The spectre of censorship: media regulation,political anxiety and public contestations in India (2011–2013)

Introduction

Media scholarship has long examined the role of regulation in mediated societies (and specifically liberal democracies) as both a ‘positive’ and ‘negative’ dimension of state–media industry relations (Picard, 1985). The literature on media regulation encompasses a wide array of issues and areas of concern, ranging from the foundational principles underpinning discourses on regulation (see Feintuck and Varney, 2006; McQuail, 1992; Napoli, 2001) to the emergence of dispersed and supra-national mechanisms of regulation with the advent of information and communications technologies (ICTs) (Lessing, 2006). In media scholarship, state–society relations are the foundation on which most discussions of regulation are premised. Two questions capture this aptly: ‘What are the objectives of media regulation and in whose interests is it exercised? What is the relationship between specific forms of regulation and the wider political environment from which it emerges?’ (Freedman, 2012). Political systems determine and delimit the regulatory approach adopted by the state (Siebert et al., 1956), and constantly evolving political environments necessitate the framing of new typologies of media–state–society linkages and new understandings of the relationship between state power and regulation (Hallin and Mancini, 2004). Faced with this nexus, scholars have repeatedly emphasised the need for the prioritisation of public service values and the ‘citizen’ (as opposed to ‘consumer’) in any conceptualisation of democratic media systems (see Croteau and Hoynes, 2006; Curran, 2002; Keane, 1991).

This re-centring of public service values in discussions of regulation has been made more difficult by the increasingly complex nature of media consumption driven by the Internet. While the principles and institutional frameworks governing press regulation (see Curran and Seaton, 2010; Frost, 2011; O’Malley and Soley, 2000) as well as broadcast regulation (see Brown and Picard, 2005; Creech, 2007) have been extensively researched, Internet governance is a relatively new area of study and one that still poses several unresolved questions. In the field of Internet regulation, scholars have both highlighted the Internet’s in-built resistance to regulation (Johnson and Post, 1996; Lessing, 2006) and its amenability to government and private control and manipulation (Sylvain, 2010). Some have highlighted the need for national governments, rather than supra-national entities, to exercise greater overnight with a view to preserving democratic institutions, spaces and networks (Goldsmith and Yu, 2006). Others have focused their critiques on the threat posed by private oligopolistic tendencies to the ‘generative potential’ of the Internet (Berners-Lee, 2010; Zittrain, 2009). What implications these unfolding practices (described and critiqued in these studies) currently have and will continue to have for global Internet use, proliferation and governance will need to be investigated by future research. One of the aims of current scholarship must be to record extant and new practices and policies.

Against the backdrop of a rich and comprehensive scholarly history, new research must interrogate the ramifications of contemporary regulatory debates and institutions and posit this continually evolving scenario within the broader historical framework. This article aims to chart recent regulatory debates and political manoeuvres in India and posit these as expressions of anxieties underlying a particular historical moment. It has four sections – (1) regulation of social media, (2) judicial guidelines on court reporting, (3) a draft bill proposed in the Lok Sabha and (4) recent public debates. The aim is to present a composite narrative and historical account, a rendering of discussions that arose at an important historical juncture. I conclude the article with a discussion of a media conference held in August 2013, the latest public development at the time of writing.

Background

While political crises in India are in no way exceptional, the sheer frequency of recent successive ‘scams’ and ‘exposes’ has charged the political atmosphere with a sense of uncertainty and galvanised public debate in many significant ways. Arguably, there has been a noticeable shift in the media’s critique of public policy. The year 2011–2012 witnessed several instances of political upheaval bolstered by media interventions. The so-called ‘Commonwealth Games scam’, the ‘NiraRadia controversy’ and the consequent ‘2G spectrum scam’, the ‘Indian Space Research Organisation (ISRO) scam’ and the ‘India Against Corruption Campaign’ are all instances of significant media ‘events’ that received sustained coverage and provoked considerable political debate in the given timeframe. In effect, media ‘activism’ has had a particular impact on the relationship between the political classes and the public, and while it is true that the structural problems pertaining to this relationship remain, recent events signal incipient change.

It is, therefore, a matter of interest that in 2011–2012 there were considerable efforts on the part of the government (the executive, legislature and judiciary) to raise the spectre of media regulation and to build both overt and covert support for pro-censorship outcomes. While a lot of the political activity on this front was largely rhetorical, there were some serious and concerted attempts to increase the possibility (and acceptability) of media censorship in the future. Some of these attempts were prompted by self-introspection within the media, while others were in the nature of legislative debates and judicial pronouncements. I am interested in examining some of the pro-censorship arguments that emerged here and their relationship to the perception of ‘threat’ associated with the media. As is perhaps evident, this ‘debate’ on media regulation was different from those that took place in the United Kingdom and Australia around the same time. (I use the term ‘debate’ in its broader discoursal sense, encompassing various elements of the field of public opinion and signifying, therefore, a broad range of interrelated written or spoken contributions rather than a specific disceptation.)

Recent recommendations such as those made by the Leveson Inquiry in the United Kingdom (2011–2012) or the Finkelstein Inquiry in Australia (2011–2012), in the absence of any subsequent jurisdictional exercise or concomitant policy change, currently frame the global context of ongoing deliberations on media regulation. While the British and Australian inquiries shared a common basis, the corresponding discourses in India emerged from a wholly different set of conditions and circumstances.

Mass Media Laws and Regulations edited by Venkat Iyer (2000) provides a broad overview of media laws and statutes in India. Iyer’s commentary accompanying the compendium of laws charts the evolution of media law in India from its roots in British colonial rule to its present forms. He sees Indian media law as an expression of the principle of rule-of-law that became a normative cornerstone of India’s post-independence liberal democracy. Iyer pays special attention to the contribution of law courts to the maintenance and expansion of press freedom, surveying legal rulings and precedents on the subject. Given the (popular) understanding that the law courts and constitutional authorities have played a seminal role in the consolidation of freedom of speech and information, interesting comparisons could be made with the legal processes discussed in this article.

As for the regulatory environment in India, it is described by most scholars and practitioners as being highly decentralised (Iyer, 2000; Kalra, 2011; Kumar, 2007; Scrampical et al., 1997; Singhal and Rogers, 2001). The press is monitored by the Press Council of India (PCI) (which can issue guidelines but not impose penalties), cinema by the Central Board for Film Certification (CBFC) and advertising by the Advertising Standards Council of India (ASCI). The Cable Television Networks (Regulation) Act (1995, amended 2000) governs entertainment broadcasting, with the Broadcasting Content Complaints Council (BCCC) serving as its regulator. It is an industry membership body. The broadcast news media have two similar industry bodies that are entrusted with self-regulation, namely, the News Broadcasters Association (NBA) and the Broadcast Editors’ Association (BEA). A draft Broadcasting Services (Regulation) Bill (2007) was not ratified as law. While the PCI, CBFC and ASCI have consolidated themselves over time, critics argue that the NBA and BEA have failed to effectively perform their regulatory function (Katju, 2012). This raises the question of what constitutes the most effective and meaningful mode of regulation, and whether state intervention is necessarily the antidote to the perceived failure of self-regulation.

Finally, in order to contextualise the political and social impulses underpinning some of the events charted in this article, I refer to William Mazzarella and Raminder Kaur’s work on censorship. Mazzarella and Kaur (2009) examine censorship as both state-directed prohibition and ‘cultural regulation’ and focus on the latter as the broader conceptual category within which social norms and currencies, ‘public cultural interventions’, the proliferation of specific forms and discourses (‘publicity’) and ‘state-sanctioned censorship’ can be subsumed (Mazzarella and Kaur, 2009: 9). I am interested specifically in elaborating one strand of their analytic continuum on censorship, that is, the examination of ‘the utterances and ideologies of those individuals authorised by states to intervene in the public field’ (Mazzarella and Kaur, 2009: 5). I argue that the events that are analysed in this article provide an insight into the ‘self-evident way in which [state censorship] expresses a claim to sovereignty in matters of cultural production’ (Mazzarella and Kaur, 2009: 10) and posit these events as reverberations of a politically contentious moment. Particularly, I argue these discourses evoke, particularise and reify the tensions between ‘authoritarian efficacy and the appearance, at least, of democratic accountability’ (Mazzarella and Kaur, 2009: 10) that underlie both regulatory debates in India and the general polity.

Social media

The Internet has been a seminal space for contemporary protests and global activism (Berdal, 2004; Cottle, 2011; Dahlgren, 2009; DellaPorta and Tarrow, 2005; Wall, 2003). The proliferation of information online and large-scale accessibility have made the discoursal arena created and sustained by the Internet both highly ‘contentious’ (Tarrow, 2006) and extremely significant. In the debate on regulation, social media is perhaps the most contentious entity that stakeholders have been anxious to either reign in or defend according to their respective real politik compulsions. In India, discussions around this have been quite provocative, with important consequences for both the government and ‘netizens’ alike.

In 2011, supplementary regulations called the Information Technology (Intermediary Guidelines) Rules (2011) were appended to the Information Technology Act (2000, amended 2008). The new rules, operational today, require Internet companies to remove from their pages, within 36 hours of being notified by an ‘affected person’, any objectionable content that is considered ‘hateful’, ‘defamatory’, ‘harmful to minors’ or an infringement of copyright. A series of events from December 2011 to 2012 shaped the contours of discussions on the regulation of social media.

Curiously, the first in this series of events was first reported by the New York Times. Published on 5 December 2011, a report by journalist Heather Timmons (2011b, ‘India asks Google, Facebook to screen user content’) stated,

The Indian government has asked Internet companies and social media sites like Facebook to prescreen user content from India and to remove disparaging, inflammatory or defamatory content before it goes online, three executives in the information technology industry say.

Top officials from the Indian units of Google, Microsoft, Yahoo and Facebook are meeting with Kapil Sibal, India’s acting telecommunications minister, on Monday afternoon to discuss the issue, say two executives of Internet companies. The executives asked not to be identified because they are not authorized to speak to the media on the issue.

The minister asked the companies to use human beings rather than machines to screen content and informed them that the government had already set up cyber security monitors in most major cities to scan the content of social networking sites and other social media platforms. The report stated that in 2010, the government and Research in Motion (RIM), the Canadian manufacturer of Blackberry phones, had entered into a protracted dispute with the Indian government regarding the latter’s access to Blackberry’s encrypted messaging services. The government had threatened to cut off Blackberry services in the face of continued resistance. Now, Sibal’s meeting with the executives of these Internet companies was seen as yet another clandestine attempt on the part of the government to exert greater control over mass technology and electronic information. At the meeting, the minister was particularly indignant about a Facebook page that maligned Sonia Gandhi, president of the ruling Congress Party. ‘“This is unacceptable,” he told attendees, the executive said, and he asked them to find a way to monitor what is posted on their sites’ (Timmons (2011b).

The executives of Google, which at that point had over 100 million users in India, and Facebook, with over 25 million users, were expected to tell the minister at a subsequent meeting that pre-screening would be completely unviable given the magnitude of content; that terms such as ‘disparaging’ and ‘defamatory’ were ambiguous and misleading; and that their companies would only follow-up on court orders specifying particular instances of illegal conduct.

The article generated great outrage in India, and several outlets, both mainstream and alternative, immediately condemned the perceived government interference as unwarranted and potentially illegal. A Times of India (TOI) report (6 December 2011, ‘Online uproar as Kapil Sibal seeks social media screening’) commented on the developments:

India’s largely unrestricted Internet access stands in contrast to tight controls in fellow Asian economic powerhouse China. But in line with many other governments around the world, India has become increasingly edgy about the power of social media.

India’s bloggers and Twitter users scorned the minister’s proposals, saying a prefiltering [sic] system would limit free expression and was impossible to implement. The phrase #IdiotKapilSibal was one of India’s most tweeted on Tuesday.

Politicians like Shashi Tharoor (Congress MP and former United Nations (UN) under-secretary general, and self-admittedly ‘a frequent victim of “disparaging, inflammatory or defamatory content” on social media’) and Omar Abdullah (current chief minister of Jammu & Kashmir from the J&K National Conference) tweeted in favour of Internet freedom but said that content that was ‘deeply offensive’ to religious sentiments and had the potential to ‘incite riots’ (‘pretty vile stuff’) deserved to be removed (quotes from Tharoor, who was apparently contacted by Sibal and shown examples of the ‘blasphemous’ material referred to in the next paragraph) (Timmons (2011b). BJP MP Varun Gandhi tweeted against Sibal’s proposal: ‘The internet is the only truly democratic medium free of vested interests, media owners & paid-off journos. Can see why Sibal wants to gag it’. Social media sites were flooded with condemnatory posts lambasting the minister.

The day after the New York Times report, the minister held a press conference in Delhi and confirmed the story. However, he said that the putative discussion mainly pertained to pictorial depictions of religious deities that were offensive and ‘blasphemous’ and emphasised the need to ‘take care of the sensibilities of our people’ (Timmons, 2011a). ‘Cultural ethos is very important to us’, he said (Timmons, 2011a). He declined to define what exactly constituted ‘offensive’ content but said that he had seen on the internet ‘subject matter … so offensive that it hurt the religious sentiments of large sections of the community’ (Timmons, 2011a). As evidence, he showed journalists slides (purportedly recovered from social networks like Facebook and Orkut) where pornographic images had been juxtaposed with religious ones, both Hindu and Islamic. He said he had also found images of members of the Congress Party that were ‘ex facie objectionable’ (Timmons, 2011a). He reiterated the government’s commitment to making Internet companies more accountable: ‘We will not allow Internet companies to throw up their hands and say, “We cannot do anything about it”’ (Timmons, 2011a).

Facebook publicly responded in a statement, ‘We will remove any content that violates our terms, which are designed to keep material that is hateful, threatening, incites violence or contains nudity off the service’ (Timmons, 2011a). Google’s press release stated, ‘We work really hard to both follow the law and also give people as much access to information as we can’ (Timmons, 2011a.). It said that it would not remove content that was controversial but legal because ‘people’s differing views should be respected, so long as they are legal’ (Timmons, 2011a).

Interestingly, several reports published the day after the press conference complicated the government’s express interest in screening blasphemous content. A TOI report (7 December 2011, ‘Kapil Sibal’s web censorship: Indian government wanted 358 items removed, says Google’) stated, quoting from a recently published Google Transparency Report (2011), that of the 358 requests Google received from the Indian government in the January–June 2011 period for removal of items from its services, including YouTube and Orkut, as many as 255 items cited ‘government criticism’ as the reason; other reasons included defamation (39), privacy and security (20), impersonation (14), hate speech (8), pornography (3) and national security (1). Approximately 51% of the requests were partially or wholly complied with. Google said that it ‘declined the majority of these requests and only locally restricted videos that appeared to violate local laws prohibiting speech that could incite enmity between communities’ (Timmons, 2011a). It received 236 requests for the removal of profiles and communities from Orkut that were critical of a ‘local politician’ (Timmons, 2011a). Google did not ‘comply with [these requests], since the content did not violate our community standards or local law’ (Timmons, 2011a). Therefore, while the government publicly cited ‘pornography’ and ‘blasphemy’ as the primary reasons for greater oversight, these figures apprised the public of the government’s more substantive compulsions.

In the second part of this sequence of events, the focus shifts from the executive branch of the government to the judiciary. Almost immediately after the Kapil Sibal controversy, a local journalist, Vinay Rai, editor of a Delhi-based Urdu daily called Akbari, sued Google and Facebook, along with 18 other social networking sites, for obscenity under various sections of the Indian Penal Code (IPC sec. 109, 120-B, 153-A, 153-B, 292, 293, 295-A, 298 and 500) (Vishwanathan, 2012). Interestingly, the litigant did not, as per the IT (Intermediary Guidelines) Rules (2011), first request the relevant site to take down the objectionable content. The site would have had to take down the content within 36 hours if found to belong to any of the categories specified in the rules, namely, content that is ‘hateful or racially, ethnically or otherwise objectionable’, content that violates extant laws, or content that

threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting [to] any other nation [sic]. (Vishwanathan, 2012)

Instead, after speaking to the Ministry of Information Technology, the litigant took the matter to a local court in Delhi. The court issued summons to the relevant companies and the IT Ministry endorsed the prosecution. Rai reportedly stated, ‘I did not think it appropriate to speak to private parties. We met the Ministry on this issue as we thought there was no point [in] speaking to these private companies’ (Vishwanathan, 2012).

The companies appealed to the Delhi High Court to quash proceedings against them, but the court refused to stay the trial, and instead contributed in a unique manner to public discourse in its own adjudicatory capacity. The presiding judge said that websites were liable for the content posted on their platforms, as all content contributed to their profits, and platform operators could not feign ignorance of user activities.

During the appeal hearings, the legal representatives of Google and Facebook disputed the evidence presented by the complainant and questioned the admissibility of the evidence under the relevant laws; averred that the Indian subsidiaries of foreign internet companies had no control over the policies and decisions of their parent companies and functioned solely as advertising agents; argued, euphemistically, that the ‘landlord’ could not be punished for the crimes of the ‘tenant’ (to which the judge responded that the landlord could indeed, if aware of the tenant’s activities) and argued that it would be impossible to monitor the gargantuan quantity of user-generated content online (Vishwanathan, 2012).

The judge’s intervention here is important: he warned that the websites could be ‘blocked’ if they failed to devise a mechanism for the removal of objectionable content. A TOI report (‘Censor posts or face China-like ban: Delhi High Court to websites’) quoted the judge’s contentious statement:

‘Like China, we too can block such websites’, Justice Suresh Kait remarked during the hearing when counsel for Google and Facebook [emphasized] their global policy of non-interference even if contents posted on their webpages are found to be obscene or objectionable. The court, however, told the internet firms that this policy won’t work in India. (Garg, 2012)

The High Court judge’s statement provoked immediate outrage. Counsels for the defendants retorted that there were constitutional issues around freedom of speech involved and that proscriptions practised by an authoritarian state like China could not be invoked in democratic India. Kapil Sibal was forced to aver that the Indian government would never attempt to censor social media. A TOI report (14 February 2012, ‘Kapil Sibal: No censorship on social media’) carried the minister’s comments:

No Indian government will ever censor social media, Information Technology minister Kapil Sibal said, seeking to calm fears of a China-style crackdown on companies like Google and Facebook …

Sibal said the government had nothing to do with the case. ‘It is between the complainant and those who have been called’, said the minister, who was speaking at an event organised by NASSCOM, an industry body for information technology companies.

A BBC report (14 February 2012, ‘Indian minister Sibal says no censorship of social media’) quoted Sibal:

‘I want to say once and for all, without any obfuscation, no government in India will ever censor social media’, news agency AFP quoted Mr Sibal as saying at an information technology summit in Mumbai.

‘I never wanted to censor social media and no government wants to do so. But like the print and electronic media, they have to obey the laws of the country’, Mr Sibal said.

While Facebook and Google argued that online mechanisms already existed to report abusive content, Sibal said that the government needed to work with all ‘stakeholders’ to evolve a mechanism that would ensure that ‘blasphemous’ and ‘insulting material never gets uploaded’ (Garg, 2012). ‘We will evolve guidelines and mechanisms to deal with the issue’, he said. Yet again, he emphasised particularly the presence of offensive religious images online (‘images of pigs in Islam’s holy city of Mecca’) and ‘morphed photos of Prime Minister Manmohan Singh and Congress President Sonia Gandhi’ (Garg, 2012).

In the meantime, Google and Facebook also attempted to prove in the High Court the logical inconsistency of pre-screening processes. According to an Economic Times report (‘Google, Facebook benefit from illegal content: Delhi High Court’):

‘There is a civil parish called Penistone, in England. Blocking all content with this keyword would mean that residents of this parish might never figure on internet’, said a Facebook lawyer. He also [made] a similar case for the town of Scunthorpe, England. (Julka, 2012a)

As the Delhi High Court deliberated these matters, another case in the Supreme Court concurrently considered the question of intermediary liability, and since then, separate cases in the Supreme Court, Bombay High Court and Andhra Pradesh High Court have brought it under adjudication (Ramachandran, 2013).

In May 2012, newspaper reports suggested that the Indian government was trying to lobby for greater multilateral control over the Internet at the UN (Julka, 2012b). Representatives as well as specialists argued that a disproportionate amount of power and almost exclusive control over core systems was currently vested in U.S. hands. In July, the UN Human Rights Council in Geneva passed its first resolution on Internet freedom and called on all nations to support ‘individual and human rights online, despite opposition [from] India and China’ (Julka, 2012b). In August 2012, further reports suggested that India would, after consultation with civil society and advocacy groups, ‘push for formulating internet regulation and governance at the level of [the] UN’ (Julka, 2012b). The Indian government, in conjunction with Brazil, South Africa and China, proposed a UN-based Committee for Internet-Related Policies (CIRP) which would take on the mantle of policy formulation for Internet governance globally and arbitrate disputes between governments and Internet companies. At an International Telecommunications Union (ITU) summit held in Dubai in December 2012 (the ITU is a UN body), the United States, United Kingdom and Canada, among other countries, roundly rejected a proposed treaty premised on mechanisms of multilateral control; India followed suit (McCullagh, 2012).

The discourse on regulation of social media in India has a few discernible strands. First, the initial discussions between the government and Internet companies were decidedly opaque and non-transparent. Second, the minister’s positioning of himself as someone at the vanguard of defending cultural sensitivities, maintained throughout the controversy, failed to countervail the revelations made by the Google Transparency Report (2011). Core concerns such as political criticism and mass outreach of protest movements were obfuscated in various ways. Third, the invocation of ‘religious sentiment’ and ‘blasphemy’ helped sustain an adversarial political climate where social networking sites could be traduced as moral vacuums disruptive of cultural mores (cf. Mazzarella and Kaur, 2009). Fourth, both in the executive and judiciary, the idea that as crucial a resource as social media could lie beyond the immediate control of local authorities caused much discomfort and dissension. As a discursive intervention, the Delhi High Court judge’s statement that the authorities could block errant websites and thus halt the functioning of so-perceived recalcitrant Internet companies had the effect of polarising the debate along familiar authoritarian-versus-liberal democratic lines, using the old dichotomy to destabilise a nascent conception of and move towards greater Internet freedom.

Later developments inflected public discourse on online media in different ways. Censorship of videos and information in times of ethnic conflict with the acquiescence and aid of social networking sites (Dasgupta, 2012; Phillip, 2012) as well as political censorship in the aftermath of the 2014 general elections in India, that is, the arrest of individuals deemed to have posted ‘inflammatory’ content about Narendra Modi online, the then just-elected prime minister (Firstpost, 2014), produced new understandings of the intersections between state power, political control over public discourse, national security and Internet regulation. The need for re-evaluating certain provisions of the Information Technology Act was emphasised in news reports (Firstpost, 2014). Because Internet regulation is still a nascent and under-theorised field in India, it would be difficult to contextualise these developments within a narrow historical framework. However, they fall within a spectrum of public interventions that can be characterised as ‘cultural regulation’ (Mazzarella and Kaur, 2009); they were not entirely a matter of ‘outright prohibition or the absence of transparency’; rather, much of the animus that drove political initiatives over Internet regulation emerged from a desire to control the ‘public revelation of information, narratives and images’ within the ‘performative space of publicity’ (Mazzarella and Kaur, 2009: 10).

Supreme Court guidelines

At the end of March 2012, judicial intervention in media regulation took another form, this time in relation to the print and electronic media. The Supreme Court, represented by a five-judge constitutional bench headed by Chief Justice of India (CJI) S.H. Kapadia, indicated that it wanted to lay down guidelines for media reporting of court proceedings while ‘striking a balance between protecting press freedom and protecting the right to life (of an accused person)’ (Venkatesan, 2012b). According to Attorney General G.E. Vahanvati,

While it is undoubtedly true that the right to freedom of speech and expression of the press is sacrosanct, it is also equally true that improper reporting of court proceedings can, at times, severely affect and impede the process of administration of justice. An attempt at laying down guidelines for reporting has to take into account and balance two competing principles, the right of free expression and ensuring that judicial proceedings are not prejudiced by improper reporting. (Venkatesan, 2012b)

The two competing principles framed the contours of the ensuing debate. The judges averred that they were primarily concerned with the phenomenon of ‘trial by media’ and were interested in determining whether judicial guidelines could compensate for a ‘legislative void’ relating to prejudicial reporting of court proceedings. Justice Khehar, one of the judges on the bench, said,

The media creates a mindset about what is right or wrong. When the judgment is not on those lines, the judge’s image is tarnished and all sorts of motives are attributed to him and his judgment becomes suspect. (Venkatesan, 2012b)

While a counsel appearing for the PCI, the statutory body entrusted with regulating the print media, argued in favour of the guidelines and made a case for the inclusion of the electronic media in the PCI, thereby expanding its jurisdiction, counsels appearing for journalists and specific press bodies argued against the guidelines (Venkatesan, 2012a). Former law minister and noted advocate Shanti Bhushan, appearing for some journalists, argued,

No purpose will be solved by going through this exercise … All institutions in our democracy are people’s institutions. Even the judiciary is accountable to the people. People have a right to know what is happening. (Venkatesan, 2012a)

He argued for the dissolution of the bench. Noted advocate Fali Nariman, appearing for business conglomerate Sahara India – the original petitioner whose case against the Securities and Exchange Board of India (SEBI), for leaking confidential information prejudicial to business sentiment, was expanded by the court and clubbed together with other media-related cases to constitute an all-encompassing bench for deliberations on ‘guidelines’ – said the court could issue specific orders in exceptional circumstances but had no power to lay down general guidelines. He argued that in the absence of specific laws, the court could not enforce any of the guidelines.

Counsel Anil Divan, appearing for the editor of the Hindu, argued that the court would, by its actions, ‘abridge’ the freedom of speech and make it difficult to remedy grievances, since the process of judicial review (applicable to legislative processes) would not be available to those aggrieved by the apex court’s guidelines (Venkatesan, 2012a). He argued that freedom of speech, a fundamental right itself, could not be compromised to ‘promote’ other fundamental rights. If at all, the court could frame ‘normative, not coercive’ guidelines, he argued (Venkatesan, 2012a). In keeping with the framework outlined by the court at the outset, the CJI stated that the court was interested in ensuring that the right to life (Article 21) of an accused person was not prejudiced by the irresponsible exercise of freedom of expression (Article 19 (1) (a)). Divan argued that the Constitution already specified ‘reasonable restrictions’ (Article 19 (2)) and the court was not required to frame any further restrictions. The CJI emphasised the need for ‘preventive measures’ to reduce post facto contempt proceedings, while counsels representing the media argued that reasonable remedial measures already existed for aggrieved parties. In May 2012, the court reserved its verdict on the deliberations.

In an article in the Hindu, the newspaper’s editor, Siddharth Varadarajan (‘The public needs both gravel and pen’) called the court’s attempt to ‘[impose] further restrictions in the form of guidelines’ on correspondents ‘superfluous’ and inhibiting (Varadarajan, 2012). He argued that the media did not enjoy immunity from the ordinary process of law.

He wrote that if an inadvertent mistake was committed or incorrect information conveyed, and the aggrieved parties were satisfied that this was so, a simple apology would suffice, but if mala fide actions or intentions were suspected, the court was empowered to initiate contempt or defamation proceedings:

Given these remedies, none of which are necessarily inconsistent with constitutionally guaranteed press freedoms, it would seem unnecessary to impose a regime of ‘prior restraint’ or even ‘temporary postponement’ via guidelines on what aspects of court proceedings may be reported. Indeed, such a regime would have a chilling effect on media coverage of the Supreme Court and, eventually, the entire judiciary, at great cost to the general interest of society. (Varadarajan, 2012)

He argued that the court’s suggested guidelines, one of which purportedly stipulated a law degree as a requirement to get accredited as a court correspondent, would set an inhibiting and deleterious precedent if accepted, possibly encouraging other public institutions such as the parliament, state legislatures, various ministries, hospitals and universities to stipulate similar preconditions in an attempt to further restrict media access. He argued that public institutions were wont to conceal and suppress information, and preconditions such as stricter accreditation requirements would only enable them to further obstruct access to information (Varadarajan, 2012).

To corroborate his argument in favour of unrestricted access to court proceedings, Varadarajan cited the Mirajkar case (Naresh Shridhar Mirajkar vs State Of Maharashtra, 1966), in which a nine-judge bench of the Supreme Court had ruled that ‘save in exceptional cases, the proceedings of a Court of justice should be open to the public’. The verdict, as a legal precedent on the question of court reporting, stated,

It is through publicity that the citizens are convinced that the Court renders evenhanded justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the Court proceedings. The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the Court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation. (Varadarajan, 2012)

Other media luminaries too argued against the guidelines. Kuldip Nayar (2012) and Anup Kumar (2012) argued that the Supreme Court’s deliberations amounted to judicial overreach, and that principles such as ‘prior restraint’ and ‘postponement’ amounted to a form of content regulation and hence censorship. The important discursive point here is that freedom of the press was positioned in contradistinction to the right of accused persons to a fair trial without prejudice. The court positioned itself as the proponent of the latter and representatives of the media found themselves in the position of defendants. The debate was chiefly predicated on the question of jurisdiction, with counsels for the media repeatedly reminding the court that its actions, if pursued to their logical conclusion, would amount to judicial overreach. What is interesting here, from the point of view of the broader debates on media regulation, is that the Supreme Court’s deliberations followed the social media controversy and immediately preceded the controversy generated by Meenakshi Natarajan’s bill in the Lok Sabha (discussed in the next section). Although these different events appeared ex facie unconnected, their concurrence, and the concatenation of media reports spawned by each one respectively, contributed to a perception that multiple avenues of regulatory control were being simultaneously explored by the government.

In September 2012, the Supreme Court ruled that the trial courts could, on a case-by-case basis, issue specific injunctions on the reporting of sub judice cases – ostensibly going beyond the restrictions mentioned in Article 19 (2) – but refused to frame any guidelines (Hindu 11 September 2012, ‘Media can be gagged to ensure fair trial, says SC’). Advocates Dave and Bhushan described it as a ‘most imbalanced’ judgment, and as ‘one of the worst that the Supreme Court has delivered on constitutional provisions’ (ibid). They argued that influential accused persons could, with the connivance of the prosecuting agency or lower court, obtain a favourable pre-publication ban to the detriment of public interest. The court’s position on the curtailment of public information about legal proceedings can certainly be seen as antithetical to its historically constituted role as the primary guarantor of free speech and freedom of information among Indian institutions (Iyer, 2000).

Meenakshi Natarajan’s bill

In April 2012, a controversial legislative event greatly impacted public discourse on media regulation. Meenakshi Natarajan, a first-term Lok Sabha MP from the state of Madhya Pradesh and an aide to Rahul Gandhi, vice president of the Congress Party at the time of writing, tabled a private member’s bill called the ‘Print and Electronic Media (Standards & Regulation) Bill, 2012’. Although she absented herself from the Lok Sabha on the day she was supposed to introduce the bill, deferring it indefinitely, the details of the bill were widely circulated and discussed in the media. Against the backdrop of the judicial debate on media guidelines underway at the time in the Supreme Court, the bill stood out as an important source of public consternation (Chhibber, 2012).

The bill envisaged a regulatory authority, selected by a committee comprising the Information & Broadcasting minister and three government nominees, that would have the power to ‘ban’ or ‘suspend coverage’ of an event or incident that ‘may pose a threat to national security from foreign or internal sources’ (the ban would be ‘sanctioned and reviewed’ on a day-to-day basis for ‘as long as the threat persists’); suspend a media organisation’s operations for 11 months; recommend the cancellation of its licence and impose a fine of 50,00,000 Rupees (approximately 100,000 USD in April 2012 terms) for breach of ‘standards’ and order the search and seizure of documents and records at a media organisation’s offices or ‘kept secretly [in] some secluded place’ (Chhibber, 2012). The proposed authority would be headed by a former CJI or a Supreme Court judge and would have the powers of a civil court. No civil court would have jurisdiction over any matter determined by the authority – its decisions would not be subject to judicial review. It would also be exempted from the Right to Information Act, denying citizens the right to independently secure any information regarding its procedures, decisions and manner of functioning. It would have the power to probe and initiate action against media organisations suomoto or on the basis of complaints.

The bill specified certain standards for the media to follow: ‘prohibition on reporting any news item based on unverified and dubious material’, ‘exercising due care while reporting news items related to [the] judiciary and legislature’, clearly segregating ‘opinion from facts’, ‘maintaining complete transparency and impartiality in internal functioning’ and ‘prohibition on reporting news items which are obscene, vulgar or offensive’ (Chhibber, 2012).

It also sought to regulate the quantity of entertainment programming on news broadcast channels, restricting all such materials to 15 minutes of each channel’s overall air-time. The stated objective of the bill was to ‘ensure good quality reporting’ and to promote a media culture focused not only on ‘television rating points’ but also on ‘issues of prime national importance’ (Chhibber, 2012). It was premised on the putative need to protect or promote the ‘national interest’.

The government and various political parties did not want to be identified with Natarajan’s bill. The media made its outrage unequivocally clear and there were numerous headlines lambasting the proposed bill (Chhibber, 2012; Phukan, 2012). Natarajan was incommunicado all through the controversy and did not engage with the media. Viewed retrospectively, its discursive intervention may be characterised as short-lived and speculative, emphasising some of the negative and deleterious elements of the prospect of government regulation. It detracted from the possibility of regulation and galvanised mounting public outrage over censorship. Its either strategic or inadvertent timing, as part of a succession of recent executive and judicial ‘news events’ related to censorship, certainly contributed to its immediate newsworthiness and topicality; in turn, it underlined and helped corroborate the perception emanating from the media that freedom of speech lay open to overt manipulation. Taken together with other discursive interventions, it highlighted the dangers inherent in knee-jerk responses to issues of freedom and control and substantiated fears of a concerted assault on media freedom. Predictably, like the Sibal controversy, it relied on the discourse of national interest to bolster and frame its claims. While deteriorating standards were cited as the justification for greater regulation, its wholly intemperate recommendations and provisions went well beyond the claims of qualitative improvement. Its more explicitly questionable provisions, like the unilateral ban on operations or the search and seizure of premises, only heightened fears of an imminent infringement of constitutional norms. Additionally, it used the rhetoric of ‘national security’ to proscribe media operations, a tenet or principle particularly vulnerable to abuse. Although it contained certain provisions similar to those included in the erstwhile Broadcasting Services (Regulation) Bill (2007), particularly with respect to content regulation, it was deemed more excessive than its predecessor.

Recent public debates

PCI chairman Justice Markandey Katju (2012) has argued for greater external regulation for the media. He argues that that an independent statutory body like the PCI should be entrusted with broad-based media regulation, with sufficient powers and discretion, since industry-based bodies, particularly the NBA and the BEA, have perceptibly failed to perform their stated functions. Katju’s work sets up an opposition between profit and social responsibility. He critiques the tendency of the media to sensationalise issues and focus on ‘frivolous’ matters; its ‘irresponsible, reckless and callous’ conduct and its neglect of important social issues like ‘massive poverty, unemployment, malnourishment, farmers’ suicides, health care, education, dowry deaths [and] female foeticide’ (Katju, 2012). The polemical point here is that contemporary media culture shows a tendency towards ‘irresponsibility’ as well as ‘irrationality’. (He emphasises particularly the preponderance of superstitious elements on Indian television and the proliferation of various cultic shows produced by religious figures and the personal relations (PR) machinery surrounding them.) The claim that the media can self-regulate is positioned antithetically to the perceptible qualitative decline of television media. The thrust of the essay is on the inability of specific industry membership bodies to effectively execute their regulatory functions. He criticises the fact that the NBA or BEA has failed to take punitive action against any erring media outlet and have not suspended a single licence so far. Katju argues in favour of a statutory body independent of the government along the lines of the PCI (comprising 20 media representatives, five members of parliament and three representatives from the Bar Council of India, University Grants Commission and Sahitya Academy respectively). In fact, he argues for the co-option of the electronic media by the PCI and, therefore, an expansion of the latter’s jurisdiction. He avers that the Council functions in an inherently democratic manner and dispels fears about media independence being compromised. His recommendations are similar to the Australian Justice Finkelstein’s recommendations on the creation of an independent and all-encompassing News Media Council (Finkelstein, 2012).

While the two issues he flags (i.e. qualitative decline and the need for regulation) are interrelated, there are several factors that problematise their rhetorical conflation. For instance, does regulation imply quality control? Do envisaged standards impinge on creative freedom, as in the case of Meenakshi Natarajan’s bill? Would PR transactions, given the current paradigm of advertising-based revenue-generation, theoretically fall outside the rubric of stated media functions? While the validity of qualitative assessments cannot be denied, it would be incorrect to surmise that regulatory mechanisms can mitigate or even address those concerns.

Moreover, it is true that the PCI has contended with the phenomenon of ‘paid news’ (sponsored content from corporates and politicians presented as news) for a while, but without the necessary resources to enforce regulatory standards (Akoijam, 2012; Bakshi, 2010). In 2010, a PCI report on paid news written and prepared by two journalists, Paranjoy Guha Thakurta and K Sreenivas Reddy, was first bowdlerised and then released in its redacted form. The report’s release was deferred by the Council because some members felt that the revelations ‘would destroy the publishers’ credibility and hurt their long-term interests’ (Bakshi, 2010). It was finally the Election Commission that intervened in 2011 and imposed restrictions on paid news during elections.

Another concern that has exercised some sections of public opinion has been the consolidation of ownership across different platforms, monopolistic tendencies and the slow decline of diversity. While literature on diversity in the Anglo-American context is fairly rich and incisive (see Baker, 2007; Gardam and Levy, 2008; Hitchens, 2006), there has been very little scholarly and institutional scrutiny of diversity and plurality in the Indian media (Thakurta, 2012; Thomas, 2004). This is partly because of structural limitations and difficulties in accessing information on ownership patterns. Some of the biggest media conglomerates own several outlets and channels across different mediums and are owned by prominent business groups and politicians. Companies such as Sun TV, Star India, Essel Group, Times Group and Network 18 each have large investments in print, radio, television and online media. To this end, a consultation paper was brought out by the Telecom Regulatory Authority of India in February 2013 that was critical of the status quo on cross-media ownership. It was widely condemned by various media houses (Kaul, 2013). Deploying the discourse of freedom of expression in their critiques, they refuted the need for any intervention in the area of regulating ownership and diversity. I posit this here as an alternative use of this discourse, in its deployment as a shield against scrutiny of monopolistic tendencies.

On 6 August 2013, at an event featuring, among others, Manish Tiwari, the I&B minister at the time, and the heads of three regulatory bodies – Justice Katju of the PCI, Justice AP Shah of the BCCC and Justice RV Raveendran of the News Broadcasting Standards Association (NBSA), a constituent body of the NBA – the discussants arrived at a tentative consensus regarding the kind of regulation they considered most desirable. Justices Katju, Shah and Raveendran argued in favour of a ‘robust’ regulatory regime while emphasising their opposition to any external (government) intervention. They stated that statutory recognition was desirable and necessary and underscored the need for effective ‘punitive powers’. Most discussants agreed that ‘statutory, mandatory self-regulation’, implemented through an ‘independent and autonomous body’ with legal sanction, best served the interests of all stakeholders (Jha, 2013).

The BCCC memorandum stipulates that the council has the power to investigate complaints from groups or individuals against specific channels, using guidelines framed by its parent body, the Indian Broadcasting Foundation (IBF), and order them to withdraw content and/or broadcast apologies. Refusal to adhere to the council’s recommendations leads to a negative assessment of the channel’s eligibility for licence renewal at the level of the I&B ministry. A suggestion was made at the conference regarding greater coordination with the latter, with licensing linked to the licencee’s commitment to membership of its industry body. The BCCC chief argued that a strong case existed (corroborated by a recent judicial verdict) for the expansion of regulatory jurisdiction over non-member entities. The I&B minister, while reiterating that regulation would need to be industry-driven and conceding that delegation of statutory and licensing powers to industry bodies was indeed desirable, flagged certain concerns about the permanence of such bodies. He stated that the question of membership (mandatory as against voluntary) required further consideration before progress could be made in relation to formulating statutory mechanisms (Jha, 2013). These deliberations constitute the latest pronouncements in the field of media regulation in India. While the subject itself remains inconclusive, the aim of this article has been to provide a comprehensive narrative account of contemporary events and developments, and a relational understanding of the contours of public discourse. It is also intended as an account of events that emerged during a historically significant and politically charged period.

Conclusion

In this article, I have attempted to bring together different strands of the public discourse around media regulation that emerged in India in 2011–2013. The central complexity here is that while self-regulation, according to critics, is tantamount to no regulation, the question of greater government regulation presents immanent difficulties, and disregarding legal precedents on the subject poses further complications. As stated by Varadarajan (2012) and others, there is a fine line between censorship and regulation, and all unilateral attempts to enforce regulatory prescriptions, without undertaking due diligence in matters of constitutionality and public interest, will result in retrogressive outcomes. Moreover, a key element here is timing – coinciding with several political crises, these attempts were plainly interpreted as the actions of a beleaguered government. Furthermore, institutional public interventions such as these in India are always imbricated with prohibitive and normative practices of cultural production and as such also illuminate the immensely more complex field of cultural regulation (Mazzarella and Kaur, 2009).