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--------------- Print Magazine --------------
  May 2016
  April 2016


Judicial Diktat, Regulation or Self-Restraint?

Hemant Kumar, Advocate

".... It is in such extreme cases that the credibility of an institution is tested.  The  coverage  of  the  Mumbai  terror  attack  by  the  mainstream electronic media has done much harm to  the  argument  that  any  regulatory mechanism for the media must only come from within."

This was the concluding part of the observation made by the Supreme Court over "Role of the Media" during 26/11 Mumbai terror attack when a Bench comprising Justices Aftab Alam and Chandramauli Kumar Prasad affirmed the conviction and death sentence of Mohammad Ajmal Amir Kasab on August 29 this year. Although the ibid remarks were only an " obiter " amidst its 400-odd page verdict, the Court expressed its deep concern over the action of certain TV channels in 'covering live' the terrorists' attack on Mumbai the way it was done. The Court commented that by doing so, the aforesaid channels were not serving any national interest or social cause; on the contrary, they were acting in their own commercial interests putting the national security in jeopardy.

It is all the more shocking to note that these news channels have invited wrath of the Supreme Court despite the fact that the News Broadcasters Association (NBA), a private organization which represents over 22 leading news and current affairs broadcasters comprising 41 channels, had issued an "Important Advisory" on 27 th November, 2008 wherein it requested all its members to exercise self-restraint and ensure that the sordid episode is not covered in any manner so that it may tend to interfere in the operations of the security agencies. Although the NBA emphasized to follow this advisory with utmost seriousness as the matter pertaining to national security is far above the interests of any broadcaster, it is anybody's guess how sincerely the channels abided by that advisory. This puts a serious question mark over the effectiveness of self-regulation mechanism being professed by the electronic media.

On earlier occasions too, the higher judiciary, especially the Supreme Court, has been expressing its displeasure over tendency of media especially 24 x 7 broadcast/electronic media in going berserk many a times in case of sub-judice matters thus tending to interfere with the justice delivery system.

Pertinent that a Constitution Bench of the Apex Court was also constituted in March this year amidst the hearing of the infamous Sahara India v . SEBI case over the question of framing suitable guidelines for the media for coverage of court proceedings. After marathon hearing in the matter spread over a month in April, the Bench headed by the then CJI, SH Kapadia pronounced its verdict on September 11.

Although the Court refused to lay down any broad guidelines regarding the same, it did propound the " Doctrine of Postponement" wherein it has been enunciated that the accused or aggrieved persons may approach the "writ courts" viz. Supreme Court/ High Courts seeking temporary postponement of publication/telecast of news regarding a sub-judice case and the concerned Court in appropriate cases may grant such preventive relief but only where it is of the opinion that there is real and substantive risk of prejudice to the proper administration of justice or to the fairness of trial. This was termed by the Apex Court as " Neutralizing Device " or a balancing test.

As expected, media across the country, both print and broadcast, was unanimous in lamenting the aforesaid Doctrine enunciated by the Supreme Court. It expressed an apprehension that such "gagging" would have a chilling effect over the contours of Media Freedom. In simple words, Judicial Diktat of postponement of publication/telecast, although in certain cases where the Court deems proper and that too for a limited duration, is not acceptable to the media.

But just three days after the ruling, a Bench of the Supreme Court on September 14 quashed the Allahabad High Court gag order passed on April 10 this year wherein it had restrained the media from reporting any news pertaining to movement of Army troops. The PCI, perhaps for the first time, had since moved the Apex Court against the same terming it as a violation of Article 19(1)(a) of our Constitution. It substantiates that Justice Katju has always stood for protection of press freedom contrary to assumptions of broadcast media industry.

Further, it may be a sheer coincidence that just a couple of days before the pronouncement of the verdict on Kasab wherein the Supreme Court, inter alia , indicted mainstream electronic media, the PCI passed a resolution on August 27 wherein it resolved for granting more powers to it coupled with its conversion into Media Council of India thus bringing Electronic (both broadcast and social media) within its purview. The PCI has also requested the government to amend the Press Council Act, 1978 as contemporary circumstances warrant the same. The aforesaid resolution further rubbishes the claim of broadcast media of self-regulation being futile and meaningless as self-regulation is an " Oxymoron ". The resolution further states that unregulated media is playing havoc with the lives of the people referring to the plight of the people of North-East in August this year.

However, the news broadcasters were quick in vociferously opposing the move tooth and nail. Not only the NBA, but also the INS (Indian Newspaper Society) expressed their stiff resistance in bringing electronic media under the purview of the PCI. Even questions were raised on the absence of due unanimity during the passage of above referred resolution.

It is true that currently PCI has no control over broadcast media though, of late, a need is being felt for the setting up of a statutory regulatory mechanism for the same. Of course, there have been certain attempts to regulate the same but in vain. For instance, during this year's Budget session, Meenakshi Natarajan , Congress MP and member of the PCI attempted to introduce a private member's bill in the Lok Sabha viz . Print and Electronic Media Standards and Regulation Bill, 2012, seeking to create a regulator with sweeping powers but perhaps owing to hue and cry and pressure by the powerful Media lobby, she eventually had to abandon her plan at the eleventh hour. The broadcast media strongly advocates that its system of self-restraint coupled with its introduced mechanism of News Broadcasting Standard Authority (NBSA) under the Chairmanship of former CJI, J S Verma is working quite fair. But one must keep in mind that neither it covers all news channels of the country nor it has got any statutory sanctity. Further, there cannot be two standards for media in our country- one for print media which is regulated by the PCI and another for electronic media which can be allowed self-regulation. Hence, need for regulating both forms of media by an integrated media watchdog is inevitable.

As regards Social Media, one needs to keep in mind that it stands on a different footing as regards mainstream print and broadcast media. Although the demand for regulating ( but not severe censorship) of the same seems quite logical on face apparent, the fact is that it is neither practicable nor advisable for any government agency, much less the PCI, even to attempt the same.

Remember, during the government's imposition of limited ban on SMSes and MMSes and blocking of certain "inflammatory" web pages coupled with its threatened move of launching a crackdown on social networking sites such as Facebook and Twitter witnessed in August this year in the wake of spread of hatred against people of North-East, the action of the authorities was criticized by members of the civil society in general and by netizens in particular for both heavy-handedness and impracticality in enforcement.

Nevertheless, the Central Government is seriously mulling the idea of setting up of a dedicated "Cyber Surveillance Agency" to monitor the web and social media networks for malicious content. Of course, this would be preceded by putting in place a legal regime to take care of the issue of individual's privacy and citizen's freedom of speech and expression.

As things stand at present, the only effective way of monitoring social media so that it does not disturb communal harmony or spread hate or venom in the society is by due strengthening of "spam mechanisms" over their platforms by organizations managing these sites. They need to further strengthen their Do's and Don'ts policies for their members/users coupled with spread of awareness amongst them so as to protect their cyber arena from any attempts by mischievous elements who try to pollute the same. Of course, our intelligence and other law enforcement agencies must work in proper co-ordination with foreign ISPs managing these social networking sites so as to tackle any unfortunate instances affecting nation's unity and integrity. The latter ought not to show any reluctance on their part in sharing details of accounts of those who upload inflammatory messages/images/videos on them.

Finally, we may conclude that although Freedom of Press/Media is the bedrock of any democratic system but as any Freedom or Right cannot be unfettered and it ought to be enjoyed with certain duties with due responsibilities, so the brainchild idea of Justice Katju regarding regulation (don't read control) of electronic media by the constitution of an integrated Media Council covering both print and electronic media (but not social media) seems highly imperative. However, it must be preceded by disseminating a loud and clear message to broadcast media that by bringing them under a statutory regulator, the constitutionally guaranteed Freedom of Free Speech and Expression would not be curtailed or gagged in any manner.

Last but not the least, there is an urgent need to recognize in explicit terms, the "Right to Freedom of Press" by incorporating the same in Article 19(1)(a) as also wisely suggested by the Constitution Review Commission in 2002. It is highly hoped that Justice Katju would kick-off a nationwide debate over this issue so as to make his stint at PCI much more historic and memorable in true sense.

(Print Version)
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