The Precept: A Journal of Law and Sports, Media & Entertainment: Inaugural Edition - Volume 1.

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The Journal of Law and Sports, Media & Entertainment
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Note To Contributors:
Manuscripts, Editorial Correspondence and Style-Sheet requisitions should be
addressed to the Editor-In-Chief, The Precept, Flat A-1203, Mantri Greens
(Behind Mantri Mall), Sampige Road, Bangalore: 560003, Karnataka, India. For
soft material use, Email: thepreceptindia@gmail.com

Mode of Citation:
1PRE 2012-2013

Disclaimer:
The views expressed by the contributors are personal and private.

Edi t or- In- Chi ef
Arjun Datta Majumdar

Co- Edi t ors
R. Seshank Shekar
Ananya Kapoor
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Editors Note

The Precept is an independent initiative and the first and only law journal in India
specifically dedicated to the field of sports law. This journal also deals with legal issues in the
field of Media and Entertainment. The journal is dedicated towards publishing academic work
that considers the aforementioned issues from a relative perspective and/or the perspective of
the society.

The aim of this journal is to attain a very high degree of recognition and appreciation
and which would eventually be valuable addition to the field of legal research. This journal
attempts to promulgate legal knowledge. Such promulgation will eventually help the judicial
authorities, researchers, corporations, teachers, students and other readers to comprehend the
complications of legal issues and problems in the field of sports, media and entertainment.

I hope all the readers would find the Inaugural Edition of our journal interesting,
exciting and informative. We welcome any comments on the quality of content, the design and
other aspects so that we effect requisite improvements in the future editions.

Arjun Datta Majumdar
Editor-In-Chief

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Articles

Can the largest democracy of the world survive any longer without a law on Sports?
A critical analysis of National Sports Development Bill, 2011.
Ananya Kapoor, Ani sha Mi t ra
(Page 1-16)

Court Of Arbitration For Sport (CAS)
Shashank Mi shra
(Page 17-28)

Media: Handmade Or Hindrance To Peace?
Smri t i Pat el , Sri st i Pat el
(Page 29-58)

Regulation On Media: A Myth Or Reality?
Ai shvary Vi kram
(Page 59-72)

Vol ume 1 The Precept
1

Can the largest democracy of the world survive any longer without a law on Sports?
A critical analysis of National Sports Development Bill, 2011
Ananya Kapoor, Anisha Mitra*
Introduction
In todays era, the hallmark of a healthy democracy is a transparent and an
accountable government that enjoys public support and confidence. With the
increasing awareness in the society of its rights and duties, there has been a great deal
of criticism and public opinion concerning corruption as well as the lack of
transparency in the functioning of the government, lead to a vociferous demand for a
mechanism to ensure its accountability in public life.
In an attempt to ensure transparency, accountability and efficiency in the
functioning of Indian sports federations and the way sports is run in the country, the
Ministry of Sports on 22
nd
February, 2011 introduced the National Sports
Development Bill (herein after referred to as Bill). It sought the stakeholders, which
include sports bodies, sportspersons and the general public to submit their comments
and suggestions within a period of 30 days
1
.
Highlighting the importance of this Bill, the Minister of Youth Affairs and
Sports said that The Draft Bill on national sports development will have a salutary
impact on national sports development after it is passed by Parliament and enacted
into a law after wide ranging consultations are completed with stakeholders and
members of the wider public
2
.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
* The authors are 4
th
Year Students, BA, LLB (Hons.) at Amity Law School, affiliated to Guru Gobind Singh,
Indraprashtha University, New Delhi.
1
http://www.thesportsmirror.com/2011/06/the-national-sports-development-bill/ (Last visited on January 10, 2012)
2
Answered by the said Minister in the Lok Sabha on 22-02-2011 (unstarred question no. 183)
2
However, this attempt received a serious setback with several ministers, many
of whom wear second hats as heads of various sporting bodies, falling in line to block
approval of the proposed National Sports Development Bill 2011
3
.
As regards the current position of the Bill, the Minister of Youth Affairs and
Sports said in the Lok Sabha The objective of this Bill is to promote good
governance amongst sports bodies. The Draft of the National Sports Bill was in the
public domain for pre-legislative stakeholders consultations and now a recast Bill is
under consideration of the Government.
4

The True Spirit Of The Bill
The draft bill provides a new set of rules that retains the contentious provisions
on age limits and tenures of heads of sports bodies providing various guidelines,
which shall be the basic principles of the Bill along with various new rules. The
Preamble to the Bill has in fact been very meticulously and articulately worded.
Inspired by the philosophy of Olympism
5
, the Bill has been formulated to celebrate
the spirit of sportsmanship and fair play. This has been included to inculcate the
myriad Sports Ethics which would be abided by all. UNESCO
6
has drafted the
United Nations Code of Sports Ethics which make ethical considerations of fair play
as integral elements of sports and not as a mere option
7
. Fair play is a positive concept
and incorporates playing within the right spirit. It includes issues concerned with the
elimination of cheating, gamesmanship, doping, violence (both physical and verbal),
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
3
http://www.thehindu.com/news/national/article2412538.ece (Last visited on January 5, 2012)
4
Answered by the said Minister in Lok Sabha on 20-12-2011 (unstarred question no.4273)
5
The spirit of Olympic refers to building a peaceful and better environment world that requires mutual understanding
with a spirit of friendship, solidarity and fair play. It strives to inspire and motivate the youth of the world to be the best
they can be through educational and entertaining interactive challenges. Olympic Spirit seeks to instill and develop the
values and ideals of Olympism in those who visit and to promote tolerance and understanding in these increasingly
troubled time in which we live, to make our world a more peaceful place.
6
United Nations Educational, Scientific and Cultural Organization.
7
http://portal.unesco.org/education/en/ev.phpURL_ID=2223&URL_DO=DO_TOPIC&URL_SECTION=201.html
(Last visited on January 3, 2012)
3
the sexual harassment and abuse of children, young people and women, exploitation,
unequal opportunities, excessive commercialization and corruption.
Having regard to the various unfortunate examples of match-fixing
8
,
discrimination, cheating and exploitation, the concept of fair play is essential for the
successful promotion, development and involvement in sports in India. Moreover, it
states that this Bill does not intend to transgress into the autonomy of the National
Sport Federations
9
(herein after referred to as NSFs) and the National Olympic
Committee (herein after referred to as NOC). The Bill only seeks to imbibe the
practice of good governance accepted around the world in the Indian scenario. The
Preamble has categorically addressed the issue of accountability and transparent
functioning of autonomous sport bodies that is an issue of public concern. It has
summarily stated that the Bill seeks to recognize these sports federations as bodies
performing public functions. It has also sought to address the ethical issues involved
(sexual harassment, age fraud), impediments to Right to Information, speedy
resolution of sport disputes, anti-doping, transparency and good governance
10
.
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8
In the year 2000, Delhi police trapped the conversation between the Cricket captain of the South African team, Hansie
Cronje and a blacklisted bookie. The conversation revealed that the Hansie Cronje accepted money to loose matches. He
was banned from playing cricket. He also disclosed the name of other players including Ajay Jadeja (India) and
Mohammed Azharuddin (India) and Saleem Malik (Pakistan). Ajay Jadeja was banned from playing cricket for five years.
The same was challenged before Delhi High Court and in 2001, in the case of Ajay Jadeja vs. Union Of India And Ors.
(95 (2002) DLT 14, 2002 (61) DRJ 639), the Court rejected and disposed off the said application on lifting the ban.
9
Honble High Court of Delhi, in Civil Writ Petition No.7868 of 2005, in the matter of Indian Hockey Federation, while
disposing off the matter vide Order dated 02.03.2010, categorically observed that all the Government guidelines
governing the Federations are valid, binding and enforceable; and the tenure clause is not in violation of the
International Olympic Charter. The Honble Court also observed that the Government of India is fully competent to
make regulations on Federations and Indian Olympic Associations. The Honble Court observed that while a Federation
has autonomy in the actual conduct of sports, Government recognition is necessary to represent the country. It held that
international sporting events are an essential part of diplomatic relations of the nations, and several considerations like
security concerns of players, apartheid, and perceived human rights violations have guided nations in decisions to
participate or not to participate in sporting events in different countries. The Indian teams before participation in the
international tournaments and forums therefore, require political and diplomatic clearances.
(http://yas.nic.in/writereaddata/mainlinkFile/File918.pdf) (Last visited on January 8, 2012)
10
Preamble to the Draft National Sports Development Bill, 2011
4
In India today, primarily owing to lack of a Central legislation, sports bodies
have never been subjected to any law
11
. They have not abided by the principles of
fairness and equality and have rather had an arbitrary approach
12
. A few are of the
firm belief that this seeking to bring in transparency and accountability in the
functioning of national sports bodies could infact have prevented the Commonwealth
scam, had it been proposed a few years earlier. Hence, a legislation of this nature is of
national importance, keeping in mind the current scenario. There exists a state of flux
as to sports in India and only a systematic and well-framed mechanism can now
resolve the problems.
The Bill And Dispute Settlement Mechanism
To ensure independence in dispute resolution, the draft Bill proposes to
constitute and establish an Appellate Sports Tribunal to be known as the Sports
Dispute Settlement and Appellate Tribunal (herein referred to as the Tribunal) to
adjudicate disputes amongst various concerned authorities or members of different
Committees, Federations and Organizations and to impose penalty under the
provisions of the Act
13
.
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11
Recognizing the importance of accountability, Justice Gita Mittal of Delhi High Court in a case has commented on the
chaos and deplorable state of affairs that is Indian sports is facing at present and held that there is no legal reason why
the government cannot restrict the tenure of an office bearer as a condition for granting recognition or financial
assistance, if needed.
During the case, the government had justified ignoring its own guidelines on limiting tenure by saying it was not in the
interest of the sports person. Stating this to be a ground not reasonable, the Court held that the government was
displaying complete disinterest with the fate of the sport persons or the glory of the sports (a March 2009 ruling by
Delhi High Court in Narinder Batra v Union of India).
12
In a Public Interest Litigation No.195/2010 in the matter of Rahul Mehra Vs. UoI and Others, the Honble Delhi
High Court took a serious view on the mismanagement of the Sports Sector in the country and expressed deep concern
at the inaction on the part of the Government in implementing and enforcing its own guidelines, particularly those
relating to age and tenure.
13
Section 25- The Central Government shall, by notification, establish an Appellate Sports Tribunal to be known as the
Sports Dispute Settlement and Appellate Tribunal to adjudicate any dispute and impose penalty under provisions of this
Act.
5
The limitation period is 30 days from the date on which a copy of the direction,
decision or order is received by aggrieved person or body
14
. Discretion is given to the
Tribunal to entertain any appeal after the expiry of thirty days if it is satisfied that
there was sufficient cause for not filing the appeal within such period
15
. Being an
adjudicatory body, it is bound by principles of natural justice and audi alteram partem.
Thus, on receipt of an application or an appeal the Tribunal shall decide upon the case
after giving the parties to the dispute or the appeal, as the case may be, an opportunity
of being heard
16
.
As, the judge is regarded as "the pillar of our entire justice system," and the
public has a right to demand, "virtually irreproachable conduct and highest degree of
integrity from anyone performing a judicial function
17
, the selection process for the
members of the Tribunal is proposed to be not only transparent but also arduous and
vexed. The Selection Committee is to consist of the Chief Justice of India or his
nominee Chairperson; Secretary, Department of Sports Member ex-officio;
Secretary, in the Ministry of Law and Justice- Member ex-officio; Secretary,
Department of Personnel and Training Member ex-officio; and Secretary General,
National Olympic Committee or his nominee- Member ex-officio.
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14
Section 26(2)- (2) Every appeal under sub-section (1) shall be preferred within a period of thirty days from the date
on which a copy of the direction, decision or order is received by aggrieved person or body and it shall be in such form,
verified in such manner and be accompanied by such fee as may be prescribed
15
Proviso to Section 26(2)- Provided that the Appellate Sports Tribunal may entertain any appeal after the expiry of
thirty days if it is satisfied that there was sufficient cause for not filing the appeal within such period.
16
Section 26(3)- (3) On receipt of an application or an appeal under sub-section (1), the Appellate Sports Tribunal may,
after giving the parties to the dispute or the appeal, as the case may be, an opportunity of being heard, pass such orders
thereon as it deems appropriate.
17
As stated by Canadian Superior Courts Judges Association (CSCJA)- http://www.cscja-acjcs.ca/qualities_required-
en.asp?l=5 (Last visited on January 3, 2012)
6
The Central Government shall rely on the recommendations of the said
Selection Committee
18
. Moreover, a person shall not be qualified for appointment as
the Chairperson or a Member of the Appellate Sports Tribunal unless he is
19
,
(a) In the case of Chairperson, is or has been a Judge of the Supreme Court or a
Chief-Justice of a High Court; and
(b) In the case of Members, is or has been a Judge of a High Court.
Prevention Of Doping And The Bill
Doping in sports is a term used to refer to the use of performance enhancing
drugs. The world Anti-Doping Code defines doping as the occurrence of one or more
violations of the anti-doping rule set forth in Article 2.1 through article 2.8 of the
code.
20
Article 2.8 prohibits administration or attempted administration of a
prohibited substance or prohibited method to any athlete, or assisting, encouraging,
abiding, abetting, covering up or any other type of complicity involving anti-doping
rule violation or any attempted violation.
According to the introduction to the code The fundamental rationale for the
World Ant-Doping Code is meant to be to preserve what is intrinsically valuable
about sport. This intrinsic value is often referred to as the spirit of sport it is the
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18
Section 30 (1) The selection of the Chairperson and other Members of the Appellate Sports Tribunal shall be made by
the Central Government on the recommendations of the selection committee consisting of!
(a) The Chief Justice of India or his nominee Chairperson;
(b) Secretary, Department of Sports Member ex-officio;
(c) Secretary, in the Ministry of Law and Justice- Member ex-officio;
(d) Secretary, Department of Personnel and Training- Member ex-officio; and
(e) Secretary General, National Olympic Committee or his nominee- Member ex-officio.
19
Section 31- A person shall not be qualified for appointment as the Chairperson or a Member of the Appellate Sports
Tribunal unless he is:
(a) In the case of Chairperson, is or has been a Judge of the Supreme Court or a Chief-Justice of a High Court;
(b) In cases of members, is or has been a Judge of the High Court.
20
Article 1of World Anti-doping Code.

7
essence of Olympism; it is how we play true. The spirit of sport is the celebration of
human spirit, body and mind.
21

The said Bill aims to establish the National Anti-Doping Agency that shall
function as the apex body to implement anti-doping measures in sports in India and
its code. The same shall be binding upon all National Sports Federation and the
National Olympic Committee. The Central Government shall provide financial and
other assistance to the National Anti-Doping Agency for proper discharge of its
functions
22
.

To ensure transparency, display of the anti-doping measures taken and financial
assistance given, is a sine qua non to the proper functioning of the National Anti-
Doping Agency. The duty is cast upon the Central Government to ensure that such
displays are made. Since, this task cannot be achieved in isolation by any one
organization, the proposed Bill, on ethical and moral grounds, imposes the duty upon
all National Sports Federations, the National Olympic Committee, the Sports
Authority of India and other sports bodies and officials and support personnel
including coaches, trainers or physiotherapists to prevent such practices in sports.
Giving eradication of the menace of doping priority, the Government now
aims to set up an integrated National Institute of Sports Sciences to produce qualified
sports medicine practitioners and also to tackle the concerns of doping in the country.
Our nation is drastically lagging behind in the field of sports medicine and it is hoped
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
21
Rigozzi, Kaufmann-Kohler and Malinverni: Doping and Fundamental Rights: [2003] I.S.L.R
22
Section 15 (1) The National Anti-Doping Agency shall function, as the apex body to implement anti-doping measures
in sports in India and its code as amended from time to time shall be applicable and binding upon all National Sports
Federation and the National Olympic Committee.
Provided where the International Federation is not subject to rules/code of the World Anti-Doping Agency or part
thereof then the National Anti-Doping Agency shall not administer the rules/code or part thereof as the case may be of
WADA for that sport.

8
that the proposed institute would help in tackling this issue. The sports medicine
practitioners will also help in tackling the peril of doping by educating the athletes and
coaches. Different aspects of sports injury, rehabilitation will also develop thereof
23
.
Though the current bill has only contemplated provisions for the establishment
of the national anti-doping agency, a critique of this part of the bill is futile as what is
of concern for anti-doping is how the national agency will implement the articles of
the anti-doping code. We have to wait and watch out for how the agency provides for
testing, analyzing samples, managing results etc. As far as the bill is concerned, the
fact that it provides for an agency for anti-doping is credible and a step forward.
Ensuring Accountability And Prevention Of Fraud
The concept of governance and accountability in a democratic nation can have
various dimensions and myriad attributes. Assumption and fixing of responsibility and
liability for actions pertaining to decisions, policies, administration implementation
within the scope of the law is one such aspect of it. Thus, the proposed law seeks to
incorporate submission of an annual report to the Central Government by the Sports
Authority of India. The report shall be the medium through which the obligation to
explain and be answerable for resulting consequences is to be imposed upon the
Sports Authority of India.
Every report shall contain an audited annual financial statement, a
comprehensive report of activities and achievements against its approved annual plan,
measures taken for coach development; measures taken to promote indigenous
sports, measures taken to create facilities for training of elite athletes, details of
coaching camps held for preparation of national teams, performance of the activities
by the Sports Authority of India including training of athletes and their inclusion in
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
23
http://timesofindia.indiatimes.com/sports/more-sports/others/Govt-to-set-up-National-Institute-of-Sports-Sciences-
Sports-secretary/articleshow/9798633.cms (Last visited on January 1, 2012)
9
the national team and details of suitable employment opportunities provided to
sportspersons
24
.
With an aim to oust age fraud and scandals in sport and ensuring that there is
no misrepresentation, it is exigent and indispensable to put in place an efficacious and
effectual effective regulatory mechanism so that suitable action is taken against
athletes found guilty of committing age fraud. The draft bill empowers the
Government to make appropriate rules. Infact in 2011, the Government has codified
the National Code Against Age Fraud in Sports that makes it obligatory upon all
sports federations/associations/bodies to take appropriate measures to check age
fraud as this amounts to cheating which is violative and in conflict of the basic spirit
of sportsmanship.

Sexual Harassment And The Draft Bill
Unfortunately in the last decade, several research and study reports have
concluded that many girls and women have experienced sexual harassment and abuse
in sports. Such incidences have been reported by most nations across the globe,
irrespective of how modernised the society in that nation is. It is difficult to state how
large the problem is, but newspapers in many countries often seem to report on cases
where female athletes have been sexually exploited by their coaches. This is illustrated
by a study from Norway among all the elite level female athletes that found that 29 %
had experienced sexual harassment from someone in the field of sports
25
.
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24
Section 8 (1) The Sports Authority of India shall submit annually a detailed report to the Central Government for
causing it to be laid before each House of Parliament.
25
Invited paper presentation at the 6th European Conference on Women and Sport Paris Apri123-25 2004, Professor
Kari Fasting, Norwegian University of Sport and Physical Education
10
The International Olympic Committee issued a Consensus
Statement in 2007, which reported that
26
:
Sexual harassment and abuse happen in all sports and at all levels. Prevalence appears
to be higher in elite sport. Members of the athletes entourage who are in positions of
power and authority appear to be the primary perpetrators. Peer athletes have also been
identified as perpetrators. Males are more often reported as perpetrators than
femalesResearch demonstrates that sexual harassment and abuse in sport seriously
and negatively impact on athletes physical and psychological health. It can result in
impaired performance and lead to athlete drop-out. Clinical data indicate that
psychosomatic illnesses, anxiety, depression, substance abuse, self harm and suicide are
some of the serious health consequences.
Sport plays a major part in the lives of many people. For many, it is a source of
personal achievement and national pride. If the sporting experience is marred by the
presence of harassment it creates an environment that is neither welcoming nor
enjoyable. Legislation and policies are now being framed to deal with this problem.
Sporting organisations worldwide are now recognising the importance of developing
clear guidelines on preventing sexual harassment and of sending the message that
sexual harassment will not be tolerated under any circumstances.
The question before we deal with the Draft Bill is what the significance of a
sexual harassment policy is. This question has been answered by the NSW
Department of Sport and Recreation:
A sexual harassment policy is seen as one step in a wider program to discourage and
prevent sexually harassing behaviour. By establishing a policy, the organisation conveys
the message that sexual harassment is unacceptable. It also serves to assure those who
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26
http://www.endvawnow.org/en/articles/30-sexual-harassment-in-sport.html (Last visited on January 1, 2012)
11
experience harassment that their complaints will be taken seriously. In some instances
employers can be held liable for wrongs committed by employers in the course of the
employees work. This is referred to as vicarious liability. By taking reasonable steps to
prevent sexual harassment and by being able to show how an organisation has taken
these steps, will assist an organisation not to be found liable for the behaviour of an
individual. Other strategies will need to be adopted to translate the policy into practice
and to effectively combat sexual harassment in sport.
27

Thus in India, the Draft Bill has proposed provisions for sexual harassment in
sports. Section 17 of the draft bill clearly provides that it shall be the duty of every
National Sports Federation, the National Olympic Committee, the Sports Authority
of India and other sports bodies to prevent sexual harassment in sports and to ensure
their safety and wellbeing. These sports bodies shall adopt or undertake the following
measures, namely-
1) Notify and publish regulations and guidelines for the safety and well being of all
involved in Sports along with prescribing rules and instructions for the adherence of
the judgment of courts and rules made by the Central Government to prohibit sexual
harassment at workplace.
2) Appropriate systems to ensure healthy relationship between coach and players to
be adopted and a sufficient number of women members to be included in the
coaching and support staff team.
3) Provide appropriate conditions for women in respect of work, leisure, health and
hygiene;
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27
Sexual Harassment Policy and Guidelines For The NSW Sports and Recreation Community
12
4) Provide reasonable assistance to the affected person and initiate action in law,
where sexual harassment occurs as a result of an act or omission by any third party or
outsider.
28

Sexual harassment in sports is more about authority. In an institution where the
progress of one is solely dependant on the recommendation by another, harassment is
about power which vests with certain individuals such as the coach or selectors. Even
though the sexual relation may not be forceful, it doesnt mean it is consensual.
Structural conceptions of power imply a hierarchy, in that there are the powerful
(male coaches) and the powerless (female athletes). In relation to leadership and
coaching it seems that it is particularly this dogmatic style of authoritarian leadership,
that the athletes often are uncritical and dedicated too, which have facilitated
optimum conditions for sexual exploitation in sport.
29

Keeping this in mind, it is pertinent to point out that the present bill also lists
numerous measures to be adopted to ensure prevention of sexual harassment in
sports including ensuring women coaches and staff members for women teams.
However the author is of the view that in addition to these measures, coach education
by a psychiatrist and professionals is essential.
Nonetheless, we must appreciate the efforts of the Legislature for having
skillfully drafted the current bill, which has covered most aspects when it comes to
prevention of sexual harassment. When it comes to restricting harassment, an
important concern is empowering the victims the confidence to speak out and act
against the injustice. This feature has been well provided for under section 17 (2) (f),
(g), (h):
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28
Section 17 (1) It shall be the duty of every National Sports Federation, the National Olympic Committee, the Sports
Authority of India and other sports bodies to prevent sexual harassment in sports and to ensure their safety and
wellbeing
29
Invited paper presentation at the 6th European Conference on Women and Sport Paris Apri123-25 2004, Professor
Kari Fasting, Norwegian University of Sport and Physical Education
13
(f) Provide reasonable assistance to the affected person and initiate action in law,
where sexual harassment occurs as a result of an act or omission by any third party or
outsider.
(g) To set up a complaint mechanism for redressal of the complaints made by the
victim and to ensure time bound disposal of such complaints;
(h) To set-up a complaints committee headed by a woman, a special counselor or
other support service, whilst adhering to the principle of maintenance of
confidentiality.
IOAs Rejection Of The Bill
The Bill might be considered as a stepping-stone in the field of sports, however
it isnt the ideal answer to all those who awaited it. The strongest criticism against the
bill has come from the IOA (Indian Olympic Association). This is a more draconian
bill, which if passed will shackle the IOA, National Sports Federations (NSFs) and
will hit at the very root of the autonomy of the Olympic Charter and we will never be
a party to it, says IOAs acting President Vijay Kumar Malhotra.
30

As per the draft bill, the IOA is to submit annually a detailed report to the
Central Government, for causing it to be laid before the 2 houses of Parliament. The
report has to include annual financial statements, a comprehensive report of
activities and achievements etc.
31
This is an obvious tactic to keep a check on the
activities of the IOA. Additional obligations placed upon the IOA are to maintain
public accountability, resolve disputes through a proper mechanism of dispute
resolution within 15 days of a dispute arising and enact bye laws in compliance with
the IOC Charter and directions. Substantially, the IOA would be required to seek
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30
In a statement, http://www.thehindu.com/sport/other-sports/article2548751.ece ((Last visited on January 2, 2012)
31
Section 10 (1) The National Olympic Committee shall submit annually a detailed report to the Central Government
for causing it to be laid before each House of Parliament.
14
permission from the central government prior to bidding for any major sporting
event and to submit before the Parliament its audited statements, report of activities
and measures taken to promote the welfare of athletes, combat doping, expedite the
process of dispute resolution, comply with the Right to Information Act, 2005 and
prevent gender discrimination and harassment of women in sports.
32

When we compare the Bill to the Australian Sports Commission Act, the
Australian Olympic Federation has no such obligation under the Act. The main
reason for the rejection by IOA is the curb on their autonomy. If one see the success
of the AOF one might understand the why the IOA insists of maintaining their
autonomy. Nation states have accepted the regulatory authority of international
sports authorities, like the IOC, WADA, by adopting legislations that recognises the
almost exclusive authority of IOC etc. over national sports federations and national
sports committees.
33
This nature of the IOC is attributed to the globalisation of
sports. Global regulatory bodies are either not subject to domestic, political and
legal accountability mechanisms at all, or to a very limited degree only.
34

The Olympic charter lays down certain provisions such as, the national
government may not attempt to indirectly exercise authority over the Olympic
movement through their ties to IOC members or their domestic regulations of NOC
(National Olympic Committees). It further requires all NOCs to preserve their
autonomy and independence from national governments.
35
Where the laws or
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32
http://www.sportzpower.com/?q=content/current-affairs-%E2%80%93-review-draft-national-sports-development-
bill-2011&page=0%2C0 (Last visited on December 22, 2012)
33
http://independent.academia.edu/MarcusMazzucco/Papers/337639/Rethinking_the_Legal_Regulation_of_the_Olym
pic_Regime_Envisioning_a_Broader_Role_for_the_Court_of_Arbitration_for_Sport (Last visited on December 25,
2012)
34
http://independent.academia.edu/MarcusMazzucco/Papers/337639/Re-
Thinking_the_Legal_Regulation_of_the_Olympic_Regime_Envisioning_a_Broader_Role_for_the_Court_of_Arbitratio
n_for_Sport (Last visited on January 1, 2012)
35
Clause 29.1 of the Olympic Charter
15
regulation of the country cause the activities to be hampered, the IOC may suspend
or withdraw the recognition of that committee.
36

Under the current bill, section 10 has been drafted to keep a check on the
IOA. They now have to submit a report to the Central Government, which, in
effect, curbs its autonomy. This provision is in contravention to the Olympic Charter
clause 29.1 as it obligates the IOA to give up its autonomy and independence. If the
bill is passed and then enforced section 10 will in practise hamper the activities of the
IOA and eventually the IOA would lose its recognition. This particular provision of
the bill has been ignorantly drafted not taking into consideration the international
charters and law applicable and governing the Association.
Conclusion
Sport is a social and cultural activity which, practiced fairly, enriches society and
the friendship between nations. Sport is also recognized as an individual activity
which, offers the opportunity for self-knowledge, self-expression and fulfillment;
personal achievement, skill acquisition and demonstration of ability; social interaction,
enjoyment, good health and well-being. Sport promotes involvement and
responsibility in society with its wide range of clubs and leaders working voluntarily.
The attempt of drafting a law for regulating sports activity and ensuring the
safety of the sportsmen is a bold step for India. This bill has come at a time when
India has opened its gates to hosting a number of international sports events ranging
from the Commonwealth Games to the Formula 1, apart from the ICC Cricket World
Cup. The hosting of these events has generated awareness of sports among the
masses and has inspired many to engage in them. The bill is a necessity and it could
not have come at a better time.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
36
Clause 28.9 of the Olympic Charter
16
Like every legislation, even this particular one has to face certain criticism,
however after analyzing the bill and comparing it to others, the authors are of the
view that barring a few provisions, the bill has been skillfully drafted and shall
eventually serve as an imperative legislation.

17
Court Of Arbitration For Sport (CAS)

Shashank Mishra*
Introduction

Sport and conflict resolution go back a long way together. Way back in 776
B.C., the first Olympic games were held primarily to bring to an end the civil war that
devastated Greece at the time. While disputes in Sports can be various, it is believed
that alternative dispute resolution scores above mechanisms like a court complaint or
complaint internally in the sporting federations. In times of today, the career of a
professional sportsperson is short and the underlying risk of injuries and loss of form
is immense. As a result, effective and expeditious resolution of sports disputes
becomes crucial. The advantages of adopting ADR for sports
1
disputes are:
(a) A unitary system of dispute resolution
(b) Speed
(c) Expertise
(d) Cost
(e) Finality
(f) Enforceability
(g) Privacy
(h) Preservation of goodwill.
Governing bodies make use of ADR in various ways and at different stages of
sports disputes. The recent trend has been to incorporate external elements into the
disciplinary process, so that the disciplinary panels are manned by people who are
independent of the governing body or event organizer itself, and/or there is a
provision for reference to an external body such as the Court of Arbitration for
Sports (CAS), either in the first instance or on appeal.
2

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
* The author is a 3
rd
Year Student, BA, LLB (Hons.) at Gujarat National Law University, Gandhinagar.
1
Simon Gardiner et al, Sports Law, Routledge, 2006, p. 229.
2
Justice Mukul Mudgal, Law and Sports in India: Developments, Issues and Challenges, Lexis Nexis, Gurgaon.
18
Phillip Morris and Paul Spink, in their article
3
, enumerate a few advantages of
moving to the CAS for Sports disputes over litigation:
First, use of the CAS is cheaper and more expeditious than litigation in the
court system. Secondly, making use of the CAS is more likely to preserve continuing
relationships between the ports governing body and sportsmen than litigation, which
all too often brings in its wake antagonism, bitterness and ill-will. Thirdly, the high
level of sports law acumen and arbitration experience to be found amongst the pool
of CAS arbitrators means that the standards of justice dispensed by the CAS is at least
as high if not higher than that found in the court system.

The Court

The Court of Arbitration for Sport (CAS) based in Lausanne, Switzerland is the
premier body in the international sports disputes resolution scene.
4
Almost all
International Sports Federations mandate sports disputes arising between themselves
and the sportspersons, who come under their aegis, to be finally settled by the CAS,
especially the federations belonging to the Olympic Movement. Among federations
having their own dispute resolution bodies are the International Amateur Boxing
Association (AIABA), the world governing body of Amateur Boxing and the FIA, the
world governing body of motor sports.
The International Olympic Committee (IOC) created the CAS in 1983. Based
in Lausanne, it also has two permanent outposts in Sydney and New York. The CAS
is a legal entity (a Foundation under Swiss law) administered and financed by
International Council of Arbitration for Sport (ICAS), another Lausanne-based body
established in November 1994.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
3
Philip Morris and Paul Spink, The Court of Arbitration for Sport: A Study of the Extrajudicial Resolution of Sporting
Disputes in Stewart, William J, Sport and the Law: The Scots Perspective, T&T Clark, Edinburgh, 2000.
4
Also known as TAS (Tribunal Arbitral du Sport); see www.tas-cas.org
19

History

The key driving force for the creation of the CAS was Juan Antonio
Samaranch, the then President of the International Olympic Committee (IOC). There
were concerns at the time in the IOC regarding the increasing quantity of sports-
related litigation, the quality of judicial decision-making in sports disputes and the
need for a dispute resolution mechanism demonstrably independent of national and
international sports governing bodies.
5
The CAS did not deliver its first arbitral ruling
until 1986. A major problem confronting it during its first few years operations was
the absence of perceived independence given that its architect and paymaster was the
IOC itself. The establishment of the ICAS, following the Swiss Federal Tribunals
decision in Gundel, later rectified this.
6

Composition

The CAS, whose Statute and Regulation entered into force in 1984, comprises a
panel of 60 jurists (an increase in 1986 from 40) selected by the IOC for their
knowledge of sport and geographical distribution. The President of the IOC serves in
honorary capacity of the President of the CAS, and the panel itself chooses an
executive president. Under authority of the president of the CAS, a secretary general
manages a registrars office. The IOC meets the operating costs of the CAS, including
the expenses of the registrars office.
7

Jurisdiction

The CAS is dedicated to hearing and settling any disputes directly or indirectly
relating to sport, including commercial issues; for example, a dispute over a
sponsorship contracts.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
5
Philip Morris and Paul Spink, The Court of Arbitration for Sport: A Study of the Extrajudicial Resolution of Sporting
Disputes in Stewart, William J, Sport and the Law: The Scots Perspective, T&T Clark, Edinburgh, 2000.
6
Gundel v. International Equestrian Federation (1993) 8 International Arbitration Report F-12.
7
Champion, Walter T, Sports Law: Cases, Documents and Materials, Aspen Publishers, New York, 2005, p. 632.
20
CAS cases are fundamentally based upon submission to arbitration by contract.
All athletes who participated in the 2000 Sydney Olympic Games were required to
sign this agreement.
8
The form contains the clause:
I agree that any dispute in connection with the Olympic games, not resolved after
exhaustion of the legal remedies established by my NOC, the International Federation
governing my sport, the Sydney Organising Committee for the Olympic Games (SOCOG)
and the IOC, shall be submitted exclusively to the Court of Arbitration for Sport (CAS)
for final and binding arbitration
The Charter of the International Court of Arbitration for Sport states:
The disputes [in particular, those connected with doping] to which a federation,
association or other sports body is party are a matter for arbitration in the sense of
this Code, only insofar as the statutes or regulations off the said sports bodies or a
specific agreement so provide.
This Charter also categorizes the areas, which the CAS is responsible for
handling, which include ordinary arbitration, appeals, and advisory functions of the
CAS.
9

Therefore, within the CAS there are essentially four categories of sub-
jurisdiction, the fundamental characteristics of which are as follows.
First, there are ordinary arbitration proceedings,
10
which are essentially a first
instance hearing of a dispute submitted to the CAS pursuant to the arbitration
agreement and are heard by the Ordinary Arbitration Division of the CAS. Secondly,
there are appeal arbitration proceedings,
11
which arise when there is an appeal against
a disciplinary organ of a sports governing body, and are heard by the Appeal
Arbitration Division of the CAS. In specific terms, this sub-jurisdiction is invoked
when the regulations of the sports body allow for it or when the parties have
concluded a specific arbitration agreement and the appellant has exhausted all
available internal legal remedies prior to the appeal. For example, appellate jurisdiction
in favour of CAS is also mandatory under Art 13 of the World Anti-Doping (WADA)
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
8
Epstein Adam, Sports Law, Thomson Dilmar Learning, Canada, 2003, p. 265.
9
Section 12, Charter of the International Court of Arbitration for Sport.
10
Code of Sports-related Arbitration, R38-R46.
11
Ibid, R47-R59.
21
Code. Art 13.2.3 of the WADA Code also allows appeals by certain sports governing
bodies, such as international federations and WADA itself, even if they have not been
a party to the proceedings.
Thirdly, the CAS may deliver an advisory opinion at the request of the IOC, an
IF, an NOC or any association recognised by the IOC about any legal issue with
respect to the practice or development of sport or any activity related to sport.
12
This
competence has been depicted as a fertile source of principles and norms in the
development of international sports law.
13
The CAS has been careful to preserve the
purity of this facet of its jurisdiction, emphasizing that it is not to be used to resolve a
concrete dispute and thereby usurp its arbitral function.
14

Functions

The CAS has resolved a myriad of disputes such as doping, eligibility for
competition, nationality questions, selection disputes, sponsorship contracts,
merchandising, transfer fees and disciplinary sanctions, etc.
However, a large part of the courts archiveit ruled on 39 cases in 2004
contains cases involving either doping or football transfer fees (that is, how much one
club team pays another to obtain a player).
15

The CAS also issues so-called advisory opinions on matters, which are not the
subject of an existing dispute or one that is likely to arise for example, the
interpretation of the rules of a federation. There is a separate procedure called the
consultation procedure- for issuing these opinions, which are not legally binding.
16

The President of the CAS determines whether or not to admit the request for an
opinion and, if so, what questions shall be put to the Panel, which shall consist of one
or three CAS Arbitrators designated by him.
17

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12
Ibid, R60.
13
JAR Nafziger, International Sports Law, Transnational Publishers, 1988, p.37.
14
Advisory Opinion 95/145, 10 November 1995, p. 537.
15
Retrieved from http://www.slate.com/Default.aspx?id=2103285 last accessed on 7
th
August, 2011.
16
See Arts R60, 61 & 62 the CAS Code of Sports Related Arbitration, 3
rd
edn, January 2004.
17
Art R61, ibid.
22
The CAS is acutely aware of the need to guarantee a fair hearing. Hence if a
sportsman cannot afford legal representation and the governing body is represented
by a lawyer it draws on its own legal aid fund to pay for legal representation of the
sportsman.
Also, the ICAS launched an innovative initiative in 1996 at the Olympic Games
in Atlanta, namely the CAS ad hoc division (AHD) entrusted with binding resolution
of disputes on the spot within a 24-hour period.
18
Such divisions also sat during the
Winter Olympic Games in Nagano in 1998 and the Commonwealth Games in Kuala
Lumpur in the same year. There are significant benefits of the AHD, both from the
perspective of sports administrators, for whom smooth operation of the competition
is facilitated, as well as athletes, who prefer immediate relief such as restoration to the
competition or award of a medal over court-ordered compensation in the distant
future.
Up and until 2006, the CAS had dealt with more than 576 cases in its 20 years
of existence. Even though the CAS Panel of Arbitrators includes persons from both
Africa and Asia, there had been no cases from these regions till 2006.
19

Procedure

Filing a written request for arbitration or a statement of appeal commences
proceedings before the CAS. The CAS has two divisions: the ordinary division and
the appeals division. The former deals with commercial disputes. The latter reviews
the fact and the law in relation to purely sporting matters, such as disciplinary matters,
for example, doping and cruelty to horses, and constitutional/administrative matters,
such as voting procedures of international sports federations.
20

Any natural person, for example an athlete, or legal person, for example an
association or a company, may bring a case before the CAS. The parties must agree to
do so in writing.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
18
M Beloff, The Court of Arbitration for Sport at the Olympics (1996) 3 Villanova Sport and Entertainment Law Journal
395.
19
Gardiner Simon, Sports Law, Cavendish Publishing Ltd., New York, 3
rd
Edition, 2006, p.234.
20
See Advisory Opinion CAS 2000/C/267, Australian Olympic Committee (AOC), 1 May 2000 rendered by RH Mclaren
(Canada) on the so-called Long John swimsuits and their compliance with the FINA (International Amateur Swimming
Federation) rules.
23
Ordinary Cases

In ordinary cases, generally there is a panel of three arbitrators- one appointed by each
party from the CAS list and the third designated by the other two arbitrators. If the
parties agree, or the CAS considers it appropriate, the dispute can be decided by a
single arbitrator.
21
The arbitrators must be independent. In ordinary cases, Swiss law is
applied unless the parties agree on any other law. The entire process usually takes six
to nine months. Brief reasons must be given in the award.
Appeal Cases

A panel of three arbitrators takes about four months for rendering the decision.
The matter is decided according to the law chosen by the parties. In the absence of
any such choice, the matter will be decided according to the law of the country in
which the federation is domiciled. Again, the President alone renders by a majority
decision, or, in the absence of a majority, the award. Likewise, the award must give
brief reasons.

Legal Authorities

In performance of its arbitral functions the CAS draws upon a raft of legal
standards as well as its own subjective notion of fairness or equity. The primary legal
standards it has recourse to are the Code of Sports-related Arbitration, provisions of
the Olympic Charter, national legal rules and rules of the sports governing body
which is a party to the dispute. Judged in terms of relative importance, it seems that
the Code is by far the most influential; indeed officials at the CAS characterize it as
the Bible a comprehensive, authoritative, legal framework for the operation of the
CAS.
22
Even so the Code is only procedural in character, which is supplemented in
terms of substantive legal norms by, in relative order of priority, provisions of the
Olympic Charter, national legal rules and the statutes of the sports governing body,
which is a party to the dispute. The CAS, glossing over the fact that this is strictly
speaking improper for an arbitral body, consciously making use of a rather
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
21
Court of Arbitration for Sport - Guide to Arbitration, Arbitration, January 2000: Court of Arbitration for Sport Code of Sports-
Related Arbitration and Mediation Rules, January 2000.
22
Supra note 1.
24
amorphous concept of fairness or equity where the application of legal standards leads
to an unfair or harsh outcome, usually for the individual sportsman.

Legal Status Of Awards

Through a series of agreements between the CAS and International
Federations, the latter have acceded to the CAS jurisdiction on a wide range of issues.
These agreements not only endow the CAS with jurisdiction but also provide a basis
for the enforcement of its awards because the eligibility of sportsmen for international
competition depends on the membership of national federations. Such federations
include in their licensing contracts with individual sportsmen mandatory arbitration
clauses that effectively implement the agreement between the Ifs and the CAS, thus
ensuring that CAS awards are binding on individual sportsmen.
23

An arbitral award rendered by the CAS is final and binding on the parties from
the time it is communicated to them. Like any other international arbitral award it can
be enforced according to the usual rules of Private International Law and, in
particular, in accordance with the provisions of the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958. Almost
100 countries have acceded to this Convention. The procedure for recognizing and
enforcing a foreign arbitral award under the New York Convention is laid down in
Art IV. The status of the CAS is also recognised under the European Convention on
the Recognition of the Legal Personality of International Non-Governmental
Organizations.
On the 15 March 1993, the Swiss Federal Tribunal rendered held in the case of
Elmar Gundel v. FEI/CAS
24
that the CAS is a real arbitral court, whose decisions
properly constitute arbitral awards at the international level, and that the court is
neutral and independent. Thus, the CAS, according to Swiss law, is an arbitral body
that can render final and enforceable awards, which have the force of a judgment.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
23
Nafziger, International Sports Law as a Process for Resolving Disputes (1996) 45 ICLQ 130 at 143-144.
24
[1949] All ER 109, 118.
25
Challenges To CAS Awards

It is also possible to challenge a CAS Award before courts in other Countries.
For example, in England, it is clear from the authorities that decisions rendered by
private courts or bodies can be challenged if they act in an arbitrary and capricious
way or disregard the rules of natural justice. This will depend, however, on the
circumstances of each case.

Mediation

In May 1999, the CAS introduced a mediation service, through the CAS
Mediation Rules.
25
The second paragraph of Article 1 of the Rules goes on to limit
mediation under what is called the CAS ordinary procedure, and to exclude
mediation in relation to any decision passed by a sports organisation and also disputes
related to disciplinary matters and doping issues. The CAS ordinary procedure applies
to cases brought in the CAS Ordinary Division, which is dedicated to resolving
commercial disputes.
As per the Rules, a mediation agreement is defined as one whereby the parties
agree to submit existing or future sports related disputes to mediation, and further
provides that it may take the form of a separate agreement or a mediation clause in a
contract.
26
Except where the parties agree otherwise, the version of the Rules in force
at the time the written request for mediation is filed at the CAS shall apply.
27

Apparently, the parties may agree to apply other rules of procedure.
28

The mediation process is confidential and also lays down and spells out the
without prejudice principle on which the mediation shall be conducted.
29
There are
provisions dealing with questions of when and how the mediation may be
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
25
CAS Mediation Rules, Article 1, para 1: CAS Mediation is a non-binding and informal procedure, based on a mediation agreement
in which each party undertakes to attempt in good faith to negotiate with the other party, and with the assistance of a CAS mediator, with a
view to settling a sports-related dispute.
26
Ibid, Art 2.
27
Op cit, fn 84, CAS Mediation Rules (1999), Art 4.
28
Ibid, Art. 3.
29
Ibid, Art 10.
26
terminated.
30
Any settlement of the mediation must be in writing and signed by the
mediator and the parties.
31
There are provisions in case of a failure to settle.
32

Till 2006, the CAS had only dealt with six mediations. On the whole, these
CAS mediations led to settlements of the respective disputes.
33

Towards A New Jurisprudence: Lex Sport i va

During almost 30 years of its existence, the CAS has dealt with a substantial
number of cases covering a wide range of sports related legal issues. Although CAS
arbitrators are not generally obliged to follow earlier decisions or obey the sacred
Common Law principle of stare decisis (binding legal precedent)
34
, in the interests of
comity and legal certainty, they usually do so. As a result of this practice, a very useful
body of sports law is being built up.
35

The extent to which the CAS is contributing to a lex sportiva is a contested
issue. Foster argues that the CAS as an institutional forum is not yet .globally
comprehensive.[but] has imporved by becoming more independent of the
International Olympic Committee and thus satisfying Teubners criterion of
externalisation.
36
The development by the CAS of a discreet body of sports law is a
complex and continuing subject. Principles and rules derived from CAS awards are
contributing to a new and useful jurisprudence in this area.
37
As maintained by Foster
again, the Court of Arbitration for Sport applies general legal principles to sport
when it is dealing with good governance and procedural fairness; it sets minimum
standards, if for no other reason than to forestall litigation before national courts. But
its distinct jurisprudence is its application of lex sportiva and lex ludica. The danger
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
30
Ibid, Art 11.
31
Ibid, Art 12.
32
Ibid, Art 13.
33
For more details, see Blackshaw, I, The Court of Arbitration for Sport: An International Forum for Settling Disputes
Effectively Within the family of Sport (2003) 2(2) Entertainment Law.
34
UCI v. J. 7 NCB, CAS 97/176 Award of 28 August 1998, 14.
35
Nafziger, J., Arbitration of Rights and Obligations in the International Sports Arena, (2001) 35(2) Valparaiso
University Law Review 57.
36
Foster K, Is there a Global Sports Law?, Entertainment and Sports Law Journal, 1.
37
Nafziger, J, The Court of Arbitration for Sport: the emerging lex sportiva in Blackshaw, I, (ed), The Court of
Arbitration for Sport: The First Twenty Years, TMC Asser Press, The Hague, 2005.
27
for the Court of Arbitration for Sport is that the use of lex sportiva as a concept
leads to the position that its principal function as a supreme court of world sport
excludes or modifies the other functions that it performs.
38

Review Findings

Despite its impressive achievements to date, the CAS faces several challenges
which it will have to tackle in the near future. Firstly, it has been accused of being in
the pockets of the federations and being distinctly second best as an avenue of
redress compared with the courts. Such prejudice can be dispelled by an effective
marketing strategy drawing attention to the CASs constitutional arrangements and
even-handed approach to dispute resolution. Secondly, the CAS needs to work hard
to encourage major international sports federations to fully subscribe to its
jurisdiction, such as the IAAF and FIFA. And lastly, the CAS needs, in collaboration
with national and international sports bodies, to consider the means by which the
quality control potential of extra-judicial dispute-resolution institutions in sport can be
fully exploited. There is considerable room for sports bodies themselves to create
their own distinct arbitration schemes or even ombudsman structures,
39
which could
induce a greater measure of independence into dispute-resolution arrangements at a
lower level than the CAS, open up the prospects of combined grievance-resolution
and quality control functions and limit disputes reaching the CAS to those involving
novel or contentious issues of sports law and policy.

Conclusion

In amateur sports, the focus of ADR appears to be rule interpretations,
eligibility and discipline disputes. Concerns for balancing athlete rights yet upholding
the autonomy of an amateur sports organizations interpretations and discipline
procedures are the driving forces behind the continuing transformation of the role of
the CAS and the ICAS.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
38
Foster, K, Lex sportiva and lex judica: the Court of Arbitration for Sports Jurisprudence in op cit, Blackshaw (2005).
39
SA Wiegand, A Just and Last Peace: Supplanting Mediation with the Ombuds Model (1996) 12 Ohio State Journal on
Dispute Resolution 95.
28
ADR has gained prominence in the most recent Olympic Games and has been
effective in resolving disputes internally rather than requiring judicial review by the
courts. While ADR in amateur sports continues to gain momentum, the CAS has
been much more adroit at handling complaints by amateur athletes than in previous
years particularly since such athletes now agree, by contract, that the CAS will be the
ultimate arbiter and interpreter of international amateur rules and their enforcement at
events through its Ad Hoc Division. Athletes now sign contracts in order to be
eligible to participate in a sanctioned competition and the Olympic Games.
While traditional litigation is often the more frequent method to resolve
disputes, ADR has become a widely popular and preferred method to reach legal
solutions for many involved in sports. Arbitration and mediation are usually more
efficient, less costly, and more effective than litigation. Mediation is certainly more
confidential.
However, ADR is not a perfect system and presumes, especially in mediation,
that both parties wish to explore a compromise. In ADR, less emphasis is placed on
win at all costs, and more emphasis is placed on problem solving and settlement. In
the end, the parties often feel much more satisfied, especially if the parties are willing
to compromise from the commencement of an ADR session.

29

Media: Handmade Or Hindrance To Peace?
Smriti Patel, Sristi Patel*
1

Introduction
A Cable TV subscriber pays some Rs.150 or Rs 200 for keeping his television
beaming with view, news, review and entertainment for a month. And a few rupees
get a reader a copy of the daily running into minimum 10 pages, to say the least. FM
radio stations are completely at no cost and their matter-of-fact audio dishes are
offered at fingertips on mobile phones too. And the Internet is a virtual market place
where everything is free of charge, both wanted and unwanted, from across the
world.
It is observed that among these media, the TV channels and newspapers are
the ones that have superior influence over the public than the rest of the media. So it
is expected that these media be taken critically. When it comes to the ownership of
these media, apart from state owned TV and radio stations, private individuals own all
other media and their revenue to run selling column centimeters and commercial
seconds produces this massive business.
On the other hand, whether it is owned by media houses or the state, these
media have a universal role to play when it comes to meeting the challenges of the
nation, particularly when the nation goes through dire straits with bomb blasts and
terrorists threats. So it is quite ordinary that the public look at these media with great
expectations and they give great value to the words, pictures, voices and soundtrack
put across up-to-date.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
* The authors are 4
th
Year, 1
st
Year Students, BA, LLB (Hons.) at Gujarat National Law University, Gandhinagar.!
30
But it is distressing to see the way they supervise these private-owned public
podium. Media, with the exception of their individual press policy parameters, fight
one another to incapacitate the will of the common man by inserting stories that are
twisted and turned beyond recognition, and the public, who takes these platforms
seriously, go with the notion influenced by these vested media houses.
It should also be observed that the energetic forces behind this media rush are
their clientele who feed their pages and commercial breaks with ads. It is the way it
works. So the public has no say in challenging something that suits their taste or likes.
Nevertheless, when the public happens to have much receptive nose for news than
the paid news mongers of these media, particularly when any information or a tip off
could be of great implication for the cause of the nation, there needs to be a common
no-partisan podium so that the public could be genuine watchdogs of the nation.

Media And The Common People: Medias Obsession With Celebrity And
Ignorance Of Common People
It is however important to note that what ensues at times of anguish is that the
media hog around a set of clichd people, whom the public tend to, take seriously,
and vaporize their negligent words into the air, and the same, with a little adornment
and participation, go to prints the following day, and the public is made to be fulfilled
with what is dished into their interiors via DTH and cables, or dished out to them on
a daily basis in the early morning dailies.
The author would most humbly state that such an attitude is dangerous. Our
media should try to mould authentic public opinion on an issue of national or local
importance, instead what they do is feeding them with fictitious and twisted news and
views so as to persuade their outlook in favor of all and sundry that contributes a few
31
column centimeters or help fill a commercial break. Of course, they have to have
commitment to their business partners and their political clientele. They cannot run
the show without it. But, will it be worth it if it is at the cost of national interest?
The author would also state that our public today is much more knowledgeable
and intelligent than many of our so-called social and political reformists. And these
political reformists know the same very well too. Here lies the fix. These two cannot
co-exist in a platform like press. This dichotomy has been claiming India much dearly
whenever this nation had gone through times of challenge and threats. Our media,
time to time, have ignored the inputs of the people and gone with the encircle of
politics, power and profit.
It is also most humbly put across that when the reader gets a media free of cost
does not make you overwhelm whatever the media stuffs up in their platforms. The
common man has to have a say in the content of the press. Eventually, it is the
common man who feeds all the media. The monthly subscriptions, the column
millimeters booked by business houses spending media budgets in tunes of millions,
and the air times that get filled between programme breaks are financed by the
consumers. Here people respond by way of spending, and it is this spending that
makes businesses flourish. Its utter callousness to feed a consumer with 10 minute-
long commercial breaks for giving him two-minute-long slapstick comedy.
The author would most humbly plead that a common mans voice is hardly
heard. Barring a few human-interest local stories, no media worth the salt show any
kind of principles in this connection. When it comes to airing concerns, it is the
concerns of the parties and patrons, corporate houses and community voices that get
heard, not their real patrons, the publics.
It is requested to take a cursory look at the pages of the daily you read, or scan
the TV channel you watch, and see how inadequate the voice and concerns of the
32
common man is. It could be fine even if it is scant, but these media create an
impression that everything is hoary here and what is printed or aired out is what is left
worth motioning, and the way it gets mentioned is the best of all media ways.
The irony is that the public is very much conscious of this strategy, and they
value the pages and broadcasts with enough disregards. But the disadvantage the
public face is that they are unable to tell these media people the same. Even if they
voice their concerns, these media have a mechanism to disconcert the apple cart of all
the citizens of a nation.
The author would most humbly as the reason as to why is this colossus
democratic system suffering from disparity, poverty, unemployment and corruption
even after 60 years of independence. An ordinary Indian will tell you exactly what the
reasons are. Shoot the same question at any political think tank or any press baron, he
or she will get you intelligent reasons, but they will be austerely conforming to their
party and the media they patronize.
Understanding Media Ethics: Accountable To Whom?
The author intends to discuss the role of media in everyday life. Further efforts
have been made to admire the role of media. It also tries to examine whether the
media is always a holy cow and its role cannot be questioned by the alert civil society.
In fact, a reality check of the media has been discussed in this chapter. It obviously
means something different to each of us. The medias portrayal of anything can open
the doors to instant fame and fortune or instant denial and downfall. Which brings us
to the question, Do media persons owe a responsibility to the public to control expression in their
films?

33

Media Ethics And Movies
The author would also say that the movies have a pretty wide influence
2
. Most
movies reach out to all sections of society, class, religion, and region regardless
3
.
Cinemas are an ideal venue for promotion of public awareness advertisements, in
India at least
4
. The Government screened advertisements related to terrorism in the
wake of terror attacks
5
. During the Swine Flu outbreak, they concentrated on
education about public hygiene
6
. While other issues such as women safety, pick
pocketing, corruption and so on are yet to be addressed satisfactorily, it cannot be
denied that whatever issues have been covered have had a moderate impact
7
.
The Indian Film Industry is the largest in the world, releasing the maximum
number of movies every year movies that influence their audience
8
. Yet, many
efforts made by the films have not been able to solve many ills that society is suffering
from. It is also to be noted that the publics interpretation of this art is highly
dependent on culture, tradition, other media forms and peer influence.
The author would also take into consideration this often-gullible state of mind
of the community, those in the media are capable of moulding the public outlook to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
2
Supreme Court not moved by Vikas media glare plea, http://www.asiamedia.ucla.edu/article.asp? parentid=95587
(Last visited on September 20, 2008).
3
J.Venkatesan,Apex Court to lay down coverage norms,
http://www.thehindu.com/2008/08/19/ stories/2008081957360100.htm (Last visited on September 20, 2011).
4
Trail by Media, April 27, 2007, HRF/164/07, http://www.hrdc.net/sahrdc/hrfeatures/ HRF164.htm (Last visited on
September 29, 2008).
5
Palash Kumar, India Media plays judge as justice system fails, http://www.asiamedia.ucla.edu/articlesouthasia.
asp?parentid=56828 (Last visited on September 25, 2008).
6
A.P. Shah, Judges And Media- Inter-Relationship, www.indlaw.com/bc/JusticeAPShahpaper.doc (Last viewed on
7
200th Report of the Law Commission of India on Trial by Media-Free Speech and Fair Trial Under Criminal
Procedure Code, 1973 (Amendments to the Contempt of Court Act, 1971), August 2006.
8
J. Venkatesan, Apex Court to lay down coverage norms, http://www.thehindu.com/2008/08/19/
stories/2008081957360100.htm (Last visited on September 20, 2011).
34
that of their own
9
, and, the medias liberty lies in the hands of the few individuals who
have the means to express themselves in an appropriate avatar. Many struggling
filmmakers who make films on issues that matter to them have to just get lucky to hit
the red carpet
10
.
It is also observed that sensationalism can affect the public very drastically, so it
is fair to say that those in the media field are also swayed and that this reflects in their
work and from there it is forwarded to the even greater following of viewers.
The author would say that it means that filmmakers should act more
responsibly in an attempt to steer the public to the right path as opposed to the
popular route. Maybe, it is sometimes a war between portraying a so-called ideal
representation of society against introducing the public to drastic and often alien
concepts in the sheer hope of attracting controversy
11
.
But, one can swing the argument back to expression of character in ones work
by arguing that their art is an expression of themselves. As many take their art
seriously, it is necessary that the artist should stick to what they can do well and how
they do it. Media attention has often done well in some instances of obtaining justice
for women, clearing pending criminal cases and raising political awareness
12
. Besides
which, certain issues can only seem relevant at an appropriate time.
Media Ethics In India: Necessity Or Formality?
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
9
J. Venkatesan, Apex Court to lay down coverage norms, http://www.thehindu.com/2008/08/19/
stories/2008081957360100.htm (Last visited on September 20, 2011).
10
Gary A. Hengstler, The Medias Role in Changing the Face of U.S. Courts,
http://usinfo.state.gov/journals/itdhr/0503/ijde/hengstler.htm (Last visited on September 20, 2011);
11
See also A.P. Shah, Judges and Media Inter-Relationship, www.indlaw.com/bc/ JusticeAPShahpaper.doc (Last
visited on September 21, 2008).
12
See Anne Cheung, Ending Liberalisms Holy War against the Holy?, available
athttp://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=anne_cheung
35
The author is wondering whether there are any professional codes of conduct
in journalism, Prime Minister Manmohan Singh raised at The Tribunes 125th
anniversary function the issue of media ethics and responsibilities in a provocative
way
13
. In no civilized society is mass media without some societal compulsions and
moral obligations nor, is it without any restraints and responsibilities as in the case of
freedom
14
. Ethical foundation is what gives it a stature and strength for a societal role,
particularly where credibility is the principal criterion, as in the case of mass media
15
.
Ethical practice and norms distinguish rights from wrongs. In fact, an unfettered
Press, without ethical concerns, can be a threat to a free society and to its very
independence
16
.
As ethical standards are constantly under question not just in India but also in
the rest of the world, it is important for the profession that they are discussed and
reiterated from time to time
17
. That is how ethics in general and in the context of mass
media in particular are constantly debated. With the emergence of the electronic
media television earlier and satellite broadcasting more recently media ethics is
being viewed in a newer context and has become more complex as operational
compulsions of the new media are different
18
. That is why issues to do with media
ethics require serious deliberation at various levels within and outside the profession.
Even in a competitive scenario such values are derived either from market forces or
from self-imposed standards and codes evolved over the years by the players
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
13
Clifford Christians, Kaarle Nordenstreng, Social Responsibility Worldwide, Journal of Mass Media Ethics, 19(1), 3
28
14
Jan van Cuilenburg, Denis McQuail, Media Policy Paradigm Shifts, Towards a New
Communications Policy Paradigm, European Journal of Communication, Vol. 18, No. 2,181-207 (2003)
15
Keane, J., Public life and late capitalism toward a socialist theory of democracy, Cambridge, UK: Cambridge
University Press, 1984.
16
Patrick Lee Plaisance, The Concept of Media Accountability Reconsidered, Journal of Mass Media Ethics, Volume
15, Issue 4 February 2000 , pages 257 268
17
Ambika Srivastava, The Role and Responsibility of Media in Global Tobacco Control, The WHO International
Conference on Global Tobacco Control Law, 7 to 9 January 2000, New Delhi, India.
18
Stefano Rodot, Ethics and Human Rights in the Information Society, UNESCO, 13-14
September 2007, Strasbourg.
36
themselves as in the case of the Press
19
. Even a regulatory mechanism by the state
does not reduce relevance of media ethics.
With tremendous growth and expansion of mass media, it is being viewed as
more powerful than ever before, but at the same time the level of public confidence in
the media has been on the decline, even in the US
20
. News media in particular is being
accused of arrogance, insensitivity, bias, inaccuracies, sensationalism, stereotypes,
trivialization and the conflict of interests and the disappearing line between
advertising and news on the one hand, and between news and views on the other
21
.
This in turn could be said to have led to a certain decline in the role and stature of
journalists in new establishments and an increased role of corporates in setting media
priorities.
One associated aspect in this context is the growing corporationalisation of the
media, causing certain shifts in the paradigm of media operations
22
. This in turn has
increased societal concern for the declining ethical standards. In that context, it is
better that the media constantly encourages the public to voice grievances against the
contents in particular. Such a practice implies ethical concern
23
.
There cannot be specific rules about ethics for any situation. Nevertheless, each
opportunity should help make sound decisions and empower people in that process
to set their own standards, styles and priorities in such a way that it becomes a good
precedent to help consolidate freedom with responsibility and further the very
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
19
Wahl-Jorgensen, K., Galperin, H., Discourse ethics and the regulation of media: The case of the U.S. newspaper,
Journal of Communication Inquiry 24(1), 19-40, 2000
20
Fog Agner, (2004) The Supposed and the Real role of Mass Media
21
Nacos Briggitte L., (2006) Accomplice or Witness: The Media's Role in Terrorism
22
Peresin Anita, (2007) Mass Media and Terrorism
23
Stark Aaron, (1998) Noam Chomsky on Media, Politics and Action
37
credibility of the media. Overall, the Indian media in todays global scenario may not
be the best but certainly not a bad one as far as its concern for ethics is concerned
24
.
Towards sustaining media ethics there could be certain broad principles. First
and foremost concern that should become bedrock for media ethics is the realization
that the media has effects on the concerned and larger public and also has long-range
implications for what appears in the media today
25
. A second corrective is the
separation of the advertising function (and interests) from that of the editorial
26
. In
this regard, the US television channels, although their model is not something that fits
the Indian socio-economic scenario, have recently taken a good initiative. For, unlike
in the earlier years, they distinguish a paid programme from the rest prominently
and specify when an ad looks like news or a feature as a paid ad or a leased access
content and, in fact, even simultaneously disclaim questionable contents
27
.
In India, we are increasingly facing this dilemma, both in the case of news
channels and newspapers. A third area which often prompts an ethical dilemma, and
increasingly so, is the mix-up of interests of media corporates with those of the
editorial. Taking responsibility for the contents, which includes owing lapses of any
kind and correcting promptly is another ethical practice which helps set a good
atmosphere for media credibility
28
. There are very few examples one could recall of
media acknowledging something adverse it was responsible for and which it could
have avoided or corrected. This is despite that accountability to readers or viewers is
something most media organisations accept in principle.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
24
Brucker Herbert (1973) Communication is Power, Unchanging Values in Changing Journalism, New York Oxford
University Press.
25
Elmer Davis, (1934) But We are Born Free, The Bobbs-Merrill Co
26
Fore William F. (1993), NCC opposes TV violence - National Council of Churches in Christian Century, July 14,
1993

27
Henderson Hazel (1969) Access to the Media, in Columbia Journalism Review
28
Knott Diana L., Virginia Carroll, Philip Meyer (eds.) (2002) Social Responsibility Wins When CEO Has Been Editor,
in Newspaper Research Journal, Association for Education in Journalism and Mass Communication. Gale Group,
Farmington Hills, Michigan.
38
As the issue of media ethics is becoming increasingly complex, it should no
longer be confined to editors or journalists
29
. As the problem is one of a few spoiling
it for the many, professional associations or bodies have a particular responsibility to
minimize the scope for such a tendency. Initiatives and interventions are needed from
three different levels. Apart from those from within the media, the civil society and
the educational system should be concerned about media ethics and also do
something about it. More specifically in India, we need more forums for discussion on
the role and impact of media on society and in the competitive scenario. Media watch
groups should operate with civil society representatives at the national and regional
levels. The best bet for any issue to do with the media is active and more
discriminating readers and viewers. This also amounts to breaking the trap of
ratings that the media is often under these days. This trap of rating of contents
makes the country believe the interests the people to watch momentarily are also in
their interest. This vicious circle requires an informed and engaged citizenry.
The journalism schools all over owe to the country to do something in this
respect. They need to assess ethical practices and come up with posers on contentious
issues based on research and experimentation
30
. They need to have a more active
linkage with practising professions than at present. Ethical practices are never a
hindrance even in a competitive scenario as we have today. On the contrary, freedom
gets enriched and becomes more responsible. The media sustains its credibility from
being concerned about the ethical implications.
Mass media has a prominent role to play in modern society. It can bring about
radical changes and improve social situation as it influences our social, civil, cultural,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
29
Knott Diana L., Virginia Carroll, Philip Meyer (eds.) (2002) Social Responsibility Wins When CEO Has Been Editor,
in Newspaper Research Journal, Association for Education in Journalism and Mass Communication. Gale Group,
30
Nordenstreng Karla- Hafiz Topaz (ed.) (1989), Journalist: Status, Rights and Responsibilities, International
Organisations of Journalists, Prague.
39
political, economic and aesthetic outlook
31
. Modernization has converted media into
an indispensable feature of human activity. However, factors like age, education,
economic condition, personal needs and availability of proper components decide the
quantum and frequency of media use
32
. This is evident from the fact that most media
centres are located in urban areas. The majority of consumers of media products are
also concentrated in and around cities and towns
33
.
It is rightly said that media use is an index of development. The greater the use,
the higher will be the level of education. As social beings, humans are sustained by
mutual interactions, exchange of ideas, information and views with the fellow beings.
Illiteracy, which is nothing but absence of education and information is a stumbling
block for any aspect of development-social, economic, political, cultural and even
spiritual. Media has become the harbinger of development through the removal of
these roadblocks and the provision of information and knowledge
34
.
In a democratic country like India, the ultimate power lies with the people. But
a democratic society needs vigilant and informed people who are able to see through
the gimmicks of political parties and politicians. Media creates such valuable citizens.
Besides, media has done much good to society by exposing various scams, scandals,
frauds, embezzlements and many other cases of corruption leading to initiation of
enquiries and other processes of prosecution against the perpetrators of these crimes.
History is a witness, that press has been instrumental in putting an end to atrocities
and bringing the downfall of ruthless dictators. In India, vernacular press did the job
of uniting people against the oppressive British rule and triggered its end in the
country.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
31
Parthasarathy R., (1991) Journalism in India, Stereling Publishers Private Ltd., News Delhi.
32
Schimd, Alex P- Graaf de Janny, (1982) Violence as Communication, Sage Publications, London
33
Schmuhl Robert (ed.) (1989), The Responsibilities of Journalism, Affiliated East West Press Pvt.Ltd. New Delhi
34
Barbara Stallings, Globalization and Liberalization: A View from the Developing Countries- UN Economic
Commission for Latin Aneries and the Caribbean.
40
However, media too suffers from some pitfalls; growing consumerism and
materialism have adversely impacted our media. The partisan attitude, sectarian
outlook and biased individualism in some sections of media are a testimony that
media too is susceptible to harmful influences. Often, in fierce rivalries, ethics of
journalism are thrown out of the window to settle old scores. Running after
opportunistic gains is another malady our media suffers from. The incidents of
throwing are against the ethics of media
35
. Deliberately creating sensational stuff to
attract with reality- is another tactic that media must avoid.
External & Internal Control: The Concept Of Paid News
Truth, it is said, is the major casualty in war
36
. For truth to be a casualty one
need not wait for war. Truth is being put to test and sacrificed almost daily in the
many media altars of the world. Speed and competition have reduced medias
commitment to verify and counter check information. Accuracy has become a major
victim in the age of instant communication. Today it is easy to plant a big lie or
distortion along with truth and get some of the media audience to believe it
37
.
The quantity of information the media as well as the audience handle on any
given day has substantially increased
38
. Today we hear of information glut or overload
leading to attention blink. Quantitative increase in the information one needs to
handle and process has considerably reduced the possibility of being critical, of
verifying facts and checking veracity of sources. Often the audience lack the time and
wherewithal necessary to check and verify what they read or watch. It is in this
context that we underline the need for professional competence and social
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
35
BN Ahuja & Shakti Batra Mass Communications with Special Reference to Indian Conditions, Varma Brothers, New
Delhi, 1978,pp.259-273
36
The background information detailed here is drawn largely from Mankekar (1999) and
http://www.indiantelevision.com/indianbrodcast/history/historyoftele.htm
37
DellaVigna, Stefano and Ethan Kaplan, \The Fox News E_ect: Media Bias and Voting," Quarterly Journal of
Economics, 122 (2007), 1187{1234.
38
Fernandes, Leela, \Nationalizing `The Global': Media images, Cultural Politics and the Middle Class in India," Media,
Culture and Society, 22 (2000), 611{628.
41
responsibility as essential requirements for media persons in order to report events
objectively and accurately.
Audience is left with the option of either accepting the lie as truth or suspend
judgment and strives to look for other perspectives
39
. It is not easy considering the
fact that they do not often have the adequate tools to check the veracity of news and
information concerning people and places which are far away from them
40
. Even if
such tools did exist, they are not fool proof due to many subjective factors under
which media might undertake to do the verification. Generally audience tends to trust
the media, and therefore, media must ensure that the trust the audience place on it is
not belied
41
.
That brings us to the question of the issue of prejudice or bias in media. When
we look closely at the way the media function today it becomes obvious that media
are bedeviled by prejudices of one kind or the other. Media are often used in order to
cultivate and nourish, sustain and spread prejudices. Media can easily become a
handmaid, a willing accomplice, a tool in stirring up sensation and prejudices that lie
deep within individual media persons
42
.
Sometimes we take comfort in our prejudices and do not care, or dare, to
examine them and verify them, and set the record right. Prejudices are like the fog
that prevents us from seeing the road ahead clearly as we drive along
43
. They can
affect our attitudes and conduct; they can colour our relationships, our private and
public views and behavior. Mutual trust and confidence in each other have been
replaced by prejudices and suspicion of one another globally with the rise of terrorism
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
39
Johnson, Kirk, \Media and Social Change: the Modernizing Influences of Television in Rural India," Media, Culture
and Society, 23 (2001), 147{169.
40
KAREN ROSS, Gendered Media: Women, Men, and Identity Politics. Lanham, MD: Rowman and Littlefield, pp. 21, (2010).
41
REBECCA ANN LIND, Race/Gender/Media: Considering Diversity Across Audiences, Content, and Producers. 2nd ed. Allyn
and Bacon, pp. 38, (2009).

42
Ahmed Reazuddin, (2000) Role Of The Media In A National Crisis
43
Becker Jorg, (2004) Contributions by the Media to Crisis Prevention and Conflict Settlement
42
and insurgency. The heightened security at airports, mounting travel restrictions
which make international travel a nightmare for many, increased requirements of
guarantees or sureties even in ordinary, day to day transactions, new security and
surveillance systems are symptomatic of the lack of trust in each other in a globalised
world
44
.
Media, however, continue to enjoy great credibility
45
. People often take
information provided by media for granted and quote them freely with the
presumption that they are accurate. That should make media all the more conscious
of their responsibility. Media is a major force that shapes our opinions and affects our
thoughts today. Hence it is important that we examine the way they influence our
thoughts, our attitudes and our values, so that truth may shine forth and triumph, as
the wisdom of our ancestors taught us in India: Satyameva Jayate.
Social Responsibility Versus Commercial Interest
But truth is also in competition with commercial interests. Proprietor-editors
are often tempted to run a paper just like another business establishment. Financial
interests might weigh heavily with such a tribe whereby public accountability of
keeping society at large reasonably well informed dwindles
46
. Social responsibility
demands that the media remain independent of the government, industry and
business. The medias primary aim should be to be at the service of the public
47
.
If responsibility to the public is paramount, media need to be more
comprehensive and deep in the way they report and publish events
48
. Most often
media cover events without adequate in-depth analysis of issues. Social analysis calls
for a breed of journalists who are schooled in understanding the social issues that
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
44
Bina Rebekah L., (2001) Conflict, Terrorism and Media in Asia
45
Cohen Herb, (2003) Terrorism and the Media
46
Feng Huijie, (2008) A Comparative Study of the Role of Media in Times of National Crisis
47
48
McIntosh James, (1999) The Role Of The Media In Emergency Management
43
concern the society. If media responsibility, in its ultimate analysis, is to the audience,
then media institutions and persons ought to maintain a high degree of integrity and
uphold the rights and hopes of all social segments
49
. This demands that greater
attention and importance be given to adequate professional training and education for
media persons.
There is the rising trend of competition among different kind of media.
Newspapers and magazines face serious competition from the visual media,
particularly television. Many newspapers are trying to be more visually attractive than
focus on the quality of content. One can notice the all too increasing tendency of
televisation of the newspapers. One of Indias leading journalists says: The media
has been commercialized. Newspapers reflect more of industrys thinking than of
peoples afflictions. A wit says news is what is written on the back of the
advertisement. A couple of leading English dailies have even begun to sell the editorial
space to a advertisers provided they have the money to buy
50
.
The More Critical Audience In Modern Times
In the new media environment, watching the so-called watchdog has become
essential. They raise ethical questions concerning like the lack of fairness and balance,
the disregard for privacy, the existence of bias, and the glorification of the sensational
and trivia
51
. In the Global Village in which we live today, information is available
through several sources, and journalists do not have the monopoly as providers of
news and information. In addition, the readers, as well as viewers of media have
become more sophisticated, more critical, discerning, conscious and discriminating
than in the past. Hence they cannot be taken for granted
52
. People inside the industry
as well as social scientists and civil society have become more and more critical about
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
49
Nacos Briggitte L., (2006) Accomplice or Witness: The Media's Role in Terrorism
50
Peresin Anita, (2007) Mass Media and Terrorism
51
Stark Aaron, (1998) Noam Chomsky on Media, Politics and Action
52
Jay Black, An Informal Agenda for Media Ethicists, University of South Florida, St. Petersburg, 2008.
44
the way media function
53
. They criticize the specific conduct and practices of media
persons and institutions that are established to provide information. While a section
of the media professionals are doing some soul-searching, the public is becoming
more restive and less tolerant of aberrations by the media
54
. Critical review of media
has come from different quarters- public officials, individual citizens, from NGOs
and citizen forums, courts and judiciary, media reviews, media critics, press councils
and other bodies.
The way out of distortions and aberrations is to fall back on to traditional
ethical principles like social responsibility, which guide the media profession. Media
responsibility can be ensured when a reporter can answer questions like whether the
report is accurate and complete whether it is fair and balanced, whether the motives
and methods used for covering the information are ethically sound, and whether he or
she is aware of the legal and social consequences of publishing a particular report
55
.
The new developments and expressions that have come into media profession
also need to be critically looked at. We have embedded journalists and journalism.
Such a breed of journalists seem to have adopted bias and ideological positions
already as a given. Another category, though less harmful, is Citizen Journalism
56
.
Though citizen journalism has its own benefits and can play complimentary role to
the overall media profession, the audience are not always in a position to distinguish
between a media professional and a participant, a citizen, who may be deeply involved
in the event and hence not necessarily as objective and accurate as a professional
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
53
Ford N. Burkhart, Journalists as bureaucrats: perceptions of social responsibility
Media roles in local emergency planning, International Journal of Mass Emergencies and Disasters, March 1991, Vol. 9,
NMo. 1, pp 75-87.
54
L. FLANDERS, Real majority, media minority: The cost of sidelining women in reporting, Monroe, ME: Common
Courage Press, pp. 1045, (1997).
55
Sommers-Flanagan, R.,Sommers-Flanagan, J., & Davis, B. (1993). What's happening on music television? A gender
role content analysis. Sex Roles, 28, 745-753.
56
Ibid
45
would be
57
. A citizen journalist could easily tempt to become an embedded journalist,
an agent of some vested interested party
58
.
Medias Pro-Urban Bias
Media managers and advertisers are today increasingly choosing to focus on the
urban elite and neglect the rural poor as the former are among the most prized
audience and it pays to inform or entertain them
59
. The urban elite has greater
purchasing power. Reporters are sometimes not so willing to go to rural areas to
report on stories that concern the plights of the poor and the rural people as it entails
a lot of hardships
60
. Even when such stories are brought to the editorial desk, editors
or proprietors relegate them in favor of more urban, elite news. The media bias in
favor of the urban elite at the neglect of the rural people is indeed a serious lapse as
far as the media profession is concerned
61
. Commercial considerations seem to take
upper hand over ethical precepts.
According to Newman news is also a matter of habit, of stereotype.
62
We are
in the habit of looking for it where we have usually found it, and of reacting to it and
judging it in the way that we usually have. What is news on television often depends
on where your reporters and camerapersons are
63
. This probably explains the reason
why most of the news stories are urban centered and concerns the elite. Sometimes
the cameras stagnate around one or the other event for a prolonged period of time at
the neglect of other equally or more meritorious events. Often it is the poor and the
rural people are those who get put aside in favour of the urban elites.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
57
Ibid
58
Bathla, Sonia (1998) Women, Democracy and the Media. Sage Publications
59
Joseph, A & Sharma, K (2006) Whose News: The Media & Womens Issues. Sage Publications
60
Centre for Advocacy and Research 2002. Regional Initiative on women and Media. From http:// www.tech.nic.in
(Retrieved January 26, 2007).

61
Desai P 1996. The image portrayal in TV serials. From http//www.face.media.html. (Retrieved March 19, 2006).
62
Dewey L 2001. About Face Facts on the Media.from http://www.face/.org (Retrieved January 26, 2007)
63
Gahualnt A 2002. Women in advertisements, films and serials in Kerela. http://www.ibnlive.com. (Retrieved May 28,
2007).
46
Trust, Integrity, Editorial Control And Social Responsibility
Media responsibility entails that media should help strengthen and support
democratic and development processes. Although this is a concept, which is
subjective and hard to define, arguments have been made for newspapers, television,
radio, and perhaps types of internet communication to act as a government watchdog,
as a gatekeeper and instrument to disseminate necessary information, and more
popularly, as a reflection of cultural interests and trends
64
. On the universal plane,
media persons should be aware of personal rights, like right to privacy that others are
entitled to enjoy. Respect for these rights is the responsibility that should restrain
journalists in the exercise of their freedom. The ideal of journalism is to be
responsible to the truth. Whether individual journalists or publications meet that ideal
is often debated, but they all, at a basic level, have a definitive responsibility to their
audience.
Media must not seek to lessen or to prevent some evil by withholding news of
what has happened, or by playing it down or blowing it up. If they distort the truth,
some evil worse than the one they seek to avoid may follow. The news is not a device
to be turned on and off like a faucet, to achieve some end. It is an end in itself.
65
.
While any form of government censorship is not healthy for media functioning,
in the absence of any countervailing forces, the media must evolve internal, in-house
systems to deal with issues that affect its responsible functioning. Media should create
ways of dealing with coverage of issues like licentiousness, murder, violence,
corruption, use of drug, alcohol, tobacco, and immorality, objectification of women,
glorification of greed and force, and much more that is objectionable
66
. Media cannot
overlook the fact that the environment of undesirable values, role models, and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
64
Jain, A 1996.Media images of women in India. Journal of Advertising, 30(3): 51-52.
65
Rajagopal R 2002.Media representation and self concept of women in kerela. from //http://www.wiap.org/.
66
Vishav R 2003. Impact of Portrayal of Women in TV Serials and Advertisements. A Project Report by Department of
Sociology, University of Jammu.
47
desensitizing experiences has important effects on every one - particularly the most
vulnerable ones. Hence, media organisations need to think seriously before they add
one more car chase or one more gratuitous bit of sex, rape or stripping story, violence
or murder to the messages with which they are peppering us
67
. Many media critics feel
that right now, it looks like we have got far too much of creative freedom, and not
enough creative responsibility.
The trust of its readers, viewers and listeners is crucial to the media. The public
needs to trust the media, but trust is not given unless responsibility is demonstrated.
Acting properly and responsibly is thus crucial
68
. The publics notion of what is in
good taste and bad taste cannot be ignored. Freedom of the press entails editorial
independence. The editorial work takes place in accordance with the legislation and
ethical guidelines in each country. Some media houses have evolved internal
regulations intended to ensure its editorial integrity, protect its sources and ensure that
they maintain ethical standards. The editor-in-chief is personally and fully liable for
the newspaper's contents as well as advertisements
69
. In other media organisations
there should be someone who assumes responsibility for the content they
communicate to the audience. Writing about the responsibility of the media persons,
Elmer Davis (1934) cautioned, All of us in the news business ought to remember
that our primary responsibility is to the man who buys the newspaper, expecting us to
give him in so far as is humanly possible not only the truth and nothing but the truth,
but the whole truth.
70

Many countries provide constitutional guarantees to ensure universal rights,
freedom of speech, freedom of expression and freedom of the press
71
. However they
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
67
Durriya H.Z. Khairullah, Zahid Y. Khairullah, (2009) "Cross-cultural analysis of gender roles: Indian and US
advertisements", Asia Pacific Journal of Marketing and Logistics, Vol. 21 Iss: 1, pp.58 75
68
Ibid
69
R. ANDERSON, Reality TV and criminal justice: The Humanist 8:8-13. (1994).
70
Ibid
71
Supra 27
48
are not absolute in practice. These rights should be restrained by moral and legal
responsibility as and when they may be in conflict with other rights similarly
guaranteed. On the universal plane, journalists should be aware of personal rights, like
right to privacy that others are entitled to enjoy. Respect for these rights is the
responsibility that should guide journalists in the exercise of their freedom
72
.
The Concept Of Paid News
The phenomenon of paid news' goes beyond the corruption of individual
journalists and media companies. It has become pervasive, structured and highly
organised and in the process, is undermining democracy in India. So finds the draft
report of inquiry conducted into the phenomenon by the Press Council of India to be
discussed by the full Council on April 26 in Delhi.
The lack of consensus over naming names also extends to the report's
reflection of the views of journalists' unions, which have called for strengthening the
Working Journalists Act. The unions assert that the contract system of employment
now in vogue undermines the independence of the journalist and the primacy of the
editor.
Interestingly, many prominent politicians and public figures either deposed
before the inquiry panel or made written submissions to it. Others also handed the
panel their statements on the subject elsewhere. Across the spectrum, points out the
report, even politicians normally loath to antagonise the media have complained
bitterly about what many of them see as little more than extortion. Their report
quotes statement of the opposition leader that the paid news menace had started
out as an aberration, went on to become a disease and is now an epidemic.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
72
Ray Surette, The Media, the Public, and Criminal Justice Policy, 2003 J. INST. JUST. INT'L STUD. 39,
42.
49
The Private Treaties structure lost its sheen when the stock market crash of
2008 saw those shares acquired from corporates plummet in value
73
. However, the
media companies were still to be assessed for tax purposes at the old values prevailing
at the time of such contracts. Paid news was one way out of this trouble. Since, all
the transactions were illegal and off the account books, it benefitted both media
owners and politicians.
The report explores several ways to curb the menace of paid news. It seeks a
far more pro-active role from the Election Commission for instance. It calls on the
ECI to set up a special cell to receive complaints about paid news' in the run up to the polls.
Where a prima facie case is established, it calls on the ECI to initiate action against offenders. It
asks that the ECI nominate independent journalists or public figures to help monitor the phenomenon
during elections. It calls upon media organisations to desist from having their correspondents double
up as agents collecting advertisements for their organisations and receiving a commission on that
revenue, instead of regular salaries, retainers or stipends
74
.
The report also calls for giving regulatory bodies like the Press Council more
teeth. It further appeals to media organisations to adopt a number of principles that
would curb paid news. However, it recognises that self-regulation and civil society
oversight, while welcome and useful, can tackle the problem only to an extent.
There would have to be effective use of existing laws to apprehend those indulging
in practices that are tantamount to committing a fraud on the public.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
73
Madhavi Goradia Divan, FACETS OF MEDIA LAW, 1st ed., 142 (2006).
74
Ibid
50
Ethical Issues In Delivering Media Responsibility: Balancing Freedom And
Social Responsibility

The media is called the Fourth Estate of democracy
75
. In this chapter the
author examines whether really the media promotes or hinders the democratic process
and its various institutions.
For years, the media has been known as the Fourth Estate of democracy,
working as a channel of independent communication between the Government and
society being the watchdogs of a representative country
76
.
However, as time has gone on, there has been considerable debate over
whether the media still deserves this title. For instance, in the United States, the media
is now known as the Fourth Branch, which is a stark contrast to the Fourth Estate
77
.
The Fourth Branch is used to illustrate how the media now acts as another branch of
government, not reflecting the independence required for government by the people.
Market Driven Media Damages Democracy
The media today are under pressure from various fronts including
governments, businesses as well as modern and selfish motives, social and cultural
interests
78
. In the developed world, this pressure that led to the emergence of a new
form of journalism that puts the demands of the market at the forefront. This
commercial oriented journalism gives priority to articles along with irrelevant erotic
photos that attract mass audiences like entertainment while it downplays
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
75
Ibid
76
See also Ritu Tiwari & Aju John, Contempt of Court and the Media,
http://www.indlawnews.com/display.aspx?3537#_ftnref1 (Last visited on September 25, 2008)
77
G.N. Ray, Should there be a Lakshman Rekha for the Press, http://presscouncil.nic.in/speech7.htm. Last visited on
78
Prabhsahay Kaur, Freedom of Press vis--vis Responsible Journalism,
www.legalserviceindia.com/articles/fre_pre_v.htm (Last visited on September 20, 2011).
51
information
79
. The market-driven journalism undermines democracy because it
narrows down the forum for debate. As a result, active citizens are turned into passive
observers in society. For example, there has been an increase of entertainment, and
supplement articles, which have no relevance. This is because entertainment and
sports articles can attract big audiences that the newspaper needs to sell to
advertisers
80
. Advertisers are important because they provide financial support to the
newspaper. However, in a country where democracy is in its formative stages, public
information is necessary not only for citizens to make informed decisions but also to
spur economic as well as social development
81
.
Infotainment And Trivialization Of Information:
Newspapers today seem to be trying more to please the eye than to feed the
mind
82
. The best and most attractive pages of a newspaper today are devoted to trivia
featuring film stars, sports personalities and other celebrities. Even small town papers
devote much space to Hollywood actresses and actors, models and celebrities and
indulge in elaborate discussion on their private lives at the neglect of serious social
and cultural issues that affect ones country or region
83
. There is serious erosion in the
quality of content. Content is trivialized to create interest. Infotainment is the new
catchword, the mantra of the media. But unfortunately infotainment is neither
information nor entertainment. It is simply trivia, pandering to the emotions and
passions. It is cheap entertainment in sheeps skin, masquerading as information,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
79
K.G. Balakrishnan, The Constitution, The Media And The Courts, The Fourth K.S. Rajamony Memorial Public Law
Lecture, Kerala, www.supremecourtofindia.nic.in/new_links/9%5B1%5D.8.08.rajamony.pdf (Last visited on September
20, 2008)
80
University Press.

81
Elmer Davis, (1934) But We are Born Free, The Bobbs-Merrill Co.
82
1993.
83
Knott Diana L., Virginia Carroll, Philip Meyer (eds.) (2002) Social Responsibility Wins When CEO Has Been Editor, in
Newspaper Research Journal, Association for Education in Journalism and Mass Communication. Gale Group,

52
pandering to emotions and feelings. There is a worrying trend in media today of
converting information into entertainment. The value of news as entertainment is a
serious threat to its value as information.
Another alarming trend in the Indian press according to K.E. Eapen, is the fact
that only five percent of a newspapers revenue, on the average, goes into gathering information.
84
.
Many journalists depend heavily on official versions of the news, government press
releases, dispatches, and handouts from NGOs and other organisations. Sometimes
such news items are propagandist and not tested or verified for objectivity
85
. Media
sometimes fail to present independent reports gathered through its own sources as it
entails time, costs and competence
86
. The pressure to depend on official sources as
against gathering independent reports is greater on small budget media organizations.
The celebrity obsession is a growing illness among the media. The news
business builds people up and then acquires an interest in tearing them down
87
. Edwin
Newman speaking as a media insider feels there is not nearly enough criticism of us,
not nearly enough understanding of how we work, of why we do what we do, and of
how powerful our habits and stereotypes are
88
.
The excessive pre-occupation of the press with politics at the cost of
neglecting other socially relevant issues, and the confrontationist attitude to political
forces are something that the Indian media have inherited from the colonial past. If
one can notice some change in the press, unfortunately it is not always in favour of
diversity of content, of qualitative improvement. The new trend, instead, is to cater to
the needs and interests of the consumerist class, to provide instant gratification. Even
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
84
Nayar Kuldeep (2005) Its Commercialized Media, in Communication Today, July-Dec. 2005, Jaipur.
85
86
Parthasarathy R., (1991) Journalism in India, Sterling Publishers Private Ltd., News Delhi.
87
Schimd, Alex P- Graaf de Janny, (1982) Violence as Communication, Sage Publications, London.
88

53
the newly emerging media houses tend to uncritically follow the trend set by
traditional media firms rather than fill the vacuum. People who control the media in
the country think that media are like any other commodity. It should be nicely
packaged. And their idea of nice-packaging is to fill the pages with semi-nude
colour pictures of models and actresses and trash. The shallow, unthinking attitude
gets reflected even in the news stories and articles that are printed
89

Violence has always been good news as far as marketing media is concerned. A
newspaper editor in the post Independent era in India is quoted to have confessed
that he adopted a communal policy because playing down riots and disturbances
curbed his sales. Even the newsboys, he said, refuse to touch my paper if my
rivals report a larger number of deaths than I do. Fascination with media violence is
an expression of suppressed, aggressive impulses of frustrated people, who, unable to
admit to themselves that these impulses exist, demand and expect that the crimes they
enjoy be punished. Reading and viewing about violence in media serve as a sort of
catharsis.
Some critics go as far as accusing media of being the handmaiden of those who
indulge in violence and terrorism. They refer to a sort of symbiotic nexus between the
two. Walter Laqueur called the media the terrorists best friend. Both have a
common interest in reaching the audience, both want attention. According to
Frederick Hacker because the terrorists offer very precious material to the mass
media, the mass media generously and without costs conduct the terrorists business
with real enthusiasm and with eager professional competence.
It would be futile to suppress violent events from being reported either
through censorship or suppression. As mentioned already, rather than government
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
89
54
action to have the media suppressed, it is better that the press and journalists practice
restraint, moderation, caution and discretion. In the face of sensationalism,
inaccuracies and distortions, media should strive to provide a balanced, factual and
accurate report. One way to address the issue responsibly is to ensure that reporting
on violence include the causes, consequences of social disorders, the underlying
problems that is responsible for the incident
90
. But with the speed with which media
operate, their penchant for breaking new news stories, and their touch and go
approach to issues do not help to effectively address the issue of responsible reporting
on violence.
Brucker calls medias penchant for manufacturing news and covering it as
making the news by covering it
91
. Massed battalions of reporters actually change the
news they cover by covering it. No longer are they neutral observers on the sidelines.
Without intending any such thing, they have become a third force in human conflicts;
a force that changes the outcome from what it might have been had they left it
unreported. Irresponsible media practices have at times aggravated riots and
communal clashes. These include sensational headlines, identification of the
communities involved in riots, exaggerated threats, unverified claims, suggestions of
backlash, retaliation and fallout
92
. Reporting tensions and conflicts requires
utmost discipline, discretion and maturity on the part of the journalist.
Protesters have today learnt that they can manufacture news by planning a
protest and then inviting TV and the press to cover it. As Brucker has said, it becomes
common for demonstrators to stage a mass scene at noon and then to watch
themselves on TV that night
93
. Brucker quotes the Walker report on riot, which
blamed the media because it found that on two occasions the camera crews did stage
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
90
Becker Jorg, (2004) Contributions by the Media to Crisis Prevention and Conflict Settlement
91
Bina Rebekah L., (2001) Conflict, Terrorism and Media in Asia
92
Cohen Herb, (2003) Terrorism and the Media
93
55
violence and did fake injuries for the benefit of media coverage. Demonstrators did
sometimes step up their activities for the benefit of TV cameras
94
. Inevitably this
raised the question whether journalism should deliberately reshape its reflexes, its
normal news judgments, because of the effects its presence on the scene might have
on what took place. Downplay their stupidity, wrote Felix McKnight, Texas
editor and a former president of the American Society of Newspaper Editors, to his
fellow editors
95
. Jenkin Lloyd Jones of the Tulsa Tribune said The technique (of
commanding press attention) is calculated, polished, and being used with increasing
frequency
96
. The fact is inescapable: a moderate says Brucker, never gets the
attention a firebrand does.
Accuracy: A Major Casualty In Media
Accuracy has become a major casualty in the age of instant communication.
Today it is easy to plant a big lie along with truth and get some of the media audience
to believe it. The quantity of information has also affected the veracity and quality of
the news. As mentioned already, the media audience does not always have the time,
tenacity or tools to examine the veracity of what is reported. As media enjoy
considerable credibility among the public, the onus is on the media to ensure that this
trust is not belied. Reporters do not always crosscheck the information they get. They
often give one-sided versions of events and people who do not matter- absolute non-
entities. Often good stories are not followed up properly. Planted stories make the
front page (Nayar, 2005)
97
.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!

94
Henderson Hazel (1969) Access to the Media, in Columbia Journalism Review, Spring 1969.
95
Schmuhl Robert (ed.) (1989), The Responsibilities of Journalism, Affiliated East West Press Pvt.Ltd. New Delhi
96
University Press.

97
56
The media must report situations and developments and conditions through
the long months or years or even decades before anything overt happens
98
. Because
nothing spectacular was going on, media can be largely unaware of these long periods
of incubation which set the stage for the seemingly spontaneous explosions that
shock people when they erupt without apparent reason. A journalist must dig
painstakingly for news where none seems to exist, by means of highly skilled,
interpretive reporting
99
.
The media need to be aware of and stress the ills and difficulties of sections of
society, their sense of grievance, slights and indignities, the biases, paternalism and
indifference to which they are subject to. As Brucker states: If one backs off to see the
whole forest of journalisms difficulty, one sees that the task of reporting becomes more subtle, more
complex all the time. It can be discouraging, as when a paper or a broadcaster takes the trouble and
expense to dig into something that lies behind the excitement of the moment, only to find that most of
its readers or viewers pass it by. But thats the way it is. Most of us seem to feel that, in this
tumultuous world, we cannot even keep track of, let alone try to understand, all that happens. Yet
journalism has no alternative but to try to make the individual see at least the things that matter
100
.
Responding to editors who say that people do not read such stories, the Kerner
Commission says, find more ways of telling the story, for it is a story you, as journalist, must tell
honestly, realistically, and imaginatively. It is the responsibility of the news media to tell the
story
101
. According to Brucker, with notable exceptions, the media have not yet turned
to the task with the wisdom, sensitivity, and expertise it demands
102
.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
98
Ibid
99
1993.
100
University Press.
101
Ibid
102
Ibid
57
The challenge of reporting in depth and dimension is growing as society and
social organisations get more and more complex. But if journalism learns that it has to
anticipate the events it reports, and devotes its full resources to digging constantly
under the surface for what may be going on there, it will be doing all we can ask of
it
103
.
Conclusion: Style Over Substance
Today, the major challenges being faced by the electronic media are credibility,
commitment, professionalism and media ethics
104
. There are certain issues which
involve the society as well as the media, making both of them interdependent on each
other. Media is not only a mirror to show what all is happening in the society, it also
acts as an instrument of social change
105
. Its job is to inform and educate the society
and act as a medium of communication between the various organs of the society and
masses. Its job is to look into the society in all its manifestation with a penetrating eye,
reflect noble ideas and expose social evils and help in their eradication. But in recent
times despite all of these duties which media has to perform, there is no credibility to
what media does.
At this point of time media can make or mar reputations, build bridges of
understanding or cause tensions and hatred among various section of the society. A
written word or image on the television screen has a great impact on the viewers and
listeners. But today, the stark reality is that media has lost it ways and become more of
an entertainment package
106
. The media power is increasing day by day, but with this
increase it is losing all its credibility. After independence, Indian media came to its
own and grew in stature and hailed over the world as a shining example of free press.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
103
Ibid
104
A.P. Shah, Judges and Media- Inter-Relationship, www.indlaw.com/bc/JusticeAPShahpaper.doc (Last viewed on
105
Soley, Lawrence. "Censorship, Inc. The Corporate Threat to Free Speech in the United States." (Monthly Review Press, 2002).
106
Ibid
58
Nowadays, many newspapers and magazines indulge in biased projection and
distorted interpretation of news because they think they are serving a cause that is to
bring out truth in front of the whole society
107
. There was a time when media was
used to pride itself for its objectivity, sobriety and rational approach but now it has
come under sharp criticism for its negativism, subjectivity and triviality of news
108
.
The selection, projection and interpretation of news are also suspected because of
unprofessional and dogmatic reporters and commentators whose main idea is just to
increase their readership or tele rating point (TRPs) of their channels and newspaper.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
107
Keeble, Richard Lance. "What is News?: How the World's Biggest Humanitarian Crisis Goes Uncovered
108
Ibid
59

Regulation On Media: A Myth Or Reality?
Aishvary Vikram*
Introduction
Press and media are considered as the fourth pillar of a democracy, but every
institution has to be accountable, for instance, Parliament while exercising legislative
and constitutive power is limited by the judiciary.
1
The judiciary limits the executives
2
,
and the judiciary is restricted by the Parliament.
3
Similarly media is also to be
restricted, though prima facie it may seem that Media is limited by various acts
4
and
judicial decisions
5
, but the main matter of concern is whether the law is sufficient to
handle the situation with the live digital media. It is also to be noticed that Media
similar as the parliament need no educational qualifications, in other words no law in
the world, allow the government to license journalists. Doctors, lawyers, teachers,
engineers, and other professionals generally face licensing requirements, they must
meet certain education standards, agree to follow accepted procedures.
6
If they fail to
meet these standards, the government can yank their licenses and forbid them from
practicing. No such requirements exist for journalists,
7
but this is not a very big issue
and the author has made no attempt to enquire into this issue, but the author intends
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
* The author is 3
rd
Year Student, BA, LLB (Hons.) at KIIT Law School, affiliated to KIIT University,
Bhubaneshwar.
1
See Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461; L. Chandra Kumar vs Union Of India And Others,
AIR 1997 SC 1125, 1997; I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu, (1999) 7 SCC 580; Kameshwar v. State of Bihar
AIR 1951 Patna 91.
2
See Kruse V. Johnson, (1898) 2 Q .B. 91; (1895-99) All. E.R. Rep 106; Roberts V. Hopwood, (1925 A.C.) 578; [1925] All E.R.
Rep 24; Associated Provintial Picture House Ltd v. Wednesbury Corporation, (1948) 1 K.B. 223; 1947 All E.R. 498; Rohtas
Industries v. S. D. Agrawal, AIR 1969 S.C. 707; 1969(1) SCC 325; Bharat Heavy Electricls Ltd. v. M. Chandra Sekhar Ready,
(2005) 2 S CC 481.
3
The Judges (Inquiry) Act, 1968[Act No. 51 of 1968]; Articles 124 to 147 of the Constitution of India, 1950.
4
The Cable Television Networks (Regulations) Ordinance Act, 1995[Act no. 7 of 1995]; The Cinematograph Act, 1952
[Act No. 37 of Year 1952]; The Cable Television Networks (Regulation) Amendment Act, 2002 [No 2 of 2003]; The
Contempt Of Courts Act, 1971 [Act no. 70 OF 1971].
5
Indian Express Newspapers v. Union Of India, (1985) 1 SCC 641; Mother Dairy Foods & Processing Ltd v. Zee Telefilms, (IA
8185/2003 in Suit No. 1543/2003 dated 24.1.2005); R. Rajagopal v. State of T.N (1994) 6 SCC 632.
6
Examining Our Credibility, 1999, American Society of Newspaper Editors. Summary available online at
www.asne.org/kiosk/reports/99reports/1999examingourcredibility/p5-6_findings.html (visited on 25
th
December,
2011).
7
Roy L. Moore & Michael D. Murray, Media Law And Ethics, Ethical Dilemmas, Issues, and Concerns in Mass Communication,
by Mike Farrell, Lawrence Erlbaum Associates, 2007.
60
to draw the attention towards a major issue as to whether there is a necessity to
control live media as other form of media such as press, electronic, digital media. This
issue will be discussed in the paper, in great detail by scrutinizing various unrestricted
notions of freedom enjoyed by media.
According to the differential notions, the paper has been divided into two
parts: Firstly, analysis of media law in India; secondly, ethics are of no force without law
and finally, concluding the article by summarizing intend of the author towards the
necessity of a law.
The Analysis Of Media Law In India
Media that are active, independent, and free remain iconic symbols of a
functional democracy.
8
Democracy, despite its diverse conceptualizations, generally
connotes a governmental structure that is continually monitored by an unabashed
media industry.
9
Such scrutiny of governmental operations contributes to the media's
characterization as the fourth estate
10
but the question arises that even though it is
the cornerstone of the nation, can it enjoy an unrestricted freedom. To answer this
question, the author divides it into two notions, the first is a philosophical platitude,
which suggest that freedom is a sign of liberty and power
11
but it is not absolute and
hence restriction according to the social arena is to be made.
12

The second notion goes on a practical plane, which suggests that such
restriction should to be placed which keeps a control of power and also limits the
power of the state and the society against the media on one side and the power of
media on other. This part of the paper is an attempt of the author to conceptualize
and structuralize this dilemma and the way in which India has responded to this
problem. The author has not only shown the degree of restriction but has also made a
critical remark if the law is not adequate to deal with the freedom given to media.
Before analyzing the position of this enchanted right, it is important to notice
the glimpses of the American constitution and the interpretation adopted by the
court. The First Amendment
13
in the American constitution guarantees broad rights
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
8
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
9
Ibid.
10
Owen M. Fiss, Why the State?, 100 Harv. L. Rev. 781, 786 (1987).
11
John J. Mearsheimer,The tragedy of Great Power politics, W. W. Norton & Company, Edition 2003.
12
Ibid.
13
United States Constitution, First Amendment.
61
to journalists; the government can prevent publication of news only in extraordinary
circumstances.
14
In 1929, Justice Holmes stated, freedom of expression means freedom
for the thought that we hate, not free thought for those who agree with us.
15
Justice Stewart,
dissenting in Branzburg v. Hayes
16
, emphasized the importance of a free press as crucial
for democracy, finding free press is thus indispensable to a free society.
17
Free speech and
press are essential tools to check governmental abuse of power, accomplished only
when citizens are well and fully informed enough to exercise their veto power when
public officials make bad decisions. In his dissent in Branzburg case
18
, Justice Stewart
went on to declare, as the media becomes increasingly consolidated, there is a
continuing need for an independent, alternative press to disseminate a robust variety
of information and opinion, essential to preserving the constitutional tradition of
encouraging freedom through diversity of expression.
19

In India media enjoys a constitutional right. The law on this point is very
settled that Right to Press is a part of Freedom of Speech and Expression under Art
19(1)(a) of the Indian Constitution,
20
and it is a right, restricted by Art 19(2) and not
an absolute right as in American Constitution. This right can be restricted provided
three distinct and independent prerequisites are satisfied and these prerequisites
should be in consonance with the grounds provided under Art 19 (2).
21
Firstly, the
restriction imposed must have the authority of law to support it. Secondly, freedom of
the press cannot be curtailed by executive orders or administrative instructions
without the authority of law.
22
Thirdly, the law must fall squarely within one or more
heads of restrictions specified in Art 19(2). These were the tests due to which the
Supreme Court held the even restrictions such as in interest of the general public cannot
restrict the right to press in1951 as a result the parliament amended the constitution
and added it as a ground in Art. 19(2). Further not only the restrictions have to fall
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
14
New York Times Cc. v. United States, 403 U.S. 713 (1971); New York Times Co. v. Sullivan, 376 US 254, 11 L. Ed. 2d 686;
Monell v. New York City Dept. of Social Servs. 436 US 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611.
15
United States v. Schwimmer, 279 U.S. 644.
16
Branzburg v. Hayes 408 US 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626
17
Ibid.
18
Ibid.
19
Ibid.
20
The Constitution of India, 1950, Part III, Article 19.
21
Romesh Thapper v. State of Madras, AIR 1950 SC 124.
22
Rai Sahib Ram Jawaya Kapur v State of Punjab, AIR 1955 SC 549; Gulapalli Nageswar Rao v. A.P.S.R.T.C, AIR 1959 3 SC
308
62
within restrictions given under Art. 19(2) but should be reasonable and not
excessive.
23

Prof Wade
24
suggests that any right is first recognized, then expanded and then
controlled or regulated.
25
This suggestion of the eminent professor was though made
on rule of law, but it seems to be also applicable on Right to Press, as it was recognized
in 1951
26
, later expanded to include some other incidental rights such as the right of
circulation
27
, Right to advertise
28
, Right to broadcast
29
, Right to criticize
30
and slowly
the court started limiting the right not only by reading restrictions mentioned under
Art 19(2), but also by adding a further limitation, that is Right to Privacy
31
. It seems
that the court felt a need to strike a constitutional harmony between the various
provisions of the Constitution, as one of the principles of the constitutional
interpretation is Harmonious construction
32
.
It is also submitted that there are enough checks given under the constitution
and laws in India which restrict the freedom exercised under Art 19(1)(a) but are not
sufficient as these laws doesnt directly applies to the Live News Broadcasting agencies. For
instance, The Cinematograph Act, 1952 which basically concentrates on Cinematograph
films and their distribution to authorized parlors doesnt specifically focuses on live
media as in Samrat Video Parlour v. State of Haryana
33
application of this act was
explained by the court. The Honble Supreme Court said that the act applies to
VCR/VCP/TV Projector as the said equipment achieve/serve the same purpose as the traditional
media for exhibition of moving pictures. It must be so interpreted to take into account new and
subsequent scientific developments in the field as it cannot be confined to traditional interpretation of
such apparatus or simply compartmentalized. Hence, license is necessary to carry on business of
running a video parlor. This view adopted by the court clearly revels that this act doesnt
at all applies to News and its broadcasting.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!

23
State of Madras v. V.G Row, 1952 AIR 196, 1952 SCR 597
24
William Wade and Christopher Forsyth, Administrative Law, Ninth Edition, Oxford Publication, 2004.
25
Ibid, page no. 2.
26
Supra no. 21.
27
Sakal Papers Ltd. v. Union of India, AIR, 1962 SC 305.
28
Bennett Coleman & Co. v Union of India, AIR 1972 SC 106.
29
Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294.
30
Express Newspapers v Union of India, AIR 1958 SC 578.
31
R. Rajagopal and Another v. State of Tamil Nadu and Others (1994) 6 SCC 632.
32
Sri Sankari Prasad v. Union of India, 1951 AIR 458.
33
AIR 1993 SC 2328.
63
Moreover some other acts such as The Press and Registration of Books Act
34
, The
Press (Objectionable Matters) Act
35
, The Newspaper (Prices and Pages) Act
36
. empowers the
Central Government to regulate the print media, it seems that the parliament has
failed to understand that the word Media is a very wide term and it is not merely be
limited to print media but has to be extended to broadcasting or digital media.
In this regard, the author also submits that the author will basically and broadly
deal on the necessity of Code of Conduct for the media in three main aspects. Firstly,
the conduct required by the media while dealing with a sensitive matter such as
security of the state; Secondly, the conduct required while dealing with the privacy of an
individual; Thirdly, with the conduct required by the media in going on trial cases,
which is famously known as media trial.
The Conduct Required In Matters Related To The Security Of the State
Rights enshrined under Article 19 of the constitution, though fundamental, are
not an absolute right and are always subject to reasonable restrictions, which may be
imposed, in the larger interest of the society. One of the restrictions mentioned under
this head is Security of the State.
37
The court while giving the judgment, expressed that
when the matter is of public importance or in the interest of the public, but disclosure
of it will affect the security of the state such statement is not to be published or
broadcasted.
38

Two aspects are to be seen that in the case of Live telecast or Live digital News
Broadcast, it is impossible for the government to control or stop the media from doing,
but if a law is made which has a serious punishment and also a criteria of canceling
the license of the said body to telecast news, then that will not only have a deterrent
affect but will also limit the violation of such a restriction.
Some instances are present where the media, has violated the Security of the
State such as the media coverage of the terror attacks in Mumbai that showed the
incompetence and irresponsibility of the Media in handling sensitive and tragic
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
34
The Press and Registration of Books Act, 1867, [Act No. 25 OF 1867].
35
The Press (Objectionable Matters) Act, 1951.

36
The Newspaper (Price And Page) Act, 1956, [Act No.45 of 1956].
37
The Constitution of India, Part III, Art 19(2).

38
AIR 1952 SC 329
64
situation to the fore. The counter effect is that, the people Right to know under Art
19(1)(a) is also grossly affected as ordinary people have no choice but to stick to the
news which is highly exaggerated. Another ugly face of Indian media and press,
especially the news channels, emerged in its insensitive, irresponsible, crass way of
reporting. All its reporting were an offensive display of grabbing every minute of the
tragic situation to loud phrase-mongering without understanding the main issues and
neglecting the security of the nation.
39

Further news channel IBN Live, broadcasting the position of the army officers
in the Hotel, while rescuing the victims and planning strategies for encountering
terrorist was heavily criticized by Hindustan Times, as it stated that, some of the coverage
by certain news channels could have actually helped the terrorists, yet still there is no sense of guilt
among these irresponsible media people, who have made it their business to exploit commercially even
the tragic situations, even at the cost of national security. But it would be asking too much from a
nation that lacks the very element - a sense of responsibility.
40
Further the newspaper also
states that Terrorists found out that guests were hiding out in the Chambers at the Taj on the
night of the 26th when their Pakistani controllers told them that TV had carried the news.
41

Another older illustration is the Kargil War, where the media reported that
number of tanks, there location and the nuclear missiles India had, and such type of
irresponsibility shown by the media is an evidence of a necessity of a law in India.
42

The author doesnt intended to waste his effort in listing out what mechanism to
control such type of activities of media, as it will require a heavy policy making but in
short the author will suggest that a law should incorporate a serious punishment and a
criteria to cancel the license of the said body to telecast news, this will have a deterrent
effect and will limit the violation of such a restriction.

The Conduct Required In Matters Related To The Privacy Of An
Individual
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
39
What lessons have we learnt from 26\11? <http://blogs.hindustantimes.com/medium-term/2009/11/26/what-
lessons-have-we-learnt-from-2611/ >, visited on 24
th
December, 2011.

40
Ibid.

41
Ibid.

42
<www.thehansindia.info/Updates/pdf/2011/August/14//Vizag/5.pdf>, visited on 25
th
December, 2011.
65
Sting operation may be an expression of the right to free press but it is a duty
to respect the privacy of others. The individual who is the subject of a press or
television or any form of media item has his or her, reputation, personality or career
which will dashed to the ground after the media exposure regarding to the personal
matter of the person so concerned.
43
He too has been granted fundamental right to
live with dignity and respect and a right to privacy under Article 21 of the
Constitution.
44

The expression personal liberty in Article 21, as the guardian of the
constitution Judiciary
45
, claims is of the widest amplitude and it covers a bundle of
rights which constitutes the personal liberty of persons and some of them have been
raised to the status of distinct fundamental rights and given additional protection
against Article 19 of the Constitution.
46

The position of privacy is was settled in Kharak Singh v. State of U.P.
47
where
Justice Subba Rao, speaking for the minority said that Right to Privacy is a guaranteed
right under the Constitution. After Kharak Singh, there has been a catena of decided
cases
48
in this regard has held privacy as a part of personal liberty under Article 21.
The Court has given a preference to Right to Privacy over Freedom of speech and
expression as the Court said that Right to Privacy is a fundamental right and hence the
right to press should be exercised subject to the limitation given under Art 21.
It is interesting to note that the court has often drawn an exception to this rule
as in which condition the privacy of an individual can be infringed. In Campbell v.
MGN
49
, where Naomi Campbell, an international supermodel brought an action
against the MIRROR group of newspaper claiming damages for the breach of
confidence and invasion of privacy for disclosing that she was receiving treatment for
the drug addiction. The court in this case differentiated the words in public interest and
the of the public interest, the court pointed out that report of her drug addition will not
come under in public interest it will be of public interest thus, creating the difference the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
43
Supra 31.
44
Ibid.
45
His Holiness Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461
46
Brij Bhushan And Anr. vs The State Of Delhi, 1950 SuppSCR 245
47
1963 AIR 1295, 1964 SCR (1) 332.
48
Govind v. State of M.P, (1975) 2 SCC 148; X v. Hospital Z, (1998) 8 SCC 296; Peoples Union For Civil Liberties v. Union of
India, (1997) 1 SCC 301; Malak Singh v. State of Punjab, AIR 1981 SC 760; R. Rajagopal v. State of T.N. and Others, (1994) 6
SCC 632; District Registrar and Collector, Hyderabad and another v. Canara Bank and others, (2005) 1 SCC 496.
49
(2003) 1 ALL ER 224 (CA).
66
court further laid that this kind of activity will cause the breach of confidence. The
court of appeal decided in Kaye v. Robertson
50
applied the same principle and added that
to acknowledge whether a matter is in public interest, it is also to be ascertained the
degree of effect on the public due to the action of the individual. This similar point
was taken in an Indian case of R. Rajagopal v. State of Tamil Nadu
51
the Supreme Court
held that the petitioners have a right to publish what they allege to be the life-
story/autobiography of Auto Shankar insofar as it appears from the public records,
even without his consent or authorization but if they go beyond that and publish his
life story, they may be invading his right to privacy, and then they will be liable for the
consequences in accordance with law. It stated that A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among
other matters. None can publish anything concerning the above matters without his consent- whether
truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to
privacy of the person concerned and would be liable in an action for damages.
In the Famous sting operation known as the Uma Khurana sting operation
52
after
the lady was arrested the investigation showed that the girl who had been shown as a
student who was allegedly being forced into prostitution by Ms. Uma Khurana was
neither a school girl nor a prostitute but a budding journalist eager to make a name in
the media world. The police found no evidence to show that Ms. Khurana was
involved in a prostitution racket. In December 2007 the Delhi High Court took suo
moto notice of media reportage around a television story that had come to be known
as the Uma Khurana sting operation. The court examined the question of how the
recurrence of such incidents could be stopped or at least minimized so that innocent
persons cannot be victimized and suffer loss of reputation. The Court argued against
the entrapment of a person even if it was to further the public interest. It referred to a
1992 US Supreme Court decision, Keith Jacobson v. United States
53
, and said that Media
has an ethical duty not publish any material which is either untrue or is likely to be
untrue as this may misguide the public and also affect the said individual.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
50
(1991) FSR 62.

51
Supra 31.

52
See Uma Khurana files defamation case against TV channel, <http://www.newstrackindia.com/newsdetails/1388>
visited on 23ed December, 2011; [also see] Court discharges Uma in fake sting case, India Weekly-USA, Vol 7, No.7,
November 11, 2007.

53
1992 503 US 540.
67
The Court asked the Ministry of Information and Broadcasting to examine the
proposed guidelines placed before it by the amicus curie, and to include proposals they
deemed fit in the current exercise to draft a statute or code of conduct to regulate
sting operations. According to these guidelines a channel proposing to telecast a sting
operation had to obtain a certificate from the person who recorded or produced it saying that it
was genuine to the best of his/her knowledge
54
. There has to be a concurrent record in
writing of the various stages of the sting operation. The channel has to obtain permission
from a committee appointed by the Ministry of Information and Broadcasting to telecast the sting
operation. While the transcript of the recordings could be edited, the films and tapes cannot be edited.
Both edited and unedited tapes have to be produced before the Committee. The Chief Editor of
the channel is responsible for self-regulation and has to make sure that programmes
are consistent with the Cable Network Rules, and comply with all other legal and
administrative requirements under various statutes with respect to content of what is
broadcast on the channel.
The guidelines further say that the subject matter of reports or current events
cannot: a) deliberately present as true any unverified or inaccurate facts, so as to avoid trial by
media. b) Present facts and views in such a manner as is likely to mislead the public about their
factual inaccuracy or veracity by mixing fact and fiction in such a manner that the public is
unlikely to distinguish between the two. c ) Present a distorted picture of reality by over-emphasing or
underplaying certain aspects that may trivialize or sensationalize content. d) Make public any
activities or material relating to an individuals personal or public affairs, or which invades a persons
privacy, unless it involves an identifiable, larger issue of public interest. e) Create public panic or
unnecessary alarm that is likely to encourage or incite the public to commit crime or otherwise lead to
disorder or be offensive to public or religious feeling.
The Court in the said case also noticed that, even thought Section 499 of IPC
deals with defamation and according to the said Section, whoever, by words either
spoken or intended to be read, or by signs or by visible representation, makes or
publishes any imputation concerning any person intending to harm, or knowing or
having reason to believe that such imputation will harm, the reputation of such
person, is said, except in the case hereinafter excepted, to defame that person. To
apply Section 499 IPC it is to be provided that the accused must have intended to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!

54
In The High Court Of Delhi sting operation, WP(crl.) no.1175/2007, date of decision: 14th December, 2007.
68
publish or allege to have libelous.
55
These can only be applied after the act has been
committed by the agency, but a law is required which restricts and also monitors such
type of information before it is published.
On 11 September 2007, after the Usha Khuranna case, the Ministry of
Information and Broadcasting issued a show cause notice to Janmat TV-Live India
stating that the telecast of the sting operation was deliberate and defamatory,
containing false innuendos and suggestive half-truths. The show cause notice referred
to Section 5 of the Cable Television Networks (Regulation) Act, 1995, read with
provisions of the Cable Television Networks Rules, 1994, which specifies that no
program can be transmitted or retransmitted on cable services if it contains anything
obscene, defamatory, deliberate or false, and/or if it contains suggestive innuendos
and half-truths. The channel was also told that it was in violation of the Program
Code and Advertising Code. On 19 September, the I&B Ministry passed an order
prohibiting transmission by Janmat TV-Live India
Thus the excessive freedom given to the media should be restricted and efforts
should be made so that the irresponsibility of the media can be controlled. These
evidences clearly suggest that the Parliament should enact a law encompassing the
guidelines given by the Court. It is also submitted that even though Sec 5 of the Cable
Television Networks (Regulation) Act, 1995, existed, still it was continuously violated
due to the lack of severe punishment and deterrence.
The Conduct Required In Matters Related To On Going Trials
The press reporting can generate unwarranted publicity and sensationalism. As
it is well known fact that the Journalist have a very little or no knowledge of the
Indian Judiciary system and decides the cases according to the moral ethics. They
have a shallow and reporting can be incompetent, distorting or misguided. This
doesnt serve the public interest. Further the whole idea behind open trail is to assist
the administration of justice and if the media forbids or diverges the mind of the
judge by misleading data due to which he becomes partial while giving the judgment
will disturb the main motto, if law and that is to provide justice. In Zahira Habibullah
Sheikh v. State of Gujarat,
56
the Supreme Court explained that a fair trial obviously would
mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
55
M.C. Verghese vs. T.J.Ponnam; (AIR 1970 SC 1876). See also John Thomas vs. K.Jagadeesan; (2001) 6 SCC 30.
56
Zahira Habibullah Sheikh v. State of Gujarat, [(2004) 4 SCC 158].
69
means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is
being tried is eliminated.
In this context, in the case Sailbal Kumar v. B.K Sen
57
, the Supreme Court held
that it would be mischievous for a newspaper to systematically conduct an
investigation into a crime for which a man has been arrested or publish the results of
that investigation which is particularly in concern. This is because trial by newspaper,
when a trial by one of the regular tribunals of the country is in progress is prevented.
This basis for this view is that such actions on the part of the newspaper tend to
interfere with the course of justice.
58
The principle of open justice applies to courts as
well as to judicial and quasi-judicial tribunals. There is a fundamental right to attend
proceedings in the court under Article 19(1) (d) of the constitution and the right to
publish a faithful report of the proceeding witnessed and heard in the court as also in
judicial and quasi-judicial tribunals.
59

Instance may be taken, such as when eminent lawyer Shree Ram Jethmalani
decided to defend Manu Sharma, a prime accused in a murder case, he was subject to
public derision. A senior editor of the television news channel CNN-IBN called the
decision to represent Sharma an attempt to defend the indefensible claimed Manu
Sharma to the criminal and guilty before the court actually passed a verdict. This is a
grave violation of privacy which also includes the right to make personal decisions
and violation of principles of court procedures. In Ayushi murder case, the
irresponsibility of the media is clearly shown; during the investigations the Media
declared that her father Talwar was the killer of her daughter due bad character and
relation of her daughter with her servant and her friends.
60
Later the facts became
clear that his servant was guilty of the murder committed, due to the wrong
information had a great effect on the people, and Judges are also common man with
knowledge of Law, but sometimes they are also affected by the News and become
impartial. Though in this case the judges were not affected but no one can understand
the mentality of the judge, while he is deciding the case.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
57
AIR 1961 SC 633.
58
Supra 42, pp 638- 639.
59
Saroj Iyer v. Maharsastra Medical (council) of India Medicine, AIR 2002 Bom 97.
60
presscouncil.nic.in/AR_08_09.pdf
70
Ethics Are Of No Force Without Law
Journalistic codes of ethics and other mechanisms of media self-restraint,
which often constitute preconceived or set standards, also tend to suffer from a lack
of sufficient definiteness and authority. This deficit distinguishes journalistic ethical
codes from similar standards adopted by other professions such as law or medicine.
Ethical standards applicable to these latter professions are more precisely drafted and
enforced by an independent regulatory authority.
61
Without some external mechanism
that compels compliance, journalistic codes of ethics and, to a certain extent,
agreements that limit dissemination of certain sensitive information appear hollow
and largely symbolic.
62

One of the most resonant criticisms of journalistic codes of ethics relates to
their somewhat vague prescriptions. The language of most codes promotes socially
acceptable and professionally required norms based on truthfulness.
63
Journalistic
codes of ethics seldom offer precise, bright-line rules that define problematic
situations. Moreover, they often fail to provide the specific guidance needed to
resolve these situations.
64

Vagueness, together with the competitive nature of the industry, arguably
diminishes the functionality of journalistic codes of ethics. The impact of these codes
relates directly to an individual's comprehension and interpretation of the codes'
mandates and her decision as to whether those mandates apply to the problem at
hand.
65

The author as to show the defect of such code has made a compilation of case
studies to address this situation. In September 2004, CBS News acknowledged it
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
61
Jeff Storey, Does Ethics Make Good Law? A Case Study, 19 Cardozo Arts & Ent. L.J. 467, 471 (2001) (reiterating the
problem that codes have dubious effect because of their lack of authority).
62
Ibid.
63
See, e.g., American Society of Newspaper Editors (ASNE), Hearst Newspapers: Statement of Professional Principles
(May 20, 2002), at http:// www.asne.org/index.cfm?ID=3556 (on file with the Notre Dame Journal of Law, Ethics &
Public Policy) (stating that it is the mission of the papers to be the most trusted, most respected and most accurate
source of news and information); American Society of Newspaper Editors (ASNE), The Washington Post Standards
and Ethics (Feb. 16, 1999), at http:// www.asne.org/ideas/codes/washingtonpost.htm (on file with the Notre Dame
Journal of Law, Ethics, and Public Policy)
64
Jeff Storey, Does Ethics Make Good Law? A Case Study, 19 Cardozo Arts & Ent. L.J. 467, 471 (2001) (reiterating the
problem that codes have dubious effect because of their lack of authority).
65
Kathe Aschenbrenner Pate, Restricting Electronic Media Coverage of Child Witnesses: A Proposed Rule, 1993 U. Chi. Legal F.
347, 358 (1993) (observing that adherence to ethical codes tends to suffer due to the pressure to increase ratings).
71
could not vouch for the authenticity of documents it used to support a 60 Minutes II
segmentrepeated on the CBS Evening Newsalleging that former military
superiors of President George W. Bush had been asked to sugarcoat his
performance evaluations during the Vietnam era. The documents also purported to
show that as a young officer, Bush ignored direct orders to complete a physical exam.
Almost immediately, document experts questioned the veracity of the documents
used to support the allegations, supposedly written by his late squadron leader.
66
It
was pointed out, for example, that the memos appeared to have been created by a
computer, not a manual typewriter from the 1970s. While Dan Rather, CBS News
then anchor, later apologized for the use of bogus memos as support, CBS President
Andrew Heyward appointed an investigative committee to uncover how the hoax had
taken place.
67

It is submitted that in June 2003, the two top editors of the New York Times
Executive Editor Howell Raines and Managing Editor Gerald Boydresigned amid a
scandal that developed the previous month when 27-year-old reporter Jayson Blair
was exposed for journalistic fraud at the paper. In the same month, 43-year-old
Pulitzer Prize-winning reporter Rick Bragg had resigned after being suspended for
publishing a story under his byline that had been mainly reported by a freelance writer
who was not credited. In a four-page investigative report, the Times revealed that
Blair included fabrications, inaccuracies, plagiarism, and other serious errors in at least
36 of the 73 articles he had written for the newspaper during a six-month period.
Under Raines and Boyds leadership, only 14 months before they stepped down, the
Times had won a record seven Pulitzers, all but one for its coverage of the terrorist
attacks on September 11, 2001.
Another instance is the aftermath of Hurricane Katrina, one of the worst
natural disasters to hit the United States; the media were widely criticized for
publishing and broadcasting incorrect information and uncorroborated rumors that
officials later said delayed the relief efforts. Lt. Gen. Russel L. Honore, commander of
Joint Task Force Katrina, told the Washington Post that reporters got bogged down
trying to tell people how bad the situation was rather than gathering facts and
corroborating that information.
68
The Post also reported that officials told reporters that
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!
66
Media Law And Ethics by Roy L. Moore ,Michael D. Murray, Lawrence Erlbaum Associates (Nov 2007)
67
Ibid.
68
Ibid.
72
accounts of widespread looting, gunfire directed at helicopters, homicides, rapes, and
life-or death struggles at the Louisiana Superdome frequently turned out to be
overblown and even untrue.
69

These are some of the few evidences, to highlight the misconduct of media and
also the weakness of such codes, hence not only in India but also in U.S there is an
urgent need to make laws for controlling the conduct of media.
Conclusion
The author would like to clarify that the article at some places may seem to be
one sided, or has neglected the prospects of the media, but it is to be noticed that law
doesnt declare a person innocent in any case, merely because he had a good history,
similarly these few but gravely irresponsible conduct is sufficient for the law to law
down a minimum standard for live digital telecast media. It is not to be confused that
this article doesnt suggest the policy or the special features of the law to be created by
the parliament as this would require a heavy policy making but it merely tries to figure
out the instances were such money making uncontrolled conduct of media is seen.
There is also a necessity of law regulating the specific content of the news, not
substantially but merely see whether the news is not perverted or exaggerated by the
media. Further it is also to be noticed that misconduct by media and corruption are of
the same nature in two notions, both damages the public and both require a self-
control on their activities. Hence the author merely suggests that not only a law is
required but also there is a requirement of an intellectual media.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!

69
Ibid.
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