JUSTICE KATJU – MEDIA DEBATE : Justice Markandey Katju on the role of media in India

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

PUBLISHED IN THE HINDU

Justice Markandey Katju, Chairman, Press Council of India, argues that the media has a very important role to play in helping the country make the transition from an old feudal society to a modern industrial one quickly, and without much pain.

The Role the Media should be playing in India

by Justice Markandey Katju, (former Judge, Supreme Court of India), Chairman, Press Council of India

To understand the role which the media should be playing in India we have to first understand the historical context. India is presently passing through a transitional period in its history, transition from feudal agricultural society to modern industrial society.

This is a very painful and agonizing period in history. The old feudal society is being uprooted and torn apart, but the new, modern, industrial society has not yet been entirely established. Old values are crumbling, everything is in turmoil. We may recollect the line in Shakespeare’s play Macbeth: “Fair is foul and foul is fair”. What was regarded good earlier e.g. the caste system is regarded bad today (at least by the enlightened section of society), and what was regarded bad earlier, e.g. love marriage, is acceptable today (at least to the modern minded persons). One is reminded of Firaq Gorakhpuri’s Urdu couplet:

“Har zarre par ek qaifiyat-e-neemshabi hai  – Ai saaqi-e- dauraan yeh gunahon ki ghadi hai”

In a marvel of condensation this sher (couplet) reflects the transitional age. Zarra means particle, qaifiyat means condition, e means of, neem means half, and shab means night. So the first line in the couplet literally means

“Every particle is in a condition of half night”.

Urdu poetry is often to be understood figuratively, not literally. So this line really means that (in the transitional age) everything is in flux, neither night nor day, neither the old order nor the new. Also, in the middle of the night if we get up we are dazed, in a state of mental confusion, and so are people in a transitional age. In the second line, saaqi is the girl who fills the wine cup, but she is also the person to whom one can confide the innermost thoughts in one’s mind. The poet is imagining a girl, to whom he is describing the features of the transitional era. ‘Yeh gunahon ki ghadi hai’, i.e. it is the time of sin. In this transitional age it is a ‘gunahon ki ghadi’ from both points of view. From the point of view of people of the old, feudal order it is a sin to marry according to your choice, and particularly outside one’s caste or religion, it is a sin to give education to women, it is a sin to treat everyone as equal. At the same time, from the point of view of modern minded people the caste system is a sin, denying education to girls is a sin, and love marriage is quite acceptable. Thus old and new ideas are battling with each other in the transitional age.

It is the duty of all patriotic people, including the media, to help our society get over this transition period quickly and with less pain. The media has a very important role to play in this transition period, as it deals with ideas, not commodities. So by its very nature the media cannot be like an ordinary business.

If we study the history of Europe when it was passing through its transition period, i.e. from the 16th to the 19th Centuries, we find that this was a terrible period in Europe, full of turbulence, turmoil, revolutions, wars, chaos, social churning and intellectual ferment. It was only after passing through this fire that modern society emerged in Europe. India is presently going through this fire. We are passing through a very painful period in our history. Historically, the print media emerged in Europe as an organ of the people against feudal oppression. At that time the established organs were all in the hands of the feudal despotic authorities (the king, aristocrats, etc). Hence the people had to create new organs which could represent them. That is why the print media became known as the fourth estate. In Europe and America it represented the voice of the future, as contrasted to the established feudal organs which wanted to preserve the status quo. The media thus played an important role in transforming feudal Europe to modern Europe.

In the Age of Enlightenment in Europe the print media represented the voice of reason. Voltaire attacked religious bigotry and superstitions, and Rousseau attacked feudal despotism. Diderot said that “Man will be free when the last king is strangled with the entrails of the last priest”. Thomas Paine proclaimed the Rights of Man, and Junius (whose real name we still do not know) attacked the despotic George III and his ministers (see Will Durant’s ‘The Story of Civilization: Rousseau and Revolution’). Louis XVI, while in the Temple prison saw books by Voltaire and Rousseau in the prison library and said that these two persons have destroyed France. In fact what they had destroyed was not France but the feudal order. In the 19th Century the famous writer Emile Zola in his article ‘J’ Accuse’ accused the French Government of falsely imprisoning Captain Dreyfus in Devil’s Island only because he was a Jew.

In my opinion the Indian media should be playing a role similar to the progressive role played by the media in Europe during the transitional period in Europe. In other words, the Indian media should help our country get over the transition period and became a modern industrial state. This it can do by attacking backward, feudal ideas and practices e.g. casteism, communalism and superstitions, and promoting modern scientific and rational ideas. But is it doing so?

In my opinion a large section of the Indian media (particularly the electronic media) does not serve the interest of the people, in fact some of it is positively anti-people.

There are three major defects in the Indian media which I would like to highlight.

1. The media often diverts the attention of the people from the real issues to non issues. The real issues in India are socio-economic, the terrible poverty in which 80% of our people are living, the massive unemployment, the price rise, lack of medical care, education, and backward social practices like honour killing and caste oppression and religious fundamentalism etc. Instead of devoting most of its coverage to these issues the media focuses on non issues like film stars and their lives, fashion parades, pop music, disco dancing, astrology, cricket, reality shows, etc. There can be no objection to the media providing entertainment to the people, provided this is not overdone. But if 90% of its coverage is related to entertainment, and only 10% to the real issues facing the nation (mentioned above) then there is something seriously wrong with the media. The whole question is of proportion. In the Indian media the sense of proportion has gone crazy. Entertainment got 9 times the coverage that health, education , labour, agriculture and environment together got. Does a hungry or unemployed man want entertainment or food and a job? To give an example, I switched on the T.V. yesterday and what did I see? Lady Gaga has come to India, Kareena Kapoor standing next to her statue in Madame Tussand’s, tourism award being given to a business house, Formula one car race etc. etc. What has all this to do with the problems of the people?

Many channels show cricket day in and day out. Cricket is really the opium of the Indian masses. The Roman Emperors used to say “If you cannot give the people bread give them circuses”. This is precisely the approach of the Indian establishment, duly supported by our media. Keep the people involved in cricket so that they forget their social and economic plight. What is important is not poverty or unemployment or price rise or farmers suicides or lack of housing or healthcare or education, what is important is whether India has beaten New Zealand (or better still Pakistan) in a cricket match, or whether Tendulkar or Yuvraj Singh have scored a century. The Indian media so much hyped up the cricket match at Mohali between India and Pakistan that it became a veritable Mahabharat War!

Enormous space is given by our media to business, and very little to social sectors like health and education. Most media correspondents attend the film stars, fashion parades, pop music, etc. and very few attend to the lives and problems of workers, farmers, students, sex workers, etc. Recently ‘The Hindu’ published that a quarter million farmers committed suicide in the last fifteen years. A Lakme Fashion week was covered by 512 accredited journalists. In that fashion week women were displaying cotton garments, while the men and women who grew that cotton were killing themselves an hour’s flight from Nagpur in the Vidarbha region. Nobody told that story except one or two journalists locally. The media coverage of the education field concentrates (if at all) on the elite colleges like the I.I.Ts, but there is very little coverage of the plight of the tens of thousands of primary schools, particularly in rural areas where education begins.

In Europe the displaced peasants got jobs in the factories which were coming up because of the Industrial Revolution. In India, an the other hand industrial jobs are now hard to come by. Many mills have closed down and have become real estate. The job trend in manufacturing has seen a sharp decline over the last 15 years. For instance, TISCO employed 85,000 workers in 1991 in its steel plant which then manufactured 1 million tons of steel. In 2005 it manufactured 5 million tons of steel but with only 44,000 workers. In mid 90s Bajaj was producing 1 million two wheelers with 24,000 workers. By 2004 it was producing 2.4 million units with 10,500 workers.

Where then do these millions of displaced peasants go? They go to cities where they became domestic servants, street hawkers, or even criminals. It is estimated that there are 1 to 2 lac adolescent girls from Jharkhand working as maids in Delhi. Prostitution is rampant in all cities, due to abject poverty. In the field of health care, it may be pointed out that the number of quacks in every city in India is several times the number of regular doctors. This is because the poor people cannot afford going to a regular doctor. In rural areas the condition is worse. The government doctors posted to primary health centres usually come for a day or two each month, and run their private nursing homes in the cities the rest of the time.

In ‘Shining’ India, the child malnutrition figures are the worst in the world. According to U.N. data, the percentage of under weight children below the age of 5 years in the poorest countries in the world is 25 per cent in Guinea Bissau, 27 per cent in Sierra Leone, 38 per cent in Ethiopia, and 47 per cent in India. The average family in India is consuming 100 kilograms of food grains less than it did 10 years ago (see P. Sainath’s article ‘Slumdogs and Millionaires’). All this is largely ignored by our media which turns a Nelson’s eye to the harsh economic realities facing upto 80 per cent of our people, and instead concentrates on some Potempkin villages where all is glamour and show biz. Our media is largely like Queen Marie Autoinette, who when told that the people have no bread, said that they could eat cake.

2. The media often divides the people:

Whenever a bomb blast takes place anywhere in India (whether in Bombay or Bangalore or Delhi or anywhere) within a few hours most T.V. channels starts showing that an e-mail or SMS has been received from Indian Mujahideen or Jaish-e-Muhammad or Harkat-ul-Jihad-e-Islam claiming responsibility. The name will always be a Muslim name. Now an e-mail or SMS can be sent by any mischievous person who wants communal hatred. Why should they be shown on T.V. screens, and next day in print (the T.V. news at night often sets the agenda for the print media news next morning)? The subtle message being sent by showing this is that all Muslims are terrorists or bomb throwers. In this way the entire Muslim community in India is demonized, when the truth is that 99 per cent people of all communities are good, whether they are Hindus or Muslims or Sikhs or Christians, and of whatever caste, region or language.

India is broadly a country of immigrants. About 92 to 93 per cent people living in India today are descendants of immigrants, and not the original inhabitants (who are the pre-Dravidian tribals or adivasis, comprising of only 7 to 8 per cent of our population). Because we are broadly a country of immigrants there is tremendous diversity in India – so many religions, castes, languages, ethnic groups, etc. Hence it is absolutely essential if we wish to keep united and prosper that there must be tolerance and equal respect to all communities living in India. Those who sow seeds of discord among our people, whether on religious or caste or lingual or regional lines, are really enemies of our people.

The senders of such e-mails and SMS messages are therefore enemies of India, who wish to sow the seeds of discord among us on religious lines. Why should the media, wittingly or unwittingly, become abettors of this national crime?

3. The media promotes superstitions

As I have already mentioned, in this transitional age, the media should help our people to move forward into the modern, scientific age. For this purpose the media should propagate rational and scientific ideas, but instead of doing so a large section of our media propagates superstitions of various kinds. It is true that the intellectual level of the vast majority of Indians is very low, they are steeped in casteism, communalism, and superstitions. The question, however, is whether the media should try to lift up the intellectual level of our people by propagating rational and scientific ideas, or whether it should go down to that low level and seek to perpetuate it?

In Europe during the Age of Enlightenment the media (which was only the print medium at that time) sought to uplift the mental level of the people and change their mindset by propagating ideas of liberty, equality and fraternity and rational thinking. Voltaire attacked superstitions, and Dickens criticized the horrible conditions in jails, schools, orphanages, courts, etc. Should not our media be doing the same?

At one time courageous people like Raja Ram Mohan Roy wrote against sati, child marriage, purdah system etc. (in his newspaper ‘Miratul Akhbar’ and ‘Sambad Kaumudi’). Nikhil Chakraborty wrote about the horrors of the Bengal Famine of 1943. Munshi Premchand an d Sharat Chandra Chattopadhyaya wrote against feudal practices and women’s oppression. Manto wrote about the horrors of Partition.

But what do we see in the media today?

Many T.V. channels show astrology. Astrology is not to be confused with astronomy. While astronomy is a science, astrology is pure superstition and humbug. Even a little common sense can tell us that there is no rational connection between the movements of the stars and planets, and whether a person will die at the age of 50 years or 80 years, or whether he will be a doctor or engineer or lawyer. No doubt most people in our country believe in astrology, but that is because their mental level is very low. The media should try to bring up that level, rather than to descend to it and perpetuate it.

Many channels mention and show the place where a Hindu god was born, where he lived, etc. Is this is not spreading superstitions.

I am not saying that there are no good journalists at all in the media. There are many excellent journalists. P. Sainath is one of them, whose name should be written in letters of gold in the history of Indian journalism. Had it not been for his highlighting of the farmers suicides in certain states the story (which was suppressed for several years) may never have been told. But such good journalists are the exceptions. The majority consists of people who do not seem to have the desire to serve the public interest.

To remedy this defect in the media I have done two things (1) I propose to have regular meetings with the media (including electronic media) every two months or so. These will not be regular meetings of the entire Press Council, but informal get-togethers where we will discuss issues relating to the media and try to resolve them in the democratic way, that is, by discussion, consultation and dialogue. I believe 90% problems can be resolved in this way (2) In extreme cases, where a section of the media proves incorrigible despite trying the democratic method mentioned above, harsher measures may be required. In this connection I have written to the Prime Minister requesting him to amend the Press Council Act by bringing the electronic media also under the purview of the Press Council (which may be renamed the Media Council) and by giving it more teeth e.g. power to suspend government advertisements, or in extreme cases even the licence of the media houses for some time. As Goswami Tulsidas said ‘Bin bhaya hot na preet’. This, however, will be resorted to only in extreme cases and after the democratic method has failed. It may be objected that this is interfering with the freedom of the media. There is no freedom which is absolute. All freedoms are subject to reasonable restrictions, and are also coupled with responsibilities. In a democracy everyone is accountable to the people, and so is the media.

To sum up: The Indian media must now introspect and develop a sense of responsibility and maturity.That does not mean that it cannot be reformed. My belief is that 80 per cent people who are doing wrong things can be made good people by patient persuasion, pointing out their errors, and gently leading them to the honourable path which the print media in Europe in the Age of Enlightenment was following.

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Freedom of the press and journalistic ethics

Justice Markandey Katju  IN THE HINDU

Freedom is important, so is responsibility. In countries like India, the media have a responsibility to fight backward ideas such as casteism and communalism, and help the people fight poverty and other social evils.

Freedom of the press and journalistic ethics is an important topic today in India — with the word ‘press’ encompassing the electronic media also. There should be a serious discussion on the topic. That discussion should include issues of the responsibilities of the press, since the media have become very prominent and very powerful.

In India, freedom of the press has been treated as part of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, vide Brij Bhushan and Another vs. The State of Delhi, AIR 1950 SC 129 and Sakal Papers (P) Ltd vs. Union of India, AIR 1962 SC 305, among others. However, as mentioned in Article 19(2), reasonable restrictions can be placed on this right, in the interest of the sovereignty and integrity of India, the security of the state, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Hence, freedom of the media is not an absolute freedom.

The importance of the freedom of the press lies in the fact that for most citizens the prospect of personal familiarity with newsworthy events is unrealistic. In seeking out news, the media therefore act for the public at large. It is the means by which people receive free flow of information and ideas, which is essential to intelligent self-governance, that is, democracy.

For a proper functioning of democracy it is essential that citizens are kept informed about news from various parts of the country and even abroad, because only then can they form rational opinions. A citizen surely cannot be expected personally to gather news to enable him or her to form such opinions. Hence, the media play an important role in a democracy and serve as an agency of the people to gather news for them. It is for this reason that freedom of the press has been emphasised in all democratic countries, while it was not permitted in feudal or totalitarian regimes.

In India, the media have played a historical role in providing information to the people about social and economic evils. The media have informed the people about the tremendous poverty in the country, the suicide of farmers in various States, the so-called honour killings in many places by Khap panchayats, corruption, and so on. For this, the media in India deserve kudos.

However, the media have a great responsibility also to see that the news they present is accurate and serve the interest of the people. If the media convey false news that may harm the reputation of a person or a section of society, it may do great damage since reputation is a valuable asset for a person. Even if the media subsequently correct a statement, the damage done may be irreparable. Hence, the media should take care to carefully investigate any news item before reporting it.

I know of a case where the photograph of a High Court judge, who was known to be upright, was shown on a TV channel along with that of a known criminal. The allegation against the judge was that he had acquired some land at a low price misusing his office. But my own inquiries (as part of which I met and asked questions to that judge and many others) revealed that he had acquired the land not in any discretionary quota but in the open market at the market price.

Also, sometimes the media present twisted or distorted news that may contain an element of truth but also an element of untruth. This, too, should be avoided because a half-truth can be more dangerous than a total lie. The media should avoid giving any slant to news, and avoid sensationalism and yellow journalism. Only then will they gain the respect of the people and fulfil their true role in a democracy.

Recently, reports were published of paid news — which involves someone paying a newspaper and getting something favourable to him published. If this is correct, it is most improper. Editors should curb this practice.

Media comments on pending cases, especially on criminal cases where the life or liberty of a citizen is involved, are a delicate issue and should be carefully considered. After all, judges are human beings too, and sometimes it may be difficult for them not to be influenced by such news. The British law is that when a case is sub judice, no comment can be made on it, whereas U.S. law permits such comment. In India we may have to take an intermediate view on this issue: while on the one hand we have a written Constitution that guarantees freedom of speech in Article 19(1)(a) — which the unwritten British Constitution does not — the life and liberty of a citizen is a fundamental right guaranteed by Article 21 and should not lightly be jeopardised. Hence, a balanced view has to be taken on this.

Also, often the media publish correct news but place too much emphasis on frivolous news such as those concerning the activities of film stars, models, cricketers and so on, while giving very little prominence to much more important issues that are basically socio-economic in nature.

What do we see on television these days? Some channels show film stars, pop music, disco-dancing and fashion parades (often with scantily clad young women), astrology, or cricket. Is it not a cruel irony and an affront to our poor people that so much time and resources are spent on such things? What have the Indian masses, who are facing terrible economic problems, to do with such things?

Historically, the media have been organs of the people against feudal oppression. In Europe, the media played a major role in transforming a feudal society into a modern one. The print media played a role in preparing for, and during, the British, American and French Revolutions. The print media were used by writers such as Rousseau, Voltaire, Thomas Paine, Junius and John Wilkes in the people’s fight against feudalism and despotism. Everyone knows of the great stir created by Thomas Paine’s pamphlet ‘Common Sense’ during the American Revolution, or of the letters of Junius during the reign of the despotic George III.

The media became powerful tools in the hands of the people then because they could not express themselves through the established organs of power: those organs were in the hands of feudal and despotic rulers. Hence, the people had to create new organs that would serve them. It is for this reason that that the print media became known as the Fourth Estate. In Europe and America, they represented the voice of the future, in contrast to the feudal or despotic organs that wanted to preserve the status quo in society. In the 20th century, other types of media emerged: radio, television and the Internet.

What should be the media’s role? This is a matter of great importance to India as it faces massive problems of poverty, unemployment, corruption, price rise and so on.

To my mind, in underdeveloped countries like India the media have a great responsibility to fight backward ideas such as casteism and communalism, and help the people in their struggle against poverty and other social evils. Since a large section of the people is backward and ignorant, it is all the more necessary that modern ideas are brought to them and their backwardness removed so that they become part of enlightened India. The media have a great responsibility in this respect.

(Markandey Katju is a Judge of the Supreme Court of India. The second part of this article will follow.)

http://www.hindu.com/2011/06/03/stories/2011060363621400.htm

UNDERCOVER/STING OPERATIONS- JOURNALISTIC ETHICS- A LAW COMMISSION OF INDIA CONSULTATION PAPER

india media compilation

Image by 350.org via Flickr

BY LAW COMMISSION OF INDIA

1.       Technology is offering many ways to invade private and professional lives. The media with the help of private entities is making effective use of such technological opportunity to carry out the sting operations (for short, SO) to expose corruption, immorality, exploitation, flouting of the rule of law by those holding public offices, influential persons and businessmen.    However, it is noticed that in some high profile criminal cases, the media by conducting SO and broadcasting the same on TV channels regularly, have been prompted by a motive to play up the emotions and sensationalise the events for a commercial purpose.  It has a tendency to generate public opinion in a particular direction much to the embarrassment of law enforcement agencies.  Instances are not lacking where instant SMS polls have been held to decide between guilt and innocence.  Such parallel proceedings by media in a criminal case pending before a court of law can create a forceful impression on the public minds about guilt and might affect a fair trial and uninhibited verdict which is a part of constitutional guarantee.

2.       On one hand, SO serves the public interest by strengthening the democratic framework by disseminating information about facts of vital interest to society that are not easy to obtain by simple requests or efforts. The records from the world over show that without the use of SO, public would have never learnt about many economic and political wrong doings. On the other hand, some recent incidents prove the misuse of SO by media and private entities to increase the channel viewership, settle political scores, harm corporate interests, malign reputation etc. Such SO that are carried on with ulterior motives not only harm the person and the institution trapped in the sting, but has the potential to shake people’s faith in the institutions and create a general atmosphere of cynicism in the society.

3. The only law we have at the moment is the Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder.   This Act and Rules being a product of era when SO had not arrived on the television scene, do not have any direct provisions related to the SO. At the same time, some provisions of this Act may be applied to check malpractices associated with the SO because Sections 3 and 5 read with the Programme Code referred to in Section 6 lays down that no programme can be transmitted/re-transmitted on any cable service which contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths.

4. However, some TV channels were found flouting these provisions.   In the recent past, instances of Television channels exceeding the limits of decency by using SO as a tool for the on-going reality shows to expose waywardness or infidelity of a spouse, boyfriend, etc. have been noticed. Such SO showing private life of common man and woman are not conducted for exposing public wrongs and do not serve any public interest or public purpose.  Further, manipulated and fabricated SO noticed in several instances have sullied the image of media and damaged the reputation of targeted persons irretrievably. These kinds of SO are exploiting technology available to intrude private space thereby violating the right to privacy and taking the civilization backward.

5. There is therefore need felt to evaluate whether TV channels are fulfilling their social responsibility in revealing private wrongdoing? Whose interests are served by such expose? How far they can be allowed to invade the right to privacy, when expose does not serve a legitimate public interest? Even if SO serves public interest in some way, how far the undercover operators can go? Can they themselves become party to crime to unearth the crime?

6. The Committee on Petitions of Rajya Sabha in its report dated 12.12.2008 made the following pertinent observations:

“The Committee feels that the electronic media should not air information gathered though SO unless and until there is ample evidence to conclusively prove the guilt of the alleged accused; if it is required in public interest, the version of the alleged accused should also be aired simultaneously and with equal prominence…Where a SO is found to be false and fabricated, the media company ought to be given stringent punitive punishment commensurate with the damage caused to the innocent individual…  The Committee is of the view that freedom of the press is essential for healthy functioning of democracy; however, democracy comes with responsibility. Freedom of the press case responsibility on media as well. The Committee therefore expects the media to contribute to success of democracy by protecting the freedom of individual including his/her right to privacy. The Committee observes that even though the right to know takes precedence over the right to privacy, the right of privacy should not be encroached upon, under the garb of freedom of the Press unless prompted by genuine public interest. Therefore the Committee advocates following of a middle path approach between both the rights, to meet the ends of justice.”

6.1 The Committee of Ethics too in its proceedings dated 24th Feb 2006 concerning the SO – ‘Operation Chakravyuh’ stressed the need to evolve a regulatory mechanism for undercover operations which have the potential of encroaching upon the right to privacy of an individual and further observed that the Committee feels that the electronic media should also put in place a self regulatory mechanism to ensure justice and fair play in their functioning.

7.       The Government of India proposed to set up an independent regulatory authority viz., the Broadcasting Regulatory Authority of India (BRAI) under a proposed law – the Broadcasting Services Regulation Bill 2007. The accompanying Content Code revised in March 2008 lays down in detail what content can be aired and what cannot be, but, it has met  strong  opposition from  the  media  agencies  and  channel  owners  who  favour self  regulation.   According to the very recent newspaper reports, the Hon’ble Minister of I&B stated that a National Broadcasting Authority – a statutory body will be set up, but it will not regulate the content.  However, the I&B Ministry has devised certain non-statutory and informal guidelines and machinery to check objectionable publications/exhibitions.  For instance, the Electronic Media Monitoring Center has been set up to undertake monitoring of content of various FM and TV channels for any violation of Programme Code, Advertisement Code and the provisions of Cable TV Networks Regulation Act etc.

7.1 While so, the News Broadcasting Association (NBA) have been formed to put in place a self-regulatory mechanism and accordingly the News Broadcasting Standard Authority (NBSA) was set up in October 2008. The NBSA  consists of an eminent retired Judge, eminent editors associated with broadcasting and eminent persons having special knowledge in the fields of law, education, medicine, literature, public administration etc. It has formulated a Code of Ethics and Broadcasting Standards governing the broadcasters and television journalists. ‘Broadcaster’ is defined to mean any association of persons/organization or corporate entity being member of NBA who owns, manages and controls a satellite or cable T.V. channels that comprises exclusively news and current affairs contents or capsules as part of its programming and the said term includes the editor. The said Authority, on the basis of a complaint or otherwise, can proceed to hold an inquiry into the alleged violation of code of conduct and after giving an opportunity of hearing to the broadcaster concerned, may for reasons recorded in writing, warn, censure or impose a fine upon the broadcaster and or recommend the concerned authority for suspension/revocation of license of such broadcaster. The avowed purpose of the principles of self regulation is stated to be “to empower the profession of Television Journalism by an abiding set of values, which will stand the test of time and ensure that balanced and comprehensive journalism flourishes to strengthen India’s democracy”. As regards sting operation, it is stated thus in paragraph 9 of the

Code of Ethics:

“As a guiding principle, sting and undercover operations should be a last resort of news channels in an attempt to give the viewer comprehensive coverage of any news story. News channels will not allow sex and sleaze as a means to carry out sting operations, the use of narcotics and psychotropic substances or any act of violence, intimidation, or discrimination as a justifiable means in the recording of any sting operation….. News channels will as a ground rule, ensure that sting operations are carried out only as a tool for getting conclusive evidence of wrong doing or criminality, and that there is no deliberate alteration of visuals, or editing, or interposing done with the raw footage in a way that it also alters or misrepresents the truth or presents only a portion of the truth.”

7.2 Whether such a self-regulatory mechanism has proved to be adequate and effective and whether it would obviate the need for a statutory mechanism to regulate the contents of broadcasting including SO and taking appropriate action under law, is a matter of debate.

8. In the UK, the Broadcasting Standards Commission exists as the statutory body for regulating both standards and fairness in text, cable and digital services broadcast over television and radio, both terrestrial and satellite. Established by the Broadcasting Act, 1996 it has to: (i) produce codes of conduct relating to standards and fairness; (ii) consider and adjudicate on complaints; (iii) monitor, research and report on standards and fairness in broadcasting. It has power to require recordings of broadcast material and written statements. It may also hold hearings. Its decisions are published regularly and broadcasters must report any action they have taken as a result. It is accountable to the Parliament and each year publishes a full report of its work. It is financed by the Government and broadcasters and its accounts are subject to scrutiny by the National Audit Office.

9. The decided case law from Courts on the subject of SO has not laid down any clear cut principles or uniform approach on the legality and extent of permissibility. However certain broad principles are discernible such as the considerations of public interest, the need to recognize the fundamental rights of the targeted persons including the right of privacy and liberty.   Also, the illegality inherent in the publication/exhibition of fabricated and misleading content obtained by SO which is universally condemned, is recognized by the courts in India.

10. The Law Commission of India, in view of sharp and divergent views with emotive and logical pleas that are raised regarding permissibility of SO, is eliciting suggestions from the public, including the media representatives, the NGOs, academia, professional bodies, social activists, officials and elected representatives on a set of Questionnaire prepared mainly regarding: whether there is necessity to control the misuse of SO by way of a regulatory law? what should be the nature and extent of that regulation to check unwarranted invasion of right to privacy?   what kind of mechanisms has to be put in place to prevent publication/broadcasting of the content of SO so as to control fabricated versions of the SO and to protect larger public interest?

11. The response to this questionnaire can be sent to the e-mail address given in the website of the Commission or to the postal address of the Commission by 30th November, 2010.

Questionnaire:

1.           The media led SO that expose corrupt and criminal activities of a person accused in a case create a widespread public perception of the guilt of the accused and the regular broadcast on a television/internet medium strengthens such public perception and might influence a trial court judge who has to independently conduct a trial in an atmosphere free from pressures and inhibitions. In order to have a fair and objective trial by courts, should the State prohibit or regulate the broadcast /publishing of SO expose in such a case?

2.           In R.K. Anand’s case, the Supreme Court observed that the media is not free to publish any kind of report concerning a sub-judice matter or to do a sting as it pleases in a pending trial matter.  It was also observed that a sting based on deception would attract the legal  restrictions with far greater stringency.  More or less on similar lines, the Supreme Court commented in a recent case related to Manu Sharma that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held impermissible. Do you suggest therefore regulation of a SO in a sub-judice matter by restricting its broadcast/publication or placing a complete ban thereof in a sub-judice matter?

3.           Should a restraint be placed on SO where a special machinery is created under the Statute like the Prevention of Corruption Act, the Narcotics Drugs and Psychotropic Substances Act, etc to unearth and investigate specific crimes under those Acts?

4.           (a) With a view to expose corruption or anti-social activities prevalent in society, and without any other ulterior/objectionable motive, a person (including a media representative) conducts a SO against a public servant or a middleman. Should he/she enjoy immunity against possible prosecution for the illegal acts committed in the course of such SO?

b.           It was observed in a case decided by the Delhi High Court that the immunity to the bribe giver is available in a case where he/she is unwilling to pay the bribe and approaches the police in order to get the public servant trapped. Whether the scope of immunity, provided under section 24 of the Prevention of Corruption Act, should be extended further so that the journalists etc. undertaking SO are protected?

5.           It has been observed that some of the SO(s) make considerable intrusion into private lives of people without serving any public interest and such operations are conducted by the television channels solely to increase their viewership. In this context, would a sting qualify as investigative journalism when firstly, there was no obvious relevance of the sting to the public and secondly, if there was clear ensnarement to commit the offence?

6.           If SO turns out to be manipulated or distorted or is published in a misleading or reckless manner, should it be treated as a distinct offence? If so, what punishment should be appropriate? What other sanctions do you suggest?

7.           It is said that a proper balance should be struck between the right to privacy of an individual and public interest likely to be served by SO.  What suggestions do you make in ensuring that SO does not substantially impinge on the right to privacy and thus the intrusion of the same is reduced to minimal? What restrictions could be imposed by law in this regard? What according to you may constitute unwarranted and palpable invasion of the right to privacy?

8.           (a) Please offer your views as to which test – ‘public interest’ or ‘infringement of privacy’ – should be the predominant test for judging the legality or permissibility of the SO. Which of them may be given more consideration by a regulatory law, if enacted? Even if the test of public interest is broadly satisfied, should the regulatory law should still consider the permissible extent and degree of invasion to the right of privacy as a relevant factor?

b.           Do you think that the means and modalities of expose should be irrelevant wherever public interest is served in some degree or the other?

9.           In the false SO of a School Teacher case, the Delhi High Court observed that the Court trusts that all TV channels/Media will take steps and prohibit its reporters from producing or airing any programmes which are based on entrapment or fabricated and intrusive. The court also observed that TV reporters and editors should take steps for drawing up a self-regulatory code of conduct. It implies that such Code of Conduct should be one capable of being enforced effectively.  Do you think that the NBSA set up by News Broadcasting Association is adequate and effective enough to put in check on the undesirable practices associated with SO and to restrain the publication/exhibition of objectionable contents of SO?

10.        In the said case, the Delhi High court disapproved of the tactic of using a budding journalist eager to make a name in the media world to pass off as a student of school to trap school teacher in a motivated SO. It relied on the US Supreme Court decision and article by a well known TV journalist to justify the use of hidden cameras when it is for capturing the event that would take place whether or not the camera was there and deploring the practice of entrapment to induce commission of crime so that the Government may prosecute. The High Court approvingly referred to the observations in the US Supreme Court judgment that the Government should not play on the weakness of an innocent party and beguile the party into committing a crime which the party otherwise would not have attempted. The State must not punish an individual for an alleged offence which is the product of the creative activity of its own officials. The High Court held that this can be applied in the Indian context also to the media.  Do you agree with the above suggestion that SO should only be used for capturing what is already going on and should not create a scoop by testing individuals by putting them through inducement test?

11.                   In its judgment rendered on 14th December 2007, the Delhi High Court issued guidelines to be followed when undertaking a sting and observed that the Ministry of I&B may consider their incorporation in the proposed law – the Broadcasting Services Regulation Bill of 2007. What are your suggestions in this regard? According to these guidelines:

1. A channel proposing to telecast a SO shall obtain a certificate from the person who recorded or produced the same certifying that the operation is genuine to his knowledge.

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3. Permission for telecasting a SO be obtained from a committee appointed by the Ministry of Information and Broadcasting. The said committee will be headed by a retired High Court Judge to be appointed by the Government in consultation with the High Court & two members, one of which should be a person not below the rank of Additional Secretary and the second one being the Additional Commissioner of Police. Permission to telecast SO will be granted by the committee after satisfying itself that it is in public interest to telecast the same. This safeguard is necessary since those who mount a SO themselves commit the offences of impersonation, criminal trespass under false pretence and making a person commit an offence.

4. While the transcript of the recordings may be edited, the films and tapes themselves should not be edited. Both edited and unedited tapes be produced before the committee.

7. The Chief Editor of the channel shall be made responsible for self regulation and ensure that the programmes are consistent with the Rules and comply with all other legal and administrative requirements under various statutes in respect of content broadcast on the channel.

8. The subject matter of reports or current events shall not:

(a) Deliberately present as true any unverified or inaccurate facts so as to avoid trial by media since a “man is innocent till proven guilty by law”;

11. Infringement of privacy in a news based/related programme is a sensitive issue; therefore, greater degree of responsibility should be exercised by the channels while telecasting any such programmes as may be breaching privacy of individuals.

12.                   By capturing the evidence of a criminal activity through SO against a person not yet accused of an offence and publishing the same in print/electronic media, the chances of tampering or suppressing the evidence might diminish. At the same time, such publication has the tendency to defame a person whose version is not available. Could it be yet another reason to regulate the publishing of SO through law?

13.                   Where the SO covers a crime or a gory incident concerning a child victim or a juvenile accused, what restrictions ought to be placed on the media publicity details of SO?

14.                   What should be the procedure to ensure that an expose by private entity or media led SO is not used for taking undue advantage? Who will regulate its transmission/ publication/ withholding? With whom this expose should be deposited? Should there be an independent statutory body to grant permission, monitor and take custody of all the materials collected by a SO?

P.N: It is clarified that the Commission is not contemplating to go into the issues concerning mode of proof of material obtained by way of SO, their evidentiary value and the defences that may be open to the accused in a trial.