Media cannot reject regulation

Media cannot reject regulation

Media cannot reject regulation

JUSTICE MARKANDEY KATJU IN THE HINDU

If red lines can be drawn for the legal and medical professions, why should it be any different for profit-making newspapers and TV channels?

I have not read the Private Member’s Bill on media regulation that Meenakshi Natarajan was scheduled to move in Parliament last week so I am not in a position to comment upon it, but I am certainly of the opinion that the media (both print and electronic) needs to be regulated. Since my ideas on this issue have generated some controversy they need to be clarified.

I want regulation of the media, not control. The difference between the two is that in control there is no freedom, in regulation there is freedom but subject to reasonable restrictions in the public interest. The media has become very powerful in India and can strongly impact people’s lives. Hence it must be regulated in the public interest.

The media people keep harping on Article 19 (1) (a) of the Indian Constitution which guarantees the freedom of speech and expression. But they deliberately overlook or underplay Article 19 (2) which says that the above right is subject to reasonable restrictions in the interest of sovereignty and integrity of India, State security, public order, decency, morality or in relation to defamation or incitement to an offence.

Not absolute

Thus, while there should be freedom for the media and not control over it, this freedom must be exercised in a manner not to adversely affect the security of the state, public order, morality, etc. No right can be absolute, every right is subject to reasonable restrictions in the public interest. The reason for this is that human beings are social creatures. No one can live in isolation, everyone has to live in society. And so an individual should not exercise her freedom in a manner so as to harm others or society, otherwise she will find it difficult to survive.

Media people often talk of self-regulation. But media houses are owned by businessmen who want profit. There is nothing wrong in making profits, but this must be coupled with social responsibilities. Media owners cannot say that they should be allowed to make profits even if the rest of society suffers. Such an attitude is self-destructive, and it is the media owners who will suffer in the long run if they do not correct themselves now. 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 superstitions 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.

Paid ‘news’ is the order of the day in some newspapers and channels where you have to pay to be in the news. One senior political leader told me things are so bad that politicians in some places pay money to journalists who attend their press conferences, and sometimes even to those who do not, to ensure favourable coverage. One TV channel owner told me that the latest Baba (who is dominating the scene nowadays) pays a huge amount for showing his meetings on TV. Madhu Kishwar, a very senior journalist herself, said on Rajya Sabha TV that many journalists are bribable and manipulable.

The media claims self-regulation. But by what logic? How can the News Broadcasters Association or the Broadcast Editors Association regulate TV channels driven by profit motive and high TRP ratings? Almost every section of society is regulated. Lawyers are a free profession, but their profession is regulated inasmuch as their licence can be suspended or cancelled by the Bar Council for professional misconduct. Similarly the licences of doctors, chartered accountants, etc., can be suspended/cancelled by their regulatory bodies. Judges of the Supreme Court or the High Court can be impeached by Parliament for misconduct. But the media claims that no action should be taken against it for violating journalistic ethics. Why? In a democracy everyone has to be accountable, but the media claims it should be accountable only to itself …The NBA and BEA claim self-regulation. Let me ask them: how many licences of TV channels have you suspended or cancelled till now? So far as we know, only one channel was awarded a fine, at which it withdrew from the body, and then was asked to come back. How many other punishments have you imposed? Let us have some details, instead of keeping everything secret. Let the meetings of the NBA and BEA be televised so as to ensure transparency and accountability (which Justice Verma has been advocating vociferously for the judiciary).

Let me quote from an article by Abhishek Upadhyaya, Editor, Special Projects, Dainik Bhaskar:

“It appears that the BEA was founded to collectively use intimidatory tactics in favour of a select few players after NBA failed to do so. The NBA is so weak, so feeble in its exercise of power that it can’t confront intimidation by its own members. The India TV case is an example of this. The NBA, in the past, had given notice to India TV for deceptively recreating a US-based policy analyst’s interview. It slapped a penalty of Rs 1 lakh on the channel which then walked out of the Association.

“The group of broadcasters found themselves completely helpless, couldn’t take any action and finally surrendered meekly before the channel. The offending channel issued a statement saying that its return has come after “fundamental issues raised by the channel against the disregard to NBA’s rules and guidelines were appreciated by the association’s directors…” The head of India TV, Rajat Sharma, then proceeded to join the board of NBA, and the channel’s managing editor, Vinod Kapri, returned to the Authority in the eminent editors’ panel!

“This was the turning point in the so-called self-regulation mechanism of electronic media. It became clear that all concerned had made an unwritten, oral understanding not to raise a finger on their own brethren in future. BEA was the next step in this direction, formed on 22 August, 2009 with a few electronic media editors in the driving seat. Since its inception this body has been irrationally screaming in the interest of a select few. The editors of this body announced some tender sops from time to time to publicise its good image and thwart any regulatory attempt in advance”.

Self-regulation

If the broadcast media claims self-regulation, then on the same logic everyone should be allowed self-regulation. Why then have laws at all, why have a law against theft, rape or murder? Why not abolish the Indian Penal Code and ask everyone to practise self-regulation? The very fact that there are laws proves that self-regulation is not sufficient, there must also be some external regulation and fear of punishment.

I may clarify here that I am not in favour of regulation of the media by the government but by an independent statutory authority like the Press Council of India. The Chairman of this body is not selected by the government but by a three-member selection committee consisting of (1) The Chairman of the Rajya Sabha (who is the Vice-President of India) (2) The Speaker of the Lok Sabha and (3) One representative of the Press Council.

The Press Council has 28 members, of which 20 are from the Press, five members of Parliament, and 3 from other bodies (The Bar Council of India, UGC and Sahitya Academy). The decisions of the Press Council are taken by a majority vote. Therefore, I am not a dictator who can ride roughshod on the views of others. Several of my proposals were rejected by the majority, and I respected their verdict. If the electronic media also comes under the Press Council (which can be renamed the Media Council), representatives of the electronic media will also be on this body, which will be totally democratic. Why then are the electronic media people so furiously and fiercely opposing my proposal? Obviously because they want a free ride in India without any kind of regulation and freedom to do what they will. I would welcome a healthy debate on this issue.

(The author is chairman of the Press Council of India.)

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No more ‘My Lord’, ‘Your Lordship’ in Punjab & Haryana HC

Ajay Sura, TIMES OF INDIA

CHANDIGARH: In a historical move to discard the colonial practice of addressing the judges of the high court as ‘My Lord’ or ‘Your Lordship‘, the Punjab and Haryana High Court Bar Association on Thursday passed a resolution asking its members not to address the court using the traditional phrase ‘My Lord’.

In its resolution passed unanimously by around 4500 members strong lawyers association has decided that in future the judges should be addressed as ‘Sir’ or ‘Your Honour’. The decision was taken in the general house meeting of the bar held in the jam-packed bar room of the high court on Thursday afternoon. With this, the Punjab and Haryana high court has become second high court in the country after Kerala high court advocates Association that had passed such resolution in June 2007 to take such step.

Talking to the development, President of the High Court Bar Association, Kulbir Singh Dhaliwal said that the bar body has unanimously resolved to stop addressing judges as ‘My Lord’ or ‘Your Lordship’ from Thursday.

Dhaliwal further stated, “We passed the resolution to endorse the already existing rules in this concerned framed by the Bar Council of India (BCI) in 2006 that had resolved that the form of address in the Supreme Court and high courts should be ‘Your Honour’ or ‘Honourable Court’. About the forcibility of the resolution, Dhaliwal added that because of habit, some lawyers may continue to say ‘My Lord’, but gradually they will get used to the new phrase. He also said that bar has received positive response from the judges on this issue.

Background:

The BCI – apex body of the lawyers in country had adopted a resolution in April 2006 and added a new Rule 49(1)(j) in the Advocates Act. As per the rule, lawyers can address the court as ‘Your Honour’ and refer to it as ‘Honourable Court’. If it is a subordinate court, lawyers can use terms such as ‘Sir’ or any equivalent phrase in the regional language concerned. Explaining the rationale behind the move, the Bar Council had held that the words such as ‘My Lord’ and ‘Your Lordship’ were “relics of the colonial past”.

The resolution has since been circulated to all state councils and the Supreme Court for adoption but over five years now, the resolution largely remained on paper. However, in an unprecedented move in October 2009, one of the judges of Madras HC, Justice K Chandru had banned lawyers from addressing his court as ‘My lord’ and ‘Your lordship’

The Sexual Harassment Bill, going forward

KUMKUM SEN IN THE BUSINESS STANDARD

It’s been more than fifteen years since the Supreme Court passed its judgment in the Vishaka Vs. State of Rajasthan (Vishaka), and ten since the Medha Kotwal case. Vishakha constitutes the Indian Judiciary’s first pronouncement on gender justice in the workplace.“Harassment”was interpreted to include physical contact and advances, sexually coloured remarks, any physical verbal/non verbal overture or a demand/request, as being indicative, and not comprehensive. The Court prescribed certain guidelines and norms as representing the minimum standards to be followed by employers and other responsible persons in containing and dealing with harassment, bearing in mind that neither civil or penal laws provided adequate protection, till such time a law was enacted. Certain acts of sexual harassment constitute criminal offences, as under section 209 of the Indian Penal Code for performing an obscene act or utterance, and also under Sections 354 and 509 for outrage of modesty of women. But these provisions can not address the various insidious forms sexual harassment can take, and more important, the redressal is not the organisation’s responsibility.

In the absence of indigenous jurisprudence, the Supreme Court relied heavily on the International Convention of All Forms of Discrimination Against Women (CEDAW) which India had recently signed and ratified, and the Protection of Human Rights Act, 1993. However the Government took no interest in pushing the law.

On the other hand, various corporations, multinationals as well as domestic, particularly listed companies, which are subjected to higher degrees of transparency and disclosures, established their internal systems, including grievance cell and a Committee with a senior woman employee as the Chair. Welfare and safety requirements of the women in the work place, such as late night transport, night were firmed up after the murder of a BPO female employee by the cab driver. Instances of complaints and incidents usually do not escalate beyond the HR Department and the Committee. To the limited extent I have been involved as a legal adviser, such issues are usually effectively resolved, or any one party or both move out with or without a gentle nudge from the management. Otherwise, there is complete opacity, particularly in the fast growing services sector, where women are a significant part of the work force, in the implementation of all or any of the Vishakha safeguards, as there is no threat in non-compliance, in the absence of a law. Even then several complaints have reached the High Courts, and the victims have secured justice, notably in the Tata Metallic and Apparel Export cases. More often, the breach has been in the constitution and functioning of the Committee and this was exposed in Medha Kotwal’s Petition before the Supreme Court, wherein on the revelation that the Government was the worst offender, the Court called upon the Central & State Governments and various professional bodies, such as the Bar Council of India to disclose the measures taken by them.

The Bill, introduced in 2010 and referred last month to a Standing Committee, has finally moved, notwithstanding enormous resistance. It.has its critics, but is well drafted., and endeavours to include every type of victim in its definition of an “Aggrieved Women”, who does not have to be an Employee to qualify and to bring within its ambit , students, research scholars, patients. “Employee” has been amplified to include trainees, apprentices, contract and adhoc workers. Perhaps inclusion of “service provider” and “customer” would have provided a more inclusive connotation. Contrary to media reports, the Bill specifically includes domestic worker and “dwelling house” belying the popular impression that this sector has been ignored.

“Workplace” definition deals with every kind of environment which would qualify, in the private and government sectors as well as dwelling places, vehicles, aircrafts, different destinations, hotels in trying to capture all possible locations where harassment having a nexus with workplace or the victim can be perpetrated. The acknowledgement of this concept is critical in the context of the diversity of locations where harassments are perpetrated, rape of a female complainant in a police station being an example.

Interestingly “sexual harassment” is not defined. Section 3 of the proposed bill describes this to include unwelcome sexually determined behaviour, and the various items conceptualised in Vishakha, making it clear that is not limited to any assurance of preferential or threat of detrimental treatment, conduct which is humiliating or inducive to a hostile and unhealthy work environment.

While laws should aim at obliterating sexual harassment and the mindset that evokes such behaviour, panic levels should not be escalated. Every light flirtation or a wolf whistle is not necessarily an act of sexual harassment. Every environment and not all classes of harassment cannot be subject to a uniform policy.

What doesn’t make headlines is the gender neutral subtle and non-violent harassment in the workplace, unrelated to sexual expectations or quid pro quo, which can be based on colour, caste, religion, nationality, age, political affiliations, and the aggression is manifested by way of belittling observations, persistent criticism of work, withholding resources. Till such time the law makers and the Government acknowledge this,,,the victims of such harrasment are without recourse.

Kumkum Sen is a partner at Bharucha & Partners Delhi office and can be reached at kumkum.sen@bharucha.in

Andhra: HC fines advocate for frivolous plea

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HYDERABAD: A division bench of the AP High Court has directed a petitioner to pay Rs1 lakh as fine to the AP State Legal Services Authority within 30 days for filing a frivolous petition.The division bench comprising Chief Justice Nisar Ahmad Kakru and Justice Vilas V Afzulpukar while hearing a public interest litigation filed by a practising Supreme Court advocate Chandrasekhara Reddy seeking the removal of Justice C V Nagarjuna Reddy, wondered how could the subject be in public interest and left it to the wisdom of the Bar Council of India and the State Bar Council to look into whether the stand taken by the petitioner amounted to misconduct and find out if any action could be taken against him. The advocate filed the petition challenging the continuance of the judge who had resigned during an agitation by the Telangana advocates. The advocates had resorted to a violent agitation demanding 42 per cent reservations for those from Telangana in judicial posts.The court, in its judgement delivered recently, criticised the failure of the petitioner to express regrets on the role of some of the advocates, who hurt the dignity and independence of the bar and the bench.Taking the view that if the unhealthy practice of filing petitions against judges on frivolous grounds goes unchecked, judiciary cannot be expected to discharge its constitutional duty without fear, the bench said fearless administration of justice may be become a myth rather than a reality.

http://expressbuzz.com/states/andhrapradesh/andhra-hc-fines-advocate-for-frivolous-plea/232777.html

Court orders suspension of Chairman of Tamil Nadu Bar Council

High Court Madras

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JUDGE THREAT CASE

K.T. Sangameswaran IN THE HINDU

CHENNAI: The Madras High Court on Tuesday ordered the suspension of the membership of R.K. Chandramohan and consequently his Chairmanship of the Bar Council of Tamil Nadu and Pondicherry (BCT) forthwith for an alleged attempt to influence a High Court Judge using the name of the then Union Minister A. Raja in a matter relating to an anticipatory bail plea.

In its 78-page common order on two public interest litigation petitions, a Division Bench comprising Justices F.M. Ibrahim Kalifulla and M.M. Sundresh said that apart from attempting to influence the Judge R. Regupathi (since retired), Mr. Chandramohan was stated to have behaved, in the words of the Judge, in a very unruly manner in the open court.

The Bench said the petitioner should file a formal complaint, along with the High Court order, to the BCT within two weeks. He should file a complaint copy with the Bar Council of India (BCI) simultaneously. Mr. Chandramohan should not be permitted by the State Bar Council to function as chairman pending disposal of the disciplinary action by the BCI.

In a petition, the petitioner, Elephant G. Rajendran, sought a writ against Mr. Chandramohan directing him to explain under what authority he held the office as Chairman of BCT. In the other petition, he sought a direction to the BCI to initiate appropriate action against the BCT Chairman.

The petitioner submitted that an anticipatory bail application filed by a medical practitioner came up before Justice Regupathi on June 29 last year and Mr. Chandramohan appeared on behalf of the accused. During the hearing, the Judge stated that “a Union Minister had called me to exert influence in favour of accused and to release the petitioner/accused on anticipatory bail. You yourself know everything.”

The petitioner contended that Mr. Chandramohan’s conduct in casting aspersions against the Judge was gross contempt and interfered with the administration of justice. He had used the name of a Union Minister for achieving an illegal action. Therefore, he should be disqualified from the post.

Following a direction from the Judge, the High Court Registry produced a letter dated July 2, 2009, written by the Judge to the Chief Justice of Madras High Court in which he had stated that on June 12, 2009 while he was in his chamber, Mr. Chandramohan met him and said that two persons who were family friends of the Union Minister had filed the petition for anticipatory bail in a criminal case and it must be considered favourably. He also handed over his mobile phone saying that the Union Minister was on the line to talk to the Judge.

Right away, the Judge said, he discouraged such conduct and told Mr. Chandramohan that the case would be disposed of in accordance with law. On June 29, in the open court the advocate vociferously remarked that the court was always taking sides with the prosecution and not accepting the submission made by the counsel for the accused in the case while giving importance to the prosecutor. Later, the Judge directed the Registry to place the papers before the Chief Justice for posting the case before some other Judge.

In its order, the Bench said there was no reason to doubt the veracity of the Judge’s statement in the absence of allegations of ill will or mala fides against the Judge. The conduct of the BCI Chairman in having maintained silence in his counter affidavit went to show to a very large extent that in effect he admitted the allegations. He neither repented nor displayed any conduct of remorse. If really such an incident had not taken place, the first person to have refuted the Judge’ s statement should have been Mr. Chandramohan.

The Bench observed that the Judge’s reaction was much more courteous than was expected. What had been alleged against Mr. Chandramohan by the Judge did call for stringent action at that point of time itself by handing him over to the appropriate authorities. Unfortunately, Mr. Chandramohan instead of realising the Judge’s magnanimous attitude displayed a much more disastrous attitude by behaving in an unruly manner in the court hall when the Judge had no other option except to reveal in the open court the monstrous and unpardonable behaviour of the advocate.

It said the magnitude of the behaviour of Mr. Chandramohan “was unprecedented and the same had to be dealt with an iron hand to ensure that such a behaviour was not even dreamt to be attempted by any other unscrupulous element under the garb of wearing the glorious robes of an advocate.”

Having regard to the order passed and directions issued, the Bench said it was not now inclined to take any proceedings for contempt.

http://www.hindu.com/2010/12/08/stories/2010120857391400.htm

Reform should begin with the profession of law

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Jagdeep S. Chhokar  IN THE TRIBUNE CHANDIGARH

THE Supreme Court of India’s observation that “something is rotten” in the Allahabad High Court and Chief Justice of India Justice S.H. Kapadia’s speech during a National Law Day function (both on November 26) that good judges can be appointed within the current system in the next two years when he is the CJI are laudable. A deeper analysis of the two statements can reveal significant pointers to the state of judiciary in India today.

Over the years, the Allahabad High Court has provided several judges of the Supreme Court, including Justice Markandey Katju who, along with Justice Gyan Sudha Misra, had criticised the state of affairs in the Allahabad High Court. One cannot but admire their concern. If “a lot of complaints are coming against certain Judges of the Allahabad High Court relating to their integrity”, is the integrity of these judges likely to improve if they are posted to another High Court?

Judicial technical legalities aside, to a layperson it is extremely unlikely. The results of such actions have been known in the past when there were protests from the Sikkim High Court and the Guwahati High Court when attempts were made to transfer judges with suspect integrity to these High Courts.“Transfer is no punishment” is an oft-used explanation in the civil services whenever someone protests against a transfer, and that should be the same in the judiciary. Similarly, transfer is no cure for a suspect integrity.

It is understandable that given the complexity of the impeachment process, the options for dealing with recalcitrant judges are limited and that is why transfer is suggested as one of the so-called solutions or “strong measures”, but it actually is begging the question.The quest for an answer takes us to the CJI’s statement about proving that good judges can be appointed “within the current system”. Several inferences can be made from the statement, though admittedly not possibly intended by Justice Kapadia.

The fact that the “current system”needs to be proven implies that there are concerns about it. That it will be proved that “good judges can be appointed” is an indirect acceptance that bad, or at least not good, judges have been appointed. The concerns are obviously proved by the Allahabad High Court Bench.

Secondly, Justice Kapadia has promised that good judges can be appointed within the current system “in the next two years” when (he is) the CJI. The first inference implies that the current system is person-dependant. The basic rationale for putting systems in place is to make them free of individual idiosyncrasies but it is also accepted that systems are as good as the people who use them. Granville Austin aptly said, “(C)onstitutions, however ‘living’, are inert. They do not work, they are worked.” But there is a difference, however subtle, between constitutions and institutional systems. The main expectation from the latter is that they will work independent of human follies and weaknesses. If the current appointment system for higher judiciary is susceptible to human frailties, then there is ample justification to try a new system.

This leaves one important issue of higher judicial appointments unattended and that is the source of these appointments. On November 26, the Bar Council of India had decided to postpone the proposed All India Bar Examination from December 5 to March 5, 2011. While this, by itself, may be a relatively innocuous action, it does point to the state of affairs of the profession of law which suffers from many infirmities starting with education for LL.B., registration of lawyers, and practices followed by lawyers in courts and outside. The actions of various regulatory authorities, the Bar Councils, and various Bar Associations are not always above board. And it may not be out of place to say that something is rotten with the country’s legal profession. Clearly, it is the Bar that is the major source of recruitment to the higher judiciary. Therefore, reforming the system of appointment to higher judiciary should begin with the reform of the profession of law.

The writer is a former Dean, Indian Institute of Management, Ahmedabad

http://www.tribuneindia.com/2010/20101203/edit.htm#6

Bar chorus for court clean-up

SATYA PRAKASH IN THE HINDUSTAN TIMES

A day after the Supreme Court slammed the Allahabad High Court for some of its “incorrigible” judges passing orders on “extraneous considerations”, bar leaders on Saturday said it was time to stem the rot. Former law minister Shanti Bhushan, who recently filed an affidavit in the apex court saying eight former chief justices of India were definitely corrupt, said, “I have been saying this for years. Now even the Supreme Court has said it.

“The real problem is that there are hardly any crusaders in the judiciary. Even honest judges try to defend the corrupt ones because they feel it’s one judicial family,” Bhushan said, hailing justice Markandey Katju as a crusader for having asked the Allahabad HC chief justice to clean his house by transferring the “incorrigible” judges.

Senior advocate Rajeev Dhavan said: “The SC’s comments point to a problem that exists in the judiciary. But Justice Katju can only protest…He has not provided any solution.”

Asked if transfer of “uncle judges” would solve the problem, former Delhi Bar Council chairman KC Miittal said,  “There has to be a comprehensive, transparent transfer policy. In any case it can only be a temporary solution.”

Dhavan, who represents Tehelka in a contempt case, wondered why the magazine and advocate Prashant Bhushan should be hauled up for contempt when the SC itself was making such comments.

Maintaining that poor bar leadership has compounded the problem, Miittal said the Bar Council of India should come out with stringent norms to check “uncle judges” syndrome.

Former BCI chairman VC Mishra said: “The evil pointed out by the SC is not limited to the Allahabad HC. It is there in all other HCs as well.”

He, however, said transferring a dishonest judge from one HC to another was not the real solution. “No judge should join a high court where he had been practising as a lawyer.”

Lucknow-based Oudh Bar Association president RS Pande said the real problem was the secret appointment process. “It should be made more transparent and… after thoroughly checking the background of the candidates,” Pande said.

BCI chairman Gopal Subramanium said: “We will certainly take it up in our next meeting.”

http://www.hindustantimes.com/Bar-chorus-for-court-clean-up/Article1-631800.aspx