A five-judge, constitutional Bench of the Supreme Court (SC) is presently seized of an important issue –how to tame media representatives covering their turf.
Taking cognizance of a complaint filed by senior advocate Fali S Nariman, in which sensitive information dealing with valuation of Sahara House assets got selectively “leaked” to a news channel, the Chief Justice of India (CJI) S H Kapadia clubbed the issue with “11 other complaints filed by senior advocates,” and constituted a Bench that comprises besides himself of D.K. Jain, S.S. Nijjar, Ranjana Prakash Desai and J.S. Khehar.
When called to assist the court in this matter, a few senior advocates, namely Soli Sorabjee, GE Vahanvati and also Fali S Nariman (who represents Sahara House) told the Bench that “mere embarrassment to the counsel or judge” is not good enough a reason to stop the media from reporting a case and that lawyers “cannot build walls around them,” - the Bench has still taken upon itself the onerous task of framing guidelines for media reporting on legal issues.
Two media outfits – the Editors Guild of India and the Foundation for Media Professionals have filed intervention applications through senior counsel Rajeev Dhawan to oppose the judiciary’s move, while a non-government organization by the name of Youth for Equality (YFE) has also filed an intervention complaint seeking such guidelines, thus finding itself in the midst of the crossfire between the third and the fourth estate.
The counsel for the media outfits declined to comment on the SC hearing on the ground that the matter is “sub-judice,” but GOPAL SANKARANARAYANAN, the Supreme Court advocate, who is representing Youth For Equality (YFE) explained his client’s stand to RADHIKA SACHDEV
Q. From an anti-reservation stance, to anti-corruption to media guidelines, how did Youth for Equality (YFE) get embroiled in this issue?
Youth for Equality has always had as its plank the Constitution of India, and its various endeavours are pursuant to keeping the ideals of the Constitution alive. It’s a misconception that on this issue, the Supreme Court is dealing with the powers of the media at large. On the contrary, it’s only dealing with the powers of the courts to have the reporting of their own proceedings regulated (by the press, the social media or by any other channel) -- IF and WHEN such reporting may be harmful to an accused or a witness or a victim. YFE believes that due process of law and protection of the fair trial system is important to the nation, and that is precisely what we have said in our intervention application to the Bench.
Q. In your application, do you want the SC guidelines to cover only legal reporting, or other forms of press coverage as well, say political reporting, medical reporting, crime reporting etc?
This is the misconception I was referring to. The entire proceedings are only dealing with court reporting. YFE may have a different view if it were dealing with reporting at large.
Q. Nonetheless, what’s the YFE take on this issue? Should there be separate guidelines for each of these areas, as there could be sensitive issues that journalists have to deal with in covering each of these beats? (E.g., there is the need for taking 'informed consent' from patients in medico-legal cases, and there is the issue of using children in talent shows on TV). Must there be a separate set of guidelines for each of these beat areas?
We think that wherever there might be a violation of the fundamental rights of citizens, and no laws have been made in this regard, there is a need to have guidelines. It would of course, be best in each of these areas that do not concern the courts, to have guidelines framed by the media bodies themselves, but that has not happened yet.
Q. Why do you want these guidelines? Whose interests are you trying to protect through these measures?
The common man’s interests. The man on the street, who cannot always have recourse to the press and the courts to protect their interests when an arrest is made or a case is being tried. We believe that our courts must try cases fairly, without in any way being influenced by the discussion or debate carried out on various media forums regarding the possible wrongdoing or innocence of people.
Q. There is already a Press Council to regulate such breaches. There is also the civil court route open to to the aggrieved party to file complaints against 'irresponsible" journalists. Have these two institutes failed in their attempts that you now see the need for another redressal mechanism?
The Press Council does not have the powers to enforce any of its directives against members of the fourth estate despite the recommendations of the Second Press Commission. With civil courts taking 10-20 years with each case, they too do not appear as viable alternatives. In addition, when Article 21 rights are violated, seeking a writ remedy is not an option; it’s an entitlement.
Q. What's your take on self-monitoring? Does it not work? After Mumbai blasts, the News Broadcasters' Association (NBA) had come out with a voluntary code on 'crisis reporting' that apparently worked. Can the media establishment not be trusted to issue something similar on legal reporting?
There is no evidence that the NBA code has worked. As recently as last month, in a dispute between two Telugu media channels, the findings of the NBSA have not been implemented by either party, and there is nothing anybody can do about it. I think the media can be trusted to self-monitor as much as doctors, architects, accountants, lawyers or any other professional. And these practitioners have strong regulatory mechanisms laid down by law.
Q. What kind of guidelines do you want in legal reporting? Can you cite a few examples? Are there precedents in other countries?
These have been stated before the court (See inset box). I have not examined other countries, because India and its laws and circumstances are unique.
Q. The CJI has himself observed during the hearing that balanced reporting wherein both sides’ views are carried could be the best possible guard against media distortions. Are there any prohibitive provisions, already existing in the law or with the Press Council of India to prevent one-sided reporting by the media? Also, isn’t the onus on the editor to ensure this kind of balanced reporting? GE Vahanvati also told the Bench that media does have “self-regulation” and that “journalists do not operate in vacuum. They have editors.”
There are provisions providing for in-camera proceedings when the case is a sensitive one - involving children, victims of sexual abuse, security of the state, etc. Some of such provisions that we pointed out to the court are: Order XXXII-A, Rule 2, Civil Procedure Code, 1908; Section 43, Parsi Marriage & Divorce Act, 1936; Section 33, Special Marriage Act, 1954; Section 22, Hindu Marriage Act, 1955; Section 44, Unlawful Activities (Prevention) Act, 1967; Sections 327 and 263-B, Criminal Procedure Code, 1973 and Section 17, Protection of Women from Domestic Violence Act, 2005.
Q. Are there any statistics on the number of in-camera proceedings and contempt proceedings issued against journalists in India, in, say a year? What is the ground to fear, as Rajeev Dhawan as pointed out, that judicial guidelines may lead to a flood of litigation from the trial to the Supreme Court?
There are no statistics publicly available, and I doubt anybody has undertaken such an exercise. It would be very difficult to track all the various courts of the country and collate how many instances of in-camera proceedings have taken place. I believe the numbers are minimal - and in the case of contempt against journalists, maybe a dozen, if at all. The fear in my view is unfounded that this would open up the floodgates. In fact, it would let journalists and the public know where the boundaries are for determining what is sub-judice and what is not.
Q. How do you propose to enforce these guidelines? Senior counsel K.K. Venugopal has already explained that “laying down such guidelines would, not result in penal consequences.” At best, a violation of these guidelines can invoke the same action as in defamation case.
We’ve proposed enforcement by way of writ remedies.
Q. Rajeev Dhawan is worried that these guidelines would curb media freedom. What's your reaction to that?
It will not. Press freedom does not extend to either misreporting or affecting the rights of accused and victims under Article 21 of the constitution.
Q. Experts contend that 'too much regulation' can sometimes be as bad, if not worse, as ‘'too little'. Your comment?
I would agree. However that comment would not apply to the present case.
Q. Last but not the least, does any kind of regulation – self or imposed by the judiciary- work in the Twitter world, where, as Dhawan has rightly pointed “everybody is a journalist”? What can be done to protect an under trial’s rights against the media in such an unregulated world?
It is admittedly difficult to regulate the online world, and the IT Act is still trying to catch up with the developments in technology. However, if specific instances of violations are brought to notice, action may be taken against the user, an intermediary or the service provider, by invoking the criminal or civil jurisdictions of the courts.
Regulating rogue journalists:
A few guidelines proposed to the supreme Court by the Youth for Equality (YFE) vide their intervention application:
||The contents of no petition shall be published until the first proper hearing of the matter by the Court.
||No photographs or videos of the suspects or those arrested in connection with an offence shall be published.
||No publication of interviews with individuals likely to be arrayed as witnesses in connection with a case.
|| In a pending matter, no opinion shall be published as to what the judgment ought to be.
||In pending criminal cases, no evidence touching upon the offence or interviews with the victims, the witnesses or the accused shall be published.
||There shall be no publication of documents which are the privilege of the court and the parties (or may prejudice one of the parties).
||No lawyer shall publish a comment on a case or matter with which he or she is professionally concerned.
||The names of the judges and lawyers who are concerned with a particular case or matter shall not be published.
||No information related to the issues in a pending case shall be published unless it has already been placed before the Court.
||As far as possible, reports concerning the subject matter of cases pending in court shall not be published on the day of, and one day prior to, the date of hearing of the case.