Tuesday, May 01, 2012

Supreme Infallibility and the Follies of the Media

The quest for a world free of error

Perhaps because the media touches several lives, everybody feels entitled to express an opinion on it and offer attentive and solicitous counsel. Or perhaps it is because of all the signs it displays of arrested development, of a failure to grow out of impetuous adolescence into mature adulthood. For these among diverse other reasons, the Indian media has had a surfeit of counsel in recent times on how it should conduct itself, some indulgent, some stern, some acerbic and scolding.

These informal lessons in fidelity to fact and moral rectitude never seemed likely to threaten the relative autonomy of the Indian media. There have been occasions when the social dialogue through the media has led to the perilous possibility of a withdrawal of citizen consent to the State – as with how the media brought home to the news consumer, images of the terrorist siege of southern Mumbai in November 2008 and the Anna Hazare movement of 2011.

Unsurprisingly, in both instances, there were loud murmurs in official circles that statutory regulation over the media was long overdue. Yet the threats were held in abeyance: in the former case, because the media industry brought in what seemed a comprehensive self-regulatory code and mechanisms to enforce it; in the latter, because the ire of elected representatives was easily diverted to the injudicious and intemperate language Anna Hazare’s acolytes had used. The principal offenders were easily identifiable and the role of the media in transmitting and amplifying their message, was forgotten because the political establishment seemed disinclined to open two fronts in the battle to salvage a badly bruised image.

Matters may have remained at this uneasy stalemate had not the media then gone on -- with its boisterous and bumptious conduct -- to irk the highest judicial bench in the country. For reasons that still remain to be studied in depth, the media has been much more deferential towards the authority of the robed eminences in the judiciary than those who muddy themselves seeking to win popular endorsement through the electoral process. In part, this is a reflection of the power to punish for contempt, a weapon that the judiciary holds in reserve, much like legislative privilege remains uncodified and susceptible at all times to arbitrary interpretation.

Despite the deference it has always enjoyed, the Supreme Court decided at some point, that it had just about had enough. This fervour for reforming media practices was provoked by the complaint lodged by a senior Supreme Court lawyer, over reports in February which gave out details of a plan that the finance and real estate conglomerate, Sahara, had submitted to the market regulator – the Securities and Exchange Board of India (SEBI) – on how it intended to secure investor interest on a bunch of public deposits. The matter was in appeal before the Supreme Court, following a June 2011 order by SEBI, upheld by the Securities Appellate Tribunal (SAT) in October, ordering Sahara to refund some Rs 17,400 crore to the public after evidence emerged of the deposits being unauthorised and since being diverted to undeclared uses.

As it began hearing the appeal, the Supreme Court was told by the counsel for SEBI, that Sahara had floated a newly minted financial instrument – which it called the optional fully convertible debenture (OFCD) – through two group companies that did not have adequate capital to service liabilities incurred. On January 20, the Supreme Court directed the Sahara group to explain within three weeks how it intended to ensure the security of the funds mobilised. Two options were given: to either furnish a bank guarantee for the sum involved, or set aside a sufficient quantum of otherwise unencumbered assets. Evidently, the Sahara group chose the latter option and set out a list of its assets together with their valuations in a communication to SEBI, which would in the normal course, have found its way to the Supreme Court registry, to be placed before the bench hearing the case.

Sahara felt aggrieved when some details of this supposedly privileged communication were broadcast by a news channel. Petitioned for redress, the Supreme Court sternly reprimanded SEBI for its breach of propriety without really seeking the identity of the offending official. It then went on – without a clear warrant – to seek a written complaint which it intended to use as basis for evolving norms on media reporting of matters under judicial consideration.

From a public interest point of view, the reaction of the Supreme Court was strange and mystifying. Considered in its bare essentials, the Sahara-SEBI matter was one rife with several asymmetries. On one side was a regulator distracted by a multitude of cases in an environment of extreme market volatility and lax standards of corporate accountability. On the other was a corporate entity with a large advertising budget and ample recourse to other forms of “hidden persuasion”: such as a long-term sponsorship deal for the Indian cricket team. At stake were the savings of an estimated 24 million investors who had, on the basis of media reports and the efforts of Sahara’s sales force, chosen to put funds into a savings instrument of uncertain provenance.

When the media narrative is itself, in ever increasing part, constructed under the stimulus of the advertising outlays provided by the corporate sector – and by the undeniable allure of cricket as an environment within which to frame the most lucrative advertisements – there is reason to believe that it may not afford sufficient protection to investor interests. The larger context is of a volatile market where fortunes are made and unmade in days and savings multiplied or wiped out. And within this context, the principal sponsor of Indian cricket had also introduced a financial instrument of rather befuddling complexity, and insisted that it was outside SEBI’s jurisdiction in not being a “security” in any defined sense. The only redress available in the circumstances was a slow-moving judicial process which could ultimately be relied on to do the right thing, but could not secure against potential damage to investor interests in the interim.

Clearly, every glimmer of light in the obscure world of high finance would serve a purpose in raising public awareness. The putative damage that the Sahara cause suffers in the judicial forum is to be offset against the public interest served. Unsurprisingly, while eager to seek restitution for his client, the senior counsel representing Sahara, Fali S. Nariman proved amply sceptical of the judicial ambition to leverage his specific and purely contingent complaint into an overarching set of rules governing the rights of the press. The argument was very simple: press freedom was a guarantee under the fundamental rights and any abridgment proposed in the principle would involve a conflict with the “basic structure” of the constitution. Enacting a specific law for the press moreover, was not within the jurisdiction of the Supreme Court. To the argument from the bench that the Supreme Court was not embarking upon the path of legislation, but merely laying out a comprehensive set of rules, the riposte was very clear: rules involving punitive sanctions against the press would be equivalent to laws, which were beyond the powers of the Supreme Court to lay down.

By this time, a Supreme Court bench headed by the Chief Justice of India, S.H. Kapadia, had swept up all complaints received about media practice over recent, remembered history and assembled them into a common docket. In August 2011, senior counsel Harish Salve had protested before the Supreme Court about reports appearing over two successive days, which grossly misrepresented his arguments in a matter under active judicial consideration. Appearing for Vodafone in a matter involving potential tax liability after its takeover of the Indian assets of another global telecom player, Hutchison Whampoa, Salve argued that his client had done no more than prudent tax planning or “avoidance”. This had been rendered in reports attributed to the news agency, the Press Trust of India (PTI), as “tax evasion”.

The agency in question responded to the judicial stricture by issuing a retraction and an apology. Informally, the PTI management also sent word that the reporter who had bungled his rendering of the fundamentals of taxation, had been taken off the Supreme Court beat.

Another matter that the Supreme Court chose to resurrect involved senior counsel K.K. Venugopal’s complaint to the bench in January 2010, that his arguments on behalf of a senior bureaucrat whose appointment as Chief Vigilance Commissioner was under judicial review, had been characterised as “absurd” by the Times Now channel. The Supreme Court had asked for a written complaint which was reportedly not submitted following an apology from the news channel.

In resuming its consideration of these seemingly settled matters, the Supreme Court has clearly signalled that ex post remedies – apology, retraction and administrative correction by impugned media organisations – are of little use when media freedom becomes a potential hazard to the administration of justice. What is required, in the perception of the highest judicial bench, is a set of rules that would impose prior conditions on modes of media reporting.

In part because of the expansive scope of the agenda the Supreme Court had taken on, its hearings stepped very rapidly beyond the narrow confines of the grievances of senior lawyers and wealthy corporate litigants. Another family of cases was drawn into the orbit, related explicitly to the rights of individuals facing criminal trials. These included media coverage of the Aarushi Talwar double murder of May 2008, which was seen to have prejudged the guilt of the parents of a murdered child.

Also brought within the hearings was a petition moved against the weekly newsmagazine India Today, for publishing a purported interview with one of the accused in the string of urban terrorist strikes of 2008. The person concerned – who fought the recent municipal elections in Delhi from jail -- had been picked up by the police after the September 2008 “encounter” at Batla House in Delhi, in which two others from his putative “terrorist cell” were eliminated. India Today’s story, which appeared at a time when the arrested person was being denied family access and legal counsel, was seen to be doctored in accordance with the diktat of the police force and to seriously undermine his chance of a fair trial.

The logic of the judicial quest for a media domain free of error, impelled a further expansion of the hearings, into the consideration of a civil society organisation’s petition seeking restraints on the telecast of content with explicit images of sex and violence. Having assembled this unwieldy docket, the Supreme Court was told by a galaxy of senior lawyers that it was engaged in a futile quest. Shanti Bhushan suggested that the most constructive course for the Chief Justice would be to dissolve the bench, as a predecessor, A.N. Ray, had done when his effort to write the doctrine of the “basic structure” out of the constitutional scheme floundered in 1975. Other senior lawyers – Anil Divan and Rajeev Dhavan – were emphatic in underlining the lack of a constitutional mandate for the Supreme Court’s effort to narrowly define and circumscribe Article 19, which guaranteed the right to free speech.

Senior advocates P.P. Rao and K.K. Venugopal provided qualified endorsements of the Supreme Court endeavour. Rao pointed out that the mandate of the Press Council of India (PCI) established the principle of self-regulation by the print media, which needed to be extended to the electronic media. Venugopal offered the opinion that the rights assured by article 19 could conceivably be regarded as less than absolute when there was a perceived conflict with the rights to life and liberty, guaranteed under article 21. The PCI in an institutional intervention, affirmed that the positive value of a code of conduct would stem from its moral rather than punitive force.

A crucial element that was missed out in this ensemble of legal wisdom, is the distinction between prior restraint and post facto correction. Prior restraint of any sort on the right to free speech is considered to be the indispensable prop of an authoritarian political dispensation – indeed as the first step towards censorship. Post facto correction in accordance with clearly defined legal norms, in contrast, is an indispensable element in any democratic system, where liberty is exercised with responsibility.

Unfortunately, just as the Supreme Court was hearing arguments about its intent to introduce a media code, the Lucknow Bench of the Allahabad High Court issued a decree which seemed suspiciously like a prior restriction. Hearing a petition from ironically enough, a “right to information” activist based in Lucknow, the bench banned any form of media coverage on the January 16 military exercises conducted by units of the Indian army based in Hissar in Haryana and Mathura in Uttar Pradesh. These had been reported in an overblown and highly colourable fashion by the Indian Express on April 4, as evidence of serious strife between the military command and the civilian political leadership.

In the furore that ensued after the Indian Express report, the newspaper was held guilty at worst, of extreme gullibility and poor editorial judgment. The source of the alarmist report was identified – accurately by all accounts – in elements within the intelligence services, which had established a dubious alliance with sections of the higher military command to bring down a serving chief of staff of the Indian army. In decreeing its ban on any further reporting on the matter, the Allahabad High Court held that the “issue of movement of Army troops is not a matter of the kind which requires public discussion at the cost of official secrecy and the security of the country”.

The immediate impact of the order was to prohibit considered analysis or reporting on the public spat in the higher military command and its possible ramifications for the integrity of defence procurement decisions. A matter of legitimate public concern, was through a panicky and hyper-sensitive judicial order, rendered into a state secret.

Reactions to the Allahabad High Court order have not rendered the scenario any clearer. PCI Chairman Justice Markandey Katju, resolved to challenge the order in the Supreme Court, but in a talk-show on primetime news -- where he frontally challenged a former army chief, V.P. Malik, to “grow up” -- conceded that it may have merit, even in peacetime, when involving troop movements in border regions.
This picture of what is right and wrong, rendered by the PCI chairman, is rather vacuous because it is innocent of fact. Under a protocol agreed in 1988 to ensure that mutual misconstrual does not end in an outright shooting war, the first agency to be notified of peacetime Indian troop movements on the border would be the Directorate of Military Operations of the Pakistan army. Further, all media reports on troop movements and peacetime military exercises are based on attributable briefings by spokesmen of the defence forces. The Indian Express report of April 4 was a conspicuous exception because of its origin in an unsavoury contest between rival factions seeking to control defence procurement procedures. To ban media content on the matter is to ban legitimate citizen engagement with decisions on defence procurement, made on the backs of loyal taxpayers.

To retain any level of public support for its project to enact a media code, the Supreme Court would need to firmly put down this effort by the Allahabad High Court to silence legitimate debate. That matter though, will not swim within the span of attention of the highest bench, till it is forcibly introduced. And in this legal vacuum, several other modes of silencing legitimate public debate have flourished, which have utilised archaic provisions of the law, such as “official secrets”, “sedition” and various others.

“Reasonable restrictions” on the right to free speech were introduced under the first amendment to the Indian constitution. Yet till date, there is no clear or consistent norm laid down by the judiciary on how “reasonableness” is to be assessed. In this conceptual vacuum, a variety of abuses have flourished against legitimate press reporting and exercises of the right to free speech.

In June 2008, the commissioner of police in the city of Ahmedabad, brought charges of sedition and criminal conspiracy against two journalists and the Times of India. This followed a series of reports in the newspaper, noting serious complaints against the newly appointed police official and indicating that the inconclusive inquiries that had followed, made him ineligible for the top post in the city. The two journalists and the publisher were granted bail pending the full hearing of the case. Evidently, the purpose of the aggrieved police official was not to punish, but to silence the public discourse. It was a form of censorship through legal injunction, which the Gujarat High Court, as this article goes to press, has quashed, though the longer term implications remain to be determined.

K.K. Shahina, then a reporter with the weekly news magazine Tehelka, was charged with criminal conspiracy to intimidate witnesses, after a story she published cast doubt at the prosecution of a prominent Islamic cleric and political figure on terrorism charges in December 2010. Shahina’s story was based on interviews with key witnesses cited in the case made by Karnataka state police against Abdul Nasar Mahdani, an Islamic cleric who heads the Peoples’ Democratic Party, active mainly in neighbouring Kerala. Mahdani has been arrested and charged by Karnataka police for conspiracy to detonate a series of low-intensity bombs in Bengaluru city in July 2008. Shahina’s story cited several of the witnesses named by the Karnataka police as saying that their testimony has been misinterpreted or distorted in making out the charges against Mahdani. An example of investigative reporting in short, was transformed into the basis for criminal prosecution against the journalist who had done the hard work to bring this abuse of power to light.

In May 2011, Tarakant Dwivedi, alias Akela, then a reporter with Mumbai city’s morning tabloid, Midday, was arrested under India’s Official Secrets Act, after he reported on poor security conditions in the metropolis’ main railway terminus. The Chhatrapati Shivaji Terminus (referred to in common local parlance as VT), a hub of both suburban and long-distance railway traffic, was among the first targets to be hit in the terrorist attack on Mumbai that began on November 26, 2008. Soon afterwards, the Government Railway Police (GRP), tasked with maintaining security at all major facilities of the Indian Railways, procured an array of sophisticated weaponry to deal with extreme future contingencies. On June 28, 2010, the daily Mumbai Mirror published a report under Akela’s byline, headlined “Leaks in CST armoury put new anti-terror arms under threat”. The report documented how newly procured equipment was being stored in a room with a leaky roof, making their efficacy in an emergency situation highly questionable. Akela’s arrest, itself conducted under highly suspicious circumstances, was believed to be direct retribution for this reporting.

Silencing the media discourse is not so much the issue here, as allowing it more freedom and space. When the judiciary proves unable to curb censorship through criminal prosecution of public-spirited journalism, but shows inordinate concern over its own image as projected through the media, it ceases being an institution acting for the larger good. And it could well take into account the dictum that the only remedy for the abuse of free speech is to allow even freer speech. There is no better antidote to the irresponsible exercise of free speech by the corporate media than to accord the right to those denied it.

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