The Press Council of India (PCI) is a quasi-judicial authority set up by an Act of Parliament but it has no statutory powers to punish. Far from putting a person behind bars, the Council cannot fine anyone. Even if it suggests to the government that it stop placing its own advertisements in a particular publication as a form of imposing a penalty, the concerned government body—the Directorate of Advertising and Visual Publicity (DAVP) in the Union Ministry of Information and Broadcasting (I&B)—is not obliged to heed the advice of the PCI.

The Press Council of India has no real teeth to enforce its findings or to penalise any individual or organisation for violating its journalistic code of ethics which is, at best, a set of recommendations of good practice. The Council has no mandate by which to enforce the observation of its own code of ethics, as there is no legally binding quality to it which could justify a court’s intervention.

The writ of the Council does not extend beyond the print medium to television, radio, or the internet. The majority of its 30 members represent the media industry. The PCI also has no real teeth to enforce its findings or to penalise any individual or organisation for violating its journalistic code of ethics which is, at best, a set of recommendations of good practice. The Council has no mandate by which to enforce the observation of its own code of ethics, as there is no legally binding quality to it which could justify a court’s intervention. There is, consequently, little motivation for the PCI—or, for that matter, the country’s courts—to promote good journalistic practices and curb corruption in the media.

This has been the experience of this writer who served as a member of the Council nominated by the University Grants Commission between January 2008 and January 2011. In April 2010, as a member of a two-member subcommittee of the PCI, I co-authored a 36,000-word report entitled Paid News: How Corruption in the Indian Media Undermines Democracy. This subcommittee was set up in July 2009, to examine the “paid news” phenomenon. After considering written and oral representations made by over a hundred people over a period of more than six months, a 71-page report running into roughly 36,000 words was presented to the Council. The report of the subcommittee mentioned scores of instances of paid news, named names, and detailed the phenomenon, before making several diverse proposals that could curb, to some extent, malpractices in the media.

The intent of the report was to present circumstantial evidence and “name and shame” those apparently engaged in the practice of paid news. Among those named were some of the country’s most widely circulated daily newspapers in different languages, such as the Dainik Jagran and the Dainik Bhaskar, the first and second most widely circulated Hindi dailies, Lokmat, the most widely circulated Marathi daily, Punjab Kesari, the most widely circulated Punjabi daily, Eenadu, one of the most widely circulated Telugu dailies, besides the Times of India, the largest circulated English daily in the world and in India. All the allegations in the subcommittee’s report were attributed and opportunities were provided to those against whom allegations were levelled to exercise their right to reply. Some (including the publishers of the Times of India) chose not to exercise this right.

The events that followed the submission of the PCI subcommittee’s report in April 2010 are as follows. The Council’s then Chairman Justice G.N. Ray appointed a “drafting committee” which prepared a short report (running into roughly 3,600 words or a tenth of the length of the subcommittee’s report) that, by and large, contained the concluding observations and recommendations in the report of the subcommittee. On 31 July that year, the Council decided by a show of hands of the members present and voting that the full report of the subcommittee would not be appended with the report that would be presented to the I&B ministry.

The voting process itself left much to be desired. No formal record of it was made, and no votes for or against were recorded. Twenty-four of the thirty members in the PCI (including its Chairman and Secretary) attended the 31 July meeting, making it one of the most well-attended meetings of the Council. Twelve members opposed the subcommittee’s report being attached to the final report and three abstained. Only nine members of the PCI, less than a third, voted in favour of the proposition. The result was that the 36,000-word indictment of the corrupt practices of a section of the Indian media contained in the subcommittee’s report was sought to be reduced to a footnote, as a document for “reference.”

P. Sainath, rural affairs editor of The Hindu, later described the report that was submitted to the government as one that “pretends to fight (the challenge of paid news) in a flood of platitudes.” He argued that the Council’s failure to adopt the full report of its own subcommittee did “grave damage to the image and credibility of the PCI itself” and “immeasurable damage to the fight against major corruption within the Indian media.” He went even further to add that the attempt at burying the report in a footnote was reprehensible: “To praise the authors of the original (as happened in its July 30 meeting) for their effort and then gut the result of that pioneering work, was hypocrisy of a high order. To then present the mangled remains as a guide to fighting paid news eclipses even that benchmark of insincerity. The public surely deserve better.” (The Empire Strikes Back—and How!, The Hindu, 5 August 2010)

Despite the best efforts of certain vested interests in the PCI, the report of the subcommittee entered the public domain because at least 30 copies of the document were in cyberspace since copies of the report had been e-mailed to all members of the Council. In fact, the report probably gained more attention than it otherwise would have if it had been made public by the PCI in the first place. Nevertheless, the report was not an “official” document and did not remain one for around 14 months, that is, till the Central Information Commission, acting on a complaint by Manu Moudgil under the Right to Information Act, ordered the Council to make the report available on its website by 10 October 2011, which it did. (Coincidentally, five days earlier, Justice Markandey Katju was appointed as the Chairman of the PCI to succeed Justice Ray.)

If one is charitable towards the PCI, it could be called a toothless tiger. If one is less charitable, the Council can be described as a toothless tiger that cannot even whimper, leave alone growl—to use an analogy coined by Biraj Patnaik (who is engaged in issues relating to food security). Many, including veteran journalist Kuldip Nayar, have suggested that the PCI be headed by a senior journalist instead of a retired judge of the Supreme Court. But the extant convention continues.

As far as the mass media in India (and the world) are concerned, in an ideal situation, self-regulation is the best form of regulation. But the question arises as to what needs to be done to contain and curb—if not, stop altogether—the corrupt practices of the blackest of the black sheep within the media fraternity. On 6 May 2013, the Parliamentary Standing Committee on Information Technology headed by Rao Inderjit Singh released a report dedicated to paid news. The 136-page report largely repeats what has been already stated by various observers of the paid news phenomenon. Nevertheless, the document is valuable and progressive as it is a consensus document in which elected representatives, across party lines, have explicitly acknowledged the problem and urged the I&B ministry to earnestly begin working towards a solution.

The Parliamentary Committee’s report on paid news recognised the concerns relating to government regulation of the media. It can be argued that regulatory intervention (or interference) by the state in the working of the media is a necessary, but not sufficient condition. This is what the Delhi High Court stated on 19 April 2013 in its judgment in the Indraprastha People v. Union of India case: …the absence of state intervention on its own is no guarantee of a rich media environment. On the contrary: to promote a media environment characterised by pluralism and diversity, state intervention is necessary….Freedom of expression is not an absolute right and it can be restricted to protect the rights of others….Under self-regulation the media voluntarily commits to uphold a code of ethics that it itself drafts…but ethics itself is a complex and controversial subject due to society not being homogeneous….Thus, … as we find pertaining to cinema and print media, there is no reason why the legislature does not put in place a statutory, regulatory body….

The issues related to the kind of regulatory authority that is required for the media in India have been discussed and debated for quite some time without any resolution. Various views have been expressed with no apparent consensus in sight. One issue is whether there is a need to set up separate regulatory bodies for the print and electronic media, or to have one authority. Then there are the questions of who would head such an authority and how such a person as well as other important functionaries should be appointed. One view is that what is needed is a constitutional authority akin to the Election Commission, the Supreme Court, and the Comptroller and Auditor General of India. The challenge is to create a regulating body that is truly independent of both the government and the media (even if it is funded by one or both).

Regulation of the mass media is of seminal importance today because of the mass media’s enduring impact not just on our lifestyles but also on our attitudes, ideas, ideologies, views, and values. It is the media which shapes our definitions and understanding of the world around us and those who control the media, in effect, control us. Big media organisations are owned by big media houses. Should they be allowed a free hand to run it as they deem fit (as per the dictates of supply and demand)? Or should they be subject to certain regulations keeping in view the larger public interest? The question of regulation of the media is a sensitive matter because the mass media, going by the liberal axiom, ought to be free to perform the desired role. The question is: free of whom and what?

Regulation of the mass media is of seminal importance today because of the mass media’s enduring impact not just on our lifestyles but also on our attitudes, ideas, ideologies, views, and values. It is the media which shapes our definitions and understanding of the world around us and those who control the media, in effect, control us.

The obvious answer is the freedom from the interference by the state, that is, the political authority. This is so because the mass media, if it is true to its calling, ought to have an antagonistic relationship with the powers-that-be. This would naturally invite retribution from the state. So freedom from the state’s control is a cardinal principle for mass media’s success in a democracy. Media deserves the freedom. But it needs to act responsibly to earn the freedom. Has the media acted responsibly? A cursory look at the media in major democracies of the world tells us a different story—that many media organisations have become pliant, and have compromised on core values for a variety of reasons. This calls for media regulation, including restrictions on cross-media ownership which exist in many countries, including developed countries, across the world. If the state is ruled out of a role in it, who will then regulate it to ensure that the media institutions live up to the high ideological expectations and those who do not are exposed and penalised? The media industry’s answer is self-regulation. But when self-regulation is carried out by respective media industries, the result is, excluding rare exceptions, less than satisfactory.

The challenge is to create a regulating body that is truly independent of both the government and the media, especially that section of the media which is controlled by large corporate entities. A brief outline of such a body is as follows.
There is a need to create a constitutional authority and a statutory body called Media Council (hereinafter, the Council) which will have the jurisdiction over all media: print, radio, television, cinema, and the internet. The Chairman of the proposed Council should be selected by a collegium comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. A retired judge of the Supreme Court, an eminent jurist, or a senior journalist should be selected as the Chairman of the Council. The Chairman can be removed only by the collegium by a majority vote. The Council will have eight members. The Speaker of the Lok Sabha, the Chairman of the Rajya Sabha, and the Chairman of the Media Council will select the members of the Council, who should represent different sections of society, including the media and civil society.

The Council could act as an appellate authority and could, under specific circumstances, intervene suo motu on the actions taken by other self-regulatory organisations as well as statutory, quasi-judicial, or judicial regulatory bodies such as the PCI, the Telecom Regulatory Authority of India, the Central Board of Film Certification, and the Computer Emergency Response Team. Appeals against the decisions of the Council can be made only to the Supreme Court of India. The Council should be adequately empowered with punitive powers (unlike the PCI). The Council should be constituted even if the PCI is empowered and strengthened.

Paranjoy Guha Thakurta
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