Fetters on the media?

Print edition : June 01, 2012

Chief Justice OF India S.H. Kapadia. Through the Supreme Court's website he invited intervention applications from anyone who wanted to make a submission on the issue of drawing up guidelines on the reporting of ongoing cases. The court is said to have received more than 50 applications.-SAM PANTHAKY/AFP

The proposal made by a Supreme Court Bench to have guidelines for legal reporting is seen as a serious threat to the freedom of the media.

Paradoxes are not new to India. But the current challenges to the freedom of expression and the freedom of the media are sure to confound a future historian looking for explanations.

The country is fortunate to have the best of historical circumstances that are conducive to uninhibited public debate and dissemination of news and views, which are characteristics of a vibrant democracy. The Right to Information Act has become a potent weapon in the hands of the citizenry, not only to bring unknown aspects of governance into the public domain but also to enrich the contents of the media, with activists even surpassing journalists in ferreting out hard news. There has been a phenomenal increase in the number of journalists for the ever-expanding print and electronic media that serve a growing readership and viewership. In this situation the Emergency of 1975-77, with its unprecedented fetters on civil liberties and censorship of the media, should appear as distant history.

But events of the past few weeks suggest that challenges to the freedom of expression and the media may be subtle yet formidable even in normal times. And such challenges could be triggered by trivial, yet exaggerated, fears of those in authority, whether in the executive or in the judiciary.

In this context, the Supreme Court's hearing on the framing of guidelines for legal reporting by the media, which it concluded on May 3, makes one wonder whether the court's response to just a routine complaint from a litigant has been disproportionate.

It all began on February 10 when the Supreme Court passed the following order, quite out of the blue, in connection with an ongoing dispute between Sahara India Real Estate Corporation Limited (SIRECL) and the Securities and Exchange Board of India (SEBI). We are distressed to note that even without prejudice' proposals sent by learned counsel for the appellants (Sahara) to the learned counsel for SEBI has come on one of the TV channels. Such incidents are increasing by the day. Such reporting not only affects the business sentiments but also interferes in the administration of justice. In the above circumstances, we have requested [emphasis added] learned counsel on both sides to make written application to this court in the form of an I.A. [intervention application] so that appropriate orders could be passed by this court with regards to reporting of matters which are sub judice.

In response to this order, Sahara filed an application complaining about the media reporting the list of properties it gave SEBI and sought appropriate guidelines with regard to reporting on matters that are sub judice, including public disclosure of documents forming part of court proceedings.

Sahara's counsel is the Senior Advocate and eminent jurist Fali S. Nariman. His initial complaint was only about the fact that Sahara's list of properties got leaked to the media. He did not seek any restrictions on the media for carrying such stories. He even wanted to withdraw his application when he came to know that the court had expanded the mandate in order to lay down coercive guidelines on the media. He was categorical that the court had no power to lay down such guidelines and that if it did, it would open the floodgates for pleas to restrain the media by seeking injunctions against publication of stories on ongoing cases.

The SEBI was represented by Attorney General Goolam E. Vahanvati. In his written submissions to the court, Vahanvati pointed out that in Indian constitutional jurisprudence, freedom of the press was at the heart of the right of freedom of speech and expression under Article 19. This freedom was at the foundation of democratic organisations, he said. Dissemination of information regarding judicial proceedings was an important facet of freedom of the press, he added. After agreeing that the freedom of the media had to be balanced with the effect of improper reporting on the administration of justice, he cautioned the court that the proposed guidelines should be a normative exercise without coercive procedures.

To be fair, the court, having embarked on the exercise to frame guidelines, wanted to listen to as wide a spectrum of views as possible. Through the Supreme Court's website, the Chief Justice of India S.H. Kapadia invited I.As from any party who desired to make submissions in the matter. According to sources, the court received more than 50 I.As on the matter. The CJI constituted a Constitution Bench of himself and four other judges to hear the oral submissions from counsel representing various sections of civil society, and the hearings went on for 17 days between March 27 and May 3. The four judges were Justices Surinder Singh Nijjar, Ranjana Prakash Desai, Jagdish Singh Khehar and D.K. Jain.

Strange reasoning

While the Attorney General was in favour of self-regulation of the media, Additional Solicitor-General Indira Jaising, who represents the Central government, provided what seemed to be a strange justification for the court-proposed guidelines. She reasoned that unlike the First Amendment to the American Constitution, which provided for freedom of the press, the right of free speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution was a citizen's right not available to institutions like the media. There can be no right to misinform/misguide the public under the guise of the right to freedom of speech and expression. She argued that normative guidelines can also be binding.

However, Senior Advocate Rajeev Dhavan countered her argument by calling it an imperial view which had been systematically eroded by the due recognition of the press and the media as possessed of institutional rights to ensure their effective functioning.

Rajeev Dhavan further pointed out in his written submission to the court:

Anyone, be he accused or an aggrieved person, who genuinely apprehends an infringement of his rights under Article 21 to a fair trial and all that it comprehends, is entitled to approach an appropriate writ court asserting an individual right to seek preventive relief, even against the media, relating to publication, and that court is entitled to grant the same, on a balancing of the right to fair trial and the right under Article 19(1)(a), bearing in mind the principles of reasonableness and proportionality.

Among the guidelines that Indira Jaising suggested is one that will make legal journalists extremely unhappy: The media should be barred from reporting material that has been filed with the court's registry but has not come before the court. In recent times, petitions filed with the registry have been key sources of news stories of interest and concern to the readers, even before the courts have actually heard the petitions. If they are public interest litigation (PIL) petitions, they help mobilise support for the causes they espouse. No doubt, some PILs are mischievous and even scandalous, and when the courts dismiss them the media are free to report them.

Disproportionate response

An argument can indeed be advanced that reporting a scandalous petition can injure the image of the parties concerned. But there are remedies available, and subsequent reports of the court's dismissal of such petitions could offset the initial damage that may have been caused. But using the pretext of such reports on scandalous petitions to consider a universal bar on reporting of any petitions filed with the court's registry is indeed a disproportionate response to a minor grievance. Senior Advocate and activist Prashant Bhushan suggested that if a case was to be covered only after its preliminary or first hearing, that would encourage people to hold press conferences before filing a petition, thus circumventing the unreasonable restriction.

A newspaper passes through the printing process. Events of the recent past suggest that challenges to the freedom of expression and the media may be subtle yet formidable even in normal times. And such challenges could be triggered by exaggerated fears of those in authority, whether in the executive or in the judiciary.-K.G. SANTHOSH

During the arguments, the Chief Justice said that the Bench had no intention of sending journalists to jail and that the Bench only wanted them to know their limitations, the Lakshman rekha. For many journalists, however, the limitations being envisaged by the court constitute serious restraints on their professional freedom, which, they say, is their strength and the essence of their past achievements. Take away this strength and we are in for a listless media, without any expose of wrongdoing whatsoever, these journalists say.

Surprisingly, Indira Jaising supported televising legal proceedings or evolving a system of preparing transcripts. Rather than the guidelines, it is perhaps these aspects that ought to have engaged the attention of the court.

Nariman told the Bench: We can't build a wall around ourselves. Pull up the reporter for misrepresentation on a case by case basis, but [do] not frame general guidelines which may curb the freedom of the press.

Soli Sorabjee, the eminent jurist who was a former Attorney General, told the Bench that mere embarrassment to counsel or a judge was not a good enough reason to stop the media from reporting a case.

Reporting a sub judice case does not in any manner violate the fundamental right of the accused to a free and fair trial under Article 21, as the Constitution Bench seems to have assumed. In 2002, the media, both electronic and print, covered the case against the Chairman of the Punjab Public Service Commission, Ravinderpal Singh Sidhu, alleging that he had amassed wealth running into crores of rupees by corrupt means. This invited allegations that the media, by reporting the details of the case being heard in court, violated the right to dignity of the accused. The Punjab and Haryana High Court, however, defended the right of the media to cover the sub judice case.

Postponing the reporting of sub judice cases was a suggestion that came up repeatedly during the hearing. But there was no clarity on how long a story could be postponed, and with what effect.

Indeed, senior counsel who argued in favour of guidelines themselves commended the media's role in exposing corruption in high places. The exposure of scams in defence procurement and the cash-for-questions (in Parliament) scam, and the correction of mistrials in the Ruchika Girhotra molestation case, the BMW hit-and-run case and the Priyadarshini Mattoo murder case, among others, would not have been possible had there been coercive guidelines for covering court proceedings.

The court initially appeared to narrow down the issue to the framing of guidelines for reporting criminal trials to guard against the violation of Article 21 and ensure that trials did not get prejudiced and the witness protection mechanism was not impacted.

Old petitions included

However, on April 4, the court ordered the inclusion of four more media guideline-related petitions, two of which were pending since 1999 and 2000. The issues raised in these four petitions include norms for news coverage in the electronic media, and norms and guidelines to minimise presentation of sexual abuse and violence on TV channels, to initiate contempt proceedings against journalists for publishing confessional statements of accused before the police, and to make the police liable for damages for tarnishing the reputation of an accused by releasing details of the investigation into a case.

There is no doubt that the petitioners had raised certain valid issues in these cases, but the court's eagerness to bring all related issues within the proposed guidelines made the media insecure, as they were ill-prepared to face legal challenges to their professional conduct simultaneously from many sections of civil society.

Indira Jaising represents the government in the SIRECL-SEBI dispute. One of the guidelines she has suggested is that the media should be barred from reporting material that has been filed with the court's registry but has not come before the court.-R.V. MOORTHY

Rajeev Dhavan, counsel for the Foundation for Media Professionals, and the Editors' Guild of India, rightly told the Bench: There can be no sensational judicial answer to sensational media reports. The judicial answer could only be a sober one. Why can't the court talk to the editors and tell them that it was time to devise some practical guidelines? Indeed, Dhavan cited the example of the United Kingdom, where members of the judiciary and the media jointly evolved a set of guidelines, called Reporting Restrictions in the Criminal Courts. Prashant Bhushan urged the Bench to first prepare draft guidelines and hold a separate hearing to clear each and every guideline, rather than impose guidelines that may be unacceptable to the media.

Senior Advocate K.K. Venugopal, who was requested by the CJI to assist the court in this case, told the Bench: A direction to postpone reporting of trial proceedings would not be in public interest as people would like to know what happened in the trial. Instead of general reporting guidelines, a case to case approach is preferable. If an accused moved a High Court complaining about breach of his right to reputation guaranteed under Article 21 by media reports, then the court would examine the report against the allegation. If it comes to a conclusion that the report indeed breached the right of the accused or was contemptuous in character, then it would issue a general warning to media not to repeat the mistake. Only when media ignored the general warning it would be made to face the consequences.

What is obstruction?

Venugopal, however, added that there was little jurisprudence available on what constituted obstruction or interference in the administration of justice. Therefore, he suggested laying down the parameters in the form of guidelines as to when publications would interfere' or obstruct' the course of justice. According to him, laying down such guidelines would, by itself, not result in penal consequences. On the other hand, it would be an exercise in the interests of the press and the electronic media themselves and would render the media less vulnerable than they were in a situation in which the media interpreted these phrases themselves, he said in his written submission.

But others are not as convinced as Venugopal is. Prashant Bhushan submitted before the Bench that after Parliament amended the Contempt of Court Act in 2006 to provide for truth as a defence to the charge of contempt, true and accurate reporting would not amount to contempt or interference in the administration of justice. That is, a journalist will be well within her right to contest an allegation that her reporting of the court proceedings was untrue and inaccurate. Therefore, it is not clear what purpose the proposed guidelines will serve.

Goolam E. Vahanvati, Attorney General, who represents SEBI in the case. He said the freedom of the media had to be balanced with the effect of improper reporting on the administration of justice.-V. SUDERSHAN

The Supreme Court Bar Association (SCBA) told the Bench that the publication of the statements of witnesses recorded by probe agencies under Section 161 of the Code of Criminal Procedure during the investigation of a case was not an offence punishable under the statute. He said the monitoring of the investigation of a case by courts came to an end at a particular stage, but there was no restriction on the media monitoring the development of a particular incident and its publication. The SCBA saw the proposed guidelines as restrictions on the freedom of the press.

The 17-day hearing witnessed weighty arguments both in favour of and against the proposed guidelines. Rajeev Dhavan and Prashant Bhushan described the proceedings before the Bench as suo motu and questioned the Bench's competence to lay down far-reaching guidelines in the absence of a dispute or parties before it. The Bench disagreed vehemently that it was a suo motu proceeding, pointing to the applications received from both Sahara and SEBI.

The CJI further revealed that he had received hundreds of complaints about misrepresentation of court proceedings by the media. To this Prashant Bhushan wondered why none of these complaints was in the public domain so that their veracity could be ascertained by the general public. Rather than evolve common guidelines that may not address all such complaints, it was necessary to take individual complaints and hear the parties opposing them, to achieve their logical resolution, he suggested.

An unusual case

In a sense, the 2012 legal guidelines case is the most unusual one in the Supreme Court's history. Counsel defending the proposed guidelines reminded the Bench that the court had issued similar guidelines in the past in a number of cases. The one prominent precedent, cited by many counsel, was the Vishaka case, in which the Bench led by Chief Justice J.S. Verma laid down detailed guidelines to protect the rights of working women against sexual exploitation at the workplace. However, as Verma's interview to Frontline reveals, the analogy was inapt. In almost all precedents when the court had laid down guidelines, they were meant to enforce rights. However, in the present case, the court envisaged guidelines in order to restrict the rights of the media.

It is true that the court is likely to claim that guidelines are necessary to enforce the rights of the accused under Article 21. This argument assumes that there is a legislative vacuum, which the guidelines aim to fill. All court-inspired guidelines in the past filled some legislative vacuum. But, as many counsel pointed out to the Bench, the assumption of a legislative vacuum in order to protect the rights of the accused under Article 21 was not valid.

Rajeev Dhavan told the Bench that just because some statutes required interpretation it did not mean that a vacuum existed. He reminded the Bench about the court's own pronouncements earlier in related cases. In R.K. Anand vs the Registrar, Delhi High Court, the Supreme Court had said:

It is not our intent here to lay down any reformist agenda for the media. Any attempt to control and regulate the media from outside is likely to cause more harm than good. The norms to regulate the media and to raise its professional standards must come from inside.

Rajeev Dhavan, counsel for the Foundation for Media Professionals and the Editors' Guild of India. He told the Bench: "There can be no sensational judicial answer to sensational media reports. The judicial answer could only be a sober one."-SHIV KUMAR PUSHPAKAR

Senior Advocate Shanti Bhushan was even more categorical. He told the Bench that every important issue needed to be vigorously debated by the people and the press, even if the issue was sub judice in a case. He said in his written submission: It is well known that in many cases, which were sub judice, gross injustice has been avoided only on account of a vigorous debate among the people and the media, and there is no known case in which on account of an open public debate the court has decided wrongly and injustice' was the result. It is for this reason that it has been recognised that even while vigorously criticising an action of a public authority, if some incorrect statements have been made, even that would not justify placing restrictions on the people and the media exercising their right of free speech.

In Mirajkar's case (1966 3 SCR 744), a nine-judge Bench of the Supreme Court held that it was through publicity that citizens were convinced that the court rendered even-handed justice, and it was, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the court proceedings; the publicity generated public confidence in the administration of justice.

The Mirajkar Bench also held that only in rare and exceptional cases the court may hold the trial behind closed doors or may forbid the publication of the report of its proceedings during the pendency of the litigation. Laying down general guidelines for reporting court proceedings would be a reversal of this rare and exceptional cases doctrine evolved by the court. Rightly, some counsel asked whether this five-judge Bench could reverse the principle laid down by a nine-judge Bench.

Under the Constitution, the media have the same rights as an ordinary citizen, nothing more, nothing less. Just as ordinary citizens cannot be prohibited from discussing, blogging about and sharing opinion on court proceedings, the media cannot be prohibited from reporting court proceedings. On the last day of the hearing, Nariman sought to drive home this point by referring to the spread of blogging and twitter. But the CJI dismissed social media as merely indulging in gossip and said that the court was concerned with the mainstream media alone. This admission that social media enjoyed much better rights than the mainstream media may be reflecting the reality, but a deeply worrying one in the present context.

The judiciary and the media have been natural allies in the defence of fundamental rights and freedom of the press. The legal reporting guidelines case, however, has led to troubling questions about the future of this alliance.

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