Ajit Balakrishnan’s Blog

First published in the Business Standard

"Are you the boss of this company?," demanded the voice on the phone on a recent morning soon after I  had arrived at work. I acknowledged that I was the head of the company which ran the email service and asked him who would he be. . He identified himself as an Inspector in a police station in one of our state capitals and complained that he had given a list of email accounts to be "tracked", that is all incoming and outgoing messages be forwarded to the police, but our staff were insisting that he produce the required letter from the state's Home Secretary authorizing him to make such a request.

"This is a national security matter," he said. "I can't wait for the Home Secretary's letter, please do the needful right away."

Running one of the more popular email services in India puts you in that hazy zone between a private sector business and a public utility. Millions of ordinary Indian citizens are abandoning the traditional inland letter and post card and turning to email. They value the instantaneous delivery, the ease of accessing the account at home or office or one of one hundred thousand cybercafés in India and the national and international reach of email.

Unfortunately, so are conspirators of various hues: religious fundamentalist groups, communist insurgents, bank defrauders and petty criminals, and even straying spouses.

Jealous husbands wanting to check their wives' email boxes are the easiest to deal with: a  form letter spelling out  the process ( 'Please file a police complaint and get the police to make the request to us to open your wife's email box') normally ends the request. Employers wanting an employee's mail boxes opened after receiving a mail threatening exposure are also dealt with easily this way. We normally never hear from them again.

Dealing with police requests, particularly when they invoke national security is another matter. One part of you, as a law abiding citizen makes you want to comply with the request immediately. Another part of you, worrying about the civil rights of citizens makes you insist that the police produce the necessary approvals.

We were quite content to play this routine out ' the police inspector sending us a list of names and email IDs to track, us politely returning it to them with a request for the Home Secretary's authorization which would come a few weeks later with some names dropped from the original list

Till,one day, in the list of names the government wanted watched was the name of a nationally known social activist and writer.

Unable to resolve this moral dilemma we went to a retired eminent judge less for legal advice and more for moral guidance.

We sat in silence in his chamber as he carefully studied our account of the matter. The early morning light streaming in from the window behind him put him in silhouette and lent a sepulchral quality to the setting. How many such moral dilemmas he must have faced in his long and illustrious career on the nation's highest bench, I wondered. Surely he would show us a way.

"Government will cancel your license if you don't comply with these police requests," he said finally.

I was astounded. Here I was hoping and waiting for a morally and hopefully legally defensible resolution to our dilemma and what we were getting was 'practical' advice.

 "Our business does not depend on any government licenses," I finally managed to blurt out.

Seeing the disappointed look on our faces, he leafed through his papers again for some time.

"You see, the law that governs this kind of case, the Indian Telegraph Act,1885, was enacted  with the shadow of the 1857  "mutiny" still over the Raj government and is really an instrument to control such events rather than to govern the evolution of an industry. There is nothing you can do but comply if the request comes with the proper authorization."

As we left his chambers, the issues started to become clearer in my mind. For the hundred years from 1885 the  year that the British Raj  introduced the telegraph system in India it was seen primarily as an instrument for keeping colonial control. And I guess from Independence till the mid 1990's  the post-colonial government  continued this perspective and added to this the function of spying on their political opponents. All that a politician or a bureaucrat had to do was call up the Posts and Telegraphs department and tapping would commence unhindered with no one to raise legal or civil rights issues.

Things have become complicated for the government since then. The new technologies of email, SMS text messages and mobile phones today carry most communication traffic in India and practically all of it is outside direct government control because all these industries are almost completely in the private sector .

 A  generation like ours, unlike our parents' and grandparents' generation  no longer  assumes that the Police's interest or the Home Ministry's interests  are  automatically the national interest. We want to make sure that even the Police and the Home Ministry observes the law in tapping email and phones.

Unfortunately, there is no law that covers the new technologies and balances civil rights with genuine national security needs. Nor is there a clear process that tells the new economy industries that we belong to how to resolve a conflict between the two.

How did this specific matter end? We refused to 'track' this social activist's account and insisted on the Home Secretary's authorization for this list of email ID's. After a few weeks the authorization arrived but the social activist's name had been deleted from it.

And we continue in our unlikely, uncomfortable and legally hazardous  role as protectors of civil rights.

END

One day, back in the Bad Old 1980's, Dilip, a young man from our neighborhood in Bombay, knocked on the door of my apartment with an intriguing proposition: did I want to watch movies round the clock for less than fifty rupees a month?

He had talked the building manager into letting him put a video cassette player in the manager's tiny office, strung cable from there through the lift shaft up to each of our apartments and was now offering movies. It was great having something to watch other than Doordarshan.

Then, Saddam Hussein invaded Kuwait, the Americans rushed in and we could watch on CNN. Somebody showed Dilip how to put together a satellite dish for peanuts and now he too could show CNN. Neither the Iraqi's nor the Americans won, but the true winner was CNN and satellite television.

But whenever I passed Dilip I could see his young shoulders sag. "Everyone wants a connection," he said, "but where do I find the money to buy the equipment and cables?"

"Why not go to a bank?" I asked him.

"I did, but the bank manager insisted on real estate as security, and I have none to offer."

A few weeks later, I saw Dilip, his shoulders sagging even more and a big bulge in his pocket. "That's a gun," he said when he saw me staring at the bulge. "I have started receiving threatening calls from rival cable operators. They want to move into my territory. They have hired goondas to cut my wires."

"Can't you go to the police instead of carrying a gun?" I asked.

"What do I tell the police? There is no law that says that this area of Bombay belongs to me. Anyone can muscle in."

Dilip hung in there for a few more months, finally gave up his business and went to college in the United States. The man who had muscled in on Dilip's territory does not carry a gun. He doesn't need one. He has joined and become a prominent member of a local political party that has plenty of strong arm enforcers.

I can't help thinking of my friend Dilip, the cable operator, when I see the ruckus about the new Broadcast Bill.  It is a set of rules to divide up the spoils of the business that Dilip and 30,000 entrepreneurs like him have built while the government was busy protecting Doordarshan's monopoly. And the list of people wanting a share is long: municipal and state governments who tax cable operators, broadcast channel owners, telecom companies who can make money carrying TV programmes on their wires, the Indian space establishment seeking satellite lease revenue

And the party painted as the villain is the Cable Operator. His sins are seen as many: consumers say he foists channels on them that they don't want to see. Broadcasters and local governments say he understates the number of households he services and thus denies them revenues.

Once a Bill knocks around in Delhi for a while, as the Broadcast Bill has, many other agendas are tacked on to it. Thus, the less successful channels have inserted a clause putting a ceiling on the market share that any one channel can have. Local TV production companies have put in a requirement for a minimum level of India-produced programmes.  Elaborate rules have been proposed for dealing with the rights for that great Indian obsession, cricket.

What could be wrong with all this? 

The very name of the Bill tells a story. To name this a "Broadcast"  Bill is the equivalent of naming, say, the Information Technology Act, "The Carrier Pigeon Act" . The notion of "broadcast", of a central entity sending out programmes for a passive mass of people to receive, is on its way out.  Channels are proliferating because consumers want "narrow cast", specific channels that suit their niche interest and want it at times that suit them, not at times that broadcasters fix.

Television through satellite and cable TV reaches just 25 per cent of our population. The first goal of any regulation must be to take this to at least 80 per cent. Only a vibrant cable sector can manage the credit risks and low costs needed to take TV to the bottom of the pyramid.

Now I realize why my mind has been wandering back to the Bad Old Eighties. Faced with technological turbulence and the threat of foreign company dominance, we passed laws that aimed to protect "the public interest" but ended up creating rent-seeking opportunities for interest groups. Then too, the mistake we made was to enact unclear legislation and give extensive rule-making authority to bureaucrats, as in the proposed Broadcast Regulation Bill. What resulted was the nightmare of the Licence Raj that we are still trying to disentangle through "reforms".

Why go back to the Bad Old 80's? Why not regulation that addresses the real issue: creating a competitive marketplace at each level of the digital value chain. This means a competitive marketplace for set-top boxes (no proprietary systems), satellite leases (no preference to state-owned satellites), cable operator franchises (clear, tradable titles), last-mile connections (leave the field open for IPTV, Wimax and other emerging technologies).

Prices will then come down through competition, not government price control, and TV will reach all our citizens and not just the well-off.

END