Thank you, Mahesh. To commemorate your father’s memory is a great idea and everything said about him till now is true and valid, but let me say that above all I remember him as a very large-hearted man. I remember a person who I knew candidly that he virtually disliked, and that person happened to pester me for the admission of his son to one of the today well-known law colleges and I was hesitant that I mentioned it once to Ram and he said, “Why wouldn’t you tell me? The fact that I don’t get along with that person doesn’t matter.” And he put in a word for that person. This is just one small example of his large-heartedness amongst many more. He was truly as somebody said, a friend of a friend, a ‘yaaron ka yaar’. His friendships cut across generations and many of us today are decades younger than him but that generation gap was never felt. He was truly a fearless person and also a fearsome person. When he wanted to be fearsome, he could be fearsome. A tremendous sense of humour, he was once after my life for many decades to play badminton with him and in the years when he used to play singles at 5.30 in the morning, he told me many times that he should be ashamed about not coming and playing with me. I said that I will be more humiliated and ashamed if I lost to a man two or three decades older than me so I’d rather not come. But Mahesh apart from congratulating you for commemorating our friend and colleague’s memory, I must also congratulate you for being a reasonably good astrologer because you informed us telephonically at least me about this topic about three and half weeks ago and few of us could have realised that at that time the direction, velocity and momentum this theme would pick up even over the last four weeks or three weeks. So today it is the most possibly the most relevant theme in our national ethos and therefore another kind of congratulations for your incipient astrological talent. Let’s make no mistake about it when you claim the exalted status of the fourth pillar of democracy after all there are only three recognised constitutional pillars. So the fourth pillar is a very exalted status, and you have to be prepared to face the slings and arrows of scrutiny. Just as much and more than the other three pillars and you cannot have your cake and have it too by escaping that exalted status and even more humongous power must come with heightened accountability. I am going to inspire words even less because I believe words must be an assault to the senses for reform to occur. I also want to say at the outset that perhaps a little different from the previous speakers, I don’t, I think that to see today’s theme which you have chosen ‘Pros and Cons of Trial by Media’, in a narrow pedantic or semantic sense limited to the role of media in judicial proceedings would according to me be a piecemeal because you have to see the larger picture, a holistic approach starting of course from the sub-judicial role to the larger role and responsibility of the media within which that role sits because you can’t bifurcate the role. And further onwards to the peculiarities of the visual and social media as opposed to the textual media if I may call it that and further onwards the role of the government and of course above all to the voyeuristic depths to which society ‘us’ have sunk. So I think all of them are really at par with the same theme even though the focus may be on trial by media. Well, first the larger picture and let me preface it by saying that there is no doubt of two axioms, one the media has done fantastic works, sterling works in news gathering, investigation, etc, etc and nobody who believes even remotely in democracy wishes to curtail that. And secondly, the aberrations which I think are getting bigger and bigger are still, fortunately, an exception. So given these two, I would still say that Indian news has plummeted in the wrong direction of the equation. In the wrong direction of the equation between sense and sensationalism, between news and noise, between civility and chaos and needed I would say between balance and extremism. You know terrorism is a global scourge and we all know that but the time I fear may not be too far off when we have to invent a new offence of verbal terrorism, visual extremism and content fundamentalism. And I can derive all three from showing you actual clips of the media.
Undoubtedly this has a lot to do with what I call the ‘Toxic triangle’ of viewership, of the rating game and of revenue. If you add to this toxic triangle, a liberal and spicy dose of politics, of glamour, of insidious but very real government control, of premeditated and motivated stands, of ambitious anchors and of course of a public baying for blood then it becomes a heavy cocktail which I think would make the manufacturers of whiskey, vodka and rum blush, even Ram blush. The Delhi High court not too long ago rightly told us that today the best substitute for action fillers is in certain Television news programs. Now there is humour here in the Delhi high court’s statements but there is also a pathos. There is a cry of anguish, but the sad part is it is astonishing how so many business houses, and it is truly sad, so many channels, so many anchors and so many journalists and I am still, I caveatted by saying there is still, fortunately, an exception not the norm. But so many have mortgaged their calling, their training and their consciences to the lure of temporary wealth, power and property. They have done this by becoming spokespersons of ideologies, of viewpoints, of persons, of authorities, of vested interest lobbies. As I said the only saving grace is it still remains an exception and by large the disease has not become the rule in the media.
Before we come to the remedial framework, a minute or two on the techniques which are widespread. Nonlevel playing field debates, deliberate interruptions and unless you see the trial by media in the largest setting of our debasement devaluation, the form will not occur. Deliberate interruptions, a gleeful verbal sport I would call it, verbal blood sport, a conscious invitation of biased and malicious participants, strategic cutting off of mics, formulation of one-sided themes, unevenly numbered viewpoints, many other are standard techniques for driving TRP ratings and advertising revenues. Serious news items are presented as crime fillers. An extremist and fundamentalist’s viewpoint are easily spoken whether by anchors or participants without regard to their potency to democracy. I have here on my mobile phone three out of many clips of thirty seconds each which we submitted in a delegation that I led to the NBSA, The National Broadcasting Standards Authority and I am itching to show you this on the screen here to give you an idea of the depths we have plummeted in terms where we have regenerated in news programs. Some outdated notion of propriety restrains me from showing it. I ask myself the questions that it is not that we have not seen media in the UK or USA and several other democracies, very aggressive and very intrusive but why do I never see the kind of scenes captured in these types of clips which I have on those channels and in those countries. It is not that they are doing their duties any less. Also, I think we have missed out that society, in general, is exempt as a principal accused in this whole game. Viewership will not drive this engine unless society has begun treating celsius as sane and is prepared to believe the worst about everyone.
Whether it has lost its moral compass or otherwise, compassion and analysis are replaced with glee at others misfortune. It is replaced with irrational and illogical reactions. So in that sense, we can’t mistake it, it is we, you and me who have given this circus a great degree of legitimacy and strength. Divided we stand, so we let the dog eat dog and let the devil take the high post. As far as your narrower topic is concerned, the sub-judiciary role died long ago. Even its observes were performed and bones entered the forgotten recess of our memory. Of course, at one literal sense, your theme may not be right because I cannot think of situations where there can be pros for a trial held by the media except in the very nascent stages for a very short while, Pros of a media trial are very difficult to imagine. Was it ever intended as a supplantation of decision making by sovereign courts or of institutional mechanisms by the wisest framers of our fantastic constitution, the answer is obvious. The objective of a media trial is to create a perceptional reality which is of course an oxymoron but it is a perceptional reality. The merits and outcomes become irrelevant. They become immaterial. Demoralistaion of the investigator becomes one object. Defamation of the entire police force becomes another. The derailment of the enquiry is a third. No second thought is given to taking a side vigorously. Pronouncing the verdict and proudly, of course, playing the role of a judge, jury and a prosecutor and prosecutor all roles into one because this is the best way to whip up a frenzy. The Supreme court, of course, seems to be giving repeated warnings and summons which are being treated nowadays as mere ink on paper.
Three examples I picked up, Sibel’s judgement in 1961, Rajender Gandhi’s judgement in 1997, Sales judgement in 2005. The Supreme court has been giving very strong words about trial by media and sub-judiciary roles and our fourth estate or a large section of it has seemed to have completely forgotten about it. In Gandhi’s judgement, the courts have said that in a trial by press, electronic media or public agitation is the very antithesis of the rule of law. One sentence sums up everything. It can very well lead to a miscarriage of justice. A judge has to guard himself against any of such pressure and he has to be guided strictly by rules of law and so on. In the same judgement which is after the advent of 24×7 media channels, the court said and I quote, “The reach of the media in the present times of 24-hour channels is to almost every nook and corner of the world. A large number of people believe it is correct that which appears in the media, print or electronic”. Of course, there is this over romanticised notion that judges are supposed to be so robust and concrete. They are not affected by all this, they are not paper persons. Lord Denning used a nice phrase. He castigated this fictional notion that no judge will be influenced by the media. He said that the claim to judicial superiority over human frailty is one which I find impossible to accept. Cardoso in a very nice piece hundred years ago, imagine there was no 24×7, there were no social media. He said the forces which enter into the conclusions of the judges on judicial decision making and then he commented, “The great tides and currents which engulf the rest of the men do not turn aside in their curse and pass the judges by.” This is the power of the press and the abuse of that power and the true meaning of the subjudiciary role. Of course, the fact that it is also additionally contempt seems far from the course of. Nobody remembers that. And possibly it is the court itself to be blamed partly at least for misplaced benevolence in the wrong cases. You have exercised contempt in the wrong cases and similarly, you have misplaced benevolence against contemptuous in the wrong cases which has given a fillip to these egregious defaulters. Obviously we all understand that judges have to be balanced and cautious, we know that judges should not tilt at windmills and new development is also kept in mind is that now at least in India, the judicial intrusion and judicial reviews has entered every known sphere of human endeavour. I don’t think there is per se no go area for judicial review. So obviously the old classic subjudiciary role which anyway has entered with its bones cannot apply now to mean a gag order or a chilling in any effect given the all-pervasive availability of judicial review in every sphere. Nobody is suggesting that and judges ought to keep that in mind but it is pretty much like we can’t easily define an elephant but we all know one when we see one. We all understand genuine reporting as opposed to some of the filth which blows the subjudiciary role to smithereens.
Let me now end with a few suggestions on remedial measures because without that quite frankly much of this very valuable platform that you have provided goes as empty theorising and mere incantation of hope. First, it must start with awareness. Awareness of lapse, awareness of accountability and awareness of urgent necessity. Of course primarily by the press but also by every stakeholder. Second, it must start with the awareness of a paradox that external control has to be excluded. Self-regulation is again and again the key and yet peer regulation has failed. Unless you are aware of this basic truth you are living in a cloud cocoon land. The Press Council is worse than a toothless tiger because a tiger can at least roar, A toothless tiger can also roar. No less than its own chairman has called for the repeal of the Press Council Act. This is not too far off. Not too long ago. In relative terms the peer regulator for visual media, NBSA has fared better but remains hopefully inadequate given the size and degree of the mess. The real problem with both the bodies especially the first is the conspiracy of silence. The incestuous ambience of a peer’s exclusive club, the ‘chalta hai’ attitude and this old boy’s cartel is too difficult for any NBSA or press council to even easily attempt to bust. Third, The existing powers of the NBSA are pretty wide. I think we are always an over legislated and under enforced country. We have to go running for legislation and rules. All the codes are there, some of them are cited, the cable television act, the Press Council court. But the real point is what? Let’s take the NBSA court. It ranges from warn, admonish, censor, express disapproval, impose a fine upon the channel or a broadcaster and even recommend to the authority to suspend and revoke its license. In that delegation, I have asked the NBSA how many times they have exercised the lost power. The answer is Nil. And a lot of us are pretty happy to face the warning, the admonition and merrily go across our ways. It is now, therefore, time to name and shame especially by the peers because these bad apples will ground you. There is no point in flaunting yourself as a good apple. It is now time to name and shame without inhibition because if the medicine from the doctor has to be good, it is also bitter and urgent. As the industry’s conscience keeper, the NBSA, I am talking more of the visual now, must keep getting its teeth into the issue, it must issue advisories much more and those must not only bare its teeth, it must not be followed merely by snarling but by biting and biting hard. Only a few egregious violators if they are made examples by the NBSA, a lot of this will stop and you will be getting kudos and applause from a sickened public. Then fourthly, the NBSA guidelines must be recognised by the Ministry of Information and Broadcasting as the selfregulatory guidelines for the new genre. There is a very interesting funny catch here, it will be funny if not tragic. The NBSA guidelines must be notified under Cable TV act and regulations. Reason being without that it does not bind the non-members. Now you have heard many cases where the farcical spectacle is seen on several channels after exhibiting shocking programs when they are found with their hands in the till. They simply exit the membership of the NBSA. So this is a very nice convenient way of avoiding any of the harsh penalties. So it requires some statutory government recognition and there is some precedent provided by the advertising court, the ACI has such status already and if you are serious about this you must recognise this because otherwise, the NBSA is trying to do a good job but failing because the channels simply have to leave the membership to continue merrily their egregious actions. Fifthly, there is a most urgent need for an independent rating agency. Where does it all come from? What is the source of all this? The source of all this is the King of media, not the chairman, not the boss, not the editorial head, the king of media is TRP. We are supposed to have 30,000 measuring metres in this country, somebody said the last count is 44,000, let me take the higher figure of 44,000. I said I will give a Nobel Prize for miniaturisation because India miniatures your desire by 44,000 metres in a country of 30 crores. Surely, it requires a Nobel Prize for miniaturisation. Certainly, this sample is what runs it, if you see the clips we have, if you see the drama we see on television, it is caused by this 44,000 metres along with several slates of hand by algorithms which are supposed to determine weekly TRP ratings, decides what the content is. At the end of the day, the advertiser is what rules it and the advertiser is ruled by the TRP.
Lastly, we cannot ignore the elephant in the room, the need to create Chinese walls to eliminate serious conflicts of interest in the media. A Broadcasting bill has been languishing in this country since 1997, I don’t know of any bill other than the Lokpal Bill, on which the parliamentary committee under my chairmanship had the privilege to report, a Bill now languishing in more or less the same form for about 25 years. It is also not far for us to guess it’s non-enactment, it provides for specified percentages for ownership in media, it provides for ownership across different forms of media, platforms of media, it deals with issues of simultaneous cross-holdings of media on the one side and certain other prohibited or related sectors on the other. It creates some of the necessary regulatory divisions. Let me end by saying, many things Chinese, are now suspect, rightly but one thing we need here is Chinese walls between these kinds of conflict of interest, they are the need of the hour.
Mahesh, let me say, I don’t think anyone would be happier than Ram if we achieved even fractionally or even partially, what we have discussed today. We owe it not only to Ram, but we also owe it to ourselves and owe it to this country.
Excerpts from Dr Abhishek Manu Singhvi’s speech at the Ram Jethmalani Memorial Lecture.