India has its own fierce debate about media regulation. Arghya Sengupta discusses how the shadow of the 1970s “Emergency” hangs over proposed steps from failed self-regulation to statutory regulation.

Lord Justice Leveson’s widely anticipated report on the British press will be of considerable interest in India, where a feisty discussion on regulating an increasingly powerful print and broadcasting media has been brewing for the past year. The outspoken Chairman of the Press Council of India Markandey Katju has declared the futility of self-regulation with the words, ‘self-regulation is no regulation at all’. As a remedy, he has asked for his organisation to be vested with greater regulatory powers. In a recent judgment on the constitutional interplay between free speech and the right to a fair trial, the Supreme Court has recognised the inefficacy of self-regulation and itself sought to regulate media reports on ongoing trials.

On taking office, the new Information and Broadcasting Minister, Manish Tewari, declared that the present government does not intend to regulate the media, but a Private Member’s Bill sought to be introduced by his party colleague Meenakshi Natarajan earlier in the year suggests otherwise. Voices within the media world have sharply diverged on the proper course for regulation. Some, such as Siddharth Varadarajan, the Editor of The Hindu, have advocated more effective self-regulation. Others, such as Prannoy Roy, CEO of New Delhi Television, speaking recently in Oxford, support the idea of independent external regulation.

These statements, taken together, lead to the twin impressions of an acknowledged need for a regulator of some kind to ensure a higher degree of accountability than what exists currently, and a deadlock on how best to implement such a regulatory regime. (Perhaps this sounds familiar to British readers.)

The starting point for a discussion on regulatory reform is inevitably the possibility of more efficacious self-regulation. However two trends have rendered such a possibility remote in India. First, the growing allegations of ‘paid news’, i.e. sponsored articles masquerading as journalistic pieces, demonstrate the shocking non-enforcement of internal codes of conduct and basic ethical norms by media houses. In a recent seminar the former Chief Election Commissioner, SY Quraishi, revealed that the Election Commissioner had identified 371 cases of paid news in the lead-up to the recent state elections in Bihar, Tamil Nadu, West Bengal, Assam, Kerala and Puducherry, the magnitude being serious enough for him to recommend making paying for news and publishing it a punishable offence. Confronted with such grim numbers, reflecting the growing corrosion of ethical standards in a vast array of media, to expect them to set their own houses in order would be overly optimistic.

Second, there simply is no widely respected, autonomous and effective industry-wide self-regulatory body with the power to impose sanctions on erring media and have its decisions complied with. In India’s version of the ‘Richard Desmond problem’, India TV withdrew its membership of the News Broadcasters Association (NBA), an industry-wide association, after being fined by its dispute redressal authority. The Association was helpless in backing up the authority’s decision with sanctions, thereby severely delegitimising itself. The subsequent failure of the NBA and other existing industry-wide associations to fashion themselves into efficacious self-regulators, commanding compliance from their members, has meant that self-regulation, while attractive in principle, has proved unworkable in practice.

In the absence of effective self-regulation, statutory regulation has been mooted as a possible alternative. However, much of the debate regarding regulating the media by statute is overshadowed by the ominous history of the period known as the Emergency in India, between 1975 and 1977 when the free press was ruthlessly censored. While the Emergency was certainly the darkest hour for free speech in India, harking back to it to argue against statutory regulation of the media is flawed logic. The Emergency was legally brought about through a constitutionally permissible order, suspending, amongst other things, the right to free speech. Should a government choose to do this again, they would not need the help of any law regulating the media. Even the argument that acquiescing to such a law now would be ‘crossing the Rubicon’ in terms of sanctioning statutory regulation of the media, though rhetorically appealing, is fallacious. Several statutory laws currently govern the media, ranging from defamation laws to those prescribing working conditions for journalists. The mere presence of a law to regulate the operations of the media, as proposed, would only add to this list rather than represent a departure into wholly uncharted territory.

The key issue concerning a statutory regulator is not so much the possibility of egregious governmental interference but rather its independence from all extraneous threats, irrespective of their source. The concept of an independent regulator, widely recommended in India and found to be the most popular choice amongst respondents in a Press Gazette Poll in Britain, is difficult to argue against in principle. It conjures up idealistic images of a fair, wise and efficient decision-maker. But experience tells us the improbability of having that in reality. While this does not suggest the impossibility of having an independent regulator, it points to the fact that securing independence in practice is a matter of detail rather than high-sounding rhetoric. Specifically, whose independence, from whom, regarding what, how it is to be safeguarded and how such independence can be secured without making the institution completely unaccountable, are fundamental questions that need to be asked. A wide-ranging inquiry of this nature ought to be undertaken, as the vast power wielded by media in India today means that independence cannot, and should not, mean insulation from the government alone.

At the same time, it must be recognised that a regulator, however independent, cannot be a panacea for all ills. There is the problem of paid news. There are the close personal connections between journalists, politicians and corporations exposed by the Radia tapes, conversations recorded by revenue authorities between corporate lobbyist Niira Radia and a number of senior journalists and leading politicians, leaked to the public. There are numerous allegations of irresponsible journalism. Most recently, the External Affairs Minister Salman Khurshid accused Aaj Tak news channel of airing an inaccurate story about purported embezzlement of funds by an NGO headed by himself and his wife. All these demonstrate, to different degrees, the decline of journalistic ethics, the lack of transparency in the functioning of Indian media, especially their financial dealings, and a poorly enforced regime of defamation law.

While certainly an appropriately structured regulator can enforce a degree of accountability rendering such practices less likely, it will not be a magic wand that will rescue the Indian media from all its current travails. That will necessarily be a long-drawn out exercise requiring new ideas, multiple interventions and reforms of a kind not adequately contemplated to date. Perusing the recommendations of the Leveson Report and assessing their usefulness for India is the best starting point possible for such an exercise, with real potential to inject new life into a currently deadlocked debate.  And then perhaps India should have its own version of a Leveson inquiry.

Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at Pembroke College, University of Oxford and the founder of the Vidhi Centre for Legal Policy, a New-Delhi based legal think-tank.

This article was republished by Inforrm.

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