Justice Markandey Katju: Is Indian media above the law?

Justice Markandey Katju

By Justice Markandey Katju–

(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)

Recently, numerous Indian journalists raised a hue and cry when the police investigated the website Newsclick for its alleged Chinese connection.

Indian journalists, assuming a ‘holier than thou‘ stance, have strongly opposed the action of the authorities, saying it it is an attack on freedom of the media guaranteed by Article 19(1)(a) of the Indian Constitution, and they have been supported by some so-called ‘intellectuals’ of India.

Indian opposition parties, ever on the look out for attacking the government, have joined the fray.

I have written an article titled ‘Don’t investigate us’ about the controversy.

When I was a judge in the Indian Supreme Court and in the High Court, often government officials filed petitions before me challenging their investigation (on charges of corruption, etc). I would dismiss all such petitions saying that an investigation is not a conviction. Why should one be afraid of an investigation if he has nothing to hide, and has no skeletons in his cupboard?

No freedom can be absolute, and no one can claim to be above the law. For instance, as a lawyer I was in an independent profession, but if I committed professional misconduct, my license to practice could be suspended or cancelled by the Bar Council. A doctor who commits medical misconduct could get his license suspended or cancelled by the Medical Council of India.

As a High Court and Supreme Court judge I was independent of executive control, but I could be impeached by Parliament for taking bribes or other grave misconduct.

In other words, every social activity can and must be regulated so that it does not harm the public interest.

But Indian journalists often claim their activities must not be regulated in any manner, as that would be violation of media freedom, even though malpractices like paid news, fake news, etc have been established and proved.

They forget Article 19(2) of the Constitution, to which Article 19(1)(a) is subject.

When I became Chairman of the Press Council of India, which was created by the Press Council of India Act, a parliamentary statute, in 2011 (after retiring as a judge of the Indian Supreme Court) I found that under the Act the Press Council, whose role was to regulate the print media, had no power to penalise the media or journalists even for gross misconduct such as spreading hatred between communities, publishing fake news, paid news, etc. It could only admonish or censure, which means nothing, as that could be simply ignored.

So I went to the then Prime Minister of India — Manmohan Singh — with a representation asking for amendment of the Press Council Act so as to give some teeth to the Press Council to punish media houses and journalists who did grossly improper things.

Specifically, I requested that:

  1. The Press Council should have power to impose fines or, in extreme cases, even jail sentences on offenders and delinquents; and
  2. The electronic media (TV) should also be brought within the purview of the Press Council, which could be renamed the Media Council (under the Press Council Act the Press Council has jurisdiction only over the print media)

There was an immediate uproar by media persons accusing me of wanting to become a dictator, who wanted to crush media freedom, etc.

I tried to explain that I am opposed to media control, and only wanted media regulation. There is a difference between the two. In control, there is no freedom, whereas in regulation there is freedom but subject to reasonable restrictions in the public interest.

Under the Press Council Act, the Press Council has 28 members, apart from the Chairman, and all decisions are taken by majority vote of the members, not by the Chairman alone. Out of these 28 members, 20 are press people (6 owners, 6 editors, 7 working journalists and 1 from a news agency), all democratically elected by the press bodies, not appointed by the government (the other 8 are 3 MPs from the Lok Sabha, 2 from the Rajya Sabha, and one each from the Bar Council of India, the UGC and the Sahitya Akademi).

If a punishment on a media house or journalist was imposed, it would be done by the majority of the Press Council, most of whom were media persons democratically elected by their own bodies, not by the Chairman alone.

If the broadcast media was also brought within the purview of the Press Council ( which could be renamed the Media Council ) they could have 20 of their representatives too. What reasonable objection could there be to these proposals ?

But the Indian media strongly opposed my proposals, saying that they would destroy media freedom. They said they will do self-regulation, which is really no regulation and is an oxymoron (as indeed the British Leveson Committee Report declared).

Nothing came of my proposals, as evidently the government was afraid of the power of the media.

In essence, what the Indian media says is that it should be above the law. It should be given a totally free hand, with no regulation of any kind, free to do any nefarious activity even if it harms the public interest, and it should never be investigated. They alone are the saints, and everyone else are sinners.

Is this acceptable?

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