Just let the press be

Justice Markandey Katju's prescription for a regulated media regime is a misplaced step that can actually de-democratise the fourth estate.

IT is open season on the political class and the news media. But then, again, it's more like a chase of one's own tail. A self-righteous, delusional, Anna-Baba NGO-ised fringe sets out to stigmatise politics and Members of Parliament; the news media salivate at the prospect and rush to provide the arena and become the cheerleaders of the slanging match; the same media are, in their turn, at the receiving end of political, and some judicial, ire for what they do, don't do, and won't do; legislative action and judicial activism, nevertheless, take their cues from what the media ferret out and place in the public realm and so it goes in circles, as vicious as they come.

Some of the blame in this game, no doubt, sticks and is well deserved. MPs with criminal records are MPs with criminal records. But that does not detract from the representative essence of an operative democracy. As Rousseau realised well over three centuries ago, representative democracy may not be the best form of government, but is far better and safer than direct democracy with its populist hangman psyche that the Hazare-ites and Ramdev-ites baying for the blood of the political class typify. In any case, as the political scientist Ernest Barker reminds us in his Reflections of Government (1942), democracy is about leaders representing the will of the people, however inadequately, as against fascism which is about people representing the will of their leaders, as the motley crowds gathering under the cult banner of the Anna or the Baba suggest.

The thrust of the Lokpal cause is to tackle corruption in the political class, the administration at all levels and, somewhat more cautiously, in the judiciary. It does not, cannot, audit the performance of the political representative or set out to correct the deficits or excesses of such representation. That is for the representative's constituency, the voters, to decide and act upon through the exercise of their franchise, or, if it comes about in the future, the right of recall of legislators who fail them. Arguably, it is not even the remit of the Lokpal exercise to ensure a standardised and universal morality in public life, because the understanding and degree of moral integrity can vary with the context and from public person to public person. Surely, in a democracy, morality is at best a benchmark to aspire to and not a matter for a legal bench.

The current missionary zeal in the nation to codify, sanitise and regulate across the board may, instead of deepening democracy, end up cribbing it, and drift unwittingly towards a totalitarian ethos. Ernesto Laclau, in his work On Populist Reason, cites the essay The Question of Democracy (in Democracy and Political Theory, 1988) by the influential French philosopher Claude Lefort on how modern democracy is predicated on what Laclau calls a revolution in the political imaginary by which a hierarchical society centred on the king as point of unity of power, knowledge and law was disincorporated by the emergence of the place of power as essentially empty. In the words of Lefort, the locus of power becomes an empty place. The phenomenon implies an institutionalisation of conflict the important point is that democracy is institutionalised and sustained by the dissolution of the markers of certainty. It inaugurates a history in which people experience a fundamental indeterminacy as to the basis of power, law and knowledge.

To over-determine democracy may be to render it a pale shadow of itself; the sense of flux must be kept alive so that democracy is freewheeling and vibrant and does not lapse into its guided' , ethnic' or other hybrid variants familiar to us even in our neighbourhood. The implication in all this can be paraphrased into the well-worn Americanism: If it ain't broke, don't fix it.

Press Council of India Chairman Justice Markandey Katju's prescription for a regulated news media regime seems one such misplaced, if well-intentioned, step towards reform that can actually de-democratise the fourth estate. Paradoxically, the Katju effect on the press can be as problematic as the Anna effect on politics. Paradoxical, because Justice Katju, unlike Anna and Co., whose disgust at politics and politicians is manifest, is no adversary of the media. He has sprung to the defence of journalists under threat, whether from the state or from mafia of one or another variety. And yet, one can't help notice an overhang of judicial intolerance in his expectations of the media.

Justice Katju is understandably exercised over the aberration and trivialisation in media practice in a context where titbits of the flippant and the sensational get preference over stories of impinging social and economic reality that are crying to be told. There can be no quarrel, either, with the fact that paid news, corporate cronyism a la the Radia affair, libellous insinuation, voyeurism, violation of privacy, and all kinds of subjectivities masquerading as journalistic objectivity threaten to drag the media unceremoniously down from the moral high ground they think they are occupying.

That threat, a real possibility, itself would be their just desserts. The temptation to fix the media through an external regulatory authority may well seem a fashionable urge, much in the same vein as caricaturing and debunking politics is the hobby horse of a section of the middle class. But it could mean a dangerous departure from the long nurtured and cherished principle of the freedom of the press as the sine qua non of our democracy. Inasmuch as the fourth estate constitutes the fourth pillar of democracy and is therefore, by implication and extension, as relevant as the three other pillars (the executive, the judiciary and the legislature) in terms of the checks and balances aspect of the principle of the separation of powers envisaged by the Constitution, any administrative tampering with it can have serious consequences for the larger democratic project itself.

The tendency of the first three pillars to bear down on the fourth is not new. There have been several instances in the past when the executive and the legislature, both Central and State, have sought to muzzle the press by draconian laws or by invoking the privilege motion. The judiciary, for its part, keeps the press guessing about where legitimate criticism ends and contempt begins in terms of scandalising or lowering the authority of the court. But the present conjunction of forces against the free press is a worrisome portent. The Supreme Court decides, in what senior jurists consider a judicial overreach, to set up a five-member Constitution Bench headed by the Chief Justice to go into the question of setting guidelines for media reporting; the decision, at the time of writing, is pending. An MP from the ascendant Rahul Gandhi camp, Meenakshi Natarajan, moots the introduction of a private member's Bill in the Lok Sabha which invokes the bogey of national security to bring in a tough media regulator.

The learned judges may well decide to tread softly, or not at all, on the turf of the fourth estate. Spokespersons of the Congress have been quick to disown the private member's Bill as a personal and private affair of the member concerned; in any case it has nowhere near a fighting chance of making it through the House, and the whole thing may just be a trial balloon. But it is the signal of intent in these moves, and the censorious mood vis-a-vis the news media they reflect, that suggest what the credo of the freedom of the press may be up against in India.

Justice Katju has been at pains to point out that Meenakshi Natarajan and he may not be on the same page on the issue, because he stands for regulation, not control, which ostensibly is what the private member's Bill spells. But this hair-splitting distinction is little solace for the press because the chances are that the one will in effect mean just the same as, or inexorably lead to, the other. Less nuanced, if somewhat nonplussing, are his sundry obiter dicta which are acquiring the semblance of a body of Katju-isms: about the intellectual equipage of the majority of Indian journalists being very poor; about 90 per cent of Indians, no less, being fools because, among other things, they vote on caste and community lines, and believe in astrology to boot; about Salman Rushdie being a poor and substandard writer and our being drawn to the likes of him probably because we suffer from a colonial inferiority complex.

Justice Katju's take on external regulation for the press is, of course, not of a piece with such a general, sweeping, and perhaps gratuitous, airing of views and needs to be taken more seriously, not least because of its consequences for the practice of journalism in the country. He seems to make out a case for a coequal reading of Article 19(1)(a) in the Fundamental Rights chapter of the Constitution, which guarantees freedom of speech and expression, and Article 19(2), which qualifies the freedom with reasonable restrictions. People keep harping on the first and deliberately overlook or underplay the second, he says. But surely it is the right, rather than the qualification, which is fundamental, and makes freedom of the press a derivative article of faith; the clause of restraint should not be allowed to take away from the robust enabling spirit of the clause of freedom.

His contextual justification that the media have become very powerful and must hence be regulated is as problematic. It is akin, after a fashion, to the Malimath Committee on reform of the criminal justice system upending, in its report in 2003, the long-held principle of innocent until proved guilty in criminal jurisprudence and, if anything, privileging presumption of guilt instead informed, no doubt, by the imperative of tackling the humungous menace of terrorism and an extraordinary times need extraordinary measures mindset to match. The media today are both on a roll and at the receiving end as never before. They have exposed scam after scam of mind-boggling order; pulled up and pulled down public figures and those running our lives one way or the other, often deservedly, sometimes unfairly; and collectively constitute a formidable scrutiny of public and, alas, sometimes private affairs. Nothing has been as effective, as we know, as a combination of media expose and blitz for quick administrative corrective action or redress, sometimes forced by judicial intervention. This, then, is the time to celebrate the media and egg them on to a sustained interrogation of all that is rotten around us, not to deter or dampen their righteous enthusiasm.

The same media, at the same time, by their corrupt and irresponsible ways, also become the villain of the piece. Where, in the process, they run foul of the law of the land, they must obviously face the consequences. It may, however, be unfair to subject them, generically, to a special regulatory mechanism when, in the first instance, their rights are only those of any citizen, under the Constitution, to free expression. Reasonable restraint too should, then, apply to them only as much as to any citizen, no more no less. When Justice Katju asks why, if lawyers, medical professionals or chartered accountants can have regulatory bodies supervising them, media practitioners should not, he may be begging the question, because the freeness of the news media in a country is the litmus test of its democracy. The journalist is not necessarily a professional with prerequisite formal training (although it may help), subject to occupational codes, in the strict sense that a member of the Bar Council or the Medical Council of India or the Association of Chartered Accountants is. This is self-evident especially at a time when the journalist as citizen and the citizen as journalist are both redefining the practice of journalism, and when user-generated blogs and the digital social media are pressuring mainstream journalism from the margins. The difficulty of the analogy comes into sharper focus if we imagine a regulatory body for poets or artists; or indeed for professors in universities against sowing anarchic or disruptive seeds of ideas in the minds of their students.

Peer pressure and peer exposure

This is not to gloss over the ethical and moral lapses of the media, which direly affect their credibility and, in instances, betray the public trust. But these are matters for the media to tackle themselves; and they must, with a sense of urgency, if they are not to become redundant as the fourth estate. We already find peer pressure and peer exposure replacing the thick-as-thieves complicity that for long marked media behaviour.

Critical comments about one another's sins of commission and omission are slowly emerging from an unhealthy convention of mutual conspiratorial silence. Media professionals should perhaps organise themselves into a watch group which audits media performance and challenges unfounded, misleading or malicious journalism much like the FAIR (Fairness and Accuracy in Reporting) exercise in the United States. This could proceed apace with, and independent of, the news media organisations instituting an internal regulatory mechanism which sets down a code of practice where the don'ts are minimal, specific and taboo, and the dos more recommendatory and guideline in nature.

It is important not to see grey as black in the process. Yellow journalism is one such grey area ( sic). While certainly not journalism with the best foot forward, the yellow press often becomes a catchment area for stories that turn into scoops. The Indian experience is replete with examples of the small, local, sensation-seeking language press coming up with clues and cues that the bigger regional or national media pick up, not always with acknowledgement, to turn them into their investigative news breaks. Away from neat categories, therefore, a free press yellowing and fraying at the edges is closer to the reality. After all, one of the most prestigious awards for journalism in the world was instituted, and is named after, the iconic original baron of yellow journalism, Joseph Pulitzer, who also founded the top-notch institution of journalism education, the Columbia Journalism School, at the turn of the last century.

The case for untrammelled journalism is not one for the unlimited business of the media. In fact, no one seems inclined to bell the fat cats in the media. There is little talk, amid all the media naysaying, of the need for cross-media restrictions and reining in monopolies in the sector. Policy frameworks and decisions are literally tailored for the big players, and a handful of multinationals Murdoch, Disney, and Ambanis being the biggest of them have already cornered the bulk of the market. The latest stiffening of licence fees and qualifications for start-up TV channels are strongly weighed against the small or medium media entrepreneur and take the big is beautiful principle in the sector to a new high. For the business of media, journalism is just another means of making profit that is, where it is not too small a part of a massive holding driven and dominated by entertainment to even matter all that much. In the corporatised paradigm, even paid news may be a risque transaction rather than a morally repugnant aberration, and those who thought up this novel way of monetising news may be wondering what the fuss is all about. How disingenuously corporate interests appropriate the rhetoric of the freedom of the press was on display recently when they raised the alarm that the Majithia Wage Board award for journalists posed a threat to that freedom.

The increasing mismatch between journalism as a socially purposeful calling and media as big business is already vitiating the free press regime. It evokes the disjuncture and tension between media as press and democracy that Robert McChesney flags in his work Rich Media, Poor Democracy. The approach to reform in the sector, by do-gooders and cynics alike, mistakes the woods for the trees. It is the distortions of the media market that need to be targeted: segmentation of the market according to the purchasing profiles of the consumers, cartelisation by the major groups, cover price wars which inevitably end up devaluing the quality of journalism on offer, tiered distribution on cable and DTH platforms which determine differential access to the media and clearly discriminate against the small and medium enterprises, undoing the licence to telecast by making it impossible to telecast through a prohibitively priced and unregulated distribution regime which is monopolised by a select club of the richest in the league.

The new aggrandising media market, however, is a product of the economic reforms under the auspices of liberalisation and globalisation and nothing is likely to be done to upset it or to address the disparities and iniquities it breeds in a situation where the market dictates to the state. The journalists, then, become the fall guys, the ones to blame and fix for a media gone horribly wrong. Freedom of expression, which is their stock in trade, is not a proprietary software allowed them by the media owners. It is as much their occupational life breath as it is the oxygen of democracy. Inasmuch as this freedom exercised by the fourth estate has a check and balance role vis-a-vis the performance of the executive, the legislature and the judiciary, it should be seen as implicitly subsumed in the separation of powers, which is a basic and unalterable feature of the Constitution. In the balance, despite the periodic provocations from sections of it, it is in keeping with the spirit of the Constitution and the finest tradition of democracy to just let the press be.

Our first Prime Minister was perspicuous to see the complexity of his choice, even as he rooted for a hands-off-the-press policy. Addressing the Newspaper Editors' Conference in December of 1950, Jawaharlal Nehru said: To my mind, the freedom of the press is not just a slogan from the larger point of view, but it is an essential attribute of the democratic process. I have no doubt that even if the government dislikes the liberties taken by the press and considers them dangerous, it is wrong to interfere with the freedom of the press. By imposing restrictions you do not change anything; you merely suppress the public manifestation of certain things, thereby causing the idea and thought underlying them to spread further. Therefore, I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.

Sashi Kumar is Chairman of Media Development Foundation & Asian College of Journalism. He can be contacted on sashi.acj@gmail.com