SC declines to frame Media Guidelines Conversation with Firstpost Editor-in-Chief R Jagannathan and Counsel Gopal Sankaranarayanan

The Supreme Court of India, while delivering its judgment on media guidelines on September 11, 2012 refused to frame any broad guidelines for the reporting of sub-judice matters. Bar & Bench spoke to Advocate Gopal Sankaranarayanan, who was representing Youth for India (an Intervenor) and Firstpost Editor-in-Chief R Jagannathan on this judgment..The Supreme Court of India, while delivering its judgment on media guidelines on September 11, 2012 refused to frame any broad guidelines for the reporting of sub-judice matters. The constitution bench had reserved its judgment on May 3 after 17 days of hearing, which had started on March 27..However, the constitutional bench headed by Chief Justice SH Kapadia did lay down the principle of “postponement” allowing courts to place a temporary restraint on the publication and broadcast of specific matters if the said publication could adversely affect a trial..Chief Justice Kapadia said, “We are not framing guidelines but we have laid down constitutional principle and appropriate writ courts that will decide when the postponement order has to be passed on case-by-case basis… Guidelines on media reporting cannot be framed across the board”..Speaking to Bar & Bench on the judgment, Firstpost Editor-in-Chief R Jagannathan said, “While, one is relieved that there are no general guidelines for the media, but the decision to allow courts to postpone reportage is retrograde and will probably be abused”..Jagannathan added, “Every law in India intended to curb freedom has been abused liberally, especially in a situation where governance and police restraint is lacking”..The Apex Court in its 56-page long judgment, said, “… anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under Article 21 to a fair trial… would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the abovementioned principles of necessity and proportionality.”.The Court further observed that such orders of postponement should be for a short duration and should be provided only in cases of a “real and substantial risk” of prejudice to the proper administration of justice or to the fairness of trial..The bench, while observing that the doctrine of postponement of publication of court proceedings is a preventive measure and not a punitive one said, that the postponement order not only safeguards fairness of the later or connected trials, it also prevents possible contempt of court..It further said that a temporary ban on publication of court proceedings is necessary to maintain the balance between freedom of speech and fair trial for the proper administration of justice..Bar & Bench spoke to Advocate Gopal Sankaranarayanan, who was representing Youth for India (an Intervenor) and Firstpost Editor-in-Chief R Jagannathan on this judgment. .Bar & Bench: Initial reactions to the judgment? .Gopal Sankarnarayanan: I think there is a substantial gap between what the Court set out to do and what it eventually did. The clear question that was put to the lawyers who argued the case was about the need for guidelines on court reporting, and the legal basis thereof. In passing the buck on that issue (saying it will be decided on a case by case basis), and not setting out a clear redressal mechanism, the judgment might as well not have been delivered. In fact, the only point that comes out of it is the declaration of postponement of publicity as a legally available norm. What troubles me is that a precious month of judicial time of one-sixth of the Supreme Court was wasted in eventually coming out with something rather unremarkable..Bar & Bench: What does this judgment really mean for the media? .R. Jagannathan: This is not a good signal for media freedom. While it is nobody’s case that the media has reported everything fairly, on balance the freedom is less abused than used. The right approach to media misreporting or sensationalism is to deal with specific complaints in specific trials on a case-by-case basis. If needed, a court can direct a newspaper or TV channel to specifically carry corrections or take remedial action when warranted. To force the media in general to postpone publication of trial news is an unwarranted intrusion on free speech and the right to news dissemination. If Indian courts start using this right to postpone reportage frequently, it will allow interested parties to use this ruse repeatedly to keep the media out. This does not serve the cause of justice – even if media freedom can be temporarily dispensed with..GS: The media needs to be concerned about three things:.a. The fact that even where no statutory provision exists for postponement of publicity (or in camera proceedings), the same is now created by judicial decree..b. The redressal is now through Article 32 and 226, which, in my view creates a John Doe Writ..c. This writ provides essentially for a quia timet action – where the wrong has not actually happened, but is apprehended..Bar & Bench: Are you relieved that the court did not end up framing general guidelines or was that expected?.RJ: Yes, one is relieved that there are no general guidelines for the media, but the decision to allow courts to postpone reportage is retrograde and will probably be abused. Every law in India intended to curb freedom has been abused liberally, especially in a situation where governance and police restraint is lacking..Bar & Bench: The judgment goes to great lengths to establish that in India (as compared to USA), the right to freedom of expression is not absolute. Your thoughts on this. .RJ: This is another red herring. While it is true that the right to freedom of expression is not absolute, it is time we extended the boundaries of free speech rather than use this provision to reduce it. Already, there are serious doubts on whether the charge of sedition – used frequently against people who are not even remotely seditionist, as the cartoonist’s case shows – needs to be on the statute book. The Supreme Court should be trying to extend the limits of freedom and not curtail it. What we need is not an omnibus provision for limiting free speech, but a limited law, which defines clearly in which situations free speech can be curtailed, and for how long. No curb can also be permanent. That way lies disaster. We need a roadmap to more freedom, not less..GS: I think the judgment proceeds on a somewhat glib understanding of the US law on the point. The clear and present danger test was watered down somewhat in Brandenburg, and looked at the possibility of imminent lawless action. I am not sure one could either import or contrast the rights available there and here in the context of reporting court proceedings. There are actually great similarities, and as the judgment suggests in a couple of places, neutralizing techniques are in vogue in the U.S. In fact, this ‘postponent of publicity’ principle doesn’t really have any roots in Indian jurisprudence to my knowledge..Bar & Bench: What do you think are the positive and negative implications of this judgment? .GS: I think the writ remedy could be a bit time consuming, and readily available to the rich and powerful who have much to lose from the publicity attending their trials..On the flip side, I guess it is good that there is an attempt to regulate the media to some extent. We are still to see their long promised ‘self-regulation’, especially when journalists who sell news and intrusively put lives at risk continue to rule the airwaves..Bar & Bench: How will this remedy of doctrine of postponement be implemented? .GS: Like I said earlier, this will be by way of a John Doe writ (because there may be many media who one does not know of, including facebook and twitter) where there is real and substantial risk of fair trial being affected. It would have to be shown that an anticipatory order would be required as necessary and proportional..Bar & Bench: The Courts will be flooded with petitions of postponement leading to danger of gag orders. Your thoughts. .RJ: Absolutely, this is exactly what will happen. Right now, the parties in power are facing various cases in trial courts, given the sheer number of scams that have been unearthed. If governments and the accused start using this postponement provision frequently, it will not only circumscribe the idea of a free press, but also damage the credibility of courts. It is not as if the public even now has a high faith in the lower courts. The credibility of the law and courts will be damaged if the public sees this curb as an effort to help the powerful. It is only the powerful who will move courts to keep the media out..GS: I doubt it. The narrow controls imposed on such an order by way of the judgment is enough to ensure that our writ courts will only grant such reliefs in cases where the apprehension is strongly borne out..Bar & Bench: The Court says that the postponement order will protect media from contempt. Do you think that there is any basis for this reasoning? .RJ: If the media is sometimes in contempt, the courts can act. In any case, the contempt law is outdated and courts have to learn to function in public glare. This is not to say media can’t be intrusive, but there is no reason why specific instructions cannot be given in specific cases to the media if any court fears that it can lead to a mistrial or injustice to the accused. In the Kasab case, for example, the trial court in Mumbai set the rules and these rules were followed meticulously by the media. But there was no ban on the media. The cause of fair trials and free speech would be better served if the courts and media jointly agree on the rules of reportage during any sensitive trial. This is easier to implement than a general postponement..In the Sahara case, which is clearly a case involving a powerful and shadowy businessman fighting the officially constituted regulator, the media did not do anything to give the Supreme Court cause for serious discomfort on the reportage. Postponing the reportage in this case would have prejudiced the cause of the public in a case where millions of investors invested in two companies with dubious antecedents – as the Supreme Court itself finally observed in its judgment..Bar & Bench: The Court did not end up framing general guidelines but still do you think the ‘posponement’ doctrine is a kind of blanket ban on reporting which are severely above the guidelines? .RJ: One hopes the postponement idea is not widely used or abused by powerful interests and courts. The SC should review the order once we see how it is actually being implemented. In fact, the most serious problem with this judgment is that the SC has not indicated how it is going to evaluate the efficacy of this new “postponement” idea. What happens if courts resort to this frequently? The SC should have created a provision for regular reviews on how this rule is actually implemented in practice..Bar & Bench: Second judgment by a Constitutional Bench in as many weeks without a dissenting opinion. Surprised? .GS: Not in the least. It has become a trend for the Chief Justice to be on the bench, and then load it with Judges from whom they expect the least resistance. I doubt that the present judgment would have been unanimous if Justice Kabir or Justice Thakur were there. The last couple of times an independent judgment from a Constitution Bench came with Justice Raveendran’s sterling dissent in Raja Ram Pal and Justice Bhandari in Ashoka Kumar Thakur. Like my friend Nick Robinson and his team observes elsewhere with detailed empirical analysis, it has been years since a Chief Justice was either not on the Constitution Bench, or was in dissent. The trend before and during the Subba Rao court is stark proof – refer Gadbois.