media
like television, cable, and internet and lacks definitions accordingly.[22] In
this case, the exclusion of these media from the lone Act responsible to deal
with broadcasting media issues can create confusion for remaining media for
seeking legal remedies or abiding by the particular law prescribed by the
government.
7.2 Sole Authority to
Government
This Act has
provided the sole authority in the hands of government. Government holds the
supreme power to control, manage, monitor, and also formulate policies on
supervision and operation relating to broadcasting. Also, government is
responsible for distributing license to broadcasters.[23]
The excessive
power entrusted to the government by NBA to monitor and operate broadcasting
sector and distribute license can be defined as the threat to freedom of
expression and free flow of information (Acharya and Dahal, 2008).
7.3Lack of Precision on
Program Format
The NBA has
tried to create proper environment for private and foreign broadcasters
interested to produce and broadcast program within Nepal. According to the Act,
any individual, institution or even foreigner willing to broadcast any program
by means of satellite, cable or other means of communication along with earth
station can file an application for license. The program produced by such
organizations should be educational, entertaining or informative, says the Act.
However, the Act has not provided any detail about the formats of the program. Educational,
entertaining and informative program can have multiple format and meanings
depending on the targeted audience and used media.
7.4 Prohibition of Broadcasting
The Act holds the power
to prevent the broadcasting of any program.[24] This
provision can be seen as one of the key flaws within the Act, which directly
oppose the freedom of expression and opinion, the constitutional right of
citizen. When this Act was formulated, the Constitution of Kingdom of Nepal
1990 was in effect. The then constitution had also mentioned the following rights
to citizens as fundamental rights; freedom of opinion and expression, [25]and
press and publication right[26]
among other media related constitutional guarantees. Such similar provisions
with inclusion of broadcasting media have been included in the present Interim
Constitution of Nepal 2007as well.[27] In
spite of all these provisions that safeguard the people's right to be informed,
the Act has the provision on prevention of broadcasting, which is totally against
the democratic norms and values.
7.5 Cancellation of
License
Undoubtedly, the
provision to cancel the license of the license of broadcasters can be the most
unreasonable and autocratic system included in this Act. This Act grants the
sole power to the Government of Nepal to cancel the license of the any
broadcasters if found broadcasting any program in contravention of this Act.
This provision
is a direct attack on the notion of free press in democratic society. In modern
democratic societies, free press is guaranteed around the world. Free press has
been safeguarded through constitutional provisions in our country. The Interim
Constitution of Nepal 2007 also protects people's freedom of opinion and
expression. Thus, the provision of cancellation of license is against the promises
made by the then Constitution of Kingdom of Nepal 1990[28]
and Interim Constitution of Nepal 2007[29]. The
present constitution has a strict provision to prevent the scrapping of the
registration of all forms of media, which was only applicable for print media
in the past.
Following the
petition filed by Narayan Dutta Kadel on behalf of Freedom Forum[30] challenging
the validity of the provision of cancellation of license of broadcasters included
in Section 8, which was contrary to the Article 12 (2) and 13 (a) of the
Constitution of Kingdom of Nepal, the Supreme Court had given the verdict to discard
the provision (Acharya and Dahal, 2008).
7.6 Uncertain Fee
Any individual
or corporate wants to distribute and operate any program through broadcasting
means, the broadcasters should pay a sum of money. However, the amount of the
money to be paid to the concerned authority of Government of Nepal is not fixed,
which is another problem with this Act.
8. Conclusion and
Recommendations
National
Broadcasting Act 1993 has already crossed its two decades of implementation in
the country. The situation of broadcasting media is largely different than the era,
when the NBA was conceptualized. There were comparatively less television and
radios in the country, and the NBA was proposed and designed accordingly. Since
then, not only the number of radio and television has escalated, their
function, operation and role and responsibility has also been amplified with
the advancement in technology. Thus, the absence of contextual provisions owing
to the dearth of timely amendment is the biggest shortcoming of this act. This
act can no longer serve its own objectives. Thus, the act can be labeled as the
outdated piece of law, which has limited utility in reality. An urgent amendment
is imperative to restore its authenticity.
Based on this
assessment, following recommendations are suggested;
·
Other broadcasting media like
television, cable, online should be included in the Act to wipe out the
confusion of which particular legal structure covers these media.
·
The Act states that even a foreigner can
broadcast their program through cable, satellite or earth station. However, the
act doesn't talk about the operational mechanism of the broadcasting run by
foreigner. So, a separate legal framework should be developed to address this
issue.
·
Clear demarcation between the
broadcasting systems owned by an individual or corporate body is a loophole
within this Act. Broadcasting system should be categorized as public
broadcasting system, community broadcasting system and commercial broadcasting
system. Different act should be formulated to address the issues related to
these broadcasting systems.
·
There are many such provisions directly standing
in contrast to the previous constitution and the Interim Constitution of Nepal
2007. Such provisions like prohibition of broadcasting of any program and
cancellation of license should be amended as soon as possible.
·
Program formats prescribed as
educational, entertaining and informative should be defined extensively. Also, other
possible formats suitable to audience should be included and defined in the
Act.
·
Section 14 of the National Broadcasting
Act holds provision about advertisement. Since advertisement industry has
become a large market now, a separate act should be prepared to handle advertisement
related issues. The advertisement act should also categorize advertisements as public
service announcement and commercial.
·
The
uncertainty regarding the amount to be paid for distribution and operation of
any program as mentioned in Section 10 of the Act should be finalized. Also,
the amount should be charged differently to public, community and commercial
broadcasting system once the categorization is made.
·
The power exercised by government while
distributing the license and implementing the act should be divided among other
stakeholders as well.
·
The existing Act should come up with
distinct provisions for cable television. They should be allowed to produce and
distribute programs and advertisement through cable channels.
·
A
separate provision should be incorporated in the act to handle the growing
issue of Cross-Ownership in the media.
·
Regular monitoring of broadcasting media
has become essential with the growing number of their number. A joint
monitoring committee consisting of governmental and non-governmental actors,
experts, media professionals and other concerned stakeholders should be formed
to regularly monitor the overall mechanism and function of such media. The
provision of forming such monitoring committee should be included in the
act.
***
References:
Dahal, Taranath
and Bhimarjun Acharya. 2008. Patrakarita
Niti Tatha Kanun (Journalism Policies and Laws). Kathmandu: Freedom
Forum.
Dhungel, Binod,
2012. Broadcasting in Nepal : Problems
and Issues. Kathmandu: Nepal Monitor: The National Online Journal
Kharel, Beena.
2006. Women in News Reporting and Conflict in Nepal. In Changes and Challenges: Women in Newspapers in South Asia
(Kavita Shetty, ed.). Singapore: Asian Media Information and Communication
Center.
Kharel,
P. 2010. A Study of Journalism.
Kathmandu: Nepal Association of Media Education.
Kharel,
Satishkrishana. 2002. FM Prasharan, Prabidhik ra Kanuni Paksha (FM
Broadcasting, Technical and Legal Aspects). Sthaniya
Radio: Sambhawana ra Upyogita (Pratyush Banta and Raghu Mainali, ed.). (Local Radio: Possibilities and
Utility). Kathmandu: Nepal Press Institute and Martin Chautari.
[1]
Royal Decree as guidelines for publishing Gorkhapatra prescribed by Rana Prime
Minister Dev Shamsher JBR (July 17, 1862 - February 20, 1914)
[2]
Muluki Ain implemented by Rana Prime Minister Jung Bahadur Rana in 1854 AD
[3]
Gorkha Bhasha Prakashini Samiti was established in 1970.
[4]
Article 4 under Part II Fundamental Right, The Nepal Government Act 1948 AD
[5] Nepal Antarim Shasan Bidhan 2007 BS
[6]
Nepal Antarim Shasan Bidhan 2011 BS
[7]
The Constitution of the Kingdom of Nepal 2015 BS
[8]
An autocratic system enforced by King Mahendra in 1960 AD
[9]
The Constitution of the Kingdom of Nepal 2019 BS
[10]
The Constitution of Kingdom of Nepal 1990 AD
[11]
The Interim Constitution of Nepal 2007 AD
[12]
Annex 1
[13] Section
2 of National Broadcasting Act, 1993
[14]
Section 4 of National Broadcasting Act, 1993
[15]
Section 4 and 5 of National Broadcasting Act, 1993
[16]
Section 12 of National Broadcasting Act, 1993
[17]
Section 9 of National Broadcasting Act, 1993
[18]
Section 13 of National Broadcasting Act, 1993
[19]
Section 14 of National Broadcasting Act, 1993
[20]
Section 19 of National Broadcasting Act, 1993
[21]
Section 17 and 18 of National Broadcasting Act, 1993
[22]
Section 2 of National Broadcasting Act,
1993
[23]
Section 3,5 and 6 of National Broadcasting Act, 1993
[24]
Section 7 of National Broadcasting Act, 1993
[25]
Sub-clause (a) of clause (2) of Article 12 of the Constitution of Kingdom of
Nepal 1990 says the freedom of opinion and expression to every citizen
[26]
Article 13 of the Constitution of Kingdom of Nepal 1990,which says;
i)
No news item, article or other reading material
shall be censored;
ii)
No press shall be closed or seized for printing
any news item, and other reading material.
iii)
The registration of newspaper or periodicals
shall not be cancelled merely for publishing any news item, article of other
reading material.
[27]
Sub-clause (a) of clause (3) of Article 12 'Freedom of Opinion and Expression',
Article 15 'Right Regarding Publication, Broadcasting and Press', Article 27
'Right to Information' and Article 28 'Right to Privacy' under Chapter 3 of the
Interim Constitution of Nepal 2007
[28]
Article 13 of the Constitution of Kingdom of Nepal 1990,which says;
i)
No news item, article or other reading material
shall be censored;
ii)
No press shall be closed or seized for printing
any news item, and other reading material.
iii)
The registration of newspaper or periodicals
shall not be cancelled merely for publishing any news item, article of other
reading material.
[29]
Article 15 of the Interim Constitution of Nepal 2007, which says;
i)
No publication and broadcasting or printing of
any news items, editorial, article, writing, or other reading, audio-visual
materials, by any means including electronic publication, broadcasting and
press, shall be censored.
ii)
No radio, television, online or any other types
of digital or electronic means, press or any other communication media shall be
closed, seized or be cancelled the registration because of publishing and
broadcasting or printing any material by such means print, audio, audio-visual
or electronic media.
iii)
No newspaper, periodical or press shall be
closed, seized or be cancelled the registration for printing or publishing any
news items, articles, editorials, writing or other reading materials.
iv)
No communication means including press,
electronic broadcasting and telephone shall be obstructed except in accordance
with the law.
[30]
Narayn Dutta Kadel against Prime Minister and Council of Ministers, 2062 BS,
Writ Number: 77
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