The Media Council Bill-2010: An Analysis

“The only security of all is in the free press. The force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary, to keep the waters pure.” – Thomas Jefferson.

Introduction:

Media is a social instrument that is powerful enough to mould a society, to develop and destruct it. It is a force that could be put to much constructive use in the right hands.  Every democracy gets the government it deserves and every society, its media. In a country with as robust and multi-faceted a freedom of expression as India, media plays a very significant role in balancing interests of public and exercise its powers.

It is needless to mention that media is called the fourth pillar of democracy and derives all its rights from the wider interpretation of Article 19 (1) (a) of Constitution,[1] which talks about freedom of speech and expression. Thus, press freedom is not a gift from the government, it’s guaranteed by Constitution.  Recently this freedom of press has been in controversy for reasons like ‘paid news’, for twisting facts, for invasion of privacy and so on and so forth.

Interestingly, from the perspective of many Indian laws, the Indian news media is already perhaps the most regulated amongst the advanced democracies. According to the freedom of the press 2011 study, India ranks 79^th and is categorised as ‘party free’. Any further regulation of the media would effectively undermine individual liberties that are so essential to a democracy. Even so, the Media Council Bill, 2010, has been drafted to regulate the Indian media.

The Media Council Bill, 2010:

Statements of objects and reasons-According to the object of drafting this bill, the media (including the electronic media) has become a very powerful democratic tool. The negative side of the freedom enjoyed by the media has been coming to the forefront these days, with phenomenon like ‘paid news’ being the much talked about news and fingers pointed towards the credibility of the impartiality of the system. The bill has been drafted keeping in mind this growing menace and the need to control it before it goes beyond control. Hence it has been proposed that a Media Council should come into force, which would keep an effective check on the media and the authorities and such powers should be enjoyed by the said council which would help reduce the complaints and that the decision of the council be made final and binding.

Provisions of the Bill and critical analysis of sections:

The Media Council Bill, 2010, is a short bill comprising about 13 sections in toto.

Section 2:Section 2 lays down the general definitions and more importantly, it includes the definition of “electronic media” which has been given to mean “any contents shown or telecast in a news channel, including working journalists, editors and the management”[2].

Section 3:This section talks about the establishment of the Media Council as notified in the Official Gazette by the Central Government, the head office of it being at New Delhi. [3]

Section 4: It lays down the composition of the Council. The Council shall consist of a Chairperson and 30 members. The Chairperson shall be appointed by a committee consisting of Vice-President, Speaker of Lok Sabha and persons elected by the members of Rajya Sabha in the prescribed.

Amongst the 30 members, 5 members of the Council are the nominated parliamentarians. Taking a cue from the UK laws relating to press regulation, any kind of contribution from the Parliament should not be allowed. The interests of the members of parliament might become questionable in the event of disagreement amongst the members of Council. It would be wise to only select experts and people who are professionals in the field of media.

Section 6: It lays down the powers and functions of Council. It will be the duty of the Council to frame a Code of Conduct for newspapers, news agencies, electronic media in accordance with the high professional standards and with the goal of fostering a sense of rights and responsibilities of the citizens[4]. All the authorities and editors as above would require abiding by the said code of conduct.

In case of non compliance with the said conduct, the council is empowered to take suo-motu action against the persons concerned[5]. While this seems to be a naive provision, the implementation part, when it would come across a non-compliance case remains questionable. What is the guarantee that action will be taken and that such events will not be swept under the carpet?

It further lays down that the report of Council on journalistic ethics shall be final and binding on all kinds of media.[6] This is the most frowned upon provision of the bill. Even the PCC keeps High Court to be the last resort. The Council’s decision should not be made final and binding, but must be subject to an appeal to a higher authority (High Court or Supreme Court). Making the decisions of the Council final and binding, only means enforcement of decisions made by the council and closure of all other options. Such provisions are harsh and must be made more flexible.

Section 7:Section 7 further gives a right to any person in respect of the publication or non-publication of any matter in any newspaper to file a complaint to the council. While this appears to be a good provision, it comes with an ambiguous proviso. It provides that the Council may not take cognizance of a complaint if in the opinion of the Chairperson; there is no significant ground for holding an enquiry.

Now again, who decides what is “sufficient ground”? The possibility of nexus between the authority and persons complained about cannot be ruled out. Thus, for the persons making any kind of complaint to the Council, there is no guarantee that their complaints will be entertained or not.

Section 8: This section gives the power of censure to the Council. According to this provision, if the Council has reason to believe that a newspaper or news agency has offended against the standards of journalistic ethics or public taste, the Council may admonish, censure or disapprove the conduct of the editor, journalist, or as the case maybe.

The Council may require the particulars relating to any enquiry u/s 7 against the newspaper, news agency etc to be published.[7] Compliance with such directions too, shall be mandatory and binding upon the newspaper, channel or agency. It is further provided that on award of two censures, the council may blacklist the channel/newspaper, or in case of news agency or journalist, suspension or accreditation of such editor or journalist.

Moreover, if there is any kind of non compliance with directions issued under this section within 1 year, then that will only invite penalty of suspension of registration of newspaper and news channels.

Clearly, the powers given to the Council under this bill are unlimited and binding. Such absolute power is prone to be abused and if there is no superior check on its actions, then the purpose why the Council was established in the first place will be frustrated. Hence, the decisions and actions taken by the Council must be open for an appeal to a higher authority.

International Scenario:

Major countries in the world have made the distinction of keeping a separate regulator for the Television. In Britain, for example, the Press Complaints Commission deals swiftly, transparently and decisively with complaints against the newspapers and magazines while Ofcom (Office of Communications) deals with complaints against television and radio broadcasters. But even Britain’s PCC does not have powers to fine media, but only to ‘name and shame’ those newspapers which break the code of ethics.

The PCC believes that it’s the responsibility of editors to co-operate with PCC in resolving the disputes amicably between a newspaper or magazine and the person complaining, without the individual needing to go to the court.   

In U.S, the 1^st amendment[8] which guarantees free speech is the guiding principle. Print media is not regulated by U.S government; it follows its own self-regulatory code of conduct. American television is regulated by the Federal communications Commission, but the cable and pay TV industries are largely exempt from FCC supervision. An open, vibrant, competitive media market, the U.S government has long believed, is the best regulator. Australia, too, has separate regulators for print and broadcast media. Neither country has punitive powers.

Indiaof course, is different. We need to build our own regulatory model. There’s no question that India requires a robust supervisory framework. How much regulation and to what extent is the main question. So also, whether establishing a Council will solve all the problems is a matter of speculation.

The current status of Indian media:

Privatisation and globalisation has taken its toll on information dissemination. Presently, we see a shift in the purposes attributed to the media; there’s a rat-race for enhanced readership and high TRP ratings. Media now, is controlled by large corporate entities which are driven by sole motive of profit making, wherein the success and efficiency of media is measured on a scale of commercial ratings and not on one of social contributions. The race for high ratings has reflected as a major setback in quality of media itself.

Media has been time and again criticized for sensationalism, exaggeration of news, reporting of false and fabricated news and yellow journalism. The result is that, media has ignored public interest in the struggle to satisfy the viewers/readers interest.

An outrageous example of sensationalism of news was the 26/11 issue, where a national tragedy was turned into bait for profit by using emotional trivia by various competing channels. They try to create hype out of factual news and attract viewers by using the private life of celebrities and other people through scrupulous efforts. Another such example was the issue of the Supreme Court lady judge writing “two daughter’s marriage” against the column of liabilities, steering debates as to whether a woman for such status should make statements like these. In a clarification later on, she had said that what she meant was that, the money required in her daughter’s wedding was a liability for her, and not her daughters per se. But this clarification was sadly never published.

Any opprobrious judgment made by the media, either with malice or ignorance, with regards to the examples above, has the power to sway public opinion. Regulations must be put in place while disseminating information to the media by police officers and lawyers during pendency of litigation and investigation. Also, the unbridled expansion of media poses a sever threat to privacy of individuals. With the boom of internet and the coming of age of information revolution, almost all barriers have been removed in accessibility of information. Proper checks need to the present in such cases.

Justice Markandey Katju’s opinion:

Mr. Katju, the present Chairman of Press Council of India has opined on wanting to bring television broadcasters within the purview of a revamped media council. According to Justice Katju, the media should help people move forward into modern, scientific age. For this purpose, media should propagate rational and scientific ideas, but instead of doing so, the media today is steeped in casteism, communalism and superstition. The question, however is, should the media try to lift up the intellectual level of people by propagating ideas of liberty, equality and rational thinking?

In my opinion, Justice Katju’s diagnosis is correct, but the prescription is not. The Press Council must be given more teeth with properly legislated regulatory powers. Today, the Council can only reprimand newspapers which violate accepted codes of journalistic conduct. Just as listed companies are supervised by SEBI and other sectors like telecom, insurance, banking who have their own regulatory bodies with specific jurisdiction, so should a reinvigorated Press Council.

In a democratic country like India, we should first try to rectify the defects through democratic methods. Discussions with all media persons, including electronic media, to find ways to rectify the defects should be adopted, instead of this being done by some government authority or external agency. The Media Council can be made an instrument of mediation, which is a more democratic way of approaching this problem. Harsh measures may be taken as a last resort and in extreme situations.

Is regulation of media feasible?

Where there is sufficient ground both for and against the regulation of content, the larger question is whether it is doable or practical to regulate content in the current technology driven complex media landscape. Media regulation through a government seems non-feasible. There are over 600 odd television channels, regulation is an impossible proposition.

Now with the internet, multi-source content producers are almost equal to number of consumers, so the question of external regulation seems irrelevant. When you try to control the internet, it goes beyond journalism or regulating media organisation. It’s the common citizen you’re trying to control.

Regulation is required, but stringent government regulation might only stifle public debate and harm Indian democracy in the long run. J.S Verma, former Chief Justice of Supreme Court, recently said that the media and judiciary are two institutions in which people have faith and suggested that self-regulation must be encouraged.  Despite all its failings, the Indian media has functioned as a support mechanism to Indian judiciary and other constitutional institutions in protecting and fostering Indian’s democratic experiment for more than 6 decades, which is a rarity among post-colonial nations.

Reasonable restrictions on speech and freedom of the press are a must (as given in the Constitution) with the goal to improve the quality of journalism and raise the level of media discourse, which are very central to the functioning of any modern mass mediated democracy. The debate over regulation should be seen as an opportunity to initiate a public discussion on media reforms that not only address journalistic practices from the perspective of ethics, but also to look at the quality of media discourse. 

Suggestions:

In my humble opinion, the solution to the media fiasco lies in professional journalistic practise and media literacy. Journalists in India should not fear a stronger and more effective press council and a separate empowered broadcasting authority, under new legislation, which protects press freedom and establishes high standard of media accountability. This will end many of the malpractices that have damaged media’s credibility. It is this toxic nexus between journalists and corporate political establishment that must be broken.

Today, the internet has reset the equation between the producers and consumers of media. Blogs, Twitter, Facebook and other social media platforms have acquired the power to influence national debate by allowing readers and viewers to become producers and opinion makers themselves. Regulation is required, but no one wants the watchdog to become a lapdog. It is also imperative that organised news media and millions of citizen-journalists, on blogs and social sites engage in some self-reflection. The citizens should be free to decide what they want and in which way, besides enjoying the freedom of creating public opinion. Even if there is a mechanism to keep a check on the free media, then the purpose of such mechanism and the reform, should be merely to put in place a due process to discourage a few bad apples, rather than regulating the media through executive fiats or a government monitor.

Traditionally, across the world, independent regulators address issues of standards and deal with complaints that arise. But even these paradigms are now moving towards more liberal models of co-regulation, and in my opinion, this is the best solution. - A midway between self-regulation and traditional regulation.

Prime benefit of co-regulation would be the expertise offered by specialized industry based organization and a detached regulatory organization with a clear system of legal backing and accountability. There’s a need for more investment and improvement in journalism, media education in India. The Indian media must now introspect and develop a sense of responsibility and maturity. Reform is still possible and feasible.

Conclusion:

Today we live in a media saturated society, in which, for all practical purposes, democracy itself is mediated, hence we also require educational curriculums in the country to include core course in ethical media use and criticism. The Indian media must now introspect and develop a sense of responsibility and maturity. Reform is still possible and feasible.

A happy balance needs to be struck between a fearless and free right to speech and expression, and proving the supremacy of the law over pugnacious, malignant and unethical behaviour from the fourth estate. This can be done only when the media holds aloft the spirit of values and truth above vested interests and be more loyal towards the media to be truly a part of the democratic system.