Professor Madabhushi Sridhar

Coordinator, NALSAR Proximate Education &Center for Media Law Studies, NALSAR University of Law, Hyderabad

Media’s relationship with all important three Estates – Judiciary, Executive, Legislature, and the civil society, which is now regarded as fifth Estate (as Media is regarded as the fourth) is dynamic. Between media and society, the impact on and reaction to social happenings are mutual. The media reflects greed of globalization, needs of private bodies under privatization and hold of rich in the name of liberalization. Besides, falling honestly levels of society could be seen in the character, content and ownership of the media institutions.

Part I. Changing Ownership Patterns

Growing global businessization has seriously affected the ownership patterns of the media organizations. More than contents, the ownership of the media is under influence of the greed. Today media is business, politics is business, and people are considered a market. Political parties throw money, purchase publicity, spend money to distribute false opinions and secure the votes of the people. After they get into the power they mint money through corrupt means, which would be unaccounted capital investment for next elections. Politician’s bribe money or maphia’s lumpen money is forming the investment for media. Very rarely you will find an independent citizen-owned-newspapers or media channels today.

Post-independence Media was with the people. Editors felt moral and legal obligation towards the readers more than their masters. Editor is an endangered species now, as chairmen or managing directors of the company decide the content, banner story, and priority too. Earlier the Press Commission of India, like that of UK, recommended de-linking the press from other industry to avoid domination of the industrial interests. Recently the Broadcasting Regulation Bill, 2007 suggested limitations on cross-media-ownership[1] to avoid monopoly over both print and electronic media to prevent controls over minds of media.

Sometime back, there was heated debate on politically ‘committed press’ i.e., the news organs established by political parties, which was criticized as their own trumpets, killing objectivity principle and committing breach of duty to people.  There are just a couple of newspapers in AP which sincerely propagate ideals of their political parties[2].

It is not the political parties but the chief ministers who are spending huge money of tax payers to glorify their rule through advertisements to media. Political parties are not coming up with their media voices but the leaders with huge wealth gained through politics and business are storming into media field. Today it is impossible for an independent individual or small group of people to start a news channel or newspaper, for want of huge finances and political support. When compared with newspapers owned by business groups, industrialists, MPs, these newspapers appear better in content. There is a paradigm shift in designs if political leaders who are establishing media as their own showrooms and shops where their personal interests are showcased, political interests are projected as better acceptable market goods and political prospects are boosted while their business interests are protected.

Earlier it was said, ‘freedom of press is not for machines or proprietors, and it is for the people’. Perhaps none today would dare to doubt the statement this freedom is confined to proprietors without extending beyond their political groups. Electronic media today is advancing with ugly manifestation of vested interests as they shop the irrational precious stones, tantras and yantras making them to blindly believe that it would transform the life and bring in fortunes. They sell these things over channels exclusively for Bhakthi. And in the name of women channels too they merchandise women and commodify her body to sell cinema and cosmetics.  Business interest of big corporate which now includes a political party also is the big social phenomenon that is impacting the content of the media today.

Can these media-shops be considered voices of the people? Objectivity of media was once a great virtue talked about media, is a matter of history now. This new vested political interest based on business is the major social factor which demolished the objective role of the media today.  With this kind of new ownership character, the media’s impartiality is impossibility and objectivity is casualty.

Media as shopping mal: Media today is reduced to the level of a mal or a cluster of shops, where they sell every thing whether it can be sold or not. The latest thing that is added to list of saleable is ‘news’ itself. They are now selling falsity, that too; during elections overpowering the voters to take influenced decision instead of voluntary and informed decision.

Right of the sovereign people: The sovereign people have right to know, and all constitution office holders are public servants who are supposed to report to the sovereign. Constitution guaranteed freedom of speech and expression under Article 19(1)(a), but whose right is this? It is not exclusive right of the media representatives? This guarantee of fundamental right is definitely for the people. If a journalist or electronic media owner forgets that this right is originally that of a citizen, he would be arrogating undue power to himself. As citizen, a journalist can exercise his right to express. But as an employee of a media shop, a journalist today is either a sales-executive or cheer leader (when he entertains with cricket, crime with sensation, sex in the name of cinema, with a vested interest to keep the people away from critical issues of democracy). Newspapers which sell the coverage-packages[3] and write falsity are not just selling the news but they are propagating the falsity for monitory consideration.  Media never realizes that it exercises not its own right but that of people to express their voice and that it is the duty of the media to be voice of people. Ideally, they have to perform this duty towards people in general. The sovereign people have right to know and govern themselves with informed decisions. So-called privileges and rights of journalists are in fact duties to be discharged in democracy.

Company rule: When East India Company administered India, it was not British rule, but worse than that, and now we allow private limited companies, corporations to run the media. Companies growing in capital and influence over political leaders are increasing their lobbying power with their new media appendages.  It is difficult to expect them to behave differently as they naturally reflect the same characteristics with all its degraded greedy standards. Dishonesty and misrepresentation are no exceptions.  Easy and ill-gotten money is forming the strong financial foundation of media organizations solely for business and political purposes. This political ambition of individuals and that the political parties are heavily depending on individuals to survive in election politics has brought dynamic changes in the ownership or management character of media. Thus the media is chip of the same bloc, i.e., society which suffers from usual problems of degeneration. Degenerated society is reflected in degenerated media. They institutionalized commercial-electoral-false-propaganda. Contemporary paid-news phenomenon is manifestation of unethical and self centered media-shops and politicians.

Challenges from society: The legislators’ atrocious behavior[4], irregularities and land grabbing allegations coming in the way of elevation of a judge to the bench of the Supreme Court[5], revelation of ten thousand crore rupees worth mining irregularities in contemporary times[6] contributed by negligent and irresponsible executive functioning are the challenges posed by democratic civil society which made the media to reflect them with all seriousness. All three Constitutional estates, as reflected in the above referred incidents, are under scrutiny of the people in unprecedented manner, and media had no option but to report. If citizens are empowered, society is responsive and spontaneously reacting to the injustice they make real ‘news’ which is not dependent on the manipulative tactics of any lobby, including the media.

If we look to other contemporary social events, it appears that it is inevitable for media to respond to the social limitations, besides their blind imitation of the competitors. This paper is not intended to ignore the achievements of media and not to focus only on its negative functioning but to analyze how it followed the leading citizens and associations questioning the authorities at apex level. None could afford to ignore media, which sometimes lead by example with investigation using latest technology and creative presentation of socially relevant, analytical and useful programs to enlighten and empower the people. At the same time media cannot afford to ignore emerging civil society and empowered individual.

Part II. Social criticism of Justice Issues

That the CPIO of Supreme Court is fighting through a petition in Supreme Court against the Central Information Commissioner, presents a peculiar complexity. One state body (SC) is fighting another state body (CIC) before its own body (Supreme Court). An average Indian cannot understand why Supreme Court is fighting before its own body and wonders to know that all this is happening to deny that average man the ‘information’[7]. Apex court wanted Right to Information Act amended to exclude the Supreme Court[8], as it felt that its supreme independence was under challenge from an access-right enforcement body. Paradox is that when Supreme Court was struggling tooth and nail to keep the information of assets of judges under cover, an elevation to Supreme Court was under an attack on grounds of irregular amassing of assets[9]. Each bit of information about allegations, Dharnas, surveys, inspections, threats to survey officials, collector’s report to CJI, CJI summoning the tainted judge; each and every minute aspect of the judge’s assets case was meticulously discussed and debated, not because media wanted it, but advocates associations had dug that scandal out[10]. The Union Government tried to save the face with a legislative bill more to cover than to disclose the assets of judges, which, of course failed. The Union Law Minister was in headlines as he was frequently talking about bringing accountability of judges and reforming the process of judges’ appointment. All those reforms are yet to occur. But the result is achieved. An appointment is stalled, (perhaps, for the first time in India[11]), after every thing was transparently discussed. All this happened without a change of single word in Constitution. The sublime impact of the Dinakaran’s lands issue could be seen as the reason behind sudden change of mind of apex judiciary directing web-disclosure of assets of all the judges. First, the society achieved transparency and that stalled a higher judicial appointment. What could not be achieved all these years was achieved by this ‘transparency’ which was initiated by civil society[12] and followed up by the media, not vice versa. Dinakaran’s episode brought two things into center stage, one- judge’s appointment process should be transparent, two – assets of judges should be thoroughly discussed in public by advocates and seekers of justice. The Advocates of Tamilnadu came forward with a detailed memorandum against amassing of wealth of lands and money by Dinakaran[13]. This is the best example to say that a dynamic civil society alone could build strong public opinion which surely has significant effect on reforming the situation than amending letter of law. Civil society need to understand its own power as manifested in this episode.

Is it contempt?

Besides bringing transparency and accountability Dinakaran episode also proved another significant dimension. Under our general legal regime every complaint, media report and article with critical remark could face troubles as ‘scandalous’ or to be within the contours of definition of contempt. Holding some comment as scandalous is another uncanalised discretionary power again left in the hands of judiciary. Strangely our contempt law says comments ‘tend’ to be scandalous also could be punished for contempt of court. While expression ‘scandalous’ itself is highly opinionated, ‘tendency’ is further more problematic as it would go against commentator. Fortunately none of the allegations and comments against Dinakaran attracted the Contempt Law actions from any court, so far.

For media the most dreaded problem is contempt action from judiciary, because this power could straight away land the media person in jail. In fact, discussing the performance of judges, quality of justice and problems of administration of justice is required for democratic purposes. If that is considered over centuries as live-need against Executive and Legislature, why not against the other Estate? Such a need for discussion is rooted in the foundation of freedom of expression guaranteed by any democratic constitution. Though the Contempt of Court Act 1971 says the comments or allegations could be punished only when they interfere with administration of justice, jailing of journalists for remarks totally depend on the sensitivity of judges. Whether contempt is emotional or not, the penal action in its name is surely emotional.

Appointment of judges to higher judiciary is never discussed in public till recently. Though there was no significant change in law of contempt and responses to media criticism, we find criticism, discussion and analysis in the media columns and news channels about the problems, allegations, consequences and issues of honesty of judiciary in public. It is a great achievement of civil society that forced the media to toe the line and just to follow up what is happening on a very significant constitutional position at apex level. If the bar associations and advocate unions have not brought out the issue of allegations of irregularities against judicial elevation, fear of contempt consequences might have prevented media from making any comments, which they are making now.  The civil society should thank Dinakaran for bringing these three important changes in analyzing performance of judiciary and discussing the appointments to higher courts in India for the first time. Of course, the Constitution of India as on today, has no answer to the question of common man: How one could continue as Chief Justice of a state when he could not be elevated to apex court? If media does not raise this question, the civil society should.

Other happenings such as interrogation of 23 judicial officers in PF scam[14], withdrawal of judges from hearing rich dispute between Reliance brothers[15], challenge to names referred to collegium for judges position[16], clean chit for one justice in cash-at-door scam[17] are some more contemporary social events which frequently commented upon in the mass media.

News readers also find today a critical analysis of delay in disposal of cases, the negative comments of world trade bodies and multinationals about the justice system in this country. Need for alternatives are gaining strength day by day. Every estate today had to stand and take note of the problem of docket explosion, corruption, absence of accountability and impossibility of regulation.

Part III Legislative Politics

Every contempt power shields irregularities and threatens the criticism; the contempt of legislature is no different. Controversy about codification of parliamentary privileges is no more an issue today. Parliamentarians have already decided not to change the law which they fear would limit their privileges. The political parties unhesitatingly send criminals to legislature and such representatives enjoy immunity from criminal liability or at least five year holiday for prosecutions, and ample authority to continue the crimes. It is sadly reflected in in-house assaults, grievous injuries, slaps and grabbing of votes, selling the souls for raising questions during question hour, or helping women to cross borders as their wives to jump immigration norms. All those involved in these crimes, in fact, committed the crime of breach of privileges or contempt of house. All those shameful activities were reported, reflected, debated, denounced and hated by people and media. The legislature’s power to punish the breach of privileges was neither reduced nor removed. They have to use that power against their own members. Both media’ stings and live telecast technology helped exposing the crimes within the Houses. Beating a legislator in the house on language issue and conviction of legislator in AP Assembly for cheating, forgery and criminal conspiracy to make a false claim of bills are sad reflections of legislative functioning in this country. This case passed through the legislature ethics committee which recommended immunity, the executive, which passed a GO withdrawing prosecution and reached High Court which held GO as unlawful, the case came back to basic trial in which the crime of false claim was proved by documentary evidence. What is to be noted is that it was the relentless fight of the rival politician which ended in sentencing.

One Professor and an NGO brought the most significant change in election law inviting judicial dicta to make it mandatory that contesting candidate to disclose his or her financial, educational and criminal background. Law is not strong enough to disqualify and prevent such ‘gentle’ men from contesting, but it is the right of the people to know the criminality of candidate (this was the principle upheld by Supreme Court). It is this single dynamic question of a public spirited personality and organization that made the right of the people to know the criminal history of candidates a reality. It helped the civil society and media to continuously expose political parties’ shameless attitude in fielding criminals in every election. Because of this principled support which later incorporated into Representation of People Act, NGOs, Election Watch organizations and the media could count the criminals in legislative houses and criminal charges against the elected candidates and report the quantum of assets.

Part III: Corrupt Executive

Whether the media or any other agency is really exposing corruption of the executive? To investigate and expose corruption, can the people depend on media or look for any other agency? Except those small fish that are caught on camera, the whales of corruption are thriving as they liberally donate advertisements to media. Corporate education crimes and suicides resulting from mounting rank-pressure, entry of drugs into educational institution due to inefficient and loose managements represent the dishonesty of media too. The medical negligence crimes in corporate hospitals are perfectly hidden, while public schools and government hospitals are becoming space fillers for news media. Strangely, the political parties more than media, are exposing the corruption in the government, while media simply follows up as per their vested interests.

The space allocation, topic selection for editorial and coverage of events happen not according to news priority, but as per the owners’ agenda. Instead of leading or showing intellectual path, it is unfortunate that media selects one or two events and bombard the viewers with repeated shows for days and weeks together, leaving out all other news events for newspapers to report. Fake encounters killing unarmed persons and misuse of high power are reported only when they are subject matters of litigations before courts of law or when Human Rights Commissions take note of. Most of the initiative of media is now being grabbed by either opposing political parties, NGOs, citizen journalists or public interest lawyers telling details to media through press conferences. These are the components of the Fourth Estate, the enlightened citizenry. Except citizen journalism facilitated by cyber technology, middle class individual has no voice in media.

When corrupt politicians themselves are owners of some media, none can expect any exposure of political corruption. The scope of investigating scandals of politicians though information and technology is now available.  Even if there are any critical remarks in media it is confined to sustain circulation or TRP. Their priority is that their leader should not be adversely affected[18]. Readers also cannot expect newspapers in AP to write any thing against its MPs, MDs, their caste or their political groups. Any other important social issues and contemporary events get secondary priority. The newspapers who oppose the ruling political leadership suffer the hostile state machinery and threats all through. Unless they seek patronage of a political party or social class or corporate giant, it is difficult to survive the onslaught of the state power. Degenerated politics continue to be the most important influencing factor on management and functioning of media.

If political parties sustain news media with huge financial foundations, the corporate giants in other critical areas like education and public health command columns and channels. The investigations by enthusiastic media stop at threshold of financial interests. Lobbying and campaigning for votes and notes is the main job of news media today and incidentally they report news.  Every program is carefully designed to protect and project their interests in the garb of news reporting. In the process they catch hold of a few bakras[19] such as bribe-taking public servants at lower level or people caught on camera with compromising positions and suicides by frustrated women, youth, unemployed or farmers etc.

None can vouch safe to say that politics remained a profession today. Politics turning into business, business interests are now real guiding factors of almost every social activity including media shops. It is business, international business with roots in local votes. Business cycle of politics is – make huge money, chose political party, fund the mind-boggling campaign, purchase the opinion, become political executive and make more money to fight next election. Media is one of the operational wings for achieving this objective.  The powerful corporate media is making the people to think which they want them to think about. People have to debate on the family dispute of Ambanis and other neo-rich sections over distribution of national mineral wealth such as oil or ore, as the state reduced itself into a mute spectator.

The Fifth Estate – dynamic civil society consisting of empowered citizens, united associations, honest NGOs, public spirited fighters for justice, writers, academicians, journalists with values, should watch affairs of every estate, including the fourth. Media should watch, and media should be watched. With cyber technology abundant around, every citizen has scope to expose. Saddam Hussein’s last moments before gallows were captured by a mobile holding small man and not by big media.  Fourth estate should take note that Fifth estate is watching it and competing with.

Part IV: Only hope: Civil Society – the Fifth Estate

Supreme Court was first[20] against giving protection to commercial speech because it runs for money, but later[21] recognized it as a part of the freedom guaranteed under Article 19(1)(a). Now it is impossible to distinguish which is commercial speech. From the priority to headline to photo to graphics to analysis every speech is for money. Is this speech the Constitution intended to protect under the freedom of expression?

When fourth estate is reflecting the business interests of the political and corporate sector, it is the civil society which is acclaimed as ‘fifth estate’ to play a dynamic role. Right to Information Act in 2005 and Right to Education in 2009 are the results of relentless agitations by enemies of corruption and activist friends of children. Because of these enactments media has new weapons and fuel to fire the irregularities, if they use it. However the citizens where ever used getting empowered not because of media. Today the technology of cyber space, weapon to secure information, means of reaching masses through web created citizen journalists who are more objective and honest disseminators of knowledge unlike business press and corporate TV who are driven by their investors interests and market needs. Web journalists are not trapped by TRP requirements and advertisement needs. Most of all, they do not sell news, they do not sell themselves. Email newsletters, blogs, search engines and websites give equally competitive news analysis, if not, better than their traditional counter parts. A boy of nine years could question film-star and producer Amirkhan on his website criticizing the Tare Zamin Per[22]. The boy asked: if that neglected school boy was not a painter what would have been his end? Should dyslexia affected student who is not a painter suffer for ever? Amirkhan had to take note of the point and write back with regrets. This space perhaps media might have not afforded to give either in columns or channels.

Especially when the TV channels and newspapers are going into the hands of politicians, it is cyber space journalism and citizen journalists who give a fitting reply. While the space of readers is shrinking in newspapers, the citizen blogs or websites have a provision for comments from viewers. Thus the right to reply has been realized at least on cyber-space.

With competing media fighting for space among readers and viewers, critical analysis of media organizations is available to the people. This is an emerging trend. Scrutinizing is not he media’s monopoly, as the media is under scrutiny. Several media watch web sites[23], media study centers and columns in print media or debate over the media is the good trend giving lot of space to the civil society to question the misdeeds of media. The empowered civil society and enlightened citizen need to use this space and check the corporate growth of these media shops.

FOR MORE READINGS OF Professor Madabhushi Sridhar

[2] Prajasakthi daily for CPM and Visaalandhra for CPI are the only two political party organs in AP, while Saakshi, Vaartha, Deccan Chronicle, Andhra Bhoomi are owned by Congress MPs, Eenadu owned by media tycoon Ramojirao, who also owns a film city and several other industries, Andhra Jyothi is owned by a group of companies led by a former reporter. Most of the other newspapers and media channels are owned by business groups or politicians.

[3] Prices vary with intensity of pro and anti campaign: Minimum price: for covering the campaign, Medium price for praising, High price for exaggerating the prospects, Highest price for writing negative stories against rival. Another wonder is that media did not mind taking highest price from two rivals in same constituency and publish two stories in the same paper, if not same page.

[4] MNS members attack Abu Azmi in Assembly on language of his oath, Rahi Gaikwad report from Mumbai, The Hindu, November 10, 2009

[5] Judges gheraoed, chaos in Karnataka High Court, Lawyers raise slogans against Chief Justice Dinakaran, The Hindu, November 10, 2009, Page 1, Issue of dropped elevation of Justice Dinakaran, Chief Justice of Karnataka, to Supreme Court,

[6] Irregularities in Obulapuram Mining Corporation, and agitation by opposition parties in Andhra Pradesh

[7] Supreme Court challenged the order of CIC directing revelation of assets of judges of higher courts.

[8] As recommended by Apex Court’s Annual Report on implementation of RTI Act, presented to CIC, New Delhi.

[9] The Hindu, September 27, 2009 wherein V.M. Raman, a resident of the village and social worker, told reporters that during 1988-89, when Mr. Dinakaran was an advocate, he had purchased 60 acres. Later, when he became a Judge of the Madras High Court, he bought some more land. Henri Tiphagne, executive director, People’s Watch; Ossie Fernandes of Human Rights Advocacy and Research Foundation; S. Natarajan of Rettaimalai Srinivasanar Peravai; and Fathima Bernard of the Tamil Nadu Women’s Forum participated.

[10] Statement of Justice DV Shylendrakumar or Karnataka High Court, saying that CJI could not represent entire judiciary on the issue of disclosure of assets

[11] It is not possible for an ordinary citizen like this author to know whether any appointment of judge to SC was stalled on ground of land grabbing. Earlier, Ram Jethmalani, Union Law Minister during NDA regime, in his book ‘Big men & small egos” raised the issue of amassing lands against the then Chief Justice of India, which had no consequence.

[12] Lawyersclubindia.com conducted poll to say 71 per cent were against elevation of Dinakaran to Supreme
Court, http://www.lawyersclubindia.com/poll/poll_comments.asp?poll_id=164

[13] http://www.outlookindia.com/article.aspx?262468 memorandum by RVaigai, Sriram Panchu and other Advocates of Tamilnadu. This was fourth memorandum to CBI.  Just a search of p d dinakaran on google gives us 12,400 sites giving details of information about the entire episode.

[14] PF scam: CBI completes interrogation of judges, Dhananjay Mahapatra, Times of India, November 13, 2009 p8.

[15] Judge withdraws from Reliance case, citing daughter’s partnership in advisory firm, J Venkatesan, New Delhi, The Hindu, November 5, 2009 page 1.

[16] Appointment of Judges: CJ to decide on hearing, Hyderabad, Times of India, November 5, 2009, Eenadu report November 5, 2009, p14

[17] Clean chit for Justice Nirmal Yadav, J Venkatesan, New Delhi, The Hindu, November 7, 2009

[18] The origin and avowed purpose of Saskshi established by YSR’s son is to oppose another media giant Eenadu and to promote YSR and thus readers see extremely opposing interpretations and allegations against each other in those newspapers. Latest example: Banner report in Eenadu, 16.11.2009)

[19] Hindi version of Scapegoats used in Telugu also

[20] In Hamdard Dawakhana case decided by Supreme Court

[21] Tata Press Yellow Pages case

[22] A popular feature film dealing with need for sensitivity towards students with disabilities like dyslexia

[23] www.thehoot.org , www.mediawatch.com, www.humanrightswatch.org , www.internews.org /open media, www.mediawatchwatch.org etc.

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