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The Supreme Court Tuesday said it has to frame guidelines to balance the freedom of press with that of the right of an accused under trial in a criminal case, but was told that it could not enforce them in the absence of law backing it.

“Anything that has not been enacted could not be used to check the freedom of press,” senior counsel Fali Nariman told a constitution bench of Chief Justice S.H. Kapadia, Justice D.K. Jain, Justice S.S. Nijjar, Justice Ranjana Prakash Desai and Justice J.S. Khehar.

Chief Justice Kapadia said that the object of putting in place the guidelines was not to control the content of media reports but to balance the right to freedom of expression under Article 19(1) and Article 21 guaranteeing protection of life and personal liberty of the accused in a sub judice matter.

Both senior counsels Nariman and Soli Sorabjee said this problem could be addressed on a case-to-case basis and there could not be any blanket guidelines to deal with the problem of misreporting of a matter sub judice by the media.

The constitution bench is hearing an application by the Sahara India Real estate Corp on its grievance against a news channel reporting its proposal made to the stock market regulator, Securities and Exchange Board of India (SEBI), on securing the money it had raised from the market.

Hearing the application, the court had said that it would frame guidelines for reporting of sub judice matters.

Chief Justice Kapadia said that striking this balance was important in criminal cases.

“What happens to the rights of an accused and if these rights are affected by media trials and how could these rights be protected,” he asked.

“We are not trying to curb the freedom. What was causing concern was the misrepresentation of the court proceedings,” the chief justice said, adding that the contents of the reports given to the court in a sealed cover are published in newspapers and petitions are reported in newspapers even before they come before the court.

Justice Khehar said: “Media creates a mindset and country start believing that if judgment was not like that, it creates a suspicion in the minds of the people that the judgment is a suspect.”

However, cautioning the court on the pitfall of the course it was contemplating, Nariman said: “It (restraining media from carrying a report) is permissible for a court in a matter which is sensitive and in the opinion of the court and in the interest of decency and fairness not to have a report published simultaneously with the hearing of the case and to injunct the further publication subject to the right of publishers to appeal to this court.”

“It can’t be at the whims of the judges. He has to give proper reasoning. We don’t need guidelines there should be a proper law,”, Nariman said, warning: “Let us not go down the slippery slope.”

While Nariman opposed any guidelines, Attorney General Goolam Vahanvati said there could be guidelines but they could not be corrective, and suggested self regulation was the only way out.

“It is something that can’t be constrained. It has to come from within.”

At this, the chief justice said that it could not be said that Article 19(1) was a preferred right and Article 21 was not.

Referring to several complaints he had received including from senior lawyers, he said: “I can’t ignore everything in the name of freedom of press. I am receiving complaints after complaints. I can’t ignore it. In the case of one report, one person lost his job but in the judgment there was nothing against him.

Referring to the newspaper reports on ‘coalgate’, the chief justice said that entire thing is based on the draft report of the CAG which is yet to finalised and placed before parliament.

Such reports affect the “whole economy, vital public interest and nation”, he said.



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