“We are interested in prevention rather than initiating contempt proceedings”

The Supreme Court on Tuesday indicated that it would lay down guidelines for the media on court reporting with a view to striking a balance between protecting press freedom and protecting the right to life.

A five-judge Constitution Bench of Chief Justice S.H. Kapadia and Justices D.K. Jain, S.S. Nijjar, Ranjana Desai and J.S. Khehar said: “We have to balance Article 21(right to life and liberty) with Article 19 (1) (a) (the right to freedom of speech and expression, including the freedom of the press).”

Senior counsel Fali Nariman, appearing for Sahara India, which had filed an application, said the court could issue orders in specific cases restraining the press from publishing any report prejudicial to business sentiment or interfering with the administration of justice but it could not lay down any general guidelines. For, the court had no such power.

“Even if the court does, how is the court going to enforce it in the absence of a law backing it? The question is whether a guideline is enforceable? Enforceability is an element of law,” counsel said.

The CJI made it clear, “We are not interested in controlling media content.” Eleven complaints of misreporting proceedings had been pending with the court. “We are interested in prevention rather than initiating contempt of court proceedings against the erring media. How to prevent before the damage is done.”

Mr. Nariman said the court laying down guidelines would result in punitive action against erring reporters, in the absence of a law. “Judges and lawyers say all sorts of things in court. We can't build a wall around us. This is not a club. But it can't be a judge's whims. Let us not go down that slippery path.” The court could draw the attention of the editor or the Press Council of India to any misconduct by a journalist, he said.

Mr. Nariman suggested self-restraint by lawyers and judges. “We can't build a cocoon around ourselves in the information age.”

He urged the court to issue, instead, injunctions in specific cases to the media not to report proceedings in the public interest. He suggested self-regulation and wanted every newspaper to have an ombudsman to deal with complaints against it.

Attorney-General G.E. Vahanvati said any guideline could only be normative and not coercive. “The media is the public surrogate,” he said, quoting Bentham who said that there was no justice where there was no publicity. “Publicity is the very soul of justice.” An affected individual could always seek damages or press defamation charges, he said. He suggested that the media regulate itself and refrain from embellishing or commenting while reporting on court pleadings. “While it is undoubtedly true that the right of freedom of speech and expression of the press is sacrosanct, it is also equally true that improper reporting of court proceedings can, at times, severely affect and impede the process of administration of justice. An attempt at laying down guidelines for reporting has to take into account and balance two competing principles, the right of free expression and ensuring that judicial proceedings are not prejudiced by improper reporting. The process of framing of guidelines has to strike a delicate balance between the aforesaid competing principles,” Mr. Vahanvati said.

Trial by media

During the course of hearing, the Bench expressed concern over trial by media in several pending criminal cases. “The media reports sub judice cases in a manner which makes the accused seem guilty even before the court has convicted him and the media attempts to drum up support for the sentence he should eventually be handed out.”

Justice Khehar said: “The media creates a mindset about what is right or wrong. When the judgment is not on those lines, the judge's image is tarnished and all sorts of motives are attributed to him and his judgment becomes suspect.” The court was specifically concerned about cases in which an accused was arrested and “the media goes to town projecting him as guilty.”

At the close of arguments, Justice Kapadia, pointed out that the “the press issues denials or a clarification after the damage has already been done.” He sought to know from senior lawyers whether preventive action could be taken; whether the court could ask Parliament to make a law to deal with this issue or pass judicial orders as it had been doing in the cases before the Forest Bench or in any other area to fill up the absence of a law such as the Vishaka guidelines it had framed to deal with sexual harassment cases.

Arguments will continue on Wednesday.

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