PARDON CRY SMACKS OF LAW FOR PRIVILEGED

By Swapan Dasgupta

The British Empire, it has been suggested by at least one historian, was built on the principle of “Ornamentalism”—an innovative euphemism for pomp, splendour and pageantry. When it came to rewarding the distinguished men (women rarely featured) who served the Empire, the authorities were more than mindful that India is extremely status-conscious. One of the perquisites of loyalty, apart from Knighthoods and Rai Bahadur/ Khan Bahadur titles, was the privilege of being exempted from personal appearance in the civil courts.

Independent India has often made a fetish of repudiating the legacy of Empire. There is a sneer that invariably accompanies the invocation of the ‘colonial legacy’, despite the endurance of Lord Macaulay’s Indian Penal Code. In practice, however, our present-day rulers appear unwilling to dispense with the more iniquitous facets of Empire, particularly when it comes to privileges for the well-connected and the loyal.

Nothing highlights this more than the contrived outrage in rarefied circles of Delhi and Mumbai over the conviction of actor Sanjay Dutt under the Arms Act by the Supreme Court and his consequent five-year jail sentence (of which he has to serve some 42 months).

That many Bollywood producers whose films starring Sanjay are at a midway stage will be deeply upset by the apex court judgment is understandable. There is also likely to be considerable sympathy for his family and the deep embarrassment to his sister who represents a Mumbai constituency for the ruling Congress Party in the Lok Sabha. In addition, there are those who lament the misfortune that has hit the son of Sunil Dutt and Nargis, both highly regarded public figures. The case of Sanjay Dutt is indeed tragic.

Appreciating and sympathising with a personal tragedy is one thing but extending it to the realms of public policy is altogether different. This crucial distinction, plus the principle of ‘equality before law’ appears to have escaped the understanding of stalwarts such as Press Council chairman Justice Markandeya Katju and some other political and personal friends of Sanjay. With his penchant from going from the sublime, Katju has even suggested that Sanjay’s stellar role in popularising Gandhi-giri through a popular Bollywood film should be taken into consideration in judging the quantum of punishment. Sections of the political class have cited Katju’s pseudo-judicial opinion to argue for a pardon.

And the Law Minister Ashwini Kumar who, strictly speaking should not be commenting on individual cases, has let it be known that the Governor of Maharashtra K. Sankaranarayan “will use his discretionary power when there will be an appeal to him. He has the power to pardon”. Since the Governor is a political appointee who has served the Congress Party well in the past, the Law Minister’s use of the term “will” (as reported in Indian Express of March 23) assumes enormous significance. There is an inescapable suggestion that a pardon for Sanjay Dutt is pre-determined.

The law, as Mr Bumble famously said, “is an ass”. It may also be unmindful of the “quality of mercy”; but the scales of justice are held blindfolded. There can’t be one standard for Sanjay Dutt and another for the others convicted in the same case. If Sanjay is to be spared the ordeal of serving time in jail, a corresponding degree of generosity must be the norm for the others, including the 10 who have been awarded life imprisonment and Yakub Memon who is to hang.  

It is important to recall the magnitude of Sanjay’s offence. He is not being punished because he happens to be a star and the son of famous parents. His offence is grave because he used his privileged position to arrange a safe venue for a cache of arms and explosives that had been received from Pakistan by the underworld to organise the serial blasts in March 1993 that killed 257 innocent people and seriously injured another 713. What Sanjay did was not merely brandish an AK-56 assault rifle and a 9mm revolver before a mirror and pretend he was Rambo. He directly facilitated a massacre of monumental proportions, an offence that was no less serious than the massacre by Pakistan-trained terrorists on November 26, 2008.

In fairness, as the Public Prosecutor has pointed out, Sanjay should have been prosecuted under the stringent TADA. Instead, the CBI, for reasons that don’t need too much probing, dropped the charges under TADA and prosecuted him under the Arms Act where conviction involves a lesser quantum of punishment. Now that the punishment has been sanctioned by the highest court, there is a clamour to spare him all further punishment.

In 1994, shortly after Sunjay had first been arrested for his role as a facilitator in the Dawood-organised act of terrorism, I met Shiv Sena chief Bal Thackeray who told me ominously of an impending “civil war” in India. Having heard him out, I gently asked him why, in that case, was he pleading for leniency for Sanjay. In his inimitable style, Thackeray retorted: “What that boy needs is three tight slaps.”

In a normal case of truancy, three tight slaps delivered by the Tiger himself may have done the trick. But Sanjay wasn’t guilty of bunking school or whistling at a passing girl. He knowingly participated in the logistics of mass murder. The Establishment may see this as akin to rash driving, but are we obliged to forget? 

Sunday Pioneer, March 24, 2013

Taming the Monster: Do Indian media need a regulator?

By Swapan Dasgupta

The closure of the popular Sunday tabloid News of the World, the arrest of top executives of the Rupert Murdoch-run News International on phone hacking charges and the proceedings of the Leveson inquiry have focussed attention on the skewed internal workings of an otherwise vibrant British media. This has resulted in a bizarre turning of the tables. A readership accustomed to viewing the media as a white knight in shining armour puncturing the pretensions of the powerful and the pompous has suddenly been exposed to unethical practices, blatant illegalities and the cosy relationship that exists between the Fourth Estate and politicians.

The results have not been edifying. In the past, the media conducted itself with the militant cussedness of trade unions. Every right was fiercely guarded and transformed into a privilege; every hint of regulation was instantly transformed into a larger battle for democracy; and the occasional on accountability was painted as an insidious assault on the people’s inalienable right to know.

The boot is now on the other foot. Instead of being assiduously wooed and flattered by the powerful, the Leveson inquiry has witnessed powerful media barons such as Rupert Murdoch and his son James being subjected to merciless interrogation. Indeed, as the inquiry meanders from the internal workings of the newsrooms to politics, the likes of British Prime Minister David Cameron are having a torrid time explaining their convivial relations with the Murdoch empire. Hostile public opinion is veering to the opinion that existing laws and quasi-official bodies such as the Press Complaints Commission aren’t enough: what the media needs is a public spirited, independent regulator.

It is difficult to gauge whether or not the Chairman of the Press Council Markandeya Katju was influenced by developments in London when he rushed into battle against India’s ‘unionised’ media. A high-spirited individualist with very definite (and occasionally bizarre) views on all subjects ranging from Salman Rushdie’s writings to cricket’s role as a promoter of false consciousness, the retired Supreme Court judge has proffered a simple argument: if all professions are regulated, why should the media be any different? Waging a turf battle against the electronic media-appointed watchdog body headed by former Chief Justice J.S. Verma, Katju has strongly argued that the Press Council be transformed into a Media Council and assume the role of a regulator.

Predictably, Katju’s suggestion has drawn flak. In part this is due to his diagnosis of the media’s ailments. In an article in The Hindu, Katju spelt out his dissatisfaction: “The way much of the media has been behaving is often irresponsible, reckless and callous. Yellow journalism, cheap sensationalism, highlighting frivolous issues (like lives of film stars and cricketers) and supersitions and damaging people and reputations, while neglecting or underplaying serious socio-economic issues like massive poverty, unemployment, malnourishment, farmers’ suicides, health care, education, dowry deaths, female foeticide, etc, are hallmarks of much of the media today. Astrology, cricket (the opium of the Indian masses), babas befooling the public, etc, are a common sight on television channels.”

Katju, it would seem, had very definite ideas about editorial content and the hierarchy of news. In his perception, the media must play the role of a social reformer and not fritter away its energies in frivolity and tittle-tattle, never mind the fact that not all its consumers are preoccupied with virtuousness. It is precisely because of his highbrow certitudes and disdain for popular journalism that his insistence on a media regulator has been viewed with a measure of amusement by the Fourth Estate.

If an all-powerful regulator in the mould of Katju, it has been argued, assumed responsibility for the whole media, it would be tantamount to murdering diversity and ruining a vibrant and growing industry. In spelling out his philosophical preferences robustly, Katju unwittingly helped focus attention on the dangers posed by an activist regulator who would replicate the ideals of the so-called New Information Order, once favoured by the fellow travellers of the Soviet Union. What added to the scepticism was Katju’s proposal coinciding with the still-born Private Member’s Bill proposing media regulation that Congress MP Meenakshi Natarajan contemplated introducing to the Lok Sabha earlier this month.

That the angularities of Katju were responsible in distorting a much-needed debate on the internal workings of the media should not, however, blind the Fourth Estate to its own vulnerability. The decision of a court fining a popular TV news channel a whopping sum of Rs 100 crore for confusing the identity of a former Supreme Court judge may be questioned on the plea that the punishment was disproportionate. But it was a reminder of the fact many of the upholders of India’s institutions are exasperated by what they see is an increasingly roguish media.

Much of exasperation is born out of aesthetic repugnance. A complacent elite used to stodginess and predictability in the packaging of current affairs has been unsettled by the dramatic induction of a colloquial idiom. The media has won new consumers with its relentless demolition of social entry barriers. Yet, this social churning and innovative communication methods have, in turn, generated a backlash. Judges and litigants are rightly fearful that a shrill kangaroo court atmosphere is making judicial trials difficult to hold in a right environment. The Arushi Talwar murder case in NOIDA is an obvious example. Politicians are angry that the media is playing the role of an anarchic agenda-setter, confirming Stanley Baldwin’s prognosis of exercising power without responsibility. And celebrities, who otherwise love free publicity, have been dismayed by intrusive journalism and, above all, a wild social media that veers from recklessness to licentiousness.

Many of these hiccups are the consequence of social churning and technological innovations. The reactions to them have also been predictably knee-jerk. Neither social attitudes no technology can be regulated and controlled without the state assuming draconian powers that invariably end up being misused. India is a naturally fractious society that, however, believes, rather naively, that the state has the responsibility of imposing order without undermining civil liberties. The media has become the target of those impulses.

The media remains on a strong wicket as long as it doesn’t lose sight of common decencies and the notion of fair play. As long as its motives are honourable, it can get away with minor transgressions. However, if its own house isn’t clean, the backlash being witnessed in Britain is unavoidable.

The Indian media hasn’t quite bothered to dispense with the rotten apples in its own basket. Unless it tackles issues such as paid news, wilful deception, insider trading in the markets, extortion and blackmail—and all these are rampant outside the metros—it cannot expect to continue with the privileges that a democratic society has accorded it. In the face of the regulatory threat, the media must engage in a major bout of self-correction. Journalists have become accustomed to being regarded as exceptional citizens because they wield the power to damage others. Of late this power has often been wielded without discrimination and for reasons that verge on outright criminality.

There is, of course, the law which, thanks to the sheer inefficiency of the judicial system, isn’t really a check. There are also other punitive measures that the authorities shy away from using for fear of being charged with being anti-democratic. Yet, a situation is now arising whereby powerful sections of society are urging the creation of special purpose vehicles to tame what they see is a monster. Taking defensive action involves the media undertaking self-purification. 

The Telegraph, May 11, 2012

The media is already governed by law

By Swapan Dasgupta

If Justice Markandey Katju's conviction that “90 per cent Indians are fools” is accepted as the yardstick to assess the quality of public life, no immediate connection will be made between his robust intervention in The Hindu (“Media cannot reject regulation,” May 2, 2012) and the still-born Print and Electronic Media Standards and Regulation Bill which Congress MP Meenakshi Natarajan proffered to the Lok Sabha. Although the Chairman of the Press Council claimed he “has not read the Private Member's Bill,” only the minusculity of non-fools will deny that both he and Ms Natarajan proceed from the same set of assumptions.

In her rationalisation of legislation to impose a government-appointed regulatory authority on the media, Ms Natarajan noted: “The rights conferred by the Constitution are sacrosanct and should be respected. However, news value has been dwindling every passing day...While the freedom of speech and expression has to be respected, there appears no other option but to regulate the print and electronic media and impose on it certain crucial reasonable restrictions, which are needed for the purpose of protecting national interest…”

On his part, stressing that Article 19(1) (a) of the Constitution guaranteeing freedom of speech and expression is circumscribed by Article 19(2) which stipulates ‘reasonable restrictions” for the sake of the larger good, Justice Katju wrote: “The media has become very powerful in India and can strongly impact people's lives. Hence it must be regulated in the public interest.” This is particularly so because the “way much of the media is behaving is often irresponsible, reckless and callous.” In effect he echoed Ms Natarajan's desire to “ensure good quality reporting, which does not only feed news according to TV rating points but also, in accordance with issues of prime national importance.” Of course, great minds don't always think alike. Justice Katju and Ms Natarajan differ on the composition of the regulatory body. The Congress MP preferred a statutory body nominated by the Central government. Justice Katju felt that an “independent statutory body” such as the Press Council can fulfil the functions after its scope is enlarged to cover the rapidly-growing electronic media. Self-regulation, as practised by the electronic media, he thought, was hogwash.

Whether it was Justice Katju's spirited campaign for regulating the entire media, including the social media, which was a factor behind Ms Natarajan's parliamentary initiative, is a matter of conjecture. What is certain is that there is hardly another instance of a Press Council head pressing so forcefully to enlarge the space for Article 19(2). “How many licences of TV channels,” he asked the self-regulation bodies, “have you suspended or cancelled till now?”— as if bans and closures were the ultimate litmus test.

Justice Katju has certainly conveyed the unmistakable impression of having been conferred the onerous responsibility of taming a greedy, irresponsible and reckless entity. There is a visible convergence between his desire to tame the media beast and the political class' exasperation with an intrusive rogue out to unsettle the “national interest.”

At the heart of Justice Katju's crusade is a plea for enlightened regulation (which he carefully distinguishes from control) of the media space. Since most professions are regulated and accountable, why should the media be the exception?

The assumption is erroneous. The media may not be blessed with a regulatory authority such as the ones governing, say, the telecom industry, the power sector and the stock exchanges. However, it is not above the law. Justice Katju must know that the media is not exempt from the statutes governing defamation, obscenity, incitement and official secrecy. Where necessary, the state also has the authority to ban publications and black out TV broadcasts. The police possess powers to prosecute journalists and media houses it holds to be engaged in blackmail and extortion. There is a full-fledged statutory regime that governs the media, including a Working Journalists Act. The Fourth Estate is not above regulation.

If the media is already governed by law, what is the scope of the proposed regulatory authority?

For Ms Natarajan, the answers are unambiguous: to determine the hierarchy of news, to mould the style and tone of reporting and to specify no-go areas. In short, exercise political control over editorial content.

On his part, Justice Katju seems to be driven by two different sets of desires. First, he abhors the fact that the media is also commercially driven. According to him, this explains their desire to pander to the lowest common denominator. In regulating the profit motive, will the regulator therefore determine the rates or the quantum of advertising, as the TRAI has needlessly suggested? Will it regulate the cover price and distribution costs of publications? Will it assault the economic freedom of the media?

Second, what are the ramifications of Justice Katju's passionate desire to be at the forefront of a crusade to instil a scientific temper? The Press Council chairman has already publicised his abhorrence of all editorial content that promotes frivolity, superstition, glamour and sport. He wants the media to be in the forefront of the battle against poverty and for social reform.

It is a noble idea and may even be worthy of emulation by an ideologically-driven niche publication or even a public broadcasting channel. But when one man's passion is translated into a desire to impose a replica of the Soviet Union-inspired New World Information Order, it is necessary to sound the alarm bells. The Press Council cannot control tastes.

Justice Katju is a man of astonishing certitudes. Yet, for all his purposeful interventions he has overlooked one crucial facet of the media environment: the availability of choice. No one is obliged to patronise a publication or be riveted to a screaming match on a news channel. One click of the remote control is enough to opt out.

Many do but many love and are entertained by India's rumbustious democracy. Is it because they are fools? In that case, as Brecht once suggested, wouldn't it be simpler to abolish the people and elect a new one?

The Hindu, May 4, 2012