Regulating media – 5
There is a context to Justice Markandey Katju’s demand for more powers to the Press Council of India (PCI) and to widen its ambit to include electronic media and social media. The 2009 general election witnessed a unique convergence of vested interests — undue political advantage due to unscrupulous reporting practice — a phenomenon called paid news. The PCI formed a two-member subcommittee comprising Paranjoy Guha Thakurta and K. Sreenivas Reddy to examine the full import of the paid news scandal.
The fate of the subcommittee report is a sad reminder of two powerful aspects — it exposed the limitations of the Press Council and the immunity the media acquired using its numerical strength in the council’s governing structure. The report was damning but its effect was nil. Some members of the PCI felt that naming the names of the publications would hurt the credibility of the media houses in the long run. The council reduced the report to the status of a reference material, and decided not to publish it. Some media watchers used the Right to Information Act to get the strongest indictment against the media in recent times to the public domain. (For the full report see: http://presscouncil.nic.in/Sub-CommitteeReport.pdf)
Commenting on the PCI’s decision to relegate the report to a reference document, The Hindu’s P. Sainath wrote: “Presented with a chance to make history, the Press Council of India has made a mess instead. The PCI has simply buckled at the knees before the challenge of ‘Paid News.’ Its decision of July 30 to sideline its own sub-committee’s report — which named and shamed the perpetrators of “paid news” — will go down as one of the sorriest chapters in its history. A chapter that will not be forgotten and the impact of which causes immeasurable damage to the fight against major corruption within the Indian media.”
No case for punitive powers
The voting pattern in the paid news issue, the failure of the News Broadcasting Authority to make news channels adhere to standards set forth by the authority and the dubious role of social media leading the exodus of Northeasterners from other parts of India led to a situation where the PCI felt that it was inadequately equipped to deal with the emerging situation.
But, can we address the failing media by empowering a single institution with punitive powers?
Generally a crisis situation does not offer space for a dispassionate analysis. Nor does it allow one to think through the issue in its entirety. Constitutionally speaking, the freedom of press in India flows from Article 19(1)(a) and its boundaries are set in the clause 19(2) making it clear that the right is not an absolute one.
Any regulatory framework should not be seen as eroding the gains from Article 19(1)(a), and should also draw lessons from the past behaviour of various institutions in circumscribing media freedom by easily resorting to the provisions of Article 19(2), even before fully exploring other avenues.
Well-known legal expert Rajeev Dhavan has done yeoman service by highlighting the tendencies to censor in Independent India in his eminently readable book Publish and be Damned: Censorship and Intolerance in India (Tulika Books, 2008). Dhavan argues that the existence of ‘law and order’ problems or even ‘public order’ problems arising from public outburst is not sufficient to ban a publication.
Dhavan cites Justice Krishna Iyer’s wise observations in the Periyar Ramayana (1977) case. Iyer questioned the overzealousness of State governments, and said: “The possible invocation of powers under Section 99A of the Code of Criminal Procedure by various state governments on several occasions induces us to enter a caveat. Basic unity amidst diversity notwithstanding, India is a land of cultural contrarieties, co-existence of many religions and anti-religions, rationalism and bigotry, primitive cults and materialist doctrines. The compulsions of history and geography and the assault of modern science on retreating forces of medieval ways — a mosaic like tapestry of lovely and un-lovely strands — have made large and liberal tolerance of mutual criticism. Even though expressed in intemperate diction, a necessity of life. Governments, we are confident, will not act in hubris, but will weigh these hard facts of our society while putting into operation the harsher directives for forfeiture.”
The biggest challenge before the media is to engage in a creative manner to establish a robust regulatory framework that meaningfully marries Justice Iyer’s sense of wider inclusivity with Justice Katju’s sense of institutional deterrence against unethical media practices.