Facets of Media Law by Madhavi Goradia-Divan
In the glut of legal publishing in India today, far too many tomes are rushed into print with little scholarship and less insight. Few merit serious attention or repay study. Fewer still contain original analysis. It is a rare book that dares traverse uncharted territory. Madhavi Goradia-Divan’s Facets of Media Law is the latest addition to this select class.
Media law covers a wide spectrum, from obvious issues of copyright and broadcasting to more troublesome questions of hate speech, censorship and parliamentary privilege. The word media itself is elastic. The underlying technologies change daily, and every change pushes the frontiers of the law. Perhaps more than any other, communications technology has an impact well beyond its immediate purpose; every innovation poses a new challenge and raises more questions than it answers. Video conferencing, for example, was the stuff of science fiction not two decades ago. Today, it is an integral part of the legal trial process, even in criminal trials. Proliferating television channels and multicultural programming bridge territorial boundaries in a manner never seen before, and seriously undermine the tenability of any regime of censorship. Streaming media and the capacity to transmit huge amounts of data very quickly owe their technological origins to an industry that is almost entirely illicit in most parts of the world. What form must the law take to keep the technology while effectively regulating the industry that spawned it? This is a fairly typical conundrum in media law. There is very little legislation, and certainly no unifying, well-thought statutory framework to effectively govern the several facets of media law. Ms Divan clearly accepts this, as the felicitous and carefully measured title of the book shows.
Ms Divan’s book is remarkably au courant and has an uncommon freshness and relevance. The Appendix, evidently added very latterly, includes comments on the Jessica Lal, Mattoo and Nitish Katara cases, all very much still in the public eye; as also a withering comment in a footnote on the media-hungry conduct of a hospital in the recent imbroglio about Rahul Mahajan’s alleged drug overdose. Ms Divan says:
“Increasingly trials are being conducted by the media and this is likely to affect the impartiality of investigations. The media provides a wide public platform for all those involved in a trial to be seen and heard. Everyone from the accused, their families, witnesses, hangers-on, lawyers, doctors and investigating agencies actively court the media to present their side of the story. … That Zaroo the young man who claimed to have procured drugs for Mahajan thought it necessary to present himself before national television before surrendering to the police is perhaps a reflection on the lack of faith in the legal system. For the television channel, it was a coup over other channels and sent the TRPs soaring. This media circus was a top story being covered round the clock for days and eclipsed all other news.”
Stating a view vigorously is certainly refreshing, but it carries its own risks and, inevitably, Ms Divan’s comments frequently collide. For instance, while she is scathingly critical of the media and those enamoured of it in the Mahajan episode, she also extols the media’s role in the Jessica Lal case. The thesis seems to be that it is only because of the media blitz that the Delhi High Court ordered a reinvestigation. While Ms Divan admits that “there is a danger of a trial by the media”, she adds that “had it not been for an activist media, the public would not have been adequately equipped to vocalise its demand for justice and the mater might well have died a quiet death with the guilty going unpunished … reinforcing the public perception that the criminal justice system rarely brings justice to the common person.” It is not easy to reconcile these positions; after all, the same distrust of the judicial system prompted both the reopening of the Jessica Lal case and Zaroo’s appearance on television. To support one and criticise the other is to say that the ends justify the means.
In the chapter on morality, obscenity and censorship, Ms Divan does not revisit the Supreme Court’s Ranjit Udeshi decision which, though it may still be law, is entirely outdated in what it holds (Lady Chatterley’s Lover is not considered obscene by anyone except those on the lunatic fringe). Nor does she analyse Justice Bharucha’s clarion call for free speech in Bandit Queen. Personally, I would have liked to see, too, a more detailed treatment of the Pratibha Naitthani case. That decision of the Bombay High Court was deeply offensive to many citizens. For the most part, Ms Divan relegates it to footnotes, and one gets the distinct impression that she finds nothing unexceptionable in a decision to ban adult programming on television because an ill-advised, immature and arguably unconstitutional statute seemed to require it. That the decision was widely ignored except in the Bombay — Naitthani’s city — cannot be coincidence and is itself a criticism of the decision. But, in her conclusion Ms Divan acknowledges that “the internet age and the breakdown of traditional barriers is [sic] rendering censorship increasingly futile”. Equally, she says that “[T]o imagine that one can foster better morals in society by keeping out depictions of the immoral or indecent is as naïve as thinking, in Milton’s analogy, that one can keep out the crows by shutting the park gate”. This is not merely a comment on a zeitgeist — baying for a public ban on matters that are personally offensive — but is also quite clearly a criticism of those who give in to such demands be they policy makers, law makers or decision givers.
These are not easy issues, and Ms Divan tackles the polemics squarely, unhesitantingly taking a position even when the lines dividing right from wrong are very thin. Ms Divan’s commentaries are the book’s major strength (and it certainly helps that her writing has grace and lucidity). She does not baulk at criticism of judicial approaches either. The chapter on Contempt of Court is especially striking. Speaking of Arundhati Roy, Ms Divan succinctly demonstrates how the Supreme Court allowed itself to be led down the garden path by Ms Roy. Ms Divan’s view that a more broad-shouldered approach can only strengthen, not weaken, the judiciary, is one that merits sombre reflection — and not just by a common reader.
Dealing with awkward issues, Ms Divan deftly steers clear of the temptation that marks so much Indian legal writing — a mere recitation of decisions with no attempt at serious collation or analysis. Ms Divan takes issues like Parliamentary privilege, privacy, hate speech, copyright and, while she does set out the law, both statutory and decisional, she travels much further afield. The analysis is of a high order. Her arguments are closely reasoned and her extensive research takes her beyond the confines of statute books and law reports: we have references to blogs, websites and much non-technical material including popular Indian magazines (Outlook, Seminar, India Today), international magazines (even the New Yorker is cited), and writing by journalists and authors outside the legal profession. While styled as a book for the legal profession, it is equally accessible to the lay reader. The one significant failing of the book, though, is the lack of a more thorough bibliography. The present bibliography (probably intended to be a select bibliography) is altogether too perfunctory.
When, in his foreword, Justice D.Y. Chandrachud of the Bombay High Court says that “a book of this nature is a precious asset”, he is only partly correct and the comment may have been truer of a work dealing with an established facet of the law. Where the very nature of modern technology drives the law in new directions; where the law is incapable of meeting new demands; where technologies alter irrevocably the way people work and live and, therefore, demand rapid and radical changes in the justice delivery system, a work like Facets of Media Law is significantly more than an asset. It is also a catalogue of failures of statutes and judges, leavened by only the very occasional success. As a commentary, the book might well serve as a road map for the future of the law on the subject. The book is also a significant liability to the author: for, ironically, the disconnect between startling technologies and a lumbering legal system clamours daily for a revised and updated edition.