The challenge to media
IN its most authoritative judicial formulation, the right to information is derived from Article 19 of the Indian Constitution, which safeguards a number of democratic entitlements, including free speech and expression, and the right to practise any profession or carry out any trade. The right to information is no part of the constitutional scheme, but India’s Supreme Court has, perhaps beginning with the case of Bennett Coleman and Co versus the Union of India in 1973, read it as an integral element of the purpose of Article 19. As the majority opinion then put it, ‘freedom of speech and expression includes within its compass the right of all citizens to read and be informed.’ The 1981 judgment in Manubhai D. Shah versus Life Insurance Corporation, reaffirmed the point: ‘The basic purpose of freedom of speech and expression is that all members should be able to form their beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know.’
Many of the judicial formulations on the right to information have emanated from litigation concerning the media. But the scope of the right goes far beyond mere concern for the integrity of the media. In its practical dimension, especially in the construction placed upon it by the campaign that has grown around the issue, the right to information has been interpreted as the essential undergirding for all other fundamental rights. Far from being a privilege to be arithmetically added on to a host of others, the right to information is construed as the means through which the citizen and the wider community can make fundamental rights a reality, rather than a distant assurance that the empowered institutions of governance have little interest or ability in making a part of every citizen’s life.
Media freedom and the public right to free speech are co-extensive in Indian jurisprudence. Commercial media institutions and the private individual derive identical rights from a single article of the constitution. But since the right to information is a counterpart right to free speech, the media’s freedom of expression is in part the fulfilment of the public right to information. From here it would be a short transition to a legal doctrine that media freedom is justified – in whole or in part – by the public function it performs of informing citizens and the wider community about their social, political and economic environment.
There is though no perfect symmetry between the public and the media when it comes to the counterpart rights of free speech and information. Though judicial doctrine has anchored it deeply within the imperatives of public interest, media freedom is also in part derived from the right to engage in commerce, another guarantee held out by Article 19. The media – referred to here and elsewhere in this article in the singular – performs its role of public information and education only in that zone where free speech intersects with the commercial imperative of profit.
Framing the question in this fashion prepares the ground for exploring how far really the neat congruence between media freedom and the right to information runs. It enables an examination of the dichotomy inherent in contemporary discussions of the issue, between information as a basic human right and information as a commodity.
The media in India derives its rights from the constitution, but does not enjoy a distinct status within its framework. This is unlike the situation in the U.S., where the first amendment specifically enjoins on the legislature that it ‘shall make no law… abridging the freedom of speech, or of the press.’ The Indian Constitution in comparison, lays down a general proscription of any law that abridges the fundamental rights, but provides no special protection to the media as an institution. The rights of the media are identical and symmetric in their scope with those enjoyed by any individual citizen or institution. But a brief excursus into the U.S. constitutional scheme is useful, if only for the contrasts it offers with the situation in India.
Of key interest here is an unresolved tension that the first amendment in the U.S. Constitution has engendered over the zone where media freedom overlaps with the public right to free speech. Does media freedom constitute a redundancy over the guarantee of free speech, or was the clause on the freedom of the press put into the first amendment with a specific purpose? Do the two work in all circumstances coextensively? Or is there a possibility of a conflict between the two?
Case law on this issue is yet to develop in any satisfactory manner. The prevailing judicial orthodoxy is that in a perceived conflict between speech and media freedoms, the latter would prevail. The U.S. Supreme Court has, for instance, ruled out any legislation that would seek to ensure a public right of access to media space or time, or to institute the public right of reply on issues of concern. Both public access and the right to reply, it has held, involved an abridgment of constitutional liberties, in the sense that they subjected media institutions to a measure of legislative coercion.
It has been credibly argued in favour of the rights of access and reply that they are essential to making the media truly free and transparent. Some concessions to these sentiments could perhaps be found in the numerous judicial opinions that have been authored on the issues. But finally, the strict construction placed on the first amendment has prevailed, in the sense that the U.S. judiciary has ensured privileges for the media that have been denied the public.
This asymmetric interpretation of the free speech clause has been justified on several grounds. For one, the media, it is argued, is expected to function as a bulwark of personal liberty and the security of the nation state. The media in this construction is strictly, to use a rather worn-out phrase, ‘the fourth estate’. Understandably, the origins of the phrase have been forgotten since they lie in pre-revolutionary France, and refer to the power that propagandists for the emerging bourgeoisie then exercised through the growing institution of the press. In contemporary usage, quite divorced from the circumstances of its origin, the term suggests that the media is part of the process of governance alongside the executive, judiciary and legislature. The media is an embodied process of scrutiny of the other institutions of governance, meriting a special status and protection because of the vital function it performs.
Right to information legislation as it has evolved in India – and this is probably reflective of a global pattern – works at the interface between the private citizen (or the wider community) and the institutions of the state. It protects specific individual and community rights of access to data of public interest and enjoins certain norms of transparency on the state. Nowhere does this family of laws bring the media into the equation. Implicitly, the laws argue that the special privileges granted to the media would not impinge on ordinary freedoms of expression of the individual.
The argument here falls back on the doctrine of self-interest famously enunciated by Adam Smith: ‘It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.’ A liberal polity in short, has no need for regulations on access and the right to reply, since competition between media houses in the marketplace for information and ideas would adequately safeguard the public interest. The media is not under any compulsion to justify the privileges it enjoys on grounds of serving a public function. By merely being attentive to the profit imperative, competing media organisations would ensure that the public interest is served. No individual with anything worthwhile to say, will be denied an appropriate vehicle for his views. Denial by one media organisation will not act as a deterrent to the articulation of any viewpoint that has social importance.
This is a happy scenario, except for a minor quibble: the media derives its profits not from delivering information of value to an audience, but from delivering an audience of value to the corporate advertiser. The media arena is not a competitive marketplace where information and ideas are allowed a free run so that the best among them rise to the surface. Rather, it is a carefully controlled environment to ensure the most favourable circumstances for advertisers to sell their wares to carefully screened and selected audiences.
It is instinctively clear that the boom in the electronic media over the last decade has been underwritten entirely by advertisers. The audience that laps up the fare offered, pay very little for their menu of choices. The same cannot be said though for the vast and growing readership that the Indian newspaper industry enjoys. There is very little that is transparent about the Indian media, though it flourishes on that virtue and makes a point of purpose in enjoining it as a virtue on every other institution. What, for instance, is known in the public domain about the revenue earnings of the country’s main media organisations? What is known about the relative degree of dependence on advertising and circulation revenue? How dependent are they, in other words, on the audience’s need for information rather than on its demographic profile and purchasing power?
A prominent daily newspaper with multiple editions observed a significant anniversary recently and in its commemorative editorial, put on record the revelation that 85 per cent of its revenues came from advertisements. The newspaper in question is, of course, among the more successful in a commercial sense, and its revenue stream is not representative of the industry pattern. But as a broad generalisation, it could be said that readership subscriptions account for the lesser stream of revenues for the Indian newspaper industry. A credible industry-wide average is that 60 per cent of newspaper revenues today come from advertisements.
What determines the deployment of ad expenses by major corporate entities? The size and demographics of the audience are of obvious importance. The two factors are often collapsed into one another to constitute the concept of ‘audience quality’, which in short, is a measure of the purchasing power that the audience may dispose of. English language newspapers in India, according to a nationwide readership survey in 2002, had no more than 20 million readers – less than four per cent of the total newspaper audience in the country. But they were the most profitable newspaper enterprises merely because they reached the audience that had the buying power and could offer best returns on corporate advertisement outlays.
Periodic squabbles are a feature of life within this privileged segment of the newspaper industry. In December 2003, for instance, Delhi’s two leading papers, armed with the findings of two rival readership surveys, were strutting their stuff for the advertisers. At issue was the size of the audience that each paper reached. Since figures of print-run and circulation – based typically on an audit of newsprint consumption – could easily be inflated, advertisers normally rely on carefully designed market surveys to establish which media outlets offer them the best exposure to audiences of interest. Two organisations have sprung up with their own readership surveys, which purport to offer the most authoritative guidance for advertisers. The problem with the two though, is that they both seem rather susceptible to the commercial interests of the newspapers they are supposed to maintain an objective distance from.
In the 2003 survey, for instance, the two organisations arrived at diametrically opposite findings: the ranking arrived at by one was the mirror image of that offered by the other. This rather schizophrenic understanding of the newspaper market was no novelty. In 2000, the two surveys had agreed on the size of the audiences reached by the two leading newspapers in the Hindi language. The figures were different by an order of magnitude – 10 million and five million – but the two surveys managed between them to award the honour of first rank to different newspapers.
It clearly is the case that neither the media nor the agencies that purport to guide the decisions of the advertiser – nor for that matter the advertising industry – is particularly transparent in its functioning. Does the media then hold up a mirror to society, fearlessly exposing all that is wrong and extolling all that is right? Or is it a distorting prism that filters out all that is unpleasant, so that its audience is not confronted with any serious dissonance? Is its purpose to bring accurate and reliable information to its audience, so that the individual is able to develop a notion of his place in society and formulate the terms of his engagement with the political environment? Or is its purpose the expansion of the comfort zone for corporate advertisers, if necessary by rendering its content hospitable for their sales pitch?
In a 2000 analysis of media practices in the U.S., the Columbia Journalism Review observed that, from being an unstated premise, it had become explicit commercial policy for major corporate entities to demand that their advertisements be placed in a favourable ‘editorial context’. An editorial context that spoke of ethnic strife, or mass deprivation and poverty, or the daily subsistence struggles of people on the margins of society, could not possibly be a favourable ambience for promoting the charms of the new culture of consumerism. Information content in short, needed to be tailored to the requirements of the advertisers, so that the audience would experience no serious cognitive or emotional dissonance in imbibing it. The shift in the content of the Indian media over the last decade, from a focus on issues of general concern, to more sectional and elitist interests – lifestyle, fashion, celebrity shenanigans, crime and business – seems to suggest that ‘editorial context’ of advertising has emerged as an implicit, if not yet explicitly declared, part of media policy here.
Advertising slogans seldom approach any level of authenticity, but perhaps the newspaper that sought to sell itself with the slogan that it ‘brings the world’ to its audience, had a point after all. The press (and the media as a whole) not merely brings the world to an audience, it constitutes an entire world for it. An individual’s choice of his primary sources of information is partly about the kind of realities he would like to engage with and reflects a judgment about his own place in society. No individual sees himself in unidimensional terms, but the character of the media today tends increasingly to construct an image of the citizen primarily as a consumer. And in contrast to the elite media, which has managed to build and burnish an image that it serves a cosmopolitan audience that is familiar and comfortable with global lifestyles, the regional press tends increasingly to cultivate localised concerns, reinforcing pernicious stereotypes about the insularity of rural life. These conditions are a structural feature of the media industry today, derived from the nature of advertising support that its various segments attract.
Total advertising expenditure in India has grown rapidly over the decade and a half since 1991, which could with some accuracy be described as the period of globalisation. After a ten-fold increase, total ad-spend, as it is called in the professional jargon, is estimated to be in the region of Rs 12,000 crore currently. This magnitude of increase perhaps outstrips the growth in the audience for the mass media in this period. But a little calculation would reveal how seriously skewed the deployment of this expenditure within different media outlets is.
Of the total ad-spend, an estimated 45 to 50 per cent is deployed in the print media. If the benchmark figure of 85 per cent is used as the proportion of total revenue that comes from advertisements for a successful media organisation, then it is clear that close to half the total ad-spend in the print media should be going to the top four or five organisations publishing in the English language. This would leave a rather paltry sum for the rest of the print media, pointing to a serious crisis of profitability in all but a narrow segment of the industry.
The response to this crisis of profitability has been for the affected segment to cling ever more closely to local interests and concerns. Announcements of local transactions in property and other assets, matrimonial events, births and deaths – these have become the main sustenance of media outlets excluded from the advertising boom of corporate globalisation. News content in consequence tends to be oriented around the interests of those who dispose of this purchasing power at the local level. The Andhra Pradesh farmer who took out a full page advertisement to announce the death of a prize bull may not be a typical news consumer, but he does suggest the general drift of the information content of the regional language press in India.
The growth of the media in India – as elsewhere – is also connected with the entry of new sections of society into the marketplace for information. The bridging of the literacy deficit, particularly in the northern region, has much to do with this process, as also the growing intensity of political competition witnessed since the 1990s. Media content influences – and is in turn moulded by – the manner in which social identities are fixed and defined as the basis for political interventions. In this sense, the transformation of the content and tone of the Hindi language press over the decade-and-a-half of globalisation is noteworthy.
In 1991, the four most widely circulated Hindi newspapers earned the well deserved censure of the Press Council of India for their inflammatory – and in most instances, fabricated – coverage of the communal tensions arising from the Babri Masjid dispute. But with the communal carnage in Gujarat in 2002, these same newspapers were restrained, sober, elaborately attentive to the principles of fairness, and heavily critical of the institutions of governance that had failed to ensure security for the religious minorities. The media undoubtedly had reinvented itself over the preceding decade. But that observation would be little short of trite if it did not take into account the changing self-perceptions of the media audience. A constituency that once saw its identity in relatively narrow terms, had begun – as a consequence of political engagement through the decade – to see the essence of politics as engagement with other social groups and communities on terms of parity, within a common civic space.
This suggests that part of the salvation could lie in those for whom the right to information is a matter of little less urgency than the right to life, becoming consumers of information. The prescription of course, has a ‘let them eat cake’ quality of cynical hauteur about it, since the poor simply would not be poor if they could be consumers of information. This does not quite mean that they are politically inarticulate – indeed, a feature of the Indian polity through the 1990s has been the arrival of the poor on the electoral scene as a force that cannot quite be taken for granted in the manner of old. Even if it failed to anticipate the process, the media cannot avoid reckoning with its consequences. The media may not lead public opinion in this respect, but it could do itself a favour by casting itself as a follower.
The choice before the media now is to determine whether it wants to confront this assertion of rights by the poor by taking to the ramparts of inherited privilege, or accept that these social changes are by their very nature, irreversible. If the media has copped out on the principal challenge of leading public opinion, then it today has the option of following. Beyond that it seems, lies the deeper existential choice between social relevance and irrelevance.