Ramifications of Bom HC judgement on ‘media trials’ Court warns news channels against abusing Right to Freedom of Speech
05, Feb 2021 | Sanchita Kadam
A Bombay High Court bench headed by Chief Justice Dipankar Dutta delivered a rather lengthy judgment analysing media trials and whether the media over stepping and obstructing investigation in criminal cases amounted to criminal contempt of court.
While the court refrained from issuing any notice of contempt of court for obstructing administration of justice, it did reprimand the media houses, and warned them against indulging in such practices. The bench, also comprising Justice Girish Kulkarni, reiterated the role of statutory authorities under the Cable Television Networks Act and directed them to take necessary action in complaints received by them.
The judgment dealt with four different petitions pertaining to media coverage by certain news channels on the suicide case of actor Sushant Singh Rajput which led to a media trial affecting the rights of the accused as well as maligning the reputation of Mumbai Police. The petitioners included individuals Prerna Arora, Asim Sarode, Nilesh Navalakha and others; Mahesh Narayan Singh (former IPS) and other retired civil servants as well as an NGO named In Pursuit of Justice.
The petitioners’ submissions
The petitioners contended that TV channels were trying to influence the course of investigation by virtually running a vituperative daily campaign against Mumbai Police thus eroding public confidence. It was also submitted that while freedom of press must be safeguarded, it is not permissible to have medial trial resulting into parallel investigation being done by several private individuals by expressing opinion, exposing material witnesses as well as examining of witnesses and divulging crucial pieces of evidence before the investigating agency could have a chance to examine them. All of these acts create an atmosphere of prejudice and casts a threat on independent inquiry by investigating agencies who could get affected by public opinion driven by media trials. The petitioners deemed media trials to be an affront to the rule of law and an interference with administration of justice.
The petitioners also cited Supreme Court precedent in Rajendran Chingaravelu v. R.K. Mishra, reported in (2010) 1 SCC 457 whereby the court held that “Premature disclosures or ‘leakage’ to the media in a pending investigation will not only jeopardise and impede further investigation, but many a time, allow the real culprit to escape from law.”
The respondents’ submissions
Assistant Solicitor General (ASG) Anil Singh submitted on behalf of the Ministry of Information and Broadcasting (MIB) that there is sufficient regulatory framework in place for regulating electronic media which primarily consists of “statutory regulation” and “self-regulation”. The government further submitted that it is currently considering the issue of enforceability of the self-regulatory mechanism and is contemplating one statutory umbrella mechanism redressal of grievances while completely ensuring journalistic freedom, honouring and respecting the freedom of speech and expression and ensuring a mechanism which would ensure impartiality.
Counsel for Times Now, Kunal Tandon relied on a few judgements and stated that Court has refrained from passing any order to gag the media and formulated a neutralising device by issuing order directing not to issue any communication, naming any accused or any witness till the charges, if any, are framed and the trial is commenced, so as to protect the interest of the persons involved in the criminal proceedings.
Times Now further submitted that like a law officer or a judge are unlikely to get affected by media reporting, the same equally applies to an investigating agency, more so as the investigating agency is fully bound by the procedures provided in the Criminal Procedure Code. “In regard to the influence of media reporting on the mind of the witness, it is submitted that in most cases witness is aware of his/her role in the investigation process and is made aware that he/she has to state the truth as and when questioned by the investigating authorities,” submitted the channel.
Senior Advocate Siddharth Bhatnagar on behalf of the News Broadcasters Federation (NBF) submitted that restriction on reporting by media from the stage of registration of FIR till the filing of the charge-sheet, would tantamount to no crime ever being reported and would amount to silencing of the press. It defended the media trial conducted by the news channels and called it investigative journalism stating that the media unearthed a pile of evidence and that it played a key role to use its skill in investigative journalism to bring key testimonies, evidence, corroborations and inconsistencies into the public domain, while assisting the investigating agencies.
Court’s observations
Before delving into questions of law, the court laid down some guiding principles for itself to make the decision. While it regarded Article 19 (1) (a) the right to freedom of speech and expression as paramount and cited judgments to assert that it needs to be safeguarded, the court observed that there was, misuse or mal-exercise of such freedom of speech and further observed that it was the most abused right in recent times.
The court stated that the thought process while answering the questions raised were centred around the premise that in a society governed by the rule of law, no price is too high to maintain the purity of administration of justice and as a constitutional court, it was its duty to not only protect fundamental rights but also to secure that the stream of administration of justice flows unsullied and unpolluted uninfluenced by extraneous considerations.
“Notwithstanding that freedom of speech is the bulwark of a democratic government and the role of the press/media to discover the truth and to ensure proper functioning of the democratic process is undoubtedly salutary, at the same time, the press/media must remember that its concern for discovery of truth and maintenance of purity in all streams of good governance by opening up channels of free discussion of issues should stop short of exceeding the permissible legal and Constitutional means.”
The court observed that any report of the press/media, having the propensity of tilting the balance against fair and impartial “administration of justice”, could make a mockery of the justice delivery system rendering ‘truth’ a casualty and that it was the duty of the press to report correct versions of incidents without any distortion/embellishment.
Court’s findings
The court did not hold merit for any submissions challenging the maintainability of the PILs for lack of locus standi and so on. The court then went on to frame questions to be considered while finally deciding the petitions.
Questions 1 and 2
Firstly, the court dealt with the first two questions whether a media conducting a trial when a police investigation is in progress amounts to obstruction in administration of justice and thus amounts to criminal contempt of court.
“…we hold that any act done or publication made which is presumed by the appropriate court (having power to punish for contempt) to cause prejudice to mankind and affect a fair investigation of crime as well as a fair trial of the accused, being essential steps for “administration of justice”, could attract sub-clause (iii) of section 2(c) of the CoC (Contempt of Court) Act depending upon the circumstances and be dealt with in accordance with law.”
The court also observed that “a person cannot be dehumanized, disreputed, vilified and maligned qua his societal existence at the hands of the media in an attempt to sensationalize any crime which is under investigation.”
Question no. 3
The next question, no. 3, was pertaining to the restrictions as contained in the Programme Code as postulated under section 5 of the Cable Television Networks (Regulation) Act, 1995and the rules and whether a media trial in matters pending investigation fall under such restriction. Section of the CTVN Act states that all programmes broadcasted should conform with the Programme Code, which is under Rule 6 of the CTVN Rules, which has a comprehensive list of what kind of programmes should not be aired which includes content that is obscene, defamatory, amounts to contempt of court, criticises, maligns an individual, denigrates women and so on.
The court thus held that “the matters which are pending investigation on a criminal complaint clearly fall within the restriction as contained in the Programme Code as stipulated under section 5 of the CTVN Act and Rule 6 of the CTVN Rules.”
Question No. 4
The question no. 4 was whether the regime of self-regulation adopted by the news channels would have any sanctity within the statutory framework. The court pointed out that the News Broadcasters Association model of self regulation was approved by the Nariman Committee which was constituted then by the Supreme Court. The high court held that the recommendations of the Committee constitute sufficient guidelines which need to be adopted, but the apex court left it to the authorities to take appropriate steps for its implementation, without giving any positive directions to that regard.
The high court thus refuted the submissions made by NBA that it was, as a self-regulatory mechanism, conclusive.
“It needs to be stated that despite clear directions of the Supreme Court, we are not shown any directives issued by the Central Government accepting the self-regulatory mechanism to be a conclusive mechanism. The self-regulatory mechanism does not have any statutory recognition, in the absence of which, it is not possible for us to hold that the self-regulatory mechanism would have any sanctity in law.”
The court also pointed out how the membership of NBA or NBF was voluntary and any channel wanting to evade such self-regulation could simply not join or cancel their membership thus making it as good as a farce. The court opined that “such self-regulatory mechanism would hardly meet the constitutional expectations of the citizens of a fair and responsible broadcasting, which would not be of a nature of an unwarranted sensitization, excessive publicity, leakage of evidence, and vilifying coverage, affecting public confidence in the judicial system and in the administration of criminal justice”.
Question No. 5
The following question no.5 was to strike a balance between freedom of speech and fair trial, to what extent, if at all, press reporting should be regulated if it interferes with “administration of justice”.
The court primarily held that while the right of a fair trial has to be zealously guarded, equally important is the right of the press/media to keep the public informed of matters of public interest.
“…to amount to a trial by media, the impact of the press/media coverage on the reputation of the person targeted as an accused must be such that it is sufficient to create a widespread perception of his guilt, prior to pronouncement of verdict by the court, thus making him the subject of intense public scrutiny for the rest of his life.”
The court held that by an investigator that a free, fair, impartial, effective and meaningful investigation of a cognizable offence is a necessary concomitant of “administration of justice”, any speech/publication must also yield to larger considerations of maintaining the purity of administration of justice. The court held that since the media has the ability to mould opinion giving rise to strong public emotions, it ought to refrain from taking stances in its presentations which are biased and show a predilection for a particular point of view having enormous potential of deflecting the course of justice.
Responding to investigative journalism claim
Responding to contention of Republic TV that investigative journalism gathers incriminating materials that could connect the accused with the offence of murder and there was an honest endeavour to present facts before the public, the court stated that as per the law, if the channel or anyone is in possession of information that could assist the investigator, “it ought not to be part of a news coverage but it would be the duty of such channel to provide the information that it has to the police under sections 37 to 39 of the Cr.P.C. to facilitate a proper investigation”.
The court further observed that the campaign against Mumbai Police of suppressing facts was ill founded as the Supreme Court was satisfied that there was no wrongdoing, prima facie (order dated August 19, 2020). The court admitted that the media had belied all hopes that it would cover events accurately without impinging on others’ rights and that the self-regulatory mechanism has failed to deliver in adequate measure in keeping erring media houses under check. The court’s answer to the question concluded “that regulation of reporting by the media amounting to a ‘media trial’ is necessary but limited to securing the rights of others under Article 21 as well as to preserve and maintain the sanctity of the criminal justice system of the country”.
Question A
The court further considered incidental questions and delved into whether there should be guidelines for reporting death by suicide. The court observed that the Press Council of India, which is a statutory body, had issued certain guidelines to this regard applicable to newspapers and journalists and held these guidelines to be comprehensive and binding and hence should also be followed by electronic media.
Question B
The next question under consideration was whether the media coverage by the respondent channels (Times Now and Republic TV) amounted to criminal contempt of court. The court went through the many clippings submitted as evidence and observed that both channels,
“in an attempt to out-smart each other (for reasons which we need not discuss here), these two TV channels started a vicious campaign of masquerading as the crusaders of truth and justice and the saviours of the situation thereby exposing, what in their perception, Mumbai Police had suppressed, caring less for the rights of other stakeholders and throwing the commands of the Cr.P.C. and all sense of propriety to the winds.”
The court took judicial notice that the actress although entitled to her rights, was painted as a villain and was held guilty by the media of orchestrating the actor’s murder much before filing of police report under section 173(2), Cr.P.C. and the court held such kind of reporting to be prejudicial to the interests of the accused and one that could dent the process of a future fair trial and derail due administration of criminal justice, once the matter reaches the appropriate court having jurisdiction.
The court, while, prima facie, considering it a fit case for criminal contempt of court at the hands of the TV Channels, refrained from initiating action under CoC Act against the channels. The court said, “we hope and trust that they shall act more responsibly in future and not create a situation for the Court to take recourse to the provisions of Article 215 of the Constitution and the CoC Act to invoke its jurisdiction to punish for contempt.”
Question C
The court further considered the question whether the accusation that the Ministry of Information and Broadcasting had abdicated its statutory functions under CTVN by forwarding complaints to NBF and NBA, justified. The court held that the implementation of the CTVN Act and rules and their provisions was far from satisfactory. The court gave mainly two reasons for this: firstly, because no authority had undertaken any surveillance to The nature of surveillance required to scrutinize the contents being broadcast to ascertain as to whether they are in violation of the Programme Code and no decision was taken with regards to the complaints received; and secondly, because the Ministry stated in it affidavit that the complaint were directed to NBA.
“We do not approve such abdication of substantive power conferred by the CTVN Act and the CTVN Rules by such authorities in favour of a voluntary organization (private body), which is formed by the channels themselves, namely, the NBA and which has constituted the ‘NBSA’.”
The court held that it would be “mandatory obligation” of authorities under CTVN Act to “immediately act upon the complaints received against the TV channels who are alleged to be violating the Programme Code or any other provisions of the CTVN Act and the CTVN Rules and take necessary action as provided for thereunder.”
“We, accordingly, direct that every complaint which would be made on the contents of any programme on any television channel, either to the authorized officer or the Central Government in regard to violation of the Programme Code, shall be dealt with in a manner as provided under the CTVN Act and immediate action be taken thereon, without involvement of any private bodies like NBSA or NBF. This would be de hors any complaint made to these bodies or any other such bodies, which would be dealt by these bodies as per their self-regulatory mechanism.” (emphasis supplied)
Question D
The next question considered by the court was whether any specific order should be made to postpone reporting of this particular case or issue certain measures for regulating media coverage of similar incidents. The court held that having regard to the findings in this case, it was a fit case to pass postponement orders to pause the reportage however, the hysteria in the media appears to have calmed down and hence, the court refrained from passing any such specific order.
“While not proposing to issue directions for postponement of news reporting for the reasons noted above, yet, bearing in mind the adverse impact that a trial by media could have on pending investigations (which was not the subject matter of consideration before the Supreme Court in the aforesaid decisions), that an accused is entitled to Constitutional protections and invasion of his rights is to be zealously guarded, that there is an emerging need to foster a degree of responsibility as well as promote accountability and the reason in the paragraph that follows, we do not consider it to be either impermissible or imprudent in the present context to maintain a fine balance between competing rights as well as having regard to the ever-changing societal needs to suggest measures for exercise of restraint by the media in respect of certain specified matters, with a view to secure proper administration of justice, while it proceeds to exercise its right to report.”
The court opined that the media/press ought to avoid certain reports/debates/discussion touching upon ongoing investigation and only those items are presented for reading/viewing which are merely informative and in public interest.
The court directed that “No report/discussion/debate/interview should be presented by the press/media which could harm the interests of the accused being investigated or a witness in the case or any such person who may be relevant for any investigation, with a view to satiate the thirst of stealing a march over competitors in the field of reporting.”
Specific directions
The court issued the following specific restrictions on press/media and directed the media to refrain from displaying/printing any news item or initiating debate/discussion in the nature:
- In relation to death by suicide, depicting the deceased as one having a weak character or intruding in any manner on the privacy of the deceased;
- That causes prejudice to an ongoing inquiry/investigation by:
(i) Referring to the character of the accused/victim and creating an atmosphere of prejudice for both;
(ii) Holding interviews with the victim, the witnesses and/or any of their family members and displaying it on screen;
(iii) Analyzing versions of witnesses, whose evidence could be vital at the stage of trial;
(iv) Publishing a confession allegedly made to a police officer by an accused and trying to make the public believe that the same is a piece of evidence which is admissible before a Court and there is no reason for the Court not to act upon it, without letting the public know the nitty-gritty of the Evidence Act, 1872;
(v) Printing photographs of an accused and thereby facilitating his identification;
(vi) Criticizing the investigative agency based on half-baked information without proper research;
(vii) Pronouncing on the merits of the case, including pre-judging the guilt or innocence qua an accused or an individual not yet wanted in a case, as the case may be;
(viii) Recreating/reconstructing a crime scene and depicting how the accused committed the crime;
(ix) Predicting the proposed/future course of action including steps that ought to be taken in a particular direction to complete the investigation; and
(x) Leaking sensitive and confidential information from materials collected by the investigating agency;
- Acting in any manner so as to violate the provisions of the Programme Code as prescribed under section 5 of the CTVN Act read with rule 6 of the CTVN Rules and thereby inviting contempt of court; and
- Indulging in character assassination of any individual and thereby mar his reputation.
The court held that these directions are not exhaustive but indicative and any news report by press/media ought to conform to Programme Code, the norms of journalistic standards and the Code of Ethics and Broadcasting Regulations; and any default would invite not only action from concerned authorities under the law but would also amount to criminal contempt of court under the CoC Act.
The court also took into consideration the contention raised by media houses that when guests are invited to speak, it is difficult to censor their statements. The court held that while that may be true, it does not grant any speaker the license to either abuse or defame any particular individual which would make the channel as well as the individual liable for defamation and in case it amounts to obstruction to administration of justice then both the media house and the speaker can be liable for criminal contempt of court.
The court held that it is not sufficient to put a disclaimer that it does not associate itself with the views of the speaker and so to obviate the situation, the news channels could inform and guide the guest to refrain from making statements of such nature.
The court also reminded investigating agencies that they are entitled to maintain secrecy in the course of investigation and if at all there is leakage of sensitive information which could stifle investigation, it could proceed for laying charges of criminal contempt, before the appropriate court.
The court also advised that investigating agencies including the police may appoint any officer to be a link between them and the media for providing information that is in public interest.
The court concluded by stating that the enlightening discussion in all such decisions (cases cited by all parties) on media trials that impact the judicial process and the necessity to interfere only in exceptional cases, where rights of the accused are infringed, has deeply enriched us and lighted the correct path to be followed.
The complete judgement may be read here.
Related:
Manipur journalists released; charges dropped
Republic TV and Times Now reportage prima facie contemptuous: Bombay High Court
