Sunday, December 18, 2011

Dear Readers' Editor

Dear Readers’ Editor,
Maybe you do not have jurisdiction over material published in Frontline magazine. And if nobody before me has made this point to you, let me be the first: your columns as Readers’ Editor in The Hindu are seriously off-key.
We expect a serious effort to address matters that the readership brings before you, but you seem intent on lecturing them on what is right and what is not.
However, that is a different matter and I will not detain you on that issue here.
My really serious difficulty with your editorial policy relates to the magazine Frontline, which is unique among Indian periodicals in having significant space devoted to international affairs. This is an important gesture of commitment, but I wish you would use some qualitative measures and some consistent political standards in allowing material through in this section.
International affairs should not be about equal opportunity junkets. Such as: I find in the most recent issue of Frontline that you have an article on the situation within Syria, which is very committed and serious. Even when it is defending a dynastic regime that represents nobody but itself and has been responsible for crushing the secular Palestinian movement for liberation in 1976, there is a certain seriousness there.
Unfortunately, it does not take great intelligence to find out that this article is written by somebody who is either totally foolish or completely paid off. If the author of that article had real conviction in writing what he did, he should have written equally critically about the next government that gave him an all-expenses paid junket.
I find though, that he is generous in his praise for the Emirs of Oil in the United Arab Emirates. Far be it from me to attribute motives, but for any informed reader, this rather bizarre conjunction of opinionated articles would be rather difficult to digest. And you should really not blame the reader for concluding that this is just about who pays the bills.
In other words, this is another variant of “paid news”.
Surely, we expect better from your esteemed publication.
With best regards,
Sincerely,

Monday, November 28, 2011

The Untold Story of the West and the Rest: Terrorism, War, and Unrequited Guilt

Review Article
Jason Burke, The 9/11 Wars, Allen Lane, London, 2011, pp xxii + 709, ISBN 978-1-84614-517-9.

The attacks on mainland USA on September 11, 2001, have like no other single event, moulded world politics through this first decade of what is called a millennium. 9/11 is how that event has come to be known in contemporary accounts, and the imagery has been so powerful that every subsequent act of terrorism has sought a rhyming description.

That imitative pattern is expressed in the desperate urge governments have had in signing up for the global cause led by a military superpower that has unleashed its awesome capacity for destruction, and shown little interest in what follows. 9/11 generated a discourse that has dominated virtually every international gathering over the last decade. Global conclaves only managed to shift their attention towards other subjects when slapped in the face by the economic meltdown beginning late-2008. The whole strategic equation has since changed, though few today seem willing to recognise the reality of a world where a single superpower’s writ no longer runs. Governments stricken by a fear of freedom are groping for a means of coping, in a world where older certainties seem suddenly to have dissipated.

In the years ahead, two political trajectories – the superpower led war on terrorism and the global upsurge against an iniquitous economic order – will intersect, though in ways that cannot be forecast. Global political and strategic equations have been in a state of flux over the decade since 9/11. Economics could soon become a determinant influence in an already complex process.

Jason Burke’s compendious and valuable volume, released at the ten-year anniversary of 9/11, bears witness to events that still remain in flux. A point of closure, if at all one can be found for events quite so complex, is impossible to foretell. “The wars that make up this most recent conflict span the globe geographically”, writes Burke in his introduction: “With no obvious starting point and no obvious end, with no sense of what might constitute victory or defeat, their chronological span is impossible to determine”.

As this book was released, the U.S. was determining how to end its military interventions in Iraq and Afghanistan -- two of the main theatres of the wars that followed 9/11. As 2011 winds to a close, the U.S. will be out of Iraq, by the commitment its government has made. Military compulsion has dictated this decision, compounded by the acute economic distress that an unsustainable debt burden has occasioned. A declaration of victory – and withdrawal - would also play well within the election cycle in the U.S., just as it enters an active phase early in 2012.

As the troops come home from Iraq, they will be joined by a small number – perhaps about 10,000 -- of U.S. servicemen deployed in Afghanistan. That would still leave a massive U.S. military deployment in Afghanistan, of which a third would pull out by the autumn of 2012, prior to a complete exit by the end of 2014.

Nothing is certain in the world bequeathed by 9/11. But this winding down of military action in countries far and distant, is in a longer historical view, an ironic postscript to the rhetoric with which the “global crusade” – in U.S. President George W. Bush’s characterisation – was kicked off in 2001. Three days after the trauma of 9/11, Bush invoked a divine right that he believed, was invested in the country he had by a judicial whim and an enormous fluke, been chosen to lead. That investiture from a transcendant source of authority left no room for mundane disputation. “Americans do not yet have the distance of history”, he said, but they were clear about their “responsibility to history”, which was to destroy “evil”. The U.S. had been forced into a conflict “on the timing and terms of others”. But once roused to war, the U.S. would ensure that the war would “end in a way and at an hour of (its) choosing”.

Bush’s successor today prepares his retreat from the main theatres of action in the 9/11 Wars without the slightest assurance that the civilisational mission is any closer to fulfilmment. And it is a spectacle on which Burke offers a verdict with an eloquent economy of words: “The West has certainly … avoided defeat”. But if the ten years since 9/11 have brought victory, “then America (sic, the U.S.) and the West more generally cannot afford very many more victories like it”.

It is in Burke’s account, an index of this ambiguous outcome, that the U.S. has managed to sustain its vast levels of military spending despite enormous economic strains. Those who engineered 9/11 may have worked in part with the aim of draining the U.S. economically and crippling its capacity to enforce its will. And yet the U.S., Burke concludes, has “been able (despite the debt issues it currently confronts) to pay for the grotesque strategic error of the war in Iraq … and a ten-year conflict in Afghanistan, all while financing a huge security industry at home in the midst of one of the gravest economic crises for decades”.

This assessment would be incomplete without specific note being made of the many perversities of U.S. economic policy through the decade of global warfare. War-time presidents are known to exhort their people towards greater sacrifices. Citizens of nations ostensibly engaged in a struggle over existential values, are known to bear any economic burden to fulfil their mandate. In a reversal of this commonsense, the Bush doctrine has summoned the U.S. to war against “evil”, but also to liberation from taxes, so that the bills for the global crusade are met through borrowing furiously from the rest of the world.

Just over a month before the invasion of Iraq, the U.S. Treasury formally notified Congress that the government had reached the limits of borrowing allowed under the law and was in danger of default on debt. The U.S. government, then hot and feverish for war, needed to borrow to merely service its national debt. Bush not merely went to war, but two months later decreed a sweeping set of tax concessions that plunged the U.S. deeper into hock.

Burke does not directly address this mystery, nor does he seek to probe too deeply into the “why” of the war against Iraq. He introduces his chapter on the headlong rush to invade a country that had no clear connection to 9/11, with a telling title: “Threats, Falsehoods and Dead Men”. But he sidesteps any serious engagement with the reasons why falsehoods were manufactured on a mass scale by the U.S. administration and its eager acolytes in the U.K. – and amplified by an acquiescent media – in the rush to war.

What Burke finally offers is a rather anodyne reading: that in the U.S. and “virtually every Western nation”, the
intelligence agencies were uneasily “aware of the importance of avoiding another grotesque failure such as that which had resulted in 9/11”. This induced a play-safe attitude and a disinclination to engage in a potentially “damaging row with political masters”. Without serious thought of longer term consequences, the intelligence agencies began on this account “to issue much more alarming analyses (than warranted) of the potential threat that (Iraq) posed”.

All these stratagems of the political leadership, which were taking the West down the road to disaster, may have been exposed, Burke says, except that the counter-narrative hardly gained a fair hearing. This could have been on account of a tendency to shut out facts that create a “cognitive dissonance” or perhaps, “deliberate mendacity”. Burke does not indicate exactly which of these would seem the more plausible on the balance of probabilities. He does provide some evidence to suggest that U.S. Secretary of State Colin Powell, in making his case for war before the U.N. Security Council in February 2003, may not have been absolutely mendacious in suggesting that top functionaries of the global Islamic network had visited Iraq.

A few other circumstances are cited which seem to absolve the U.S. from the accusation of waging war on outright falsehoods. But Burke chooses to overlook the truly persuasive facts which establish that a deep political calculation lay behind the decision to go to war in Iraq. And since this was a political calculation that did not dare to speak its name, “mendacity” is the only accurate description for the stratagem that was in play.

Burke surely errs in suggesting that western intelligence agencies in general proved compliant to the political directive to concoct a rationale for war. The CIA in the U.S. had entered several reservations about departures from established procedure in the run-up to war. Likewise, the head of the British intelligence services had put on record, in what became famously known as the Downing Street Memo of July 2002, his discussions in Washington DC in the weeks preceding, which spoke of “intelligence being fixed” around the Bush administration’s determination to remove the Saddam Hussein regime, using the conjunction of terrorism and weapons of mass destruction (WMD) as the rationale. The clumsy confection won few converts to the cause of war and was indeed called out for what it was by U.N. arms inspectors in Iraq. With the evidence building up, the British government’s principal legal officer rendered an explicit opinion that there was little chance of obtaining a legal mandate for war. And among major western nations, France and Germany made no secret of the fact that they were at serious odds with the U.S. intent.

History’s losers sometimes have a story to tell, often more compelling than the version rendered by the victors. As he worked to avert war, acceding to every one of the escalating demands placed on his country, Tariq Aziz, then Iraq’s Deputy Prime Minister, had on various occasions allowed his sense of fatalism to prevail. In October 2002 – soon after Bush had issued his famous challenge to the U.N. to either authorise war or face irrelevance -- Aziz went on record with the bleak forecast that nothing that Iraq did would prevent an invasion. The U.S., simply put, was intent on war, “for oil and Israel”.

Despite ranging widely over the globe – from south-east Asia to the western hemisphere and continental America – Burke says very little in his voluminous work, about the conflict in Palestine. Israel occurs rather sporadically through his book, almost everywhere as an incidental mention. Indeed, at one point, he describes a failed 2003 attempt to bomb a Tel Aviv nightclub as a rare instance “of the 9/11 Wars suddenly surging into the otherwise largely autonomous conflict in Israel/Palestine”.

The Palestinian intifada for freedom had been underway for almost a year when 9/11 occurred. In remarks to the far-right columnist George F. Will immediately afterwards, Binyamin Netanyahu – now the Israeli Prime Minister but then an opposition politician trying hard to regain the perch he was pushed off by a collusive deal between two former generals, Ehud Barak and Ariel Sharon – put it with little ambiguity: “The soldiers of militant Islam and Pan-Arabism do not hate the West because of Israel; they hate Israel because of the West”. Zionism was a target, because it is “an expression and representation of Western civilization”. And, the warriors of the Islamic holy war or jihad hate America because “it is the purest expression of modernity -- individualism, pluralism, freedom, secularism”.

Israel found a matchless opportunity in 9/11 to portray the Palestinian struggle as an element within the lethal mix of the global Islamic jihad. It was just the right formula to silence global outrage at the brutal military reoccupation of Palestinian territories granted a limited measure of autonomy under the Oslo agreements. When failure became an undeniable reality of the U.S. project in Iraq, it was almost foretold that attention would turn towards Iran and Syria. As Syria was forced to yield the hegemonic grip it had established over Lebanon as reward for acquiescence in the U.S.’s Iraq project, Israel showed a greater willingness to step out of the shadows and show its hand. The Israeli military assault on Lebanon that followed in 2006, was part of the grand design of rearranging the political geography of the Arab world. And provisionally, the final chapter of Zionist involvement in the 9/11 wars has been the sham withdrawal from the Gaza which converted that territory into the world’s largest open-air prison, and the offensive that began there late in 2008 to cripple the civic amenities that had been disingenuously labelled “terrorist infrastructure”.

With a sharp eye for detail, Burke identifies the suicide bomb as the “characteristic tactic” of the 9/11 Wars and the “blast walls” erected as a defence against such strikes as their “iconic image”. By the end of 2002, “inverted Ts of concrete” placed “in long lines to form instant walls of astonishing ugliness” had become a feature of the landscape in most theatres of the 9/11 Wars. The construction of these “blast walls” had become a significant business opportunity for local enterprises in Afghanistan by the end of 2002.

Burke omits a significant detail here: Israel was a pioneer even in the enterprise of erecting walls to separate “the West and the rest”. The Israeli government’s decision making on the “apartheid wall” – as it is fairly acurately called -- has always been a closely guarded, highly secretive process. The first phase of the wall which extends for a distance of 150 kilometres, was declared completed on July 31, 2003. Though Israel in a submission before the International Court of Justice – made informally since it chose to boycott the formal hearings on the legality of the wall -- indicated that the “separation fence” is not a permanent structure and can be modified or even dismantled, there is a very real prospect that its contours lay out the final territorial boundaries of the Zionist state.

The future course of the 9/11 Wars will be deeply influenced by the upsurge for democracy that much of the Arab world is currently witnessing. Here again, perceptions of “the West and the rest” have induced deep duplicities: the uprisings in Libya and Syria are cast unequivocally in a positive light, while similar yearnings in Egypt, Yemen and Bahrain are seen as deeply troubling.

Burke’s narrative reaches right upto this point though without offering much by way of serious prognoses. His sensitivities as a reporter are evident in the acute and vivid descriptions of the many theatres of the 9/11 Wars. Among the many actors that he provides arresting pictures of, are immigrant Muslim communities in western Europe, not known for their religious piety, but suffering the deep anxieties of a rapidly changing social milieu. And then there are the clan and tribal networks of Pakistan’s Pashtun areas, which have seen their identities effaced in the hegemonic narrative of Islamic jihad and are fighting to retrieve these and their eroding territorial autonomy.

Globe-girdling wars invariably tend to have several fronts and multiple actors who engage in combat with diverse motivations. The global conflagrations of the twentieth century, today known as the two “world wars”, both involved the clash of big imperial powers, which afforded the larger narrative. But in the interstices left by the consuming avarice of the imperial powers, who have since managed to dictate the tone of history writing, there were epic struggles waged for the liberation of large masses of humanity from the yoke of colonialism. These intersected in various ways with the broader inter-imperialist tensions between 1914 and 1945, since it is reasonable to say that despite the official categorisation of this period of global strife into two distinct conflicts, the fighting never really stopped between 1914 and 1945.

It could credibly be argued that the fighting has not stopped since either. This book is about the wars that have followed 9/11, but it establishes clear continuities with the conflicts that preceded, arising from the latent tensions and iniquities of the global order bequeathed by World War II. Where the events that it narrates will end, cannot of course be foreseen. It can safely be averred, though, the world which emerges out of this phase of global conflict and upheaval will be very different from the one that the post-World War II generations have got accustomed to.

Tuesday, November 15, 2011

Zionism, Racism and Culture

After blustery threats failed to banish the item from the agenda, the U.S. and Israel retaliated in their own ways when the U.N. cultural body UNESCO, voted overwhelmingly to admit Palestine as a full member.

The U.S. cut off all financial support and Israel announced plans to build a few thousand more dwelling units in occupied Palestinian land.

As the public discourse plays out about a world body that does not repay U.S. generosity with any manner of gratitude, a more realistic assessment, which nobody yet dares speak out loud, is gaining traction in the higher levels of the U.S. administration. Robert Gates, a legacy of the Bush administration and till recently U.S. Defence Secretary, in one of his final internal meetings before leaving office, reportedly said that the U.S. had done much and taken great risks for Israel, though Prime Minister Binyamin Netanyahu was proving an “ungrateful ally”.

A few days after the UNESCO vote, U.S. President Barack Obama met his French counterpart Nicolas Sarkozy at the G20 summit and spoke informally about his disappointment at the French support for Palestinian membership. Unaware that their conversation, conducted through interpreters, was being heard by media personnel assembled in anticipation of a joint press conference, Sarkozy said quite simply that he found Netanyahu an impossible liar. Obama did not demur, only suggesting that Sarkozy’s frustration was nothing near the aggravations he faced in his daily dealings with the cocky and obstreperous Israeli.

Netanyahu’s disdain for all who would stand in the way of Israel’s infinite aggrandisement was evident in his address to the U.N. General Assembly in September, not long after Palestinian Authority President Mahmoud Abbas had submitted a claim on behalf of his people for full membership of the world body. The General Assembly he said, was “the theatre of the absurd”, which a religious mentor had, as he began his political career as envoy to the U.N., described as a “house of many lies”.

The Israeli Prime Minister spoke with unconcealed racist contempt, as when describing Israel’s challenge of security in terms of its proximity to hostile territory, comparable to the distance between certain boroughs of New York city. And the people within these boroughs he reminded his audience, “are considerably nicer than some of Israel's neighbours”.

Netanyahu accused the U.N. of having sanctified the “lie” that “the Western Wall in Jerusalem, Judaism's holiest place” was “occupied Palestinian territory”. And with this airy denial of centuries of Palestinian settlement in the area, he quickly moved onto another tall tale to establish the antiquity of the Jewish claim to the land. Archaeologists, he said, had found in close proximity to the Western Wall, an ancient seal, close to 3,000 years old, imprinted with his surname. And his first name dated even further back. People who bore that name wandered in the area since distant millennia and there had been “a continuous Jewish presence in the land ever since”.

Current scholarship, as exemplified in the Israeli historian Shlomo Sand’s acclaimed book The Invention of the Jewish People – now into a second edition -- has exploded this mythology in large part. But the facts of Netanyahu’s own life, which he has managed to artfully embellish, speak for themselves. Netanyahu’s father Ben-Zion Milikovski was a Polish settler in Palestine who adopted a surname of Hebraic provenance as a gesture of commitment to the Zionist myth. It was effrontery of a high order for the Israeli Prime Minister to strut his name before the General Assembly as an identity dating back millennia. But then, perhaps he was true to his ancestry in one respect: his espousal of a particularly rabid form of colonial ideology was much in the mould of his father, regarded as an incendiary element by even that most extreme Zionist, Menachem Begin.

The denial of the Palestinians’ right to exist acquires several forms: most of them overt, physical and brutal. Palestine has been a battle about culture and antiquity since the first expropriations of the native population by Zionist settlers in the 1920s. And it is no coincidence that among the first major projects that Israel undertook in East Jerusalem after it was seized in 1967, was an archaeological excavation to establish the area’s unbroken Jewish heritage.

These excavations have been controversial, their most observable feature being the use of bulldozers to cut through layers of antiquity to arrive at a distant Judaic past. Archaeology has been a profoundly political discipline everywhere, but nowhere more explosively so than in Palestine. In 2010, Israel entered into a public spat with UNESCO when the historic site in Hebron – scene of a grisly 1994 massacre of Palestinian worshippers by the extremist Jewish settler Baruch Goldstein – was designated as a mosque on the basis of its dominant features. In 1996, riots broke out all over the occupied territories when Netanyahu, in an earlier tenure as Prime Minister, ordered the opening of an archaeological tunnel that Palestinians believe, was deliberately laid under the Al Aqsa mosque in Jerusalem to weaken its foundations. And in 1992, Albert Glock, an American archaeologist who had documented the principal features of Palestinian villages and heritage sites effaced in the creation of Israel, was shot dead in Birzeit on the West Bank, in a crime that was never solved.

Netanyahu’s locutions are increasingly an insult to basic rationality. His government is almost certainly going to disregard the consequences of Palestine’s newly acquired membership of UNESCO, much as it has every inconvenient U.N. resolution in the past. The Palestinian people though have gained a toehold within the institutional framework of multilateralism. They could use this limited opening to work towards salvaging their culture and heritage – as embodied in numerous sites of historic importance in the entire territory of historical Palestine – from the devouring myths of Zionism.

It is a largely symbolic victory, but significant nonetheless and one that needs to be consolidated.

Press Council as Bully Pulpit: A debate on media regulation that could go nowhere

November 7, 2011

Markandey Katju was appointed chairman of the Press Council of India (PCI) within days of retiring as a Judge of the Supreme Court. Purely by coincidence, there was some talk hanging in the air as he took office, of the need for new regulatory norms in the electronic media. Though not within his formal jurisdiction, he was quick to ask that the new guidelines be held in abeyance. He then plunged into a sequence of abrasive comments about the realm he had just been appointed to oversee and regulate, which if substantively little different from observations made by his predecessors, has raised hackles with its added embellishment of intellectual disdain. Where the debate will proceed from here is anybody’s guess. But the tone has dropped several notches and the media industry is unlikely to let another opportunity pass, to push back against a potentially constructive public debate on transparency and accountability.

The media in its broadest definition, touches several lives. Even if it is a small player on most aggregate economic measures – revenue, value addition or profit – it is an industry on which everybody has an opinion and an urge to be heard. Media persons, who are generous with moral judgments and grudging in admitting the most egregious errors, cannot really complain when the compliment is occasionally returned. The final bulwark that the public often finds difficult to breach, is the ability of the media to control the message.

For long, the only recourse an ordinary reader (or “media consumer” in current terminology) had for being heard, was a letter to the editor, which would, in most cases, end up in the trash bin if it did not pamper newspaper egos. Today, even as she suffers the constant mortification of being talked down to by hectoring news anchors and leader writers, the media consumer has discovered the blogosphere, or the virtual media, which offers itself as a new platform for conducting the social dialogue. The ability of the media industry to control the public discourse is rapidly eroding and there has yet been no credible strategy devised from within its business model, to counter this reality.

Legal coercion though, is an option that still works. A sturdy platform of media criticism in the “virtual world” recently found itself the target of unwelcome attention from a real world entity whose enormous clout could be denied only at great peril. On October 14, the media watchdog website, The Hoot (www.thehoot.org), received a legal notice from the Times Global Broadcasting Company Ltd, which owns the Times Now news channel and is a subsidiary of Bennett Coleman and Co Ltd (BCCL), publishers of the Times of India. The media giant had been irked by an article published the day before, which raised a number of troubling questions about the coverage of a brutal attack on the lawyer and civil rights campaigner Prashant Bhushan, by right-wing thugs on October 12.(1)

Media under scrutiny

Under particular scrutiny was the conduct of the Times Now channel, since it had a news crew on the spot at the time of the attack. The article, written by a journalist with years of experience in print and television, wondered if the presence of the news crew may not have brought on the attacks. The thought was not outlandish, since the vigilante group behind the attack, the Sri Ram Sene, had a long record – from places as far afield as Mangalore, Bangalore and Delhi – of prearranging media coverage before foraying forth to dispense summary justice. Once the attack on Bhushan began, the news crew on the site showed less than humane instincts when it continued recording the brutality with a steady and unswerving camera. No member of the team even stepped into the camera frame while Bhushan was punched, kicked and dragged along the floor.

Perhaps, the article said, the climate of intolerance that brought on the attack had been nurtured by the unique style of the electronic media. It was a regular feature of prime-time news broadcasts to pit adversarial viewpoints against each other in the most abrasive and uncivil manner. A special mention was reserved for the Times Now’s prime-time news anchor, who regularly sets the blogosphere buzzing with his preachy morality and self-righteousness.

There were points made in the article which could have been fruitfully debated, had The Hoot not taken it down in haste under threat of legal action.(2) While protesting that the article had nothing by way of defamatory content and was merely an honest effort to advance the debate on free speech and its attendant obligations, The Hoot took the abundant precaution of apologising for any offence it may have caused. The whole episode passed without seriously disturbing the stately passage of the mighty media.

A desultory debate had meanwhile begun on the sidelines, occasioned by the expressed intent of the Ministry for Information and Broadcasting (MIB) to revise eligibility norms for the broadcasting industry. The stated rationale was that the norms currently in place are notoriously lax, which few can really question. But the antidote devised by the MIB bureaucracy seemed worse than the disease.

Regulatory vacuum

The norms for cable and satellite broadcasting were put in place rather late, close to a decade after the medium became pervasive at least in urban India. And in that one decade, as the government dithered, big global players had already acquired a major presence in India, forcing open several doors by making creative use of policy ambiguities and the marked official proclivity for ad hoc procedures.

The initial policy response was to doggedly hang on to the government’s monopoly over the airwaves – at least in the limited sense of uplinking signals from Indian territory. In a defensive measure against proliferating signals from satellites high above, which could only be restrained through the extraordinary exercise of police powers, the principle of intermediary liability was imposed. The cable operator would be responsible for ensuring conformity of all broadcast content with applicable norms.

It was another matter that there was little consultation or agreement across relevant sections of government, industry and civil society, on best regulatory practices. Neither was there any concern in the two decades of the satellite broadcasting boom, for enforcing the basic principles of media governance: such as the separation of content and carriage; and the prevention of cross-media ownership concentration.

A landmark judgment by the Indian Supreme Court in 1995, holding the broadcast spectrum as a public resource, entered the judicial annals as a finely crafted statement of principle. But its practical relevance has been negligible, as corporate entities, political parties and even religious bodies have rapidly colonised the airwaves.

The MIB’s recent awakening clearly occurred under duress. Following widespread public concern over media coverage of the November 2008 terrorist attacks in Mumbai, there was one attempt at enforcing a code on the electronic media, especially in situations designated as “emergencies”. The news channels, sensing a threat to their autonomy, preemptively enacted their own code, to be enforced by a News Broadcasting Standards Authority (NBSA) under the chairmanship of J.S. Verma, a former Chief Justice of India. The other main industry body, the Indian Broadcasting Federation followed after a few months with its own complaints council, under a former Chief Justice of the Delhi High Court, A.P. Shah.

The NBSA has had a mixed record of success. Its first major ruling imposing a fine led to angry recriminations between the offending channel and its competitors, and an unabashed refusal to comply. Following a truce and the return of the delinquent element into the fold, a more settled course has been in evidence. Strictures that the NBSA issued early this year against a channel that had telecast a news item held grossly derogatory of the gay community, were complied with in full. Close observers of the broadcast industry believe that despite this chastening, the channel concerned soon went back to its old ways, secure in the knowledge that it could always move faster than the watchdog’s capabilities of oversight and sanction.

Government anxieties aroused

Meanwhile, the news channels’ coverage of the Anna Hazare agitation, first in April this year and then in August, had reawakened the deepest anxieties of the government. Yet again, the debate on regulation was resurrected in terms of the old and discredited principles of oversight and sanction, with little regard for how feasible such a strategy would be in a domain where an estimated 727 channels function, of which no fewer than 359 are categorised as news broadcasters by the MIB. The entry threshold is derisorily low: principal requirements being that a company uplinking to a broadcast satellite would need to be registered in India, have no more than 40 percent foreign shareholding and a minimum net-worth ranging from as low as Rs 1 crore to a high of Rs 3 crore, depending on the category of licence applied for.

As Katju assumed charge at the PCI, a debate was underway on the need to revise these norms. The principal measures under consideration included raising the threshold of net-worth to a figure in the range of Rs 10 crore and stipulating that news channels should be headed by individuals with a certain minimum years of editorial experience. There were also suggestions of a “five strikes and out” rule: that news channels held guilty of a certain number of violations of an agreed programme code, would be stripped of their licence.

Katju’s interventions in this context seemed less an affirmation of principle and more a power-grab. At his first public engagement, which was a meeting with senior editors, Katju called for “introspection” and also questioned some of the priorities that the media seemed to be pursuing at the cost of what he considered the really important issues. Soon afterwards, he appeared on a widely watched interview programme on an English news channel. If there was an element of discretion earlier, the tone now was all aggression and disparagement. Indian journalists he said, were for the most part, “of a very poor intellectual level”. Media personnel in general, he said, have no idea of “economic theory or political science, philosophy, literature”.(3) Katju also called for investing the PCI with statutory powers – extending to the broadcast media -- to punish organisations that step out of line of an accepted code of conduct. “One of the reasons” that self-regulation has not worked, he said, is that its procedures have failed to instil “fear in the media.”

In Katju’s own words, the means of achieving optimal regulatory ends are clear: “I want powers to stop government advertisements, I want powers to suspend the licence of that media for a certain period if it behaves in a very obnoxious manner. I want powers to impose fines, all this in extreme situations.”

Novelty lacking

The scorn and disdain aside, these are possible options that have been raised by Katju’s three immediate predecessors and perhaps several more. So it is not yet evident that Katju has in any manner advanced a debate that has been underway for at least as long as the PCI has existed.(4)

Evidence of a constructive role going forward, if any, could be found from examining the other points the PCI chairman makes about the three modes in which the media is failing the people of India. The substance of the former judge’s accusations are that: the media often focuses on trivialities at the cost of the really major issues the country faces; it frequently divides communities by leaping to unwarranted inferences about the identity of those responsible for crimes such as terrorism; and finally, rather than propagate rational and scientific thinking, which is the need of the delicate social and economic transition India is undergoing, the media seemingly has time for only the most obscurantist fetishes, such as astrology and the supernatural.

None of what Katju says would come as breaking news to an observer of the Indian media. At various recent junctures when its conduct has been seen as questionable, the media’s role has come in for incisive and frequently, scathing analysis. But the logic of the media as an industry geared towards the motive of private profit, determines that it will follow a trajectory that remains indifferent to these public concerns. Media growth in the last two decades – but more so since the turn of the century -- is a sub-theme of the larger story of the revolution of rising aspirations of the great Indian middle class. It has been fuelled by the advertising boom that has accompanied this dizzying expansion of horizons. Needless to say, the growth of advertising – from the automobile sector, communications, real estate, financial services and other so-called success stories of the two decades of liberalisation -- has reflected emerging patterns of consumption of the middle and upper strata.

The other side of the growth story, of rising economic inequality and stagnant or deteriorating living standards at the lower end of the scale of wealth, has been rudely excised from the media narrative, simply because it is of no interest to the advertiser.

Public utility or industry?

These aspects of media functioning have been in the spotlight since the early years of independence and notably since 1952, when the Press Commission was appointed as India’s first expert attempt to evolve a doctrine on the media and society. Political circles and journalism unions were then suffused with the sense of imminent betrayal, that the press was forgetting its mission and treading the perilous pathway towards profit at all costs. The Press Commission put forward the doctrine that the newspaper was a “public utility”, which by definition, was essential to the sustenance of the civic community. Needless to say, the newspaper industry had little patience with what it regarded as a particularly woolly-headed type of idealism.(5) And it has since managed to beat back every regulatory effort.

As the media environment became more complex, independent media commentators and journalism unions did their bit to advance the debate, and there were also significant developments, such as the “airwaves” judgment of 1995, that could potentially have had a bearing. Yet, with all the cumulative force that genuinely committed individuals and organisations could exert, the media industry just would not be deflected off its chosen trajectory.

Set up in 1966, abolished in 1975 and then revived three years later, the PCI has not had a great record in stamping its authority on media functioning. Its credibility has not been helped in any measure by a discrete tendency towards silence at junctures when the press has come under attack in India’s more troubled regions. In November 2008 for instance, the government of Jammu and Kashmir sent out a letter warning the media against publishing any “objectionable material”. Failure to comply, it warned, would lead to action under the applicable laws, including the withdrawal of government advertising. In June 2009, as civil disturbances swept the Kashmir valley, the state government, almost reflexively, blamed the media for fomenting the strife and banned all news broadcasts on local channels. The harsh measures continued right through to the following year and were considerably enhanced through the four months of mass demonstrations in 2010, when physical attacks on journalists became commonplace, newspapers were seized at the point of publication, and messaging services over the cellular network were completely banned.(6)

Areas of default

Except for announcing an inquiry in 2010 that did not get very far, the PCI remained indifferent through these events. So the question really must be asked if a body that fails to raise its voice when summary measures are used to muzzle the press, can be trusted to use such powers fairly. Katju thinks that he has the judicial wisdom and experience to ensure the fair application of such powers, but he has not convinced very many. Professional bodies such as the Editors’ Guild and industry lobbies from the print and broadcast sectors have already dismissed his proposals out of hand. And for former Chief Justice J.S. Verma, his locutions seem to suggest an “authoritarian” tendency.

Little progress is likely if the debate remains confined within a paradigm of controls and sanctions, to the neglect of possible modes of allowing more voices the opportunity to be heard. Access to the blogosphere is still reserved for those of relative privilege and the alternative message that has begun to spread through this medium, though valuable, is limited in its diffusion. An official discourse that emphasises control and conformity, has effectively banished the 1995 “airwaves judgment” from the central position it deserves in the debate. Public service broadcasting has languished and the ridiculous prohibition of news content over FM radio continues to be in force.

A PCI that endlessly rehearses old themes about an augmentation of its powers, serves little purpose today. A more constructive engagement would look at true measures of public empowerment, rather than the aggrandisement of a highly diminished body.


Footnotes
(1) The Hoot’s letter of apology and retraction can be found at the following link: http://www.thehoot.org/web/home/story.php?storyid=5549&mod=1&pg=1§ionId=5&valid=true.
(2) The ethical issues involved were in fact not dealt with in any manner at all by the media, aside from a report in The Hindu on October 13, which raised some of the questions and sought at least preliminary clarifications from the Times Now management. See “Attack on Prashant Bhushan captured on camera”, The Hindu, Delhi, October 13, p 10; available at: http://www.thehindu.com/todays-paper/tp-national/article2532909.ece.
(3)See the transcript of the interview at the website of the channel concerned: http://ibnlive.in.com/news/media-deliberately-dividing-people-pci-chief/197593-3.html.
(4) See A.G. Noorani, “The Press Council: An Expensive Irrelevance”, Economic and Political Weekly, January 3, 2009, pp 13-5, for the substance of what has been said earlier on these issues.
(5) This is a story that is adequately told by G.S. Bhargava, The Press in India: An Overview, National Book Trust, Delhi, 2005.
(6) The International Federation of Journalists has come out with situation reports on the media in Kashmir through these three years. These are available currently at: http://asiapacific.ifj.org/assets/docs/118/188/54dea76-41a4dbc.pdf; http://asiapacific.ifj.org/assets/docs/126/113/2fe407e-23c0e71.pdf; http://asiapacific.ifj.org/en/articles/blaming-the-messenger-media-under-pressure-in-jammu-and-kashmir.

Monday, September 26, 2011

Palestine Statehood: New Hope Amid Threats

The new spirit of assertion by a hitherto supine leadership and the degree of support from governments across the world, speak of a dawn of hope for the Palestinian people. The bid for a unilateral declaration of independence from Israeli occupation, which the Palestinians hope will be recognised by the United Nations, emerges from the wider ferment in the Arab world. But because it involves Israel, it will be judged by a different set of standards. It embodies the spirit of hope and resistance. Yet, it could just as well, be the first stage in a new phase of confrontation, more bitter than anything in the past.

The dangers are embodied in the figure of Israeli Prime Minister Binyamin Netanyahu, who basks in the glow of adulation from the U.S. Congress and self-righteously demands the unquestioning loyalty of what he, with surpassing arrogance, calls the “civilised world”. Unqualified endorsement of the creeping annexation of all Palestine – save the Gaza which would continue being the world’s largest open-air prison – is the minimum he demands, as blood price for past atrocities the Jewish people have suffered in the bastions of civilisation.

Netanyahu has ever since assuming office as Prime Minister of Israel, sought assiduously to change the subject: from the need for justice in Palestine to the putative nuclear threat from Iran; from the legitimate demand of those made refugees several times over by Zionist ethnic cleansing, to the imperative that the world recognise the eternally Jewish character of Israel (and thus Palestine). Netanyahu’s recalcitrance would be a sufficient threat to world peace were there not greater hazards lurking in the cabinet of right-wing extremists he has assembled.

Avigdor Lieberman, foreign minister of Israel under the power-sharing deal that keeps Netanyahu in office, is the other face of this hazard. A person who does not hesitate to use metaphors from the animal world in referring to the Palestinians, Lieberman sees no irony in saying in the very next breath that “Israel is now on the frontline of a battle involving not just the Jewish people but all Western civilisation”. His warning to the Palestinians is an unabashed assertion of imperial mastery: the relative stability of the last two years, with high rates of growth and relatively unimpeded movement, would be a thing of the past if the Palestinians were to persist with the intent to declare statehood.

What Israel demands, the U.S. soon fulfils. In his speech before the U.N. General Assembly on September 21, just hours after mass rallies were held all over occupied Palestine to celebrate the push towards independence, U.S. President Barack Obama warned against the entire enterprise. It was in part, a disavowal of much he had said at the same forum exactly a year before. Acknowledging as much, he reaffirmed his belief in a Palestinian state, but underlined that this was a moral imperative that could only be realised “between Israelis and Palestinians themselves”.

The meaning is clear: the final contours of a settlement should set in stone for eternity, the asymmetric power relations between the Israelis and the Palestinians. A Palestinian “state”, simply because it involves a relationship of equality, is an unthinkable for Israel. What the world sees as a moral imperative is for Israel an existential threat. In addressing this dilemma, Obama has to make frequent concessions to the demands of justice and just as frequently recant.

Obama’s inner councils are restive at the indignity of the situation but uneasily aware that there is no way out, given the conflict between the configurations of domestic politics and the compulsions of maintaining a pretence of global leadership. Top cabinet officials in the U.S. may denounce Netanyahu in private as an ungrateful and mendacious ally. But any such statement in public would unleash a firestorm of rage from the far-right, unrepentant despite Iraq and energised by recent economic woes.

The far-right extremist John Bolton, who even a Republican Congress found inappropriate for the post of ambassador to the U.N., has resurrected the imperial fantasies the world hoped had died with the Bush administration: extinguish the Iranian threat through the use of force, pull out of the U.N. and cut all funding if it goes ahead with recognising a Palestinian state. His advocacy of a muscular U.S. military posture around the world – fanciful in the context of current economic realities, but still anchored in a semblance of rationality – blends with the messianic visions of those who are today the leading contenders for leadership of the Republican party. Israel is no mere ally in this perception, but a divinely ordained cause, nothing less than a fundamental act of commitment to good over evil.

The mood is mirrored in uncanny and disturbing ways in Israel, where economic difficulties – typified by growing inequality and rampant inflation – have exacerbated already sharp social divisions. Resentment is rising at the political influence of the extremist settlers, but so is the sense of siege, as popular attitudes darken in Turkey, Egypt and Jordan, till now considered Israel’s more dependable friends. It is a context in which political forces that successfully evade hard questions and tap the most deep-seated resentments – i.e., the most fanatical elements -- have a natural advantage. If the U.S.-Israel axis was for years an impediment to justice in Palestine, the prospective alignment of the extremist factions in these countries could soon become an active threat to world peace.

Saturday, September 17, 2011

Trouble in The Hindu: Fourth generation of a newspaper dynasty founders in search of a new business paradigm

It is a family that has always taken pride in its unity, discretion and commitment to public causes -- a family that has for four generations from its home base in Chennai (formerly Madras) published The Hindu, one of India’s most widely-recognised and respected newspapers. The Hindu has itself been in print since 1878 – longer than all other Indian newspapers, except The Times of India of Mumbai (Bombay) and The Statesman of Kolkata (Calcutta).

Yet The Hindu stands out even in this company in having been under the control of a single family – beginning with Kasturi Ranga Iyengar and now continuing with his great grand-children – since 1905. It is a family that has another unique claim among newspaper dynasties – through four generations, it has not ventured into lines of business that may conflict with core commitments. Individual members may have gone into their own lines of business, but never with a conspicuous impact on the principles of editorial detachment and fairness that the newspaper was loudly committed to.

The fa├žade of family unity had been breached on occasion, notably during junctures when consensus decisions on editorial and management control have been called for. These eruptions, most notably in 1990 and then again in 2003, pointed to stresses within the family owned newspaper as the number of stakeholders multiplied with each succeeding generation. But each eruption was contained and a new way found to continue with business as usual. It was expedient as tactics, but given the play of bristling egos within, not assured of enduring success as strategy. The intense discord that emerged to public view in March 2010 was perhaps, long foretold.

Events have since played out towards a bitter parting of ways between two factions within the family. A decisive moment came in April 2011, with the board of directors of the proprietary company of The Hindu, Kasturi and Sons Ltd (KSL), deciding by a majority of seven to five, to hand over the editor’s post to a person from outside the family.

The minority directors made no secret of their ire and obtained a stay on implementation of the decision from the Company Law Board (CLB), a statutory body dealing with matters of corporate governance. Relief for the minority proved short-lived, with the majority group successfully intervening first in the High Court based in Chennai to get the stay vacated and then having an appeal in the Supreme Court summarily dismissed without prejudice to the CLB’s final determination.

In July, Siddharth Varadarajan, a well-respected professional who was at the time bureau chief in Delhi, was formally appointed editor by the board, triggering off angry recriminations and the collective resignation (retirement in one case) of the minority faction in the KSL board from all executive positions. The minority five have with obvious intent, underlined their intention to continue as directors, pointing towards more turbulence in the boardroom in years ahead.

At the centre of the swirling controversy is N. Ram, editor-in-chief of the newspaper group and the most senior among the fourth generation of Kasturi Ranga Iyengar’s descendants to be actively associated with the business. With two younger brothers, N. Murali and N. Ravi, being respectively managing director of KSL and editor of The Hindu, Ram’s branch of the Kasturi family was dominant among the four that have shareholder interests in the newspaper. Murali has been his ally through earlier arguments over editorial control, though Ravi had in both 1990 and 2003, taken the other side.

As recorded in his letter of retirement and in recent statements made to the press -- in seeming contradiction to his public image of quiet efficiency and discretion -- Murali claims to have initiated in September 2009, a move to put in place norms on corporate governance and management succession on both the business and editorial side. The objective was to ensure that all shareholders got a fair share of responsibility and rewards. The basic premise was that all family members would retire from editorial and management positions at the age of 65.

Ram was under this plan, designated to retire in May 2010, to be succeeded as editor-in-chief by Ravi. In terms of the various publications under the group, Malini Parthasarathy -- a second cousin of Ram’s -- was to be editor of The Hindu and other top editorial positions, in the business daily, the sports weekly and fortnightly newsmagazine, were to be assigned within the four family branches, Positions on the business side were to be reserved for branches without sufficient representation on the editorial side.

Ravi and Parthasarathy had run The Hindu since 1991 and were as of 2003, designated as editor and executive editor. They then lost effective control, though not their formal designations, with Ram’s appointment, by a majority of eight to four in the board of directors, as editor-in-chief. The newspaper has since then moved on, though not with its accustomed placidity, since Ram’s very distinct editorial postures -- on India’s left-wing politics, China, Sri Lanka, not to mention one among the two parties that presides over the politics of his home state of Tamil Nadu – have been widely dissected and, for the most part, commented upon unfavourably.

The 2009 pact within the four branches of the KSL family, if at all there was one, proved rather ephemeral. In January 2010, Ram appointed three members of the fifth-generation, including his own daughter, to key positions in overseas bureaus of the newspaper group. The decision he later claimed, was approved without a “murmur of dissent” by the board of directors. Three shareholders though, including the children of Murali and Ravi, put on record their reservations in a strongly worded letter to the board: “It is essential that the board considers issues of corporate governance and the appointment of family members seriously .. The inequitable and arbitrary system that currently exists is not only unfair to non-family employees but to shareholders as a class as well. If there is ever any intention of instituting sound and modern corporate governance practices and discontinuing the feudal system that exists, then issues such as the ones we have raised need to be addressed squarely, honestly and without fear or favour”.

Concord was obviously not the prevalent mood when the KSL board assembled on March 20 last year, with editorial succession being among the principal items on the agenda. Ram assembled a bare majority in the twelve-member board to strike down Murali’s proposal that family members retire at 65 from active editorial and management roles. The board then appointed K. Balaji, a first cousin of Ram’s and Murali’s, as Managing Director, designating Murali as Senior Managing Director – a rather implausible title that barely camouflaged the very real effort to strip him of all substantive authority.

The story emerged in public view at this point, with the Indian Express – a newspaper which competes with The Hindu in a few markets, though not very effectively – on March 25 carrying a story headlined “Battle for control breaks out in The Hindu very divided family”.

Within hours of the Indian Express edition for the day hitting the stands, Ram responded with a news story on The Hindu website, assuring the author of the story, and the editor and publisher of the Indian Express, with civil and criminal defamation action.

It was a curiously petulant and undignified response by a journalist and public figure who has long been demanding that criminal law should not under any circumstances be applicable to the supposed offence of defamation. Rather quickly, Ravi responded with a posting on his twitter-page, asking how The Hindu, which “has taken a strong stand against criminal defamation”, could use it as a “threat to silence journalists”. Parthasarathy likewise, tweeted that journalists should never be “afraid of public scrutiny”.

In a later posting, Parthasarathy – one among three sisters who were the first women in the four-generation long history of the company to assume active management positions – spoke of rampant misogyny to which she would never again fall victim.

A blog-site had meanwhile come up, titled “Save the Hindu Newspaper”, promoted by persons with an overt posture against Ram. For the venerable old newspaper, which had with its sedate and somnolent style, earned a sobriquet likening it to Mahavishnu, the most remote, inscrutable and unattainable deity within the Hindu pantheon, the harsh glare of the public limelight must have been altogether unwelcome.

Murali secured a ruling from the CLB which set aside the changes on the management side. But Ram continued to have a majority in the board, which he used in April 2011 to push through Varadarajan’s appointment as editor.

Ravi responded by addressing a letter to the staff of The Hindu, seeking their understanding as the institution entered “a second, and what might turn out to be a prolonged, phase of conflict and turbulence”. Ram’s refusal to honour the agreed age of retirement, he said, had become untenable with the CLB ruling. His response it seemed, was to take “all the editorial directors – most (of whom) are in their 50s – into retirement with him with a scorched earth policy to ensure that no one in the family succeeds him”.

Ravi contrasted the image and performance of the newspaper in the years between 1991 and 2003 – when he actually exercised the authority of the editor – with what he described as a decline in public esteem since. The “distortions” that had crept into the “editorial framework”, he warned, would be “entrenched” with the decision of the board. “In the recent past, editorial integrity, he said, had "been severely compromised and news coverage linked directly to advertising”. The frequent public engagements of the editor-in-chief had also gained coverage in the newspaper “with a regularity that would put corporate house journals to shame”.

Ravi’s letter of resignation in July was even angrier in its tone, with references to the “deceit, lack of probity and bad faith” that had crept into “dealings among family members on the board with a clique being formed through exchange of unmerited favours”.

Murali in a letter written at the same time, spoke of his “anger, anguish and sadness at the horrible happenings” in the company and the “crude display of factionalism, vindictiveness, vote-bank and opportunistic politics and personal agendas by various board members”. These had seriously damaged the credibility of the “family run newspaper” and also “severely impaired the competitive ability and profitability of the whole enterprise”. If the “faction of the board” that had won the last rounds of battle were to persist “in its unsavoury ways”, then the “iconic 132-year old newspaper would have a very bleak future indeed”.

Parthasarathy the same day sent in her resignation, condemning the “strong family jealousies and prejudice” that had “intervened to pull away” all her “editorial responsibilities”. She had since, in her narration, subsequently endured “daily humiliations” in the belief that the board would finally do what was fair and just. But with her “legitimate professional aspirations” being “belittled and rudely rebuffed”, she had no alternative but resignation.

Nirmala Lakshman, sister of Malini Parthasarathy, wrote of her “deep sense of disappointment and sadness” at the attempt to reorganise the company “with little foresight, complete insensitivity, and a lack of grace and decency”. “With competitors making alarming inroads into our territory, functioning in this cavalier manner and playing the numbers game does not bode well for the future of The Hindu”, she warned.

Though the finances of The Hindu remain an area of opacity, there are sufficient indications that the newspaper group is under pressure now like never before in its history. The ongoing economic recession has cut deeply into bottomline figures across the industry, and advertisement revenue for The Hindu group is believed to have shrunk 40 percent in the course of the 2008 downturn. There has been a recovery since then, but the profit after tax is now estimated at less than a third of what it was in 2003.

All through its hundred year history at the helm of The Hindu, the Kasturi Ranga Iyengar family has stayed close to the knitting, identifying the newspaper as its core commitment, which would not be diluted by loyalty to any other business interest. The family has been seriously involved in sports and culture, though without implicating the newspaper as a whole in individual commitments. There was a project to develop a golf-course on the coastal sands between Chennai and the historic city of Mahabalipuram to the south, which absorbed much of the resources of the business group and was identified with one among the four branches of the family. The project collapsed without leaving a trace and there have been murmurs within the family branches that were not involved, about the serious lack of accountability for this colossal business misadventure.

In recent years, The Hindu has begun rather hesitantly, to get engaged in the TV news channel business, though with characteristic caution and conservatism. As competition built up – with the entry of the Deccan Chronicle into Chennai and especially with the Times of India launching an edition from the city – there were credible reports that KSL had begun exploring external sources of finance and had perhaps reconciled itself to selling a minority stake to a foreign investor.

The fragmentation of the family makes a decision arrived at with serious strategic forethought less likely than one made in pique. What this would mean for the future of one of India’s most respected newspapers, still remains a matter of speculation.

Monday, September 12, 2011

Media as Echo Chamber: Cluttering the Public Discourse on Corruption

Facts have a certain pliability about them. They can always be moulded in a shape that suits prior conceptions. At a discussion in Delhi on the Media and the Politics of Corruption on August 31 – just a few days after a hunger fast by Kisan Baburao Hazare, alias Anna, in the cause of a high-powered anti-corruption body had been called off -- two television news anchors, aware that their conduct through the thirteen-day long event was under scrutiny, chose aggression as the best strategy of self-defence. The coverage of Anna’s indefinite hunger fast at the Ramlila Maidan in Delhi, they said, was perfectly in tune with the magnitude of the event and its importance to all Indian citizens. The crowds that gathered at the venue of Anna’s fast were deeply stirred by the personal example set by the 74-year old social campaigner in the struggle against corruption. To call their fervour a contrivance of the media was an illusion of an out-of-touch intellectual elite, and an insult to basic human integrity and intelligence. The media’s only sin was that it had refused to be “embedded” with the government and uncritically parrot the official line.

Unsurprisingly, TV news anchors have consistently been in the forefront of the public debate about the media’s role – to further adapt Noam Chomsky’s adaptation of the famous Walter Lippmann term – in the “manufacture of dissent”. Another well-known TV personality sought to tackle this matter frontally in a newspaper column and arrived at the self-extenuating conclusion that the fault, if any, lay at the government’s doorstep, since it had consistently failed in putting across its point of view cogently and comprehensibly, allowing the forces of dissent to carry the day by default.(1)

Available for public scrutiny by this time, were the results of an exhaustive media monitoring exercise – involving two news channels each in English and Hindi – by the Centre for Media Studies (CMS), a research organisation with long years of experience in the field. Between August 16 and 28, the exercise found that the two Hindi channels, Aaj Tak and Star News, devoted 97 percent of total news time during prime viewing hours (7 to 11 p.m.) to the Anna fast. For the two English channels monitored -- CNN-IBN and NDTV 24x7 – the corresponding figure was 87 per cent. Left out of this exercise was TimesNOW, which was widely seen to be the most brash, bumptious – indeed, noisy and intolerant -- news channel in respect of the Anna Hazare fast.

Taking the pattern of total time utilisation on the English channels, the figures were roughly about 65 percent of broadcast time for the Ramlila event, 23 percent for advertisements and the rest for other news. The Hindi channels were not very different in terms of the total time dedicated to the Anna fast, but with advertisements occupying about 30 percent, they had virtually no time for other news.(2) It is also estimated that through Anna’s thirteen day fast, the viewership of English news channels increased by over 70 percent and of Hindi, by over 85 percent.

From another source, we find that in the earlier phase of Anna’s protest fast in April, news channels raked in Rs 175.86 crore in advertisement revenue over a nine-day period. Coverage totalled 5,576 news clips, of which prime time news coverage numbered 1,224 clips across 152 hours, with an ad value of Rs 52.47 crore. Classifying the news clips by their tone, 5,592 were positive towards Anna and his cause, while 92 were characterised as negative.(3)

Viewership and audience demographics are the principal criteria in determining ad placement decisions. But the pattern of coverage of the Anna fast was so distinctive across all news channels, that it suggests a strong linkage between quantum and tone of coverage and revenue implications. The matter needs to be carefully dissected and thought through. Media companies, for the most part, are private limited companies, not legally obliged to publish annual statements of accounts. Even less are they under compulsion to disgorge the finer details of commercial strategies to maximise ad revenue. But an indication that Anna’s fast was a lucrative source of revenue for the media is available from the conduct of Bennett Coleman and Company Ltd (BCCL), publishers of the Times of India (ToI) and owners of the TimesNOW channel, which has shown itself over the years to have the best sense of the “editorial context” that advertisers most appreciate.

Derived from print media practice, the “news-hole” is a concept that media analysts frequently work with. It is a term that originates in the practice of making up a page, where space is already committed for advertisements and news content can only fill in the “holes” in between. That concept of the “news-hole” has now been adapted to the visual electronic media, though its measure is not in units of space, but time. Its essential connotation is that news has only the second claim to media space and time, after ads. It does not yet reveal the subtext that news content is itself influenced by the ads that surround it – or that news content can be manipulated to provide the best “editorial context” for ads placements. As with much else in the Indian media over the last two decades, the new paradigm was forged by BCCL, which proudly invented a mutually supportive relationship between the news-hole and surrounding ads. Since the money came from the ads, the burden of adjustment had to be on news content.

Within all the limitations of the print medium, BCCL’s flagship newspaper, the ToI, was a stellar performer in mobilising crowds for the Anna fast. A perceptive analyst has provided all the basic data here. The ToI’s Delhi edition covered the thirteen day event over 123 broadsheet pages branded “August Kranti”, hijacking a talismanic moment from India’s struggle against colonialism. Overall coverage included 401 news stories, 34 opinion pieces, 556 photographs and 29 cartoons and strips”. On seven of these days, the front page of the ToI had eight-column banner headlines. Negative stories, if any, were run with attributions to public figures – such as the Islamic cleric who heads Delhi’s Jama Masjid and the leader of a nationwide confederation of government employees from the scheduled castes – who are known to evoke a reaction of some scepticism, if not disdain, among the main readership demographic of the ToI. And the newspaper launched a toll-free number for readers to give a “missed call” if they endorsed the demand for a “strong Lok Pal Bill”.(4)

By way of a sampling of the banner headlines in the ToI, on August 25, the ruling United Progressive Alliance (UPA) was deemed to have hardened its stand after an all-party political meeting the previous day endorsed the sovereign right of Parliament to determine the appropriate law to deal with corruption. The popular expectation that Anna’s agony would end was belied and despite the official spokepersons’ deliberate effort to put a different construction on events, the ToI headline read “From Breakthrough to Breakdown”. Subsequently, a collective appeal by the Prime Minister, Leader of the Opposition in the Lok Sabha and indeed, both houses of Parliament, failed to deflect Anna from his resolve to go for his maximal agenda. On August 26, ToI determined that the moral advantage from these exchanges had accrued to Anna with the loud banner that read: “PM walks the extra mile, Anna unmoved”. Two days later, the ToI reported the culmination of Anna’s fast, which came about in ambiguous circumstances that fell conspicuously short of his maximal demands, under the headline: “Anna wins it for the people”.

Missing through this entire thirteen-day long frenzy was any informed public discussion of what was at stake. Daily experiences with corruption were narrated with a pronounced bias towards the common irritants that the middle and upper strata face. Typically, delays in obtaining passports and business clearances were talked about, not the difficulties with getting names registered on daily muster rolls for the rural employment guarantee programme. Team Anna’s insistence that its conception of a vertically structured, rigidly hierarchical body was the only way to deal with corruption, generally escaped without serious scrutiny. The few who sought to raise questions about the appropriateness of a body conceived with conspicuous disdain for participatory democracy, were typically characterised as divisive elements, disrupting a moment of rare unity within civil society, effectively giving the government a free pass.(5)

There was in short, much discussion of the need for a “strong Lok Pal Bill”, but no clarity about how this end could be achieved. Characteristically, during an hour-long programme of studio-based debate and discussion titled “The Big Fight” on August 20 on the news channel NDTV 24x7, the entire audience declared itself to be in favour of Team Anna’s Lok Pal Bill. Yet, no hands went up when the next question was asked: about how many among the audience had actually read Team Anna’s draft bill.

Yet there are obvious difficulties, both logical and ethical, in putting down the widening public ferment to media manipulation. People today are stirred up like never before over the quality of governance and willing to express themselves forcefully. And the 24 hour news channels that have multiplied over the last half-decade, provide them with a platform.

It is a plausible conjecture that the restive spirit about is a consequence of the threats seen today to India’s growth story. Though indifferent for the first decade-and-a-half of India’s liberalisation process, economic growth began picking up momentum from about 2004 and showed enough dynamism for a sufficient number of years to earn worldwide recognition as a force that would influence global balances into the near and distant future. This period also saw the coming of age of the great Indian middle class which had ostensibly earned its belated freedom after spending decades under an oppressive state-controlled economy. Media growth is a sub-plot within this broader story, propelled by advertising expenditure which, as is invariably the case, outgrew increases in corporate profitability, but tended to mirror the underlying patterns of consumption of the middle and upper strata.

The global economic downturn since late-2008 is only beginning to show up in India’s official economic statistics, but it is a part of peoples’ lives. Inflation has become a more perceptible threat than ever before in two decades. The vaulting ambitions of India’s bulging “youth demographic strata” are under stress, making nonsense of the beguiling prospects held out by the media just over two years ago. And as the global economy itself lurches into a possible double-dip recession, the prospects of India’s emergence on the world stage as a superpower seem rapidly to be diminishing.

These factors have engendered anxieties across all strata, expressed in diverse ways. On February 23 this year, India’s principal trade union confederations jointly organised a mass rally in the national capital. Despite acute concerns among the working class over the direction that policy was taking in a context of growing livelihood stresses, official thinking showed little inclination to go beyond the standard story line that the labour market needed to be “reformed” – that enterprises in other words, needed the power to hire and fire at will.

The trade union rally was a way of showing the world that there was another way of looking at things. It was an alternative discourse that the many news channels based in Delhi and elsewhere proved fairly indifferent to. The following day, newspaper coverage mostly focused on the massive traffic snarls the rally had caused. The ToI’s Delhi edition, ran a full page of coverage under the banner headline: “Red wave sweeps city, halts traffic in central Delhi”. In three chosen samples of public reaction, representing presumably the whole range of opinions heard that day, one of the sufferers of the days’ traffic chaos was quoted saying: “If I find out which party is behind the rally, I will never vote for it”. Others complained of vital appointments missed and tasks left unfinished.

August 16 was the first day of mass gathering on Delhi’s streets in support of Anna in his most recent phase of agitation. Within moments of the preventive arrest effected to stop Anna from beginning his protest, Delhi’s news channels had fanned out across the city to provide saturation coverage for the ensuing demonstrations. Traffic was thrown out of gear in several parts of the city when the crowds came out, but the media cared little. As the ToI’s Delhi edition put it in its main local news page on August 17: “City Centre Comes Alive With Marching Throngs”. And elsewhere,under the headline “Massive jams in city but few were complaining”, the newspaper made a special effort to record that city commuters with nerves frazzled by the chaos, were “pacified” by others who explained the issue at stake.

Yet doubts persist about how clearly the media has framed the issues. “Corruption” is in the discourse of most who have joined the Hazare campaign, a convenient target onto which a whole complex of anxieties can be shifted. And the seeming urgency of creating an authority superior to all others, meshes neatly with elite convictions that representative democracy has been a colossal failure. But since the Jan Lok Pal, a body conceived as the magic bullet to end all corruption, has failure – and endless conflict with all other institutions -- virtually encoded in the circumstances of its genesis, it should be asked what the consequences of manifest failure would be. Would the target then shift from “corruption” to “politics” itself? Would representative democracy itself fall victim to awakening Indian middle-class rage?

When completely stymied by phenomena that seem unique and mystifying, it often helps to borrow analogies from the physical sciences. An amplifier is an appropriate analogy here: taking in a signal as input and processing it through its circuitry to generate an output. The quality of the output can never quite match what is received by way of a primary signal, though technology has been seeking to achieve the most faithful reproduction. Among the first significant discoveries in this respect was that of feedback: channelling a part of the energy output back into the input stream influences the performance of the device in various ways. Negative feedback, i.e., a loop that feeds back a part of the energy output in a manner that is not congruent with the input signal, enhances performance and provides for faithful signal amplification and stable system performance. Positive feedback, which channels an identical signal back into the input stream, leads to a distorting spiral of noise, system instability, a cacophonous listening experience for the audience, and finally, a potential breakdown. Clearly, this seems the pathway that the media is embarked upon, by its resolve to function as an echo-chamber for elite perceptions, amplifying and reinforcing them in every manner possible.

September 2, 2011

References

(1) Barkha Dutt, “Digging Its Own Grave”, The Hindustan Times (Delhi), August 19, editorial page, available at: http://www.hindustantimes.com/Digging-its-own-grave/H1-Article1-735205.aspx.

(2) The basic data on time devoted to news is available at: “Anna obsession boosts TV news channels”, http://www.indiantelevision.com/headlines/y2k11/aug/aug212.php. The time that went into ads is not available from this source and was obtained directly from CMS.

(3) Full details of this study are not availabe, undoubtedly because this manner of information normally comes with a price tag. The bare details presented here are taken from the media watch website, The Hoot. The obvious gaps make it essential that the information be used with discretion. For instance, the number of news channels surveyed remains unknown. See here for all the information currently available: http://www.thehoot.org/web/home/story.php?storyid=5448&mod=1&pg=1§ionId=4&valid=true.

(4) Pritam Sengupta, “How the Times of India pumped up Team Anna”, available as on September 1 at: http://churumuri.wordpress.com/2011/08/31/how-the-times-of-india-pumped-up-team-anna/.

(5) Embodying this attitude with extreme aggression and inattention to minor inconvenience of fact, was the TimesNOW channel’s main news anchor, on which see: Mihir S. Sharma, “Revolutions eat their own”, Indian Express (Delhi), editorial page, August 27, available at: http://www.indianexpress.com/news/revolutions-eat-their-own/837710/0.

Tuesday, September 06, 2011

Death Penalty: Why the case for abolition cannot be lost in the media noise

The death penalty has forced its way into the political agenda after a number of mercy petitions were turned down by the President. Among the many now facing the imminence of death by hanging are those convicted in the Rajiv Gandhi assassination of 1991, a 1993 bomb attack on a Youth Congress leader which killed numerous innocent bystanders, and the armed assault on Parliament in 2001.

As with all issues today, there is a serious danger that the debate over the death penalty will be hijacked by loud and uninformed commentary on the TV news channels. Illustratively, in the course of a widely-viewed English news channel’s studio-based discussion on September 3, a member of the audience expressed his dismay that criminals guilty of the most heinous acts were enjoying the hospitality of the Indian state for indefinite lengths of time. A panelist on the programme, the Kashmiri academic Syed Abdur Rahman Geelani, speaking from the experience of a year spent on death row in the Parliament attack case, interjected to protest that an Indian prison – especially the parts reserved for death convicts – is a veritable hell on earth, which often has its inmates wishing fervently for death as a final release.

This was the cue for the programme anchor to introduce, without a hint of irony, the theme of “deliverance by death”. Considering the sheer inhumanity of prison conditions, especially on death row, would not a swift execution be the more compassionate option?

At no point in the debate did key points about the death penalty come up for discussion: its finality and irreversibility, the fallibility of the judicial system that administers it, and its inefficacy as a deterrent against violent crime. Geelani was allowed on a few occasions to argue that Mohammad Afzal Guru, the sole convict in the Parliament attack case, had not been afforded a fair trial and that in fact, the Delhi High Court had held the prosecution guilty of fabricating evidence against him. But these were narrow questions easily suppressed by two compelling arguments deployed by the other side: the Indian Constitution and the criminal law written under it mandated the death penalty in certain cases; and the ends of justice for those who suffered terrible atrocities, would only be met by putting the perpetrators to death.

The question of retribution has a moral dimension. The Supreme Court verdict in the Bachan Singh case of 1980 is still cited as the authoritative ruling on the constitutional validity of the death penalty. In his minority judgment, which dissented on virtually all the central questions, P.N. Bhagwati, later to be the Chief Justice of India, observed that retribution has no moral basis in law. Modern penal theory, he said, discounts it as a motive for determining the nature and quantum of punishment in particular cases.

The only two rationales that survive then are prevention and reform, both of which are objectives better served by lesser sentences.

The other issue needs careful attention: is the Indian Constitution fixed and immutable or is it a live, evolving body of doctrine that reflects the changing needs and aspirations of the Indian people? The Constitution defends the right to life and liberty and lays down the norm that no individual can be deprived of either, except under the process of the law. How sound then is the process of the law as applicable in India or for the matter, anywhere?

In a recent Amnesty International report on the theme of the death penalty, eloquently titled Lethal Lottery, the legal scholar and human rights campaigner Bikramjeet Batra has laid out much of the grounds on which reasonable conclusions could be arrived at.(1)

V.R. Krishna Aiyar, as a judge of the Supreme Court, had posed the fundamental moral dilemma as far back as 1977: “It seems to me absurd that laws which are an expression of the public will, which detest and punish homicide, should themselves commit it”. In an earlier pronouncement, he had deplored the fact that it was left to “ad hoc forensic impressionism to decide for life or for death”.

In his dissent in the Bachan Singh case, Justice Bhagwati revisited this theme of ad hoc determinations being the norm. The Criminal Procedure Code, as revised in 1973, had recognised the death penalty as an exceptional form of punishment, requiring that convincing reasons be specified every time it was imposed. Yet, as Justice Bhagwati observed: “The views of judges as to what may be regarded as special reasons are bound to differ … depending upon .. value system and social philosophy, with the result that whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of death penalty arbitrary and capricious”.

Despite the judicial orthodoxy handed down by the Supreme Court majority in the Bachan Singh matter, the norm that capital punishment should be imposed only in the “rarest of rare” cases, has been variously interpreted.

The last person to be executed under Indian law was Dhananjay Chatterjee, who spent thirteen years on death row before being sent to the gallows in August 2004. As noted in Lethal Lottery, three days after his execution, an almost identical case of rape and murder involving a minor was heard on appeal by the Supreme Court. The crime committed by the accused, Rahul, alias Raosahab, was on the face of things, even more heinous than Chatterjee’s. Yet the Supreme Court which had termed Chatterjee a menace to be eliminated for the good of society, held otherwise for Rahul, commuting his death sentence to one of life imprisonment.

In December 2006, a bench of Justices S.B. Sinha and Dalveer Bhandari, in hearing an appeal against a capital conviction, observed that “different criteria have been adopted by different benches of this Court, although the offences are similar in nature”. Almost admitting to its helplessness and frustration, the Court declared while commuting the sentence to one of life imprisonment: “No sentencing policy in clear cut terms has been evolved by the Supreme Court. What should we do?”

The Supreme Court has meanwhile added other grounds on which the death penalty would be warranted, such as a collective shock to the national conscience. Despite the infirm evidence and his very remote culpability in the crime, if any, Mohammad Afzal Guru was sentenced to death under this rather vague and flexible criterion.

Human thinking evolves and the law has necessarily to reflect these changes. Y.V. Chandrachud, who was Chief Justice of India and part of the Supreme Court majority which upheld the death penalty in the Bachan Singh case, came to the realisation after retirement, that the “death penalty has served no purpose” and that “neither logic nor experience would justify its continuance on the statute book”. Yet, the debate on the death penalty has since failed to engage the attention of India’s best legal minds in the manner that judges of the eminence of Krishna Aiyar, Bhagwati, O. Chinnappa Reddy and D.A. Desai, grappled with its legal and ethical dimensions all through the 1970s.

Article 5 of the Universal Declaration of Human Rights lays down a clear norm: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. As a signatory to the declaration, the Indian State must now frontally address how far it is in compliance with this clause. The reality simply is that there is no humane and compassionate means of administering the death penalty. Keeping a person in a state of limbo between life and death for years together is no option. Neither is it an option that the Indian State should, to meet the demands of a “collective conscience” that is shocked by certain crimes, short-circuit the process of law and expedite the execution of the death penalty.

Basic morality indicates that the choice in any such situation should be for life rather than death.

PRINCIPAL REFERENCE: Amnesty International India and Peoples’ Union for Civil Liberties (Tamil Nadu and Puducherry), Lethal Lottery: A Study of Supreme Court Judgments on the Death Penalty in India, 1950-2006, May 2008, available at: http://www.amnesty.org/en/library/asset/ASA20/007/2008/en/16f59d0b-15fc-11dd-8586-f5a00c540031/asa200072008eng.pdf

Thursday, August 25, 2011

Vaulting Ambition, Sloppy Thinking: Why the Jan Lok Pal Bill is a Dud

Corruption is the central concern. It is almost a theological concept. It is also a term – along with the linked adjective, “corrupt” – that recurs at frequent intervals through the text of the Jan Lok Pal (JLP) bill.

This bill has gone through thirteen iterations and in its current form is, according to the social campaigner Anna Hazare and his core group of associates (Team Anna) ready for adoption by Parliament. As an elected body representing all the people, Parliament, says India Against Corruption (IAC) -- the larger civil society grouping that Team Anna takes its mandate from -- has the right to enact laws for all the country. But prolonged default on a matter of urgent public importance cannot be tolerated. Parliament has no option than the adoption of a bill cooked up by the IAC. This would be the first step, necessary, though not yet sufficient, towards dealing with the ongoing plague of corruption.

If the frequency with which a word is used indicates how serious is the intent, then the JLP draft, in its most recent variant, scores heavily over the Prevention of Corruption Act, 1988 (PCA) and the Central Vigilance Commission Act, 2003 (CVCA). These are the two most proximate enactments which share the objective of combating corruption. And they are both rather spare in their use of the two words. Maybe this indicates a far greater sense of focus and moral purpose in the JLP than in all earlier laws. Maybe it shows that the earlier enactments paid little attention, or chose willingly to be oblivious, to the magnitude of the task they were intended to address.

A moral dimension is apparent in other respects too. Through the text of the JLP draft, the word “integrity” occurs four times and “impeccable” twice. “Evil” is used once in the preamble, in a quote from a former Secretary-General of the United Nations, and “eminent” is the term of art chosen to characterise somebody who would have the credentials to be on the “search committee” for appointing the JLP.

Ordinary citizens who have tried to understand the arcane processes of the law may often wish that legal texts could show some sparks of life, that there was some way of rendering legalese into a comprehensible idiom. Terms such as “impeccable” and all the rest that the JLP draft scatters liberally around, may seem self-evident in terms of their import to all who suffer the daily scourge of corruption. “Impeccable” to most would be the opposite of what they see in their public servants. But then, to be “impeccable” and to possess “integrity” or “eminence” in the manner that the JLP requires, is beyond most citizens.

Team Anna holds out the promise that ordinary citizens’ lives will soon be governed by higher virtues, embodied in a chosen few who will assume the stewardship of the JLP, as an institution empowered to impose its will on legislature, executive and judiciary in any matter involving the suspicion of financial wrongdoing. In the steadfastness of their virtue, these individuals would transform lives steeped in the banality of just getting along, negotiating any which way through the thicket of a corrupt governance apparatus.

Morality lecture versus legal text
With this lofty mission before it, the JLP has necessarily to use language more appropriate to a morality lecture than a legal text. Indeed, the JLP is in the vision of its proponents a body born in immaculate conception, untouched by the politics that ordinary mortals are mired in. The origin of the JLP is in a construction of “virtue” that lies beyond ordinary politics. It is a transcendental attribute under siege in the mundaneness of ordinary politics.

It is this moral purpose that defines the central theme of the Anna Hazare campaign and determines its trajectory. Aside from “anti-corruption” which is a slogan even more vapid than “pro-motherhood”, the spirit of the movement is represented in the successive drafts of the bill that Team Anna and the IAC have put before the public.

Beginning with an early draft – themed around “men of virtue” – which spoke of empowering Nobel laureates of Indian origin, Bharat Ratna and Magsaysay awardees and five-star ranking military officers to appoint the Lok Pal, the JLP bill has gone through several modifications. It is fair to say though, that every version, despite seeking to achieve precision in terminology and a better fit with constitutional processes as currently practised, bears the imprint of the circumstances in which the bill was conceived.

Since the “men of virtue” draft was rubbished, a subsequent iteration by the IAC, labelled version 2.1 of the JLP bill, changed the appointment criteria. A studied reluctance to yield ground to representative institutions, or individuals chosen through direct elections, still remained manifest. In a selection committee comprising eleven members or more (since after the first round of selections, outgoing members of the JLP were expected to join the committee), only one qualified by virtue of being an elected representative of the people. And this was the Speaker of the Lok Sabha, who made the grade presumably by holding an office above partisan loyalties.

Unexplained twists in logic
Retained in the selection committee were all armed forces personnel of the five-star rank, of whom there have been three in the history of India, with the sole survivor now being well into his 90s. Also included were the two most senior among two categories: Supreme Court judges and high court chief justices.

In the next round, JLP version 2.2 changed the composition of the selection committee considerably. The total number on the body was brought down to ten, and the patently absurd requirement to have a military officer of five-star rank was deleted. The Prime Minister and Leader of the Opposition (LoP) in the Lok Sabha were allowed admission into the hallowed company of the "selection committee" that would pick the Lok Pal. But in the category of judicial representatives, the criterion of choice was changed from the most senior among Supreme Court judges and high court chief justices, to the youngest in both these categories.

The deliberations that led to these formulations have supposedly been open and transparent. But few reasons were advanced for these violent switches of loyalty, between seniority and its opposite. When an explanation was specifically sought, the answer remained unconvincing. Seniority was supposed to endow a judge with wide practical experience and knowledge, to enable informed choices of personnel for a high-powered body. But “seniority” also meant the imminence of retirement, and the likelihood that a judge -- irrespective of his value system -- would be susceptible to the lure of a post-retirement sinecure the government could place before him.

Younger judges in contrast, with the assurance of many years ahead on the bench, were likely to be immune to this inducement.

Mildly put, the logic is questionable. On the other side of the coin, the government and the higher judiciary are always in consultation in matters involving judicial appointments. When appointments to the JLP are imminent, ministers and senior (or junior) judges - both detested categories in the IAC's scale of values -- could connive in putting in place nominees in the higher judiciary, to ensure that between themselves, they have decisive influence over choices made to the JLP. This is a situation that is as probable as the dark scenario that Team Anna sketches.

Fundamentally, every formulation that has been put forward by the IAC has been deeply flawed. And these in turn emanate from an attitude of mind that trusts nobody and believes that a presumption of guilt is warranted in any matter involving a broadly defined notion of “corruption”.

The current version of the JLP Bill (numbered 2.3 on the IAC website) allows – with obvious reluctance -- for two elected representatives on the selection committee, the Prime Minister and Leader of the Opposition in the Lok Sabha (LoP). Two Supreme Court judges and two incumbent high court chiefs are also on the committee, without any further requirement of seniority or otherwise. In a major gesture of modesty, the IAC has unconditionally left that choice to a collegium of judges from the highest judicial bench.

Aside from the political and judicial members, the selection committee would also include the Chief Election Commissioner and the Comptroller and Auditor General of India. At the second and subsequent rounds of selection, all previous chairpersons of the JLP would join the committee.

Men of virtue and eminence to have first call
The concessions to the political and judicial establishments, though, are limited by a caveat: the selection process would now have to confine its choices to the names put forward by a ten member “search committee”. This is where the quality of “eminence” comes in. Five members of the “search” team would be chosen by the selection committee in accordance with the normative criterion of “eminence”, as also the other condition of “impeccable integrity”. And the rest of the “search committee” would be coopted by the five chosen in accordance with the original virtue of "eminence".

To take one aspect of the bill – the procedure of choice of the JLP – successive drafts have oscillated rather wildly in terms of applicable criteria. The “men of virtue” clause was removed at an early stage in the revisions. In a seemingly grudging concession to politics as practised – rather than its idealised vision – the Prime Minister and LoP were given a due role in the choice process. Since the JLP is envisaged to have a judicial function in some respects, there was no way that the men who people that arm of governance could be kept out.

Yet the trust deficit was difficult to dispel. And since the basic premise of Team Anna is "trust nobody", there was a wild oscillation between “most senior”, “youngest”, and finally, anybody who is proposed by a duly constituted “collegium” of judges.

Arvind Kejriwal, a former official of the Indian Revenue Service, now acknowledged strategist of the IAC and the main draftsman of the JLP bill, has often been on record with the view that powers envisaged for the anti-corruption body are no more than those vested in the Income-Tax (I-T) department. The point has a certain validity, though only superficially. The I-T department is authorised to perform the functions of investigation and prosecution. There is also a provision that hearings under a tribunal and a commission that could be set up under the I-T department, would enjoy the status of judicial proceedings.

Powers of judicial appointment and superintendence
The crucial difference here, is that the JLP conceives of trial in special courts. Rather confusingly, draft bill 2.3 prescribes two distinct procedures of trial. Under Chapter X, the JLP would put out an annual assessment of the number of special courts required for the swift trial of all the accused. The Government would set up the required number of special courts and Chief Justices of every High Court would constitute appellate benches to take up appeals and settle them within six months. Under Chapter XII, the JLP is empowered to appoint retired judges or civil servants as judicial officers for conducting trials once investigations are completed. A bench constituted in this fashion would determine the penalty and the punishment that could be imposed on the accused, subject to “approval by a higher authority prescribed” by the JLP.

The power of appointing judicial benches and stipulating deadlines for them is obviously far beyond anything that the Income-Tax authorities can imagine. Indeed, in seeking to gather under one body the powers of investigation, prosecution and trial, the JLP does considerable violence to the doctrine of the separation of powers, a fundamental principle of government by the rule of law.

As a further reality check on Kejriwal’s claim that the JLP bill proposes no greater powers or procedural prerogatives than the rather banal I-T Act, it would be appropriate to just consider one clause, article 7(5) of version 2.3, which reads:

“If during the course of investigation into a complaint, the Lokpal feels that continuance of a government servant in that position could adversely affect the course of investigations or that the said government servant is likely to destroy or tamper with the evidence or influence the witnesses or is likely to continue with corruption, the Lokpal may issue appropriate directions including transfer of that government servant from that position.”

The JLP’s definition of a “public servant” is the same as in the PCA. A “government servant” in turn, is a sub-category. Excluded from this sub-set are elected representatives and judicial officers. In other words, the JLP would have the authority to remove from office and quarantine anybody -- except an elected representative or a judicial officer -- for the duration of its inquiries. Here again is an extraordinary power that the I-T department could not conceive of ever claiming or deploying.

Much public contention has arisen out of the JLP bill’s determination that nobody – not even the highest political and judicial authorities – should be spared from its intrusive attentions. Version 2.3 tries to build in sufficient safeguards to deal with the sensitivities involved, by requiring prior approval of a seven-member bench of the JLP before any investigation or prosecution begins against the Prime Minister or a member of the Union Council of Ministers, any judge of the Supreme Court or a High Court, or any member of Parliament.

Sloppy draftsmanship omits an important point: is it sufficient for a majority of the seven-member bench or has this decision necessarily to be unanimous.

This should be regarded as a minor quibble in comparison to the larger issues. In the context of the extraordinary powers of removal of a public servant that the JLP assumes, it is worthwhile playing out a mind-game. Imagine a situation in which the Prime Minister is suspected of wrongdoing – since one of the issues on which Team Anna is most insistent and inflexible on, is having the PM under the jurisdiction of the JLP. The PM as head of government, in theory, controls every lever of the executive machinery. So by remaining in office while under investigation, he could conceivably, thoroughly subvert the course of inquiries. So then do we, by extending the logic applicable to a “public servant”, give the JLP the power to remove the PM?

Usurpation of parliamentary prerogative
With all the great fervour about, the slightest twinge of sympathy for M.K. Kanimozhi, a woman imprisoned now for over four months on corruption charges, would be considered a sign of moral frailty. Bail applications moved in ever higher judicial forums on her behalf have been turned down because investigations are underway into the “2G scam”. The Supreme Court worries that as a person of influence – and as member of a family that wields enormous political and financial clout despite its ignominious eviction from office in recent general elections to the Tamil Nadu state assembly – Kanimozhi might misuse a freedom provisionally granted, to fatally damage the investigations.

IAC’s credo is a radical formulation of the principle of equality before the law. It is impatient with suggestions that certain individuals (by virtue of occupying particular offices) could be exempted from scrutiny. The JLP as constructed in the IAC imagination, will have absolute authority over every institution and every office, however high. Neither the Chief Justice of India, nor even the Prime Minister, would be spared.

The proposition is infused with a sense of moral righteousness and purpose. And most political parties, anxious not to be out of step with the dominant public mood – as represented by loud and opinionated TV news anchors -- have signed on to the demand for a JLP that covers all.

A short pause to think over the implications of the proposition – using the legal standards applied in the Kanimozhi case -- would bring home its essential absurdity. A woman of very moderate power in comparison to an incumbent prime minister has to be taken into custody and repeatedly denied bail because she could influence the course of investigations for the worse. How then would the law deal with a person occupying the single most important position in the political executive, who quite possibly, could paralyse the investigations? The only credible answer, consistent with current practices, would be that PM against whom investigations are underway, should rightfully be in prison and ineligible for bail till investigations are completed and charges framed.

In a basic sense, the JLP proposals should be read as an intrusion into the sovereign domain of parliament, an unseemly power grab.

The affirmation of this principle – that the PM is answerable to parliament, which should hold him to the highest standard of probity – may occasion some bemusement, since it has long since been lost in Indian parliamentary practice. The clamour for a JLP that will have jurisdiction over the PM, effectively states that the loss of public faith is irretrievable. This inference would be consistent with the general mood afoot, of a complete loss of faith in elected institutions as embodiments of the popular will.

Precisely because of this, it is necessary to make one final attempt at retrieval. Because it allows no room for retrieval, Team Anna is prepared to trample all over another basic doctrine of constitutional governance. Article 50 of the Constitution, part of the Directive Principles, obliges a separation between executive and judiciary. This is a directive that the “State” has to abide by in its public services.

Fatal damage to doctrine of separation of powers
Team Anna conceives of a body that would be the final solution to all problems of misgovernance, and would have powers that straddle the realms of the executive and judiciary. The JLP proposed by the Anna Hazare cabal would have powers of investigation and prosecution in any matter involving the suspicion of corruption. It could impose fines and orders of dismissal from service, it could annul contracts solely at its discretion. Where it is compelled to go by the judicial route, it would have the powers to determine how many special courts should be appointed to deal with cases that it files and determine the composition of the judicial benches that would deal with these cases.

Kejriwal was on a talk-show hosted by Karan Thapar on CNN-IBN on August 20, where he argued frenetically that he had the right to represent his political point of view in any manner thought appropriate. When asked about the damage caused to the representative processes of democratic politics – in even the imperfect form practised in India – he repeatedly made the effort to distinguish between the “people” and parliament. Clearly, in his imagination, India's parliament is elected by aliens from outer space. And a gathering at Ramlila Maidan in Delhi, spectators to an uninformed old man’s decision to deny himself all nourishment for an indefinite length of time, counts for more than all the history and precedent that has gone into the construction of Indian democracy.

Worries about excessive concentration of powers are batted away by Team Anna. The process of judicial review enshrined in the Indian Constitution, they say, would be applicable in any matter decided by the JLP. This would be the final guarantee against an abuse of power by a monstrously empowered JLP. Yet it does not take too long to realise that this is simply begging the question. If it all finally comes down to the judiciary, that should be the focus of attention. Judicial reforms and the various means of making the institution more accountable, should really be where public attention is directed. And similarly with the agencies of the political executive and the legislature.

Anybody reasonably familiar with the history of India’s constitutional democracy, would realise that a JLP as conceived by Team Anna would be the worst possible response to its ills. Against the imperative of deepening representative processes and allowing greater room for the expression of opinions by all, the JLP draft conceives of a rigid, hierarchical structure, armed with extraordinary powers. It aims to create a body straddling the realms of the formation of law, its implementation and oversight, seeking a vantage point from which it would coerce and intimidate every other institution into compliance. It does not take more than one reading of the JLP draft -- and a basic familiarity with preceding variants -- to see that it is conceived in monumental ignorance of basic constitutional principles and processes. Fundamentally, the JLP draft is about a belief in messianic deliverance from the difficulties that ordinary people today face.

Waters will not part before this messiah

Investment in this messiah is almost guaranteed to fail, since the waters are not going to part before him. The trek to the promised land will likely be interrupted by basic constitutional difficulties. Legislative bodies will question the JLP's intrusive jurisdiction and seek a better way of codifying their privileges, rather than surrender to the powers of this newly minted constitutional body. Judicial benches will reject the conceits of the council of the wise that seeks to impose its frenetic moralism on established procedures. And the political executive will retain all the necessary means to thwart the JLP's quixotic tilting against windmills.

Team Anna's supposed revolution has laid the pathway towards a collapse of constitutionalism, since the response of its ardent flock to the reality of failure is unlikely to be either thoughtful or constructive. A JLP that performs in accordance with the Team Anna script would guarantee not salvation from corruption, but political gridlock. And that would be the most optimistic forecast, since the alternative could well be the worst form of political despotism.