Author: Konark Pratap Gupta, B.A.,LL.B.(Hons.) from University of Petroleum and Energy Studies, Dehradun
This article discusses the powers available to courts to interfere in media news, how these powers have been used in the past, and the problems that arise with these interventions keeping in mind the recent Media Trails happening all over the nation.
Curbing Coverage
Unlike the United States, where there is an absolute right to expression under the First Amendment to the Constitution, which renders pre-publication judicial restraint unconstitutional, expression in India is subject to fair limitations under Article 19(2) of the Indian Constitution.
In addition to the power of the High Court under Section 151 of the Civil Procedure Code, 1908 which gives the court powers to pass any order to achieve the objectives of justice, both the Supreme Court and the High Court have the powers under the Constitution to regulate media reporting of cases.
Although prior restraint orders may be passed by the courts, they must justify them based on fair restrictions. The courts have ruled many times that it is only in extraordinary circumstances that an injunction against publishing or broadcasting can be relied upon.
This exceptional explanation in the sense of media trials will be the assurance of the delivery of criminal justice, which works based on the principle that unless proven guilty, an individual is presumed to be innocent. This idea calls for the justice delivery mechanism to be untainted and shielded from egregious external influences.
The Bollywood actor’s death has dominated TV news coverage over the last two months. The Mumbai Police initially said it was a suicide case, but Rajput’s family subsequently filed a complaint with Bihar Police accusing his former live-in girlfriend Rhea Chakraborty of suicide and adultery. The Central Investigation Bureau, the Enforcement Directorate and the Narcotics Control
Bureau, all three agencies have taken up cases against her.
She was mobbed by TV cameras every time Chakraborty appeared for questioning. Some channels reported having "exclusive" transcripts, presumably leaked by the investigating agencies, of her private WhatsApp messages.
For their "investigative journalism," a TV anchor also declared victory when Chakraborty was arrested last week by the Narcotics Control Bureau for drug possession.
Two public interest cases called on the Bombay High Court to put an end to the "Media trial" of Chakraborty.
On September 2, a petition moved by former senior Indian Police Service officers said that through their biassed reporting and false propaganda, a portion of TV channels was trying to manipulate the direction of an investigation by central agencies.
By posing Chakraborty as guilty even before the inquiry had been concluded, the 24X7 'vituperative coverage' had adversely violated the principles of natural justice.[i]
A petition seeking temporary postponement of media coverage in the case was also filed by filmmaker NileshNavlakha, journalist MahibubD Shaik and former civil servant SubhashChanderChaba, alleging that some television channels were making a storm out of it.
The Bombay High Court asked the news channels on September 3 to show restraint in covering the case. On September 11, when the issue came up before the court again, the bench expressed surprise that there was no state control over electronic media
Meanwhile, on 10 September, the Delhi High Court asked Republic TV and its editor-in-chief, Arnab Goswami, to display restraint in reporting on the death of Sunanda Pushkar, wife of Congressman Shashi Tharoor, stating that it was important to uphold the sanctity of the criminal justice process.
Sunanda Pushkar was discovered dead in a New Delhi hotel in January 2017. Tharoor brought a defamation suit against Arnab Goswami later that year for presenting the death as murder and linking him to the crime.
In December 2017, Goswami provided the court with an assurance that the reporting on the case would show restraint.
On September 10, Goswami was informed by the Delhi High Court of that undertaking and stated that the dignity of the criminal investigation should be covered.
In August, Tharoor had moved an application pointing to episodes in July and August of Goswami's show that made allegations against him and demanded a stay on such a broadcast.[ii]
Media trials
In the past, courts in a wide variety of cases have interfered to prohibit the release of media stories.
The Supreme Court imposed an injunction stopping the publication in 1988, in a case[iii] involving a series of reports published in The Indian Express on the Reliance party, before the corporation had completed the process of issuing debentures to its creditors, a process that was sub-judice in itself.
The court ruled that the court can use its inherent jurisdiction to limit disclosure when there is a "clear and present danger" to the administration of justice and fair trial, but no universal standard can be set for this interference and the decision would depend on the facts of each case.
The Supreme Court said:
“Public interest demands that there should be no interference with the judicial process and the effect of the judicial decision should not be pre-empted or circumvented by public agitation or publications. At the same time, the right to know is a basic right which citizens of a free country aspire to in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. A balance has to be struck between the requirements of free Press and fair trial.”
In 1966, in a defamation case[iv] brought by a witness seeking a restraining order over media reports of his testimony as it would harm his business, the Supreme Court also went so far as to say that open justice, which includes the notion of open access to judicial proceedings, was not absolute.
If the court decides that the administration of justice could be impacted by the release of witness statements, the media could be prohibited from doing so.
The Constitutional Bench of the Supreme Court held in Sahara vs SEBI[v] in 2012, known as the 'media guidelines case,' that a balance must be sought between the right to a fair trial guaranteed under Article 21 and the right to freedom of speech under Article 19.
The court also made it clear, while maintaining the view that prior restraining orders are lawful, that such orders are for a temporary duration before the risk of a fair trial decreases. Any person, the bench said, might approach the court if they felt that due to certain publications there was a real threat to them having a fair trial.
High Court’s role during the investigation
Returning to the issue of media trials, the Supreme Court has made clear observations about what the High Court might do if it is apparent that an investigation or a trial is at danger, whereas several decisions about previous restraint orders deal with cases already at trial.
Delhi High Court, in RK Anand vs. Registrar[vi], which involved a case of contempt following a sting operation in NDTV 's notorious BMW hit and run case in 2007. In the hit-and-run case involving businessman Sanjeev Nanda, the sting operation revealed a conspiracy between the public prosecutor, defence lawyers and the accused to manipulate a witness and led to contempt of court proceedings in the Delhi High Court.
In the judgment upholding the lawyers' conviction of contempt[vii], the Supreme Court expanded on the High Court's duties to ensure that a fair investigation and trial was conducted. While the Supreme Court recognized that, relative to the trial stage, the powers of the High Court during the investigation process were minimal; it nevertheless ordered the High Courts to be vigilant even during the investigation phase. The Supreme Court said:-
“A step in time by the High Court can save a criminal case from going astray. An enquiry from the High Court Registry to the concerned quarters would send the message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences.”
Political reasons behind the inquiry into the death of Sushant Singh Rajput have been claimed and television channels have launched an outright campaign against Chakraborty.[viii] It remains to be seen if, to ensure a reasonable inquiry, the High Court will request a status report from the investigation agencies. The High Court's request for a status report does not infringe on the constitutional rights of third parties such as the media, unlike previous restraint orders concerning the issue of free expression.
[i]The Indian Express. 2020. Sushant Singh Death Case: Former Top Cops Move Bombay High Court Against ‘Media Trial’. [online] Available at: <https://indianexpress.com/article/cities/mumbai/sushant-singh-death-case-former-top-cops-move-hc-against-media-trial-6580507/> [Accessed 24 October 2020].
[ii]Responsible journalism need of the time: Delhi HC directs Arnab Goswami to show restraint, bring down the rhetoric in Sunanda Pushkar case Bar and Bench - Indian Legal news,https://www.barandbench.com/news/litigation/delhi-hc-tharoor-arnab-goswami-show-restraint-bring-down-rhetoric-sunanda-pushkar (last visited Oct 24, 2020)
[iii]Reliance Petrochemicals Ltd vs Proprietors Of Indian Express,23 September 1988.available at - https://indiankanoon.org/doc/1351834/
[iv]Naresh Shridhar Mirajkar And Or's vs State Of Maharashtra And Anr,3 March 1966. Available at https://indiankanoon.org/doc/1643138/
[v]Sahara India Real Estate ... vs Securities &Exch.Board Of India,11 September 2012 available at https://indiankanoon.org/doc/158887669/
[vi]R.K.AnandvsRegistrar, Delhi High Court,29 July, 2009.https://indiankanoon.org/doc/58440/
[vii] In Re: Prashant Bhushan And Anr.Suo Motu Contempt Petition (Crl.) No.1 Of 2020, available at https://main.sci.gov.in/supremecourt/2020/14323/14323_2020_33_1504_23746_Judgement_31-Aug-2020.pdf
[viii]Is the BJP Deriving Political Mileage Out of the Sushant Singh Rajput Case? The Wire, https://thewire.in/politics/bjp-sushant-singh-rajput-bihar-elections (last visited Oct 24, 2020)
Author's Biograph
KonarkPratap Gupta is a Law Graduate from University of Petroleum and Energy Studies, Dehradun. He enjoys writing Articles, Short comments and giving unbiased opinions on recent legal issues happening across India and World.