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Musings on the media in the dock by Sashi Kumar

The fourth pillar of democracy would cease to be free if it is made accountable to one or more of the other pillars.

Much of the media, says Justice Markandey Katju, the new Chairman of the Press Council of India, is of very poor intellectual level. That, even for a former judge, would be being judgmental — except that sections of the media concerned seem hell-bent on proving him right. Setting out to prove how seriously responsible it can be, the Indian Broadcast Editors' Association (BEA) issued 10 guidelines on how the birth of Aishwarya Rai Bachchan's first child should be covered by TV channels. If the media obsession with the event that necessitated such a preemptive code is a measure of the intellectual level obtaining in the sector, the benefit of the doubt goes to Justice Katju.

On the other hand, Justice Katju may have got it all wrong, because intellectualism and the media have little to do with each other. If anything, they are antithetical to each other. Some of the best thinkers of our time — Noam Chomsky, Jacques Derrida, Pierre Bourdieu, to name a few — have dwelt on how the media compromise, co-opt and corrupt intellectuals, and why they must resist the “temptation of the media.”

Be that as it may, Justice Katju's more substantive case for expanding the scope and powers of the Press Council and for the regulation of the news media calls for critical reflection. The main thrust of his argument is that when politicians, bureaucrats, professional bodies such as the Medical Council of India, the Bar Council of India and auditors are subject to such regulation, and when even judges of the High Courts and the Supreme Court can be impeached, there is no reason why the press alone should claim exemption. He persuasively cites the example of regulatory frameworks in democracies and media dispensations in the western countries. Self-regulation, he points out with a flourish, is an oxymoron.

But it is precisely theexceptionalist premise of the free mediathat sets it apart from other institutions and agencies, and makes it asine qua nonof democracy. In a democracy, the first three pillars — the Executive, the Legislature and the Judiciary — are constitutionally accountable to the people. The government is responsible through the legislature; the legislators have to seek their mandate from the people; even judges, as we were recently reminded, can be impeached by Parliament. It is only the fourth pillar of democracy, or the fourth estate, which is not institutionally or constitutionally accountable. And indeed, that is the way it should be. For, if the fourth pillar were to be so accountable, it would lend itself to the systemic oversight of one or more of the other pillars, and would therefore cease to be a free press in the true sense of the term.

The Italian philosopher, Umberto Eco, explains this exclusive privilege of the media in terms of a conundrum. “Mass Media,” he says, “can influence the political life of a country by creating opinion. But the traditional powers cannot control or criticise the mass media other than through the media itself; otherwise their intervention becomes a sanction — either executive, legislative or judiciary — which can happen only if the media commits crimes or appear to lead to the formation of political and institutional imbalance.” Eco, however, hastens to add: “Since the media … cannot be exempt from criticism, it is a condition of health for a democratic society thatthe press put itself on the stand” (emphasis added). A natural instinct for self-preservation through self-regulation would, in this scheme of things, best guarantee unfettered and responsible media freedom.

The situation we have today, though, has the appearance of a profligate news media being, perforce, put in the dock. The profligacy is seen as being so generic that when a court of law fines a TV channel Rs.100 crore as damages for showing the wrong photograph (of the complainant, Justice P.B. Sawant, who, incidentally, was a former Chairman of the Press Council of India) with a report on judicial corruption, it hardly creates a ripple in the public sphere. The sense, if anything, is that the irresponsible, opinionated and corrupt media are finally getting their just desserts.

The media, no doubt, have only themselves to blame for bringing things to such a pass. The disconnect with the public, which has been in the making for some time now, has eroded the moral and institutional high ground the media have enjoyed, so much so that talk of reining in the media through firm measures does not appear misplaced. It is fertile ground to sow seeds of doubt about the continued efficacy of self-regulation and to raise the demand for a regulator other than of and by the media themselves.

The context and the track record of press freedom in India, however, demand a second look at the idea of an external regulator. Freedom of the press here is not as unquestionably a given as it is in the U.K. or the U.S. An unbridled press synonymous with democracy as we know it evolved over centuries of trials and tribulations in England, and is now an ingrained part of its political and social psyche. A free press is firmly written into the Constitution of the U.S.; the First Amendment specifically forbids Congress from making any laws that abridge the freedom of the press.

There is no such implicit internalisation of, or explicit constitutional prescription for, press freedom in the Indian situation. It is essentially inferred and derived from Article 19(1)(a) and (g) in the Fundamental Rights chapter of the Constitution, which speak of the right to freedom of expression and movement, and to practise any trade or profession, within reasonable restraints. The Emergency of 1975 was the most serious, but not the only, attempt to thwart this freedom. Draconian laws against the press have been mooted by succeeding governments, but foiled by the joint resistance of the media fraternity and the people. The legislature and the judiciary too have borne down on and beleaguered journalists in the name of breach of privilege and contempt of court. Freedom of the press here is, thus, not such an inviolate or settled right that can be taken for granted. It may therefore be prudent to tread softly in terms of statutory regulation lest it becomes another mechanism to wield pressure on the media.

The indication from the public discourse thus far on the intended regulation is that it is likely to have a deterrent slant and be directed at the news content purveyed by television and the print media. Regulation of content by a statutory body is at best a euphemism for censorship. On the other hand, a forum to address and remedy grievances through a process of mediation, much like the Press Complaints Commission in the U.K., would be unexceptionable. The law of the land and the civil and criminal courts must handle the rest. That the legal route is cumbersome and that justice is routinely delayed cannot become a selective alibi only against the press, and for regulation.

In fact, much of the distortion and prejudice circulating in the news media, particularly television, harks back to the lack of real pluralism in the sector. Stiff entry barriers and whimsical distribution costs have skewed the market in favour of a club of big players who collectively push the same consumerist values and narrow class agenda. It is the structural disparity in the sector that is crying out for reform and regulation. If the Press Council can move to facilitate diversity in the media space and enable a multi-tiered milieu that caters to different segments of the people, it would at once pave the way for a more congenial and equitable media setting, and save itself the tedious and dubious prospect of cracking the whip to bring errant media practitioners to heel.

The Council will, even to attempt this, have to be recast with the necessary mandate and expanded to include print, broadcast and online media. Technological convergence makes it redundant to have separate bodies attending to the different forms of the media. The media, and media freedom, have become indivisible and must be dealt with as such. Media organisations, on their part, must reestablish their credibility and link with the people to continue to assume the freedoms that define the democratic press. They must, equally importantly, carry out a self reality check to see whether their obsession with thebusinessof the media is driving this definitivejournalismof the media out of their market.

(Sashi Kumar is Chairman of the Media Development Foundation, based in Chennai.)