Press Council as Bully Pulpit: A debate on media regulation that could go nowhere

November 7, 2011

Markandey Katju was appointed chairman of the Press Council of India (PCI) within days of retiring as a Judge of the Supreme Court. Purely by coincidence, there was some talk hanging in the air as he took office, of the need for new regulatory norms in the electronic media. Though not within his formal jurisdiction, he was quick to ask that the new guidelines be held in abeyance. He then plunged into a sequence of abrasive comments about the realm he had just been appointed to oversee and regulate, which if substantively little different from observations made by his predecessors, has raised hackles with its added embellishment of intellectual disdain. Where the debate will proceed from here is anybody’s guess. But the tone has dropped several notches and the media industry is unlikely to let another opportunity pass, to push back against a potentially constructive public debate on transparency and accountability.

The media in its broadest definition, touches several lives. Even if it is a small player on most aggregate economic measures – revenue, value addition or profit – it is an industry on which everybody has an opinion and an urge to be heard. Media persons, who are generous with moral judgments and grudging in admitting the most egregious errors, cannot really complain when the compliment is occasionally returned. The final bulwark that the public often finds difficult to breach, is the ability of the media to control the message.

For long, the only recourse an ordinary reader (or “media consumer” in current terminology) had for being heard, was a letter to the editor, which would, in most cases, end up in the trash bin if it did not pamper newspaper egos. Today, even as she suffers the constant mortification of being talked down to by hectoring news anchors and leader writers, the media consumer has discovered the blogosphere, or the virtual media, which offers itself as a new platform for conducting the social dialogue. The ability of the media industry to control the public discourse is rapidly eroding and there has yet been no credible strategy devised from within its business model, to counter this reality.

Legal coercion though, is an option that still works. A sturdy platform of media criticism in the “virtual world” recently found itself the target of unwelcome attention from a real world entity whose enormous clout could be denied only at great peril. On October 14, the media watchdog website, The Hoot (www.thehoot.org), received a legal notice from the Times Global Broadcasting Company Ltd, which owns the Times Now news channel and is a subsidiary of Bennett Coleman and Co Ltd (BCCL), publishers of the Times of India. The media giant had been irked by an article published the day before, which raised a number of troubling questions about the coverage of a brutal attack on the lawyer and civil rights campaigner Prashant Bhushan, by right-wing thugs on October 12.(1)

Media under scrutiny

Under particular scrutiny was the conduct of the Times Now channel, since it had a news crew on the spot at the time of the attack. The article, written by a journalist with years of experience in print and television, wondered if the presence of the news crew may not have brought on the attacks. The thought was not outlandish, since the vigilante group behind the attack, the Sri Ram Sene, had a long record – from places as far afield as Mangalore, Bangalore and Delhi – of prearranging media coverage before foraying forth to dispense summary justice. Once the attack on Bhushan began, the news crew on the site showed less than humane instincts when it continued recording the brutality with a steady and unswerving camera. No member of the team even stepped into the camera frame while Bhushan was punched, kicked and dragged along the floor.

Perhaps, the article said, the climate of intolerance that brought on the attack had been nurtured by the unique style of the electronic media. It was a regular feature of prime-time news broadcasts to pit adversarial viewpoints against each other in the most abrasive and uncivil manner. A special mention was reserved for the Times Now’s prime-time news anchor, who regularly sets the blogosphere buzzing with his preachy morality and self-righteousness.

There were points made in the article which could have been fruitfully debated, had The Hoot not taken it down in haste under threat of legal action.(2) While protesting that the article had nothing by way of defamatory content and was merely an honest effort to advance the debate on free speech and its attendant obligations, The Hoot took the abundant precaution of apologising for any offence it may have caused. The whole episode passed without seriously disturbing the stately passage of the mighty media.

A desultory debate had meanwhile begun on the sidelines, occasioned by the expressed intent of the Ministry for Information and Broadcasting (MIB) to revise eligibility norms for the broadcasting industry. The stated rationale was that the norms currently in place are notoriously lax, which few can really question. But the antidote devised by the MIB bureaucracy seemed worse than the disease.

Regulatory vacuum

The norms for cable and satellite broadcasting were put in place rather late, close to a decade after the medium became pervasive at least in urban India. And in that one decade, as the government dithered, big global players had already acquired a major presence in India, forcing open several doors by making creative use of policy ambiguities and the marked official proclivity for ad hoc procedures.

The initial policy response was to doggedly hang on to the government’s monopoly over the airwaves – at least in the limited sense of uplinking signals from Indian territory. In a defensive measure against proliferating signals from satellites high above, which could only be restrained through the extraordinary exercise of police powers, the principle of intermediary liability was imposed. The cable operator would be responsible for ensuring conformity of all broadcast content with applicable norms.

It was another matter that there was little consultation or agreement across relevant sections of government, industry and civil society, on best regulatory practices. Neither was there any concern in the two decades of the satellite broadcasting boom, for enforcing the basic principles of media governance: such as the separation of content and carriage; and the prevention of cross-media ownership concentration.

A landmark judgment by the Indian Supreme Court in 1995, holding the broadcast spectrum as a public resource, entered the judicial annals as a finely crafted statement of principle. But its practical relevance has been negligible, as corporate entities, political parties and even religious bodies have rapidly colonised the airwaves.

The MIB’s recent awakening clearly occurred under duress. Following widespread public concern over media coverage of the November 2008 terrorist attacks in Mumbai, there was one attempt at enforcing a code on the electronic media, especially in situations designated as “emergencies”. The news channels, sensing a threat to their autonomy, preemptively enacted their own code, to be enforced by a News Broadcasting Standards Authority (NBSA) under the chairmanship of J.S. Verma, a former Chief Justice of India. The other main industry body, the Indian Broadcasting Federation followed after a few months with its own complaints council, under a former Chief Justice of the Delhi High Court, A.P. Shah.

The NBSA has had a mixed record of success. Its first major ruling imposing a fine led to angry recriminations between the offending channel and its competitors, and an unabashed refusal to comply. Following a truce and the return of the delinquent element into the fold, a more settled course has been in evidence. Strictures that the NBSA issued early this year against a channel that had telecast a news item held grossly derogatory of the gay community, were complied with in full. Close observers of the broadcast industry believe that despite this chastening, the channel concerned soon went back to its old ways, secure in the knowledge that it could always move faster than the watchdog’s capabilities of oversight and sanction.

Government anxieties aroused

Meanwhile, the news channels’ coverage of the Anna Hazare agitation, first in April this year and then in August, had reawakened the deepest anxieties of the government. Yet again, the debate on regulation was resurrected in terms of the old and discredited principles of oversight and sanction, with little regard for how feasible such a strategy would be in a domain where an estimated 727 channels function, of which no fewer than 359 are categorised as news broadcasters by the MIB. The entry threshold is derisorily low: principal requirements being that a company uplinking to a broadcast satellite would need to be registered in India, have no more than 40 percent foreign shareholding and a minimum net-worth ranging from as low as Rs 1 crore to a high of Rs 3 crore, depending on the category of licence applied for.

As Katju assumed charge at the PCI, a debate was underway on the need to revise these norms. The principal measures under consideration included raising the threshold of net-worth to a figure in the range of Rs 10 crore and stipulating that news channels should be headed by individuals with a certain minimum years of editorial experience. There were also suggestions of a “five strikes and out” rule: that news channels held guilty of a certain number of violations of an agreed programme code, would be stripped of their licence.

Katju’s interventions in this context seemed less an affirmation of principle and more a power-grab. At his first public engagement, which was a meeting with senior editors, Katju called for “introspection” and also questioned some of the priorities that the media seemed to be pursuing at the cost of what he considered the really important issues. Soon afterwards, he appeared on a widely watched interview programme on an English news channel. If there was an element of discretion earlier, the tone now was all aggression and disparagement. Indian journalists he said, were for the most part, “of a very poor intellectual level”. Media personnel in general, he said, have no idea of “economic theory or political science, philosophy, literature”.(3) Katju also called for investing the PCI with statutory powers – extending to the broadcast media -- to punish organisations that step out of line of an accepted code of conduct. “One of the reasons” that self-regulation has not worked, he said, is that its procedures have failed to instil “fear in the media.”

In Katju’s own words, the means of achieving optimal regulatory ends are clear: “I want powers to stop government advertisements, I want powers to suspend the licence of that media for a certain period if it behaves in a very obnoxious manner. I want powers to impose fines, all this in extreme situations.”

Novelty lacking

The scorn and disdain aside, these are possible options that have been raised by Katju’s three immediate predecessors and perhaps several more. So it is not yet evident that Katju has in any manner advanced a debate that has been underway for at least as long as the PCI has existed.(4)

Evidence of a constructive role going forward, if any, could be found from examining the other points the PCI chairman makes about the three modes in which the media is failing the people of India. The substance of the former judge’s accusations are that: the media often focuses on trivialities at the cost of the really major issues the country faces; it frequently divides communities by leaping to unwarranted inferences about the identity of those responsible for crimes such as terrorism; and finally, rather than propagate rational and scientific thinking, which is the need of the delicate social and economic transition India is undergoing, the media seemingly has time for only the most obscurantist fetishes, such as astrology and the supernatural.

None of what Katju says would come as breaking news to an observer of the Indian media. At various recent junctures when its conduct has been seen as questionable, the media’s role has come in for incisive and frequently, scathing analysis. But the logic of the media as an industry geared towards the motive of private profit, determines that it will follow a trajectory that remains indifferent to these public concerns. Media growth in the last two decades – but more so since the turn of the century -- is a sub-theme of the larger story of the revolution of rising aspirations of the great Indian middle class. It has been fuelled by the advertising boom that has accompanied this dizzying expansion of horizons. Needless to say, the growth of advertising – from the automobile sector, communications, real estate, financial services and other so-called success stories of the two decades of liberalisation -- has reflected emerging patterns of consumption of the middle and upper strata.

The other side of the growth story, of rising economic inequality and stagnant or deteriorating living standards at the lower end of the scale of wealth, has been rudely excised from the media narrative, simply because it is of no interest to the advertiser.

Public utility or industry?

These aspects of media functioning have been in the spotlight since the early years of independence and notably since 1952, when the Press Commission was appointed as India’s first expert attempt to evolve a doctrine on the media and society. Political circles and journalism unions were then suffused with the sense of imminent betrayal, that the press was forgetting its mission and treading the perilous pathway towards profit at all costs. The Press Commission put forward the doctrine that the newspaper was a “public utility”, which by definition, was essential to the sustenance of the civic community. Needless to say, the newspaper industry had little patience with what it regarded as a particularly woolly-headed type of idealism.(5) And it has since managed to beat back every regulatory effort.

As the media environment became more complex, independent media commentators and journalism unions did their bit to advance the debate, and there were also significant developments, such as the “airwaves” judgment of 1995, that could potentially have had a bearing. Yet, with all the cumulative force that genuinely committed individuals and organisations could exert, the media industry just would not be deflected off its chosen trajectory.

Set up in 1966, abolished in 1975 and then revived three years later, the PCI has not had a great record in stamping its authority on media functioning. Its credibility has not been helped in any measure by a discrete tendency towards silence at junctures when the press has come under attack in India’s more troubled regions. In November 2008 for instance, the government of Jammu and Kashmir sent out a letter warning the media against publishing any “objectionable material”. Failure to comply, it warned, would lead to action under the applicable laws, including the withdrawal of government advertising. In June 2009, as civil disturbances swept the Kashmir valley, the state government, almost reflexively, blamed the media for fomenting the strife and banned all news broadcasts on local channels. The harsh measures continued right through to the following year and were considerably enhanced through the four months of mass demonstrations in 2010, when physical attacks on journalists became commonplace, newspapers were seized at the point of publication, and messaging services over the cellular network were completely banned.(6)

Areas of default

Except for announcing an inquiry in 2010 that did not get very far, the PCI remained indifferent through these events. So the question really must be asked if a body that fails to raise its voice when summary measures are used to muzzle the press, can be trusted to use such powers fairly. Katju thinks that he has the judicial wisdom and experience to ensure the fair application of such powers, but he has not convinced very many. Professional bodies such as the Editors’ Guild and industry lobbies from the print and broadcast sectors have already dismissed his proposals out of hand. And for former Chief Justice J.S. Verma, his locutions seem to suggest an “authoritarian” tendency.

Little progress is likely if the debate remains confined within a paradigm of controls and sanctions, to the neglect of possible modes of allowing more voices the opportunity to be heard. Access to the blogosphere is still reserved for those of relative privilege and the alternative message that has begun to spread through this medium, though valuable, is limited in its diffusion. An official discourse that emphasises control and conformity, has effectively banished the 1995 “airwaves judgment” from the central position it deserves in the debate. Public service broadcasting has languished and the ridiculous prohibition of news content over FM radio continues to be in force.

A PCI that endlessly rehearses old themes about an augmentation of its powers, serves little purpose today. A more constructive engagement would look at true measures of public empowerment, rather than the aggrandisement of a highly diminished body.


Footnotes
(1) The Hoot’s letter of apology and retraction can be found at the following link: http://www.thehoot.org/web/home/story.php?storyid=5549&mod=1&pg=1§ionId=5&valid=true.
(2) The ethical issues involved were in fact not dealt with in any manner at all by the media, aside from a report in The Hindu on October 13, which raised some of the questions and sought at least preliminary clarifications from the Times Now management. See “Attack on Prashant Bhushan captured on camera”, The Hindu, Delhi, October 13, p 10; available at: http://www.thehindu.com/todays-paper/tp-national/article2532909.ece.
(3)See the transcript of the interview at the website of the channel concerned: http://ibnlive.in.com/news/media-deliberately-dividing-people-pci-chief/197593-3.html.
(4) See A.G. Noorani, “The Press Council: An Expensive Irrelevance”, Economic and Political Weekly, January 3, 2009, pp 13-5, for the substance of what has been said earlier on these issues.
(5) This is a story that is adequately told by G.S. Bhargava, The Press in India: An Overview, National Book Trust, Delhi, 2005.
(6) The International Federation of Journalists has come out with situation reports on the media in Kashmir through these three years. These are available currently at: http://asiapacific.ifj.org/assets/docs/118/188/54dea76-41a4dbc.pdf; http://asiapacific.ifj.org/assets/docs/126/113/2fe407e-23c0e71.pdf; http://asiapacific.ifj.org/en/articles/blaming-the-messenger-media-under-pressure-in-jammu-and-kashmir.