Enforcing these guidelines will lead to “infringement” of right to free speech, says Guild

The Editors Guild of India on Thursday opposed in the Supreme Court the idea of temporary restraint on reporting of court proceedings saying enforcing these guidelines would lead to “infringement” of the right to free speech.

Senior counsel Rajeev Dhavan told a five-judge Constitution Bench headed by Chief Justice S.H. Kapadia that any move to empower courts even to temporarily clamp down on reporting to protect the interests of the parties in any ongoing case would amount to “pre-censorship” of news.

“Pre-censorship”

Mr. Dhavan opposed suggestions for some sort of temporary gag on reporting of court cases, especially criminal cases and high-stake corporate matters, if the courts felt that the reporting would adversely affect the rights to dignity and fair trial of parties and thereby interfere with the administration of justice. “Any postponement of reporting of news amounts to pre-censorship.” Mr. Dhavan also opposed any law or guideline to deal with reporting of cases sub judice.

Counsel agreed with the view that the media was putting a lot of pressure on the judicial system, but he asked: “Can it be completely shut out?” He cited excerpts from a case involving Mahatma Gandhi to drive home the point that the right of the public to comment was supreme. The media “can comment, talk and even take a view. They cannot pre-judge a case. But the court can only deal with it in a specific case by using its contempt powers. Any other preventive measure would imply legislation of sorts by the court, adding to the Contempt of Courts Act. The disadvantages of any pre-emptive action would far outweigh the advantages.”

For the court to do that, “there must be a law to curtail Article 19(1) (a) [the right to freedom of speech and expression]. The court cannot lay down guidelines which are not enforceable in the absence of such a law.”

When the CJI wanted to know whether the court could frame guidelines as suggested by the News Broadcasters Association (NBA) by way of self-regulation, Mr. Dhavan maintained that it could not do so in the absence of a law. Even if the court did frame guidelines, “who would monitor it?”

In-camera hearings

When the CJI wanted to know whether an accused could move either the High Court or the Supreme Court alleging infringement of his rights to a free and fair trial, Mr. Dhavan said: “The only way it could be done was under a law. In the absence of a law, the court cannot do it.”

He cited Cr.PC provisions which provided for in-camera hearings that could deal with the problem of unfair reporting. Any curb beyond a right to apology and a right to reply in the erring newspaper or TV would amount to infringing press freedom, he said.

On Wednesday, the NBA urged the Supreme Court to frame guidelines for regulation of television channels stating self-regulation did not have the desired effect.

“No legal sanction”

NBA counsel Anoop Bhambani said though the association had brought in self-regulation it had no legal sanction and every channel was not covered. Of the 46 news channels, only 21 were NBA members and self-regulation would not bind the others.

“Once the guidelines were put in place, self-regulation would become easier and we want the court's blessings,” he told the Bench, which included Justices D.K. Jain, S.S. Nijjar, Ranjana Desai and J.S. Khehar. Senior counsel Soli Sorabjee said it was for the court to strike a balance between Articles 21 (Right to Life and Liberty) and 19 (1) (a) (Freedom of Speech and Expression) as the “reputation” of a person comes into question. There could be temporary postponement of publication of petitions, documents and annexures in public interest litigation petitions until court took cognisance of the matter.

However, Mr. Bhambani said: “Postponement of reporting news would amount to a ban for certain period of time and the delay in publication due to the postponement would be like a ban on publication.” As in the ‘Visaka case' in which the Supreme Court had framed guidelines, it could evolve guidelines and once they were put in place it would become mandatory for the television channels to adopt them.

When the CJI wanted to know who could enforce the guidelines, counsel said: “the enforcement could be given to a peer jury. Once it is given to such a body it becomes enforceable.”

Senior counsel Siddarth Luthra gave instances of publications in the media which affected the rights of the accused, victims and witnesses under Article 21. Arguments will continue on April 3.

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