The Indian media is often criticised for its deteriorating reporting standards, jaundiced coverage of politics and regurgitation of online trends as prime time news. The 2017 World Press Freedom Index by Reporters Without Borders ranks India at 136 out of 180 countries. A rank as dismal as 136, can only be a blot on the largest democracy in the world. One wishes that the government showed as much sincerity in improving India's ranking on the Press Freedom Index as they do towards the World Bank's Doing Business Rankings.
Even as there is no outright censorship or governmental interference with press freedom, self-censorship imposes a legitimate threat to plurality of views in national discourse. Laws should exist not only to protect the space for the media to act independently but also to guard against the co-option of the media by the executive.
In large part the threat to the Indian media's ability to preserve plurality of views is due to a flawed regulatory architecture that does little to protect press freedom...
The Press Council of India's report on "Safety of Journalists" states that 80 journalists have been killed in India since 1990, with conviction in only one case so far. This only shows that indifference towards press freedom runs across the political spectrum.
In large part the threat to the Indian media's ability to preserve plurality of views is due to a flawed regulatory architecture that does little to protect press freedom and more to silence it. In what follows we look at the regulation and laws that govern the Indian media and what needs to change in order to strengthen press freedom.
Criminal defamation, as defined under Section 499 of the Indian Penal Code, permits any person who has suffered damage in reputation on action of others to sue for defamation. The Essar Group, a multi business conglomerate filed a defamation suit for ₹250 crores against Caravan, a magazine known for its investigative journalism, when it published a 14,000-word article that made a number of allegations of corrupt practices by the company. While Caravan has decided to contest the case in courts, such threats may discourage other media organisations to investigate stories around wrongdoing by big companies or individuals. Politicians are not far behind; former Tamil Nadu Chief Minister J Jayalalithaa filed 213 defamation cases against her opponents and media outlets for making "derogatory" remarks about her.
The law was enacted in 1860 and has witnessed few changes since. Tathagata Satpathy, a Member of Parliament is leading a campaign to make the defamation laws more progressive. According to him it is "a lack of clarity that often leads to misuse of defamation laws by using them as a harassment tool. The ultimate result is that this restricts speech."
Media regulators without power
The Press Council of India was established in 1966 as a statutory body with quasi-judicial powers to act as a watchdog for the print media. Media regulation in India hinges around the idea of self-regulation. However, the rapid growth in the number of media organisations in print, online and television sectors, along with increasing commercial pressures has meant that objectivity in reporting has suffered significantly. The lack of punitive power means that the Press Council "cannot levy fines or order the withdrawal of advertisements by government agencies, leave alone place errant journalists behind bars." Hence PCI is rendered ineffective in placing any cost on those violating journalistic ethics.
The two self-regulating media bodies are at best, toothless tigers.
In the case of television news, the News Broadcasting Standards Authority (NBSA) looks into violation of code of ethics laid out by the News Broadcasters Association (NBA). However, the problem with this self-regulatory body is that its membership is voluntary and "out of 135 news channels in the country, only 28 news broadcasters owning 57 news channels are members of the NBA." A large number of television news channels continue to be beyond the ambit of any regulation by virtue of not being part of NBA.
In such a scenario, the two self-regulating media bodies are at best, toothless tigers.
No law for protection of sources
The protection of identity of sources used by the journalists is an important element in how they unearth the truth. However, in India, there are no statutory rights accorded to journalists to protect their sources. In fact, in a court of law, a journalist may be held in contempt of court for not disclosing her sources. This makes uncovering the truth tenuous. The law makes speaking the truth a risky choice between future harassment by those being exposed and putting up with injustice and wrongdoing in society.
Should there be limits on media ownership?
News media ownership needs to be examined from the angle of press plurality. At present there are no regulations that impose limits on i) cross-media ownership, ii) investment in news media by non-media organisations or iii) news media organisations diversifying into non-media businesses. In fact the Competition Commission of India that regulates markets to ensure that they remain competitive is blind to need for "plurality of views" in the media when it ratifies mergers. It is argued "that the media cannot, and should not, be bracketed with general commodities and services. The market for ideas is very different from that for, say, shoes or biscuits."
In the interest of democracy it is essential that the exchange of ideas take place in an uninhibited manner where all citizens can access information free of bias and prejudice.
Proponents of free markets continue to argue that the government should not interfere in the market and let the media self-regulate. This principle engenders from Justice Holmes J.'s dissent in Abrams v. United States in 1919, which laid the foundation of marketplace of ideas theory. In his dissent note he upheld that "the best test of truth is the power of the thought to get itself accepted in the competition of the market". However, the marketplace of ideas can also suffer from market failure as it has in the case of the media by its failure to provide unbiased news. In the interest of democracy it is essential that the exchange of ideas take place in an uninhibited manner where all citizens can access information free of bias and prejudice.
The Telecom Regulatory Authority of India (TRAI) has made significant recommendations with regard to media ownership, determination of market share and market power of media organisations with the idea of preserving plurality of views. In the case of cross media ownership, TRAI recommends that relevant markets should be defined as per the language which is spoken by majority of the people in the state. For instance, in West Bengal where Bengali is the main language, the same entity should not be allowed to enter both print and television in the interest of plurality of views. However, a Bengali newspaper owner could be allowed to operate an Oriya TV channel in the state of Odisha. Recommendations by TRAI however need to be updated to incorporate online news consumption along with the traditional print and television media.
These measures along with ownership and investment structure disclosure norms that go beyond what is stipulated by the Companies Act would help in meeting the higher transparency standards required for the news media sector.
The debate around the media needs to seriously look at various facets of regulation that hinder its freedom. As a public good, the news media has an important role in our democracy. We must not let poor regulation fail it.