India's Supreme Court Considering Trial By Media Restrictions

No parameters to define trial by media, say editors
(Dhananjay Mahapatra, The Times of India, April 4, 2012)

Focused media coverage of trials of persons resembling moneylender Shylock of Shakespeare's Merchant of Venice might have prejudicial effect for an accused, but could it be a reason for the Supreme Court to frame reporting guidelines or order postponement of news reports, asked Editors Guild and Foundation for Media Professionals on Tuesday.

Appearing for both organizations, senior advocate Rajeev Dhavan said, "Sensational reporting will take place because sensational incidents keep happening in India. The Supreme Court will not be able to stop it. Yes, reporting must be accurate. But to say it amounted to trial by media is only a pejorative expression. Neither the court nor any one has provided parameters to define what constitutes trial by media."

"If a Shylock kind of case happens today, does everyone keep silent?" asked Dhavan. He suggested to a bench of Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, R P Desai and J S Khehar to explore the administrative side route to convey the judiciary's concern to editors for developing a mechanism for accurate and fair reporting.

"Why not an exercise on the administrative side to talk to Editors and tell that it was time to devise some practical guidelines," Dhavan said while cautioning that "there was no sensational judicial answer to sensational media reports. The judicial answer could only be a sober one."

The senior advocate said the court had no power under common law to prevent open court reporting or order postponement of publication of stories. He said tension between the judicial and media could not be resolved through guidelines which were statutory in character and it was time to sit down with the media to evolve some administrative guidelines for reporting keeping in mind the protection of the right of the accused.

The bench said: "PILs with scurrilous charges are filed in court. (Soli) Sorabjee argued that reporting of such PILs could be postponed till the court took a judicial view of it. Should reporting of such PILs be not postponed? Can media take note of the PIL and analyze it? Can the media analyze evidence even before a trial judge had a look at the evidence?"

Dhavan said media guidelines and postponement of reporting were complicated areas. It would be akin to an unchartered journey in sea if the court attempted to determine such a complex issue on an application of Sahara India Real Estate Corporation that provided a very narrow compass of facts related to alleged leakage of privilege communication between counsel and media.

Questions like "who leaked it? How did it reach media? Is there no public interest involved in the contents that were leaked?" would arise in the adjudication of that application, he said.

In conclusion, he said: "The glare of contemporaneous reporting of trial promotes public faith in criminal justice system."

Senior advocate K K Venugopal, making his submissions as amicus curiae, said a direction to postponement of reporting of trial proceedings would not be in public interest as people would like to know what happened in the trial.

Instead of general reporting guidelines, Venugopal suggested a case to case approach. He said if an accused moved a High Court complaining about breach of his right to reputation guaranteed under Article 21 by media reports, then the court would examine the report against the allegation.

"If it comes to a conclusion that the report indeed breached the right of the accused or was contemptuous in character, then it would issue a general warning to media not to repeat the mistake. Only when a media ignored the general warning that it would be made to face the consequences," he said.

Venugopal also said that though it had been more or less defined as to what constituted contempt, there was little jurisprudence available on what constituted obstruction or interference in the administration of justice. He would continue arguments on April 10.

Judge Bars Social Media from Balfour Trial
(Associated Press, April 5, 2012)

The judge in the trial of a man accused of murdering actress and singer Jennifer Hudson's family has strictly barred tweeting from inside court.

A liaison for Judge Charles Burns said Thursday that officials will monitor the Twitter accounts of courtroom reporters to ensure they aren't sneaking tweets from the trial.

The spokesman, Irv Miller, says the judge will allow reporters to send brief emails from court in recognition of the intense interest in the case.

Miller says the judge is prohibiting tweeting, as well as Facebook posting from court, because the constant typing on cellphones could distract jurors and other participants.

Potential jurors were collecting questionnaires Thursday in the murder trial of William Balfour with direct questioning by the judge starting Monday.

Testimony is set to begin April 23.

Will courts regulate the media?
(Nikhil Kanekal, India Legal News, April 9, 2012)

New Delhi: On the morning of 10 August 2011, senior lawyer Harish Salve looked upset as he entered Chief Justice of India (CJI) S.H. Kapadia’s courtroom, holding a newspaper that had published an article on a case he was arguing in the Supreme Court.

Salve complained that the article in question, written by a journalist at news agency Press Trust of India (PTI), had misquoted him in reporting on arguments he made the previous two days in the Vodafone Group Plc. tax case. Salve was arguing why Indian income-tax authorities should not be allowed to tax the British telecom company for its 2007 acquisition of Hutchison Whampoa Ltd’s Indian operations.

The report had quoted Salve to say that his client had resorted to tax “evasion”. He had actually said Vodafone had taken recourse to tax planning and “avoidance”. Tax evasion is a punishable offence.

The inaccuracy became the cause of one in a string of incidents pitting the legal community against the media over the reporting of court hearings.

In constitutional democracies, courts and the press are usually seen as working together to ensure probity and accountability in public life. These stray instances have caused friction between the two institutions in India. Does “trial by media” truly exist as a phenomenon, and if so, do the courts have the power under the Constitution to rein in the media are the questions being debated.

In the above instance, the judges asked PTI to respond to Salve’s application, which he made to the court on Chief Justice Kapadia’s direction. Eventually, an unconditional apology was tendered on the news organization’s behalf.

A senior PTI editor, speaking on condition of anonymity, said the journalist who wrote the report was taken off the Supreme Court beat.

“The media has its own internal checks and balances. It’s not only in SC,” the editor said. “If a reporter on any other beat makes a mistake, he or she will be held accountable.” When it comes to reporting on Supreme Court cases, the news agency is “extra careful,” he said, “but unfortunately, sometimes errors do happen”.

Reporters face their own difficulties. Unlike in the US or the UK, there are no transcripts, recordings or live broadcasts of hearings nor are proceedings in crowded courtrooms properly audible, he said.

According to CJI Kapadia, he has personally received 11-13 such complaints from senior lawyers about wrong reporting of cases. He said he also regularly receives letters from undertrials in criminal cases who claim to have been condemned by newspapers or on television.

“The Chief Justice receives letter after letter that our rights are affected. How can I keep ignoring (them)? Till when can I ignore (them)?” asked Kapadia on a morning in late March, as he sat on a constitution bench of five judges, brought together to frame guidelines for the media’s reportage of court proceedings. The court has not made these complaints or the letters public.

The ongoing constitutional bench hearing was born out of lawyer Fali S. Nariman’s complaint to Kapadia’s court on 10 February. Nariman, who was representing two Sahara real estate companies facing action from the stock market regulator Securities and Exchange Board of India (Sebi), complained to the court about a confidential proposal that had made its way onto a business news channel.

“We are distressed that even the without-prejudice proposal submitted by the petitioners to Sebi has come on CNBC-TV18. Such incidents are increasing by the day. Such reporting not only affects business sentiments, it also affects administration of justice,” the court said in a written order.

Nariman was called upon to assist the court’s constitution bench on press freedom and court reporting. Also assisting the court is senior lawyer K.K. Venugopal who was asked to do so by CJI Kapadia. Venugopal had complained against the media to the court before Salve did so.

During the hearing of the P.J. Thomas case in last January, where the government faced a petition for appointing an officer with a chargesheet against him to the position of central vigilance commissioner (CVC), media interest was understandably at its peak because of potential embarrassment to the government as a result of the case. Reporters swarmed the visitors’ gallery of the courtroom.

Venugopal submitted that while the chargesheet was in a criminal case under the Prevention of Corruption Act, his client was the victim of a political battle in Kerala.

Later that night, Arnab Goswami, editor-in-chief of Times Now news channel, told his viewers that he found Venugopal’s submissions to the court to be “absurd”.

Venugopal entered court the next day and complained. Kapadia asked him to make a written complaint against Times Now and Goswami, which Venugopal did not do after Goswami apologized, according to lawyers in Venugopal’s chambers.

Contacted late Monday evening, Goswami said he wasn’t in a position to comment because he was preparing for his daily news show.

The bench, in circumstances of wrong reporting, has been largely sympathetic to lawyers. It has not held back in telling the media how to do its job. Justice G.S. Singhvi would routinely address correspondents in open court on most afternoons when the 2G spectrum cases were being heard. He would conclude by asking reporters to report the proceedings properly.

Previously, Kapadia had expressed displeasure at a 15 December, 2010, news report in a national daily that said the judiciary wanted to retain 1% of the `2,500 crore deposit made by Vodafone in the court’s registry in the tax case. The report said a “cash-starved” judiciary was trying to source funds through such “novel” methods. Kapadia had then said: “People write whatever they want.” But the court did not initiate any action against the reporter or the newspaper.

Last August, when the incorrect reporting of the Vodafone case occurred, Kapadia had suggested passing directions or guidelines for media coverage of the court proceedings. “We will pass a short order. But you (the press) have to regulate. This is not the first time it has happened. All over several wrong reports are appearing. It has happened in other courts also,” said the judge.

“We don’t want these recurrences in a sub judice matter,” he said.

The court also raised the issue of eligibility criteria for journalists during this period. Essentially, both rookie reporters and senior accredited correspondents had been expected to have a law degree to report from the Supreme Court. But these were subsequently rolled back after representations from correspondents to the court’s press committee that it would be unreasonable for the court to impose these.

More recently, after the Vodafone judgement in January, Kapadia was targeted through a public interest litigation (it was later dismissed as “frivolous” with heavy costs) which claimed that the CJI had a conflict of interest in the Vodafone case because his son worked with Ernst and Young. The consultancy had advised Vodafone on the transaction with Hutchison.

Interestingly, the CJI raised this very question during the constitutional bench hearing. When told that India had principally adopted a system of open justice, Kapadia said: “We are not on open justice. We are on what goes on in a trial court. A petition is filed. The press is reporting. It is analysed. Is it not prejudging the issue?”

“And those petitions, no sooner than they are filed, you go on attacking the lawyers, you go on attacking the judges,” he said to Rajeev Dhavan, who appeared for the Editors Guild of India and the Forum for Media Professionals.

Dhavan told the judges that they didn’t have the power to do what they were contemplating—muzzle the media with guidelines that could be enforced. This amounted to legislating, he said.

Nariman, who had filed the complaint, told the court that such guidelines could not be enforceable nor would they be punitive. It would upset the constitutional balance among free speech, limits on free speech and the rights of an undertrial, said Nairman.

The court was also told that the existing remedies of contempt and defamation acted as sufficient checks against a wavering press.

Whether the constitutional bench agrees with him will be known in some weeks after the hearing concludes. The hearing resumes on Tuesday.

STRIKING A BALANCE
(Hemchhaya De, Calcutta Telegraph, April 11, 2012)

There is a debate sweeping across the country on whether the media should have a free hand while reporting on court proceedings or criminal cases. The trigger for the debate was, of course, the Supreme Court’s indication last month that it could lay down guidelines on how the media should cover matters that were sub judice.

A five-judge bench headed by Chief Justice S.H. Kapadia said that a balance has to be struck between Article 19(i)(a) (freedom of speech and expression, including freedom of the press) and Article 21 (right to life and liberty). The case pertains to the Securities and Exchange Board of India indicting two Sahara Group companies for financial irregularities in 2010. Subsequently, some documents related to the case were revealed in the media, prompting Sahara’s counsel to urge the Supreme Court to take action against irresponsible reporting while a case was being heard.

Over the last one month the bench has been deliberating on this issue and has expressed concern over “trial by media” and how in some cases it projects an accused as “guilty” even before the trial is over. Another cause for concern is believed to be media commentaries on the motives of judges if a judgment doesn’t go according to what the media had conjectured.

The Aarushi Talwar case was one where the media came in for a lot of flak for allegedly coming to their own conclusion about who was guilty and who was not. Some say that the sensational murder case of Mumbai crime journalist J. Dey last year was yet another instance where both the media and the police stepped out of line in a similar way.

Needless to say, India’s press corps is not happy with the apex court’s observations in this regard. In fact, the Editors Guild of India has submitted before the court that any guidelines on reporting sub judice matters could be tantamount to curbing press freedom. However, others contend that such restrictions are long overdue to ensure that the administration of justice doesn’t get hampered by “biased” reportage.

Of course, this is not the first time that the judiciary is raising its voice against “trial by media”. Take a 1958 Supreme Court ruling which states: “No doubt it would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of that investigation. This is because trial by newspapers, when a trial by one of the regular tribunals of the country is going on, must be prevented.”

Again, a 1969 apex court ruling stresses, “It will be contempt if there is publication of any news or comments which have a tendency to or are calculated to or are likely to prejudice the parties or their causes or to interfere with due course of justice.”

The 200th Law Commission report also says that judges are, after all, human beings and can be swayed by lopsided reportage, reveals Shameek Sen, associate professor, media law, National University of Juridical Sciences, Calcutta. “And this could affect the administration of justice,” he adds.

Indeed, most legal experts are of the view that the press, and even the police, should exercise restraint while judicial proceedings are on. In a recent article published in the Pakistani newspaper Dawn, Mumbai lawyer G. Noorani says, “Leaks or even attributable briefings while the investigation proceeds are highly improper and, indeed, illegal… Media comments on a pending trial impair the course of justice.”

Some feel that a seasoned judge ought not to be influenced by media reports. Says Prabir Kumar Samanta, former judge of the Calcutta High Court, “If a less experienced judge reads one-sided reports about a case he is presiding over, he can feel a bit pressured,” he says. But seasoned judges, he adds, hardly care for what appears in print.

Another point being debated is whether carrying news about a particular case should be postponed till a verdict is out. In fact, there are some Supreme Court judgments that dwell on what could be the starting point of a sub judice matter — an FIR or an arrest or when a chargesheet is filed.

The 1969 A.K. Gopalan vs Noordeen case strikes down the FIR as the starting point, though. “The filing of a first information report does not, by itself, establish that proceedings in a court of law are imminent. In order to do this various other facts will have to be proved and in each case that question would depend on the facts proved.”

The same ruling also stresses that it would be an “undue restriction on the liberty of free speech to lay down that even before any arrest has been made there should be no comments on the facts of a particular case”.

The 200th Law Commission report explains what constitutes “active”, “imminent” or “pending” judicial proceedings. It also recommends amending some provisions of the Contempt of Courts Act, 1971, (which empowers judges to take punitive action against prejudicial reporting, among other things). This conforms to the A.K. Gopalan vs Noordeen case verdict, which says that publications after a person’s arrest could amount to contempt if these are found to be prejudicial to the trial later.

While amendments to the contempt law are pending, media experts are coming down heavily upon any attempt to muzzle the press. They point out that there are enough laws in the country that can take action against mis-reporting or biased reportage. In addition to the Contempt of Courts Act, there are strict norms laid down by bodies like the Press Council of India (PCI) regarding how to report sub judice matters. The Press Council doesn’t take punitive action, but it has the power to censure any incident of false reporting.

“There’s no need to impose further strictures on reporting on judicial matters,” says Rajeev Sabade, director, Centre for Media and Publications, Pune, and a member of PCI, which, incidentally, is putting up a counsel to represent it in the matter.

“You cannot just issue sweeping guidelines. Each case of mis-reporting should be judged on its own merit,” says Neeraj Bajpai, joint editor, UNI, and a member of the PCI. “Framing one-size-fits-all guidelines can be an unreasonable restriction on press freedom.” But he does admit that media should also take utmost care while reporting judicial matters, verifying sources and interpreting court documents.

While the debate plays out in the Supreme Court, one must also remember that thanks to the Internet, reportage is no longer restricted to conventional media outlets like newpapers and TV channels. Clearly, the whole issue is a tricky one and it remains to be seen how the courts deal with it ultimately.

Shanti Bhushan condemns media regulation
(Written by Prachi Shrivastava | LegallyIndia.com | 11 April 2012)

Senior counsel Shanti Bhushan submitted to Chief Justice (CJI) Kapadia’s constitutional bench yesterday, that even incorrect statements do not justify restrictions on the media, and even half-truths and misinformation should not warrant punishment for contempt regardless of concern for the reputation of courts.

The former law minister was arguing before the five judge bench considering the question of framing guidelines for media’s reportage of subjudice matters, in the case of Sahara India Real Estate Corporation Ltd & Ors V Securities and Exchange Board of India & Anr.

Bhushan was acting for one of the intervenors, after four earlier cases were clubbed in Sahara India’s hearing.

Bhushan stated that India’s republican form of government gave the censorial mandate to the people over the governing institutions and not the other way round, unlike the British form where the crown is sovereign. The media’s role arose from the duty of the people to play an important part in governance, and Article 19 in the Constitution enables the media to perform its “function”.

He submitted that the reasonable restrictions that Parliament can impose on the fundamental right contained in Article 19, envisaged only such guidelines as will direct the media to not publish anything which it knows is not true or which has been published with reckless disregard to its falsity.

He cited the Supreme Court’s (SC) decision in R Rajgopal v. State of Tamil Nadu, as adopting the United States Supreme Court principle that constitutionality prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless he proves that the statement was made with “actual malice”.

Bhushan added that there was not a single known case where injustice resulted from a wrong court decision on account of open public debate, as against a number of known instances where gross injustice has been avoided on account of a vigorous debate between the public and the media while the matter was sub judice.

“All burning issues in India are pending in one court or the other. Should the people stop talking about it? Should people be not informed about it?” Bhushan was reported by the Times of India as asking the bench yesterday.

"I beseech your lordships not to be a party to curtail press freedom which is the bedrock of democracy", he concluded.

Indian Newspapers Society opposes fresh norms on court reporting
(Media Newsline Bureau, 19 April 2012)

The Indian Newspapers Society (INS) Wednesday told the Supreme Court that there was no need for any "further or fresh guidelines" on regulating media reporting on sub-judice matters and any violation of an accused's right to free and fair trial by reporting could be addressed through the existing laws.

"There may not be a need for any further or fresh guidelines," senior counsel Parag Tripathi, appearing for the INS, told the apex court constitution bench of Chief Justice S.H. Kapadia, Justice D.K. Jain, Justice S.S. Nijjar, Justice R.P. Desai and Justice J.S. Khehar.

Tripathi told the judges that the issue before the court involved four different and distinct rights.

These righs involved inter-play of the fundamental requirement of fair trial, the right of an accused to a fair trial, the citizens' right to know at large and the freedom of speech, including the freedom of press under Article 19(1)(a).

Even though the right to free speech and expression were not absolute under all circumstances, Tripathi told the court that in the "trade-off" between the right to speech and expression and that of fair trial, the former would not be abridged.

"As far as the argument on economic loss or protection of economic interest of a party is concerned, it may be pointed out that in India, protection of economic rights is not a part of fundamental rights with the right of property having been expressly withdrawn from the ambit of Article 19(1)," Tripathi told the constitution bench.

Earlier concluding his arguments on behalf of the Broadcast Editors' Association, senior counsel Ram Jethmalani said "this court is well advised not to frame guidelines" for regulating media reporting of the sub-judice matter.

Jethmalani said this in response to a query whether any guidelines could be framed by the court. He said that even the apex court had favoured self-regulatory mechanism for the professional bodies.

He told the court that the only remedy available in the event of derailment of justice on account of wrong media reporting or trial by media was taking recourse to the contempt of court route.

He referred to a plea by murder convict Manu Sharma, punished in the 1999 Delhi ramp model Jessica Lall's murder, that it was the hype by media that resulted in the breach of free and fair trial in his case.

Chief Justice Kapadia asked "is the court in a case, as brought by you, not justified in passing deferment order to achieve the ends of justice and free and fair trial".

As he wanted to know if there was no other way than to take recourse to contempt of court to punish them, Jethmalani said "enforce the law".

Appearing for Vodafone, senior counsel Harish Salve said that he favoured enunciation of principles that would bring clarity on law in a very important area concerning Article 21 and Article 19(1)(a) of constitution. This he said would serve a great public purpose.

While batting for laying down the principles, Salve said: "I am reasonably certain that a responsible media will take on board what the court will say."

"Why should we feel that media will defy what the court lays down. When it comes to interpretation of law, this court had the last word. You like it or not you have to live with it. This is the majesty of the court," he said.

The court was hearing an application by Sahara India Real Estate Corp voicing its grievance over a news channel reporting its proposal made to the Securities and Exchange Board of India on securing the money it mopped up from the market.

The court earlier said that it would frame guidelines for reporting on sub-judice matters.

Dara joins rush for court curbs on media
(SAMANWAYA RAUTRAY, Calcutta Telegraph, April 26, 2012)

The list of those complaining about trial by media is growing by the day: among the latest additions is Dara Singh, convicted of the murder of Australian missionary Graham Staines and his two minor sons.

A Supreme Court Constitution bench headed by the Chief Justice of India, S.H. Kapadia, is mulling guidelines for the media to report sub-judice matters.

Dara has filed an application claiming that intense media pressure had prevented the courts from giving him the benefit of doubt. His review petition is yet to be decided by the top court.

In an application filed by his brother Arbind Kumar, Dara claimed that others with similar evidence against them got away but he was convicted because the media made his case a “cause celebre”.

The application said Dara was pious, upright and innocent. “However, …the media have been after the applicant (Dara), running a continuous campaign for his conviction.”

“The media have not analysed the evidence and have never discussed facts. Yet, throughout the judicial procedure… sections of the media have maintained that the applicant is guilty of the murder of Graham Staines. There has been no attempt to verify the allegations,” the application said.

The application, filed by lawyer Sibo Sankar Mishra, is expected to be heard along with several others by the bench that will decide how to deal with misreporting of sub-judice cases.

During these hearings, senior counsel Ram Jethmalani has already cited the case of Manu Sharma, whose acquittal in the Jessica Lal murder case was overturned by the high court, as a case of trial by the media.

Yesterday, the Singapore-based promoters of Speak Asia, whose sister concerns are facing allegations of defrauding investors, had complained about trial by media.

Their lawyer Aabad H.H. Ponda had sought tighter guidelines to prevent the media from reporting anything in a first information report or a chargesheet.

The role of the media should be confined to reporting that an FIR or a chargesheet has been filed, without going into the contents, he had said.

Youth for Equality, which fought against the OBC quota on the grounds that it would affect merit, also backed tighter control on the media.

The media do not have a fundamental right to have access to the courts or report its proceedings and the courts have unrestrained powers to ensure that the accused get a fair trial, the NGO’s lawyer, Gopal Shankarnarayan, told the bench.

This led senior lawyer Rajeev Dhavan to protest that the Editors’ Guild should be given an opportunity to counter the view.

“We maintain that these are suo motu proceedings,” he said, prompting Justice Kapadia to contest his claim.

“This is not a suo motu case,” Justice Kapadia said, emphasising that the court was looking into a complaint filed by Sahara India into leak of information given to Sebi, the securities watchdog, about the value of an asset.

Freedom of press is not absolute: Soli Sorabjee
(Press Trust of India, May 10, 2012)

New Delhi: Noting that freedom of press is not absolute, eminent jurist Soli Sorabjee on Thursday said there could not be a media trial in every case. Freedom of press is not absolute and it can be restricted, Sorabjee said adding there is a need to regulate the media in the country.

Speaking at a panel discussion on Self-Regulation of the Media organised by Indian Women Press Corps (IWPC), he said the media has to be regulated and there cannot be a media trial of everything.

"It has been seen that when a certain case is in court, the media starts a parallel trial, which is not good. Yes, the media has done a lot good in certain cases like Jessica Lal murder case but there can't be a media trial to everything. Let the court first decide on a matter, then the media can criticise," he said.

However, he said court can't frame guidelines as it is the job of the legislature.