Only a fair press can be a free press

Only a fair press can be a free press

- By Fali S. Nariman

In the dictionary — not the Oxford or the Cambridge — but in a lesser known work, the Doubter’s Dictionary, "ethics" is defined "as a matter of daily practical concern described glowingly by those who intend to ignore it."

To me "media ethics" means fetters, not freedom. Many years ago the London Times in a grand editorial stressed the importance of public faith in the press as being more fundamental than any constitutional guarantee: "Those who wish to maintain the freedom of a nation must stand behind the editorial freedom of the press, even though they know it will sometimes be abused and often wrong in its judgements. Those in the press who want to maintain its freedom must also try to raise the standard of its news-reporting, its sense of responsibility, its willingness to report all sides and its essential fairness. Only a fair press will retain the public confidence that is needed by a free press."

There we have the right balance — in public perception, it is only a fair press that can really call itself a free press.

Freedom of the press is cherished in all free societies (and tolerated) not for the benefit of the press as an institution but for the greater public good. A.H. Sulzberger, president of the New York Times, made the point many years ago, when he said, "The crux is not the publisher’s freedom to print; it is rather the citizen’s right to know." (William Safire’s Political Dictionary, page 614)

This new right, the right to know, has successfully shouldered itself into a position of pre-eminence under most legal systems of the world including our own.

The role of the press (in referring to the "press," I use the word compendiously encompassing all forms of mass communication including dissemination of news and views in the electronic media) in a state governed by the rule of law is pre-eminent. While it must not overstep the bounds set by law: for instance, for the protection of the reputation of individuals (which includes public officials in the state), it is nevertheless incumbent on the press to impart information and ideas on political questions and on other matters of public interest. Such other matters may also include questions concerning the position and treatment of minorities, and of democratic institutions including courts.

Not only does the press have an obligation to the public which it serves of disseminating all such information and ideas freely and fearlessly — but the public has also the right to receive them. If it were otherwise, the press would be unable to play its vital role of "public watchdog."
The press is also the only means by which politicians and the public can verify whether judges (insular and secretive as a class) are discharging their onerous duties in a manner that is in conformity with the tasks constitutionally and statutorily entrusted to them.

A vigilant press is the handmaiden of effective judicial administration. The press does not simply publish information about cases and trials but subjects the entire hierarchy of the administration of justice (police, prosecutors, lawyers, judges, courts), as well as the judicial processes, to wider public scrutiny.

Free and robust reporting, criticism and debate contribute to public understanding of the rule of law, and to a better comprehension of the entire political and justice system. It also helps improve the quality of these systems by subjecting it to the cleansing effect of exposure and public accountability. "Sunlight" as Justice Brandeis once said, "is the best of disinfectants. And electric light is the most efficient policeman."

But the question remains: is there a legal basis for the notion of a responsible free press? I believe there is: responsible, yes, but not responsible to any government; or to any business tycoon, or magnate or politician; or to any mantra like "media ethics." The press is responsible only to the Constitution which has given the fourth estate this freedom: responsible to help propagate the ideals and purposes in Part IV of our Constitution (Directive Principles of State Policy).

Every Constitution must have an ideal and purpose, and the more I get acquainted with this longest Constitution in the world the more I believe that its heart is in Part IV.

If we look for the reason why we have floundered, over five decades why we have not been able to successfully work the Constitution — despite the efforts of editors, politicians, lawyers, commissions and committees — it is only because we have not had the will to implement the Directive Principles of State Policy — principles declared fundamental in the governance of the country. The Constitution has imposed a duty on the state to apply these principles in making laws: and it is the responsibility of the press to make governments in the Centre and in the states alive to that duty. Call it "ethics" if you like, but that is about the farthest extent I would go in propagating media ethics.

That the press should be responsible and responsive to some ideal is a view not widely shared abroad.

The UN had organised a conference in Durban (South Africa) in August 2001 on racism — which gave rise to much controversy in India as well, because one of the side questions was whether caste was an issue akin to racial discrimination. In her message to that conference, the then UN high commissioner for human rights, Mary Robinson, had a statement assigning to the news media an ethic — what she described as "a moral and social obligation to fight racism and associated evils." But it was not well received by the world press. The World Press Freedom Committee which operates from the US shot off a newsletter, a copy of which was forwarded to me. It took strong exception to the statement. "The news media’s job is to report news — not to support particular social principles," said the chairman of the World Press Freedom Committee. And in a letter to Mary Robinson he said, "The press must not be assigned roles or obligations by outside forces": that was the theme, the so-called justification for absolute press freedom — that is, freedom also to preach racial discrimination or "associated evils"!

The World Press Freedom Committee (in my view) was tilting at windmills. There are no absolutes in freedoms anywhere. In our Constitution we have Article 301 contained in Part XIII. It says that "subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free." It is modelled on Sec. 92 of the Australian Constitution which provides that "trade commerce and intercourse among the states shall be absolutely free." But what is "absolutely free"?

The question arose in a case (from Australia) that went up to the Privy Council: In a celebrated passage frequently quoted, Lord Wright said, "The first question is what is meant by ‘absolutely free’ in Sec. 92. The word ‘absolutely’ adds nothing. The trade is either free or it is not free.

"‘Free’ in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law." [James vs Commonwealth of Australia 1936 (2) AER 1449 at 1473 PC]

Freedom of the press in the US Constitution is expressed in terms which are absolute: "Congress shall make no law … abridging the freedom of speech or of the press…" Professor Tribe calls it the "Constitution’s most majestic guarantee." And yet down the years, the Supreme Court of the US in a catena of decisions has set its face against any absolute freedoms in the free-speech-and-press cases: the decisions are laboriously set out, analysed and studied in the course of nearly 300 printed pages of Professor Tribe’s book. (American Constitutional Law, Second Edition by Lawrence Tribe Chapter 12, pages 785 to 1061)

Freedom of the press not being absolute, should the media then not be sensitive to some aspects in society? How should they react? Let me begin with a personal anecdote.

Before December 1998 I was instructed, and was appearing for quite some time, as the senior counsel for the state of Gujarat in a public interest litigation in the Supreme Court of India — a PIL filed on behalf of tribals who were displaced and to be displaced by the rising height of the Narmada Dam in Gujarat.

The principal question was whether the indigenous people of this country had an inherent right to live wheresoever they chose and in the manner in which they had been living for centuries, or whether and to what extent they could be compelled to shift to higher locations in the wider public interest. Linked to all this was the question of whether there were adequate measures of rehabilitation provided by the state government. While this case was pending, the then chief minister of Gujarat, called on me at my residence in New Delhi.

It was a courtesy call, but since a few days before he called on me I had read from press reports that Christians in certain parts of Gujarat were being harassed and their Bibles were being burnt, I told him that this action (though having nothing to do with the Narmada case) was something which was totally anathema to me and I would like to see this stopped. He assured me it would be, and in fact said that really there was nothing in it.

Then a couple of months later since there was some policy decision to be taken about improved measures of rehabilitation in the Gujarat case, the then chief minister again called on me. The lot of the Christian minorities had worsened by then. The media had reported that not only Bibles, but churches were also being desecrated, and some destroyed, in various parts of the state. I was extremely annoyed and told him that unless this improved I would have to do what I thought was correct in the circumstances.

Again came more reassurances, but all to no effect and then ultimately in December 1998 since nothing was done at all by the then Gujarat government to alleviate the plight of the Christian minorities, I returned my brief and said I would not appear for the state of Gujarat in this or in any other matter. This caused quite a furore.

The point of the story is not my bravado in returning the Gujarat brief, the point is that but for the revelations by the media — that is, its responsibility as a free press to disseminate information which was of concern to the general public — I would have been ignorant of and would not have known (living in the capital city of Delhi) about what was happening in remote parts of Gujarat.

It was the press which brought these attacks on minorities to light. And I think that it disclosed a very important aspect of press responsibility (or if you don’t like the word "responsibility," of press ethos) — which is, to lean always on the weaker side, and to effectively perform the role of an Opposition to a government whether it is a government at the Centre or of a state. This to me is one of the finest attributes of a free press and the essential role of a responsible press. And this is why when dictatorial governments take over and parliamentary systems of governments are given a go by, the press is always the first victim (next come the lawyers especially the human rights activist lawyers, and then the NGOs).


Introducing "media ethics" would make the press supine: my advice is leave it alone because — particularly because — tyranny fears newspapers; not the rest of the media, not television, only newspapers. Tyrants live in fear of them, and suppress them when they can: sometimes they do it gently calling it "media ethics" ("don’t criticise our top leaders etc, etc"). Sometimes they do it not so gently. The infamous Martial Law Decree of General Jaruzelski, (issued in Poland in December 1981), when a wide range of civil liberties were banned, is a case in point. It is worth quoting in full:

"Good afternoon, Comrades,

"I have the responsibility and the honour of providing to you the rules which have been constructed by the People’s Party to ensure that all our citizens enjoy the restoration of order and truth.

"First rule: Distribution of any publications and the use of printing equipment of any kind will require prior government approval.

"Second: Mail, telephone services and other telecommunications are suspended. They will resume as soon as the Censorship Directorate is fully staffed.

"Third: One radio station and one television station will be operating — both from the capital. I will be the commentator.

"Finally, you may ask what you should do to obtain the government approval necessary for any printing. We are working on that. We’ll let you know.

"Meantime, please understand, Comrades, no newspapers."

No newspapers, that was the thrust of the martial law decree in Poland issued in December 1981. And it had its effect, it was only the endurance and courage of the leaders of Solidarity and other great nationalists that helped overthrow the Jaruzelski government — but not without a fight, not without bloodshed.

Jaruzelski’s Decree must never happen again, anywhere. It can never happen again in a free society governed by the rule of law.

But what about abuses of information, circulation of false information and character assassination by the press? The Press Council can take care of that — but it must remain a Press Council without much bite: any form of press control degenerates into government control. Are the blessings of a free press really worthwhile?

There is only one answer to this and it was given effectively by India’s Supreme Court way back in 1950 — the year of the birth of our Constitution. Justice Patanjali Sastri speaking for himself (and Chief Justice Kania, and Justices Mahajan, B.K. Mukherjee and Das) in a Constitution Bench decision in Romesh Thapar’s case, said: "Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, that ‘it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits" (Quoted in Near v Minnesota, 233 US 607 at 717-8) (AIR 1950 S.C. 124)

That answer held good in 1950. It must hold good today.


Fali S. Nariman is Senior Advocate, Supreme Court of India, and the president of Bar Association of India

Interview with Dr RM Pal on Hindutva and Fascism in India

Interview with Dr. R.M. Pal on Hindutva and Fascism in India

"Hindutva and Fascism have much in common"
-- By Yoginder Sikand

9 January 2004

Dr. Rai Mohan Pal, a noted Indian human rights activist, used to teach English at Delhi University. He has edited the Bulletin of the People's Union for Civil Liberties (PUCL) and the monthly Radical Humanist founded by M.N. Roy. Here he speaks to Yoginder Sikand about the human rights’ movement and the struggle against Hindutva and fascism in India.

Q: You have been quite active in speaking out against Hindutva. How do you link the movement against Hindutva with the wider human rights movement in India?

A: Hindutva, as I see it, is the modern form of Brahminism. I believe that Brahminism and fascism share much in common, and just as the philosophy of fascism is based on the negation of human rights, so, too, is the philosophy of Brahminism. In fact, Brahminism is a philosophy based on the gross violation of the fundamental rights of entire social groups—women, Shudras, Dalits and tribals, as well as groups such as Muslims, Christians, Buddhists and Sikhs, who, when added up, form the vast majority of the Indian population. The violation of the rights of so many mi11ions of people because of the caste system upon which the Brahminical religion is based is as important a concern for us as theviolation of rights by individuals or the state. Unfortunately, not many groups in India today, even within the human rights movement, are giving due importance to this societal violation of human rights.

Fascism is a major source of human rights' violations the world over. It has its own philosophy which takes different forms and adopts different methods in different contexts, but the philosophy remains the same. M.N. Roy, the founder of the Radical Humanist movement, was the first to point out the fact that the roots of fascism lie in the ancient Brahminical religion, and he showed how European, particularly German, fascist philosophers borrowed concepts from Brahminical scholars and scriptures, concepts such as the Aryan race theory, the supremacy of the strong over the weak, the concept of the tyrannical superman and so on. In fact, M.N. Roy issued a' sharp warning to Indians not to fall prey to Hindu revivalism because he saw that it was nothing but fascism in a different garb. You can see that for yourself. What was the destruction of the Babri Masjid and the mass slaughter of the Muslims but naked fascism? Goebbels, Hitler's chief propagandist, wrote in one of his books, 'The state must have the power to break its own laws'. That is precisely what happened on 6 December, 1992. The state was actively involved in the breaking of the mosque. Goebbels also remarked, 'Repeat a lie- a hundred times and it becomes a truth'. You can see this Chanakyan tactic in all the false Hindutva propaganda about Muslims, Christians and Communists. See what horrendous and baseless things they are writing about Muslims in the school textbooks now. They have attributed all the ills of India tothe Muslims, painting all of them as immoral.

Q: Could you elaborate further about your claim of the Brahminical rootsof fascism?

A: The social basis of Brahminism has historically always been the caste or varna system, and so it remains till this very day. And what is the ideology of varna but a reflection of fascism? The Nazis divided humanity into five categories: the so-called 'pure' Aryans, such as blonde, blue-eyed Germans; other Europeans; the Slavs; the Asiatic peoples; and, lastly, the Africans, whom they hardly considered human beings at all. Likewise, in the varna system, which is described and prescribed in all the texts of the Brahminical religion, starting from the Rig Veda, humankind is divided into five groups or varnas, which are placed in a steeply hierarchical order—the Brahmins; the Kshatriyas; the Vaishyas; the Shudras; and others like the so-called 'untouchables' and other non-Hindus, derisively called Mlecchas, who are described as 'unclean',because they refuse to recognise Brahminical hegemony, and so are considered almost beyond the pale of humanity. You can see from this why so many top RSS leaders so highly extolled Hitler.

Q: How do you view the link between what you call Brahminical fascism andHindutva nationalism?  

A: M.N. Roy had studied this matter in great detail and dealt with it in many of his writings. Unfortunately, as events have unfolded over time, there appears to be a very thin dividing line between fascism, Brahminism and the dominant form of nationalism in India today. We need to reject this straight-jacketed nationalism, this enforced homogeneity, and instead allow for the expression of pluralism, tolerance and secularism. India has always been a very plural society, but frankly, given the horrors of the caste system and the way women here have been treated, who can say that India has been a tolerant society, despite all that Hindutva propagandists claim to the contrary?  You just have to see how the Dalits were and still are treated in the most unimaginably cruel way, how women were forced to jump into the funeral pyres of their husbands, and how Buddhism was driven out of the land of its birth by Brahminical revivalism, to realise the hollowness of the claim that India has been the very epitome of tolerance. And this ugly intolerance is not just a thing of the past. I believe that the mass killings of the Sikhs in 1984 was basically due to the fact that the Sikhs had started refusing to be considered as Hindus, stressing that they were a separate community. This could not be tolerated by the advocates of Brahminical supremacy, who felt that the Sikhs should be taught a 'lesson' to bring them 'in line'. What is this if not naked fascism?

Q: Could you elaborate further on your point regarding the relationbetween dominant forms of nationalism and fascism?

A: As I see it, the dominant notion of nationalism constitutes as divisive an ideology as communalism or fascism. It is based on hatred of the other', so that today the test of being a,'true' Indian has become the intensity of one's hatred for Pakistan or China or whatever. In a country like India, such a form of nationalism becomes a dangerous cult. India, to reiterate a point I made earlier, has no option but to be secular and pluralist and tolerant. This means that we must be guided by a philosophy of humanism.

We just cannot attempt to be a nation-state in the sense of nineteenth century political science theory. We have to recognise that although we have been a highly pluralist society, we have never been tolerant, so the task before us is to retain our pluralism and seek to develop a climate of tolerance. Now both of these—tolerance and pluralism—are directly threatened by nationalism as it is articulated and especially by the ideology of Hindutva. The advocates of Hindutva talk about protecting pluralism, but that is not a pluralism based on equality. Their brand of pluralism demands that Dalits and Muslims and other marginalised and oppressed groups must remain under the Brahminical umbrella as wholly subordinate. This is sheer intolerance.

Q: How do you think the struggle against Brahminism can be carried forward?

A: Unfortunately, we who are struggling for a tolerant and secular society do not seem very clear about our own philosophical and ideological postulates. Hindutva fascism has to be fought at the ideological level, by a superior ideology based on rationalism, and not just on the political plane. A political party challenging the forces of Hindutva can very soon be accommodated by Brahminism, as we learn from the events of recent history. There is no other way out but a philosophical and cultural revolution. Unfortunately, we have never had a total philosophical revolution in this country. Buddhism tried to do this 2500 years ago, but then it was driven out by the Brahmi nical revivalism led by Shankaracharya, who himself used Buddhist tools and concepts for thispurpose. Reformers like Kabir and Nanak tried to do it by challenging Brahminism, but soon their followers converted themselves into cultic orcaste-like groups or separate communities.  Kabir and Nanak were converted into cult figures and their radical message of social revolution was forgotten. Instead of revolutionising the entire society, the Kabirpanthis and the Nanakpanthis emerged as new communities, thus adding to the already bewildering number of castes. I am of the firm opinion that unless we have a philosophical revolution in India today, real and meaningful social change in India is impossible.