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Media Follies versus Supreme Infallibility: The quest for a world free of error

Media Follies versus Supreme Infallibility: The quest for a world free of error

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Looking at the Supreme Court's Effort to Lay Down a Media Code
Looking at the Supreme Court's Effort to Lay Down a Media Code

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Published by: Sukumar Muralidharan on May 01, 2012
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Supreme Infallibility and the Follies of the MediaThe quest for a world free of error 
Perhaps because the media touches several lives, everybody feels entitled to express an opinion onit and offer attentive and solicitous counsel. Or perhaps it is because of all the signs it displays of arrested development, of a failure to grow out of impetuous adolescence into mature adulthood.For these among diverse other reasons, the Indian media has had a surfeit of counsel in recent timeson how it should conduct itself, some indulgent, some stern, some acerbic and scolding.These informal lessons in fidelity to fact and moral rectitude never seemed likely to threaten therelative autonomy of the Indian media. There have been occasions when the social dialogue throughthe media has led to the perilous possibility of a withdrawal of citizen consent to the State
 –
as withhow the media brought home to the news consumer, images of the terrorist siege of southernMumbai in November 2008 and the Anna Hazare movement of 2011.Unsurprisingly, in both instances, there were loud murmurs in official circles that statutoryregulation over the media was long overdue. Yet the threats were held in abeyance: in the formercase, because the media industry brought in what seemed a comprehensive self-regulatory code andmechanisms to enforce it; in the latter, because the ire of elected representatives was easilydiverted to the injudicious and intemperate language Anna Hazare
’s
acolytes had used. The principaloffenders were easily identifiable and the role of the media in transmitting and amplifying theirmessage, was forgotten because the political establishment seemed disinclined to open two frontsin the battle to salvage a badly bruised image.Matters may have remained at this uneasy stalemate had not the media then gone on -- with itsboisterous and bumptious conduct -- to irk the highest judicial bench in the country. For reasons thatstill remain to be studied in depth, the media has been much more deferential towards the authorityof the robed eminences in the judiciary than those who muddy themselves seeking to win popularendorsement through the electoral process. In part, this is a reflection of the power to punish forcontempt, a weapon that the judiciary holds in reserve, much like legislative privilege remainsuncodified and susceptible at all times to arbitrary interpretation.Despite the deference it has always enjoyed, the Supreme Court decided at some point, that it had just about had enough. This fervour for reforming media practices was provoked by the complaintlodged by a senior Supreme Court lawyer, over reports in February which gave out details of a planthat the finance and real estate conglomerate, Sahara, had submitted to the market regulator
 –
theSecurities and Exchange Board of India (SEBI)
 –
on how it intended to secure investor interest on abunch of public deposits. The matter was in appeal before the Supreme Court, following a June 2011order by SEBI, upheld by the Securities Appellate Tribunal (SAT) in October, ordering Sahara torefund some Rs 17,400 crore to the public after evidence emerged of the deposits beingunauthorised and since being diverted to undeclared uses.As it began hearing the appeal, the Supreme Court was told by the counsel for SEBI, that Sahara hadfloated a newly minted financial instrument
 –
which it called the optional fully convertible debenture(OFCD)
 –
through two group companies that did not have adequate capital to service liabilitiesincurred. On January 20, the Supreme Court directed the Sahara group to explain within three weeks
 
how it intended to ensure the security of the funds mobilised. Two options were given: to eitherfurnish a bank guarantee for the sum involved, or set aside a sufficient quantum of otherwiseunencumbered assets. Evidently, the Sahara group chose the latter option and set out a list of itsassets together with their valuations in a communication to SEBI, which would in the normal course,have found its way to the Supreme Court registry, to be placed before the bench hearing the case.Sahara felt aggrieved when some details of this supposedly privileged communication werebroadcast by a news channel. Petitioned for redress, the Supreme Court sternly reprimanded SEBIfor its breach of propriety without really seeking the identity of the offending official. It then wenton
 –
without a clear warrant
 –
to seek a written complaint which it intended to use as basis forevolving norms on media reporting of matters under judicial consideration.From a public interest point of view, the reaction of the Supreme Court was strange and mystifying.Considered in its bare essentials, the Sahara-SEBI matter was one rife with several asymmetries. Onone side was a regulator distracted by a multitude of cases in an environment of extreme marketvolatility and lax standards of corporate accountability. On the other was a corporate entity with alarge advertising budget and
ample recourse to other forms of “hidden persuasion”: such as a long
-term sponsorship deal for the Indian cricket team. At stake were the savings of an estimated 24million investors who had
, on the basis of media reports and the efforts of Sahara’s sales force,
chosen to put funds into a savings instrument of uncertain provenance.When the media narrative is itself, in ever increasing part, constructed under the stimulus of theadvertising outlays provided by the corporate sector
 –
and by the undeniable allure of cricket as anenvironment within which to frame the most lucrative advertisements
 –
there is reason to believethat it may not afford sufficient protection to investor interests. The larger context is of a volatilemarket where fortunes are made and unmade in days and savings multiplied or wiped out. Andwithin this context, the principal sponsor of Indian cricket had also introduced a financial instrumentof rather befuddling complexity, and insisted that it was
outside SEBI’s jurisdiction in
not being a
“security” in
any defined sense. The only redress available in the circumstances was a slow-moving judicial process which could ultimately be relied on to do the right thing, but could not secureagainst potential damage to investor interests in the interim.Clearly, every glimmer of light let into the obscure world of high finance would serve a purpose inraising public awareness. The putative damage that the Sahara cause suffers in the judicial forum isto be offset against the public interest served. Unsurprisingly, while eager to seek restitution for hisclient, the senior counsel representing Sahara, Fali S. Nariman proved amply sceptical of the judicialambition to leverage his specific and purely contingent complaint into an overarching set of rulesgoverning the rights of the press. The argument was very simple: press freedom was a guaranteeunder the fundamental rights and any abridgment proposed in the principle would involve a conflict
with the “basic structure” of the constitution. Enacting a specific law for the press moreover, w
asnot within the jurisdiction of the Supreme Court. To the argument from the bench that the SupremeCourt was not embarking upon the path of legislation, but merely laying out a comprehensive set of rules, the riposte was very clear: rules involving punitive sanctions against the press would beequivalent to laws, which were beyond the powers of the Supreme Court to lay down.By this time, a Supreme Court bench headed by the Chief Justice of India, S.H. Kapadia, had swept upall complaints received about media practice over recent, remembered history and assembled them
 
into a common docket. In August 2011, senior counsel Harish Salve had protested before theSupreme Court about reports appearing over two successive days, which grossly misrepresented hisarguments in a matter under active judicial consideration. Appearing for Vodafone in a matterinvolving potential tax liability after its takeover of the Indian assets of another global telecomplayer, Hutchison Whampoa, Salve argued that his client had done no more than prudent tax
planning or “avoidance”. This had been rendered in reports attributed to the news agency, the Press
Trust of India (PTI)
, as “tax evasion”.
 The agency in question responded to the judicial stricture by issuing a retraction and an apology.Informally, the PTI management also sent word that the reporter who had bungled his rendering of the fundamentals of taxation, had been taken off the Supreme Court beat.Another matter that the Supreme Court chose to resurrect involved senior cou
nsel K.K. Venugopal’s
complaint to the bench in January 2010, that his arguments on behalf of a senior bureaucrat whoseappointment as Chief Vigilance Commissioner was under judicial review, had been characterised as
“absurd” by the Times Now channel
. The Supreme Court had asked for a written complaint whichwas reportedly not submitted following an apology from the news channel.In resuming its consideration of these seemingly settled matters, the Supreme Court has clearlysignalled that
ex post 
remedies
 –
apology, retraction and administrative correction by impugnedmedia organisations
 –
are of little use when media freedom becomes a potential hazard to theadministration of justice. What is required, in the perception of the highest judicial bench, is a set of rules that would impose prior conditions on modes of media reporting.In part because of the expansive scope of the agenda the Supreme Court had taken on, its hearingsstepped very rapidly beyond the narrow confines of the grievances of senior lawyers and wealthycorporate litigants. Another family of cases was drawn into the orbit, related explicitly to the rightsof individuals facing criminal trials. These included media coverage of the Aarushi Talwar doublemurder of May 2008, which was seen to have prejudged the guilt of the parents of a murdered child.Also brought within the hearings was a petition moved against the weekly newsmagazine
IndiaToday 
, for publishing a purported interview with one of the accused in the string of urban terroriststrikes of 2008. The person concerned
 –
who fought the recent municipal elections in Delhi from jail-- had been picked up by the police after the
September 2008 “
encounter
at Batla House in Delhi, inwhich two others from his
putative “terrorist cell”
were eliminated.
India Today 
’s story, which
appeared at a time when the arrested person was being denied family access and legal counsel, wasseen to be doctored in accordance with the
diktat 
of the police force and to seriously undermine hischance of a fair trial.The logic of the judicial quest for a media domain free of error, impelled a further expansion of thehearings, into the consideration
of a civil society organisation’s petition seeking restraints on the
telecast of content with explicit images of sex and violence. Having assembled this unwieldy docket,the Supreme Court was told by a galaxy of senior lawyers that it was engaged in a futile quest. ShantiBhushan suggested that the most constructive course for the Chief Justice would be to dissolve thebench, as a predecessor, A.N. Ray, had done when his effort to write the doctrine of the
“basicstructure” out of the constitutional scheme flounder
ed in 1975. Other senior lawyers
 –
Anil Divanand Rajeev Dhavan
 –
were emphatic in underlining the lack of a constitutional mandate for the

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