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.