Don’t lay guidelines, outline contours of press freedom: Salve

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: Former solicitor general Harish Salve on Wednesday said the Supreme Court should make the media aware of the boundaries within which it must operate while reporting court proceedings and suggested that the constitutional court must bring clarity to the contours of press freedom to prevent breach of a citizen’s right to fair trial and right to life with dignity, guaranteed under Article 21.

He agreed with most lawyers in telling a five-judge bench of Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, R P Desai and J S Khehar that it was not for the apex court to frame guidelines but disagreed with other senior advocates who had said that the court could have a case-to-case approach in scrutinizing media reports for transgression of right to life related sub-rights of an accused or a private citizen.

“The Supreme Court is not Press Council of India to tell the media what should not have been written. Media too cannot decide what should be the spread and extent of its right to report conferred on it to meet the people’s right to know. So, the Supreme Court is the only organ under the Constitution which can bring clarity by declaring the contours of right to free speech and expression under Article 19(1)(a) by balancing it against the crucial right to life,” Salve said.

“What the Supreme Court declares as the limits under Article 19(1)(a) will be abided by the responsible media, most of whom are very responsible. That is the surest way to safeguard citizen’s right to life which encompasses their right to privacy and right to live with dignity in a society,” said Salve, who appeared in an application moved by Vodafone months ago complaining about misreporting.

The senior advocate said continuous commentary on the merits of a case while it was being argued and targeting of individuals by media had a chilling effect on judges and lawyers, inhibiting free and frank discussion in a court room. “After all, judges and lawyers are human beings. The court should clarify if such reporting puts in peril such discussion during court proceedings,” he said.

Salve said government’s affidavits could be reported by the press even before it came up for court scrutiny. But if scurrilous allegations were made in any affidavit branding people as terrorists, murderers or money launderers, then the media has to wait till the court scrutinizes the contents of the affidavit in an open court hearing, he said.

The bench asked, “In our country the ground reality is that suit for damages or defamation is not an efficacious remedy against such errant reporting as it would take 20 years for conclusion of such proceedings. Will a high court or the Supreme Court be accused of violating Article 19(1)(a) if it entertained a petition from a person aggrieved by scurrilous allegations reported in the media and passed a temporary restraint order?”

Salve said constitutional courts would be well within their limits to entertain and pass appropriate orders on a writ petition from a private citizen complaining that his/her reputation was being destroyed by scurrilous allegations repeatedly reported by TV channels or print media.

If Salve cited Nupur Talwar case to point at spurious effects of brazen media coverage on a person and his right to fair trial, former law minister Ram Jethmalani cited the Jessica Lal murder case proceedings in Delhi High Court to highlight miscarriage of justice because of sustained media campaign.

Before concluding his arguments, Jethmalani said the courts have power to order repeat publication of material that hurt the right of the accused to fair trial or interference in the administration of justice. “Guidelines on media reporting will not solve the problem. On the contrary, it may create additional problems. The solution lies in enforcing Contempt of Court Act. Send one or two persons to jail under the contempt law and that will bring sanity in reporting,” Jethmalani said.

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

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Judiciary can’t regulate press freedom: Jethmalani

Ram Jethmalani (born September 10, 1923) is an...

Ram Jethmalani (born September 10, 1923) is an Indian politician and a famous and controversial criminal lawyer. (Photo credit: Wikipedia)

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: Former law minister, MP and senior advocate Ram Jethmalani on Tuesday told the Supreme Court that it would be unconstitutional to curtail or regulate press freedom through judicially evolved guidelines because Parliament alone was competent to undertake this exercise through legislative route.

Appearing for a media association before a five-judge constitution bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar, the octogenarian lawyer suggested that the best method to evolve guidelines for reporting subjudice matters without infringing the rights of the accused was to seek consensus through meetings between judges, lawyers and leaders of the media.

“The guideline evolved through this process could be recommended to Parliament for appropriate legislative action. I can assure you that Parliament would act on such a recommendation,” he said.

Though the bench had doubts about the efficacy of normative guidelines in protecting fair trial because of excessive reporting intruding into the domain of judges in certain cases, it said, “If we have to recommend, we will do so. There is no problem at all. But the limited question is what should the court do when a person approaches it complaining against media’s blatant breach of his right to presumption of innocence till pronounced guilty? Would the court be breaching Article 19 if it protects the right of the accused by ordering deferment of reporting for a short period.”

Jethmalani was unrelenting. He said, “A pre-publication ban is ultra vires. A guideline to this effect is unconstitutional. Even if the Supreme Court has some legislative power, when the issue involves Article 19, restrictions must come from a statute made by Parliament.”

However, he agreed that if a constitutional court was convinced that a newspaper report compromised the right of an accused and jeopardized fair trial or administration of justice, it could surely put a ban on subsequent publication of the matter.

Jethmalani said the malady of misreporting or biased reporting could be controlled if the judges shed their populist approach and sent a couple of errant journalists to jail under contempt of court law.

“Contempt of court law is not invoked as much as it should be to invoke the fear of god in journalists. The court will not have to worry about media guidelines if contempt jurisdiction is invoked and sent a message that press cannot get away with contemptuous reports,” he said.

Appearing for the Statesman newspaper, counsel Madhavi Goradia Divan argued against court-framed media guidelines saying mere reporting of trial proceedings would not vilify anyone as the public was aware of the cardinal principle ‘presumption of innocence till pronounced guilty’.

On the flip side, she said well-intentioned guidelines could be taken out of context and attempts would be made to achieve something which was completely different from what the court was intending to do. “The trial courts are well aware of the powers conferred on them to control reporting of proceedings in a criminal case,” she said.

The bench clarified, “Our effort is not to punish but to prevent. This exercise is an awareness process for everyone. We want to put in guidelines to avoid certain situations by deferring reporting for a limited period of time. We are not going into reporting of other wings of government but of a limited restraint on reporting as far as court proceedings are concerned.” The arguments will continue on Wednesday.

Judiciary can’t regulate press freedom: Jethmalani