Can the watchdog watch itself? Indian media and self-regulation

by Saumya Ramakrishnan The fourth pillar of democracy, the media, has never hogged more limelight than it has in the last few years in India. This is especially true in the aftermath of the Guwahati molestation incident, when a journalist continued to record the act of a teenage girl being molested by a mob for half an hour and later justified it by saying that he did so to enable the authorities to identify the perpetrators of the crime. Following this incident, the dubious role of the media in covering sensitive issues such as these was put to test. Also, last month, at Mangalore, the cameraman of a news channel was accused of conspiring with a group of self-proclaimed “activists” in an attack against guests of a homestay in the city, accusing them of carrying on illegal activities. In another incident,  the Press Council of India (PCI) Chairman, Justice Markandey Katju,  commenting  on the reportage of Anna Hazare’s agitation, said that a large section of the print and electronic media was swayed by emotions and became a part of the movement. Did the media exceed its mandate, becoming the news maker instead of playing the role of a news disseminator? The media is not just the fourth pillar but also the backbone of any democratic society. This is because while the legislature makes the laws, the judiciary interprets it and the executive implements it, it is the media which acts as the watchdog of the three pillars, in order to ensure that they are performing their constitutional duties, thus calling for accountability. Considering the fact that the media performs such an important function, it is particularly important that there should be some authority which acts as its watchdog, lest the media take undue advantage of its role. In the last decade, there have been incidents where the media has taken advantage of its role – be it tabloidization of news, fake sting operations to settle personal scores, paid news especially during elections – without any concrete action being taken against the wrong-doers. [caption id=“attachment_431568” align=“alignleft” width=“380”] The challenges in tackling the might of the media without compromising its liberty are many.  Reuters[/caption] The challenges in tackling the might of the media without compromising its liberty are many. Any future legislation seeking to exert any form of control or censorship on the media needs to take into account a multitude of complex factors like viability of a publication as a business, national security vis-à-vis journalistic anonymity, competition in the media, amongst other things. In April 2012, a Private Member’s Bill called the “Print and Electronic Media Standards and Regulation Bill, 2012” was circulated in the Parliament, drafted by Congress MP Meenakshi Natarajan. However, she was absent the day she was scheduled to introduce in the Parliament and hence the Bill, till date, has not been placed before the House. The Bill calls for the establishment of a media regulatory authority which has the power to ban or suspend the coverage of an event or incident that may pose a threat to national security from foreign or internal sources. The seven-member regulatory body, which would be selected by a panel consisting of a Supreme Court judge, the Information and Broadcasting Minister and three members appointed by the central government, would have powers equivalent to that of a civil court. Thus, it excludes the stakeholders in the media and deprives them of a voice in issues that affect them directly. Also, the Bill proposed a fine of upto Rs 50 lakh on media houses that commit offences specified under the Bill. The other penalties included a ban of upto eleven months on the offenders, or in severe cases, even cancellation of their license. While the Bill purports to create a water tight regulation for the media, it excludes the regulatory authority from the purview of the Right to Information Act, thus giving itself total control to oversee media activities without itself being accountable to any other body. Besides, a provision in the Bill – “no civil court will have jurisdiction of any matter which the Authority is empowered to determine” – takes away any scope of appeal, thus branding the authority as the most empowered one to decide on matters which come under its purview. It is unlikely that the Bill will ever see the light of the day. However, it has raised significant questions about regulating the media – whether self-regulation is the way forward or is a statutory body with substantial legal powers required to regulate the media? If the latter is to hold true, how does one draw the line between regulation and freedom of speech? It is not surprising then that various sections of the media and even the Parliament have left no stone unturned to criticize the Bill, calling it a Bill that purports to impose a gag on the media and control it from every angle  possible . However, this is not the first time that an attempt has been made by the Legislature to keep a check on the media. Article 19(1)(a) of the Constitution of India, granting the fundamental right to freedom of speech and expression, has been interpreted by the Supreme Court of India as including the freedom of the press. However, as per Article 19(2), like any form of freedom of speech and expression, it is subject to reasonable restrictions, that is to say that one cannot disseminate any information to the public without any sort of accountability or responsibility. While on one hand the Legislature tries to pass laws curbing the freedom of the press; on the other, the members of the media try to thwart any attempt to bring any form of legislation or censorship to govern the media. The first major “attack” on the Indian media came during the Emergency in the late 1970s when “The Prevention of Publication of Objectionable Matters Ordinance, 1975” was issued. This ordinance required news articles to be censored even before being published, along with penalties for a ‘hostile press’. At that time, the media relented; and “crawled, when asked to kneel down”. However, the said ordinance was withdrawn soon after Indira Gandhi lost the elections held immediately after calling off the Emergency. In 1988, in a clear reminder of the days of the Emergency, Rajiv Gandhi sought to get the Anti-Defamation Bill passed, a legislation which aimed to target journalists who wrote critical articles about politicians and placed the burden of proof on the accused in defamatory suits. The Bill also provided for summary trials and prescribed a minimum period of imprisonment for journalists. It took a long struggle by Indian journalists including a protest march for the Bill to be ultimately withdrawn. It is not that there isn’t any watchdog for the media. The PCI was first set up in the year 1966 on the recommendations of the First Press Commission with the object of preserving the freedom of the press and of maintaining and improving the standards of the press in India. It is a statutory, quasi judicial body that functions under the aegis of the Press Council Act of 1978. The PCI is headed by a Chairman, who has by convention, been a retired judge of the Supreme Court of India. There are twenty-eight other members of whom three are from Lok Sabha, two from Rajya Sabha, six editors of newspapers, seven working journalist, six persons in the business of managing papers, one person from a news agency and three persons represent cultural, literary and legal fields as nominees of the Sahitya Academy, University Grants Commission and the Bar Council of India. Saumya Ramakrishnan obtained her Bachelors in Mass Media with a specialization in Journalism from Jai Hind College, Mumbai. She is currently pursuing her LLB from Government Law College, Mumbai. This story is republished from Bar & Bench. Firstpost regularly features content from Bar & Bench . The PCI also acts as an advisory authority to the government on matters affecting media freedom and has drawn up a set of norms on media reporting. While the genesis behind the formation of the PCI was noble, its existence is merely superficial in the present day, serving little or no purpose. Neither is it representative of the views of the media, nor does it have any real legal power to take any punitive or corrective action against the offending publishers. It has merely been an authority that publishes reports analysing the actions and words of the media, reports which are not acted upon. The independent functioning of any organisation is also dependant on where it derives its funds from. The PCI is funded by revenue collected by it as fee levied son the registered newspapers in the country on the basis of their circulation. No fee is levied on newspapers with circulation less than 5000 copies. The deficit is made good by way of grants by the Central Government, through the Ministry of Information and Broadcasting. However, it is not an authority created by the press voluntarily, and the press at large considers the council to be non-reflective of its interests and stake. It is imperative to look at how press regulatory bodies across democratic countries in the world function to understand where the Indian press is missing the point. The press in the UK has been governed by self-regulation for the last five decades. In 1953, a voluntary Press Council was established in the UK which aimed to maintain high ethical standards of journalism and promote press freedom. However, it failed to be effective as it was observed that some publications failed to follow the basic ethics of journalism. The British government then considered either enacting a law relating to privacy and a “right of reply” or making the Press Council a statutory body capable of enforcing legal sanctions. However, it was inevitable that the consequences of such a move will be far reaching and hence discussions began in 1990 on what would be the most effective way to ensure the independence of the media without compromising on ethics and standards. The Committee entrusted with the task suggested the formation of a Press Complaints Commission (PCC) and gave it a time period of eighteen months to demonstrate “that non-statutory self-regulation can be made to work effectively. This is a stiff test for the press. If it fails, we recommend that a statutory system for handling complaints should be  introduced .” The UK press left no stone unturned to seize the moment and swiftly established an independent PCC in the beginning of 1991. Till date, the PCC has been functioning as an independent body administering the system of self-regulation for the press. It deals with complaints against any article in any publication or the general editorial content and the conduct of journalists. The PCC is funded by an annual levy it charges newspapers and magazines. All newspapers and magazines voluntarily contribute to the costs of, and adhere to the rulings of, the Commission, making the industry self-regulated. Besides, in 2011, the newspaper and periodical industry framed the ‘Editor’s Code of Practice’, which was ratified by the PCC and is effective from 1 January, 2012. However, like the Press Council of India, the PCC does not have any legal powers and it largely banks on the press accepting its recommendations, which it mostly does considering they have come forward to form it. The sanctions that it is authorised to impose include negotiation, critical adjudication, letter of admonishment, and formal referral of an editor to their publisher for action. Thus, there are no monetary penalties that can be imposed or suspension of licenses by the PCC. Also, another disadvantage of the self-regulatory body is that there is a possibility of it overlooking some wrong-doings of the press, in order to protect the large interests of the media as an industry. For example, the PCC has been considered ineffective in the case of the phone hacking scandal that rocked the British Parliament last year, with President David Cameron describing PCC as ‘inadequate’ and ‘absent’ during the scandal. While there are pros and cons for both legal regulation and self-regulation, in India, legal regulation in the form of a statutory body which has merely been a ‘toothless tiger’ has not served the purpose for which it was constituted. Neither has the PCI been able to ensure press freedom, evidenced by frequent attacks on the press from various quarters nor has it been able to keep an effective check on the malpractices in the media, evidenced by inaction on several complaints of inaccurate information and paid news against some newspapers. The way forward in India could be to empower the Press Council of India, allowing it to take punitive action in the form of punitive monetary penalties, suspension of license, etc. Also, it must be made more representative of the stakeholders in the media, thus giving them a voice. In fact, the British model of PCC may be adopted with members of the press must coming together to draft a code of practice. Self-regulation deserves a chance in this country. Giving an opportunity to the media to regulate itself and show efficiency might throw up some surprising results indeed. Saumya Ramakrishnan obtained her Bachelors in Mass Media with a specialization in Journalism from Jai Hind College, Mumbai. She is currently pursuing her LLB from Government Law College, Mumbai. This story is republished from Bar & Bench. Firstpost regularly features content from Bar & Bench .