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.
Tuesday, November 15, 2011
Monday, September 26, 2011
Palestine Statehood: New Hope Amid Threats
The new spirit of assertion by a hitherto supine leadership and the degree of support from governments across the world, speak of a dawn of hope for the Palestinian people. The bid for a unilateral declaration of independence from Israeli occupation, which the Palestinians hope will be recognised by the United Nations, emerges from the wider ferment in the Arab world. But because it involves Israel, it will be judged by a different set of standards. It embodies the spirit of hope and resistance. Yet, it could just as well, be the first stage in a new phase of confrontation, more bitter than anything in the past.
The dangers are embodied in the figure of Israeli Prime Minister Binyamin Netanyahu, who basks in the glow of adulation from the U.S. Congress and self-righteously demands the unquestioning loyalty of what he, with surpassing arrogance, calls the “civilised world”. Unqualified endorsement of the creeping annexation of all Palestine – save the Gaza which would continue being the world’s largest open-air prison – is the minimum he demands, as blood price for past atrocities the Jewish people have suffered in the bastions of civilisation.
Netanyahu has ever since assuming office as Prime Minister of Israel, sought assiduously to change the subject: from the need for justice in Palestine to the putative nuclear threat from Iran; from the legitimate demand of those made refugees several times over by Zionist ethnic cleansing, to the imperative that the world recognise the eternally Jewish character of Israel (and thus Palestine). Netanyahu’s recalcitrance would be a sufficient threat to world peace were there not greater hazards lurking in the cabinet of right-wing extremists he has assembled.
Avigdor Lieberman, foreign minister of Israel under the power-sharing deal that keeps Netanyahu in office, is the other face of this hazard. A person who does not hesitate to use metaphors from the animal world in referring to the Palestinians, Lieberman sees no irony in saying in the very next breath that “Israel is now on the frontline of a battle involving not just the Jewish people but all Western civilisation”. His warning to the Palestinians is an unabashed assertion of imperial mastery: the relative stability of the last two years, with high rates of growth and relatively unimpeded movement, would be a thing of the past if the Palestinians were to persist with the intent to declare statehood.
What Israel demands, the U.S. soon fulfils. In his speech before the U.N. General Assembly on September 21, just hours after mass rallies were held all over occupied Palestine to celebrate the push towards independence, U.S. President Barack Obama warned against the entire enterprise. It was in part, a disavowal of much he had said at the same forum exactly a year before. Acknowledging as much, he reaffirmed his belief in a Palestinian state, but underlined that this was a moral imperative that could only be realised “between Israelis and Palestinians themselves”.
The meaning is clear: the final contours of a settlement should set in stone for eternity, the asymmetric power relations between the Israelis and the Palestinians. A Palestinian “state”, simply because it involves a relationship of equality, is an unthinkable for Israel. What the world sees as a moral imperative is for Israel an existential threat. In addressing this dilemma, Obama has to make frequent concessions to the demands of justice and just as frequently recant.
Obama’s inner councils are restive at the indignity of the situation but uneasily aware that there is no way out, given the conflict between the configurations of domestic politics and the compulsions of maintaining a pretence of global leadership. Top cabinet officials in the U.S. may denounce Netanyahu in private as an ungrateful and mendacious ally. But any such statement in public would unleash a firestorm of rage from the far-right, unrepentant despite Iraq and energised by recent economic woes.
The far-right extremist John Bolton, who even a Republican Congress found inappropriate for the post of ambassador to the U.N., has resurrected the imperial fantasies the world hoped had died with the Bush administration: extinguish the Iranian threat through the use of force, pull out of the U.N. and cut all funding if it goes ahead with recognising a Palestinian state. His advocacy of a muscular U.S. military posture around the world – fanciful in the context of current economic realities, but still anchored in a semblance of rationality – blends with the messianic visions of those who are today the leading contenders for leadership of the Republican party. Israel is no mere ally in this perception, but a divinely ordained cause, nothing less than a fundamental act of commitment to good over evil.
The mood is mirrored in uncanny and disturbing ways in Israel, where economic difficulties – typified by growing inequality and rampant inflation – have exacerbated already sharp social divisions. Resentment is rising at the political influence of the extremist settlers, but so is the sense of siege, as popular attitudes darken in Turkey, Egypt and Jordan, till now considered Israel’s more dependable friends. It is a context in which political forces that successfully evade hard questions and tap the most deep-seated resentments – i.e., the most fanatical elements -- have a natural advantage. If the U.S.-Israel axis was for years an impediment to justice in Palestine, the prospective alignment of the extremist factions in these countries could soon become an active threat to world peace.
The dangers are embodied in the figure of Israeli Prime Minister Binyamin Netanyahu, who basks in the glow of adulation from the U.S. Congress and self-righteously demands the unquestioning loyalty of what he, with surpassing arrogance, calls the “civilised world”. Unqualified endorsement of the creeping annexation of all Palestine – save the Gaza which would continue being the world’s largest open-air prison – is the minimum he demands, as blood price for past atrocities the Jewish people have suffered in the bastions of civilisation.
Netanyahu has ever since assuming office as Prime Minister of Israel, sought assiduously to change the subject: from the need for justice in Palestine to the putative nuclear threat from Iran; from the legitimate demand of those made refugees several times over by Zionist ethnic cleansing, to the imperative that the world recognise the eternally Jewish character of Israel (and thus Palestine). Netanyahu’s recalcitrance would be a sufficient threat to world peace were there not greater hazards lurking in the cabinet of right-wing extremists he has assembled.
Avigdor Lieberman, foreign minister of Israel under the power-sharing deal that keeps Netanyahu in office, is the other face of this hazard. A person who does not hesitate to use metaphors from the animal world in referring to the Palestinians, Lieberman sees no irony in saying in the very next breath that “Israel is now on the frontline of a battle involving not just the Jewish people but all Western civilisation”. His warning to the Palestinians is an unabashed assertion of imperial mastery: the relative stability of the last two years, with high rates of growth and relatively unimpeded movement, would be a thing of the past if the Palestinians were to persist with the intent to declare statehood.
What Israel demands, the U.S. soon fulfils. In his speech before the U.N. General Assembly on September 21, just hours after mass rallies were held all over occupied Palestine to celebrate the push towards independence, U.S. President Barack Obama warned against the entire enterprise. It was in part, a disavowal of much he had said at the same forum exactly a year before. Acknowledging as much, he reaffirmed his belief in a Palestinian state, but underlined that this was a moral imperative that could only be realised “between Israelis and Palestinians themselves”.
The meaning is clear: the final contours of a settlement should set in stone for eternity, the asymmetric power relations between the Israelis and the Palestinians. A Palestinian “state”, simply because it involves a relationship of equality, is an unthinkable for Israel. What the world sees as a moral imperative is for Israel an existential threat. In addressing this dilemma, Obama has to make frequent concessions to the demands of justice and just as frequently recant.
Obama’s inner councils are restive at the indignity of the situation but uneasily aware that there is no way out, given the conflict between the configurations of domestic politics and the compulsions of maintaining a pretence of global leadership. Top cabinet officials in the U.S. may denounce Netanyahu in private as an ungrateful and mendacious ally. But any such statement in public would unleash a firestorm of rage from the far-right, unrepentant despite Iraq and energised by recent economic woes.
The far-right extremist John Bolton, who even a Republican Congress found inappropriate for the post of ambassador to the U.N., has resurrected the imperial fantasies the world hoped had died with the Bush administration: extinguish the Iranian threat through the use of force, pull out of the U.N. and cut all funding if it goes ahead with recognising a Palestinian state. His advocacy of a muscular U.S. military posture around the world – fanciful in the context of current economic realities, but still anchored in a semblance of rationality – blends with the messianic visions of those who are today the leading contenders for leadership of the Republican party. Israel is no mere ally in this perception, but a divinely ordained cause, nothing less than a fundamental act of commitment to good over evil.
The mood is mirrored in uncanny and disturbing ways in Israel, where economic difficulties – typified by growing inequality and rampant inflation – have exacerbated already sharp social divisions. Resentment is rising at the political influence of the extremist settlers, but so is the sense of siege, as popular attitudes darken in Turkey, Egypt and Jordan, till now considered Israel’s more dependable friends. It is a context in which political forces that successfully evade hard questions and tap the most deep-seated resentments – i.e., the most fanatical elements -- have a natural advantage. If the U.S.-Israel axis was for years an impediment to justice in Palestine, the prospective alignment of the extremist factions in these countries could soon become an active threat to world peace.
Saturday, September 17, 2011
Trouble in The Hindu: Fourth generation of a newspaper dynasty founders in search of a new business paradigm
It is a family that has always taken pride in its unity, discretion and commitment to public causes -- a family that has for four generations from its home base in Chennai (formerly Madras) published The Hindu, one of India’s most widely-recognised and respected newspapers. The Hindu has itself been in print since 1878 – longer than all other Indian newspapers, except The Times of India of Mumbai (Bombay) and The Statesman of Kolkata (Calcutta).
Yet The Hindu stands out even in this company in having been under the control of a single family – beginning with Kasturi Ranga Iyengar and now continuing with his great grand-children – since 1905. It is a family that has another unique claim among newspaper dynasties – through four generations, it has not ventured into lines of business that may conflict with core commitments. Individual members may have gone into their own lines of business, but never with a conspicuous impact on the principles of editorial detachment and fairness that the newspaper was loudly committed to.
The façade of family unity had been breached on occasion, notably during junctures when consensus decisions on editorial and management control have been called for. These eruptions, most notably in 1990 and then again in 2003, pointed to stresses within the family owned newspaper as the number of stakeholders multiplied with each succeeding generation. But each eruption was contained and a new way found to continue with business as usual. It was expedient as tactics, but given the play of bristling egos within, not assured of enduring success as strategy. The intense discord that emerged to public view in March 2010 was perhaps, long foretold.
Events have since played out towards a bitter parting of ways between two factions within the family. A decisive moment came in April 2011, with the board of directors of the proprietary company of The Hindu, Kasturi and Sons Ltd (KSL), deciding by a majority of seven to five, to hand over the editor’s post to a person from outside the family.
The minority directors made no secret of their ire and obtained a stay on implementation of the decision from the Company Law Board (CLB), a statutory body dealing with matters of corporate governance. Relief for the minority proved short-lived, with the majority group successfully intervening first in the High Court based in Chennai to get the stay vacated and then having an appeal in the Supreme Court summarily dismissed without prejudice to the CLB’s final determination.
In July, Siddharth Varadarajan, a well-respected professional who was at the time bureau chief in Delhi, was formally appointed editor by the board, triggering off angry recriminations and the collective resignation (retirement in one case) of the minority faction in the KSL board from all executive positions. The minority five have with obvious intent, underlined their intention to continue as directors, pointing towards more turbulence in the boardroom in years ahead.
At the centre of the swirling controversy is N. Ram, editor-in-chief of the newspaper group and the most senior among the fourth generation of Kasturi Ranga Iyengar’s descendants to be actively associated with the business. With two younger brothers, N. Murali and N. Ravi, being respectively managing director of KSL and editor of The Hindu, Ram’s branch of the Kasturi family was dominant among the four that have shareholder interests in the newspaper. Murali has been his ally through earlier arguments over editorial control, though Ravi had in both 1990 and 2003, taken the other side.
As recorded in his letter of retirement and in recent statements made to the press -- in seeming contradiction to his public image of quiet efficiency and discretion -- Murali claims to have initiated in September 2009, a move to put in place norms on corporate governance and management succession on both the business and editorial side. The objective was to ensure that all shareholders got a fair share of responsibility and rewards. The basic premise was that all family members would retire from editorial and management positions at the age of 65.
Ram was under this plan, designated to retire in May 2010, to be succeeded as editor-in-chief by Ravi. In terms of the various publications under the group, Malini Parthasarathy -- a second cousin of Ram’s -- was to be editor of The Hindu and other top editorial positions, in the business daily, the sports weekly and fortnightly newsmagazine, were to be assigned within the four family branches, Positions on the business side were to be reserved for branches without sufficient representation on the editorial side.
Ravi and Parthasarathy had run The Hindu since 1991 and were as of 2003, designated as editor and executive editor. They then lost effective control, though not their formal designations, with Ram’s appointment, by a majority of eight to four in the board of directors, as editor-in-chief. The newspaper has since then moved on, though not with its accustomed placidity, since Ram’s very distinct editorial postures -- on India’s left-wing politics, China, Sri Lanka, not to mention one among the two parties that presides over the politics of his home state of Tamil Nadu – have been widely dissected and, for the most part, commented upon unfavourably.
The 2009 pact within the four branches of the KSL family, if at all there was one, proved rather ephemeral. In January 2010, Ram appointed three members of the fifth-generation, including his own daughter, to key positions in overseas bureaus of the newspaper group. The decision he later claimed, was approved without a “murmur of dissent” by the board of directors. Three shareholders though, including the children of Murali and Ravi, put on record their reservations in a strongly worded letter to the board: “It is essential that the board considers issues of corporate governance and the appointment of family members seriously .. The inequitable and arbitrary system that currently exists is not only unfair to non-family employees but to shareholders as a class as well. If there is ever any intention of instituting sound and modern corporate governance practices and discontinuing the feudal system that exists, then issues such as the ones we have raised need to be addressed squarely, honestly and without fear or favour”.
Concord was obviously not the prevalent mood when the KSL board assembled on March 20 last year, with editorial succession being among the principal items on the agenda. Ram assembled a bare majority in the twelve-member board to strike down Murali’s proposal that family members retire at 65 from active editorial and management roles. The board then appointed K. Balaji, a first cousin of Ram’s and Murali’s, as Managing Director, designating Murali as Senior Managing Director – a rather implausible title that barely camouflaged the very real effort to strip him of all substantive authority.
The story emerged in public view at this point, with the Indian Express – a newspaper which competes with The Hindu in a few markets, though not very effectively – on March 25 carrying a story headlined “Battle for control breaks out in The Hindu very divided family”.
Within hours of the Indian Express edition for the day hitting the stands, Ram responded with a news story on The Hindu website, assuring the author of the story, and the editor and publisher of the Indian Express, with civil and criminal defamation action.
It was a curiously petulant and undignified response by a journalist and public figure who has long been demanding that criminal law should not under any circumstances be applicable to the supposed offence of defamation. Rather quickly, Ravi responded with a posting on his twitter-page, asking how The Hindu, which “has taken a strong stand against criminal defamation”, could use it as a “threat to silence journalists”. Parthasarathy likewise, tweeted that journalists should never be “afraid of public scrutiny”.
In a later posting, Parthasarathy – one among three sisters who were the first women in the four-generation long history of the company to assume active management positions – spoke of rampant misogyny to which she would never again fall victim.
A blog-site had meanwhile come up, titled “Save the Hindu Newspaper”, promoted by persons with an overt posture against Ram. For the venerable old newspaper, which had with its sedate and somnolent style, earned a sobriquet likening it to Mahavishnu, the most remote, inscrutable and unattainable deity within the Hindu pantheon, the harsh glare of the public limelight must have been altogether unwelcome.
Murali secured a ruling from the CLB which set aside the changes on the management side. But Ram continued to have a majority in the board, which he used in April 2011 to push through Varadarajan’s appointment as editor.
Ravi responded by addressing a letter to the staff of The Hindu, seeking their understanding as the institution entered “a second, and what might turn out to be a prolonged, phase of conflict and turbulence”. Ram’s refusal to honour the agreed age of retirement, he said, had become untenable with the CLB ruling. His response it seemed, was to take “all the editorial directors – most (of whom) are in their 50s – into retirement with him with a scorched earth policy to ensure that no one in the family succeeds him”.
Ravi contrasted the image and performance of the newspaper in the years between 1991 and 2003 – when he actually exercised the authority of the editor – with what he described as a decline in public esteem since. The “distortions” that had crept into the “editorial framework”, he warned, would be “entrenched” with the decision of the board. “In the recent past, editorial integrity, he said, had "been severely compromised and news coverage linked directly to advertising”. The frequent public engagements of the editor-in-chief had also gained coverage in the newspaper “with a regularity that would put corporate house journals to shame”.
Ravi’s letter of resignation in July was even angrier in its tone, with references to the “deceit, lack of probity and bad faith” that had crept into “dealings among family members on the board with a clique being formed through exchange of unmerited favours”.
Murali in a letter written at the same time, spoke of his “anger, anguish and sadness at the horrible happenings” in the company and the “crude display of factionalism, vindictiveness, vote-bank and opportunistic politics and personal agendas by various board members”. These had seriously damaged the credibility of the “family run newspaper” and also “severely impaired the competitive ability and profitability of the whole enterprise”. If the “faction of the board” that had won the last rounds of battle were to persist “in its unsavoury ways”, then the “iconic 132-year old newspaper would have a very bleak future indeed”.
Parthasarathy the same day sent in her resignation, condemning the “strong family jealousies and prejudice” that had “intervened to pull away” all her “editorial responsibilities”. She had since, in her narration, subsequently endured “daily humiliations” in the belief that the board would finally do what was fair and just. But with her “legitimate professional aspirations” being “belittled and rudely rebuffed”, she had no alternative but resignation.
Nirmala Lakshman, sister of Malini Parthasarathy, wrote of her “deep sense of disappointment and sadness” at the attempt to reorganise the company “with little foresight, complete insensitivity, and a lack of grace and decency”. “With competitors making alarming inroads into our territory, functioning in this cavalier manner and playing the numbers game does not bode well for the future of The Hindu”, she warned.
Though the finances of The Hindu remain an area of opacity, there are sufficient indications that the newspaper group is under pressure now like never before in its history. The ongoing economic recession has cut deeply into bottomline figures across the industry, and advertisement revenue for The Hindu group is believed to have shrunk 40 percent in the course of the 2008 downturn. There has been a recovery since then, but the profit after tax is now estimated at less than a third of what it was in 2003.
All through its hundred year history at the helm of The Hindu, the Kasturi Ranga Iyengar family has stayed close to the knitting, identifying the newspaper as its core commitment, which would not be diluted by loyalty to any other business interest. The family has been seriously involved in sports and culture, though without implicating the newspaper as a whole in individual commitments. There was a project to develop a golf-course on the coastal sands between Chennai and the historic city of Mahabalipuram to the south, which absorbed much of the resources of the business group and was identified with one among the four branches of the family. The project collapsed without leaving a trace and there have been murmurs within the family branches that were not involved, about the serious lack of accountability for this colossal business misadventure.
In recent years, The Hindu has begun rather hesitantly, to get engaged in the TV news channel business, though with characteristic caution and conservatism. As competition built up – with the entry of the Deccan Chronicle into Chennai and especially with the Times of India launching an edition from the city – there were credible reports that KSL had begun exploring external sources of finance and had perhaps reconciled itself to selling a minority stake to a foreign investor.
The fragmentation of the family makes a decision arrived at with serious strategic forethought less likely than one made in pique. What this would mean for the future of one of India’s most respected newspapers, still remains a matter of speculation.
Yet The Hindu stands out even in this company in having been under the control of a single family – beginning with Kasturi Ranga Iyengar and now continuing with his great grand-children – since 1905. It is a family that has another unique claim among newspaper dynasties – through four generations, it has not ventured into lines of business that may conflict with core commitments. Individual members may have gone into their own lines of business, but never with a conspicuous impact on the principles of editorial detachment and fairness that the newspaper was loudly committed to.
The façade of family unity had been breached on occasion, notably during junctures when consensus decisions on editorial and management control have been called for. These eruptions, most notably in 1990 and then again in 2003, pointed to stresses within the family owned newspaper as the number of stakeholders multiplied with each succeeding generation. But each eruption was contained and a new way found to continue with business as usual. It was expedient as tactics, but given the play of bristling egos within, not assured of enduring success as strategy. The intense discord that emerged to public view in March 2010 was perhaps, long foretold.
Events have since played out towards a bitter parting of ways between two factions within the family. A decisive moment came in April 2011, with the board of directors of the proprietary company of The Hindu, Kasturi and Sons Ltd (KSL), deciding by a majority of seven to five, to hand over the editor’s post to a person from outside the family.
The minority directors made no secret of their ire and obtained a stay on implementation of the decision from the Company Law Board (CLB), a statutory body dealing with matters of corporate governance. Relief for the minority proved short-lived, with the majority group successfully intervening first in the High Court based in Chennai to get the stay vacated and then having an appeal in the Supreme Court summarily dismissed without prejudice to the CLB’s final determination.
In July, Siddharth Varadarajan, a well-respected professional who was at the time bureau chief in Delhi, was formally appointed editor by the board, triggering off angry recriminations and the collective resignation (retirement in one case) of the minority faction in the KSL board from all executive positions. The minority five have with obvious intent, underlined their intention to continue as directors, pointing towards more turbulence in the boardroom in years ahead.
At the centre of the swirling controversy is N. Ram, editor-in-chief of the newspaper group and the most senior among the fourth generation of Kasturi Ranga Iyengar’s descendants to be actively associated with the business. With two younger brothers, N. Murali and N. Ravi, being respectively managing director of KSL and editor of The Hindu, Ram’s branch of the Kasturi family was dominant among the four that have shareholder interests in the newspaper. Murali has been his ally through earlier arguments over editorial control, though Ravi had in both 1990 and 2003, taken the other side.
As recorded in his letter of retirement and in recent statements made to the press -- in seeming contradiction to his public image of quiet efficiency and discretion -- Murali claims to have initiated in September 2009, a move to put in place norms on corporate governance and management succession on both the business and editorial side. The objective was to ensure that all shareholders got a fair share of responsibility and rewards. The basic premise was that all family members would retire from editorial and management positions at the age of 65.
Ram was under this plan, designated to retire in May 2010, to be succeeded as editor-in-chief by Ravi. In terms of the various publications under the group, Malini Parthasarathy -- a second cousin of Ram’s -- was to be editor of The Hindu and other top editorial positions, in the business daily, the sports weekly and fortnightly newsmagazine, were to be assigned within the four family branches, Positions on the business side were to be reserved for branches without sufficient representation on the editorial side.
Ravi and Parthasarathy had run The Hindu since 1991 and were as of 2003, designated as editor and executive editor. They then lost effective control, though not their formal designations, with Ram’s appointment, by a majority of eight to four in the board of directors, as editor-in-chief. The newspaper has since then moved on, though not with its accustomed placidity, since Ram’s very distinct editorial postures -- on India’s left-wing politics, China, Sri Lanka, not to mention one among the two parties that presides over the politics of his home state of Tamil Nadu – have been widely dissected and, for the most part, commented upon unfavourably.
The 2009 pact within the four branches of the KSL family, if at all there was one, proved rather ephemeral. In January 2010, Ram appointed three members of the fifth-generation, including his own daughter, to key positions in overseas bureaus of the newspaper group. The decision he later claimed, was approved without a “murmur of dissent” by the board of directors. Three shareholders though, including the children of Murali and Ravi, put on record their reservations in a strongly worded letter to the board: “It is essential that the board considers issues of corporate governance and the appointment of family members seriously .. The inequitable and arbitrary system that currently exists is not only unfair to non-family employees but to shareholders as a class as well. If there is ever any intention of instituting sound and modern corporate governance practices and discontinuing the feudal system that exists, then issues such as the ones we have raised need to be addressed squarely, honestly and without fear or favour”.
Concord was obviously not the prevalent mood when the KSL board assembled on March 20 last year, with editorial succession being among the principal items on the agenda. Ram assembled a bare majority in the twelve-member board to strike down Murali’s proposal that family members retire at 65 from active editorial and management roles. The board then appointed K. Balaji, a first cousin of Ram’s and Murali’s, as Managing Director, designating Murali as Senior Managing Director – a rather implausible title that barely camouflaged the very real effort to strip him of all substantive authority.
The story emerged in public view at this point, with the Indian Express – a newspaper which competes with The Hindu in a few markets, though not very effectively – on March 25 carrying a story headlined “Battle for control breaks out in The Hindu very divided family”.
Within hours of the Indian Express edition for the day hitting the stands, Ram responded with a news story on The Hindu website, assuring the author of the story, and the editor and publisher of the Indian Express, with civil and criminal defamation action.
It was a curiously petulant and undignified response by a journalist and public figure who has long been demanding that criminal law should not under any circumstances be applicable to the supposed offence of defamation. Rather quickly, Ravi responded with a posting on his twitter-page, asking how The Hindu, which “has taken a strong stand against criminal defamation”, could use it as a “threat to silence journalists”. Parthasarathy likewise, tweeted that journalists should never be “afraid of public scrutiny”.
In a later posting, Parthasarathy – one among three sisters who were the first women in the four-generation long history of the company to assume active management positions – spoke of rampant misogyny to which she would never again fall victim.
A blog-site had meanwhile come up, titled “Save the Hindu Newspaper”, promoted by persons with an overt posture against Ram. For the venerable old newspaper, which had with its sedate and somnolent style, earned a sobriquet likening it to Mahavishnu, the most remote, inscrutable and unattainable deity within the Hindu pantheon, the harsh glare of the public limelight must have been altogether unwelcome.
Murali secured a ruling from the CLB which set aside the changes on the management side. But Ram continued to have a majority in the board, which he used in April 2011 to push through Varadarajan’s appointment as editor.
Ravi responded by addressing a letter to the staff of The Hindu, seeking their understanding as the institution entered “a second, and what might turn out to be a prolonged, phase of conflict and turbulence”. Ram’s refusal to honour the agreed age of retirement, he said, had become untenable with the CLB ruling. His response it seemed, was to take “all the editorial directors – most (of whom) are in their 50s – into retirement with him with a scorched earth policy to ensure that no one in the family succeeds him”.
Ravi contrasted the image and performance of the newspaper in the years between 1991 and 2003 – when he actually exercised the authority of the editor – with what he described as a decline in public esteem since. The “distortions” that had crept into the “editorial framework”, he warned, would be “entrenched” with the decision of the board. “In the recent past, editorial integrity, he said, had "been severely compromised and news coverage linked directly to advertising”. The frequent public engagements of the editor-in-chief had also gained coverage in the newspaper “with a regularity that would put corporate house journals to shame”.
Ravi’s letter of resignation in July was even angrier in its tone, with references to the “deceit, lack of probity and bad faith” that had crept into “dealings among family members on the board with a clique being formed through exchange of unmerited favours”.
Murali in a letter written at the same time, spoke of his “anger, anguish and sadness at the horrible happenings” in the company and the “crude display of factionalism, vindictiveness, vote-bank and opportunistic politics and personal agendas by various board members”. These had seriously damaged the credibility of the “family run newspaper” and also “severely impaired the competitive ability and profitability of the whole enterprise”. If the “faction of the board” that had won the last rounds of battle were to persist “in its unsavoury ways”, then the “iconic 132-year old newspaper would have a very bleak future indeed”.
Parthasarathy the same day sent in her resignation, condemning the “strong family jealousies and prejudice” that had “intervened to pull away” all her “editorial responsibilities”. She had since, in her narration, subsequently endured “daily humiliations” in the belief that the board would finally do what was fair and just. But with her “legitimate professional aspirations” being “belittled and rudely rebuffed”, she had no alternative but resignation.
Nirmala Lakshman, sister of Malini Parthasarathy, wrote of her “deep sense of disappointment and sadness” at the attempt to reorganise the company “with little foresight, complete insensitivity, and a lack of grace and decency”. “With competitors making alarming inroads into our territory, functioning in this cavalier manner and playing the numbers game does not bode well for the future of The Hindu”, she warned.
Though the finances of The Hindu remain an area of opacity, there are sufficient indications that the newspaper group is under pressure now like never before in its history. The ongoing economic recession has cut deeply into bottomline figures across the industry, and advertisement revenue for The Hindu group is believed to have shrunk 40 percent in the course of the 2008 downturn. There has been a recovery since then, but the profit after tax is now estimated at less than a third of what it was in 2003.
All through its hundred year history at the helm of The Hindu, the Kasturi Ranga Iyengar family has stayed close to the knitting, identifying the newspaper as its core commitment, which would not be diluted by loyalty to any other business interest. The family has been seriously involved in sports and culture, though without implicating the newspaper as a whole in individual commitments. There was a project to develop a golf-course on the coastal sands between Chennai and the historic city of Mahabalipuram to the south, which absorbed much of the resources of the business group and was identified with one among the four branches of the family. The project collapsed without leaving a trace and there have been murmurs within the family branches that were not involved, about the serious lack of accountability for this colossal business misadventure.
In recent years, The Hindu has begun rather hesitantly, to get engaged in the TV news channel business, though with characteristic caution and conservatism. As competition built up – with the entry of the Deccan Chronicle into Chennai and especially with the Times of India launching an edition from the city – there were credible reports that KSL had begun exploring external sources of finance and had perhaps reconciled itself to selling a minority stake to a foreign investor.
The fragmentation of the family makes a decision arrived at with serious strategic forethought less likely than one made in pique. What this would mean for the future of one of India’s most respected newspapers, still remains a matter of speculation.
Monday, September 12, 2011
Media as Echo Chamber: Cluttering the Public Discourse on Corruption
Facts have a certain pliability about them. They can always be moulded in a shape that suits prior conceptions. At a discussion in Delhi on the Media and the Politics of Corruption on August 31 – just a few days after a hunger fast by Kisan Baburao Hazare, alias Anna, in the cause of a high-powered anti-corruption body had been called off -- two television news anchors, aware that their conduct through the thirteen-day long event was under scrutiny, chose aggression as the best strategy of self-defence. The coverage of Anna’s indefinite hunger fast at the Ramlila Maidan in Delhi, they said, was perfectly in tune with the magnitude of the event and its importance to all Indian citizens. The crowds that gathered at the venue of Anna’s fast were deeply stirred by the personal example set by the 74-year old social campaigner in the struggle against corruption. To call their fervour a contrivance of the media was an illusion of an out-of-touch intellectual elite, and an insult to basic human integrity and intelligence. The media’s only sin was that it had refused to be “embedded” with the government and uncritically parrot the official line.
Unsurprisingly, TV news anchors have consistently been in the forefront of the public debate about the media’s role – to further adapt Noam Chomsky’s adaptation of the famous Walter Lippmann term – in the “manufacture of dissent”. Another well-known TV personality sought to tackle this matter frontally in a newspaper column and arrived at the self-extenuating conclusion that the fault, if any, lay at the government’s doorstep, since it had consistently failed in putting across its point of view cogently and comprehensibly, allowing the forces of dissent to carry the day by default.(1)
Available for public scrutiny by this time, were the results of an exhaustive media monitoring exercise – involving two news channels each in English and Hindi – by the Centre for Media Studies (CMS), a research organisation with long years of experience in the field. Between August 16 and 28, the exercise found that the two Hindi channels, Aaj Tak and Star News, devoted 97 percent of total news time during prime viewing hours (7 to 11 p.m.) to the Anna fast. For the two English channels monitored -- CNN-IBN and NDTV 24x7 – the corresponding figure was 87 per cent. Left out of this exercise was TimesNOW, which was widely seen to be the most brash, bumptious – indeed, noisy and intolerant -- news channel in respect of the Anna Hazare fast.
Taking the pattern of total time utilisation on the English channels, the figures were roughly about 65 percent of broadcast time for the Ramlila event, 23 percent for advertisements and the rest for other news. The Hindi channels were not very different in terms of the total time dedicated to the Anna fast, but with advertisements occupying about 30 percent, they had virtually no time for other news.(2) It is also estimated that through Anna’s thirteen day fast, the viewership of English news channels increased by over 70 percent and of Hindi, by over 85 percent.
From another source, we find that in the earlier phase of Anna’s protest fast in April, news channels raked in Rs 175.86 crore in advertisement revenue over a nine-day period. Coverage totalled 5,576 news clips, of which prime time news coverage numbered 1,224 clips across 152 hours, with an ad value of Rs 52.47 crore. Classifying the news clips by their tone, 5,592 were positive towards Anna and his cause, while 92 were characterised as negative.(3)
Viewership and audience demographics are the principal criteria in determining ad placement decisions. But the pattern of coverage of the Anna fast was so distinctive across all news channels, that it suggests a strong linkage between quantum and tone of coverage and revenue implications. The matter needs to be carefully dissected and thought through. Media companies, for the most part, are private limited companies, not legally obliged to publish annual statements of accounts. Even less are they under compulsion to disgorge the finer details of commercial strategies to maximise ad revenue. But an indication that Anna’s fast was a lucrative source of revenue for the media is available from the conduct of Bennett Coleman and Company Ltd (BCCL), publishers of the Times of India (ToI) and owners of the TimesNOW channel, which has shown itself over the years to have the best sense of the “editorial context” that advertisers most appreciate.
Derived from print media practice, the “news-hole” is a concept that media analysts frequently work with. It is a term that originates in the practice of making up a page, where space is already committed for advertisements and news content can only fill in the “holes” in between. That concept of the “news-hole” has now been adapted to the visual electronic media, though its measure is not in units of space, but time. Its essential connotation is that news has only the second claim to media space and time, after ads. It does not yet reveal the subtext that news content is itself influenced by the ads that surround it – or that news content can be manipulated to provide the best “editorial context” for ads placements. As with much else in the Indian media over the last two decades, the new paradigm was forged by BCCL, which proudly invented a mutually supportive relationship between the news-hole and surrounding ads. Since the money came from the ads, the burden of adjustment had to be on news content.
Within all the limitations of the print medium, BCCL’s flagship newspaper, the ToI, was a stellar performer in mobilising crowds for the Anna fast. A perceptive analyst has provided all the basic data here. The ToI’s Delhi edition covered the thirteen day event over 123 broadsheet pages branded “August Kranti”, hijacking a talismanic moment from India’s struggle against colonialism. Overall coverage included 401 news stories, 34 opinion pieces, 556 photographs and 29 cartoons and strips”. On seven of these days, the front page of the ToI had eight-column banner headlines. Negative stories, if any, were run with attributions to public figures – such as the Islamic cleric who heads Delhi’s Jama Masjid and the leader of a nationwide confederation of government employees from the scheduled castes – who are known to evoke a reaction of some scepticism, if not disdain, among the main readership demographic of the ToI. And the newspaper launched a toll-free number for readers to give a “missed call” if they endorsed the demand for a “strong Lok Pal Bill”.(4)
By way of a sampling of the banner headlines in the ToI, on August 25, the ruling United Progressive Alliance (UPA) was deemed to have hardened its stand after an all-party political meeting the previous day endorsed the sovereign right of Parliament to determine the appropriate law to deal with corruption. The popular expectation that Anna’s agony would end was belied and despite the official spokepersons’ deliberate effort to put a different construction on events, the ToI headline read “From Breakthrough to Breakdown”. Subsequently, a collective appeal by the Prime Minister, Leader of the Opposition in the Lok Sabha and indeed, both houses of Parliament, failed to deflect Anna from his resolve to go for his maximal agenda. On August 26, ToI determined that the moral advantage from these exchanges had accrued to Anna with the loud banner that read: “PM walks the extra mile, Anna unmoved”. Two days later, the ToI reported the culmination of Anna’s fast, which came about in ambiguous circumstances that fell conspicuously short of his maximal demands, under the headline: “Anna wins it for the people”.
Missing through this entire thirteen-day long frenzy was any informed public discussion of what was at stake. Daily experiences with corruption were narrated with a pronounced bias towards the common irritants that the middle and upper strata face. Typically, delays in obtaining passports and business clearances were talked about, not the difficulties with getting names registered on daily muster rolls for the rural employment guarantee programme. Team Anna’s insistence that its conception of a vertically structured, rigidly hierarchical body was the only way to deal with corruption, generally escaped without serious scrutiny. The few who sought to raise questions about the appropriateness of a body conceived with conspicuous disdain for participatory democracy, were typically characterised as divisive elements, disrupting a moment of rare unity within civil society, effectively giving the government a free pass.(5)
There was in short, much discussion of the need for a “strong Lok Pal Bill”, but no clarity about how this end could be achieved. Characteristically, during an hour-long programme of studio-based debate and discussion titled “The Big Fight” on August 20 on the news channel NDTV 24x7, the entire audience declared itself to be in favour of Team Anna’s Lok Pal Bill. Yet, no hands went up when the next question was asked: about how many among the audience had actually read Team Anna’s draft bill.
Yet there are obvious difficulties, both logical and ethical, in putting down the widening public ferment to media manipulation. People today are stirred up like never before over the quality of governance and willing to express themselves forcefully. And the 24 hour news channels that have multiplied over the last half-decade, provide them with a platform.
It is a plausible conjecture that the restive spirit about is a consequence of the threats seen today to India’s growth story. Though indifferent for the first decade-and-a-half of India’s liberalisation process, economic growth began picking up momentum from about 2004 and showed enough dynamism for a sufficient number of years to earn worldwide recognition as a force that would influence global balances into the near and distant future. This period also saw the coming of age of the great Indian middle class which had ostensibly earned its belated freedom after spending decades under an oppressive state-controlled economy. Media growth is a sub-plot within this broader story, propelled by advertising expenditure which, as is invariably the case, outgrew increases in corporate profitability, but tended to mirror the underlying patterns of consumption of the middle and upper strata.
The global economic downturn since late-2008 is only beginning to show up in India’s official economic statistics, but it is a part of peoples’ lives. Inflation has become a more perceptible threat than ever before in two decades. The vaulting ambitions of India’s bulging “youth demographic strata” are under stress, making nonsense of the beguiling prospects held out by the media just over two years ago. And as the global economy itself lurches into a possible double-dip recession, the prospects of India’s emergence on the world stage as a superpower seem rapidly to be diminishing.
These factors have engendered anxieties across all strata, expressed in diverse ways. On February 23 this year, India’s principal trade union confederations jointly organised a mass rally in the national capital. Despite acute concerns among the working class over the direction that policy was taking in a context of growing livelihood stresses, official thinking showed little inclination to go beyond the standard story line that the labour market needed to be “reformed” – that enterprises in other words, needed the power to hire and fire at will.
The trade union rally was a way of showing the world that there was another way of looking at things. It was an alternative discourse that the many news channels based in Delhi and elsewhere proved fairly indifferent to. The following day, newspaper coverage mostly focused on the massive traffic snarls the rally had caused. The ToI’s Delhi edition, ran a full page of coverage under the banner headline: “Red wave sweeps city, halts traffic in central Delhi”. In three chosen samples of public reaction, representing presumably the whole range of opinions heard that day, one of the sufferers of the days’ traffic chaos was quoted saying: “If I find out which party is behind the rally, I will never vote for it”. Others complained of vital appointments missed and tasks left unfinished.
August 16 was the first day of mass gathering on Delhi’s streets in support of Anna in his most recent phase of agitation. Within moments of the preventive arrest effected to stop Anna from beginning his protest, Delhi’s news channels had fanned out across the city to provide saturation coverage for the ensuing demonstrations. Traffic was thrown out of gear in several parts of the city when the crowds came out, but the media cared little. As the ToI’s Delhi edition put it in its main local news page on August 17: “City Centre Comes Alive With Marching Throngs”. And elsewhere,under the headline “Massive jams in city but few were complaining”, the newspaper made a special effort to record that city commuters with nerves frazzled by the chaos, were “pacified” by others who explained the issue at stake.
Yet doubts persist about how clearly the media has framed the issues. “Corruption” is in the discourse of most who have joined the Hazare campaign, a convenient target onto which a whole complex of anxieties can be shifted. And the seeming urgency of creating an authority superior to all others, meshes neatly with elite convictions that representative democracy has been a colossal failure. But since the Jan Lok Pal, a body conceived as the magic bullet to end all corruption, has failure – and endless conflict with all other institutions -- virtually encoded in the circumstances of its genesis, it should be asked what the consequences of manifest failure would be. Would the target then shift from “corruption” to “politics” itself? Would representative democracy itself fall victim to awakening Indian middle-class rage?
When completely stymied by phenomena that seem unique and mystifying, it often helps to borrow analogies from the physical sciences. An amplifier is an appropriate analogy here: taking in a signal as input and processing it through its circuitry to generate an output. The quality of the output can never quite match what is received by way of a primary signal, though technology has been seeking to achieve the most faithful reproduction. Among the first significant discoveries in this respect was that of feedback: channelling a part of the energy output back into the input stream influences the performance of the device in various ways. Negative feedback, i.e., a loop that feeds back a part of the energy output in a manner that is not congruent with the input signal, enhances performance and provides for faithful signal amplification and stable system performance. Positive feedback, which channels an identical signal back into the input stream, leads to a distorting spiral of noise, system instability, a cacophonous listening experience for the audience, and finally, a potential breakdown. Clearly, this seems the pathway that the media is embarked upon, by its resolve to function as an echo-chamber for elite perceptions, amplifying and reinforcing them in every manner possible.
September 2, 2011
References
(1) Barkha Dutt, “Digging Its Own Grave”, The Hindustan Times (Delhi), August 19, editorial page, available at: http://www.hindustantimes.com/Digging-its-own-grave/H1-Article1-735205.aspx.
(2) The basic data on time devoted to news is available at: “Anna obsession boosts TV news channels”, http://www.indiantelevision.com/headlines/y2k11/aug/aug212.php. The time that went into ads is not available from this source and was obtained directly from CMS.
(3) Full details of this study are not availabe, undoubtedly because this manner of information normally comes with a price tag. The bare details presented here are taken from the media watch website, The Hoot. The obvious gaps make it essential that the information be used with discretion. For instance, the number of news channels surveyed remains unknown. See here for all the information currently available: http://www.thehoot.org/web/home/story.php?storyid=5448&mod=1&pg=1§ionId=4&valid=true.
(4) Pritam Sengupta, “How the Times of India pumped up Team Anna”, available as on September 1 at: http://churumuri.wordpress.com/2011/08/31/how-the-times-of-india-pumped-up-team-anna/.
(5) Embodying this attitude with extreme aggression and inattention to minor inconvenience of fact, was the TimesNOW channel’s main news anchor, on which see: Mihir S. Sharma, “Revolutions eat their own”, Indian Express (Delhi), editorial page, August 27, available at: http://www.indianexpress.com/news/revolutions-eat-their-own/837710/0.
Unsurprisingly, TV news anchors have consistently been in the forefront of the public debate about the media’s role – to further adapt Noam Chomsky’s adaptation of the famous Walter Lippmann term – in the “manufacture of dissent”. Another well-known TV personality sought to tackle this matter frontally in a newspaper column and arrived at the self-extenuating conclusion that the fault, if any, lay at the government’s doorstep, since it had consistently failed in putting across its point of view cogently and comprehensibly, allowing the forces of dissent to carry the day by default.(1)
Available for public scrutiny by this time, were the results of an exhaustive media monitoring exercise – involving two news channels each in English and Hindi – by the Centre for Media Studies (CMS), a research organisation with long years of experience in the field. Between August 16 and 28, the exercise found that the two Hindi channels, Aaj Tak and Star News, devoted 97 percent of total news time during prime viewing hours (7 to 11 p.m.) to the Anna fast. For the two English channels monitored -- CNN-IBN and NDTV 24x7 – the corresponding figure was 87 per cent. Left out of this exercise was TimesNOW, which was widely seen to be the most brash, bumptious – indeed, noisy and intolerant -- news channel in respect of the Anna Hazare fast.
Taking the pattern of total time utilisation on the English channels, the figures were roughly about 65 percent of broadcast time for the Ramlila event, 23 percent for advertisements and the rest for other news. The Hindi channels were not very different in terms of the total time dedicated to the Anna fast, but with advertisements occupying about 30 percent, they had virtually no time for other news.(2) It is also estimated that through Anna’s thirteen day fast, the viewership of English news channels increased by over 70 percent and of Hindi, by over 85 percent.
From another source, we find that in the earlier phase of Anna’s protest fast in April, news channels raked in Rs 175.86 crore in advertisement revenue over a nine-day period. Coverage totalled 5,576 news clips, of which prime time news coverage numbered 1,224 clips across 152 hours, with an ad value of Rs 52.47 crore. Classifying the news clips by their tone, 5,592 were positive towards Anna and his cause, while 92 were characterised as negative.(3)
Viewership and audience demographics are the principal criteria in determining ad placement decisions. But the pattern of coverage of the Anna fast was so distinctive across all news channels, that it suggests a strong linkage between quantum and tone of coverage and revenue implications. The matter needs to be carefully dissected and thought through. Media companies, for the most part, are private limited companies, not legally obliged to publish annual statements of accounts. Even less are they under compulsion to disgorge the finer details of commercial strategies to maximise ad revenue. But an indication that Anna’s fast was a lucrative source of revenue for the media is available from the conduct of Bennett Coleman and Company Ltd (BCCL), publishers of the Times of India (ToI) and owners of the TimesNOW channel, which has shown itself over the years to have the best sense of the “editorial context” that advertisers most appreciate.
Derived from print media practice, the “news-hole” is a concept that media analysts frequently work with. It is a term that originates in the practice of making up a page, where space is already committed for advertisements and news content can only fill in the “holes” in between. That concept of the “news-hole” has now been adapted to the visual electronic media, though its measure is not in units of space, but time. Its essential connotation is that news has only the second claim to media space and time, after ads. It does not yet reveal the subtext that news content is itself influenced by the ads that surround it – or that news content can be manipulated to provide the best “editorial context” for ads placements. As with much else in the Indian media over the last two decades, the new paradigm was forged by BCCL, which proudly invented a mutually supportive relationship between the news-hole and surrounding ads. Since the money came from the ads, the burden of adjustment had to be on news content.
Within all the limitations of the print medium, BCCL’s flagship newspaper, the ToI, was a stellar performer in mobilising crowds for the Anna fast. A perceptive analyst has provided all the basic data here. The ToI’s Delhi edition covered the thirteen day event over 123 broadsheet pages branded “August Kranti”, hijacking a talismanic moment from India’s struggle against colonialism. Overall coverage included 401 news stories, 34 opinion pieces, 556 photographs and 29 cartoons and strips”. On seven of these days, the front page of the ToI had eight-column banner headlines. Negative stories, if any, were run with attributions to public figures – such as the Islamic cleric who heads Delhi’s Jama Masjid and the leader of a nationwide confederation of government employees from the scheduled castes – who are known to evoke a reaction of some scepticism, if not disdain, among the main readership demographic of the ToI. And the newspaper launched a toll-free number for readers to give a “missed call” if they endorsed the demand for a “strong Lok Pal Bill”.(4)
By way of a sampling of the banner headlines in the ToI, on August 25, the ruling United Progressive Alliance (UPA) was deemed to have hardened its stand after an all-party political meeting the previous day endorsed the sovereign right of Parliament to determine the appropriate law to deal with corruption. The popular expectation that Anna’s agony would end was belied and despite the official spokepersons’ deliberate effort to put a different construction on events, the ToI headline read “From Breakthrough to Breakdown”. Subsequently, a collective appeal by the Prime Minister, Leader of the Opposition in the Lok Sabha and indeed, both houses of Parliament, failed to deflect Anna from his resolve to go for his maximal agenda. On August 26, ToI determined that the moral advantage from these exchanges had accrued to Anna with the loud banner that read: “PM walks the extra mile, Anna unmoved”. Two days later, the ToI reported the culmination of Anna’s fast, which came about in ambiguous circumstances that fell conspicuously short of his maximal demands, under the headline: “Anna wins it for the people”.
Missing through this entire thirteen-day long frenzy was any informed public discussion of what was at stake. Daily experiences with corruption were narrated with a pronounced bias towards the common irritants that the middle and upper strata face. Typically, delays in obtaining passports and business clearances were talked about, not the difficulties with getting names registered on daily muster rolls for the rural employment guarantee programme. Team Anna’s insistence that its conception of a vertically structured, rigidly hierarchical body was the only way to deal with corruption, generally escaped without serious scrutiny. The few who sought to raise questions about the appropriateness of a body conceived with conspicuous disdain for participatory democracy, were typically characterised as divisive elements, disrupting a moment of rare unity within civil society, effectively giving the government a free pass.(5)
There was in short, much discussion of the need for a “strong Lok Pal Bill”, but no clarity about how this end could be achieved. Characteristically, during an hour-long programme of studio-based debate and discussion titled “The Big Fight” on August 20 on the news channel NDTV 24x7, the entire audience declared itself to be in favour of Team Anna’s Lok Pal Bill. Yet, no hands went up when the next question was asked: about how many among the audience had actually read Team Anna’s draft bill.
Yet there are obvious difficulties, both logical and ethical, in putting down the widening public ferment to media manipulation. People today are stirred up like never before over the quality of governance and willing to express themselves forcefully. And the 24 hour news channels that have multiplied over the last half-decade, provide them with a platform.
It is a plausible conjecture that the restive spirit about is a consequence of the threats seen today to India’s growth story. Though indifferent for the first decade-and-a-half of India’s liberalisation process, economic growth began picking up momentum from about 2004 and showed enough dynamism for a sufficient number of years to earn worldwide recognition as a force that would influence global balances into the near and distant future. This period also saw the coming of age of the great Indian middle class which had ostensibly earned its belated freedom after spending decades under an oppressive state-controlled economy. Media growth is a sub-plot within this broader story, propelled by advertising expenditure which, as is invariably the case, outgrew increases in corporate profitability, but tended to mirror the underlying patterns of consumption of the middle and upper strata.
The global economic downturn since late-2008 is only beginning to show up in India’s official economic statistics, but it is a part of peoples’ lives. Inflation has become a more perceptible threat than ever before in two decades. The vaulting ambitions of India’s bulging “youth demographic strata” are under stress, making nonsense of the beguiling prospects held out by the media just over two years ago. And as the global economy itself lurches into a possible double-dip recession, the prospects of India’s emergence on the world stage as a superpower seem rapidly to be diminishing.
These factors have engendered anxieties across all strata, expressed in diverse ways. On February 23 this year, India’s principal trade union confederations jointly organised a mass rally in the national capital. Despite acute concerns among the working class over the direction that policy was taking in a context of growing livelihood stresses, official thinking showed little inclination to go beyond the standard story line that the labour market needed to be “reformed” – that enterprises in other words, needed the power to hire and fire at will.
The trade union rally was a way of showing the world that there was another way of looking at things. It was an alternative discourse that the many news channels based in Delhi and elsewhere proved fairly indifferent to. The following day, newspaper coverage mostly focused on the massive traffic snarls the rally had caused. The ToI’s Delhi edition, ran a full page of coverage under the banner headline: “Red wave sweeps city, halts traffic in central Delhi”. In three chosen samples of public reaction, representing presumably the whole range of opinions heard that day, one of the sufferers of the days’ traffic chaos was quoted saying: “If I find out which party is behind the rally, I will never vote for it”. Others complained of vital appointments missed and tasks left unfinished.
August 16 was the first day of mass gathering on Delhi’s streets in support of Anna in his most recent phase of agitation. Within moments of the preventive arrest effected to stop Anna from beginning his protest, Delhi’s news channels had fanned out across the city to provide saturation coverage for the ensuing demonstrations. Traffic was thrown out of gear in several parts of the city when the crowds came out, but the media cared little. As the ToI’s Delhi edition put it in its main local news page on August 17: “City Centre Comes Alive With Marching Throngs”. And elsewhere,under the headline “Massive jams in city but few were complaining”, the newspaper made a special effort to record that city commuters with nerves frazzled by the chaos, were “pacified” by others who explained the issue at stake.
Yet doubts persist about how clearly the media has framed the issues. “Corruption” is in the discourse of most who have joined the Hazare campaign, a convenient target onto which a whole complex of anxieties can be shifted. And the seeming urgency of creating an authority superior to all others, meshes neatly with elite convictions that representative democracy has been a colossal failure. But since the Jan Lok Pal, a body conceived as the magic bullet to end all corruption, has failure – and endless conflict with all other institutions -- virtually encoded in the circumstances of its genesis, it should be asked what the consequences of manifest failure would be. Would the target then shift from “corruption” to “politics” itself? Would representative democracy itself fall victim to awakening Indian middle-class rage?
When completely stymied by phenomena that seem unique and mystifying, it often helps to borrow analogies from the physical sciences. An amplifier is an appropriate analogy here: taking in a signal as input and processing it through its circuitry to generate an output. The quality of the output can never quite match what is received by way of a primary signal, though technology has been seeking to achieve the most faithful reproduction. Among the first significant discoveries in this respect was that of feedback: channelling a part of the energy output back into the input stream influences the performance of the device in various ways. Negative feedback, i.e., a loop that feeds back a part of the energy output in a manner that is not congruent with the input signal, enhances performance and provides for faithful signal amplification and stable system performance. Positive feedback, which channels an identical signal back into the input stream, leads to a distorting spiral of noise, system instability, a cacophonous listening experience for the audience, and finally, a potential breakdown. Clearly, this seems the pathway that the media is embarked upon, by its resolve to function as an echo-chamber for elite perceptions, amplifying and reinforcing them in every manner possible.
September 2, 2011
References
(1) Barkha Dutt, “Digging Its Own Grave”, The Hindustan Times (Delhi), August 19, editorial page, available at: http://www.hindustantimes.com/Digging-its-own-grave/H1-Article1-735205.aspx.
(2) The basic data on time devoted to news is available at: “Anna obsession boosts TV news channels”, http://www.indiantelevision.com/headlines/y2k11/aug/aug212.php. The time that went into ads is not available from this source and was obtained directly from CMS.
(3) Full details of this study are not availabe, undoubtedly because this manner of information normally comes with a price tag. The bare details presented here are taken from the media watch website, The Hoot. The obvious gaps make it essential that the information be used with discretion. For instance, the number of news channels surveyed remains unknown. See here for all the information currently available: http://www.thehoot.org/web/home/story.php?storyid=5448&mod=1&pg=1§ionId=4&valid=true.
(4) Pritam Sengupta, “How the Times of India pumped up Team Anna”, available as on September 1 at: http://churumuri.wordpress.com/2011/08/31/how-the-times-of-india-pumped-up-team-anna/.
(5) Embodying this attitude with extreme aggression and inattention to minor inconvenience of fact, was the TimesNOW channel’s main news anchor, on which see: Mihir S. Sharma, “Revolutions eat their own”, Indian Express (Delhi), editorial page, August 27, available at: http://www.indianexpress.com/news/revolutions-eat-their-own/837710/0.
Tuesday, September 06, 2011
Death Penalty: Why the case for abolition cannot be lost in the media noise
The death penalty has forced its way into the political agenda after a number of mercy petitions were turned down by the President. Among the many now facing the imminence of death by hanging are those convicted in the Rajiv Gandhi assassination of 1991, a 1993 bomb attack on a Youth Congress leader which killed numerous innocent bystanders, and the armed assault on Parliament in 2001.
As with all issues today, there is a serious danger that the debate over the death penalty will be hijacked by loud and uninformed commentary on the TV news channels. Illustratively, in the course of a widely-viewed English news channel’s studio-based discussion on September 3, a member of the audience expressed his dismay that criminals guilty of the most heinous acts were enjoying the hospitality of the Indian state for indefinite lengths of time. A panelist on the programme, the Kashmiri academic Syed Abdur Rahman Geelani, speaking from the experience of a year spent on death row in the Parliament attack case, interjected to protest that an Indian prison – especially the parts reserved for death convicts – is a veritable hell on earth, which often has its inmates wishing fervently for death as a final release.
This was the cue for the programme anchor to introduce, without a hint of irony, the theme of “deliverance by death”. Considering the sheer inhumanity of prison conditions, especially on death row, would not a swift execution be the more compassionate option?
At no point in the debate did key points about the death penalty come up for discussion: its finality and irreversibility, the fallibility of the judicial system that administers it, and its inefficacy as a deterrent against violent crime. Geelani was allowed on a few occasions to argue that Mohammad Afzal Guru, the sole convict in the Parliament attack case, had not been afforded a fair trial and that in fact, the Delhi High Court had held the prosecution guilty of fabricating evidence against him. But these were narrow questions easily suppressed by two compelling arguments deployed by the other side: the Indian Constitution and the criminal law written under it mandated the death penalty in certain cases; and the ends of justice for those who suffered terrible atrocities, would only be met by putting the perpetrators to death.
The question of retribution has a moral dimension. The Supreme Court verdict in the Bachan Singh case of 1980 is still cited as the authoritative ruling on the constitutional validity of the death penalty. In his minority judgment, which dissented on virtually all the central questions, P.N. Bhagwati, later to be the Chief Justice of India, observed that retribution has no moral basis in law. Modern penal theory, he said, discounts it as a motive for determining the nature and quantum of punishment in particular cases.
The only two rationales that survive then are prevention and reform, both of which are objectives better served by lesser sentences.
The other issue needs careful attention: is the Indian Constitution fixed and immutable or is it a live, evolving body of doctrine that reflects the changing needs and aspirations of the Indian people? The Constitution defends the right to life and liberty and lays down the norm that no individual can be deprived of either, except under the process of the law. How sound then is the process of the law as applicable in India or for the matter, anywhere?
In a recent Amnesty International report on the theme of the death penalty, eloquently titled Lethal Lottery, the legal scholar and human rights campaigner Bikramjeet Batra has laid out much of the grounds on which reasonable conclusions could be arrived at.(1)
V.R. Krishna Aiyar, as a judge of the Supreme Court, had posed the fundamental moral dilemma as far back as 1977: “It seems to me absurd that laws which are an expression of the public will, which detest and punish homicide, should themselves commit it”. In an earlier pronouncement, he had deplored the fact that it was left to “ad hoc forensic impressionism to decide for life or for death”.
In his dissent in the Bachan Singh case, Justice Bhagwati revisited this theme of ad hoc determinations being the norm. The Criminal Procedure Code, as revised in 1973, had recognised the death penalty as an exceptional form of punishment, requiring that convincing reasons be specified every time it was imposed. Yet, as Justice Bhagwati observed: “The views of judges as to what may be regarded as special reasons are bound to differ … depending upon .. value system and social philosophy, with the result that whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of death penalty arbitrary and capricious”.
Despite the judicial orthodoxy handed down by the Supreme Court majority in the Bachan Singh matter, the norm that capital punishment should be imposed only in the “rarest of rare” cases, has been variously interpreted.
The last person to be executed under Indian law was Dhananjay Chatterjee, who spent thirteen years on death row before being sent to the gallows in August 2004. As noted in Lethal Lottery, three days after his execution, an almost identical case of rape and murder involving a minor was heard on appeal by the Supreme Court. The crime committed by the accused, Rahul, alias Raosahab, was on the face of things, even more heinous than Chatterjee’s. Yet the Supreme Court which had termed Chatterjee a menace to be eliminated for the good of society, held otherwise for Rahul, commuting his death sentence to one of life imprisonment.
In December 2006, a bench of Justices S.B. Sinha and Dalveer Bhandari, in hearing an appeal against a capital conviction, observed that “different criteria have been adopted by different benches of this Court, although the offences are similar in nature”. Almost admitting to its helplessness and frustration, the Court declared while commuting the sentence to one of life imprisonment: “No sentencing policy in clear cut terms has been evolved by the Supreme Court. What should we do?”
The Supreme Court has meanwhile added other grounds on which the death penalty would be warranted, such as a collective shock to the national conscience. Despite the infirm evidence and his very remote culpability in the crime, if any, Mohammad Afzal Guru was sentenced to death under this rather vague and flexible criterion.
Human thinking evolves and the law has necessarily to reflect these changes. Y.V. Chandrachud, who was Chief Justice of India and part of the Supreme Court majority which upheld the death penalty in the Bachan Singh case, came to the realisation after retirement, that the “death penalty has served no purpose” and that “neither logic nor experience would justify its continuance on the statute book”. Yet, the debate on the death penalty has since failed to engage the attention of India’s best legal minds in the manner that judges of the eminence of Krishna Aiyar, Bhagwati, O. Chinnappa Reddy and D.A. Desai, grappled with its legal and ethical dimensions all through the 1970s.
Article 5 of the Universal Declaration of Human Rights lays down a clear norm: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. As a signatory to the declaration, the Indian State must now frontally address how far it is in compliance with this clause. The reality simply is that there is no humane and compassionate means of administering the death penalty. Keeping a person in a state of limbo between life and death for years together is no option. Neither is it an option that the Indian State should, to meet the demands of a “collective conscience” that is shocked by certain crimes, short-circuit the process of law and expedite the execution of the death penalty.
Basic morality indicates that the choice in any such situation should be for life rather than death.
PRINCIPAL REFERENCE: Amnesty International India and Peoples’ Union for Civil Liberties (Tamil Nadu and Puducherry), Lethal Lottery: A Study of Supreme Court Judgments on the Death Penalty in India, 1950-2006, May 2008, available at: http://www.amnesty.org/en/library/asset/ASA20/007/2008/en/16f59d0b-15fc-11dd-8586-f5a00c540031/asa200072008eng.pdf
As with all issues today, there is a serious danger that the debate over the death penalty will be hijacked by loud and uninformed commentary on the TV news channels. Illustratively, in the course of a widely-viewed English news channel’s studio-based discussion on September 3, a member of the audience expressed his dismay that criminals guilty of the most heinous acts were enjoying the hospitality of the Indian state for indefinite lengths of time. A panelist on the programme, the Kashmiri academic Syed Abdur Rahman Geelani, speaking from the experience of a year spent on death row in the Parliament attack case, interjected to protest that an Indian prison – especially the parts reserved for death convicts – is a veritable hell on earth, which often has its inmates wishing fervently for death as a final release.
This was the cue for the programme anchor to introduce, without a hint of irony, the theme of “deliverance by death”. Considering the sheer inhumanity of prison conditions, especially on death row, would not a swift execution be the more compassionate option?
At no point in the debate did key points about the death penalty come up for discussion: its finality and irreversibility, the fallibility of the judicial system that administers it, and its inefficacy as a deterrent against violent crime. Geelani was allowed on a few occasions to argue that Mohammad Afzal Guru, the sole convict in the Parliament attack case, had not been afforded a fair trial and that in fact, the Delhi High Court had held the prosecution guilty of fabricating evidence against him. But these were narrow questions easily suppressed by two compelling arguments deployed by the other side: the Indian Constitution and the criminal law written under it mandated the death penalty in certain cases; and the ends of justice for those who suffered terrible atrocities, would only be met by putting the perpetrators to death.
The question of retribution has a moral dimension. The Supreme Court verdict in the Bachan Singh case of 1980 is still cited as the authoritative ruling on the constitutional validity of the death penalty. In his minority judgment, which dissented on virtually all the central questions, P.N. Bhagwati, later to be the Chief Justice of India, observed that retribution has no moral basis in law. Modern penal theory, he said, discounts it as a motive for determining the nature and quantum of punishment in particular cases.
The only two rationales that survive then are prevention and reform, both of which are objectives better served by lesser sentences.
The other issue needs careful attention: is the Indian Constitution fixed and immutable or is it a live, evolving body of doctrine that reflects the changing needs and aspirations of the Indian people? The Constitution defends the right to life and liberty and lays down the norm that no individual can be deprived of either, except under the process of the law. How sound then is the process of the law as applicable in India or for the matter, anywhere?
In a recent Amnesty International report on the theme of the death penalty, eloquently titled Lethal Lottery, the legal scholar and human rights campaigner Bikramjeet Batra has laid out much of the grounds on which reasonable conclusions could be arrived at.(1)
V.R. Krishna Aiyar, as a judge of the Supreme Court, had posed the fundamental moral dilemma as far back as 1977: “It seems to me absurd that laws which are an expression of the public will, which detest and punish homicide, should themselves commit it”. In an earlier pronouncement, he had deplored the fact that it was left to “ad hoc forensic impressionism to decide for life or for death”.
In his dissent in the Bachan Singh case, Justice Bhagwati revisited this theme of ad hoc determinations being the norm. The Criminal Procedure Code, as revised in 1973, had recognised the death penalty as an exceptional form of punishment, requiring that convincing reasons be specified every time it was imposed. Yet, as Justice Bhagwati observed: “The views of judges as to what may be regarded as special reasons are bound to differ … depending upon .. value system and social philosophy, with the result that whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of death penalty arbitrary and capricious”.
Despite the judicial orthodoxy handed down by the Supreme Court majority in the Bachan Singh matter, the norm that capital punishment should be imposed only in the “rarest of rare” cases, has been variously interpreted.
The last person to be executed under Indian law was Dhananjay Chatterjee, who spent thirteen years on death row before being sent to the gallows in August 2004. As noted in Lethal Lottery, three days after his execution, an almost identical case of rape and murder involving a minor was heard on appeal by the Supreme Court. The crime committed by the accused, Rahul, alias Raosahab, was on the face of things, even more heinous than Chatterjee’s. Yet the Supreme Court which had termed Chatterjee a menace to be eliminated for the good of society, held otherwise for Rahul, commuting his death sentence to one of life imprisonment.
In December 2006, a bench of Justices S.B. Sinha and Dalveer Bhandari, in hearing an appeal against a capital conviction, observed that “different criteria have been adopted by different benches of this Court, although the offences are similar in nature”. Almost admitting to its helplessness and frustration, the Court declared while commuting the sentence to one of life imprisonment: “No sentencing policy in clear cut terms has been evolved by the Supreme Court. What should we do?”
The Supreme Court has meanwhile added other grounds on which the death penalty would be warranted, such as a collective shock to the national conscience. Despite the infirm evidence and his very remote culpability in the crime, if any, Mohammad Afzal Guru was sentenced to death under this rather vague and flexible criterion.
Human thinking evolves and the law has necessarily to reflect these changes. Y.V. Chandrachud, who was Chief Justice of India and part of the Supreme Court majority which upheld the death penalty in the Bachan Singh case, came to the realisation after retirement, that the “death penalty has served no purpose” and that “neither logic nor experience would justify its continuance on the statute book”. Yet, the debate on the death penalty has since failed to engage the attention of India’s best legal minds in the manner that judges of the eminence of Krishna Aiyar, Bhagwati, O. Chinnappa Reddy and D.A. Desai, grappled with its legal and ethical dimensions all through the 1970s.
Article 5 of the Universal Declaration of Human Rights lays down a clear norm: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. As a signatory to the declaration, the Indian State must now frontally address how far it is in compliance with this clause. The reality simply is that there is no humane and compassionate means of administering the death penalty. Keeping a person in a state of limbo between life and death for years together is no option. Neither is it an option that the Indian State should, to meet the demands of a “collective conscience” that is shocked by certain crimes, short-circuit the process of law and expedite the execution of the death penalty.
Basic morality indicates that the choice in any such situation should be for life rather than death.
PRINCIPAL REFERENCE: Amnesty International India and Peoples’ Union for Civil Liberties (Tamil Nadu and Puducherry), Lethal Lottery: A Study of Supreme Court Judgments on the Death Penalty in India, 1950-2006, May 2008, available at: http://www.amnesty.org/en/library/asset/ASA20/007/2008/en/16f59d0b-15fc-11dd-8586-f5a00c540031/asa200072008eng.pdf
Thursday, August 25, 2011
Vaulting Ambition, Sloppy Thinking: Why the Jan Lok Pal Bill is a Dud
Corruption is the central concern. It is almost a theological concept. It is also a term – along with the linked adjective, “corrupt” – that recurs at frequent intervals through the text of the Jan Lok Pal (JLP) bill.
This bill has gone through thirteen iterations and in its current form is, according to the social campaigner Anna Hazare and his core group of associates (Team Anna) ready for adoption by Parliament. As an elected body representing all the people, Parliament, says India Against Corruption (IAC) -- the larger civil society grouping that Team Anna takes its mandate from -- has the right to enact laws for all the country. But prolonged default on a matter of urgent public importance cannot be tolerated. Parliament has no option than the adoption of a bill cooked up by the IAC. This would be the first step, necessary, though not yet sufficient, towards dealing with the ongoing plague of corruption.
If the frequency with which a word is used indicates how serious is the intent, then the JLP draft, in its most recent variant, scores heavily over the Prevention of Corruption Act, 1988 (PCA) and the Central Vigilance Commission Act, 2003 (CVCA). These are the two most proximate enactments which share the objective of combating corruption. And they are both rather spare in their use of the two words. Maybe this indicates a far greater sense of focus and moral purpose in the JLP than in all earlier laws. Maybe it shows that the earlier enactments paid little attention, or chose willingly to be oblivious, to the magnitude of the task they were intended to address.
A moral dimension is apparent in other respects too. Through the text of the JLP draft, the word “integrity” occurs four times and “impeccable” twice. “Evil” is used once in the preamble, in a quote from a former Secretary-General of the United Nations, and “eminent” is the term of art chosen to characterise somebody who would have the credentials to be on the “search committee” for appointing the JLP.
Ordinary citizens who have tried to understand the arcane processes of the law may often wish that legal texts could show some sparks of life, that there was some way of rendering legalese into a comprehensible idiom. Terms such as “impeccable” and all the rest that the JLP draft scatters liberally around, may seem self-evident in terms of their import to all who suffer the daily scourge of corruption. “Impeccable” to most would be the opposite of what they see in their public servants. But then, to be “impeccable” and to possess “integrity” or “eminence” in the manner that the JLP requires, is beyond most citizens.
Team Anna holds out the promise that ordinary citizens’ lives will soon be governed by higher virtues, embodied in a chosen few who will assume the stewardship of the JLP, as an institution empowered to impose its will on legislature, executive and judiciary in any matter involving the suspicion of financial wrongdoing. In the steadfastness of their virtue, these individuals would transform lives steeped in the banality of just getting along, negotiating any which way through the thicket of a corrupt governance apparatus.
Morality lecture versus legal text
With this lofty mission before it, the JLP has necessarily to use language more appropriate to a morality lecture than a legal text. Indeed, the JLP is in the vision of its proponents a body born in immaculate conception, untouched by the politics that ordinary mortals are mired in. The origin of the JLP is in a construction of “virtue” that lies beyond ordinary politics. It is a transcendental attribute under siege in the mundaneness of ordinary politics.
It is this moral purpose that defines the central theme of the Anna Hazare campaign and determines its trajectory. Aside from “anti-corruption” which is a slogan even more vapid than “pro-motherhood”, the spirit of the movement is represented in the successive drafts of the bill that Team Anna and the IAC have put before the public.
Beginning with an early draft – themed around “men of virtue” – which spoke of empowering Nobel laureates of Indian origin, Bharat Ratna and Magsaysay awardees and five-star ranking military officers to appoint the Lok Pal, the JLP bill has gone through several modifications. It is fair to say though, that every version, despite seeking to achieve precision in terminology and a better fit with constitutional processes as currently practised, bears the imprint of the circumstances in which the bill was conceived.
Since the “men of virtue” draft was rubbished, a subsequent iteration by the IAC, labelled version 2.1 of the JLP bill, changed the appointment criteria. A studied reluctance to yield ground to representative institutions, or individuals chosen through direct elections, still remained manifest. In a selection committee comprising eleven members or more (since after the first round of selections, outgoing members of the JLP were expected to join the committee), only one qualified by virtue of being an elected representative of the people. And this was the Speaker of the Lok Sabha, who made the grade presumably by holding an office above partisan loyalties.
Unexplained twists in logic
Retained in the selection committee were all armed forces personnel of the five-star rank, of whom there have been three in the history of India, with the sole survivor now being well into his 90s. Also included were the two most senior among two categories: Supreme Court judges and high court chief justices.
In the next round, JLP version 2.2 changed the composition of the selection committee considerably. The total number on the body was brought down to ten, and the patently absurd requirement to have a military officer of five-star rank was deleted. The Prime Minister and Leader of the Opposition (LoP) in the Lok Sabha were allowed admission into the hallowed company of the "selection committee" that would pick the Lok Pal. But in the category of judicial representatives, the criterion of choice was changed from the most senior among Supreme Court judges and high court chief justices, to the youngest in both these categories.
The deliberations that led to these formulations have supposedly been open and transparent. But few reasons were advanced for these violent switches of loyalty, between seniority and its opposite. When an explanation was specifically sought, the answer remained unconvincing. Seniority was supposed to endow a judge with wide practical experience and knowledge, to enable informed choices of personnel for a high-powered body. But “seniority” also meant the imminence of retirement, and the likelihood that a judge -- irrespective of his value system -- would be susceptible to the lure of a post-retirement sinecure the government could place before him.
Younger judges in contrast, with the assurance of many years ahead on the bench, were likely to be immune to this inducement.
Mildly put, the logic is questionable. On the other side of the coin, the government and the higher judiciary are always in consultation in matters involving judicial appointments. When appointments to the JLP are imminent, ministers and senior (or junior) judges - both detested categories in the IAC's scale of values -- could connive in putting in place nominees in the higher judiciary, to ensure that between themselves, they have decisive influence over choices made to the JLP. This is a situation that is as probable as the dark scenario that Team Anna sketches.
Fundamentally, every formulation that has been put forward by the IAC has been deeply flawed. And these in turn emanate from an attitude of mind that trusts nobody and believes that a presumption of guilt is warranted in any matter involving a broadly defined notion of “corruption”.
The current version of the JLP Bill (numbered 2.3 on the IAC website) allows – with obvious reluctance -- for two elected representatives on the selection committee, the Prime Minister and Leader of the Opposition in the Lok Sabha (LoP). Two Supreme Court judges and two incumbent high court chiefs are also on the committee, without any further requirement of seniority or otherwise. In a major gesture of modesty, the IAC has unconditionally left that choice to a collegium of judges from the highest judicial bench.
Aside from the political and judicial members, the selection committee would also include the Chief Election Commissioner and the Comptroller and Auditor General of India. At the second and subsequent rounds of selection, all previous chairpersons of the JLP would join the committee.
Men of virtue and eminence to have first call
The concessions to the political and judicial establishments, though, are limited by a caveat: the selection process would now have to confine its choices to the names put forward by a ten member “search committee”. This is where the quality of “eminence” comes in. Five members of the “search” team would be chosen by the selection committee in accordance with the normative criterion of “eminence”, as also the other condition of “impeccable integrity”. And the rest of the “search committee” would be coopted by the five chosen in accordance with the original virtue of "eminence".
To take one aspect of the bill – the procedure of choice of the JLP – successive drafts have oscillated rather wildly in terms of applicable criteria. The “men of virtue” clause was removed at an early stage in the revisions. In a seemingly grudging concession to politics as practised – rather than its idealised vision – the Prime Minister and LoP were given a due role in the choice process. Since the JLP is envisaged to have a judicial function in some respects, there was no way that the men who people that arm of governance could be kept out.
Yet the trust deficit was difficult to dispel. And since the basic premise of Team Anna is "trust nobody", there was a wild oscillation between “most senior”, “youngest”, and finally, anybody who is proposed by a duly constituted “collegium” of judges.
Arvind Kejriwal, a former official of the Indian Revenue Service, now acknowledged strategist of the IAC and the main draftsman of the JLP bill, has often been on record with the view that powers envisaged for the anti-corruption body are no more than those vested in the Income-Tax (I-T) department. The point has a certain validity, though only superficially. The I-T department is authorised to perform the functions of investigation and prosecution. There is also a provision that hearings under a tribunal and a commission that could be set up under the I-T department, would enjoy the status of judicial proceedings.
Powers of judicial appointment and superintendence
The crucial difference here, is that the JLP conceives of trial in special courts. Rather confusingly, draft bill 2.3 prescribes two distinct procedures of trial. Under Chapter X, the JLP would put out an annual assessment of the number of special courts required for the swift trial of all the accused. The Government would set up the required number of special courts and Chief Justices of every High Court would constitute appellate benches to take up appeals and settle them within six months. Under Chapter XII, the JLP is empowered to appoint retired judges or civil servants as judicial officers for conducting trials once investigations are completed. A bench constituted in this fashion would determine the penalty and the punishment that could be imposed on the accused, subject to “approval by a higher authority prescribed” by the JLP.
The power of appointing judicial benches and stipulating deadlines for them is obviously far beyond anything that the Income-Tax authorities can imagine. Indeed, in seeking to gather under one body the powers of investigation, prosecution and trial, the JLP does considerable violence to the doctrine of the separation of powers, a fundamental principle of government by the rule of law.
As a further reality check on Kejriwal’s claim that the JLP bill proposes no greater powers or procedural prerogatives than the rather banal I-T Act, it would be appropriate to just consider one clause, article 7(5) of version 2.3, which reads:
“If during the course of investigation into a complaint, the Lokpal feels that continuance of a government servant in that position could adversely affect the course of investigations or that the said government servant is likely to destroy or tamper with the evidence or influence the witnesses or is likely to continue with corruption, the Lokpal may issue appropriate directions including transfer of that government servant from that position.”
The JLP’s definition of a “public servant” is the same as in the PCA. A “government servant” in turn, is a sub-category. Excluded from this sub-set are elected representatives and judicial officers. In other words, the JLP would have the authority to remove from office and quarantine anybody -- except an elected representative or a judicial officer -- for the duration of its inquiries. Here again is an extraordinary power that the I-T department could not conceive of ever claiming or deploying.
Much public contention has arisen out of the JLP bill’s determination that nobody – not even the highest political and judicial authorities – should be spared from its intrusive attentions. Version 2.3 tries to build in sufficient safeguards to deal with the sensitivities involved, by requiring prior approval of a seven-member bench of the JLP before any investigation or prosecution begins against the Prime Minister or a member of the Union Council of Ministers, any judge of the Supreme Court or a High Court, or any member of Parliament.
Sloppy draftsmanship omits an important point: is it sufficient for a majority of the seven-member bench or has this decision necessarily to be unanimous.
This should be regarded as a minor quibble in comparison to the larger issues. In the context of the extraordinary powers of removal of a public servant that the JLP assumes, it is worthwhile playing out a mind-game. Imagine a situation in which the Prime Minister is suspected of wrongdoing – since one of the issues on which Team Anna is most insistent and inflexible on, is having the PM under the jurisdiction of the JLP. The PM as head of government, in theory, controls every lever of the executive machinery. So by remaining in office while under investigation, he could conceivably, thoroughly subvert the course of inquiries. So then do we, by extending the logic applicable to a “public servant”, give the JLP the power to remove the PM?
Usurpation of parliamentary prerogative
With all the great fervour about, the slightest twinge of sympathy for M.K. Kanimozhi, a woman imprisoned now for over four months on corruption charges, would be considered a sign of moral frailty. Bail applications moved in ever higher judicial forums on her behalf have been turned down because investigations are underway into the “2G scam”. The Supreme Court worries that as a person of influence – and as member of a family that wields enormous political and financial clout despite its ignominious eviction from office in recent general elections to the Tamil Nadu state assembly – Kanimozhi might misuse a freedom provisionally granted, to fatally damage the investigations.
IAC’s credo is a radical formulation of the principle of equality before the law. It is impatient with suggestions that certain individuals (by virtue of occupying particular offices) could be exempted from scrutiny. The JLP as constructed in the IAC imagination, will have absolute authority over every institution and every office, however high. Neither the Chief Justice of India, nor even the Prime Minister, would be spared.
The proposition is infused with a sense of moral righteousness and purpose. And most political parties, anxious not to be out of step with the dominant public mood – as represented by loud and opinionated TV news anchors -- have signed on to the demand for a JLP that covers all.
A short pause to think over the implications of the proposition – using the legal standards applied in the Kanimozhi case -- would bring home its essential absurdity. A woman of very moderate power in comparison to an incumbent prime minister has to be taken into custody and repeatedly denied bail because she could influence the course of investigations for the worse. How then would the law deal with a person occupying the single most important position in the political executive, who quite possibly, could paralyse the investigations? The only credible answer, consistent with current practices, would be that PM against whom investigations are underway, should rightfully be in prison and ineligible for bail till investigations are completed and charges framed.
In a basic sense, the JLP proposals should be read as an intrusion into the sovereign domain of parliament, an unseemly power grab.
The affirmation of this principle – that the PM is answerable to parliament, which should hold him to the highest standard of probity – may occasion some bemusement, since it has long since been lost in Indian parliamentary practice. The clamour for a JLP that will have jurisdiction over the PM, effectively states that the loss of public faith is irretrievable. This inference would be consistent with the general mood afoot, of a complete loss of faith in elected institutions as embodiments of the popular will.
Precisely because of this, it is necessary to make one final attempt at retrieval. Because it allows no room for retrieval, Team Anna is prepared to trample all over another basic doctrine of constitutional governance. Article 50 of the Constitution, part of the Directive Principles, obliges a separation between executive and judiciary. This is a directive that the “State” has to abide by in its public services.
Fatal damage to doctrine of separation of powers
Team Anna conceives of a body that would be the final solution to all problems of misgovernance, and would have powers that straddle the realms of the executive and judiciary. The JLP proposed by the Anna Hazare cabal would have powers of investigation and prosecution in any matter involving the suspicion of corruption. It could impose fines and orders of dismissal from service, it could annul contracts solely at its discretion. Where it is compelled to go by the judicial route, it would have the powers to determine how many special courts should be appointed to deal with cases that it files and determine the composition of the judicial benches that would deal with these cases.
Kejriwal was on a talk-show hosted by Karan Thapar on CNN-IBN on August 20, where he argued frenetically that he had the right to represent his political point of view in any manner thought appropriate. When asked about the damage caused to the representative processes of democratic politics – in even the imperfect form practised in India – he repeatedly made the effort to distinguish between the “people” and parliament. Clearly, in his imagination, India's parliament is elected by aliens from outer space. And a gathering at Ramlila Maidan in Delhi, spectators to an uninformed old man’s decision to deny himself all nourishment for an indefinite length of time, counts for more than all the history and precedent that has gone into the construction of Indian democracy.
Worries about excessive concentration of powers are batted away by Team Anna. The process of judicial review enshrined in the Indian Constitution, they say, would be applicable in any matter decided by the JLP. This would be the final guarantee against an abuse of power by a monstrously empowered JLP. Yet it does not take too long to realise that this is simply begging the question. If it all finally comes down to the judiciary, that should be the focus of attention. Judicial reforms and the various means of making the institution more accountable, should really be where public attention is directed. And similarly with the agencies of the political executive and the legislature.
Anybody reasonably familiar with the history of India’s constitutional democracy, would realise that a JLP as conceived by Team Anna would be the worst possible response to its ills. Against the imperative of deepening representative processes and allowing greater room for the expression of opinions by all, the JLP draft conceives of a rigid, hierarchical structure, armed with extraordinary powers. It aims to create a body straddling the realms of the formation of law, its implementation and oversight, seeking a vantage point from which it would coerce and intimidate every other institution into compliance. It does not take more than one reading of the JLP draft -- and a basic familiarity with preceding variants -- to see that it is conceived in monumental ignorance of basic constitutional principles and processes. Fundamentally, the JLP draft is about a belief in messianic deliverance from the difficulties that ordinary people today face.
Waters will not part before this messiah
Investment in this messiah is almost guaranteed to fail, since the waters are not going to part before him. The trek to the promised land will likely be interrupted by basic constitutional difficulties. Legislative bodies will question the JLP's intrusive jurisdiction and seek a better way of codifying their privileges, rather than surrender to the powers of this newly minted constitutional body. Judicial benches will reject the conceits of the council of the wise that seeks to impose its frenetic moralism on established procedures. And the political executive will retain all the necessary means to thwart the JLP's quixotic tilting against windmills.
Team Anna's supposed revolution has laid the pathway towards a collapse of constitutionalism, since the response of its ardent flock to the reality of failure is unlikely to be either thoughtful or constructive. A JLP that performs in accordance with the Team Anna script would guarantee not salvation from corruption, but political gridlock. And that would be the most optimistic forecast, since the alternative could well be the worst form of political despotism.
This bill has gone through thirteen iterations and in its current form is, according to the social campaigner Anna Hazare and his core group of associates (Team Anna) ready for adoption by Parliament. As an elected body representing all the people, Parliament, says India Against Corruption (IAC) -- the larger civil society grouping that Team Anna takes its mandate from -- has the right to enact laws for all the country. But prolonged default on a matter of urgent public importance cannot be tolerated. Parliament has no option than the adoption of a bill cooked up by the IAC. This would be the first step, necessary, though not yet sufficient, towards dealing with the ongoing plague of corruption.
If the frequency with which a word is used indicates how serious is the intent, then the JLP draft, in its most recent variant, scores heavily over the Prevention of Corruption Act, 1988 (PCA) and the Central Vigilance Commission Act, 2003 (CVCA). These are the two most proximate enactments which share the objective of combating corruption. And they are both rather spare in their use of the two words. Maybe this indicates a far greater sense of focus and moral purpose in the JLP than in all earlier laws. Maybe it shows that the earlier enactments paid little attention, or chose willingly to be oblivious, to the magnitude of the task they were intended to address.
A moral dimension is apparent in other respects too. Through the text of the JLP draft, the word “integrity” occurs four times and “impeccable” twice. “Evil” is used once in the preamble, in a quote from a former Secretary-General of the United Nations, and “eminent” is the term of art chosen to characterise somebody who would have the credentials to be on the “search committee” for appointing the JLP.
Ordinary citizens who have tried to understand the arcane processes of the law may often wish that legal texts could show some sparks of life, that there was some way of rendering legalese into a comprehensible idiom. Terms such as “impeccable” and all the rest that the JLP draft scatters liberally around, may seem self-evident in terms of their import to all who suffer the daily scourge of corruption. “Impeccable” to most would be the opposite of what they see in their public servants. But then, to be “impeccable” and to possess “integrity” or “eminence” in the manner that the JLP requires, is beyond most citizens.
Team Anna holds out the promise that ordinary citizens’ lives will soon be governed by higher virtues, embodied in a chosen few who will assume the stewardship of the JLP, as an institution empowered to impose its will on legislature, executive and judiciary in any matter involving the suspicion of financial wrongdoing. In the steadfastness of their virtue, these individuals would transform lives steeped in the banality of just getting along, negotiating any which way through the thicket of a corrupt governance apparatus.
Morality lecture versus legal text
With this lofty mission before it, the JLP has necessarily to use language more appropriate to a morality lecture than a legal text. Indeed, the JLP is in the vision of its proponents a body born in immaculate conception, untouched by the politics that ordinary mortals are mired in. The origin of the JLP is in a construction of “virtue” that lies beyond ordinary politics. It is a transcendental attribute under siege in the mundaneness of ordinary politics.
It is this moral purpose that defines the central theme of the Anna Hazare campaign and determines its trajectory. Aside from “anti-corruption” which is a slogan even more vapid than “pro-motherhood”, the spirit of the movement is represented in the successive drafts of the bill that Team Anna and the IAC have put before the public.
Beginning with an early draft – themed around “men of virtue” – which spoke of empowering Nobel laureates of Indian origin, Bharat Ratna and Magsaysay awardees and five-star ranking military officers to appoint the Lok Pal, the JLP bill has gone through several modifications. It is fair to say though, that every version, despite seeking to achieve precision in terminology and a better fit with constitutional processes as currently practised, bears the imprint of the circumstances in which the bill was conceived.
Since the “men of virtue” draft was rubbished, a subsequent iteration by the IAC, labelled version 2.1 of the JLP bill, changed the appointment criteria. A studied reluctance to yield ground to representative institutions, or individuals chosen through direct elections, still remained manifest. In a selection committee comprising eleven members or more (since after the first round of selections, outgoing members of the JLP were expected to join the committee), only one qualified by virtue of being an elected representative of the people. And this was the Speaker of the Lok Sabha, who made the grade presumably by holding an office above partisan loyalties.
Unexplained twists in logic
Retained in the selection committee were all armed forces personnel of the five-star rank, of whom there have been three in the history of India, with the sole survivor now being well into his 90s. Also included were the two most senior among two categories: Supreme Court judges and high court chief justices.
In the next round, JLP version 2.2 changed the composition of the selection committee considerably. The total number on the body was brought down to ten, and the patently absurd requirement to have a military officer of five-star rank was deleted. The Prime Minister and Leader of the Opposition (LoP) in the Lok Sabha were allowed admission into the hallowed company of the "selection committee" that would pick the Lok Pal. But in the category of judicial representatives, the criterion of choice was changed from the most senior among Supreme Court judges and high court chief justices, to the youngest in both these categories.
The deliberations that led to these formulations have supposedly been open and transparent. But few reasons were advanced for these violent switches of loyalty, between seniority and its opposite. When an explanation was specifically sought, the answer remained unconvincing. Seniority was supposed to endow a judge with wide practical experience and knowledge, to enable informed choices of personnel for a high-powered body. But “seniority” also meant the imminence of retirement, and the likelihood that a judge -- irrespective of his value system -- would be susceptible to the lure of a post-retirement sinecure the government could place before him.
Younger judges in contrast, with the assurance of many years ahead on the bench, were likely to be immune to this inducement.
Mildly put, the logic is questionable. On the other side of the coin, the government and the higher judiciary are always in consultation in matters involving judicial appointments. When appointments to the JLP are imminent, ministers and senior (or junior) judges - both detested categories in the IAC's scale of values -- could connive in putting in place nominees in the higher judiciary, to ensure that between themselves, they have decisive influence over choices made to the JLP. This is a situation that is as probable as the dark scenario that Team Anna sketches.
Fundamentally, every formulation that has been put forward by the IAC has been deeply flawed. And these in turn emanate from an attitude of mind that trusts nobody and believes that a presumption of guilt is warranted in any matter involving a broadly defined notion of “corruption”.
The current version of the JLP Bill (numbered 2.3 on the IAC website) allows – with obvious reluctance -- for two elected representatives on the selection committee, the Prime Minister and Leader of the Opposition in the Lok Sabha (LoP). Two Supreme Court judges and two incumbent high court chiefs are also on the committee, without any further requirement of seniority or otherwise. In a major gesture of modesty, the IAC has unconditionally left that choice to a collegium of judges from the highest judicial bench.
Aside from the political and judicial members, the selection committee would also include the Chief Election Commissioner and the Comptroller and Auditor General of India. At the second and subsequent rounds of selection, all previous chairpersons of the JLP would join the committee.
Men of virtue and eminence to have first call
The concessions to the political and judicial establishments, though, are limited by a caveat: the selection process would now have to confine its choices to the names put forward by a ten member “search committee”. This is where the quality of “eminence” comes in. Five members of the “search” team would be chosen by the selection committee in accordance with the normative criterion of “eminence”, as also the other condition of “impeccable integrity”. And the rest of the “search committee” would be coopted by the five chosen in accordance with the original virtue of "eminence".
To take one aspect of the bill – the procedure of choice of the JLP – successive drafts have oscillated rather wildly in terms of applicable criteria. The “men of virtue” clause was removed at an early stage in the revisions. In a seemingly grudging concession to politics as practised – rather than its idealised vision – the Prime Minister and LoP were given a due role in the choice process. Since the JLP is envisaged to have a judicial function in some respects, there was no way that the men who people that arm of governance could be kept out.
Yet the trust deficit was difficult to dispel. And since the basic premise of Team Anna is "trust nobody", there was a wild oscillation between “most senior”, “youngest”, and finally, anybody who is proposed by a duly constituted “collegium” of judges.
Arvind Kejriwal, a former official of the Indian Revenue Service, now acknowledged strategist of the IAC and the main draftsman of the JLP bill, has often been on record with the view that powers envisaged for the anti-corruption body are no more than those vested in the Income-Tax (I-T) department. The point has a certain validity, though only superficially. The I-T department is authorised to perform the functions of investigation and prosecution. There is also a provision that hearings under a tribunal and a commission that could be set up under the I-T department, would enjoy the status of judicial proceedings.
Powers of judicial appointment and superintendence
The crucial difference here, is that the JLP conceives of trial in special courts. Rather confusingly, draft bill 2.3 prescribes two distinct procedures of trial. Under Chapter X, the JLP would put out an annual assessment of the number of special courts required for the swift trial of all the accused. The Government would set up the required number of special courts and Chief Justices of every High Court would constitute appellate benches to take up appeals and settle them within six months. Under Chapter XII, the JLP is empowered to appoint retired judges or civil servants as judicial officers for conducting trials once investigations are completed. A bench constituted in this fashion would determine the penalty and the punishment that could be imposed on the accused, subject to “approval by a higher authority prescribed” by the JLP.
The power of appointing judicial benches and stipulating deadlines for them is obviously far beyond anything that the Income-Tax authorities can imagine. Indeed, in seeking to gather under one body the powers of investigation, prosecution and trial, the JLP does considerable violence to the doctrine of the separation of powers, a fundamental principle of government by the rule of law.
As a further reality check on Kejriwal’s claim that the JLP bill proposes no greater powers or procedural prerogatives than the rather banal I-T Act, it would be appropriate to just consider one clause, article 7(5) of version 2.3, which reads:
“If during the course of investigation into a complaint, the Lokpal feels that continuance of a government servant in that position could adversely affect the course of investigations or that the said government servant is likely to destroy or tamper with the evidence or influence the witnesses or is likely to continue with corruption, the Lokpal may issue appropriate directions including transfer of that government servant from that position.”
The JLP’s definition of a “public servant” is the same as in the PCA. A “government servant” in turn, is a sub-category. Excluded from this sub-set are elected representatives and judicial officers. In other words, the JLP would have the authority to remove from office and quarantine anybody -- except an elected representative or a judicial officer -- for the duration of its inquiries. Here again is an extraordinary power that the I-T department could not conceive of ever claiming or deploying.
Much public contention has arisen out of the JLP bill’s determination that nobody – not even the highest political and judicial authorities – should be spared from its intrusive attentions. Version 2.3 tries to build in sufficient safeguards to deal with the sensitivities involved, by requiring prior approval of a seven-member bench of the JLP before any investigation or prosecution begins against the Prime Minister or a member of the Union Council of Ministers, any judge of the Supreme Court or a High Court, or any member of Parliament.
Sloppy draftsmanship omits an important point: is it sufficient for a majority of the seven-member bench or has this decision necessarily to be unanimous.
This should be regarded as a minor quibble in comparison to the larger issues. In the context of the extraordinary powers of removal of a public servant that the JLP assumes, it is worthwhile playing out a mind-game. Imagine a situation in which the Prime Minister is suspected of wrongdoing – since one of the issues on which Team Anna is most insistent and inflexible on, is having the PM under the jurisdiction of the JLP. The PM as head of government, in theory, controls every lever of the executive machinery. So by remaining in office while under investigation, he could conceivably, thoroughly subvert the course of inquiries. So then do we, by extending the logic applicable to a “public servant”, give the JLP the power to remove the PM?
Usurpation of parliamentary prerogative
With all the great fervour about, the slightest twinge of sympathy for M.K. Kanimozhi, a woman imprisoned now for over four months on corruption charges, would be considered a sign of moral frailty. Bail applications moved in ever higher judicial forums on her behalf have been turned down because investigations are underway into the “2G scam”. The Supreme Court worries that as a person of influence – and as member of a family that wields enormous political and financial clout despite its ignominious eviction from office in recent general elections to the Tamil Nadu state assembly – Kanimozhi might misuse a freedom provisionally granted, to fatally damage the investigations.
IAC’s credo is a radical formulation of the principle of equality before the law. It is impatient with suggestions that certain individuals (by virtue of occupying particular offices) could be exempted from scrutiny. The JLP as constructed in the IAC imagination, will have absolute authority over every institution and every office, however high. Neither the Chief Justice of India, nor even the Prime Minister, would be spared.
The proposition is infused with a sense of moral righteousness and purpose. And most political parties, anxious not to be out of step with the dominant public mood – as represented by loud and opinionated TV news anchors -- have signed on to the demand for a JLP that covers all.
A short pause to think over the implications of the proposition – using the legal standards applied in the Kanimozhi case -- would bring home its essential absurdity. A woman of very moderate power in comparison to an incumbent prime minister has to be taken into custody and repeatedly denied bail because she could influence the course of investigations for the worse. How then would the law deal with a person occupying the single most important position in the political executive, who quite possibly, could paralyse the investigations? The only credible answer, consistent with current practices, would be that PM against whom investigations are underway, should rightfully be in prison and ineligible for bail till investigations are completed and charges framed.
In a basic sense, the JLP proposals should be read as an intrusion into the sovereign domain of parliament, an unseemly power grab.
The affirmation of this principle – that the PM is answerable to parliament, which should hold him to the highest standard of probity – may occasion some bemusement, since it has long since been lost in Indian parliamentary practice. The clamour for a JLP that will have jurisdiction over the PM, effectively states that the loss of public faith is irretrievable. This inference would be consistent with the general mood afoot, of a complete loss of faith in elected institutions as embodiments of the popular will.
Precisely because of this, it is necessary to make one final attempt at retrieval. Because it allows no room for retrieval, Team Anna is prepared to trample all over another basic doctrine of constitutional governance. Article 50 of the Constitution, part of the Directive Principles, obliges a separation between executive and judiciary. This is a directive that the “State” has to abide by in its public services.
Fatal damage to doctrine of separation of powers
Team Anna conceives of a body that would be the final solution to all problems of misgovernance, and would have powers that straddle the realms of the executive and judiciary. The JLP proposed by the Anna Hazare cabal would have powers of investigation and prosecution in any matter involving the suspicion of corruption. It could impose fines and orders of dismissal from service, it could annul contracts solely at its discretion. Where it is compelled to go by the judicial route, it would have the powers to determine how many special courts should be appointed to deal with cases that it files and determine the composition of the judicial benches that would deal with these cases.
Kejriwal was on a talk-show hosted by Karan Thapar on CNN-IBN on August 20, where he argued frenetically that he had the right to represent his political point of view in any manner thought appropriate. When asked about the damage caused to the representative processes of democratic politics – in even the imperfect form practised in India – he repeatedly made the effort to distinguish between the “people” and parliament. Clearly, in his imagination, India's parliament is elected by aliens from outer space. And a gathering at Ramlila Maidan in Delhi, spectators to an uninformed old man’s decision to deny himself all nourishment for an indefinite length of time, counts for more than all the history and precedent that has gone into the construction of Indian democracy.
Worries about excessive concentration of powers are batted away by Team Anna. The process of judicial review enshrined in the Indian Constitution, they say, would be applicable in any matter decided by the JLP. This would be the final guarantee against an abuse of power by a monstrously empowered JLP. Yet it does not take too long to realise that this is simply begging the question. If it all finally comes down to the judiciary, that should be the focus of attention. Judicial reforms and the various means of making the institution more accountable, should really be where public attention is directed. And similarly with the agencies of the political executive and the legislature.
Anybody reasonably familiar with the history of India’s constitutional democracy, would realise that a JLP as conceived by Team Anna would be the worst possible response to its ills. Against the imperative of deepening representative processes and allowing greater room for the expression of opinions by all, the JLP draft conceives of a rigid, hierarchical structure, armed with extraordinary powers. It aims to create a body straddling the realms of the formation of law, its implementation and oversight, seeking a vantage point from which it would coerce and intimidate every other institution into compliance. It does not take more than one reading of the JLP draft -- and a basic familiarity with preceding variants -- to see that it is conceived in monumental ignorance of basic constitutional principles and processes. Fundamentally, the JLP draft is about a belief in messianic deliverance from the difficulties that ordinary people today face.
Waters will not part before this messiah
Investment in this messiah is almost guaranteed to fail, since the waters are not going to part before him. The trek to the promised land will likely be interrupted by basic constitutional difficulties. Legislative bodies will question the JLP's intrusive jurisdiction and seek a better way of codifying their privileges, rather than surrender to the powers of this newly minted constitutional body. Judicial benches will reject the conceits of the council of the wise that seeks to impose its frenetic moralism on established procedures. And the political executive will retain all the necessary means to thwart the JLP's quixotic tilting against windmills.
Team Anna's supposed revolution has laid the pathway towards a collapse of constitutionalism, since the response of its ardent flock to the reality of failure is unlikely to be either thoughtful or constructive. A JLP that performs in accordance with the Team Anna script would guarantee not salvation from corruption, but political gridlock. And that would be the most optimistic forecast, since the alternative could well be the worst form of political despotism.
Sunday, August 21, 2011
Unravelling the Media Gaze on Corruption
(Written August 11 for the September issue of Seminar magazine)
IN a commentary published on the editorial page of a leading daily newspaper (The Hindu, 30 June 2011), Anil Divan, a senior advocate who has done much to institute a credible regime of accountability in governance processes, argued the case for including the prime minister under the jurisdiction of a tough new law to curb corruption. As a preface to the main argument, Divan set out the basis for heightened public anxiety over corruption: inflation had pared off the equivalent of Rs 2,30,000 crore in value from household expenditures over the last year. Though considerably greater, this was of the same order of magnitude as the Rs 1,22,000 crore estimated to have been the loss to the public exchequer from the gross irregularities in the allocation of radio frequency spectrum slots for the second generation of telecom services (the ‘2G spectrum scam’ in media shorthand).
The direct link drawn between the distress caused by inflation and the money lost to illicit acts by those in authority is arresting, but would seem on closer examination, to be of doubtful validity. First, the estimate of the loss caused to the personal consumption of the Indian population refers to a period of time already past, while the putative losses from sale of the spectrum below its true worth are spread over a period of time stretching into the future. Second, the earnings from the sale of spectrum would not go into personal consumption, but the whole complex of expenditure commitments that the state undertakes, only a small fraction of which would ‘trickle down’ into the personal consumption basket. And third, even if revenue foregone leads, through deficit financing, to a spike in inflation, the precise impact is rather difficult to estimate.
Yet, the analogy bears further examination for what it reveals about the current mood of public anger and anxiety. Transparency in governance has been a hard-fought goal of public campaigns over the last decade and more, an object that seemed within grasp when the right to information (RTI) became law in 2005. The multiplying scale of corruption since then has shown that this was rather too optimistic an expectation. Economic policy was acquiring by this time new dimensions which evaded the scrutiny of even the most vigilant and public-spirited citizen. The financial sector had meanwhile become an ever widening domain involving players with strange and unrecognizable names and instruments that taxed the most robust commonsense. Its customary opacity was compounded several times over by the accelerated adoption of ‘global’ practices.
Information matters for the economy and for public welfare. But information does not offer itself spontaneously to all who seek answers to the questions that vex their daily existence. Not to the job-seeker under the national employment guarantee act, nor to the random individual seeking as a conscientious and civic-minded citizen, to understand – beyond the din of political partisanship – the criteria on which 2G spectrum was allocated.
There are certain quarters that are most unwilling to yield the information they secrete. There is moreover, no pristine source from which information would emanate in a manner that would register in the comprehension of ordinary citizens. Each source has its uniqueness, as too the channels through which the information is conveyed. Several of the big-ticket corruption items that have come to light in recent times, have originated in quarters where public scrutiny has not yet reached. In many cases they involved a nexus with other domains – such as the stockmarket or offshore banking entitities – which are not yet subject to the full rigours of information transparency.
Purely fortuitously, the 24-hour news channel has become an indispensable part of the social dialogue in the years since the RTI took effect. Competition between the media platforms that have emerged over recent boom years, has ensured that there is furious public commentary whenever the slightest hint of malfeasance is detected in the governance process. But the fervour dissipates rather fast in the festival of name-calling that is today called ‘prime-time’ news. And once the cordial insults conclude, there is no occasion to take stock and institute remedies, since the principals have moved on from one cutely-labelled ‘scam’ to another.
The media has not been particularly keen on using RTI to uncover facts that may be of public interest. The reasons really are not mysterious. A broadly invested right is of little interest to the media, which flourishes on privileged access to information. The basic rule of the media universe today is competition. And in the heat of competition, open sources of information – where all have (putatively) equal rights of access – are of little consequence. It is the exclusive that matters, drawn from a jealously protected source. Competitive advantage lies in securing privileged information, rather than using humdrum procedures established by law, to bring information into the public dialogue.
The seeming consensus that today’s government is the most corrupt of all time rests on a subjective judgment and is fostered in part by the media. Even without any credible, objective measure of corruption that reflects the damage it causes to ordinary lives, there is no denying that more acts of official malfeasance are now emerging into the public gaze than ever before.
Two competing narratives within civil society have in turn cropped up on the origins of the problem. One holds that corruption is an evil embedded in the system of politics as practised today, which can only be rooted out by investing an agency with transcendental powers, beyond all that mundane politics can conceive. The other looks at corruption as part of a broader matrix of economic policy, complex in its origins but invariably working in its most baleful effects, to the disadvantage of those at the bottom of the scale of income and wealth.
The former view has gained greater traction within the media, simply because simplicity is always a tempting prospect. For the media to invest in unravelling complexity would be contrary to its basic ethos. To tarry over the riddle of a scam today may come in the way of uncovering another tomorrow. And that would be competitive advantage lost, since in the media universe, every momentary concession to reflection is money squandered.
Brief spans of attention are a feature of the mass media everywhere. The issues that feature on media priorities between these attention lapses though are still of importance. And this is where the unique features of the Indian media need to be taken into account. Much of the fervour that is on display over corruption possibly originates in the nature of the beast that is the media, its commercial calculus and, in particular, the sources of its growth in recent years.
Media growth has obviously been linked with broader economic realities through the last two decades of liberalisation. There is fairly widespread agreement that the Indian economy moved onto a new growth path in the first decade of the millennium. The rebound from the devastatingly poor year of 2002, when the country went through a crippling drought, would in earlier years have been put down as just that – a rebound. But in the imagination of the media and the partisans of economic liberalisation, it was rendered as evidence of India having moved onto a new growth path. Media fortunes began looking up from around then and the figures here speak for themselves.
If the trajectory of the Indian media through the two decades of liberalisation were to be plotted: till upto the midway point and just beyond, the story is of significant developments in the entertainment sector, though not in news and current affairs. Ironically, though the number of satellite channels was rapidly increasing, not one among them had formal authority to broadcast from Indian soil. The first approval for a private broadcaster based in India was granted in fact in early-1998 and this was a venture launched under the deliberately obfuscatory title of an ‘election channel’, the outcome of assiduous lobbying by Rupert Murdoch, the world’s least favourite media baron today, but once considered the man who could make and unmake national governments.
Once granted Murdoch’s Star TV, there was no credible basis for denying other broadcast companies – especially those owned by Indian nationals – the right to uplink from Indian soil. Yet, it took another whole year for uplinking guidelines to be worked out. Incidentally, the number of broadcast channels that sought uplinking rights was, to begin with, rather modest. It took till 2004 and later, when the Indian economy seemed firmly embarked upon a new growth path, for the media as we know it today, to begin taking shape.
The figures say it all: in 2004 according to official data of the Ministry for Information and Broadcasting, there were a total of 130 channels registered in India. By 2011, the figure had increased almost five-fold, to 626. Half of these were registered for news broadcast and a large number of them (though this figure is not precisely known) were exclusive news and current affairs channels.
Before one leaps to the inference that this quantitative explosion led to an improvement in the quality of the public discourse, it is necessary to work out certain linkages. And this requires an understanding of the sources of media revenue. It is no breaking news that the main source of revenue for the Indian media is the advertiser. And in a reflection of the extra stimulus to growth, total advertising spending in the Indian economy (excluding the small, classified ads in the print media) is estimated to have doubled between 2003 and 2008.
Advertising spend figures have always been rather hard to come by, but clearly the record of growth through this five-year interval was a window of opportunity for the Indian media never seen before. A rarity till half-a-decade back, the 24 hours news channel in this time acquired a pervasive presence across all regions. And arguably, among these, the English channel assumed an influence disproportionate to its actual viewership for reasons of audience demographics. Since the English-language audience simply has more purchasing power, that was where all the advertising money tended to flow. And because it embodies the vanities, ambitions and anxieties of India’s globalising middle class, the English language media acquired a pronounced sway over matters of policy and public affairs.
Further light would be cast by a disaggregation of the nature of India’s recent growth process. The principal impetus to economic growth in the new millennium has come from an increase in capital formation rates. Total consumption expenditure as a proportion of GDP has fallen, but while the government’s contribution here has stayed at a relatively high level, the share of the household sector has shown important compositional shifts. The traditional staples of subsistence – food, clothing and shelter – have cumulatively shown a sharp fall in relation to the total. The growing segments of private final consumption have indeed been those of special interest to the upper and middle strata, such as transportation equipment (read automobiles), communication, health care and recreational, cultural and educational services.
Another notable change in the country’s economic profile in this period was the growing interest of foreign investors. After a decade-and-a-half of fairly indifferent or only sporadic interest in the Indian market – as a destination for both direct and portfolio investment – foreign capital began flowing into the Indian stockmarkets in significant magnitudes from about 2003-04. As interesting as the Indian growth story since then has been the huge appreciation in asset prices. Taking just one indicator: market capitalisation on the Bombay Stock Exchange, i.e., the total value of shares listed on this most active of India’s bourses, went up from just over 23% of GDP in 2002-03 to over 100% in 2007-08. Anecdotally, there is more than ample evidence of similar forces at play in the real estate market.
The years since 2003 were a period of easy credit availability, low interest rates and high liquidity in the economy. Conditions that could have resulted in galloping commodity prices, contributed instead, to an asset price inflation. This rise in asset prices beyond what the ‘fundamentals’ warranted, could have contributed in the short-term to the high rate of economic growth, by providing a stimulus to personal consumption by asset holders. This so-called ‘wealth effect’ has been a relatively under-researched aspect of the Indian growth story, but there is a credible case to be made that it has been a factor.
There was always the inherent danger that this growth story could implode. And as with the unhappy ending that most such growth stories suffer, inflation proved the villain. Prior to 2004, the unstated strategy of combating inflation was to impose a severe variety of fiscal austerity on those at the lower end of the scale of income and wealth. There was an enormous accretion to food stocks in the 1990s, despite a steep decline in the growth rate of agriculture. For those who chose not to be beguiled by neo-liberal babble about the Indian consumer diversifying her daily food intake as she ascended the income scale, the seeming embarrassment of riches in food supply, was clearly seen to be the consequence of suppressing demand for food amongst the poor. The low-inflation experience of the first half of the two decades of liberalization, in other words, was about the economic disenfranchisement of a vast part of the country through the ostensibly neutral and fair working of the market.
Add to this the increase in inequality through the two decades of economic liberalization, on which there is by now a fairly solid scholarly consensus, and we have all the ingredients of a pattern of disequalising growth. Media growth is a sub-plot within this broader story, propelled as it is by advertising expenditure which, as is almost invariably the case, outgrew increases in corporate profitability, but tended to mirror the underlying patterns of consumption of the middle and upper strata.
For evident reasons, the media discourse on corruption would reflect the unique universe of concerns of the middle and upper strata. In 2004 though, just as the Indian economy seemed to be launching itself onto a new growth path, a rather severe political inconvenience cropped up. The party that had run an election campaign on the ‘shining India’ plan came a cropper in nation-wide elections, leading to much muttered acknowledgment amongst the pundits of the media, that the growth momentum had left behind too many of India’s people in its onward rush. Yet, when the newly elected government in 2005 brought in an employment guarantee act to ensure that the poor did not continue being left out, there were dire predictions by media pundits about a fiscal catastrophe to come. The flood-tide of populism, they darkly warned, would sweep all before it, leaving in ruins the hard-fought structure of fiscal discipline erected over a decade-and-a-half of economic reforms.
It did not take long for inflation to reemerge, inducing a policy response of tightening interest rates and threatening the entire illusion of newly acquired middle class wealth. Media commentary has highlighted middle class anxieties over rapidly rising monthly instalments on housing and vehicle loan repayments. But at the two decade mark of the launch of the economic liberalisation programme that was in a sense, the moment of rebirth for the Indian middle class, media commentary was strangely subdued. The anchor of the global economy, the U.S. dollar, was threatened by the prospect of a U.S. government default on interest payments. And the pursuit of an alternate mooring in the Euro-zone was being formidably deterred by the mounting evidence of debt meltdown in some of its most significant economies.
The media chooses then to turn away from complexity and focus on visceral sentiment. The market had isolated an entire strata of the Indian population and made them distant observers of the economy with no power to influence its course. But politics had brought them right back as fully enfranchised participants in the economy with a guaranteed right to employment. A settled course of economic progress had been rudely disturbed as a consequence. It is entirely in character in the context for the media – and indeed for the classes that speak through it – to question the very process of democratic governance, which all too often sacrifices economic optimality for political expediency.
Stepping back from the fevered media commentary on the matter and taking a relatively detached view, ‘corruption’ would seem precisely the process through which established relations of power conspire to render economic justice a vacuous slogan. India has a formal system of law that guarantees the rights and entitlements of all. But this has been erected on a substratum of rampant inequalities, where a dynamic is at work to preserve, perpetuate and magnify these inequalities.
An elaborate apparatus of governance seemingly gives life to the formal system of law but in the real world, the formal system of law is constantly being subverted by processes that could broadly be characterised as ‘corruption’. These are processes that reflect the real power dynamics of a highly unequal society and remain for the most part unremarked. It is only when consensus breaks down within the dominant power groups and the sharing of the spoils becomes contentious, that a public din over corruption ensues. And the media does little to enlighten in the context, since it still sees little reward in seeking to outgrow its self-assigned role as the echo-chamber for elite perceptions.
August 11 2011
IN a commentary published on the editorial page of a leading daily newspaper (The Hindu, 30 June 2011), Anil Divan, a senior advocate who has done much to institute a credible regime of accountability in governance processes, argued the case for including the prime minister under the jurisdiction of a tough new law to curb corruption. As a preface to the main argument, Divan set out the basis for heightened public anxiety over corruption: inflation had pared off the equivalent of Rs 2,30,000 crore in value from household expenditures over the last year. Though considerably greater, this was of the same order of magnitude as the Rs 1,22,000 crore estimated to have been the loss to the public exchequer from the gross irregularities in the allocation of radio frequency spectrum slots for the second generation of telecom services (the ‘2G spectrum scam’ in media shorthand).
The direct link drawn between the distress caused by inflation and the money lost to illicit acts by those in authority is arresting, but would seem on closer examination, to be of doubtful validity. First, the estimate of the loss caused to the personal consumption of the Indian population refers to a period of time already past, while the putative losses from sale of the spectrum below its true worth are spread over a period of time stretching into the future. Second, the earnings from the sale of spectrum would not go into personal consumption, but the whole complex of expenditure commitments that the state undertakes, only a small fraction of which would ‘trickle down’ into the personal consumption basket. And third, even if revenue foregone leads, through deficit financing, to a spike in inflation, the precise impact is rather difficult to estimate.
Yet, the analogy bears further examination for what it reveals about the current mood of public anger and anxiety. Transparency in governance has been a hard-fought goal of public campaigns over the last decade and more, an object that seemed within grasp when the right to information (RTI) became law in 2005. The multiplying scale of corruption since then has shown that this was rather too optimistic an expectation. Economic policy was acquiring by this time new dimensions which evaded the scrutiny of even the most vigilant and public-spirited citizen. The financial sector had meanwhile become an ever widening domain involving players with strange and unrecognizable names and instruments that taxed the most robust commonsense. Its customary opacity was compounded several times over by the accelerated adoption of ‘global’ practices.
Information matters for the economy and for public welfare. But information does not offer itself spontaneously to all who seek answers to the questions that vex their daily existence. Not to the job-seeker under the national employment guarantee act, nor to the random individual seeking as a conscientious and civic-minded citizen, to understand – beyond the din of political partisanship – the criteria on which 2G spectrum was allocated.
There are certain quarters that are most unwilling to yield the information they secrete. There is moreover, no pristine source from which information would emanate in a manner that would register in the comprehension of ordinary citizens. Each source has its uniqueness, as too the channels through which the information is conveyed. Several of the big-ticket corruption items that have come to light in recent times, have originated in quarters where public scrutiny has not yet reached. In many cases they involved a nexus with other domains – such as the stockmarket or offshore banking entitities – which are not yet subject to the full rigours of information transparency.
Purely fortuitously, the 24-hour news channel has become an indispensable part of the social dialogue in the years since the RTI took effect. Competition between the media platforms that have emerged over recent boom years, has ensured that there is furious public commentary whenever the slightest hint of malfeasance is detected in the governance process. But the fervour dissipates rather fast in the festival of name-calling that is today called ‘prime-time’ news. And once the cordial insults conclude, there is no occasion to take stock and institute remedies, since the principals have moved on from one cutely-labelled ‘scam’ to another.
The media has not been particularly keen on using RTI to uncover facts that may be of public interest. The reasons really are not mysterious. A broadly invested right is of little interest to the media, which flourishes on privileged access to information. The basic rule of the media universe today is competition. And in the heat of competition, open sources of information – where all have (putatively) equal rights of access – are of little consequence. It is the exclusive that matters, drawn from a jealously protected source. Competitive advantage lies in securing privileged information, rather than using humdrum procedures established by law, to bring information into the public dialogue.
The seeming consensus that today’s government is the most corrupt of all time rests on a subjective judgment and is fostered in part by the media. Even without any credible, objective measure of corruption that reflects the damage it causes to ordinary lives, there is no denying that more acts of official malfeasance are now emerging into the public gaze than ever before.
Two competing narratives within civil society have in turn cropped up on the origins of the problem. One holds that corruption is an evil embedded in the system of politics as practised today, which can only be rooted out by investing an agency with transcendental powers, beyond all that mundane politics can conceive. The other looks at corruption as part of a broader matrix of economic policy, complex in its origins but invariably working in its most baleful effects, to the disadvantage of those at the bottom of the scale of income and wealth.
The former view has gained greater traction within the media, simply because simplicity is always a tempting prospect. For the media to invest in unravelling complexity would be contrary to its basic ethos. To tarry over the riddle of a scam today may come in the way of uncovering another tomorrow. And that would be competitive advantage lost, since in the media universe, every momentary concession to reflection is money squandered.
Brief spans of attention are a feature of the mass media everywhere. The issues that feature on media priorities between these attention lapses though are still of importance. And this is where the unique features of the Indian media need to be taken into account. Much of the fervour that is on display over corruption possibly originates in the nature of the beast that is the media, its commercial calculus and, in particular, the sources of its growth in recent years.
Media growth has obviously been linked with broader economic realities through the last two decades of liberalisation. There is fairly widespread agreement that the Indian economy moved onto a new growth path in the first decade of the millennium. The rebound from the devastatingly poor year of 2002, when the country went through a crippling drought, would in earlier years have been put down as just that – a rebound. But in the imagination of the media and the partisans of economic liberalisation, it was rendered as evidence of India having moved onto a new growth path. Media fortunes began looking up from around then and the figures here speak for themselves.
If the trajectory of the Indian media through the two decades of liberalisation were to be plotted: till upto the midway point and just beyond, the story is of significant developments in the entertainment sector, though not in news and current affairs. Ironically, though the number of satellite channels was rapidly increasing, not one among them had formal authority to broadcast from Indian soil. The first approval for a private broadcaster based in India was granted in fact in early-1998 and this was a venture launched under the deliberately obfuscatory title of an ‘election channel’, the outcome of assiduous lobbying by Rupert Murdoch, the world’s least favourite media baron today, but once considered the man who could make and unmake national governments.
Once granted Murdoch’s Star TV, there was no credible basis for denying other broadcast companies – especially those owned by Indian nationals – the right to uplink from Indian soil. Yet, it took another whole year for uplinking guidelines to be worked out. Incidentally, the number of broadcast channels that sought uplinking rights was, to begin with, rather modest. It took till 2004 and later, when the Indian economy seemed firmly embarked upon a new growth path, for the media as we know it today, to begin taking shape.
The figures say it all: in 2004 according to official data of the Ministry for Information and Broadcasting, there were a total of 130 channels registered in India. By 2011, the figure had increased almost five-fold, to 626. Half of these were registered for news broadcast and a large number of them (though this figure is not precisely known) were exclusive news and current affairs channels.
Before one leaps to the inference that this quantitative explosion led to an improvement in the quality of the public discourse, it is necessary to work out certain linkages. And this requires an understanding of the sources of media revenue. It is no breaking news that the main source of revenue for the Indian media is the advertiser. And in a reflection of the extra stimulus to growth, total advertising spending in the Indian economy (excluding the small, classified ads in the print media) is estimated to have doubled between 2003 and 2008.
Advertising spend figures have always been rather hard to come by, but clearly the record of growth through this five-year interval was a window of opportunity for the Indian media never seen before. A rarity till half-a-decade back, the 24 hours news channel in this time acquired a pervasive presence across all regions. And arguably, among these, the English channel assumed an influence disproportionate to its actual viewership for reasons of audience demographics. Since the English-language audience simply has more purchasing power, that was where all the advertising money tended to flow. And because it embodies the vanities, ambitions and anxieties of India’s globalising middle class, the English language media acquired a pronounced sway over matters of policy and public affairs.
Further light would be cast by a disaggregation of the nature of India’s recent growth process. The principal impetus to economic growth in the new millennium has come from an increase in capital formation rates. Total consumption expenditure as a proportion of GDP has fallen, but while the government’s contribution here has stayed at a relatively high level, the share of the household sector has shown important compositional shifts. The traditional staples of subsistence – food, clothing and shelter – have cumulatively shown a sharp fall in relation to the total. The growing segments of private final consumption have indeed been those of special interest to the upper and middle strata, such as transportation equipment (read automobiles), communication, health care and recreational, cultural and educational services.
Another notable change in the country’s economic profile in this period was the growing interest of foreign investors. After a decade-and-a-half of fairly indifferent or only sporadic interest in the Indian market – as a destination for both direct and portfolio investment – foreign capital began flowing into the Indian stockmarkets in significant magnitudes from about 2003-04. As interesting as the Indian growth story since then has been the huge appreciation in asset prices. Taking just one indicator: market capitalisation on the Bombay Stock Exchange, i.e., the total value of shares listed on this most active of India’s bourses, went up from just over 23% of GDP in 2002-03 to over 100% in 2007-08. Anecdotally, there is more than ample evidence of similar forces at play in the real estate market.
The years since 2003 were a period of easy credit availability, low interest rates and high liquidity in the economy. Conditions that could have resulted in galloping commodity prices, contributed instead, to an asset price inflation. This rise in asset prices beyond what the ‘fundamentals’ warranted, could have contributed in the short-term to the high rate of economic growth, by providing a stimulus to personal consumption by asset holders. This so-called ‘wealth effect’ has been a relatively under-researched aspect of the Indian growth story, but there is a credible case to be made that it has been a factor.
There was always the inherent danger that this growth story could implode. And as with the unhappy ending that most such growth stories suffer, inflation proved the villain. Prior to 2004, the unstated strategy of combating inflation was to impose a severe variety of fiscal austerity on those at the lower end of the scale of income and wealth. There was an enormous accretion to food stocks in the 1990s, despite a steep decline in the growth rate of agriculture. For those who chose not to be beguiled by neo-liberal babble about the Indian consumer diversifying her daily food intake as she ascended the income scale, the seeming embarrassment of riches in food supply, was clearly seen to be the consequence of suppressing demand for food amongst the poor. The low-inflation experience of the first half of the two decades of liberalization, in other words, was about the economic disenfranchisement of a vast part of the country through the ostensibly neutral and fair working of the market.
Add to this the increase in inequality through the two decades of economic liberalization, on which there is by now a fairly solid scholarly consensus, and we have all the ingredients of a pattern of disequalising growth. Media growth is a sub-plot within this broader story, propelled as it is by advertising expenditure which, as is almost invariably the case, outgrew increases in corporate profitability, but tended to mirror the underlying patterns of consumption of the middle and upper strata.
For evident reasons, the media discourse on corruption would reflect the unique universe of concerns of the middle and upper strata. In 2004 though, just as the Indian economy seemed to be launching itself onto a new growth path, a rather severe political inconvenience cropped up. The party that had run an election campaign on the ‘shining India’ plan came a cropper in nation-wide elections, leading to much muttered acknowledgment amongst the pundits of the media, that the growth momentum had left behind too many of India’s people in its onward rush. Yet, when the newly elected government in 2005 brought in an employment guarantee act to ensure that the poor did not continue being left out, there were dire predictions by media pundits about a fiscal catastrophe to come. The flood-tide of populism, they darkly warned, would sweep all before it, leaving in ruins the hard-fought structure of fiscal discipline erected over a decade-and-a-half of economic reforms.
It did not take long for inflation to reemerge, inducing a policy response of tightening interest rates and threatening the entire illusion of newly acquired middle class wealth. Media commentary has highlighted middle class anxieties over rapidly rising monthly instalments on housing and vehicle loan repayments. But at the two decade mark of the launch of the economic liberalisation programme that was in a sense, the moment of rebirth for the Indian middle class, media commentary was strangely subdued. The anchor of the global economy, the U.S. dollar, was threatened by the prospect of a U.S. government default on interest payments. And the pursuit of an alternate mooring in the Euro-zone was being formidably deterred by the mounting evidence of debt meltdown in some of its most significant economies.
The media chooses then to turn away from complexity and focus on visceral sentiment. The market had isolated an entire strata of the Indian population and made them distant observers of the economy with no power to influence its course. But politics had brought them right back as fully enfranchised participants in the economy with a guaranteed right to employment. A settled course of economic progress had been rudely disturbed as a consequence. It is entirely in character in the context for the media – and indeed for the classes that speak through it – to question the very process of democratic governance, which all too often sacrifices economic optimality for political expediency.
Stepping back from the fevered media commentary on the matter and taking a relatively detached view, ‘corruption’ would seem precisely the process through which established relations of power conspire to render economic justice a vacuous slogan. India has a formal system of law that guarantees the rights and entitlements of all. But this has been erected on a substratum of rampant inequalities, where a dynamic is at work to preserve, perpetuate and magnify these inequalities.
An elaborate apparatus of governance seemingly gives life to the formal system of law but in the real world, the formal system of law is constantly being subverted by processes that could broadly be characterised as ‘corruption’. These are processes that reflect the real power dynamics of a highly unequal society and remain for the most part unremarked. It is only when consensus breaks down within the dominant power groups and the sharing of the spoils becomes contentious, that a public din over corruption ensues. And the media does little to enlighten in the context, since it still sees little reward in seeking to outgrow its self-assigned role as the echo-chamber for elite perceptions.
August 11 2011
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