Media's Un-Reality : Dragging us away from Reality

‘IPL will gives us break from the circle which is going on unabashedly since last 3 months’

Above is a tweet from a veteran, though apparently there were people galore who criticized television news channels for their relenting and protracted coverage of the tragic death of Sushant Singh Rajput. A grievance is that other important issues like economy, unemployment, and even china-faceoff were put to back burner. If you randomly call to your friends, relatives there is a very good chance (78 % in my case with n=28) that they will talk about this issue. This engenders a great dilemma, a question worth considering; Is Sushant’s death or Economy or China or Nepotism of Bollywood our immediate reality of life? Should a common man for 24 /7 be obsessed with an inference that the political might of an individual has consumed one life? Or that two nations stand gun against gun on border? 

Renowned French philosopher Jean Baudrillard provocative analysis of Gulf war, where he terms it as a virtual war, presents a great framework to analyze our own set of facts. Baudrillard had pointed that the postmodern culture is so overly reliant on maps and models that it has lost contact of the reality which the model intends to simplify and explain. How does a layman perceive a news channel?  A medium which keeps her updated about the reality. There are processes which are applied to convert facts to a presentable news and what we expect is that the news affects our life. Covid has changed our life and every dimension of it, travelling, work, shopping and for many crisis is existential cause of health or unemployment. Then why from 4 p.m. to 11p.m one mysterious death (an investigating agency independent of state gov. is now probing the case) becomes our reality. Why are people lighting candle and planning trees in memory of sushant? What makes people hook on to this model so much so that they are fine with ignoring other issues? 

Contemporary media, (including social media) are no more an information relay medium, but rather they are interpreting ourselves for us. From the lens of this interpretation, an initial abuse of power by Government of Maharashtra has made all of us oppressed. Thereby the contemporary media, not only in this case, but in every coverage make us come together in strong solidarity, effect of which is that we see the world only through their lens. We become a new commune which has lost its ability to be sensitive to its own reality and needs. We are more consumed with the desire to achieve our own goal and we are more sensitive to the emotions of group’s solidarity. In pursuit of this goal, we seek more information, more updates and our conscience is kept satisfied only when we learn that we are an inch closer to our goals. 

Thus, the medium of communication is probably in the Baudrillard’s third order of simulacra, where there is absence of profound reality. In this world, the map is drawn before determining territories of the nation, a model is made before looking at the subject. Thus what news channels simulate is not even artificial as concept of artificial requires a reality against which one can recognize artificial. This is the situation where representation predates the reality. Effect is that we have completely lost the distinction between nature and artifice. Baudrillard believed that postmodern society is organized around simulation and play of images. Subject in this hyperreality has lost contact with the real and undoubtedly covid has even taken the subject further away. That explains why Arnab Goswami’s Hindi News Channel (it was pioneer in covering Sushant’s case) has dethroned the old guard aaj tak in BARC rankings. Then an 'allege' case of gang-rape surfaced in hathras of Uttar Pradesh and all of national media crowded in Hathras. Facts are conflicting on ground but the case has generated ample amount of solidarity in public at large. The UP police's inhumane treatment of the victim's family has generated a wave of shock in country and media channels are again riding on that solidarity. The rising of the case can be ethical as injustice should be raised, but other rape incidence have not got any coverage, be it be Rajasthan, Chhattisgarh, West bengal or even a different case in UP were accuse is a muslim. One wonders why? In a country were caste discrimination is rampant and were BJP talks about Hindu unity this inhumane act of administration will generate stronger solidarity in comparison to other cases. The girl's spine was broken and tongue was cut harkens back to brutal gang-rape of nirbhaya which generates strong public convergence. Solidarity is a common public good and the fight of media commerce is to swing the solidarity in favor of their own case. Reality is still far flunged, even in Hathras's case facts are conflicting and no TV channels have aired any view of the accuse's family, Why? Because that may dilute the narration, may dent the solidarity. This google trend may give us all a good picture of of media's war, republic which relies on Sushant's case and Aaj tak which relies on Hathras. Apparently this is not a fight for justice forget even bringing reality to all of us, this a fight for the top. The graph below depicts that reality via google trend, one story jumping over the other. A journalist needs a pitch for that and administration provides it, be it be mumbai or hathras after which it becomes a simulation which they design for us to create solidarity.  

Look at this graph and you will notice, both the lines of Sushant and Hathras's victim have same peaks which signifies one plain thing, solidarity is felt for both the victims, though the rage is justifiably more for one(can be for myriad of reason, one being brutishness of the act.). Apparently Television News has become a commercial game which is working on its ability to create more of solidarity in the favor of their narrative. We are all caught up in this play of simulation that has less and less relationship with our immediate reality. 

Remember the veteran’s tweet I started with? From news to a new simulation; cricket. Moreover, sushant’s case and it’s hyper-reality is tolerable, but what about other issues that may have direct consequences to the democracy?  how do we debate about society where it’s individuals are addicted to simulation? 

May be deliberation, may be deliberative democracy.

 Today's Contempt, Tomorrow's Peril. 

What can a tweet do? Apparently much.

Prashant Bhutan’s tweet has caused considerable free speech storm in the country. While Soli Sorabjee the eminent jurist gave a practical solution, Bhusan should give evidence of corruption while, the apex court should move on from the case, thanks to the contemporary divisive society, the issue has its conundrums.

In the gilded age of media and information tsunami when our society stands highly divisive on every single issue, will every free speech Vs Contempt issue offer a potentially easy way out? Probably no. In this contemporary age, the courts around will have to be much more tolerant, and if you wonder why? the answers are very much in the way in which court has functioned in the past few decades.

‘Demoprudence’ of the court has been a very celebrated concept and prof. Baxi describes this prudence as one, where the court gives away from logical and legal doctrine to rule in the favor of the demos. This is what is popularly called judicial activism or Social litigation. The court does way with legal maxims like Stare decersis and decides solely on the ethical ground of ‘Interest of Demos’.

The problem of contemporary society is that ‘demos’ are hugely divided and that wedge now informs the opinion people make on the Supreme Court and its decisions. Highly contested social issues have reached the court and either have been decided or will be litigated very soon. One section of demos has been rather critical on some judgments like Rafael case and Ram Janambhumi case to note a few. They have been vocally critical of the court’s laziness in taking up ligation related to Article 370 and internet restoration in Kashmir. What makes these questions uncomfortable is the fact that the Court has shown judicial inconsistency in applying legal maxims. While the court normally comes hard on illegal detentions, they refused to take a call on detentions of Kashmiri leaders. Thanks to demoprudence, this inconsistency makes the other part of demos angry and they have all the right in the world vent their anger. Demoprudence when practiced on bipartisan issues like Vishaka or Nirbhaya enhances the public acceptability of the court, but divisive issues like 370, CAA, and probably NRC in the future will attract sharp socio-political comments on the court. The Court cannot go after everyone in safeguarding its reputation. Though these arguments give the impression that only liberals have issues with the court, the right-wing has consistently questioned court’s wisdom on Sabrimala judgment and have prompted the court to refer to a 7 judge bench the women’s right to go to a temple which now also includes women’s right to go to the mosque. A similar kind of inconsistency has propped up in the administration of the court and Justice J. Chelmeswar has pointed out serious issues with its working. J lokur had cited previously many cases were appointments of judges to certain courts were rejected with no explanation given but they were then appointed elsewhere. Bhusan’s tweet by the public has been understood has extrapolation of these accusations. Retribution through contempt is no answer to these accusations.

Whether it is the wisdom of its judgment or it is the administration of the judicial system, the Court has shown some inconsistency and it will attract some serious dissent from divided demos and taunts will be made from both sides. And let me remind, that Court is the final arbiter and despite these issues enjoy the widest acceptability in the people in comparison to other organs of the state. Some of the sneers will be made in anticipation of action so that the Court’s acceptability can be tarnished and thereby erode an effective medium whose rationals are still accepted by society. Erosion of court acceptability will be a hammering blow to democracy and a quick one.

Dissent Is a fundamentally important tool of constitutionalism and we must not forget that it carries a serious potential of sparking deliberative process in a democracy. While, suppressing this dissent will only sprout a modicum of anarchy in our democratic society, encouraging dissent followed up by deliberation though the public debate will only go on to enhance the legitimacy of judicial as well as the juridical process. It is people’s job in this country to both question the Court and defend its honor. If the Court questions them, it does so on its peril and at the peril of our democratic system. 

Unchecked State and the Rise of Pandemic

The present is ‘haunted’ by the past and the past is modeled, invented, reinvented, and reconstructed by the present. – Jan Assmann

History, they say have a habit of repeating herself or another way to understand it is, Historians, find the comparative parallels from past to explain the conundrums of the present.  Then, what is in the past to explain the callous rise of the corona pandemic? The memory of the humankind takes us to 1918 when the Spanish Flu wreaked havoc of an extent that no country was spared from it, the terror and panic of Influenza had gripped the western societies while orientals might not have even know what hit them. Influenza came in the years of war and germs would kill more people than bullets. By the time the pathogen halted, the world had lost 3-5 % of its population. A pandemic of lesser fatality, but probably even bigger magnitude has hit us and there are some lessons in the political system that 1918 taught us. Lessons that we have forgotten or probably never learned.

What is in the name? Apparently a lot, more so in a world of perceptions and narrative. As China objects the western society's use of the term 'Chinese Virus', the advent of the name 'Spanish Flu' tells us the grim reality that an ultra-nationalist press can have on the spread of the pandemic. Influenza of 1918 chose the most opportune moment a pathogen can choose to attack. America was at war, so were other democracies, Britain, and France. Spain was different, it was neutral, and as Spanish Press vigorously reported flu cases the world considered Spain as ground zero of the pandemic. when the King of Spain in May 1918 caught the flu, the name went viral. However, in December of 1917 the Army camps at Boston, Kanas, and Devens were reporting deaths of sailors and personnel and despite this none of the American newspapers talked about the Flu. Nothing was more important than making a strong chorus of war. Boys have to reach France or else Allied power could have lost confidence; Newspapers talked about german spies, Influenza came unnoticed. Then the disease jumped to the civilians and newspaper had Vicks Vapourup ads saying, 'it is nothing more than or less than an old fashioned grippe'. Influenza spread like a wildfire, from the US to France, and from Europe to India and China, it was unstoppable. Underreporting costs us then, underreporting costs us today.

The first symptoms of Corona were detected in China on December 1, 2019, and by the second week of December, doctors understood about human to human transmission, but cases were not reported at all. China is an interesting society, but the Chinese communist party is always at War. We don't need to quote press freedom index to tell where china stands on press freedom and more so particularly after Xi Jinping assumed Mao like power. Underreporting of Corona cases in Wuhan lead to this terrible situation, something very akin to 1918 happened. Whistleblower doctor Li Wenliang warned of SARS-like disease but was thrown behind the jail and was released on the precondition that he will not talk about the new disease. China's suppression of the Corona Virus case before 23rd January lead to a rapid geographical spread according to a report in Science magazine. Much to the shock of the world, even WHO was complicit as they tweeted on 14 Jan 2020 that there is no evidence of Human to Human transmission. CCP controlled Chinese media was much like the US media of 1918 in war. In the name of the Chinese claim of hegemony and Jinping's status of an infallible world leader, Coronavirus was allowed to leap the great wall and when the virus jumped the wall, thanks to the Chinese propaganda, the world was unprepared and at the mercy of its virulence.

When judging the role of the state in the case of a pandemic, the general trend has been to analyze the public health system and infrastructure of the state and make a call on its performance. But pandemics can spread for many more reasons, a lot of those can be found in epidemiology and genetics but one reason is in political science as well. Can the nature of a political system contribute to the spread of the pandemic? Yes. War has been considered to be a hotbed of epidemics and medical academicians have consistently argued that war provides a very good broth for the confluence of agents and hosts which leads to pathogens tearing down the society. However, a lot can be understood by the process of political decision making and more so of the states which are the source of pandemics.

In 1917-18 the USA was democracy at war with fascist regimes and one feature of the war has always been fading away the checks and balances particularly on the executive. In normal days for liberal democracy, Courts and legislators along with Press play this role. WW I faded away these checks and balances as no one questioned the government lest bring out issues concerning disease outbreak from Boston to Philidelphia.  The results were glaring and much before the ill-fated 28 September 1918 World War 1 parade of Philadelphia, influenza was hitting sailors in various Army Camps in Boston, New York, and Philadelphia. What then prevented the Public health services of the United States from acting decisively? Denial. The US forces were leading the war and President Wilson was in no mood of losing the steam and so he never acknowledged the threat of the enemy in his own backyard. Suo Motu was not known to the American Courts those days and the press had reduced the black death to normal flu.  Checks and balances can play a major role in calling out to those denials very early and catch the disease in time.

Eerily, China's incumbent political system bears an ugly resemblance to world war I democracies. Checks and balances are present in every institution until someone decides to be a supreme leader. A competitor, a challenger who is criticizing and questioning the incumbent keeps the institution healthy. Before Xi Jinping, such checks and balances were indeed present in China and communist party leaders would indeed be critical of the presidential governance. The pre-Xi era was times were people within the party could be critical of the president. Some of the public intellectuals have called Hu Jintao's 10 years as the lost decade and the term 'wuwei' or inaction was a frequently-used term in both Chinese blogs and daily conversations in the country. Even party mouthpiece like global times criticized Ren Jianyu an activist's detention as murdering of dissent.  Shanghai Gang or elitist faction was a check on the power of Hu Jintao and his Communist Youth League(CYL). Xi's ascension was also marked with reducing the power of CYL as people close to Hu were systemically weeded out and in states as well as in the Congress Xi's men were brought. While restrains like age limit and term limit have already been chopped off in china to keep Xi in power, the putsch of Communist Youth league has ensured that check on Xi's power by the virtue of Collective leadership has completely failed. With the Party general secretary and presidency being occupied by the same person the role of Politburo has been cut short. The party and the state everything belongs to Xi.  Francis Fukuyama, the much-celebrated American Philosopher pointed out at the time of Xi's ascension the problem of a bad king. Unchecked leader's policy to a situation is akin to being a bad king and that commonality is to be found in WWI democracies and Xi's China.

What is common between China's role in the COVID-19 pandemic with United States of 1918 is outright denial that the disease existed or was getting transmitted human to human. Strong executive and her unchecked powers lead us to the same situation which existed 100 years ago. Though people can make a case that, Covid-19 yet again proves the mettle of the Democratic model of governance, I have a different point to make and especially to Communist Youth league. (I know none will ever read it though) Democracy might not be the model that the Chinese are willing to accept, but China has an institutional history of keeping a check on Bad Kings through its meritocratic aristocracy. The stymied intra-party democracy has demanded absolute fealty to Xi and the meritocracy check on his power has not only gone but has lead to the problem of alternative facts and illusory construction of what’s actually happening on the ground.  In a normal democratic society, the onus squarely lies with the people to check such power, but in China, that onus lies with CYL or the rival faction, and the people of China must back them in time. China does not need to become democratic to ensure that no more horrors flow from her land, she just needs to be pragmatic. Checks and balances must be restored and Emperor must be called out for his failures, else bad will become worst.

Why Nirbhaya's convict can't be hanged separately? 

In 1975, 3 accused were convicted and sentenced to death in a murder case by pilibhit court and was affirmed by Allahabad High Court. C1's SLP was dismissed by the Supreme Court and he was hanged in 1981. C2's SLP was allowed partly and his death sentence was commuted to life imprisonment by Supreme Court in 1978. C3's SLP, Review was rejected and President also rejected in mercy petition. C3 challenged the president order, whereby court looking at facts and circumstances of the case asked president to reconsider his decision on the ground that

"We have seen the facts from which it is clear that no distinction at all can be made between the part played by C2 on the one hand and the C3 on the other. Since C2's death sentence was commuted by this Court, it would be unjust to confirm the death sentence imposed upon the petitioner"

This became a correctional point, as court directed that the Jail Superintendent should ascertain  personally whether  the sentence  of death  imposed  upon  any of  the co-accused  of the prisoner who was  due to  be hanged had been commuted. If it had been commuted,  the Superintendent should apprise the superior authorities  of  the  matter,  who  must take  prompt steps  for brining the same to the notice of the courts. 

The Court decided that, the Considering that  the responsibility,  involvement and complicity of  the  petitioner in  the commission  of the offence is  the same  as that  of the  other co-accused,  it would be  sheer travesty  of justice if for the same offence the petitioner had to pay the extreme penalty of death while the death  sentence imposed  on the co-accused, for the very same offence  had been commuted to one of life imprisonment.

"Had the petitioner mentioned  either in  the special  leave

petition  or  review  petition or  mercy  petition  to the

President this all important  and significant fact,  death

sentence imposed on him would have been commuted."

This became a guideline lights for the hanging ever since in all cases where more than one convicts were on the waitlist to the gallows. Delhi Prison rules inserted a note to Rule 854 which says that if sentence has passed to more than one person in same case and if the appeal to higher court or an SLP in Supreme Court is lodged by or on behalf of only one and not all of them, the execution shall be postponed for all such persons. 

However, Ministry of Home affairs has lodged a Writ Crl in Supreme Court asking for the directions that the death convicts be given 1 week to file review, and from then 1 week to file curative and from then 1 week to file mercy petition and another one week to challenge president's order on mercy petition. 

The issue of Section 39A is a  complex scrutiny and whether state should have the power to take life is empirically and philosophically debatable, delaying the process of justice makes the administrative apparatus questionable. Tom tyler a Yale psychologist and law professor argues and argues well that, people follow for they see legitimacy in the authority which enforces law. if they see administration of justice being halted they start questioning that authority for the reason of it's efficacy. There is a fine balance to be maintained between rights of convicts and people's perception in cases of such outrage. People cannot be give a perception that justice system can be take to a ride. 

Case sited : Harbans Singh Vs State of U.P 1982 SCR (3) 235