Writ Petition Restrain Television.com

1

IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION) WRIT PETITION (Civil) No.

of 2008

SYNOPSIS 01-Jan-2006 to India, our country, is rapidly losing its war on terror. At last count, in terms of present day fatalities due to terror acts, it keeps company with a host of nations that are ravaged by war, run over by anarchy, armed rebellion, military coup, civilian disobedience and mutinies, famine, bankruptcies and ignominy – Iraq, Afghanistan, Sudan, Congo, Nigeria, Pakistan and the like. For the years 2005, 2006 and 2007, India is clearly ahead of every other country in the world except Iraq. Of the 404 television channels licensed to operate in India, a number of News and Current Affairs channels have engaged in conduct that is detrimental to the nation’s fight against terror. With respect to the recent Mumbai attacks, they have put assaulting terrorists on air to freely express their views and to state what motivated them to do so, have declared exclusivity in unraveling more sinister bids upon the country by relaying the confessions of ‘arrested terrorist’, have themselves connected several ongoing investigations, formed their own ‘television conclusions’ and have consulted banned terrorist outfits to support ‘television conclusions’, have aired inflammatory speeches of leaders of banned terrorist outfits and have freely offered airtime to suspected terrorists to

2

declare their innocence and have performed many more acts that portray and magnify terrorists’ actions even while according minimal role to the institution of our Government. While no democratic country imposes restraint upon free exchange of news and views, the fact remains that it is neither a traditional nor a legitimate function of the media to facilitate communication between the terrorists and people they terrorize. The reporting of terrorist strikes by the Television media in the context of information circulated by the terrorists through these channels is bound to have a contagious effect upon people prone to violent tendencies. Their dramatization and spectacular portrayal further increases the probability that other groups or individuals will emulate the violence being reported. The unrestrained style of reporting terrorist incidents by Television media vicariously contributes to the terrorists’ sense of accomplishment and runs the risk of significantly prolonging the consequences. To disseminate terrorists’ messages in such a context is to violate public peace. The media is not immune from ordinary criminal laws and the petitioner maintains that the fundamental right of the citizens of this country to secure a peaceful existence is considerably threatened by the acts of terrorism upon the Indian soil and the media’s involvement in facilitating dissemination of terrorists’ messages, statements and announcements considerably infringes upon citizens peaceful existence. The media is operating here in the context of actual acts of terrorism and their uninhibited conveyance of messages from terrorists to the people without any government interface, specifically in the

3

context of actual strikes, takes them away from the role of a mere ‘messenger’ and puts them, under extreme circumstances, in the position of an ‘aid/extension’ of the terrorists. Media and terrorism are linked in democratic societies. Terrorism, by its very nature, is a psychological weapon that depends on communicating a threat to the wider society. This is why there is a relationship between media and terrorism based on mutual need. The media in an open society is in a fiercely competitive market for their audiences, constantly under pressure to be first with the news and to provide more information, excitement, and entertainment than their rivals. Success is reflected in increasing ratings, which then yield higher profits. Hence, they are almost bound to respond to ‘terrorists’ deed’ because it is dramatically bad news. Acts of terror and media coverage of the same share a ‘symbiotic relationship’ with one another. In view, thereof, restraint upon the television media has become absolutely essential to contain the escalating insecurity among the people of this country. The omission of Government Respondents to restrain Television Media Respondents from disseminating messages and statements from the terrorists to their viewers in India is clearly actionable before a Court of Law competent to direct a public body to discharge its legal duty to the public. Consequently, this petition is filed seeking the issue of a Writ of Mandamus upon Government Respondents to restrain Television Media Respondents from facilitating or relaying communication from suspected or apprehended terrorists to their viewers in

4

India forthwith unless the Government Respondents consent-in-advance to such relaying of communication. 13-Dec-2008

Hence, this Writ Petition filed under Article 32 of our Constitution for the protection of a fundamental and paramount right of citizens to public peace, to compel the Government, in the light of a failure of its duty to restrain the media, to restrain the television media from relaying or disseminating messages and communication from suspected terrorists.

5

IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION) WRIT PETITION (Civil) No.

of 2008

IN THE MATTER OF:A WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA ESTABLISHING A BREACH OF DUTY OWED BY GOVERNMENT RESPONDENTS TO RESTRAIN MEDIA RESPONDENTS FROM RELAYING OR DISSEMINATING MESSAGES AND COMMUNICATION FROM SUSPECTED TERRORISTS AND FOR RELIEF OF A MANDAMUS UPON GOVERNMENT RESPONDENTS TO SO RESTRAIN MEDIA RESPONDENTS FROM BREACHING A FUNDAMENTAL AND PARAMOUNT RIGHT OF CITIZENS TO PUBLIC PEACE. AND IN THE MATTER OF: 1

Shekar G Devasa Advocate No.43 36, Ajanta Apartments IP Extension Near AVB Public School Patparganj New Delhi – 110092

Petitioner

VERSUS 1

Union of India Represented by Secretary Ministry of Information and Broadcasting Room No.655, ‘A’ Wing Shastri Bhavan New Delhi 110 001

2

Union of India

Respondents

6

Represented by Secretary Ministry of Home Affairs, North Block Central Secretariat New Delhi – 110 001 3

NDTV Television Archana Complex Greater Kailash Part – I New Delhi -110 048 Represented by its Editor-in-Chief

4

CNN-IBN Television Global Broadcast News Express Trade Tower Plot No. 15-16, Sector-16A Noida – 210 310 Uttar Pradesh Represented by its Editor-in-Chief

5

HEADLINES TODAY Television 8th Floor, Videocon Tower E-1 Jhandewalan Extension New Delhi – 110 055 Represented by its Editor-in-Chief

6

TIMES NOW Television Times Global Broadcasting Company Limited Trade House, 1st Floor Senapati Bapat Marg Lower Parel Mumbai – 400 013 Maharashtra Represented by its Editor-in-Chief

7

NEWS X Television INX Media Pvt.Ltd INX House Dr. Dadasaheb Bhadkamkar Marg Grant Road (East) Mumbai - 400 007 Maharashtra Represented by its Editor-in-Chief

7

8

AAJ TAK Television 8th Floor, Videocon Tower E-1 Jhandewalan Extension New Delhi – 110 055 Represented by its Editor-in-Chief

9

INDIA Television Independent News Services Private Ltd (India TV) Film City Sector 16A Noida – 201 301 Uttar Pradesh Represented by its Editor-in-Chief

10

LIVE INDIA Television 6th Floor, Adhikari Chambers Oberoi Complex New Link Road Andheri West Mumbai – 400 053 Maharashtra Represented by its Editor-in-Chief

11

ZEE Television Essel Studio FC-19, Sector 16-A Noida – 201 310 Uttar Pradesh Represented by its Editor-in-Chief

12

SAHARA Television Samay Live Sahara India Center 3rd Floor 2, Kapoorthala Complex Aliganj Lucknow – 226 024 Uttar Pradesh Represented by its Editor-in-Chief

13

STAR NEWS Television Media Content And Communications Services (INDIA) Pvt. Ltd

8

A-37, Sector 60 Noida – 201 307 Uttar Pradesh Represented by its Editor-in-Chief 14

EENADU Television Shodaya Enterprises Limited Eenadu Complex Somajiguda Hyderabad – 500 082 Andhra Pradesh Represented by its Editor-in-Chief

15

TV9 Television No.97, Road No.3 Banjara Hills Hyderabad – 500 082 Andhra Pradesh Represented by its Editor-in-Chief

16

KASTHURI Television Kasthuri Media Pvt Ltd. No.12 & 12/1, Kasturba Road Bangalore – 560 001 Karnataka Represented by its Editor-in-Chief

17

SUN Television 4, Norton Road Mandavelli Chennai – 600 028 Tamil Nadu Represented by its Editor-in-Chief

18

ASIANET Television Asianet Communications Ltd. Asianet Complex, Puliyarakonam PO Trivandrum – 695 573 Kerala Represented by its Editor-in-Chief To The Lord Chief Justice and his Lord’s Brethren Justices

9

The Humble Petition of the Petitioner above named, Respectfully Showeth:

1. The Petitioner is 32 years old and is a resident of New Delhi.

He is an Advocate in practice at this Hon’ble Court and at the High Court of Delhi and other courts in Delhi subordinate to the High Court of Delhi. 2. The petitioner has filed this writ petition under Article 32 of

our Constitution as a Public Interest Litigation (PIL) for the enforcement of the fundamental right of the citizens of this country to secure protection against invasion of public peace by the acts of Media Respondents, 3 to 18. 3. Respondent 1, the Ministry of Information and Broadcasting,

is the executive branch of our Central Government which plays a ‘significant part in helping people to have access to free flow of information. It also caters to the dissemination of knowledge and entertainment to all sections of society, striking a careful balance between public interest and commercial needs, in its delivery of services. Ministry of Information & Broadcasting

is

the

apex

body

for

formulation

and

administration of the rules and regulations and laws relating to information, broadcasting, the press and films.’1 4. Respondent 2, the Ministry of Home Affairs, is the executive

branch

of

our

Central

Government

that

‘discharges

multifarious functions, important among them being the maintenance of Internal Security.’2

1

Prefatory statement of the Ministry

2

Prefatory statement of the Ministry.

10

5. Respondents 3 to 18 are Television ‘News and Current Affairs’

channels permitted by Respondent 1, the Ministry of Information and Broadcasting to operate in India. No entity is permitted to operate a Television channel in India unless the same is first registered and licensed by Respondent 1. At last count, a total of 404 television channels have been permitted by the Ministry of Information and Broadcasting to operate in India. Respondents 3 to 18 are the major News Channels amongst the said 404 television channels. Respondents 3 to 18 are primarily devoted to news and current affairs. They are available to subscribers across the country and the advent of Direct-To-Home (DTH) has made it possible for people residing in the most remote corners of our country to gain access to every channel aired across the country. 6. The Petitioner expresses great concern at the frequency,

magnitude and scale of the escalating terror attacks in the country. The Petitioner expresses regret for the fact that our country is losing its war on terror. ‘Since 2006, India has witnessed at least 73 incidents of terrorist attacks. The frequency of these strikes has accelerated rapidly in the past two years: there were 12 attacks in 2006, 13 in 2007 and there have been 48 to date in the current year.’3

‘The conflict in

Jammu and Kashmir, attacks by extreme Leftist Naxalites and Maoists in eastern and central India, assaults by ethnolinguistic nationalists in the north-eastern States, and terrorist strikes nationwide by Islamic extremists took more than 2,300 lives this year’4. Given the magnitude, frequency and the regularity of terror attacks upon Indian soil, it must be said 3

Institute for Defence Studies And Analysis

4

2007 Report on Terrorism – United States National

Counterterrorism Center (NCTC)

11

that our country is losing its war on terror and terrorists are increasingly emboldened to strike bigger and perform more daring attacks. The recent Mumbai terror attacks are, by the terrorists’ own statements and admissions on the media, signs of escalating ambitions and security agencies caution that more is to be expected. 7. Some of the major terrorist attacks on our country over the

last three years may be noted: Date

Place

Casualty

26-Nov-2008

Mumbai

188 people killed, 293 injured in the attacks at Chhatrapati Sivaji Terminal, Oberoi Trident, Taj Mahal Palace And Tower, Leopold Café, Cama Hospital, Nariman House and Metro Cinema

30-Oct-2008

Assam

Atleast 45 killed and 100 injured in 18 terror bombings across Assam

17-Oct-2008

Imphaal

17 Killed in a powerful blast near Manipur Police Commando complex

14-Oct-2008

Kanpur

Eight Bombs bicycle market

29-Sep-2008

Malegaon, Maharashtra

5 people die. Bomb kept in a motorbike explodes in a

people injured. planted on a in Colenelganj

12

crowded market 29-Sep-2008

Modasa, Gujarat

One Killed and several injured after an explosion near a mosque

13-Sep-2008

New Delhi

26 people killed in blasts across the city

16-Jul-2008

Ahmedabad

57 people killed after synchronised timing of 20 bomb devices

25-Jul-2008

Bangalore

1 person killed and several injured after co-ordinated bomb blasts across the city.

31-May-2008

Jaipur

68 people killed in serial bombings

25-Aug-2007

Hyderabad

42 people killed in two blasts – one at a popular eatery and another at a public stadium

19-Feb-07

Samjauta Express

66 people killed after 2 firebombs went off on the India – Pakistan friendship train.

8-Sep-2008

Malegaon, Maharashtra

40 people killed in two blasts

11-Jul-2006

Mumbai

209 blasts killed in Seven blasts on suburban trains

six

13

and stations. 7-Mar-2006

Varanasi

21 people killed in three blasts including one at a temple and another at a railway station.

29-Oct-2005

New Delhi

61 people killed in three blasts on the eve of Diwali

25-Aug-2005

Mumbai

46 people killed in two blasts including one near the Gateway of India

24-Sep-2002

Gandhinagar

34 people killed in the attack on Akshardam Temple

8. Under these circumstances, the Petitioner humbly submits

that the Television channels broadcasting news and current affairs, that is, Respondents 3 to 18, have engaged in conduct that is detrimental to the nation’s fight against terror. With respect to the recent Mumbai attacks, they have put assaulting terrorists on air to freely express their views and to state what motivated them to do so, have declared exclusivity in unraveling more sinister bids upon the country by relaying the confessions of ‘arrested terrorist’, have themselves connected several ongoing investigations, formed their own ‘television conclusions’ and have consulted banned terrorist outfits

to

support

‘television

conclusions’,

have

aired

inflammatory speeches of leaders of banned terrorist outfits and have freely offered airtime to suspected terrorists to declare their innocence and have performed many more acts

14

that portray and magnify terrorists’ actions even while according minimal role to the institution of our Government. Respondents 3 to 18 shall be referred to hereinafter as the ‘media’ wherever the context admits. 9. The people of this country have a fundamental right to a

peaceful existence and the same is unduly threatened by the relentless exposure to expanded terrorism brought forth by the media. The media freely contacts suspected terrorists and puts them on air for a free dissemination of their views or denials. While no democratic country imposes restraint upon free exchange of news and views, the fact remains that it is neither a traditional nor a legitimate function of the media to facilitate communication between the terrorists and people they terrorize. 10.The electronic media is unique in terms of its feature – pervasive and intrusive nature of its reporting. By attacking highly visible or sensitive targets in a dramatic manner, terrorists make a direct appeal to traditional news values by exploiting the news industry’s attraction to ‘dramatic, conflict laden and devastating’ tragic events. The media thus unwittingly furthers terrorists’ objectives by publicising an incident that was staged principally for the purpose of spreading fear through the media. 11.The terrorists’ aims are clearly not aimed at individuals but at destroying the values that characterise this nation – diversity, toleration, kindness and a belief in a higher purpose for human life.

15

12. If a citizen of our country were to install a loudspeaker in a

crowded market and relay messages originating from one or more banned terrorist outfits, say, from the PakistanOccupied-Kashmir (POK), he clearly commits the offence of aiding and supporting an assault upon the State and its people even if the content of the message itself is not inflammatory per se. The laws governing such conduct do not apply with equal force to the registered media and the media is subject to a lesser restriction in the hope of furthering democratic goals of facilitating free exchange of views and opinion. However, the liberty confirmed upon the media in our country has resulted in them practically abandoning much discretion in the matter of reporting upon terrorism and competitive pressures have virtually pushed them to compete for ‘scaring the most’. 13.As such, the petitioner, as a member of the affected class, the people of India, begs the leave of this Hon’ble court to direct Government

Respondents

1

and

2

to

restrain

Media

Respondents 3 to 18 from broadcasting any message or communication from any suspect terrorist without the interface of the Government. The petitioner’s insistence upon government interface is to inhibit the media from breaching public peace. 14. While the media is certainly free to express its views and

inherently possesses the right and freedom to facilitate free expression of views and opinions, this freedom does not extend to a liberty to endanger the safety of people at large by disseminating threatening or damaging information with respect to matters pertaining to acts of terror.

16

15. Indian media is subject to fewer or no restrictions in the

matter of content it airs for the public and this fact is welcome by the petitioners. However, the media is not immune from ordinary criminal laws and the petitioner maintains that the fundamental right of the citizens of this country to secure a peaceful existence is considerably threatened by the acts of terrorism upon the Indian soil and the media’s involvement in facilitating dissemination of terrorists

messages,

statements

and

announcements

considerably infringes upon the citizens peaceful existence. While the media is certainly not restrained from relaying live coverage of acts of terror, they violate citizens peace when they put assaulting terrorists on air to freely express their views and to state what motivated them to do so, declare exclusivity in unraveling more sinister bids upon the country by relaying the confessions of ‘arrested terrorist’, connect several ongoing investigations, form their own ‘television conclusions’ and consult banned terrorist outfits to support ‘television conclusions’, air inflammatory speeches of leaders of banned terrorist outfits and freely offer airtime to suspected terrorists to declare their innocence and perform many more acts that portray and magnify terrorists’ actions. 16. The petitioner is not in the least suggesting that our

Government is not at fault in preventing terrorist attacks or that the media should be excluded from reporting truth about our government. Rather, the petitioner asserts that the actions of the media respondents outlined earlier are indistinguishable

from

sympathetic to terrorists.

a

television

station

unwittingly

17

17. The Petitioner further asserts that television channels in the

United States, the jurisdiction with the least governmental restraint upon content of expression, routinely broadcast messages from suspected terrorists and do so without any government interface whatsoever. The fact however remains that those broadcasts are aired in the context of their government effectively preventing any terrorist attack upon their soil ever after 11-September-2001 (the day on which the Two World Trade Centre Towers in New York were hit by passenger planes hijacked by terrorists) and the terrorists statements are disseminated in a context that does not witness an actual terror event. However, the situation prevailing in India is in utter contrast to the situation in the United States. The media is operating here in the context of actual acts of terrorism and their uninhibited conveyance of messages

from

terrorists

to

the

people

without

any

government interface, specifically in the context of actual strikes, takes them away from the role of a mere ‘messenger’ and puts them, under extreme circumstances, in the position of an ‘aid/extension’ of the terrorists. 18.The petitioner furnishes below, excerpts from a scholarly analysis, ‘TERRORIST IS A STAR’ authored by Michelle Ward Ghetti and published in the FEDERAL COMMUNICATIONS LAW JOURNAL, June, 2008: "There is no need to cry in the wilderness when anyone so inclined can plead his case on national television." Since 1982, the lower federal courts in the United States have dealt with the balance between media and the First Amendment in only limited ways. They have dealt with the reporter's privilege and found it insufficient to block the

18

government's access to phone records relevant to funding of terrorism or defendants' access to videotaped interviews of terrorists, they have restricted media coverage of deportation proceedings where terrorism is involved, and they have found no right of the media to imbed a journalist with the troops. They have also dealt with civil claims against media alleging that the media outlet aided and abetted crime or negligently caused harm to another person. II INTRODUCTION. One of the problems of combating incidences of publicityseeking crime is media involvement. Violence or threats of violence have long been deemed ‘newsworthy’ items by the media. Publicity-seeking criminals have recognized this fact and put it to full use. By attacking highly visible targets in a dramatic manner, publicity-seeking criminals guarantee themselves saturated news coverage. They make a shocking appeal to traditional news values by making full use of the news industry's attraction to the dramatic, conflict-laden, and potentially tragic event. The media thus furthers the criminals' objectives by publicizing an incident that was staged for the very purpose of obtaining media coverage. This has come to be called by many as a ‘symbiotic relationship.’ Critics both within and outside the news industry have begun to voice an awareness, if not a concern, for the ease with which such criminals obtain publicity on both a national and international platform. III. THE PROBLEM OF MEDIA COVERAGE OF PUBLICITYSEEKING CRIMES The objectives of terrorists, other than seeking publicity, are often coercion, extortion, disorientation and despair, provocation of unpopular countermeasures, and (with regard to the terrorists themselves) morale-building. If nothing else, commentators seem to agree on one thing - to these people, more conventional means of communication seem to be unavailable or ineffective. Scattered, isolated incidents of violence by themselves are of little use to publicity-seekers in producing their objectives of

19

fear, coercion, and publication of a cause or selfidentification. Terrorists rely on the psychological impact of acts rather than their immediate destructive consequences. To achieve such impact, publicity-seeking criminals need to publicize their acts as widely as possible. Since the mass media have the ability to confer importance upon an individual or an event merely by presenting it, they play a major role in the spreading and intensification of the desired psychological impact. With the advent of increasing numbers of technological communicative advances, publicity-seeking criminals are able to command the immediate attention of millions, enabling these criminals to work their felonious will on whole nations rather than just the hostages in their presence. The media has been described as ‘a powerful force, sometimes more influential than government itself.’ American mass media--electronic (television and radio) and print (newspaper and magazine) -- are commercial enterprises just as any other business. They exist and thrive by making profits. Profits are obtained from selling time or space to advertisers at rates determined by circulation or audience size. The larger the audience, the more each medium prospers. The availability of attention-getting content serves the audience-attracting needs of the industry. The dramatic, often emotional events staged by publicity-seeking criminals make news, sell newspapers, and draw millions to the television set. This adds handsomely to the profits of media owners, advertisers, shareholders, and employees (and no doubt to the job security of the journalists covering the event) and contributes to the overall ‘success’ news reporting has seen in recent years. As the line between ‘news’ and ‘entertainment’ grows less and less visible, and as the commercial objectives of news carriers become more and more evident, publicity-seeking criminals can be expected to continue, if not escalate, their efforts to feed on this audience-attracting need. What if this situation continues to exist? What are the consequences?

20

Professor Bassouini has determined four main effects of media coverage of publicity-seeking crimes: intimidation, imitation, immunization, and imperilization. Media coverage of publicity-seeking crimes often (1) enhances the environment of fear and coercion the terrorists seek to generate (intimidation factor); (2) encourages other individuals to engage in such conduct (imitation factor); (3) dulls the sense of outrage and contempt in the general public (immunization factor); and (4) endangers hostages' lives and interferes with effective law enforcement (imperilization factor). A. Intimidation By focusing on terrorist events and giving them a disproportionate amount of news coverage, the media engenders the feeling in the viewing public that such events are more common and, therefore, more dangerous than they really are. Media, particularly television, gives the effect of authenticity per se. It gives the criminal the auspices of power in a short time, with little effort, on a wide scale. In some respects, the modern ‘terrorist’ is ‘created’ by the media - they magnify and enlarge him and his powers far beyond its true magnitude. In effect, television puts everyone at the scene of the crime, helpless to do anything, engendering feelings of anxiety and fear - the terrorist's instruments of coercion. This public anxiety enhances the perceived power of the terrorist in his own eyes as well as the eyes of his peer group and others. This enhanced power often leads to imitation and the cycle repeats itself. B. Imitation According to leading sociologists, ‘among all the different ways one might behave in given circumstances, any particular way is more likely to be repeated when the circumstances recur if the previous time it was done it was followed by some gratifying experience.’ This is referred to as the ‘operant conditioning model.’ This can also occur as a result of vicarious reinforcement through observational learning. Therefore, if a would-be terrorist sees someone else's terrorinspiring act succeeding (i.e., resulting in a gratifying

21

experience) then the probability that the would-be terrorist will engage in similar acts is increased. If publicity is what these individuals seek, then receiving such publicity is gratifying and rewarding. By providing such a ‘reward’ to publicity-seeking criminals, media is reinforcing and encouraging present and future terrorists. An excellent example of such a phenomenon took place during the Iran crisis. Shortly after the incident began, United States' Embassies were attacked in Bangladesh, Libya, and Pakistan, basically following the steps of the successful Iranians. But, to quote former Surgeon General Jesse Steinfield, ‘There comes a time when data are sufficient to justify action.’ There is a strong argument that the time is now. Ninety-three per cent of police chiefs surveyed in a recent study felt like live television coverage of terrorist acts encouraged terrorism. Sixty-four percent of the general public surveyed in a 1977 Gallup poll believed detailed news coverage of terrorism encourages others to commit similar crimes. It is also suggested that terrorist groups conform to certain media stereotypes in their internal organizational structure, chain of command, choice of targets, time, place, and manner of action, and even in the attitudes of their members. C. Immunization Constant and detailed coverage of publicity-seeking crimes has three less immediate and perhaps more subtle effects on society. First, it increases the level of public tolerance of such crimes and lessens the feeling of righteous indignation. Second, the portrayal of all terrorists as crazies or as individuals and/or organizations beyond society's means of control suggests to the public that there is nothing that can be done to solve the problem. Third, repeated coverage of terrorist events tends to conceptualize the act. Instead of seeing an individual criminal, an individual victim, or an individual policeman, the public perceives roles -- i.e., terrorists, hostages, law enforcement agencies -- being played in a huge chess game.

22

The individual act becomes an event and the human dimensions become lost. D. Imperilization Ongoing coverage of hostage-taking incidents is the hotbed of the media coverage controversy, and yet the problems seen there are probably the most susceptible to legal solution. There are two general areas of conflict: (1) media dissemination of information tactically useful to the publicityseeking criminal and (2) media interference with an effective law enforcement response. 1. Media dissemination of information Media can serve as the ‘intelligence arm’ of the criminal in many ways. Today, in most hostage situations, the criminal has a television or radio device within near proximity. By broadcasting police strategies, activities, plans, or the presence of hidden persons or escaping hostages, the media endangers the lives of the hostages, law enforcement personnel, and innocent citizens. They also assist the criminals in determining escape routes and repelling police assaults. 2. Media interference with law enforcement The physical presence of the media often interferes with the law enforcement agencies at the scene that are trained to effectively handle such situations. The somewhat obtrusive equipment interferes with their free movement and attracts crowds which compound the risk and increase the burden on the police. Questioning by a multitude of reporters can often distract key personnel at critical moments. Direct media contact with the criminal can tie up telephone access, incite the criminal by use of inflammatory questions or phrases, goad the criminal into action to prove himself in the spotlight, and can have the effect of isolating a trained professional negotiator from the mediating process by increasing the role of the untrained media person. Police officials claim that the stampede of journalists to interview terrorists reinforces their sense of power and accomplishment. Often, the mere presence of the media encourages terrorists to remain barricaded or to demand a press conference so as to increase coverage.

23

Why then, with the multitude of bad consequences, do the media continue to grant such all-pervasive coverage to publicity-seeking criminals? The profit motive was considered earlier. Walter Jaehnig, a professor of journalism himself, terms this role the ‘libertarian tradition.’ Libertarianism lacks a moral code or philosophy and promotes moral neutrality. When asked if a distinction shouldn't be made between terrorist acts and civil disobedience and the coverage keyed to such a distinction, an editor of a major metropolitan newspaper answered that ‘once we start making judgments of this sort ... I think the media is ... doing something far different from its basic role of simply informing.’ This idea is simply not true. First, it assumes that such judgments are not already being made. Every day, editors and news producers decide what's ‘newsworthy’ and what's not, how much coverage will be given, how it will be classified, how the headline will read, who will be interviewed, how many reporters and cameras should be sent, and so forth. Second, with the instantaneous coverage permitted by the minicam, the individual decision of where one wants to go and what one wants to see has been taken away from the individual and put in the hands of the press. They have become the eyes and ears of the public -- a conduit, a surrogate. Like it or not, the media has the responsibility of deciding for the public what they want to experience in their lives. The roles of the neutral, uninvolved observer and recorder of fact are antiquated ones if they even exist at all. Particularly in the area of coverage of publicity-seeking crimes, journalists today are often thrust into a life and death situation. Every reporter covering such an event must decide whether his actions are going to be governed by the interests of the hostages/victims, public authorities and the community at large, or the newsgathering and financial interests of his station or newspaper. An additional purpose or role of the free press, as perceived by Justice Stewart and others, is to act as an additional check on the three official branches of government. In fact, the press has come to be termed the ‘Fourth Estate.’ This,

24

arguably, is an important role the media does play. But the coverage of publicity-seeking crimes is not related to the functioning of any one of our three branches of government. Even if the criminal's purpose is to draw attention to what he considers a defect in our governmental system, he must be made to understand that there are many nonviolent ways for his protest to be heard within the legitimate parameters of free speech. He has no constitutional right to express himself in violent ways at the expense of innocent people, yet the media nearly guarantee him just such a right. In addition, there are other ways for the media to provide him a forum for expression and to inform the public about an individual's grievances with our government in ways that do not publicize these violent acts. As argued later in this Article, limited access and perhaps restraints on publicizing life-endangering information prior to the culmination of the event would still allow the public to stay informed and yet alleviate some of the problems related to media coverage of such crimes. These are legitimate observations. It must be remembered, however, that were the media not there to begin with, in all likelihood neither would be the terrorists; the immediacy of rumors usually only affect the immediate area and can be dissipated with minimal coverage. In a trade-off between giving tactical information to the terrorists which would endanger lives and getting tactical information from the terrorists, not many would choose the latter. Also, as has been previously argued, saturation coverage has the same effect on possible escalation in forms of violence as does lack of coverage and media-created anxiety is ‘functional rather than dysfunctional’ only when it prepares individuals to confront danger realistically which current coverage doesn't do. V. SOLUTIONS What, then, can be done? A number of suggestions have been made by both law enforcement officials, government and the media. However, very little else has been done. These suggestions can be divided into two basic groups: non-content-related and content-related.

25

A. Non-content-related Suggestions The most often recommended and probably most feasible suggestion is to limit the media's access to the crime scene. Possibilities include setting up a ‘broadcast area’ near police lines for bulletins and interviews, setting up a ‘briefing area’ for off-the-record information where no cameras or recording equipment would be allowed, establishing a police hotline that would be updated continuously, appointing an official police spokesperson to give periodic briefings, and restricting direct contact with the criminal during an ongoing crime. Another non-content related suggestion is to restrict the use of cameras and lighting or allow only lone camera shots. Finally, some suggest limiting the number of reporters allowed on the scene by using pool reporters to cover activities on behalf of all news organizations and agencies. One journalist, himself having been held hostage, proposed that a committee of editors in the city experiencing the incident be empowered to declare and enforce a ‘news emergency’ under which certain rules of the profession be suspended and where protecting or, at least, not endangering the lives of hostages would be top priority. Anyone violating this rule would be subject to disciplinary action by his employer. It has been suggested that instead of regulating the actual on-the-scene press activities, the law enforcement agencies could offer training to media representatives in handling hostage situations. It is felt that through this educational process the media would become more aware of the problems and be better able to understand the police requests made and consequently be more apt to follow them. B Content-related Suggestions. The content-related suggestions can be further divided into two more groups: limitations on what information is to be released and requirements of specific information to be released. Limiting information: Suggestions to limit information include: Police tactical information which could prejudice the lives of hostages or potential victims should not be released; any inflammatory or aggravating information should be delayed until the incident is over; sensationalism should be avoided;

26

reports should be confined to police disseminated information only, at least until the incident is over; ‘how to’ information relating to terrorist tactics should be avoided; and the name of any individual or group claiming responsibility for a bombing should be withheld. C. Providing Information Most authorities agree that at least the media should strive to give a balanced treatment of the phenomenon. They should provide information from official sources in answer to the criminal's self-serving statements. They should give follow-up coverage of the incident; for example, they should cover the law enforcement and judicial responses to the criminal and his actions. Some feel that media has the responsibility to educate the public concerning the impropriety of taking innocent lives in order to publicize demands and grievances, the relative infrequency of such acts, the legitimate needs of law enforcement in a democratic society, and the non-romantic aspects of terrorism. The media do indeed contribute to the problem of publicityseeking crime. Is it not too much to hope that they would also contribute to its solution? Perhaps it is too much to expect of the media. Since 1941, the media have been urged to police themselves. And yet, it took a flurry of incidents in 1977 to even get some ‘guidelines’ proposed and randomly adopted. Western media officials are now aware of the dangers inherent in the coverage of publicity-seeking crimes but the competitive pressures are strong, ‘professional judgment’ may be unattainable, and the industry is fragmented in nature and therefore hard to control from within. The competitiveness of news organizations, their fear of being ‘scooped’ by the opposition, and their aforementioned quest for larger audiences and prestige combine to encourage rather than discourage escalated reporting techniques and sensationalistic coverage. Many police officials, in fact, believe that it is the competition between newsmen, inspired by their respective news organizations, that lies at the root of the problem. An individual reporter who might refrain from covering a particular event for

27

personal ethical reasons will more often succumb to the subtle persuasion of potential career enhancement. Network policies of recruitment and advancement assure that newsroom policies rather than philosophical principles succeed in network news. Newspaper staffers also conform to newsroom policies due to the somewhat more subtle factors of socialization within the job environment and esteem for superiors. Reporters are seeking to establish the reputation of being first with the news and first with the viewers. Neither factor is conducive to operating a selfregulated industry. Neither is either factor conducive to responsible reporting. The media industry argues that they are a profession and that like any other recognized profession -- e.g, doctors or lawyers -- should be allowed to regulate themselves. However, journalists are not now and have never been truly considered ‘professionals.’ They have no intense period of specialization; they, in fact, abhor responsibility for their judgments and actions; they tend to place greater emphasis on economic gain rather than personal service; they have no comprehensive self-governing organization; and they have no true Code of Ethics subject to clarification and interpretation by the courts. In truth, there is no reason to expect the industry to be ‘professional’ enough to regulate itself. Finally, self-regulation itself is an almost impossible task given the vast number of organizations nationwide with no central authority. The National Association of Broadcasters (NAB), which most television stations belong to and which has been instrumental in regulating such areas as the family viewing hour, is the nearest thing in the industry to a central authority; however, membership is not mandatory. Even the United States Supreme Court has openly recognized the problems inherent in fragmented self-imposed restraints: reporters from distant places are unlikely to be guided by their own standards and state courts have real practical difficulties in controlling newspapers or broadcasters outside of their jurisdiction.

28

A few words should be said at this point concerning the unique status of the electronic media (television and radio). The Supreme Court has been willing to recognize a limited distinction between printed and electronic media. Rationales for the different treatment of the broadcasting industry include: (1) airwaves are in the public domain and, as such, the grant of a license is a privilege, not a right; (2) due to a scarcity of airways, some regulation must occur so as to guarantee the public an uncluttered, comprehensible broadcast; (3) the unique power of the medium; and (4) the pervasive and intrusive nature of the medium. The Court has upheld regulation of the broadcasting medium by the FCC who has been empowered by the Communications Act of 1934 to grant renewable licenses on the basis of a ‘public interest, convenience, or necessity’ standard. However, … suggested that the prohibition against prior restraints is not absolute, noting that limitations on First Amendment protection might be recognized in the following situations: (1) to ‘prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops’ (troopship exception); (2) to enforce the ‘primary requirements of decency’ against obscene publications; (3) to protect the community ‘against incitements to acts of violence and the overthrow by force of orderly government;’ and (4) to enjoin ‘against uttering words that may have all the effect of force.’ Particularly in ongoing situations involving hostages or potential victims, media reporters should be able to predict with a reasonable degree of certainty that a harmful act is likely to result from certain broadcasts. That the act is physically perpetrated by a third party should make the media no less culpable. Media corporations should be held financially responsible for harm caused to innocent victims through the fault of the media's employees. They profit from the broadcast of the incident and in a just and fair system, that profit should be made available to compensate the victim of the activity. Where the public goes, so goes the press. Historically, the public has not had access to prisons; therefore, regulating

29

media access would not be discriminatory against the press, but would merely eliminate a special privilege the press has vis-a-vis the public. Similarly, restricting media access to the scene of a publicity-seeking crime would surely be within constitutional bounds. The Supreme Court has specifically said, "Newsmen have no constitutional right of access to scenes of crime or disaster when the general public is excluded." Except to know whether they are in immediate danger, the public has no real interest in the details of a crime -- other than morbid interest in the tragedy of others on which our society seems to thrive. Therefore, the press, having no greater access rights than the general public, could constitutionally be restricted in their access to publicity-seeking crimes and criminals. As has been detailed previously, the Supreme Court, at least in areas other than news coverage, has been willing to make a distinction between the printed and electronic media. It is time for that distinction to flow over into the area of news broadcasting. News broadcasting poses unique problems not present in the traditional free speech case and certainly inconceivable to the framers of the Constitution. It is pervasive, becoming less and less edited, and gives the impression of ‘authenticity per se.’ In summation, then, what can be done? The problems created by media coverage of publicity-seeking crimes are, again, that: (1) unbalanced media coverage enhances the environment of fear and coercion the terrorists seek to generate, (2) such coverage may encourage other individuals to engage in such conduct, (3) such coverage will dull the sense of outrage and contempt in the general public; and (4) such coverage can endanger hostage's lives and interfere with effective law enforcement. By not showing the actual crime being perpetrated on the screens of viewers' living room television sets, feelings of anxiety and fear could be lessened. By not showing the criminals in the act of committing the crime, much of the gratification is removed from the act for the criminal and for those who might imitate him. Again, by not continually showing the gory details as they happen, the viewing public

30

becomes less immunized against the atrocities of crime. The reasons for limiting access are not related to the intimidation, imitation, or immunization factors but are based on the safety of potential victims. When media coverage becomes an immediate threat to the lives of potential victims of publicity-seeking crimes, it is very possible that finely tailored government regulation is possible in all four forms: prior restraints, subsequent punishment, access restrictions, and FCC regulations. First and foremost, the Government should require that onthe-scene coverage should be limited to only those reporters who have had training in terrorist situations. Such selective access could be supported as long as it furthers a compelling governmental interest identified by narrowly drawn standards. Secondly, all suggestions made regarding broadcast areas, briefing areas, police hotlines, police spokespersons, direct contact with criminals during ongoing situations, and so forth could be justified based on the fact that the public has no need or right to be at the scene and the press has no more rights than the public, the lack of governmental alternatives in dealing with the problem, and the gravity of the harm. It is quite possible that prior restraints could operate to restrain a newsman from publishing information such as police strategies, activities, or plans or the presence of hidden persons or escaping hostages. Such publication would ‘surely result in direct, immediate, and irreparable damage to our Nation's ... people.’ Media reporters, especially those trained in terrorist tactics, should know what information, if released, would endanger lives. Such knowledge should make them and their respective employers liable for any harm caused because of their actions. Three of the purposes for constitutionally guaranteeing freedoms of expression and of the press were 1) the advancement of knowledge and discovery of truth, as an essential element of self-governance, 2) the provision of a safety valve by substituting reason for force, and 3) the

31

providing of a framework within which the conflict necessary to the progress of society could take place without destroying society. Media coverage of publicity-seeking crimes thwarts all three objectives. As to the purpose of advancement of knowledge, in the technological world of today, the majority of the public is informed through television news. Should a person decide that he or she does not want his or her children to watch a publicity-seeking crime as it takes place -- a decision which, given the chance, most persons would probably make -- he must completely give up his constitutionally guaranteed source of information (since he has no control over the sequence of the news). Secondly, by giving publicity and gratification to these criminals, newspersons are encouraging substitution of force for reason -- which is a complete contradiction to the very purpose they serve. And, finally, instead of providing a framework within which conflict can take place without destroying society, they provide a framework within which to destroy society. 19. This Hon’ble Court in People’s Union for Civil Liberties v. Union

of India5 stated that: ‘Terrorist acts are meant to destabilize the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralize the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-state, inter-national or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavor. Rather it is defence of our 5

AIR 2004 SC 456 : (2004) 9 SCC 580

32

nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, terrorism is a new challenge for law enforcement. By indulging in terrorist activities organized groups or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements were trying to destabilize the country. This new breed of menace was hitherto unheard of. Terrorism is definitely a criminal act, but it is

much

more

than mere

criminality.

Today,

the

government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within borders. To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws.’ 20. The fatalities by Country (as published by the National

Counter Terrorism Center, an executive agency of the United States Government) for the years 2005, 2006 and 2007 may be noted below. The rank secured by our country in this list is utterly incomprehensible to sociologists who are quite unable to explain India’s inclusion (not to mention, the higher ranking) in a club of nations primarily ravaged by war, anarchy, totalitarianism, civil mutinies, armed rebellion or breakdown of established forms of government. For the year 2005 Rank 1 2 3 4 5 6 7

Country Iraq India Afghanistan Sudan Sri Lanka Columbia Thailand

Fatalities 13340 1256 1042 716 627 533 520

33

8 9 10

Chad Pakistan Philippines

518 387 291

For the year 2006 Rank 1 2 3 4 5 6 7 8 9 10

Country Iraq India Columbia Afghanistan Thailand Nepal Pakistan Russia Sudan Congo

Fatalities 8262 1361 813 684 498 485 338 238 157 154

For the year 2007 Rank 1 2 3 4 5 6 7 8 9 10

Country Iraq Afghanistan Pakistan India Thailand Somalia Sudan Chad Columbia Sri Lanka

Fatalities 13606 1966 1335 1093 859 767 403 368 364 241

21. The simple relief sought for by the petitioner is a judicial

order to ensure that Media Respondents 3 to 18 do not facilitate

any

communication

between

suspected

or

apprehended terrorists and the citizens of this country except with the prior approval of our executive Government, Respondents 1 and 2. It may be noted here that the 2 nd Respondent, the Ministry of Home Affairs has recognised a

34

list of 34 organisations as ‘Terrorist Organisations’ under the provisions of the Unlawful Activities (Prevention) Act, 19676. 22. It has become necessary to seek such a judicial order in view

of the fact that Respondents 1 and 2 have failed to discharge their obligation respectively to impose reasonable restraint upon conduct of the media, which conduct is clearly disruptive of public peace. The people of this country have a reasonable right to expect peaceful existence and this reasonable right is clearly a fundamental right and is the underlying context of every enumerated fundamental right in part III of our Constitution. 23. Article

14

favouritism

that by

forbids the

unequal

State,

treatment

Article

15

or

that

unjust forbids

discrimination against citizens upon enumerated grounds, article 16 that secures equality of opportunity in matters of public employment – are provisions clearly devoted to securing a peaceful co-existence amongst the diverse people of our country. 24. Article 17 that forbids untouchability, Article 18 that forbids

grant of nobility or titles – are provisions clearly devoted to securing

a

harmonius

social

balance

amongst

people

historically grouped into arbitrary hierarchies. The underlying aim thereof being peaceful coexistence of people.

6

The Unlawful Activities (Prevention) Act, 1967, a Central Statute, is a self-contained code of provisions for declaring secessionist associations as unlawful and imposes certain restrictions on the liberties secured by our Constitution – Freedom of Speech and Expression, Right to Assemble Peacefully and without Arms and the Right to Form Association or Unions.

35

25. Peaceful co-existence is impossible unless there is a peaceful

existence in the first place and the right to a peaceful existence is clearly the unimpeachable basis of Articles 14, 15, 16, 17 and 18 of our Constitution. 26. Article 19 that guarantees individual liberties and which

prescribes grounds for restraint, Article 20 that protects against punishment for acts that violate future laws and which prohibits ‘double jeopardy’ and ‘self-incrimination’, Article 21 which ensures that neither ‘life’ nor ‘personal liberty’ shall suffer except according to procedure established by law – are provisions that strive to secure a peaceful existence for the citizens. 27.Articles 25, 26, 27 and 28 that enshrine the right to freedom of religion are provisions that strive to secure a peaceful existence for the citizens. 28.Articles 29 and 30 that safeguard interests of the minorities are provisions that strive to secure a peaceful existence for the citizens. 29. Accordingly, the right to a peaceful existence is clearly a

fundamental right guaranteed to all citizens of our country and the same is put to increasing assault given the increase in incidents of acts of terror and escalating media ambitions the news media’s obsession for display of disorder and destruction on a scale grander than its nearest competitor. 30. The petitioner further invites the attention of this Hon’ble

Court to another scholarly analysis on the competitive pressure

upon

Television

media

and

on

the

utter

36

abandonment by the media of discretion and responsibility in its relentless pursuit of presenting terrorist acts on screen, ‘TERRORISM AND NEWS MEDIA’ by Time Dunne7: The reality is that terrorists win when they don’t lose, and police and security forces of western democracies lose when they don’t win. The news media, by the tenets of their profession and the fundamental nature of the work, are drawn to these events as moths to a flame. Theirs is the responsibility to cover, witness, analyze and report. However, negligent, careless, or irresponsible reporting can prolong an event, or result in injury, death and damage. Modern terrorism involves the use of violence to influence the actions and attitudes of their intended audiences through the use or the threat of use, of violence against innocent people in a way that captures the attention of the news media and, through them, to the world’s public. As time moved on, those who use terrorism as a political tool became increasingly aware of the capability of generally7

Tim Dunne is a retired Canadian military public affairs officer with

32 years of service. He served on both of Canada’s coasts and in Ottawa. His experience includes peacekeeping missions in Israel, Egypt, Syria and the Balkans. He served with NATO’s peace support missions in Bosnia Herzegovina, the former Yugoslav Republic of Macedonia (FYROM), Albania and Kosovo, and conducted numerous seminars and workshops in Mauritania, Austria, Algeria, Slovakia and Italy. He held numerous public affairs management and leadership positions, most notably with the Media Centre for the recovery operations for Swissair flight 111 which crashed off the coast of Nova Scotia in 1999, with NATO led exercises in France, Hungary, Romania and Bulgaria. In 2001, Bulgaria awarded him the Medal for Loyal Service, among its highest military awards, for his work during a major NATO exercise that paved the way for Bulgaria to join the Alliance. He is currently the Communications Advisor for the Nova Scotia Department of Natural Resources.

37

accepted mass media and nontraditional media to increase the public impact and to raise the level of worldwide public knowledge of their existence, ambitions and methods. They progressed from accepting media coverage to planning and incorporating news media coverage as a ‘force multiplier.’ Philip Heymann8 observed ‘…Most crimes do not involve – as part of the plan for accomplishing their objectives—trying to change the occupants of government positions, their actions, or the basic structures and ideology of a nation….. But all would agree that political violence is different from ordinary crime, in that it is planned to force changes in government actions, people, structure, or even ideology as a means to whatever ends the perpetrators are seeking with whatever motivations drive them towards those ends.’ The events of 11 September 2001, demonstrate how much ‘bang’ can be achieved for how little ‘buck.’ It cost the al Qaeda terrorists approximately $300,000 to murder three thousand people, destroy billions of dollars worth of property (directly and indirectly), and shatter the confidence of the world -- classic terrorist ambitions. New York’s World Trade Centre was the principal target because of the public attention the act would garner, and that New York is the headquarters for the ‘Big Three’ news networks; ABC, CBS, and NBC. The success of terrorism anywhere breeds terrorism everywhere, making media coverage of terrorist events a major concern. Is there a relationship between terrorism and the news media Examples of interaction between the news media and the terrorist movements suggest that they share a symbiotic relationship. Richard Perl of the U.S. Congressional Research Service suggests that what terrorists want from media are: Publicity, usually free publicity, that a group could normally not afford or are unable to buy. Any publicity surrounding a terrorist act alerts the world that a problem exists that cannot be ignored and must be Author of ‘Terrorism and America – A Common Sense Strategy for A Democratic Society’, Belfer Center for Science, 2000. 8

38

addressed. From a terrorist perspective, an unedited interview with a major figure is a treasured prize, such as the May 1997.CNN interview with Saudi dissident, terrorist recruiter and financier Osama bin Laden. For news networks, access to a terrorist is a hot story and is usually treated as such. Favorable understanding for their cause, if not their act. One may not agree with their act but this does not preclude being sympathetic to their plight, their circumstances, and their cause. Terrorists believe the public ‘needs help’ to understand that their cause is just and terrorist violence is the only course of action available to them against the superior evil forces of state and establishment. Good relationships with the press are important here and they are often cultivated and nurtured over a period of years. In hostage situations, terrorists often monitor the media to learn the identity, number and value of hostages, as well as details about pending rescue attempts, and details on the public exposure of their operation. They seek details about any plans for military retaliation, particularly where state sponsors are involved. Terrorist organizations seek media coverage that causes damage to their enemy. This is particularly noticeable when the perpetrators of the act and the rationale for that act remain unclear. They want the media to amplify panic, to spread fear, to facilitate economic loss, to make populations loose faith in their governments’ ability to protect them, and to trigger government and popular overreaction to specific incidents and the overall threat of terrorism. Richard Perl also notes what the media wish when covering terrorist incidents of issues. Journalists generally want the freedom to cover an issue without external restraint- whether it comes from media owners, advertisers, editors, or from the government. Media want to be the first with the story. The scoop is golden, and the philosophy is ‘old news is no news.’

39

Pressure to transmit real time news instantly in today's competitive high-tech communication environment is at an all-time high. The media want to make the story as timely and dramatic as possible, often with interviews, if possible. During the June 1985 TWA Flight 847 hijack crisis, ABC aired extensive interviews with both hijackers and hostages. (A photo was even staged of a pistol aimed at the pilot's head.) Most media members want to be professional and accurate and not to give credence to disinformation, however newsworthy it may seem. This may not be easily done at times, especially when systematic efforts to mislead them are undertaken by interested parties. They want to protect their ability to operate as securely and freely as possible within society. In many instances, this concern goes beyond protecting their legal right to publish in a relatively unrestrained fashion; it includes personal physical security. They want protection from threat, harassment, or violent assault during operations, and protection from subsequent murder by terrorists in retaliation for providing unfavorable coverage. They want to protect society's right to know, and construe this liberally to include popular and dramatic coverage, e.g., airing emotional reactions of victims, family members, witnesses, and ‘people on the street,’ as well as information withheld by law enforcement, security, and other organs of government. Media members often have no objection to playing a constructive role in solving specific terrorist situations if this can be done without excessive cost in terms of story loss or compromise of values. Bernard Lewis, one of America’s leading experts on the Arab world, noted about the hijacking of a TWA airliner, that those who plotted the incident ‘knew that they could count on the

40

American press and television to provide them with unlimited publicity and perhaps even some form of advocacy.’ Voluntary self-restraint is the general media’s preferred policy on terrorism coverage, and the approach most favoured by more responsible members of the generally -accepted mass media organizations to avoid the dangers of manipulation and exploitation by terrorist groups. In addition, major media organizations have adopted guidelines for their staff with the aim of preventing the more obvious pitfalls. For example, CBS news guidelines commit the organization to ‘thoughtful, conscientious care in restraint’ in its coverage of terrorism: avoiding giving ‘an terrorists/kidnapper;’

excessive

platform

for

the

‘no live coverage of the terrorist/kidnapper’- thereby avoiding interference with the authorities’ communications such as use of telephone lines; using expert advisers and hostage situations to help avoid questions or reports that might tend to exacerbate the situation; avoiding obstruction of the police but reporting to their superiors media strictures that seem to be intended to massage (i.e.: spin) or suppress the news; and, attempting to achieve such coverage downsized to length that the terrorist story does not unduly crowd out other important news of the hour/day. The way calculating terrorists define and calibrate the cost and benefits of their actions may be different from the way common criminals decide whether to rob, cheat, or bully. Society’s response, therefore, must be based on pragmatic considerations. Those who employ terrorism have their own criteria for evaluating success and failure. When governments, media and the public adopt the belief that those who employ terrorism must be desperate and hopeless to resort to this tactic, we commit a profound error by judging them and their actions against our own criteria, and accord them the rationalization that they are forced into this action

41

as an absolute last resort. Their motivations may be far more manipulative than desperate, and their rationale, more preferred than a last resort. Using these concepts as justification for the actions of terrorists, we are judging them by our perceptions and our frames of reference – functions that do not apply to activists from cultures so different from our own. The RAND Corporation’s Bruce Hoffman said: ‘In this new era of mass media in which the ‘information revolution’ has transformed communications at a world level as a result of the advances in transmission in real-time, their hurry to fulfill the exigencies of time for an edition and the consequent precipitated judgments and immediate decisions can mean more opportunities of manipulation for terrorism and more influence than before.’ Media and terrorism are linked in democratic societies. Terrorism, by its very nature, is a psychological weapon that depends on communicating a threat to the wider society. This is why there is a relationship between media and terrorism based on mutual need. Media generally tend to reflect the underlying values of the society in which it resides. Nevertheless, the media in an open society are in a fiercely competitive market for their audiences, constantly under pressure to be first with the news and to provide more information, excitement, and entertainment than their rivals. Success is reflected in increasing ratings, which then yield higher profits. Hence, they are almost bound to respond to terrorists’ ‘Propaganda of the Deed’ because it is dramatically bad news. Thus, the media are in a kind of symbiotic relationship with terrorism. The news media is a powerful force during confrontations, and whether we like it or not, the mass media has more impact than most other agencies in how operations are perceived by the outside world. Their coverage is instant and can be world-wide if the circumstances warrant the attention of viewers in other countries. And they will take sizeable risks to get the story and get it out to their audiences.

42

The lesson learned is that the media will be on-site instantly. They have radio scanners and contacts throughout communities that will tell them what is happening, where it is happening and what has occurred so far, in the opinion of some who would not qualify as ‘expert’ witnesses. Media responses in crises situations like these begin by reporting immediately by describing the scene, and initially their stories are normally negative because there usually is no one available to provide the government side of the story when they arrive. The first images are the ‘live eye.’ The cameras will scan the immediate vicinity to communicate the environment at the scene, and in their haste to begin their reports they will seek witnesses, report fact and fantasy, and will seek linkages. As they become established, reporters will interview noncompetitive reporters and they will find self-proclaimed experts. First of all, if none of the ‘good guys’ will speak to them, then representatives of the ‘bad guys’ will, even if it is by telephone from the Middle East. Also, it is critically important that journalists understand what they are permitted to do and not permitted to do. One glaring example of what has been called media irresponsibility happened during the hijacking of a Kuwaiti airliner by Hizballah and its landing in Larnaca, Cyprus in 1988. Security forces intended to launch a rescue effort while the plane was on the ground, but the media’s unrelenting coverage and live television images made a surprise attack impossible. Cameras were equipped with infra-red filters so that television watchers could see everything, even at night. There is a symbiotic relationship between the news media and spectacular terrorist events. One of the most important aims of a terrorist attack is to gain publicity for a particular cause or even a particular aim, and the terrorist depends on the media to inform the public. At the same time, and contingent on the particular audiences monitoring these events, the media endeavour to entertain shock, amuse, or otherwise affect the emotions of the people who monitor the news media – the readers, listeners and viewers.

43

Competition between media organizations only heightens the necessity to focus on their ability to affect emotions. Those who commit and perpetrate terrorist acts understand this and carefully script and choreograph to attract the coverage they want. There is no way that western media can ignore an event that has been fashioned specifically for their needs. Television terrorists can no more do without the media than the media can resist the terrorist event. The two create a symbiotic relationship so that forces and pressure on one provokes reactions by the other. In response to these requirements, the U.S. Department of Justice (National Advisory Committee on Criminal Justice Standards and Goals) made a number of recommendations based on the principles of minimum intrusiveness and complete, non-inflammatory coverage. Some of the more notable suggestions include: When necessary, use a media pool to cover the situation on behalf of all news agencies; Self-imposed restrictions on lighting, use of cameras and other special newsgathering technologies; Limit direct interviews with hostage-takers during an incident; Avoid inquiries to reveal tactical information that would be detrimental to police operations if revealed; Delay the reporting of details which may inflame the situation; Where possible, avoid reporting that emphasizes the sensational aspects of the incident; Rely on official government spokespersons, when available. Balance the coverage of self-serving terrorist propaganda with contrasting information from official sources. Negotiations for the life of a victim are done in an atmosphere of ghoulish public curiosity, apprehension and even hysteria. To refuse the terrorists’ demands is

44

tantamount to valuing the life of the victim below that of the ransom or demand. The presence of publicity forces the negotiating authorities to accept that refusal may have a vastly magnified impact on the victim, the victim’s family and on other potential victims. A government at war will contemptuously reject an ultimatum in the knowledge that it may cost thousands of lives in a city under siege. But that same government may pay a huge political price to save an individual in the face of an ultimatum from a group of three or four clandestine terrorists. The best example is the September 1972 Munich Olympics in which eight Black September terrorists kidnapped and killed eleven Israeli athletes. The terrorists had no serious expectations of the Israeli or German governments, but millions of people watched. While most were disgusted, if even a small percentage were sympathetic this could have amounted to a huge number of potential collaborators all over the world. A form of symbiotic relationship exists between the news media and spectacular terrorist incidents. One of the most important aims of a terrorist attack is to gain publicity for a particular cause, sometimes the only aim. The presumed primary aim of news media is to inform. However, it is at least as important in practice to entertain, shock, amuse or otherwise affect the emotions of the audience, in particular, of television. Competition between media organizations seems to heighten the necessity to focus on the emotion generating, as opposed to the purely informational aspects of news reporting. Terrorists are aware of the phenomenon of media coverage and often consciously script live action spectaculars. Specifically, media coverage of terrorist events are said to have some or all of the following effects: It provides a platform for the expression of extremist views which provoke violence and undermine the authority of the state; The reporting of spectacular terrorist incidents has a contagion effect which increases the probability that other groups or individuals will emulate the violence being reported;

45

Coverage of an ongoing incident hinders police operations and may place the lives of hostages and police in jeopardy; Coverage of an ongoing incident puts inappropriate pressure on the authorities which limits their powers as decision-makers; The large number of reporters at and extent of coverage of a terrorist incident reinforces the terrorist’s sense of power and particularly in the case of deranged terrorists, may contribute significantly to prolonging the incident or to an increase in its serious consequences; Related to the contagion effect is the claim that excessive detail of both terrorist and counter-terrorist operations supplies disaffected groups with tactical and strategic information and technical knowledge which make the resolution of future terrorist incidents more difficult; The competitive nature of newsgathering places an undue emphasis on the sensational aspects of terrorist events and makes entertainment of public violence rather than performing a public duty to inform; The instantaneous reporting of terrorist incidents and the existence of some newsgathering principles (such as telephone contact with terrorists in the course of an incident) make reporters participants in, rather than observers at, a terrorist event and diminish the ability of the media to report objectively. There are forces in the ‘news’ industry which sometimes subtly and sometimes visibly affect the presentation of ‘facts’ so that some ideas appear good and others bad. The concept of a free market of ideas is a romantic one that is at odds with the modern realities of monopolistic groupownership and cross-media control of news outlets. ‘It is absurd in the face of all the evidence that media are merely passive observers passing on all information they receive to allow the public to draw on informed conclusions.’

46

There are no easy answers, or even difficult answers. There are only complex choices. Media coverage can place lives in jeopardy, can complicate negotiations, can limit police options and restrict their alternatives in a difficult situation. In the end, the news industry must be able to respond to questions such as: By what standards – other than losing out to the competition and the inherent excitement of live pictures of, say, a man in imminent danger of having his head blown off – do such events qualify as significant in terms of the values supposedly cherished by serious journalists? CBS’ answer came in the form of news guidelines for ‘Coverage of Terrorists’. More specifically: An essential component of the story is the demands of the terrorist/kidnapper and we must report those demands. But we should avoid providing an excessive platform for the terrorist/kidnapper. Thus, unless such demands are succinctly stated and free of rhetoric and propaganda, it may be better to paraphrase the demands instead of presenting them directly through the voice of the terrorist/kidnapper. Except in the most compelling circumstances, and then only with the approval of the President of CBS News or in his absence, the Senior Vice President of News, there should be no live coverage of the terrorist/kidnapper since we may fall into the trap of providing an unedited platform for him. (This does not limit live on the spot reporting by CBS reporters, but care should be exercised to assure restraint and context) News personnel should be mindful of the probable need by the authorities who are dealing with the terrorist for communication by telephone and hence should endeavour to ascertain, wherever feasible, whether our own use of such lines would be likely to interfere with the authorities’ communications.

47

Responsible CBS News representatives should endeavour to contact experts dealing with the hostage situation to determine whether they have any guidance on such questions as phraseology to be avoided, what kinds of questions or reports might tend to exacerbate the situation, etc. Any such recommendations by established authorities on the scene should be carefully considered as guidance (but not as instruction) by CBS News personnel. Local authorities should also be given the name or names of CBS personnel whom they can contact should they have further guidance or wish to deal with such delicate questions as a newsman’s call to the terrorists or other matters which might interfere with authorities dealing with the terrorists. Guidelines affecting our coverage of civil disturbances are also applicable here, especially those which relate to avoiding the use of inflammatory catchwords or phrases, the reporting of rumours, etc. As in the case of policy dealing with civil disturbances, in dealing with a hostage story reporters should obey all police instructions but report immediately to their superiors any such instructions that seem to be intended to manage or suppress the news. Coverage of this kind of story should be in such overall balance as to length, that it does not unduly crowd out other important news of the hour/day. A second and more easily substantiated charge is that some newsgathering practices hinder the effective management of terrorist incidents, particularly those involving hostage taking. There have been situations in which media have conducted direct telephone interviews with hostagetakers, and one situation in Ottawa in the late 1970s, a local television team was showing live the hostage-taking at the Turkish ambassador’s residence, and broadcast the ambassador lying beneath a window. Had the terrorists been watching television they would have been able to carry out their primary mission of assassination.

48

In another incident in the mid-1980s, a national news reporter entered Toronto International Airport’s security area through an exit passing in front of a security guard, and then was shown on an aircraft placing a starter pistol (used to start races, and does not fire a projectile) and simulated explosives in the seat pocket of this airline seat. He was charged by the RCMP. In both cases, authorities should have considered the possibility of bringing charges of criminal mischief and/or negligence against these media personnel. When journalists invoke the privilege and authority that goes with their advantaged positions, they must also exercise a commensurate level of responsibility and accountability. Concurrently, public and police officials must also take steps to hold news personnel accountable when they exercise their prerogatives irresponsibly. To do otherwise could result in losing control of a situation with the potential of dire consequences. 31. Respondent 1, the Ministry of Information And Broadcasting,

has published a grand and ambitious set of guidelines titled “Self Regulation Guidelines for the Broadcasting Sector 2008”. Excerpts from the same are presented below to contrast the actual conduct of media with that stated below: The Self Regulation Guidelines were enacted for the following reasons: A need has been felt to regulate the content going into public domain to ensure conformity with acceptable contemporary community standards and to protect the vulnerable sections from harmful and undesirable content on TV. These Self Regulation Guidelines (Guidelines) set out principles, guidelines and ethical practices, which shall guide the Broadcasting Service Provider (BSP) in offering their programming services in India so as to conform to the Certification Rules prescribed under the Cable Television

49

Networks (regulations) Act 1995, irrespective of the medium/platform used for broadcasting of the programme. These Guidelines have been drafted to introduce greater specificity and detail with a view to facilitate self regulation by the broadcasting industry and minimize scope for subjective decision by regulatory authorities or the broadcasting service providers. The basic underlying principle of these Guidelines is that the responsibility of complying with the provisions of the Certification Rules vests with the BSP. As the Guidelines are based on self-regulation, these set out the factors, which should be taken into account by the BSP when forming a view about the acceptability of any programme. The BSP has to adhere to the Certification Rules under the Cable Television Networks (Regulation) Act, 1995, which are in addition and not in derogation of the Drugs and Cosmetics Act 1940, the Emblems and Names (Prevention of Improper Use) Act, 1950, the Drugs (Control) Act, 1950, the Drugs and Magic Remedies (Prevention of Improper Use) Act, 1954, the Prevention of Food & Adulteration Act, 1954, the Prize Competitions Act, 1995, the Indecent Representation of Women (Prohibition)Act, 1986, the Trade and Merchandise Marks Act, 1999, the Copyright Act, 1957, The Prevention of Cruelty to Animals Act, 1960 ….., The Cigarette and other Tobacco Products Act 2003, the Cinematograph Act, 1952, the Consumer Protection Act, 1986, and such other existing or new statutes, and Rules/Regulations/Guidelines framed thereunder from time, relating to exhibition of films or broadcasting of programmes and advertisements. Principles The Self – Regulation guidelines were made on the following principles: These Guidelines are intended to guide the BSP and are based on enduring principles; that all programming should not mislead, cause offence, or lead to harm, particularly to the vulnerable.

50

This section should be read in conjunction with Certification Rules. Basic principles of these Guidelines are the following: Programmes should always be scheduled with an awareness of the likely audience in mind. Great care and sensitivity should be exercised to avoid shocking or offending the audience. Each BSP shall categorize each of their programs based on its theme, subject-matter treatment, language and audio visuals presentation and slot it accordingly. The BSP will ensure that all programmes broadcast are in accordance with scheduling as per Certification Rules. The BSP should take reasonable steps to protect minors. The BSP should be vigilant in gaining an understanding of how material shown on television could impact the development of minors. Minors cover a wide age group and levels of maturity. It is therefore necessary for the BSP to exercise judgment on the capacity of minors in different age groups in coping with the depiction and treatment of material, which may not be suitable for them. By and large, the Certification Rules shall uniformly apply to all types of BSPs. However, for News and Current affairs (N & C A) programming, it is desirable that BSPs edit the content as well as carry prominent warnings and suitably mask any portions of news or current affairs scenes considered unsuitable for viewing in accordance with the certification norms for scheduling them for broadcast in its News bulletins throughout the day. Television news has greater reach and impact than other media. It is instantly available in millions of homes to both the discerning as well as the non – discerning audiences. With ever increasing number of round the clock news channels and the intense competition among them for the viewership as well as changing priorities as to what constitute news, news and current affairs contents of television call for some

51

discipline with specific guidelines. We need to be aware that a damage or injustice resulting from news and current affairs contents of television cannot be undone post facto. Hence, there is a need for having separate and transparent guidelines for news programming that need to be followed scrupulously by all. Self – Regulation Mechanism: The guidelines are essentially enforced through a system of self – regulation which works through two-tiers. The first level of self – regulation happens at the BSP level and the second happens at the industry level. First tier of self-regulation – At the BSP level It shall be the individual responsibility of each BSP to ensure compliance with the Certification Rules prescribed under the Cable Television Network (regulation) Act 1995 and the Rules made there under, the principles and all relevant clarification, guidelines and interpretations, standards and norms prescribed by the Central Government or the BRAI. Every BSP should have its own internal mechanism to comply with the Certification Rules for which it may appoint one or more Content Auditors of requisite qualification and experience Head (Standard & Practices) of a BSP may also be treated as Content Auditor for the purposes of this Regulation. Each BSP shall provide details of its Content Auditor/s on its own website and channel for information of the public. This information will also be notified to the Ministry of I&B and BRAI who will post the same on their respective websites also. This person/s shall also be the contact point for any feedback or complaint etc. from the public regarding content violations. Any BSP may broadcast live/interactive programs/advertisements in which the public or invited guests may participate, whose gestures or utterances may not be possible to predict and which may violate the Certification Rules. In all such cases, the Chief Editor of the BSP should satisfy himself that adequate briefing is given to the participants about the certification norms and indemnify

52

the BSP against any deliberate violations by the guests/participants. It would be treated as sufficient compliance of the Certification Rules if the anchor at the end of the show sums up the proceedings giving a balanced view of the discussion and states that the views expressed by the participants were their own. Subject Matter Treatment (Crime and Violence): While the overall theme, storyline and characterization may justify one or more specific scenes of crime or violence, the subject-matter treatment of such content under all categories shall not: Endanger human lives or prejudice the success of attempts to deal with a hijack or “hostage” or kidnapping crisis or a law & order situation or any other security-related or criminal investigation. Have a traumatic, desensitizing or dehumanizing effect that could lead to psychological disorders or unsocial attitudes or behavior, particularly among minors. Encourage emulation of criminal or violent behavior. Provide opportunities to copy the modus operandii of criminals and thereby encourage commission of any offences or crimes. Subject Matter Treatment: NEWS AND CURRENT AFFAIRS (N & CA) PROGRAMMING Broadcasters shall observe general community standards of decency and civility in news content and scheduling, taking particular care to protect the interest and sensitivities of children and general family viewing. Great care and sensitivity should be exercised to avoid shocking, offending or misleading the audience. News should be well balanced and BSP shall endeavour that news is comprehensive, factual material is presented accurately and all viewpoints represented fairly. Commentary and analysis shall be clearly distinguished in the news and actual news should precede the commentary and analysis.

53

News should not jeopardize the security of the nation and care should be taken that news broadcasts are in the interest of the nation. All plans for a broadcast which explores and exposes the views of people who use or advocate violence for the achievement of political ends must be considered carefully by senior editorial/ management before any arrangements for broadcasting are made. News should not jeopardize any ongoing criminal investigation and should exercise due care in such cases. BSP’s should avoid a trial by media since “a man is innocent till proven guilty by law”. In such cases care should be taken to present both sides of the story and present a balanced view. No material should be presented in any manner that creates public panic and unnecessary alarm. BSP has to ensure that nothing is broadcast which is likely to encourage or incite viewers to crime or lead to disorder or be offensive to public feeling. News covering scenes of crime, violence, national tragedy and obscurantist supernatural practices should be dealt with utmost objectivity and sensitivity and not with a view to trivialize, sensationalize or glorify them. Infringement of privacy in a news based/related programme is a sensitive issue. There have been a slew of programmes where privacy of individuals appears to have been breached in public interest, however public opinion has been divided on this. Therefore, this calls for exercise of great degree of responsibility on part of the BSP, while telecasting any such programs, as may be breaching privacy of individuals. Failure to follow the tenets given below will constitute a breach of this Chapter of the Code resulting in an unwarranted infringement of privacy. Senior editorial control must be exercised for selecting material in issues relating to privacy and intrusion into public affairs.

54

Any infringement of privacy in news based/related programmes, or in connection with obtaining material included in such programmes, must be “warranted”. Any infringement of privacy in the making of a news based/related programme should be with the person’s and/or organization’s consent or be otherwise “warranted”. If an individual or organization’s privacy is being infringed, and they ask that the filming, recording, or live broadcast be stopped, the BSP should do so, unless it is warranted to continue. Scenes of human suffering and distress are often an integral part of any report of the effects of natural disaster, accident or human violence, and may be a proper subject for actuality rather than indirect reporting. But before presenting such scenes, broadcasters must balance the wish to serve the needs of truth and the desire for compassion against the risk of sensationalism and the possibility of unwarranted invasion of privacy. In particular, while reporting natural or manmade calamities, human violence and deaths, the feelings and sensitivities of grieving relatives or the injured must be respected and interviews avoided unless consent has been obtained. Door stepping for news/news based programmes should not take place unless a request for an interview has been refused or it has not been possible to request an interview, or there is good reason to believe that an investigation will be frustrated if the subject is approached openly, and it is warranted to doorstep. Door stepping is the filming or recording of an interview or attempted interview with someone, or announcing that a call is being filmed or recorded for broadcast purposes, without any prior warning. It does not, however, include vox-pops (sampling the views of random members of the public). While reporting violent events, natural calamities and accidents, appropriate regard must be paid to the feelings of relatives and viewers and inclusion of images of dead or seriously wounded people or gruesome and gory scenes,

55

which may seriously distress or offend substantial number of viewers, should not be included in the telecast. The feelings and sensitivities of grieving relatives or the injured must be respected and interviews avoided. 32.The above guidelines, it is respectfully submitted, have become endearing material for amusement in the hands of media critics. 33. Under circumstances such as these, the petitioner, as a

representative of the people of this country is starved of an efficacious remedy to safeguard against the breach of public peace by Media Respondents 3 to 18 and is further starved of any remedy to compel Government Respondents 1 and 2 to discharge their bounden duty to restrain Media Respondents 3 to 18 from committing a breach of public peace. 34. The Petitioner submits that he has not approached this

Hon’ble Court and that he has not filed any other petition before any other Court below seeking the same or similar relief as prayed for in the instant petition. 35.The Petitioner approaches this Hon’ble Court, amongst others, on the following: GROUNDS I.

Respondent 1 is vested with the legal authority to effectively regulate the media in the interests of integrity of India and for safeguarding against breach of public peace. The Television media has failed to observe any ‘ethical standard’ or ‘professional standard’ of restraint in the matter of reporting acts of terror. Respondents 1 and 2

56

have breached their duty to the public who are burdened with unrestrained television coverage on acts of terror by Respondents 3 to 18. A Writ of Mandamus therefore lies to compel Respondents 1 and 2 to discharge their duty to restrain Respondents 3 to 18 from breaching public peace. II.

Our Country is losing the war on terror in myriad ways. Acts of terror have increased and have gotten bigger and bolder and have evaded Governmental containment. It has become absolutely essential to eliminate every potent support to acts of terror. As demonstrated elsewhere in the petition, acts of terror and media coverage of the same share a ‘symbiotic relationship’ with one another. In view, thereof, restraint upon the media has become absolutely essential to contain the escalating insecurity among the people of this country.

III.

The media does not possess any privilege in the matter of establishing communication or a dialogue with suspected or apprehended terrorists. Neither are they immune from restraint in the matter of conveying messages from the terrorists to their viewers in India. When such is the case, the

omission

of

Respondents

1

and

2

to

restrain

Respondents 3 to 18 from disseminating messages and statements from the terrorists to their viewers in India is clearly actionable before a Court of Law competent to direct a public body to discharge its legal duty to the public. Consequently, this petition properly lies to this Hon’ble Court IV.

Respondents 3 to 18 do not discharge any valuable function

when

they

act

to

facilitate

communication

57

between terrorists and their viewers. The public do not possess, as a matter of law any uninhibited right to be present at a scene of crime. While the media has a responsibility to report acts on terror, they also share a commensurate burden of not spreading or amplifying panic. However, given the actual increase in the frequency and magnitude of terror acts, for the media to convey messages

and

amounts

to

statements

an

from

unintended

suspected

terrorists

collaboration

with

the

terrorists, a danger that our country can no longer afford. V.

While the public possess a choice to watch a channel of their choice and to exclude channels that do not meet their expectations, such a choice is rendered futile by the fact that competitive pressure upon the media has driven every channel to exploit every commercial opportunity presented by a ‘terror act’. Under such circumstances, no meaningful alternative is available to a viewer other than to helplessly witness a terror act magnified and amplified in the hands of

the

unrestrained

media.

Immediate

and

effective

regulation is therefore, not merely desirable but is absolutely essential. But the need for such regulation and implementation

of

published

regulation

has

been

overlooked by Respondents 1 and 2 despite massive escalation in the frequency and intensity of terror strikes upon the country. VI.

The unrelenting coverage by Respondents 3 – 18 of future terrorist acts in the same manner witnessed so far is bound to offer a convenient platform for the dissemination of extremist views by the terrorists and a consistent supply

58

of such extremist views on the air waves is bound to legitimize violence and is further bound to undermine the authority of the Government. Organised societies do not endure unlimited assaults and they eventually break down at

some

point.

The

petitioner

merely

seeks

that

Respondents 3 to 18 do not disseminate messages from suspected

terrorists

without

the

interface

of

our

Government. VII.

The reporting of terrorist strikes by Respondents 3 – 18 in the context of information circulated by the terrorists through these channels is bound to have a contagious effect upon people prone to violent tendencies. The dramatization and spectacular portrayal of such acts by Respondents 3 – 18 further increases the probability that other groups or individuals will emulate the violence being reported. The unrestrained style of reporting terrorist incidents by Respondents 3 – 18 vicariously contributes to the terrorists’ sense of accomplishment and runs the risk of

significantly

prolonging

the

consequences.

To

disseminate terrorists’ messages in such a context is to violate public peace. VIII.

The excessive detail and drama accompanying television reports on terror strikes coupled with the unrelenting disclosure

of

Police

strategies

hinders

anti–terror

operations and puts the lives of hostages at risk. The people of this country are starved of a credible assurance that

terrorists

attacks

in

future

will

not

present

unmanageable risks to police personnel who already run the risk of unchecked media intrusion and interference

59

while on a ‘call of duty’. For the media to continue disseminating terrorists’ messages in such a context is to undermine the authority of our Government and of the Police. Under these circumstances, the petitioner humbly seeks that this Hon’ble Court be graciously be pleased to: a) issue a Writ of Mandamus or a Writ of any other

nature or description or an order or a direction upon Respondents 1 and 2 to restrain Respondents 3 to 18 from facilitating or relaying communication from suspected or apprehended terrorists to their viewers in India forthwith unless Respondent 1 or 2 consentin-advance to such relaying of communication; b) pass any other order or direction to safeguard public

peace

against

erosion

by

the

business

of

Respondents 3 to 18 during ‘acts of terror’ upon Indian soil or interests; c) Issue any other order or direction in the interest of

justice, Sovereignty and integrity of our nation as this Hon’ble Court may deem fit and proper.

Drawn By: K.V.Dhananjay Advocate Drawn on : 11-Dec-2008 Filed on : 12-Dec-2008