I am against any restriction'

Interview with Justice J.S. Verma, former Chief Justice of India.

Justice J.S. Verma, former Chief Justice of India and former Chairperson of the National Human Rights Commission (NHRC), is a highly respected jurist. Despite his reluctance, he acceded to the overwhelming request of the electronic media to head the News Broadcasting Standards Authority (NBSA), the self-regulatory body set up by television channels. In this interview to Frontline, he explains the tensions inherent in regulating the media by an outside agency and the problems that may arise if the Supreme Court lays down guidelines to regulate reporting of court proceedings. Excerpts:

There seems to be an inconsistency between freedom of speech and expression and the necessity to protect the rights of the accused before a court. How does one balance the two rights?

I would put it this way. There is no inconsistency. The [Indian] Constitution has made it very clear. Freedom of speech and expression is actually Voltaire's prescription. You are free to talk anything unless it is prohibited or restricted. Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression, from which is derived the freedom of the press or the media, because there is no separate mention of media in the Constitution. It is the individual's right to freedom of speech and expression in which it is implicit. But it is subjected to reasonable restrictions under specified heads which are mentioned in Article 19(2): public order, contempt of court, etc. Now, this is the wide expanse of the right to freedom of speech and expression. When you talk of freedom of the press to report proceedings, there are two things. One is stopping at the threshold. There are enough laws to punish any transgression. It is not that a person can erode privacy, which is restricted, and get away with it. The danger is that if you at the threshold stop this freedom, well, that is not democratic. That was my view when I was a judge, and it continues to be so. I think it is always safer to let people exercise their right. Under the existing laws, if anyone transgresses the limits he can be punished rather than restricting speech itself.

Are you suggesting that there is no need to restrict the freedom of expression at the threshold stage itself?

It is like this. Until the person speaks, you don't know what he is going to say. The law says you can't be offensive. You don't have to say this time and again to everyone. But if someone says that, then just because you apprehend that person is going to say, you can't stop him from speaking.

Do you think there is a vacuum in the Constitution and the laws to prevent someone from being offensive while exercising the freedom of expression?

I don't think so. I am against any restriction. I say it also for this reason. I am one of those who remember and had the experience of having been in the system as a judge before the Emergency was imposed. I became a judge 40 years ago in the High Court in 1972. Restricting the freedom of speech and expression at that time and controlling the media, everyone knows, was disastrous. It also promotes rumour-mongering and therefore very often people get the wrong impression.

What about the rights of the accused under Article 21?

That is something [that has to be decided] on a case-to-case basis. When I was in the court, I found a case being discussed in some important matter [by the lawyers arguing before me on a television channel] while the hearing was on. Well, I pulled up the lawyers and it stopped. It is something you have to tell them. If the print media print observations as concluded opinions, you tell them. That is why you have accredited correspondents in the Supreme Court.

Do you think that the grounds for accreditation must be further liberalised?

The general rule is, have responsible people. The media must realise that when they are reporting they are informing. What they are informing are true facts, not coloured with opinion. Very often, we judges during hearing ask questions to elicit opinion, to clear our doubts, or to be clear about the stand of the arguing lawyers. Now, every question that we put for the purpose of eliciting answers is not our concluded opinion. So, the media must ensure that they don't put it that way. And it is not necessary to report everything that transpired. So, there should be mature people, and that should be done more by self-regulation. The idea of accreditation is only this.

Does the reporting of sub judice matters affect business interests?

In respect of the electronic media, we have actually drawn the guidelines with respect to sub judice matters. With respect to business interests, we have said that they must have only experts in the field who must disclose if there is any conflict of interest, the channels must not invite anyone who is likely to have any interest, and they must not say anything unless it is verified and due diligence has been there. Even a half-an-hour difference between saying something and correcting it can make a lot of difference in the market. Similarly, when you talk of sub judice matters, it should not be trial by the media. You report what is transpiring in the court. But you don't pronounce someone guilty or innocent.

Basically, you are saying that there is absolutely no need to prevent an offensive speech and that there is a remedy available.

Yes, there is a remedy and that should be utilised.

The other view is that even if the remedy is available the damage would have been done, and that is why the guidelines can help prevent it.

You can prevent it only by stating certain principles. Those principles are well known. Anyone who transgresses them can be punished. How would you know that someone is going to transgress them? The Indian Penal Code mentions all the offences, including murder.

If people commit murder even then, what do you do? You try them and punish them. Can you know beforehand that this or that person is going to commit a murder? It is necessary to make people aware. It will be counterproductive. Let the people to whom it is addressed condemn it.

Supposing there is a newspaper that indulges in yellow journalism, the remedy is to see that its circulation is controlled.

Is the American doctrine of clear and present danger relevant to India?

Of course, it is. That is what we have adopted. It was laid down in the Sullivan case [ New York Times Co vs. Sullivan (1964)]. Just because something is likely to cause a law and order problem does not mean that you stop a person from speaking. How will you know what the person is going to talk, before he talks? You can prevent by educating people.

Telling the lawyers [not to speak to the media about a pending case] is a more effective preventive action. If someone even then doesn't behave, there is the power under the Contempt of Courts Act, because that is interfering with the courts of justice.

You must do course correction. And once you punish a few people who transgress, everything will be all right. The whole thing is ultimately who is going to implement that [guidelines]? We have the experience of the Emergency. Ultimately, all of you know very well what happened.

Do you think judges who are supposed to have a judicial mind will allow themselves to be influenced by trial by the media?

Well, I never was, and I don't think any judge would be. But that does not mean that the media should continue to misbehave in that sense. That is why I said reporting should be objective it should be of actual facts, no sensationalism, no opinion mixed with facts so that you inform people. Anyone who is present in the court knows what has happened.

The media, when they report, tell the people who were not present in the court what happened. And what happens in the court? The media do not participate in it. It is the people in the court the lawyers, the judges and the witnesses in a trial. The media are not a participant in the trial and therefore should not become a participant outside.

There is also the concern over confessions of the accused getting leaked to the media, and the damage their publication causes to the image of the accused, as they are innocent until proven guilty. Should not the court try to prevent it in the form of guidelines?

There should be concern about everything which is likely to affect the interests of either side. But how do you prevent it? You can prevent the leakage if it is from your source. The media should be responsible even if they come to know something. As a responsible citizen, what you should do is not to air it or publish it.

If the police decide to share the details of a confession, should the journalist still decline to publish it? How do we prevent the police from leaking information?

Two wrongs don't make one right. You can't prevent the police from leaking because it is often not known who has done it, although the authorities concerned, the superiors, should be able to identify. If the information is confidential, then it [leaking it] is dereliction of duty.

Some people say there is a vacuum in this area. There is no law which says the police should not leak information about the status of investigation, and none at all to prevent a journalist from publishing it; hence the need for the guidelines.

Well, it is narrow thinking. Look at it the other way. You frame a guideline that they cannot leak. First of all, law can be made only under Article 19(2). For every dignified person, self-respect is more important and, therefore, self-regulation should be the answer and those who transgress the limits should be punished. Just to give an example, when 26/11 happened, as the chairperson of the News Broadcasting Standards Authority, the next morning I issued two advisories saying that they should not air anything that is likely to help the culprits. It had its effect. But some government officers, senior ones, wanted to be seen on television. Why wouldn't the government identify them and punish them?

As the chairman of the NBSA, are you satisfied with self-regulation of the electronic media?

You can't change anything overnight. There is a lot more improvement needed. I keep on pulling them up. They listen today because they know that I am not here for any personal gain. The post is an honorary one. They know that if I walk out, they will be in more trouble.

Do you think a similar pattern could be adopted for the print medium also?

It is not that I forced on them this body. They decided to self-regulate. I took six months to agree [to head the NBSA]. Then they said you tried to self-regulate the judiciary; so why not help us to self-regulate. So, I insisted on certain conditions. First, we will try to improve the standards by prescribing guidelines and issuing advisories which you have to obey, and in case of violation, we will take action. And I said we will also retain the authority in an extreme case of someone who doesn't behave, in spite of being told repeatedly, to recommend to the government to cancel or suspend the licence. And recently, with respect to two channels, we have already recommended.

The government has framed rules that in case of five violations, it might cancel the licence or not renew it and that whatever violations, it will decide in consultation with the NBSA. Both the channels were guilty of telecasting [in violation of the norms]; one was more guilty than the other. We have recommended that this should be taken as one of the violations. By and large, improvement is there.

You have censured Times Now for telecasting a programme on the likelihood of Kanimozhi turning an approver in the 2G scam. Don't you think censure is a mild form of punishment?

We have also fined the channels [in other cases]. For them, a lakh or two lakhs as fine doesn't matter. But the question is they have been found guilty [of transgressing the norms]. What hurts is not the amount of fine, but the fact that you have been tried. It will take time.

Nobody can deny the fact that so many of these scams would never have come to light but for the media. The roles of the media and the judiciary are complementary in improving the quality of governance. The media highlight them for the judiciary to take cognisance, and therefore the media are a very potent force. The media should be corrected by the judiciary on a case-by-case basis.

If you make any other provision, who is going to control those whose misdemeanour, malfeasance and misdeeds the media are reporting and the judiciary is trying to control? It is an indirect way of perpetuating the wrongs.

The News Broadcasters Association (NBA) has represented to the Supreme Court that the court can adopt its guidelines.

In case they insist on them. That means only this, that the Supreme Court can only say that these are good guidelines and we expect the media to follow them. What more can the Supreme Court do?

There is a difference between the Vishaka judgment [delivered by Justice Verma as a Supreme Court judge] and this [the proposed guidelines for legal reporting to be laid down by the Supreme Court]. The Vishaka guidelines were framed to fill a vacuum for the purpose of enforcing the fundamental rights. Now, here, it [the proposed guidelines for legal reporting] is intended to curb the fundamental rights. It is exactly the opposite. To operationalise the fundamental rights of working women, the court issued those guidelines because working women were sexually harassed. The court clearly said these guidelines would operate only until such time that a law was enacted by Parliament. It is 15 years now. They are implementing them. There is a difference between doing something to enforce the rights and doing something to curtail a right.

Here also, the court says it is going to enforce Article 21, that is, the rights of the accused, through the proposed guidelines.

Enforce how? The Vishaka guidelines had the effect of the authorities concerned making the rules and setting up committees. The Supreme Court itself did not enforce them. The Central and State governments amended their rules to follow the Vishaka guidelines.

In the legal reporting guidelines case, do you think there can be an authority to ensure that the guidelines are complied with?

Well, after the experience of the Emergency and the tendency of people in power to hide under the Right to Information Act, who is willingly giving information? Even the judiciary is not giving. That is the normal tendency.