The marathon hearing on the issue of framing guidelines for media reporting of court proceedings concluded in the Supreme Court on Thursday, with some noted jurists terming the endeavour “judicial overreach” which will open the “floodgates” with a whole range of “complications.”
A five-judge Constitution Bench reserved verdict, after 17 days of hearing, which started on March 27.
The Bench was told that the apex court did not have inherent powers to lay down guidelines on the issue which falls in the domain of legislature. At best, the judiciary could come out with “normative” guidelines, and not “mandatory” or “exhaustive” norms which would “clash” with the fundamental rights of scribes.
However, the Bench headed by Chief Justice of India S.H. Kapadia, which was facing opposition from jurists Fali Nariman and Soli Sorabjee, wanted to know: “Can't we come out with some principles (on regulating the media)?”
“If we come to a conclusion that there are principles settled by earlier judgments, we can enumerate them in our judgment. You can call them either guidelines, regulations or principles.
“If we don't do that, who or which institution will do?” asked the Bench, which included Justices D. K. Jain, S. S. Nijjar, Ranjana Prakash Desai and J. S. Khehar.
The Bench got a negative reply from Mr. Nariman, who said, “No, you can't do.” He said when he filed an application on the issue he was under the impression that the matter was limited to a dispute between the Sahara Group and the Securities and Exchange Board of India (SEBI).
When the ambit of the matter expanded he thought of withdrawing the application which he filed after a privileged note sent by him to the SEBI was leaked to a TV channel, the jurist said.
Mr. Nariman said he and Attorney-General G.E. Vahanvati, who were appearing for two different sides, had discussed that “there is scope for remedial measures.”
“We want normative guidelines. The Attorney-General also said he is for normative guidelines,” Mr. Nariman said adding, “The moment you say this is a law then a whole range of complications will arise.”
Later, the Bench got support from senior advocate K.K. Venugopal, who endorsed its view that “guidelines have to be framed to make them [journalists] know where they stand.”
“Court has the power to control reporting of its own proceedings,” he said.
However, Mr. Nariman, who was against any restriction on the media, said persuasion and discussion (with editors) were a better option. “You are opening the floodgates. This is my apprehension on the guidelines,” he said cautioning the Bench that there would be a large number of pleas in the courts for securing injunction.
He was referring to the expanding media and impact of fast moving technology where information was being disseminated through twitter and other social networking sites.
However, the Bench said it was concerned with the “mainstream media and not with others like blogs, etc.”
Earlier, Mr. Sorabjee replied in the affirmative when the Bench wanted to know from him “if by laying down guidelines we are violating Article 19 (2).”
“Yes, don't take upon yourself to lay guidelines. Essentially it is a legislative activity,” the former Attorney-General said.
“We can enumerate principles on the basis of an analysis of case laws and also with regard to relevant jurisprudence of other countries. Restriction can be imposed on the basis of principles,” he said.
The Bench also discussed with him the concept of ban on prior publication.
He said: “Under Article 142, the court cannot exercise its inherent powers to lay guidelines as it would amount to judicial overreach.”
Mr. Nariman opposed the idea of temporary ban on the publication of court proceedings saying, “people want hot news like hot cake.”