An invite to a discussion on the conundrum “Ombuds-man: Media and social responsibility” triggered a thought. Implicit to the subject was the proposition that the media is obtuse to its obligations towards society. Could the institution of an ombudsman mitigate this delinquency However, before addressing this question, it is appropriate to traverse the expanse of the Indian media space and the issues it faces today.
There are 1,05,443 print publications and 851 private TV channels. Out of that, 399 are news and current affairs channels and 452 non-news channels. The public broadcaster runs 22 channels, some in the terrestrial mode with almost universal coverage across India. One hundred sixty-eight million homes out of 225 million households in India have access to cable and satellite television. There are 410 FM transmitters, 145 medium-wave and 48 short-wave stations of All-India Radio (AIR). Two hundred twenty-nine broadcasting centres across the country complement them. Augmenting these numbers are 243 private FM radio stations. One hundred thirty-five new FM stations that have recently been auctioned across 69 cities, 188 community radio stations are operational. There are 347.55 million Internet users and 143 million active social media users and these numbers are growing exponentially.
The overarching problem of the media industry is flawed revenue models, which manifests itself in the form of paid news, private treaties, and surrogate political ownership of both content and distribution networks. Thus media outlets become insurance policies of large conglomerates. Then there’s the quintessential question about the freedom of press vs freedom of the owner of the press.
In 1974, speaking on the Press Council Amendment Bill, the editor of the Patriot late R.K. Mishra told the Upper House: “I would submit that the ministry of information and broadcasting is being too touchy about this talk of the freedom of the press. Now, where is the freedom of the press What do we have In India we have the freedom of the newspaper owner; in India we have the freedom of the newspaper proprietor, and in some cases the delegated freedom which is enjoyed by the newspaper managers.” Forty-two years later, these words, unfortunately, still have a prophetic ring to them. The tension between editorial freedoms and the proprietor’s agenda is not new. It has its genesis in the so-called “jute press”, going all the way back to the 1950s, which, among other things, led to the setting up of the First Press Commission.
On cross-media ownership, some in the industry strongly believe that any restrictions would be regressive while others believe that there should be no horizontal cross-media restrictions, but vertical ones are fine. But a lot of people in the public space hold the view that both horizontal and vertical restrictions are necessary.
Coming to the question of an ombudsman, the following facts need to be factored in to arrive at a proper understanding of this question: There is already a statutory regulator for the print media, i.e. the Press Council of India; in the electronic media space there is News Broadcasting Standards Authority (NBSA) for news channels and the Broadcasting Content Complaints Council (BCCC) for entertainment or non-news and current affairs channels. In the advertising space, we have the Advertising Standards Council of India (ASCI). The government as the licenser has powers under various statutory enactments across the information, broadcasting and new-media space. It is an unwieldy arrangement, more like mosaic trying to establish a modicum of propriety on hundreds of 600-pound gorillas. Despite the clumsy structure, this task requires the circumspection and caution of a surgeon’s scalpel and not a blacksmith’s hammer that is much in vogue these days. It needs to be performed with utmost sensitivity to the fundamental freedoms delineated both in the Constitution and those available to humankind as a natural right.
As minister of information and broadcasting, I had studied the proceedings around the Broadcasting Services Regulation Bill (BSRB) proposed in 2007 by my predecessors at some length. Out of academic interest I followed the proceedings of the Leveson Inquiry in Britain, fairly closely throughout 2011-12. Concurrently, Justice Markandey Katju, the then chairperson of the Press Council of India, made a passionate case for converting the Press Council into media council. The industry was experimenting with self-regulation paradigms and Parliament was up in arms demanding robust statutory regulation by an independent regulator of the entire media space. The Telecom Regulatory Authority of India as the regulator of the backend of the broadcasting sector was at war with the broadcast industry. The conflict between Article 19(1)(a) as caveated by Article 19(2) and Article 19(1)(g) as circumscribed by Article 19(6) could not have been more stark.
The question that I had to answer to the lawyer in me was whether the media was an institutionalised exercise in the freedom of speech and expression under Article 19(1)(a) or just another business in terms of Article 19(1)(g) for Article 19(1)(a) uses the expression: “All citizens shall have the right to freedom of speech and expression.” Not all businesses shall have the right to freedom of speech and expression. Were media businesses then synonymous with citizens for the purposes of freedom of speech and expression
The hard reality is that the media is a business. It has budgets, balance sheets, bottomlines and shareholders. Like any other industry, “honey it is about the money”. However, unlike other conventional commerce the media business has extensive societal implications and impact. Jingoism of the variety that we see daily on prime time news, the 9 pm WWF, is perhaps the most in-your-face example of corrosiveness.
On August 13, 2014, Trai made some far-reaching recommendations on issues relating to media ownership. The National Democratic Alliance government has not yet taken a view on these recommendations. Maybe because the corporate oligarchs that helped it come to power own substantial chunks of the media today. Maybe a concerned citizenry needs to move the appropriate court to direct the government to take a view on the Trai’s recommendations, accepting or rejecting which could pave the way for further judicial consideration.
As I peruse, with much amusement, the complaint adjudication proceedings and decisions of the self-regulatory structures in the media and juxtapose them with powers the government has as a licenser, I wonder what would be the last straw that finally breaks the camel’s back. Lest it be forgotten, the Trai has already recommended an omnibus independent regulator for the entire media industry, not once but twice over.
In August 2013, therefore, perhaps for the first time ever, all the statutory regulators and the chairs of self-regulating mechanisms, including the licenser came together on one platform. The ratio decidendi of the various opinions expressed leaned in favour of self-regulation underpinned by a statutory basis. Justice Lord Leveson after a detailed inquiry recommended something similar for Great Britain. The reason why this model is preferable to an ombudsman is that till the time self-regulation is not embedded in a statutory framework, the doors of statutory regulation would always remain open. Media freedoms are too fragile and precious to be left to the tender mercies of the state. In fact, I would go so far as to state that a special article, notwithstanding all the aberrations that I have pointed out, must be included in the Constitution guaranteeing media freedoms and not leave it as a derivative of Article 19(1)(a).
For when the state starts drawing lines in the media space the spectre of intolerance becomes a chilling certainty. It would make whatever is happening appear like a children’s tea party. In the case of the current government, even without any formal regulation of the thought space, protests against their anti-intellectual, anti-liberal and anti-creativity Orwellian mindset have already reached a crescendo — and the dance of fascism is yet to begin.
The writer is a lawyer and a former Union minister. The views expressed are personal. Twitter handle @manishtewari
