Media: To regulate or not to regulate?

Media: To regulate or not to regulate?

Author: Arpita Seth

The post hyperbolic coverage of 26/11 in 2008 prompted the Government to scrutinize the inner workings of media organizations. Victim’s families were showcased, in the way it was done during the December 1999 hijacking of Indian Airlines Flight 814. Media reporting during 26/11 helped aid the cause of terrorists in laying a vicious siege in the city ((See also Live TV Coverage Put National Security in Jeopardy)). Surprisingly, in 2006-07 it was lauded for its effort in being able to speed up famous criminal trial processes in Delhi. ((Trial by Media-Looking Beyond the Pale of Legality))

Rang De Basanti, like most of Aamir Khan’s movies made a huge impact on the citizenry in reliving the extremist way of fighting for justice. The meditative moment in the movie was the protagonist and his friends marching towards India Gate in a candle light vigil to protest against the politically covered death portrayed in the movie. It is through these candlelight vigils that when the Court granted acquittal in notorious criminal trials, media intervened to shed light on the obvious political clout.

Image courtesy: European Student Think Tank

In the Jessica Lal Murder Case, Manu Sharma’s acquittal was overturned in Dec 2006 by the Delhi Court to life imprisonment, later upheld by the Supreme Court in 2010. ((State v. Siddarth Vashisth & Manu Sharma 2001 CriLJ 2404, Bina K. Ramani v. State on 5th Feb 2010 (Delhi HC), Sidharth Vashisht @ Manu Sharma vs The State (N.C.T. Of Delhi) on 12 May 2008 (SC), Sidhartha Vashisht @ Manu Sharma vs State (NCT Of Delhi)on 19 April 2010 (SC). )) In fact, the Trial Court had acquitted all the nine accused due to lack of evidence in Feb 2006. It was when the media’s interest spurred that the judiciary took suo moto cognizance of the case and reopened it. So was the case in the ghastly murder of DU law student Priyadarshini Mattoo. She was raped, striked 14 times on the face and strangulated with a lamp wire leading to her death, by her jilted lover Santosh Singh. In Oct 2006, death penalty was awarded to Santosh Singh by the High Court, as opposed to Trial Court’s acquittal in 1999. The SC later in 2010 commuted it to life imprisonment. ((Santosh Kumar Singh vs State Th. Cbi on 6 October, 2010 (SC), State (Through CBI) vs Santosh Kumar Singh on 17 October, 2006 2007 CriLJ 964.))The Nitish Katara murder case achieved its share of attention from the media because of the accused belonging to the family of influential politician D.P Yadav. The accused- Vikas Yadav and Vishal Yadav were sentenced to life imprisonment in 2008 for the murder of Nitish Katara. The victim’s mother relentlessly has tried appealing to the Court to not encourage the criminal activities of Vikas and Vishal Yadav while out on Bail. The Delhi High Court has taken due note of the same. ((State vs Vikas Yadav & Anr on 7 August, 2009 (Delhi HC), Indian Council Of Legal Aid And … vs State (Govt. Of Nct Of Delhi) … on 27 November, 2006 (Delhi HC), Vikas Yadav vs State Of U.P. And Another on 26 April, 2011 (Delhi HC), Vikas Yadav vs State Of U.P & Anr on 23 October, 2009 (Delhi HC).))The Neeraj Grover murder case found media attention due to the involvement of a small time Kannada actress Marie Susieraj. The warped Nithari killings in Noida by Mohninder Pandher and his manservant Surender Koli were illuminated by media support, prompting the CBI to relook into the shoddy investigation. ((Surendra Koli vs State Of U.P. Ors. on 15 February, 2011 (SC), Nahar Singh Yadav & Anr. vs Union Of India & Ors. on 19 November, 2010 (SC), Mohinder Singh Pandher S/O Late … vs C.B.I. S.P.E., State Of U.P. And on 14 December, 2007 (Allahabad HC), Nithari vs Stateon 5 October, 2011 (Gujarat HC).))The qualifications of a CVC chief in the PJ Thomas case and media’s public debates on this issue gave the Courts the green signal is doing ‘justice’ in the particular case. The Ruchika-Girhotra Molestation Case started afresh and the accused S.P.S Rathore was booked under S354. In 2010 the SC released him on bail shocking the nation in the travesty of justice. ((Mamta Sharma vs Central Bureau Of Investigation on 19 February, 2001 (Punjab-Haryana HC), S.P.S. Rathore vs Central Bureau Of Investigation on 1 September, 2010 (Punjab-Haryana HC).))

Unlike the above, where media aided in the quest for truth and justice, in the unfathomable Arushi-Hemraj Murder Case, media created a sort of havoc by publishing confessions, ranting about the CBI’s involvement in covering up the crime and vilifying the Talwar household as bizarre. The co-accused Mrs Nupur Talwar also sought to take action against certain media houses for defaming their name in public without concrete evidence. Nevertheless, media curiosity can be attributed to the spate of mysterious killings post the crime involving the murder of Talwar’s counsel’s mother and the recent murky road accident of the first investigating officer in the case. ((Rajesh Talwar vs C.B.I & Ors.on 2 March, 2012 (SC); Nupur Talwar vs Cbi & Anr on 7 June, 2012 (SC); Dr Mrs Nupur Talwar vs Cbi Delhi And Anr on 6 January, 2012 (SC); Recently with respect to developments see- Talwars Used Internet On Murder Night))In July 2008, the Supreme Court specifically noted that media should not try to hamper gathered evidence and pass opinion before the verdict was out. So was the case with the 2G Scam and the number of scams that have been unearthed. In fact during the Age Row case of former Army Chief General V.K Singh, several news channels had legal luminaries along with defense personnel arguing the nitty-gritty’s of the technical case.

With complaints of false reports of ongoing legal cases being published in the print, electronic and social media alike, journalists and media house owners had to face the ire of the Apex Court. A number of Senior Advocates approached the Court and cited instances fit to make a string case of defamation. The issue of administration of justice being compromised in the alleged ‘yellow journalism’ perpetrated by media was compounded with the sensationalism in ongoing criminal/corruption cases. In fact the Supreme Court had earlier come out with the stipulation that only law graduates who have undergone the rigors of the legal course are fit to become legal correspondents. From leading lawyers such as Harish Salve, Indira Jaisingh and Soli Sorabjee bellyaching the media’s cat-and-mouse TRP/advertisement based content, it all strengthened the case for coming out rather astonishingly with media guidelines. ((V. Venkatesan, Fetters on the Media?))To understand the arguments, it is pertinent to analyze the 11th September 2012 Judgment passed by the Apex Court.

Sahara India Real Estate Corp. Ltd. & Ors. v. Securities & Exchange Board of India & anr. In this dispute, Sahara brought up the issue of a privately confidential dealing between itself and SEBI being leaked onto the public via a popular business channel-CNBC TV. The case was sub-judice and the leakage of information was detrimental to Sahara’s economical interest. Sr Advocate Fali Nariman, arguing on behalf of Sahara made the plea of appropriate guidelines being issued in the publicity of sub-judice cases as well as in disclosure of public documents forming part of the Court proceedings. It also urged the court to adjudicate upon the publicity of a case in print and electronic media on not giving opinions when the verdict had not yet been passed. CJI Kapadia was presiding over the Bench and with a news report in the Times of India on his conflict of interest in the Vodafone Tax Case, he too shared Sahara’s burden and felt aggrieved. ((Id))He in fact had invited applications from the public as well as lawyers to support instances of media stumbling administration of justice. He claimed to have received around or more than 50 such applications mostly from Senior Advocates. ((Id))In the present case, the Court’s love affair with the media turned awry as can be seen with the following principles being laid down-

  • Prior Restraint has per se not been deemed unconstitutional. Preventive Injunction against the press must be based on reasonable grounds so that it does not impede administration of justice. ((Brij Bhushan v. State of Delhi AIR 1950 SC 129; Virendra v. State of Punjab AIR 1957 SC 896; K.A. Abbas v. Union of India AIR 1971 SC 481; Binod Rao v. Minocher Rustom Masani 78 Bom LR 125; Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1; Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883; Globe Newspaper Co. v. Superior Court, 457 US 596; Mohd. Shahabuddin v. State of Bihar (2010) 4 SCC 653.))
  • The concept of “Open Justice” is the cornerstone of the judicial system, which can be restricted in its inherent jurisdiction if it necessitates administration of justice. ((Independent Publishing Co. Ltd. v. AG of Trinidad and Tobago [2005 (1) AC 190]; Vincent v. Solicitor General [(2012) NZCA 188 dated 11.5.2012]))
  • Prohibitory publication which is the result of meeting the administration of justice is never violative of Art19(1)(a).
  • S3 of the Contempt of Courts Act prohibits making public anything related to court proceedings when the matter is sub-judice before the court of law. ((Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406; Supreme Court Bar Association v. Union of India (1998) 4 SCC 409; Ram Autar Shukla v. Arvind Shukla 1995 Supp (2) SCC 130))This is to protect the due process of law from being perverted. S4 gives the right to publish a report if it is fair and accurate, but is subject to S7, which talks about media being precluded to witness an in-camera trial. Contempt of Court is an offence sui generis.
  • Presumption of Innocence is a Human Right. The Court under its inherent powers in Article 129 or Article 215 order postponement of publication if the appellant can establish substantial risk of prejudice of the pending trial. The burden of proof will be on the appellant alleging the offending information. ((Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra(2005) 5 SCC 294))
  • There is no general rule to formulate postponement of publication and depends on the extent of prejudice caused in each individual case. ((Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal [(1995) 2 SCC 161 ))
  • Postponement gives twin benefits of fairness in a trial and the prevention of possible contempt by the media.
  • Though, Article 19(2) does not specifically include public interest as being one of the 7 causes for restricting free speech, all the 7 clauses have the same underlying factor that of “societal interest” which is another name for “public interest”.
  • Order of postponement will be valid only if the balancing test favors non-publication for a limited period.
  • Postponement will be valid only if there is a real and substantial risk to the fairness of a trial and in meeting the ends of justice when Art19(2), Art129/215 and Art 142(2) are read in conjunction with each other. It is to be treated as a neutralizing device evolved by the Courts so as to effectuate a balance of interest between free expression and rights of the accused.
  • The underlying factor behind postponement is prevention of possible contempt.

This judgment invited mixed reviews both from the legal fraternity and media persons. In an interview given to Frontline, former SC judge Justice J.S Verma refuted the idea of the judiciary laying down guidelines for media on the premise that it will clearly violate freedom of the press. Gagging the press is not a solution to produce neutrality in news content. He also debunked the analogy between the Guidelines laid down in the Vishakha case with guidelines being laid down for the media. He said that a free press was the litmus test for a vibrant democracy and any form of outside intervention would debilitate the institution of democracy itself. ((V. Venkatesan, I am Against Any Restriction))

In the above case, the Court as such did not explicitly feel the urge to control the media but wanted to regulate whatever content came in conflict with the administration of justice. When Fali Nariman got to know that Kapadia’s Supreme Court was intent on framing guidelines for the media, he explicitly stated that he did not as such urge for regulation but emphasized that each case be checked on an individual basis instead of laying down a general stand. ((V. Venkatesan, Fetters on the Media?))When the Supreme Court formed a 5 judge Constitutional Bench to procure a balance between Free Speech and Expression along with Rights of the Accused/undertrial, Indira Jaisingh in a surprising twist of logic in speaking on behalf of the Central Government tabled the idea that Free Speech is only for the citizens and media being an institution was misplacing it. She furthered her argument on the rationale that media has the right to inform and not misinform and misguide the public. ((Id))Rajeev Dhavan, speaking on behalf of the Editor’s Guild of India point blankly stated that handcuffing the media with guidelines tantamount to legislating or rather giving vent to judicial activism gone afar. ((Sit With Us, Discuss Guidelines: Editor’s Guild to SC))As was published in Frontline, the Court merely insisted on laying down a lakshman-rekha for the media to follow so that prejudices do not chaperone a judgment rather than gagging the press. ((Supra note 19))If we talk about gagging the press, Congress MP Meenakshi Natarajan’s Print and Electronic Media Standards and Regulation Bill 2012 was shelved on account of keeping a totalitarian control over the media. The Bill went so much ahead as to even obviate the giving of information under the Right to Information Act when free speech comes in conflict with national security. It was punitively vindictive and gave an eerie haunting, remindful of the 1975 Emergency orchestrated by Mrs. G. ((Maneesh Chhibber, Ban & Seize: Congress MP Bill Out to Gag Media))

Known for his mythologically historical obiter dictas ((See also Kunal Majumdar India’s Hyperactive Judiciary)) Press Council of India Chief Justice Katju, has relentlessly defended freedom of the press on all accounts but has put forth the need for regulation. Press Council of India under the Press Council Act 1978, has been vested with nickel-and-dime like powers of improving the standards in Journalism. ((J. Venkatesan, Press Council for Court Guidelines; The Hindu opposes Idea))The Code of Ethics and Broadcasting Standards chartered out by the News Broadcasting Association regulates broadcast media. The News Broadcasting Standards Authority (NSBA) is a self-regulatory authority headed by Justice J.S Verma to keep tabs on news ethics in broadcast media. With self-formulated regulatory bodies keeping a check the need for the judiciary to frame guidelines seems equivalent to control rather than the ‘euphemistic’ term of regulation. ((V. Venkatesan, I am Against Any Restriction)) In UK, there is the Reporting Restrictions in Criminal Courts Body and FAIR in USA to see that press remains ethical in its approach in providing information. The need of the hour is not for the government or the judiciary to blast away at media organizations but to rather let them formulate an independent body of their own with their own system of checks and balances. ((Sagnik Dutta, For A Credible Model))

Regulation of any sort or postponement of publication will lead to fetters on the media undoubtedly. Publication is valid if the report is fair and accurate if one goes by the 2006 amendment in the Contempt of Courts Act 1970. ((Markandey Katju, Contempt of Court; Need for a Second Look))To think that its aim is to increase the credibility is a simplistic estimation. Agreeing that the media cannot sensationalize news, but punishment can only be pronounced once the act has been committed. This is the general norm on which law courts function. We don’t necessarily convict a person to a period of incarceration because allegedly ‘reasonable-minded’ persons think that particular person has almost possible likelihood of creating havoc. Even for detainment glaring evidence has to be present. Media similarly, cannot be made to put their hands behind their backs because there is a sudden raid of Arnab Goswami brand of journalism. As Sr Adv Nariman pointed out in the aforementioned case, individually cases need to be handled. There is a legal system, if one feels that defamation, the notorious blasphemy or the archaic sedition law has been violated then they must approach the court of law and prove beyond reasonable doubt how tempestuously they have been victimized by such speech and expression. Justice P Sathasivam and Justice Swatanter have rightly stated that presumption of innocence is a fundamental right, which cannot be hampered by a trial imposed by the media. ((SC Reverses Acquittal by the HC in Mumbai Child Sex Abuse Case))

The irony of the whole media-bashing episode is that despite media houses indulging in perverse journalism (a darker shade of yellow), private complaints are not being registered and journalists doing so are not even being rebuked due to their influence. If lawyers are so aggrieved then they should make use of the art they are well versed in rather than provoking pseudo-legislation. In fact websites such as Mediaah!, Desi Media Bitch were forced to be taken down after publications such as the Times of India threatened the owner with dire consequences. Such shark-eat-shark instances in the media industry are commonplace. To botch competition, the industry gets its hands dirty in the war for procuring more viewership and readership producing a domino effect. But why doesn’t the Court take suo moto cognizance of such cases? Barkha Dutta despite being exposed in the Nira Radia Tapes and rebuked for dangerous (yes that’s the word) journalism during 26/11 as well as Kargil was not pulled up by NDTV. When Hillary Clinton and Oprah Winfrey visited India in 2012, the questions Barkha Dutt put forth, demystified her in appeasing the political and in the saddle. Arnab Goswami, clearly a liberal fundamentalist with his angry-young-man rants still rules the 9pm slot on Times Now creating a new brand of if-you-don’t-agree-with-me-you-are-doing-injustice-to-the-public. IndiaTV shouldn’t even wander near the television industry, being solely responsible for uplifting yellow journalism in India. Aaj Tak, belonging to the ‘breaking news’ category of channels should ideally go off air if it does not stop remonstrating the public with unscrupulous information. Times of India should focus more on political-economic issues of national concern than when the latest movie star is due to tie the knot, being one of the mostly read English daily. The trends are flagged off by the bigger fish, which creates a dominant trend in the media industry. The point of the matter is, individual complaints can only be filed if the quality and credibility of media has to be improved. Generalizing norms even punishes those disseminating vital and credible information. ((Shashi Kumar, Just Let The Press Be))

Anna Hazare’s movement became a flash in the pan success due to its incessant rambling against politicians and the government machinery. It was fired up with the increase in the exposes caused due to innumerable scams unearthed in 2011. To condemn all politicians as bad because a section is corrupt and criminal should not shun the institution of the government. The Supreme Court was not aggrieved with a recent policy framed by the government or was not aggrieved when politicians were involved in loot, murder, caste-based politics and rioting. If Hon’ble CJI Kapadia received more than 50 applications for media guidelines, he would have received more than a 1000 guidelines to regulate politicians in the country. With majority MPs sitting in Parliament having a criminal case registered against them and the increase in unruly behavior of parliamentarians has not been able to manage a set of guidelines. Then why shackle the Media?

Leading journalist Rajdeep Sardesai has said- agreed we need to clean up our own house but regulation of any form is a barefaced restriction on the freedom of the press. ((Sagnik Dutta For A Credible Model))To conclude, Asian School of Journalism Chairman Shashi Kumar brought to light a poignant statement made by the first prime minister of India, Jawaharlal Nehru-“I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press ((Shashi Kumar Just Let The Press Be)).” His daughter tried her best to strangulate the press in 1975; her daughter-in-law is trying to re-live the same in 2012.

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