Thursday, February 25, 2010

Free Speech and the Right to Journalism

Awkward questions about rights remain subdued in good times. Opportunities seemingly, are manifold and few seem to think a struggle for lost freedoms necessary. It is an economic downturn that poses the stiffest test to all the rules of fair play that a liberal society is sworn to abide by.

The New York Times (NYT) in an editorial published December 28, 2008, weighed in on what should be done and who should bear the burden of adjustment, in the context of the ongoing economic downturn in the U.S. Contrary to the neo-liberal orthodoxy that a charter of rights for capital is sufficient to ensure economic prosperity, the NYT cautioned that due importance be given labour and their accredited unions. “The argument against unions -- that they unduly burden employers with unreasonable demands -- is one that corporate America makes in good times and bad”, said the NYT. Yet, there is a “strong argument that the slack labour market of a recession actually makes unions all the more important. Without a united front, workers will have even less bargaining power in the recession than they had during the growth years of this decade, when they largely failed to get raises even as productivity and profits soared. If pay continues to lag, it will only prolong the downturn by inhibiting spending”.

The claim that “productivity” soared alongside profits needs to be questioned. On the point that profits have soared, though, there is little question. There is also no dispute that, despite a boom in employment, minimum wage levels have not quite kept pace. And most recent research shows that the disparity between the top income earners and the others is now higher than at any point in the history of the U.S., except perhaps the 1920s .

In this context, the logic of the NYT editorial, as also its practical consequences, are clear: business and corporate enterprises need to be attentive to broader social realities. Concern for the bottom-line is warranted, but employee compensation and welfare are also of consequence in determining the overall health of the economy. By squeezing employee compensation to remedy bottom-line woes, the corporate enterprise would in fact be working against the greater economic good. The larger interest would be served by having a well-paid working class that would sustain levels of effective demand in the economy.

In terms of its editorial stance, NYT could not have been more enlightened. But the advice that it was freely willing to proffer other businesses was evidently not applicable to itself. A few months after the editorial was published, with newspaper profitability in free fall, the New York Times Company (NYT Co) moved to staunch the flow of red ink from its fully owned newspaper, the Boston Globe. Faced with a crisis in its own backyard, the NYT Co abandoned all pretence of standing by the pieties preached by its flagship publication. Moving to staunch the unending flow of red ink, the NYT Co ordained a massive cut in wages and pension contributions for all Globe workers. The alternative that was posed to the Boston Newspaper Guild, quite simply, was closure and retrenchment. It was, as the rival Washington Post reported (April 4, 2009), a “striking example of corporate hardball”.

A few rounds of bargaining followed and the union had, expectedly, to give in and retreat from its firm commitment not to bargain away pay and pension rights. The pay cuts that were enforced subsequently, came on top of a sequence of job cuts, and were targeted towards saving the company roughly $ 10 million annually out of a loss that could have been in the region of $ 70 million. The relatively more healthy bottom-line in turn, was expected to make the Globe an attractive prospect for any buyer willing to take it off the NYT Co’s hands.

There have been few debates over the implications of these events for media freedom. For some reason, journalists’ job security issues are not considered to have a bearing on the free speech right. An industry that has been built on the credibility and the values of journalism, seems willing today to offer the profession up as the first sacrifice in an attempt to weather a global financial firestorm.

Freedom of association and the right to engage in life-sustaining activity are guaranteed under most national systems of law. But under the “free enterprise” system, there is usually a symmetry between the rights accorded those with property and means, and those without. Thus whether a media owner or a Boston journalist following a family tradition of community service by working in the leading local newspaper, an individual enjoys equal and identical rights. Any suggestion that this system has an inbuilt bias towards those at the higher end of the scale of income and wealth, is liable to be beaten down.

Indian jurisprudence tends to view the equal treatment of unequals as inherently unjust. As first adopted, the Indian Constitution enshrined equality before the law as a fundamental right, alongside free speech and a range of others. In the first legal challenges to the manifest policy intentions of the new government of independent India, an affirmative action programme introduced to give traditionally excluded sections of Indian society a fair share of government employment, was challenged before the highest court of the land. In other legal actions, decisions by newly installed governments in independent India, to proscribe a left-wing publication and impose prior restraints on the content published by a right-wing magazine, were challenged on the ground that they violated the free speech right.

In all these cases, the judiciary stuck closely to the letter of the law and decided in opposition to the principles that the political leadership was committed to. The first amendment to the Constitution, moved in 1950, introduced several changes in the language of article 14 (pertaining to equality before the law) and 19 (pertaining to the right to free speech). “Public order”, “the security of the State” and “friendly relations with foreign States” were written into the constitution as grounds on which the right to free speech could be restricted.

Likewise, the amendments introduced in the clause dealing with equality under the law, provided for special legislation to improve the lot of “socially and educationally backward classes”. Certain “classes” in other words, could be identified within the general mass of the population, where special legislative protections could be rendered.

It has never been anybody’s case that the special legislation introduced for newspaper industry workers had anything to do with affirmative action. But India’s parliament, through the first decade of its existence, was very attentive to the needs of journalists. And it needed to find a rationale for identifying journalism, among a host of professions, as one meriting legislative protection. What made journalism different? As the public debate evolved – within parliament and outside – a number of possible reasons came up. Because none of these was fully elaborated, the special legislation introduced in the defence of journalism, remains half-baked, or to put a more positive construction on the matter, a work in progress.

While these constitutional debates were underway, the Indian Federation of Working Journalists (IFWJ) was formed in 1950 as the first nation-wide representative body of the profession. At the moment of its founding, the IFWJ presented a charter of demands, which included one for a serious inquiry into the place of journalism in the newly independent nation. This inquiry was to be conducted by an empowered body, made up of recognised experts in the field.

The IFWJ’s forceful voice for constitution of a Press Commission, converged for contingent reasons, with the views of other actors. To the government of the time, a body that would inquire into the role of the press in society seemed the best way to resolve the serious discord that had broken out over the first amendment. Media owners saw the free speech restraints introduced as a threat to their liberties. Elements within the ruling Congress party – notably Home Minister C. Rajagopalachari - also insisted that legislation would only stifle the freedom of the press, which should be allowed to work out its own modes of regulation through internal institutional mechanisms.

Press Commission Lays out a Doctrine

When a Press Commission to address this whole range of concerns was constituted in September 1952, with the distinguished jurist, V.G. Rajadhyaksha as chair and a membership comprising “a veritable galaxy of eminent persons”, (Bhargava p 36) the IFWJ was effusive in welcoming it. This attitude was quite the opposite of that taken by the Indian and Eastern Newspaper Society (IENS) – an industry lobby set up during the war years which has since been renamed the Indian Newspaper Society (INS).

A body that remained rather quiescent through this phase of the public dialogue, was the All India Newspaper Editors’ Conference (AINEC). The editors’ body was of an anomalous provenance. Its creation was inspired to a great extent by Kasturi Srinivasan of The Hindu, who also had a substantial ownership interest in the newspaper. The AINEC was in this sense, not the greatest exemplar of editorial autonomy. Indeed, the authority of the editor was on the wane during the war years, as newsprint scarcities and the associated ration system opened up new avenues of profit, making investments in quality news coverage a side-issue for most newspaper owners.

An extended public dialogue followed the submission of the Press Commission’s report in July 1954. The tone of the debate in legislative forums and within the community of journalists tended to be supportive, with newspaper lobbies most often pitching in with contrary opinions. Among its many recommendations, the Press Commission advised that special legislative protection be introduced for working journalists. Various among its other proposals aimed at providing a fair environment for newspapers of all categories – small, medium and large. Special attention was devoted to newspapers based in smaller towns, which were deemed to be in perennial danger on account of the superior commercial clout of metropolitan competitors.

As this public dialogue progressed, India’s Parliament in March 1955, took up a bill to extend the Industrial Disputes Act – passed into law in 1948 and designed to protect the industrial working class from arbitrary dismissal and other abuses – to journalists. Political support for the legislation was overwhelming. When the bill was introduced in the lower house of India’s parliament – the Lok Sabha -- in March 1955, members extended their sitting to ensure its passage. Hiren Mukherjee, then at the start of a distinguished parliamentary career put the case for the legislation thus: “some of the greatest figures in (India’s) recent history have taken to the avocation of journalism, but in those days, as even today to a very marked extent, deprivation was the portion of those who took to journalism”.

A robust denunciation of the ownership of newspapers followed. “The press has become a segment of big money, and that is why the right to start newspapers and rape (sic) the public mind is almost a fundamental right, which we cannot contest, of people who have been described by one of our leading journalists today as the Thugs and Pindaris of the press”, said Mukherjee. “It is against these Thugs and Pindaris of the press that the working journalist wants some sort of protection”.

Other notable speakers in favour of the bill were R. Venkatraman (later a Union Finance Minister and President of the Indian republic), N.C. Chatterjee (elected on a Hindu Mahasabha ticket, but then in the process of shifting rapidly towards an independent posture with an emphasis on civil liberties) and M.S. Gurupadaswamy (who served as Union Minister for Chemicals and Fertilisers in the Union cabinet of 1989-90). For Venkatraman, the bill was nothing less than the “magna carta” of working journalists. For Chatterjee, it was long overdue legal protection for a professional community that had been victimised for merely being true to its conscience. And in Gurupadaswamy’s estimation, the legislation had come not a moment too soon, since newspaper establishments he knew, had already begun squeezing out seeming recalcitrants in anticipation of the day that journalists would gain a measure of legislative protection.

The political mood was influenced very deeply by context and history, particularly by memories – then still fresh -- of India’s freedom struggle in its climactic phase, which coincided broadly with World War II. The relative ambivalence of the owners towards the freedom movement – sympathetic but unwilling to sacrifice core business interests – and the unequivocal support rendered by the community of journalists and press workers,seemed clearly to mark out one category as allies and the other as adversaries. Journalists then seemed credibly to have a claim to be spokespersons for the general public, irrespective of social strata or class, while newspaper owners were seen to represent a narrow sectarian interest.

A more positive affirmation of journalists’ rights came with the passage of the Working Journalists’ Act (WJA) later in 1955. Again, Parliament united across all partisan divides in approving the bill. And unlike the current text of the law, which covers all newspaper employees, the act as originally adopted applied only to working journalists.

The WJA was introduced in the Lok Sabha by Information Minister B.V. Keskar, with the following remarks:
In some ways, the Bill itself is not a major Bill. It is a small Bill. .. But, it is important.. that we are trying to apply it to an industry which up to this time was not able to get all these benefits, a piece of legislation, which, for the better working of our Press, for the better security of our journalists and therefore for a better, I would say, freedom of the press in this country ….

This was one of the few occasions when journalists’ job security was spoken of as an ingredient of the policy mix safeguarding press freedom. The basic provisions of the WJA, as explained by the Minister, involved protection of journalists against arbitrary dismissal or mass retrenchment, regulation of the hours of work and the creation of a gratuity fund which would be a safeguard against long-term financial insecurity.

Perhaps the most important of the WJA provisions, was its empowerment of a statutory wage fixing machinery. In response to a number of queries, the minister clarified that the power of the statutory board would go beyond determining a minimum wage. This represented an important change from the way the law was initially conceived by the Press Commission. As the Minister put it:
The important change that was made .. was regarding wages. The original proposal was for a minimum wage board… We had the benefit of discussing this question again with the representatives of the working journalists and we came to a happy agreement. In the light of that agreement, we have changed this particular clause and instead of having a minimum wage board, there will be a wage board which will fix the rates of wages for journalists.

A Wage Board constituted under the act came up with a comprehensive award mid-1957. It was a contentious process, with employer representatives on at least two vital points voting against the chairman and the journalists’ representatives: the classification of newspaper groups on the basis of gross revenue; and the fixation of entire wage scales rather than just minimum levels.

Journalists’ Wage Award Challenged

Once the wage award was notified the more serious mobilisation began from the newspaper industry. In a petition filed before the Supreme Court – a case now cited as Express Newspapers and Others versus the Union of India -- the industry argued that the WJA was an irksome intrusion into press freedom and bad in law, since it created “a class of workers whose benefits and rights are given a preferential enforceability”. In this respect, it offended against article 14 of the constitution, which was a guarantee of equality before the law.

Working journalists constituted less than a fifth of the “total staff employed by various newspaper establishments”, said the petitioners. Improving the conditions of service of just this category of workers would be fraught with danger. It would trigger similar demands from “other employees who form 85 percent (and) were bound to be restive and likely to raise industrial disputes for betterment of their conditions of service”. The snowballing demands would “impose an additional financial burden on the newspaper establishments and .. substantially affect their capacity to pay”.

An “abstract” guarantee of the “freedom of expression”, the industry argued, would be “meaningless”, if it were not accompanied by the assurance that “all the means necessary for the practical application of the freedom” would be protected. Viewed in its entirety, the WJA “authorised the fixation of salary of working journalists at a level which disables the running of the press”. This manner of free speech restriction was not provided for under the first amendment to the Constitution and was hence contrary to law.

The WJA was also attacked in the petition as an unreasonable restraint on the freedom to conduct a trade, again falling foul of article 19(1)(g) of the constitution which guaranteed the right to practise a profession and carry out any occupation, trade or business.

Why journalism?

A key issue the court was called upon to decide was on the status of journalism. Did the special dispensation for journalists imply in some way a status that was “more equal” than others? And did this constitute a violation of the principle of equality before the law?

In the background was the assessment of the Press Commission, which laid out the basis for the special treatment of journalism in the following terms:
A journalist occupies a responsible position in life and has powers which he can wield for good or evil. It is he who reflects and moulds public opinion. He has to possess a certain amount of intellectual equipment and should have attained a certain educational standard without which it would be impossible for him to perform his duties efficiently. His wage and his conditions of service should therefore be such as to attract talent. He has to keep himself abreast of the development in different fields of human activity - even in such technical subjects as law, and medicine. This must involve constant study, contact with personalities and a general acquaintance with (the) world's problems.

Echoing some of these assessments, counsel for the respondents in the Express Newspapers case, took the argument that the “work of a journalist is peculiar and demands a high degree of general education and some kind of specialised training”. On this and numerous other criteria, working journalists “are a class by themselves”. The equality clause in the Indian Constitution did not prohibit the identification of specific classes of people who deserve (or may need) special legislative attention. The classification of journalists as such a category was based on “intelligible differentiae which distinguish them from other employees of the newspaper establishments and… other industries”.

It was moreover, established law that employers had no right to argue that legislation seeking economic and physical security for workers, fell foul of the equal rights clause. There was thus, no inherent discrimination in singling out journalists “for the purpose of ameliorating their conditions of service”.

Beyond this affirmation of the uniqueness of journalists and their claims to recognition as a special “class”, there was a hedging of bets, as apparent in the argument by the respondents, that the WJA could be viewed as one, among many, “social welfare measures”. The WJA in this rendition, was a legislative protection that was being extended to journalists, for purely contingent reasons. It could potentially, just as well be extended to numerous other occupational groupings when required. Even the most ambitious social welfare initiative needed to “make a beginning somewhere” and could not possibly be “all embracing” at the moment of its conception.

The court acknowledged that this argument had some weight. To have taken up all industries together would have been impossible and it was merely a matter of expediency that they were taken up “one by one”. Even within the specific category of the newspaper industry, it would be “equally expedient to take a class of employees who stand in a separate category by themselves”. This did not mean that any special category of preference was being created, or that a class of workers was being acknowledged as “more equal”. Rather, the objective of the “amelioration of the conditions of those workmen” did not imply any lesser consideration for any other category, only that their turn would come in proper sequence.

The court determined that restricting the right to free speech was not the intent of the Act and neither would it be the likely outcome. Simply put:
neither the intention nor the effect and operation of the impugned Act is to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners.

A stronger case, the court held, could be made against the WJA on the grounds that it impeded the freedom to trade. At issue was not freedom of expression, but another clause of the Constitution, 19(1)(g), which dealt with the freedom of commerce. The only possible circumstance that could redeem the WJA were the “reasonable restrictions” that were granted on the right to commerce in cases involving the public interest. The test of “reasonableness” in turn came from “intelligent care and deliberation” and on the face of things, there was nothing in the process of appointing a wage board that offended against these requirements.

Where industry existed, disputes were not merely possible, but likely. And in every such instance, it would be a necessary remedy that a neutral body, with equal representation from all contending parties, sits in judgment on possible solutions.

Procedural flaws in the wage bargaining process

Having disposed of all questions on the constitutional validity of the Wage Board, the court took on the issue of its procedural soundness. Was the Wage Board a legislative body operating on a mandate conferred by Parliament or was it a judicial body? If the former, it could ordain appropriate scales of pay for working journalists. If the latter, it would be obliged to follow something akin to due process and hear all sides.

The Wage Board suffered the serious procedural infirmity that few newspaper owners were prepared to cooperate with its deliberations. Responses to the questionnaire it sent out, asking for information on newspaper industry finances, were patchy and incomplete. As recorded in the Supreme Court judgment:
Out of 5,465 newspapers (and) journals to whom the questionnaire was sent only 381 answered the same; and out of 502 dailies only 138 answered it.

Following the Wage Board award though, newspaper managements proved rather willing to present their financial parameters, though selectively, before the Supreme Court. On balance, the Supreme Court found that there had not been sufficient attention paid to their compulsions and points of view. The Wage Board was not a body that had been delegated the subordinated power of legislation by Parliament. Rather, it was an administrative agency constituted to aid the legislative process. As such, it was obliged to follow certain procedures which would be obligatory for a judicial body. It would need to
elicit all relevant information and invite answers to the questionnaire or representations from the parties concerned, hear evidence and arrive at their determination after conforming to the principles of natural justice.

The Wage Board enjoyed a “wide discretion” to determine its “own rules of procedure”. But this did not mean that it was “entitled to follow any arbitrary rules of procedure”. The Wage Board was a “responsible” body entrusted with “the task of gathering data and materials (sic) relevant for the determination of the issues” before it.

In effect, the Wage Board was asked to gather information that it had no authority to access, since the newspaper companies, with few exceptions, were private limited companies that had no obligation under law to reveal their financial parameters. The Wage Board as put into action was not just about minimum wages but about fixing an entire scale of pay for journalists. This involved understanding newspaper finances as they existed, but beyond that, grasping their likely trajectory over time. To credibly fix journalists’ pay scales, the Wage Board needed to project ahead and take account of newspaper finances over the time-horizon of its award’s application. Lacking information on newspaper finances, the Wage Board was obviously unable to project ahead from an unknown present to a still more indeterminate future.

The Supreme Court found in this context, that the procedure of the Wage Board, was about reconciling between competing demands in a spirit of “give and take”. For every demand from the side of the journalists, the Wage Board sought to determine how far the newspaper owners were prepared to yield, and then sought a means of bridging rival perceptions – typically by splitting differences.

There was no evidence that the Wage Board had taken into account the capacity of the industry to bear the financial burdens it was imposing. The categorisation of newspaper companies by aggregate revenue failed to account for numerous complexities, which made revenue a very poor indicator of financial soundness. There was nothing in the WJA itself, which went against constitutional guarantees. But the Wage Board award, the Supreme Court ruled, had been vitiated by unsound process and was in this regard, ultra vires of the WJA.

An immediate consequence of the Supreme Court ruling was the narrowing of the discourse. In introducing the WJA, the Information Minister had spoken of a fair deal for journalism as a necessary part of the foundations undergirding press freedom. Far from drawing out this proposition, the Supreme Court in its ruling, characterised the process as one among many methods of wage bargaining, and journalism as one among many professions. It was as a location for social welfare legislation, merely a convenient place to begin, though for no particular social value intrinsic to the profession.

The press as “public utility”

This represented a significant dilution of the Press Commission doctrine that the newspaper was a “public utility”, which by definition, was essential to the sustenance of the civic community. Viewed in this perspective, a case could be made for “some measure of restraint and regulation” on the “exercise of ownership rights” over the newspaper, which was much more than a business proposition to be milked for profit. Surveying the newspaper scene as it was then, the Commission found that against the benchmark it had set, the actual conduct of the industry fell very badly short.

The newspaper industry was of course in complete disagreement and The Hindu, which took a relatively sober attitude to the entire debate, put the case with a measure of detached eloquence:
We must in all respect, contest the Commission’s unsupported conclusion that the conduct of newspapers is no longer a mission... It is true that journalism is no longer a camp-follower in a subject nation’s crusade for freedom. It has grown and developed, however inadequately... It is slowly becoming professionalised, even while on the economic side it is fitting itself, as it must if it is to survive, into the general industrial infrastructure. It has no need to be ashamed of the progress from amateurish and often inadequate idealism to responsible professionalism.

Viewed from the perspective of the newspaper owners, the changes underway were part of the organic process of evolution from public cause to industry. Politics in India, still heady with memories of the freedom struggle, remained unconvinced that this transition was either necessary or inevitable. And journalism faced a dilemma, or as G.S. Bhargava, a close and astute observer of the scenario observes, a “double irony or tragedy”:
the idealism of the previous period had dried up and the press had become an industry but with the old practice of working journalists being expected to live on idealism, even if the newspapers were growing to be an industry.

Legislative and policy initiatives soon followed, all derived from the report of the Press Commission. A “Price-Page Schedule” was notified by the government in 1955, requiring that newspapers charge a price that bore a reasonable relationship to its printed volume – effectively disallowing newspapers that were a magnet for advertisers from driving out the smaller players through price competition.

The price-page schedule was the instrumentality through which the objectives of diversity, pluralism and dispersed ownership in the press were sought. This regulatory device may today seem rather quaint and archaic. But in 1960, using the powers granted by the Newspapers (Price and Page) Act, the government issued the Daily Newspapers (Price and Page) Order, an intrusive set of rules that sought to micro-manage numerous parameters of a newspaper’s functioning. The IFWJ again, proved strongly supportive of this policy initiative.

In 1962, in the case of Sakal Newspapers versus the Union of India, the Supreme Court of India held the Price-Page Schedule violative of article 19 of the Indian Constitution. Handing down its ruling in the case, India’s highest court found that the order took away the freedom of the newspaper to charge whatever price it chose, constricted its ability to disseminate news and opinions, and cut into its commercial fortunes by limiting advertising space.

It was a curious and contrary case. The Supreme Court heard an argument advanced on behalf of the Indian Government, that the “effect of the Act and the Order” at issue, would be “to promote further the right of newspapers in general to exercise the freedom of speech and expression”, rather than the opposite. The space allocated to advertisements, the Government pointed out, varied between 46 and 59 percent of total printed area and this brought in “substantial revenue” which enabled the newspapers to be sold at “a price below the cost of production”. The consequence was that “newspapers of long standing” which had “built up large and stable advertisement revenue” would be “in a more advantageous position” and would be in a position to “squeeze out” newcomers, “with the result that they are able to destroy the freedom of expression of others”.

The true purpose of the impugned legislation as the Indian Government put it before the Supreme Court, was “the prevention of unfair competition which (had) resulted in (the denial) to others (of) a right to propagation of ideas by publishing newspapers”. The price-page schedule in that sense, did not “infringe the right or freedom of expression of a newspaper”, but on the contrary, it only “promote(d) and encourage(d) healthy journalism”. Far from being an imposition on the newspaper industry, the Government, the price-page schedule was introduced in part as a response to the insistent pressure of the “Indian Language Newspapers Association”.

Free speech as a narrowly-held right

India’s highest judicial body disregarded all these arguments. Free speech as a right, it ruled, applied to all citizens of the country and had dual ramifications, being related “not merely to the matter he (sic) is entitled to circulate, but also to the volume of circulation”. By fixing a minimum price for “the number of pages (a newspaper) is entitled to publish”, the Government aimed not to ensure “a reasonable price to the buyers” but to “cut down the volume of circulation of some newspapers by making the price … unattractively high for a class of its readers ..”

Data on price sensitivity of newspaper circulation was available to the Supreme Court from the report of the Press Commission. From this information, the judicial body constructed a doomsday scenario for any newspaper entrapped in the coils of the “price-page schedule: “if a newspaper with a high circulation were to raise its price, its circulation would go down and this in turn would bring down also the advertisement revenue. That would force the newspaper either to close down or to raise its price. Raising the price further would affect the circulation still more and thus a vicious cycle would set in, which would ultimately end in the closure of the newspaper”.

The court admitted that the right to carry on commerce could be curtailed in certain circumstances, but such a restriction could not be imposed at the cost of the free speech right. And in a formulation that betrayed an uneasy awareness of the underlying tension, India’s Supreme Court held that nothing in the Constitution allowed the State to abridge the freedom of expression “on the ground of conferring benefits upon the public in general or upon a section of the public”. The “reasonable restrictions” on free speech permitted under article 19 only covered a limited range of contingencies. No restriction could be imposed on one person’s freedom of expression, merely to safeguard another’s.

Despite the judicial orthodoxy laid down in the Sakal case, the regulation of newspaper functioning, especially where it concerned the use of scarce resources, remained an area of active government thinking and policy.

Another major judicial intervention in interpreting the free speech right emerged in the context of a government notification, issued in a situation of acute newsprint scarcity, limiting the allotment of the commodity in accordance with the consumption reported by newspaper publishers. An order passed by the Indian Government in 1972 established quotas for every major publishing house on the basis of newsprint consumption over a defined interval of time preceding. Newspapers that published in excess of ten pages, were required to bring down their daily offering to that number. They would not be permitted to reduce circulation to maintain page numbers at the existing or an increased level. If their conscience dictated that they should provide a full day’s complement of news, publishers needed to rationalise their allocation of space between editorial and advertisement matter. Alternately, they had the other option, or curtailing news coverage to accommodate advertisements at the level then prevalent.

In October 1972, the Supreme Court decided that the order was violative of the Constitution, in that it imposed restrictions well beyond the bounds of reason, on the right to free speech. The judgment in the case of Bennett Coleman and Company Ltd versus the Union of India is of historic significance. In addressing the issue of the free speech right, though, the Court seemed to oscillate rather indecisively, between a notion of free speech as a privilege that is enjoyed by the few, and a broader conception in which the unreserved exercise of the right by all would be a source of conflict.

In deciding the case, Justice A.N. Ray spoke for the majority and observed that the “individual rights of freedom of speech and expression of editors, directors and shareholders, are all expressed through their newspapers”. But then a few pages on, the majority opinion effectively widened the ambit of the right: “It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express”. (Emphases added).

Considered in all these frames, the majority opinion held, the newsprint restriction meant a serious abridgment of the right to free speech. If news volume was reduced, that was a loss to the public. And if the space devoted to advertisements were to be curtailed, the newspaper would “weaken” and perhaps “crumble”.

The rest of the judgment clung very closely to the liberal orthodoxy on the right to free speech: that governmental regulation is an evil more invidious than private monopolies. The Supreme Court held by majority, that “the press is not exposed to any mischief of monopolistic combination”. And even if it was, newsprint allocation could not be a feasible “measure to combat monopolies”. In equally treating “newspapers which are not equal” in their “needs and requirements”, the newsprint allocation policy violated the constitutional guarantee of equality before the law.

A significant dissent

Of special significance in this context is the lone dissenting judgment delivered from a bench of five, by Justice K.K. Mathew, who explicitly concedes the possibility of a conflict between the public interest and the profit motivations of the press. Using a “theory of the freedom of speech” that essentially views it in terms of twin entitlements -- to speak and be informed – Justice Mathew observed that “the distribution of newsprint for maintenance of (newspaper) circulation at its highest possible level .. (would).. only advance and enrich that freedom”. As a constitutional principle, “freedom of the press” was “no higher than the freedom of speech of a citizen”. The problem at hand was one of bringing “all ideas into the market (to) make the freedom of speech a live one having its roots in reality”. In pursuit of this ideal, it was necessary as a first step, to recognise “that the right of expression is somewhat thin if it can be exercised only on the sufferance of the managers of the leading newspapers”.

Freedom of expression in other words, also involved the right of access to media space. And this requirement would be met only through the “creation of new opportunities for expression or greater opportunities to small and medium dailies to reach a position of equality with the big ones”. This was as important, in Justice Mathew’s judgment, “as the right to express ideas without fear of governmental restraint”. What was required was an interpretation of the free speech right which recognises that “restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups”.

With the issue posed in this manner, the criticism that the newsprint allocation policy violated the constitutional article of equality before the law, was easily disposed of. The State, said Justice Mathew, was obliged to adopt a “standard which takes into account the differing economic and social conditions of its citizens, whenever these differences stand in the way of equal access to the exercise of their basic rights”. Free speech had an “individual aspect”. If a publishing group, which already enjoys the right by virtue of possessing one or more newspapers, were to launch more products and claim newsprint allocations accordingly, it would curtail the right of free speech for other individuals and entities. “No doubt, if the system of rationing were not there, it would be open to any person to own or conduct any number of newspapers”, but in a scarcity situation, the need for regulating access to basic resources was essential to safeguard fundamental rights.

“Access” was one of the most crucial questions raised here: access both of the public to the media environment and of the media organisation to the essential resources of its trade. The latter was the key issue before the bench. But the dissenting judge managed to tie up this issue with the larger one of the public function of a newspaper and its socially enjoined duty to reflect the variety and diversity of the milieu it functioned within. These lessons in the fundamentals of the right to free speech need to be revisited in a time of rampaging media monopoly corporations. They have a special relevance in any discussion on journalists’ rights, since an assertion of such rights would stand to gain greater traction if journalists can claim, authentically, to be living up to their mission of representing a wider community and giving it a voice.

Quality journalism and the right of public access

There have been conflicting interpretations on the right of public access to media space and time worldwide. In the U.S., the doctrine of public access has explicitly been held to be contrary to constitutional principles, because the “press” has a distinct constitutional status there. For reasons that remain obscure, the First Amendment to the U.S. Constitution forbids any law that would contravene the freedom of speech and of the press. It is unclear from all the dissections of the first amendment, whether the “freedom of the press” is a distinct right from the “freedom of speech”, or whether it is a redundancy.

B.R. Ambedkar, a prime architect of the Indian Constitution, addressed the issue of the rights of the press frontally during the Constituent Assembly debates. He found these to be no different in substance from the broader right of citizens to free speech: “The press has no special rights which are not given or which are not exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely expressing their right to freedom of speech and expression and in my judgment, therefore, no special mention is necessary of the freedom of the press at all”.

Indian jurisprudence since then has failed to decide between two conceptions of the media, between viewing it as an aggregation of individuals -- each asserting a right to free speech -- and of seeing it in a broader social context, as an institution with a defined social value and role. In some respects, this has been a circumstance of some convenience for the media industry, which has had an interest in keeping its status as just that – an industry that enjoys the constitutional freedom to engage in commerce and also embodies, after a fashion, the right to free speech.
For evident reasons, there is considerable resistance in numerous quarters to the principle that the media is an institution rather than an industry. That doctrine would render the free speech right a broad social entitlement rather than a narrowly held privilege of media owners and editors. If the understanding of the Supreme Court of India – that the free speech right is not just about what is said but how far it is heard – were to be adhered to, then a strong case could be made for the right of “public access” to media space. U.S. case law rules out such a right since the language of the constitution gives the “freedom of the press” a status distinct of the “free speech” right. The situation in India though, is unclear, because of the lack of clear judicial direction.

These numerous ambiguities have contributed to an erosion of the quality imperative in journalism and a relative impoverishment of the bargaining power of the media community in its relationship with the ownership. Through the early years of India’s independence, journalists worked with the self-belief that they could claim their entitlements on the grounds that they had a credible and socially recognised role, as representatives of the public interest. But the subsequent course of policy, especially as determined through successive judicial rulings, has tended to narrow the amplitude of the free speech right and spare the ownership of media organisations any obligation of financial disclosure. Ownership interests were already unfettered by the early-1990s, when economic policy directions themselves underwent a radical transformation.

Commercialism triumphant

The two decades beginning 1991, when India entered into a policy of economic liberalisation and integration with the global economy, generated its own dynamics. Technological changes, typified by the explosion of cable and satellite (C&S) television and the internet, were the most visible face of this new dynamic. But traditional sectors defied predictions, freely bandied about in the early years of the boom, about their imminent demise. Newspaper circulation and readership continued to increase, though with significant differences from earlier phases of growth.

The global financial crash of 2007-8 changed things substantially. For the first time in close to two decades, the media industry had to face serious questions about sustainability. And the expansion of job opportunities for journalism, which had never looked to be under threat, though several other of the basic tenets of the profession were, was no longer to be taken for granted.

The situation that faces journalism today has to be understood in the context of a steady erosion of professional rights beginning with the evisceration of the wage board process, and beginning from the 1980s, the progressive transformation of the employment contract from tenured appointment to short-term contracts. This was accompanied by the removal of most restrictions on unfair competition in the media industry and most forms of social controls being ruled out of court. One of the key ingredients of the public image of journalists through the early years of India’s independence – that they had their pulse on the public mood and were professionally committed to giving a voice to all of society – was no longer sustainable in the context of the strong assertion of ownership rights over the press.

Even if devoid of immediate practical consequence or profit, the crisis in the media in India compels a review of some of the strategic choices it has made over two decades. It should be asked, for instance, if the industry did the right thing by itself and its customers from about the mid-1990s, by tying its commercial success to advertising rather than circulation. In the process, the journalism function was devalued and its essential tenets and processes forgotten, because advertising – always the greater contributor to revenue – needed not just to be accommodated, but actively pampered.

From about 1994, shortly after newsprint import was decontrolled, India’s biggest print media group launched a price war against the leading newspaper in the national capital. After several strategic manoeuvres and constant shifts in combat advantage, the two media giants called a truce, establishing through mutual compact, that the retail price of their newspapers as also their advertising rates, would be closely coordinated. In this time, the model of competition between newspapers solely on the basis of price, had been extended to most of the country’s main markets. Journalism as a social activity and profession was left impoverished.

Few sectors of the economy in India have had the buoyant growth rates over the last two decades as the media. Few indeed, have had the same luxury of functioning in an absolutely unregulated environment. Though deregulation has been the reigning ethos of the last two decades, the model assumes first, a competitive marketplace where easily measured physical attributes provide a stable baseline against which price becomes a reliable parameter for consumer decisions. It may be okay for soaps and detergents, for telephone services, or for air travel. But it does not really ensure an outcome that is anywhere near optimal in the market for information, where various gradations of quality are involved.

News in both the print and electronic variants, moreover, is a commodity that is always sold at a price below its cost. But unfortunately, the news industry in India has evolved along a trajectory that makes it almost worthless.

In 2003, India’s biggest media group, which publishes the world’s largest circulated broadsheet in English, launched a new initiative called “Medianet”. Its purpose was ostensibly to go beyond the limitations of traditional news-gathering techniques, especially in new areas of audience interest with high potential for attracting contextual advertising – such as lifestyle, fashion, entertainment, product launches and celebrity personalities. Quite simply put, Medianet involved the payment of a fee for coverage in the columns of the newspaper. The newspaper management initially committed itself to clearly identifying every story published under “Medianet”. But media analysts have concluded that after a few weeks, the practice of identifying each story that was paid for, seemed to lapse.

Just a little later, the same media group embarked on a new venture called “private treaties” under which it would swap advertising space in its columns for an equity stake in particular companies. This assistance in “brand building” and “corporate image development”, rendered gratis, would be more than repaid when the companies emerged with a public floatation of shares and sought listing on the stock exchanges. Through the boom years in India’s stockmarkets, shares in most companies were known to appreciate wildly from the day they were listed, and the reward for the unpaid advertising the media house rendered would come from the consequent capital gains windfall.

Once the practice was shown to pay off, other media houses joined in. There was little public questioning of the conflict of interest issues involved in “private treaties”. With fortunes being made and lost on India’s stock exchanges and investor decisions being critically information, i.e., media dependent, there have been calls in recent times, to put the practice of “private treaties” under the scanner from an ethical point of view.

Absent that public scrutiny, it was a short step to leveraging content itself as a direct revenue source. With the recession now beginning to bite deep and declared advertising spending falling, the news industry is pressing ahead in accordance with the inherent logic of the scenario. It is no state secret that individual journalists have often been susceptible to material inducements to twist their coverage one way or the other. This form of individualised corruption has now been institutionalised. It is now official, though still unstated, that the media in India has been selling space for favourable news coverage, much in the manner of advertisements – though without acknowledgment.

The “cash for coverage” abuse was noted during the extended campaign for the general elections to India’s parliament, between March and May 2009. Further instances of cash payments being used to secure favourable media coverage for particular candidates and parties, were recorded during the general elections to three state legislative assemblies in October 2009.

Individual journalists of some stature began speaking out against the abuse soon after the parliamentary elections were over. Their advocacy soon induced the Press Council of India to commence a formal inquiry into the abuse. Yet within the media itself, the wall of silence remained impregnable. That arrangement of convenience seemed to come asunder the day a major global conclave of the newspaper industry began in Hyderabad in December 2009. What lay behind this breach in the compact of silence would undoubtedly be a question worth investigating. But from the point of view of the public, it is adequate that somebody in the major league of Indian newspapers chose to break the silence.

The headline news was that the chief minister of the Indian state of Maharashtra, for considerations that are yet unknown, managed to get identical stories about his achievements (both real and imagined, though mostly the latter) featured in a number of Marathi language newspapers, under different author bylines. Several newspapers also carried extensive supplements within their main editions, blazoning his glories, again without the slightest suggestion that this was advertising content. Bylines of well-established journalists were often tagged to these stories to lend them a veneer of credibility.

The obvious inference – that all this content was paid for – puts the chief minister in breach of the strict ceilings that have been decreed by the Election Commission of India on advertising spending by a candidate for the state assemblies. Apart from that, it offers a telling comment on the new revenue model that the news industry has adopted to shore up its sagging commercial fortunes. The loser in the process, has been the practice of journalism as an activity pursued in the public interest.

Wage Board model followed elsewhere in South Asia

Various other countries in South Asia have established a practice of protecting journalists’ working conditions and entitlements through legislation. Pakistan, for instance, passed the Working Journalists (Conditions of Service) Act in the 1960s and followed this up with the broader Newspaper Employees’ (Conditions of Service) Act in 1973, during the high-tide of Prime Minister Zulfiqar Ali Bhutto’s populism.

Seven wage awards for journalists have been made in Pakistan, the most recent of these being in 2001. Yet the record of implementation of the awards remains patchy and incomplete. The All Pakistan Newspaper Society (APNS), like their counterpart organisation in India, has taken the argument that the statutory regulation of newspaper industry wages is contrary to the free speech right. The Supreme Court of Pakistan has ruled against this proposition, but has not provided any strong legal undergirding for the implementation of the wage award. As a consequence, journalists’ wages in Pakistan have tended to stagnate, except when buoyed up by a strong overall growth of the media, as through much of the 1990s and early years 2000s. The onset of an economic crisis by about 2007, has, as elsewhere in the world, spelt a growing crisis of job security for journalists.

Hameed Haroon, publisher of Dawn – among Pakistan’s oldest and most widely respected newspapers in the English language -- has argued that trade unionism among Pakistan’s journalists focused unduly on “targeting newspaper managements and owners in (its) effort to improve wages and working conditions in the newsroom”. The 1973 Act created conditions for “lumping journalists, press workers and office workers in the industry into one grand trade union in every newspaper establishment”. These highly heterogeneous unions served as collective bargaining agents for a variety of workers. Haroon’s judgment is that this development posed “a major hazard to the survival of quality journalism”, since “professional standards for journalism would take a back seat to the intensifying economism of the trade union agenda”.

The Dawn group of Pakistan has a reputation for investing in quality journalism and for generally providing a fair deal to its workers. But few would be willing to endorse the broad generalisation by a member of its proprietary family about the dysfunctional nature of journalists’ trade unions, when these are amalgamated with other categories of newspaper workers. The alleged “economism” of the trade union agenda is little else than an entirely well-founded concern with basic issues of livelihood. And this has not been known to work against the imperatives of quality journalism, only to secure the foundations on which the edifice of quality can be built.

Bangladesh too has followed the same pattern in regulating journalists’ wages and working conditions. Seven wage awards for journalists have been made so far, most recently in 2008. But the record of implementation is extremely patchy. An estimate made in 2004 in relation to the then current Fifth Wage Award, found that fewer than ten of the 500 registered newspapers in Bangladesh had actually implemented it. The newspaper owners have forcefully argued that the wage award was itself unrealistic and had little chance of gaining their acceptance from the moment it was notified. Yet a Sixth and Seventh wage award have since been notified, with equally dismal consequences. As in India, this raises questions about the procedure of the wage board itself, about the information that it is able to access and the bases on which it decides its award. If anything, it makes the case for greater transparency in newspaper finances, consistent with the special status of the media as something akin to a “public utility”.

Following the mass movement for democracy in 1991, which in the context of subsequent history has been named the first peoples’ movement (or Jana Andolan), Nepal’s journalists secured the passage of a Working Journalists’ Act in 1995. The provisions were in most respects, similar to those of counterpart laws in India and other South Asian neighbours. Yet the law remained unimplemented both on account of relatively weak organisational capacities on the part of the journalists and the under-developed character of the media industry.

The Nepali experience with democracy in its first coming proved rather mixed. Successive governments failed to establish any degree of consensus on governance norms and the rules of the legislative process. A military-backed restoration of the absolute monarchy followed in February 2005. By April 2006, popular resentment at the misrule of the palace had peaked and Nepal’s journalists played a pivotal role in the mass agitations that followed, compelling the king to reinstate the parliament that he had placed in suspension and restore the democratic constitution of 1991.

Among the significant gestures of recognition that Nepal’s journalists obtained for their stellar role in the restoration of democracy through the second Jan Andolan, was a broadranging set of amendments to the WJA, enacted in 2007. The salient features of these amendments include a ceiling on the extent to which media organisations can employ contract workers, a commitment that a certain proportion of aggregate revenue would be earmarked for journalists’ skill development and professional training, and a stipulation that journalists would be eligible every few years for special professional development courses.

The efficacy of this mode of safeguarding journalists’ rights is now in serious question. Trade union membership has declined on account of the large-scale transition by media organisations to employment based on short-term contracts. The media boom of the 1990s has led to a growth in employment, but few of the fresh entrants into journalism in this period enjoy the statutory protections afforded by law. The continuing economic downturn has brought the issue of livelihood security to the forefront, as job losses in journalism mount.



Security challenges

Concurrently, all South Asian nations which are in their own distinct ways, transitional societies, confront journalists with serious security challenges. These concerns have heightened in recent years, when journalists have faced acute risks in covering the growing incidence of ethnic and other forms of strife.

While the situation varies from country to country, the most challenging issues for journalists and media workers in the region are violence directed by state and non-state actors engaged in war, and bureaucratic and legislative efforts by power-holders seeking to silence dissenters and to ward off rivals.

Nowhere were these hazards more apparent than in Sri Lanka, where journalism has long been scarred by the virulent course of the long-running civil war between government forces and Tamil separatist insurgents in the north and east. The quarter-century long conflict took a heavy toll of freedom of expression, especially in terms of the functioning of the media and the security of journalists and other media staff. In tandem with a deteriorating political climate, attacks and threats against journalists and media institutions increased sharply. The year 2009 opened on an ominous note with the daylight murder of Sunday Leader editor Lasantha Wickrematunge in a busy suburb of Colombo and the kidnap-style arrest of Sudar Oli editor N. Vidyatharan, ostensibly on “terrorism” charges. Another Tamil journalist, J.S. Tissainayagam, after a year-and-a-half in detention, was convicted under the country’s draconian anti-terrorism law and sentenced to 20 years in prison in August. Though released on bail in January 2010, Tissainayagam’s appeal against his conviction is unlikely to be heard in the near future, despite a trial process that was held to be deeply flawed by most independent observers.

Apart from these specific cases, a signal had seemingly been sent from the highest political levels in Sri Lanka, that verbal abuse of media workers and physical intimidation and attacks are fair tactics. Since Wickramatunge’s murder, scores of Sri Lanka’s most well-known journalists left the country to seek safe haven abroad. As the war moved towards its final stages and the need for public information was peaking, Sri Lanka’s media was depleted of some of its most valuable human capital. This problem was especially acute in the country’s north and east, which were always the theatre of the most fierce fighting.

With the war being officially declared over in May 2009, there was a possibility that the hazards for journalists would abate. But these expectations were effectively shattered by the early elections that the incumbent president called, with undoubted intent to capitalise on his halo as a war victor, and his bitter falling out with the military commander who led the final phases of the Sri Lankan offensive against the insurgents. These created a bitter political polarisation, acccentated by the former general’s decision to challenge the incumbent president’s bid for reelection. Though the incumbent won by a comfortable margin on January 26, the subsequent settling of scores with journalists who may have dissented with some of his campaign tactics and political strategies, has created new anxieties for Sri Lanka’s media.

Within Afghanistan, the media sector continues to expand and diversify, though long-term questions about sustainability and credibility remain. The escalation of the insurgency in parts of the country and the ramping-up of United States-led combat operations, have created their own hazards. With all sides in the conflict being in default on honouring agreed rules of engagement as far as media access and safety are concerned, much work remains to be done to ensure an environment that is at least halfway conducive to the pursuit of critical and public-spirited journalism.

Afghanistan’s mass media law, for all the public debate and excitement that has surrounded it, remains trapped in a limbo between the competing interests of Afghanistan’s presidency and its numerous political power groups. Clear rules for eligibility and entry are yet to be laid down. In this policy vacuum, the media has become a battleground for political factions. The overt politicisation of the media is a matter of worry for Afghanistan’s small but energetic group of media professionals.

Ambiguities with Afghanistan’s constitutional guarantees of the right to free speech remain to be dispelled. A provision that allows for the application of customary law, where the constitution is silent, has in particular been used with chilling effect on the free speech right. Two convictions for disrespect to the majority faith in Afghanistan were upheld during 2008, both perhaps pointing to infirmities in the judicial enforcement of fundamental rights and to a persistent problem with the process of the law, particularly when it comes to an individual’s rights to a fair trial.

These aside, journalists continue to be targeted by armed groups, the country’s flourishing narcotics rings and by official security agencies. Newspapers have been shut down and journalists sacked for breaching what are deemed the limits of free speech.

Bangladesh emerged from a two-year state of national “emergency” early in 2009 and returned to civilian rule. Through the two years of emergency rule that began early-2007, with normal political processes were suspended, there were frequent verbal concessions to the importance of a free media in bringing popular sentiments to the attention of those holding the reins of governance. But critical reporting was always frowned upon and frequently punished. The caretaker administration was, from the first days of the emergency, committed to the restoration of democracy, but sought actively to mould the shape of the democratic order that would emerge. This was reflected in the frequent guidance issued to the media on the quantum and character of coverage that would be appropriate for certain individuals and political parties.

In part because the media was kept on a tight leash, instances of overt violence against journalists perhaps declined through the years of the “emergency”. The first full year since the restoration of civilian rule, according to a tabulation prepared by the Dhaka-based human rights organisation, Odhikar, saw a virtual doubling of the number of attacks on the media. Also of great concern, have been the legal proceedings which continued to be initiated – even during the emergency -- against media organisations and journalists on the basis of complaints by those with contingent grievances. The large-scale arrests of top executives and editors of media houses, which had seriously destabilised the functioning of several of these, began to be reversed after the restoration of civilian rule. Several journalists continue to face the threat of prosecution as a direct legacy of cases registered during the emergency. How these are dealt with will prove a key test of the newly installed government’s commitment to free speech rights.

In India, violence against journalists has been a constant in the conflict-prone areas of Jammu and Kashmir and the North-East. A new spirit of intolerance of public criticism has also been evident among certain office-holders and political formations, manifest in overt violence and legal actions against the media. In the Maoist-insurgent areas of central and eastern India, journalists have been arrested on the flimsiest pretexts, as part of an active official effort to criminalise all forms of contact – even those of an authentic reportorial character – with the insurgent groups. Reporting on matters of governance in a region that is recognised to be among the worst administered in India, often invites a harsh retribution on the grounds that these reports render comfort to the enemy. And since reporters in these regions suffer from the worst forms of neglect from their employers, they are often left to fend for themselves once they become the focus of official ire.

Nepal continues to function under an interim constitution that enshrines guarantees on the right to free speech. Yet media rights remain weakly institutionalised and in a period of flux, government authorities have not hesitated to take a stridently adversarial posture toward the assertion of these rights. The relative calm of the first years of the transition has given way, since the elections of April 2008, to a spirit of contention. The new hazards for the media were cruelly underlined by the brutal murder of a woman journalist Uma Singh, in the southern-eastern town of Janakpur in January 2009. And with the collapse of the Maoist-led coalition government in May 2009, political contention has intensified, with journalism often getting trapped in the crossfire.

The legacy of Nepal’s decade-long insurgency lingers in the form of numerous vigilante groups, remnants of the armed formations that till the ceasefire agreement of 2006, contested fiercely for space. The demobilisation process has made only fitful progress and these groups still retain the ability to function as a parallel system of coercive power. The media is frequently often the target and critical reporting often invites a harsh vendetta.

Nepal is a country of micro-communities and many languages. In the new democratic dispensation, each of these groups has been vying to establish its specific set of entitlements. The consequences are most apparent in the southern plains, where serious discord has broken out over issues of indigenous peoples’ rights against those of the settlers from the hills. With public attitudes changing slowly and the interim government yet to assume the post-partisan attitude that alone can ensure credible leadership in the cause of the free speech right, Nepal’s media community and its journalists’ unions have stepped up vigorously to the challenge.

The intensifying insurgency in parts of Pakistan and the unsettled security situation continues to cast a long shadow over journalism. Early hopes that the restoration of an elected government in 2008 would lead to a significant improvement in official attitudes toward the media have been belied. And as open strife continues to persist between Pakistan’s two main political parties, concerns are high that the media could suffer serious damage. A long-running dispute over judicial appointments was resolved but the judiciary has since refused to honour the bargains and the deals struck between the armed forces and the political parties of Pakistan, to bring about an end to over a decade of military rule in 2008.

Pakistan’s civilian government began with a progressive legislative agenda, repealing the many curbs on the media by Pervez Musharraf’s “emergency” regime in November 2007. But it then seemed to backtrack, introducing sweeping amendments to the press registration law in January 2009 that set the clock back to an ill-remembered military regime. Though withdrawn within days of being notified, the proposed law damaged the trust that had emerged between the political parties and the Pakistan media during the struggle for the restoration of democracy.

With cuts in advertising spending seemingly inevitable as a result of wider economic difficulties, several media organisations, particularly the more recently established television channels, sharply reduced expenditures and cut staff. Though data on job losses are sporadic, the Pakistan Federal Union of Journalists estimates that at least 250 media jobs were lost in the years 2008-09.

Pakistan’s journalists, already embattled by the growing sway of militants, especially in the northern tribal regions, are among the professional communities at most serious risk in South Asia, perhaps next only to counterparts in Sri Lanka.

The diverse experiences of journalists in South Asia, point to the need for unified actions and cross-border solidarity campaigns to mitigate the common threats they face. In addressing issues of seemingly narrow professional interest, they may well succeed in the broader cause of fostering greater harmony and concord within a region that is home to a fifth of humanity.
February 16, 2010

Notes and references


See Piketty and Saez, Krugman, Stiglitz.

The NYT Co has reportedly decided, subsequently, not to sell the Globe.

As S. Natarajan points out in a pioneering history of the Indian press: “The strength of the conference (AINEC) in the last resort derived from the strength of the editor in his newspaper office. As the financial conditions of the newspapers improved – during the war years and after mostly through the non-journalistic activities of the establishment – the editor became more or less a business executive, and the editors conference (AINEC) developed into a shadow of the Newspaper Society (IENS)” (quoted in Bhargava, p 28).

Special wartime rationing procedures made newsprint a rare commodity, invariably reserved for the more compliant newspapers. Concurrently, a “press advisory system” was instituted, complete with oversight bodies at the national and provincial levels, which determined what the limits of fair reporting and comment were. Critical historians have with great credibility, referred to this as a system of pre-censorship of news content in which the newspaper owners were willing accomplices (Chaturvedi). Others (Bhargava, p 26) are inclined to give the newspaper owners the benefit of the doubt, since the wartime powers that the imperial government had assumed provided for summary seizure of assets – and few of the Indian newspaper groups could really afford to run that risk.

India’s newspaper owners were well aware by then of the limits of safe reporting and of where they should allow nationalist commitment to subside when undeniable business imperatives cropped up. Milton Israel has recorded that a certain kind of conservatism, “both personal and institutional” characterised the relationship between the imperial government and the emerging Indian press. Illustratively, when “Gandhi asked the editor of The Hindu to publish a proscribed book in 1919, he was told that they had made too large an investment in their presses to risk confiscation and ruin. As an alternative, an unregistered cyclostyled news sheet was produced denouncing the Rowlatt Acts – serving both The Hindu’s nationalist principles and its business interests”. Many of the press owners and prominent journalists who became involved in the freedom movement, like the editor of The Hindu, were in the description of a prominent historian of modern India, “vicarious nationalists”, who were quite content to allow others to bear the burdens.

Journalists suffered no such qualms and were quite unequivocally behind the struggle for freedom. A recent historical account of the evolution of the Indian press points out that the National Herald, the official newspaper of the Congress Party was a particular target of the imperial administration, which found much in it that went against the canons of permissible reporting. The financial misfortunes that were inflicted on the newspaper as a consequence of imperial displeasure, brought it to the very verge of closure. But in a gesture of commitment, the workers of the newspaper – both journalists and others – volunteered to forego their salaries for several months in succession. (Bhargava 31.)

It also needs to be added here, that long after the Congress party transformed itself from a national liberation movement into India’s presumptive party of governance, the workers of the National Herald went through a much longer period of similar adversity, though not this time by choice. Though a ruling party that had no serious issue with raising funds, the Congress in the 1980s clearly had little inclination to put any resources into the newspaper business.

The Act was originally titled Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. As it now exists, it is titled the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. Several of these key amendments were made in 1974.

Precisely on account of these ambiguities and the Supreme Court’s failure to determine where the greater merit lay – between a broadly held social right and a narrowly confined privilege of press owners -- the price-page schedule as an instrument of regulation retained a significant degree of appeal for years afterwards. A Committee on Small Newspapers in 1965 upheld it as a legitimate device for protecting the right to free speech. A shift in priorities came about with the Fact Finding Committee on Newspaper Economics in 1975, which conducted its inquiries in a juncture of acute newsprint shortage. With the commodity selling at a massive premium and the blackmarket flourishing, the price-page schedule seemed a rather quaint irrelevance. Yet the Fact Finding Committee did agree that a statutory ratio between advertisement and editorial space would serve the public interest.

The issue was revisited by the Second Press Commission, which was appointed in 1978. Headed – like its predecessor -- by an eminent jurist, the Second Press Commission registered its disagreement with the Supreme Court ruling in the Sakal case. Article 19, it affirmed, was fundamental to the Indian Constitution and no law could be countenanced that violated its basic entitlements. But it could not be said that the Price-Page Schedule amounted to an abridgment of article 19 freedoms. On the contrary, the Second Press Commission concluded, the objectives “being (the) promotion of competition and prevention of monopoly, the law will advance freedom of speech and expression”.

The one case that has a bearing on this issue in Indian judicial history deals with the house journal of a publicly owned company, the Life Insurance Corporation of India (LIC), not with a mainstream media house. The case arose from the LIC and its critique of the exorbitant charges that the corporation levied on users for very moderate benefits. This paper was circulated widely among insurance policy-holders, entirely through the energy and resources of its principal author, Manubhai Shah. LIC in a bid to dispel public reservations about its functioning, commissioned one of its senior officials to write a rejoinder, which was published in a major newspaper headquartered in the city of Madras (now Chennai). A response by Manubhai Shah’s group was also published by the same newspaper.

When LIC chose to reprint its paper in a journal it published for circulation among policy holders, agents and employees, Manubhai Shah demanded the right to present his case through the same forum. This demand was turned down on the grounds that the forum was a house-journal of the LIC, which it was not obliged to afford public access to.

The Supreme Court in 1992 rejected this argument and ordered the LIC to publish Manubhai Shah’s article in the public interest. Briefly put, the decision was based upon two considerations. Firstly, the publication in question was not a house-journal but one that was available to the general public through subscriptions. Further, it invited articles for use from a diversity of sources and merited the status of a public forum. Second, even if the status of the publication as a house-journal were to be conceded, the LIC as a corporation owned by the Government, fell within the definition of an agency of “the State” under the Indian Constitution. As such, it had no authority to deny the right to free expression to any Indian citizen.

LIC was in a sense, a soft target – a government-owned corporation for which publishing was a peripheral activity. And in specifying two grounds and failing to clarify which among them was decisive in obliging the corporation to publish the critique of its functioning in its own journal, the Supreme Court bequeathed an ambivalent legacy. Clearly, if the criterion of the journal enjoying a wide circulation outside the confines of the LIC is the decisive one, then the same principle should apply to elements of the media, even if privately owned. But if the fact of the LIC being an agency of the State is the preponderant consideration, then newspapers and the media in general would be exempt from abiding by similar rules of public access. Though the matter has been the subject matter of a desultory public debate over the years, the right of public access to media space and time remains a neglected issue. The orthodoxy on the matter is laid down by the Press Council of India as a set of voluntary guidelines on the right of reply. Matters are not greatly helped of course, by the lack of statutory enforcement authority at any level of the policy apparatus.

A detailed description as also a catalogue of the threats and security challenges facing journalists in South Asia can be found in the IFJ’s annual press freedom reports for the region, produced for the South Asia Media Solidarity Network (SAMSN). These are available for the last three years at the website of the IFJ Asia-Pacific: asiapacific.ifj.org.

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