Does Electronic Media Need a Regulator?

In a 2002 opinion piece, Chairman of the Press Council of India (PCI), Justice Markandey Katju, argued in favour of an electronic media regulatory authority. He proposed that the Press Council of India be renamed Media Council of India (to include television and online media). In doing so, however, he asserted, “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.” This essay aims to evaluate the viability of such a regulator. 

Prior to the evaluation, however, it is crucial to establish a distinction between state control and regulation. Autonomy of any regulatory body determines the level of state control. For instance, the Press Council of India is a statutory body established under the PCI Act of 1978. The PCI Chairperson is selected by the Chairperson of the Rajya Sabha, the Speaker of the Lok Sabha, and a third member elected by the PCI. The Chairperson is traditionally a retired Supreme Court judge. The PCI governs on matters relating to journalistic ethics and professional misconduct by print media organisations, journalists, and editors. Its regulatory authority extends to violation of journalistic ethics by the press and violation of press freedom by the state (or others). On all matters, under the jurisdiction of the PCI, the regulator’s decision is the last word. The complainant or violator cannot appeal to other courts for further enquiry. All decisions are taken through a majority. Membership-wise, the majority is composed of representatives from the press (a total of 20 of the 28 members). Therefore, in theory, one can rule out arguments of state control or Chairman-imposed autocracy. While collusion can never completely be ruled out; based on the structure of the PCI, it is fair to argue against state control or government-prompted censorship. 

Now, returning to Justice Katju’s proposal. I’d argue there is merit in extending regulation to electronic news media (televised and online). As confirmed by Justice Katju, counters include (i) potential harm to freedom of press and (ii) sufficiency of self-regulating bodies like the National Broadcasters Association (NBA). The following sections critically analyse the same.   

Potential Harm to Freedom of Press

This argument is fearful of threats to freedom of press under a regulatory authority. By this logic, print media has a regulatory body and hence curbed freedom of press. Indian films and television shows must go through the Central Board of Film Certification and therefore have curbed artistic independence. This, however, is clearly not the case. That being said, the absence of harm is neither a necessary nor sufficient condition for regulation. 

Justice Katju supports his argument for media regulation by pointing out the existence of regulatory authorities in medicine and law. One must then ask, is the argument applicable to doctors and lawyers justified when it comes to broadcast journalists and editors? Arguably, yes. Ethics and professional standards are crucial to all three fields. The violation of the same should, as it does for the first two, be subject to penalisation. But it is important to evaluate the nature of the institutions as well. Is the media different from law and medicine? Yes. The impact of violations in medicine and law, under usual circumstances, are limited to an individual or a group of individuals. Media, on the other hand, is an agenda setter. It influences policies and shapes public opinion. For instance, media coverage of the migrant exodus during the nation-wide lockdown in March 2020, drew public attention to the plight of migrant workers across states. Migrant workers’ status has long been neglected due the lack of political incentive to assess their living and working conditions in the cities they migrate to. Centrally sponsored schemes for the urban poor have also had a tendency of leaving migrant workers out of beneficiary lists. However, post the migrant exodus amplification, NITI Aayog released the draft National Migrant Labour Policy, 2021. 

The media is also a gatekeeper of information. It decides both what we think and how we think about it. The sensationalised coverage of Indian actor Sushant Singh Rajput’s death and the subsequent media trial came at the cost of COVID-19 coverage. Most television news networks completely neglected the rise in COVID-19 cases and the near-collapse of Indian health infrastructure that came with it. I’d argue that a more critical coverage of health system inadequacy during the first wave would have drawn greater public and subsequent government attention to the situation. Therefore, a regulator becomes all the more crucial. 

However, when taking into account the nature of the institution, one must also ask — is there greater incentive to curb media activity and restrict journalists? Again, yes. Media is the fourth estate, the watchdog. Unsurprisingly, there are political incentives to tame the watchdog. These have been made evident through the use of Section 66A of the Information Technology Act and the Unlawful Activities Prevention Act. In 2015, the Supreme Court struck down Section 66A for being “vague and overbroad, such that it also penalized speech that was constitutionally protected.” It found the provision to be in violation of Article 19 (1) (a) and Article 21. However, arrests of journalists and editors (eg: journalist Prashant Kajolia, Editor Anshul Kaushik) under the provision have continued. 

In 2019, an amendment to the UAPA broadened its jurisdiction. The amendment allowed the state to deem individuals as terrorists (was applicable only to organisations earlier). This aided the arrests of multiple journalists — during the nation-wide lockdown alone, a minimum of 24 journalists were booked under the UAPA. More recently, Frontier Manipur editor-in-chief Dhiren Sadokpam and executive editor Paojel Chaoba were arrested for publishing an anarchist article. As per the 2021 World Press Freedom Index, India ranks 142 out of 180 countries. Therefore, the institutional structure of a regulatory authority becomes crucial. 

At present, there is no regulatory body for electronic media but that ensures no protection from the UAPA or Section 66A. Interestingly enough, when Republic TV Founding Editor Arnab Goswami was allegedly attacked by motorists associated with the Maharashtra state government, the PCI released a statement defending Goswami’s rights as a journalist. It asserted, “Violence is not the answer even against bad journalism.” 

In his argument, Justice Katju talks about establishing a regulatory body similar to the Indian Council of Medical Research for medicine or the Bar Council of India for law. The existence of these bodies ensures their superiority in matters relating to medicine and law. Their superiority and expertise in these matters, one can argue, places the state on the backseat. Therefore, the existence of a regulatory body comprising industry experts, like the proposed Media Council of India, could hold a similar if not identical position. 

Self Regulation

The second argument against a regulator is rooted in the perceived sufficiency of broadcasting associations. The News Broadcasting Standards Authority under the NBA is responsible for ensuring compliance to the association’s Code of Ethics. It can disapprove content and impose a fine up to INR 1,00,000 on the concerned news channel. In his piece, Justice Katju asks these associations, “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.” His argument also addresses problems of transparency and accountability. He recommends, if the associations insist on self-regulation, why not televise meetings for greater transparency. An association formed out of its own members is not a regulatory authority. I’d argue it has enforcement powers no greater than a residents welfare association. 

Televisation of the 2011 Mumbai terror attack witnessed a serious violation of protocols. Reporters unintentionally leaked operational details — “It was through news television that terrorists realised fires had been lit and that helicopters were trying to land on the roofs of the Oberoi Hotel and the Jewish Chabad House with an American rabbi and his family being held inside.” This was a clear violation of the reasonable restriction imposed for ensuring security of the State under Article 19 (2). However, no action was taken. Electronic media is unlike print. Its agenda setting (ability to shape public opinion) and gatekeeping (ability to filter out certain news stories in favour of certain others) powers are immense. With the rapid decline in Indian print media, the reach of broadcast and online news would be boundless in the years to come. 

Among the most difficult to counter is the phenomenon of fake news. Over the years, AltNews identified and exposed fake news stories shared by prominent media outlets like Republic TV, Times Now, and The Quint. In 2017, Republic TV aired a detailed coverage accusing Delhi’s Jama Masjid of non-payment of dues worth over INR 4 crore. The report covered the Imam’s alleged luxurious lifestyle and claimed that the BSES had suspended power supply to the Masjid. When exposed by AltNews, the organisation simply withdrew the news stories online and did not issue an apology or clarification. Therefore, the need for a regulator to ensure adherence to journalistic standards, ethics is justified. 

Post-emergency, when TOI’s Samir Jain was asked if the news media was anti-establishment or pro-establishment, he had said, “We are the Establishment.” One can critique the news media all one likes, but the fact of the matter is, the media is an undeniable force to be reckoned with in India. It shapes public opinion in more ways than one. I’d like to leave the reader with a thought. When analysing the efficiency of self-regulating associations, we must ask ourselves how efficient is a regulator? A move from Press Council of India to Media Council of India is also an opportunity to evaluate the autonomy and effectiveness of the same. 

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