‘Laying down norms for reporting court proceedings will imperil free speech'

The Editors' Guild of India on Tuesday urged the Supreme Court to refrain from laying down any guideline for reporting court proceedings and suggested that it instead call editors for discussing the issue.

Appearing for the Guild, senior counsel Rajeev Dhavan told a five-judge Constitution Bench, headed by Chief Justice of India S.H. Kapadia, that laying down guidelines would imperil free speech, and the court had no power or jurisdiction to do so either.

“If a statute is brought, free speech and administration of justice will be at peril. We have not developed sufficiently rich jurisprudence on the question of balancing the media rights against other rights. The shadow of contempt law hangs over our jurisprudence,” he said told the Bench, which included Justices D.K. Jain, S. S. Nijjar, Ranjana Desai and J. S. Khehar.

Mr. Dhavan said the court had no power to lay down guidelines even under Article 142 (to do substantial justice), and there was no specific case before the court. “Ordinarily the court will not transgress,” and such an authority could be given only under law.

When counsel said open justice would help in better administration of justice, the Chief Justice wanted to know whether the media could analyse the evidence/material even before the court concerned had a look at it.

Expressing concern at the attack on judges and senior lawyers, the Chief Justice said: “There are 13 petitions, in which judges and lawyers are attacked. The public interest litigation (PIL) petitions even ask judges not to hear cases and senior lawyers not to appear in certain cases. We want to know at what stage PIL petitions levelling all sorts of allegations can be published. If you want, we can list the 13 petitions. How do we meet these situations? We want to balance the rights.”

Mr. Dhavan said: “Prima facie, there will be sensationalism in the press and you [the court] can't stop it.”

He said: “All fundamental rights in Article 19, including Article 19(1)(a), can be limited only by reasonable restrictions in accordance with law. The Article 19 code cannot simply be overridden by invoking Article 21. However, the expanded Article 21 can be factored in as a part of reasonableness on the basis of law. What we need is an approach giving the press latitude, but setting out broad limits. In effect, what we need are not guidelines but a clearer and more emphatic jurisprudence evolved on a case-by-case basis.”

The media must be warned that their reporting must not be mala fide (for example, paid news); it must stay within the sub-judice time frame; it must be fair and accurate; and it must not pre-judge a case to the point of vitiating a fair trial. “The pre-judgment test is a guide, but is not intended to be used to stifle the press,” he said.

Senior advocate K. K. Venugopal noted that the Supreme Court had inherent powers to lay down guidelines for reporting matters sub judice. “Rather then impeding free speech, it [the guidelines] would assist the media itself as well as all other courts, both civil and criminal, in upholding life and personal liberty under Article 21…”

Mr. Venugopal said: “Laying down such guidelines by itself would 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 mitigate or render the media less vulnerable to a situation in which the media are required to interpret these phrases for themselves.” He said “postponement” of or temporary restraint on publication was not the best remedy. “Injunction against publication of a particular event is a better option than postponement.”

“The court can certainly exercise jurisdiction, where the law permits, of holding its proceedings in camera, but postponing publication to the end of the trial would render sterile the publication as the past would no more be news,” he said. On the other hand, this would defeat the rights of the media.

Arguments will continue on April 10.

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