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--------------- Print Magazine --------------
  May 2016
  April 2016


Avoidable Confrontation

Hemant Kumar, Advocate
The Judiciary and the Media are the third and fourth pillars respectively of a Democratic set up. Both are indispensable for the smooth functioning of the system. While the former should duly regard the Freedom and Right of the latter to cover and disseminate news about court proceedings in an open justice system, the latter on its part also ought to show its due diligence and extreme caution while reporting the same so as to preserve the sanctity of the former as well as for ensuring a free and fair trial. Any confrontation between the two over Reportage of news in sub judice matters is indeed unwarranted. On the contrary, they both rather ought to work in tandem respecting each other’s domain and independence.

On March 27, 2012 a Constitution Bench of the Supreme Court took up hearing of a vexed issue viz . whether suitable guidelines need to be framed by the Judiciary for reportage of sub judice matters in the Media so as to balance the Freedom of Press as derived from Article 19 (1) (a) of our Constitution vis-à-vis Right of (an) accused/victim/witness guaranteed under Article 21 to a free and fair trial along with protection of his/her privacy and reputation. The Bench headed by Chief Justice of India, S.H. Kapadia comprised Justices D.K. Jain, S.S. Nijjar, Ranjana P. Desai and J.S. Khehar.

Pertinent to mention that of late the Apex Court has been expressing grave concern over indiscriminate reporting of certain news reports both in print and electronic media relating to ongoing judicial proceedings in respect of certain matters. Many a times what is published or broadcasted by media is attributed to statement(s) made by concerned counsel(s) appearing before the Court but the accuracy of such content is seldom sought to be verified or cross-checked and sometimes the aforesaid assertions are so much distorted or twisted which disseminate an entirely different connotation of the issue.

Universal Law Publishing Co. Pvt. Ltd. joined the debate on evolving guidelines for media in a case pending before the Constitution Bench of Supreme Court of India headed by Hon’ble Chief Justice of India Mr. Justice S.H. Kapadia.

Harvard Educated Supreme Court lawyers Dr. Surat Singh and Dr. Manish Arora represented the Universal Law Publishing Co. before the Supreme Court.
Dr. Surat Singh argued that guidelines for media regarding covering pending cases should be evolved because self regulation by media has not worked out well. He cited example of Arushi murder case where some parts of media have shown an irresponsible invasion of right to privacy and dignity of the people concerned.
Citing American cases, Dr. Singh pointed out that American Supreme Court till recently has allowed widest scope for freedom of speech for expression but now American Supreme Court has allowed restriction on the amount of contribution a person can make in any political elections.

Indian Constitution, as interpreted by Supreme Court, contains the widest possible scope of life, liberty and dignity yet at the same time, it imposes responsibility on all the players in the field. There is a need to have a sense of proportion, so that there is no over correction.

Citing Justice Holmes that life of law is not logic but experience, Dr. Surat Singh advised that life of law is not precedents but a progressive tradition evolved as per the changing needs of our time in the light of overall integrity of our Constitutional system and goals.

In August 2011, Harish Salve, a well-known senior advocate, who was then appearing before the Supreme Court in the infamous Vodafone Tax Dispute Case complained before the CJI that a newspaper had published a news which indeed misquoted him over the arguments he had made before the Court. Although unconditional apology was tendered by the concerned news organization after the Apex Court issued a notice over the same, but the Court did tightened the criteria for accreditation of legal correspondents who cover the Supreme Court proceedings for various media groups.

Unfortunately, we have no system wherein judicial proceedings before a Court of Law are duly video-recorded much less than live coverage of court proceedings as is the practice in certain western countries like the US. If at least there is an official recording of a day's proceeding, it to present a clear and unambiguous picture of what actually transpired in the Court during a particular period and the instances of misreporting ( not biased reporting ) would be wiped out to a large extent.

The idea of setting up the above cited Constitution Bench originated during the hearing of case titled " Sahara India Real Estate Corp Ltd. v. Securities and Exchange Board of India (SEBI)" , when in February an eminent senior counsel Fali S. Nariman appearing for Sahara India complained to the Apex Court Bench regarding telecast of a news on a leading business news channel concerning the above two parties. The channel allegedly aired the contents of a proposal sent by two real estate companies of the Sahara Group through their counsel to SEBI although the same was at a very nascent or preliminary stage. The Court expressed its distress over increase of such unfortunate incidents where sub judice matters are improperly (mis)reported in the media thus affecting both the business sentiments as well as interfering with Administration of Justice.

The Law Commission of India in its 200th report (August 2006) viz. " Trial by Media: Free Speech and Fair Trial Under CrPC, 1973 " elaborately dealt with several aspects of the rights relating to freedom of speech, freedom of the press, and freedom of fair trial. The Commission recommend for enactment of a law to prevent the media from reporting anything prejudicial to the rights of the accused in criminal cases from the time of arrest during investigation and trial.

The Report recommended to empower the High Court to direct a print or an electronic media to postpone publication or telecast pertaining to a criminal case and to restrain the media from resorting to such publication or telecast. Such a practice is prevalent in many countries including the U.K. The report also said that publications with reference to character of the accused, previous convictions, confessions, judging the guilt or innocence of the accused or discrediting witnesses could be a criminal contempt.

The News Broadcasters Association (NBA) which is a private organization representing 22 leading news and current affairs broadcasters in September, 2010 framed Specific Guidelines for reporting court proceedings. It, inter alia , stipulates that a news report in relation to a pending judicial proceeding should be neutral and balanced, giving the version of all the parties to that proceeding. Conjectures and Speculation shall be avoided in such news report and the news channel shall not project or promote stand of any particular contesting party to the dispute. It must be ensured that the news report is an accurate, authentic and correct version of what has actually transpired in the Court.

The news channel shall not telecast a running commentary or continuing debate including oral comments made by Court, Counsel(s), litigants or witnesses during court proceedings which do not form part of the record of pending court proceedings. Further the news channel's /journalist's own opinion over the sub judice matter shall not be aired and nothing else should be done which interferes or tend to interfere, or obstructs or tend to obstruct the course of justice in connection with any pending judicial proceeding along with nothing of the sort which amounts to Contempt of Court.

In case of any deviation, whether intentional or inadvertently, though the NBA has a mechanism for the same but it lacks statutory sanctity. It is true that currently Press Council of India (PCI) has no control over electronic or digital media though of late a high demand is being raised for the same particularly by present PCI Chairman, Justice Markandey Katju. Undoubtedly, in the contemporary times, we do need a integrated National Media Council which has adequate control every aspect of news dissemination whether by press, news broadcasters or news websites.

Noteworthy that the Media has also received a pat from the Higher Judiciary where it has done a yeoman's service in bringing the real truth before the Court by way of sting-operations or investigative journalism and thus facilitating in the conviction of the real culprits. Having said that, as it is wisely said that there is always a room for improvement, hence suitable corrective measures are surely needed in cases where the Media goes berserk either for sensationalism or other reasons. After all, the Role of Media is to "supplement" and not "supplant" an ongoing Trial pending adjudication before an appropriate Court of Justice.

Now, whether any such safeguards are dictated by Judiciary or else are enacted by Parliament as also suggested by certain jurists is a matter of thorough debate and deliberation which hopefully would be sorted out at the earliest. Be that as it may, it would be widely appreciable if a "Mutually Acceptable Censorship" is reached between the Judiciary and the Media on the lines of U.K. rather than unilateral imposition of stringent judicial/legislative diktat by Supreme Court /Parliament under the guise of reporting guidelines or norms.

Justice P.B. Sawant

Justice P.B. Sawant, former Judge, Supreme Court of India, giving his opinion about media coverage of an ongoing court case, made it very clear, " So long you cover the ongoing proceedings of the court as matter of fact position, it will be your fundamental right to report but the moment you give your opinion on the case, you are exceeding the limit and you are interfering the proceedings of the court. We have already laid down the ethical guidelines which are available with the Press Council of India. These guidelines are comprehensive enough unless some novel situation comes-up. "

Prof. (Dr.) S. Sivakumar

Professor (Dr.) S. Sivakumar, Director Incharge of The Indian Law Institute pointed out that there is no harm if the media is reporting the proceedings of the court but in case they incorporate commentary and quote experts, it will not be justified. Court proceedings may not be affected by this but the public perception and confidence in judiciary will be deterred and they may resort to gundas  and mafia dons for redressal of their grievances. 

Prof. Sivakumar recommends adequate legal qualifications/ knowledge for media persons reporting court matters. He also feels the need of sufficient Public Relations Officers in courts for guiding/ interacting with reporters. Sivakumar cited the example of Justice Pasayat who was Chairman of SC Legal Service Committee in 2008 and had carried out healthy interaction with journalists thereby creating awareness. Prof. Sivakumar pointed out that the conviction of an accused is projected by media with fanfare but the acquittal of the innocent person is not projected that way as the same carries no 'news value'. 

Pankaj Vohra, Political Editor Hindustan Times

"Stick to the facts while reporting, you may interfere the proceedings of the court through your opinion", says Pankaj Vohra, Political Editor Hindustan Times. The electronic media in Jesica Lal, Priyadarshani and Arushi cases carried out media trials though opinions, objections and discussions on TV channels. There were candle light processions as well. 

" When the trial court acquits an accused on the ground of insufficient evidence, the remedy lies with the appeal in the higher court and not the public trial. Who will decide as to who is guilty? Is it the court or someone else ? ", questions Pankaj Vohra. He also clarified that every accused is presumed to be innocent until proved guilty.

Vohra also pointed out that the focus should be on merits of the case and not the irrelevant aspects. In SPS Rathore's case, when he was acquitted the focus of the media was on his ' smiling ' rather than the factors behind his acquittal. In Arushi case, when the domestic servants were taken by CBI to Bangalore for Narco-analysis tests, the focus was on tests, instead of ascertaining  whether the CBI followed the due process of law for carrying out the test or not ?   

Pankaj Vohra suggests that the legal reporter should be well equipped with the knowledge of law and the media houses being matured institutions must maintain self control. The guidelines if at all required can only be framed in matters pertaining to National Security. Vohra cited the example of Allahabad High Court's banning news on troops movement which was in national interest.

R.N. Vats

R.N. Vats, noted Advocate and President, Delhi Bar Association lamented the role of media in certain cases coming for trial before the court. At times they hype the matter which disturbs the proceedings. They have fair right to comment on judgments, but commenting during the trial vitiates the very purpose of justice. "After all, judges too are human beings and they get distracted when they read the comments on the cases they are hearing. There should be certain guideline without clipping the freedom of press, but the guidelines should be framed by the government and not by the court ", feels R.N. Vats.

Manoj Verma, President, Delhi Journalists Association

Manoj Verma, President, Delhi Journalists Association, affiliated to National Union of Journalists says that judiciary has got its own legal process, hence it should be the reporting of the matter only and no comments whatsoever by media are justified. Our write-up should not deter the case and the matter should not be blown out of proportion. There should be no media trial. Our duty is to convey the facts to the people and nothing else. Court reporting is not based on sources, hence it should be factual thereby taking utmost care of the dignity of the Hon'ble court. However, media should not be deprived of their right of reporting. 

Suman Jyoti Khaitan

Weighing before saying his words, noted Advocate and Chairman ASSOCHAM & PHD Chamber's Legal Committees, Suman Jyoti Khaitan said that media reporting has to be a  'balancing act' act. He emphasised that the freedom of press is of paramount importance. Media has to its credit many achievements and contributions for the good of the society. It has helped in exposing the corruption, scams, tainted politicians and other evils. If they are barred, the corrupt politicians will have the last laugh.

Similarly, the independence and dignity of the court is most important. The court go by evidence and facts of the case, however, witnesses may get influenced through irresponsible reporting. Khaitan suggested the formation of ' Peers Committees ' for self regulation. The news should not be sensitised for raising TRP. The news should be based on facts and not on speculations, apprehensions, comments and opinions. Media trial prior to pronouncement of court verdict also amounts to victimisation of the accused who might later on be acquitted.

Inputs from
Hasan Khurshid

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