CJI Kapadias Bench narrows down scope of media restraint SC to go ahead with framing guidelines on reporting sub judice matters

On the second day of arguments, the five-judge bench appeared to have narrowed down the scope of the proposed guidelines for the media. As per various media reports, the Supreme Court appears to have focused on the possible deferment or “postponement” of publication. The Chief has made it clear that the Bench would lay down certain parameters due to the absence of any law on this particular issue.

On the second day of arguments, the five-judge bench appeared to have narrowed down the scope of the proposed guidelines for the media. As per various media reports, the Supreme Court appears to have focused on the possible deferment or “postponement” of publication. The Chief has made it clear that the Bench would lay down certain parameters due to the absence of any law on this particular issue.

The Constitution Bench of Chief Justice S.H. Kapadia and Justices D.K. Jain, S.S. Nijjar, Ranjana Desai and J.S. Khehar had been formed to resolve the problem of irresponsible and inaccurate reporting by the media. The Bench had been constituted in response to 11 complaints filed by various senior advocates on the harmful consequences of incorrect reporting of court proceedings by the media.

Strangely enough, the first salvo was fired by Senior Advocate Fali Nariman who had argued that even if the Court were to frame guidelines, the same would be unenforceable. Nariman was appearing on behalf of Sahara India, a company which had complained against the leak of a confidential communication the day before the matter was to be heard in court.

As reported by The Hindu, on Tuesday Nariman had suggested that the need of the hour was self-restraint rather than the imposition of curbs on the media. “Judges and lawyers say all sorts of things in court. We can't build a wall around us. This is not a club. But it can't be a judge's whims. Let us not go down that slippery path.” Nariam continued to voice his concerns yesterday as well, arguing that even a “postponement” would essentially amount to a ban.

This school of thought towards greater self-regulation was endorsed by the Attorney General (AG). The AG, on Tuesday, submitted that there is a certain degree of self-regulation already built into present media. “They have editors. If they feel that something has gone wrong, they act. That by itself is a check.”

Former AG Soli Sorabjee, who had also been asked by the Court to provide assistance on this matter, submitted that it would be preferable to fix a “broad based” set of guidelines on reporting matters which are sub judice which allow the courts to take incidents of misreporting on a case-by-case basis. As reported by the Times of India it was Sorabjee’s submission that a general guideline may prove difficult to enforce.

Wednesday’s hearing also saw submissions being made by noted criminal law expert Siddharth Luthra. The senior counsel supported the need for a “doctrine of postponement” but at the same time stressed that a fine balance must be maintained between media freedom and the right of the accused.

Justice Kapadia however was quick to dispel any thoughts that the court was trying to place controls on the media. “If we are misrepresented, arguments are misrepresented, can’t we do anything about it. We have 11 complaints, all from senior advocates. We are misquoted day in and day out... can’t we do anything about it“, he reportedly asked the battery of senior counsels. As reported by the Indian Express, the Court enquired as to what should be done in situations such as the leak of the CAG report. “The news item may be right or wrong, but the whole economy has already suffered”, the Court observed.

Anoop Bhambani, appearing for the News Broadcasters Association, argued that “news is a perishable commodity” reports Live Mint.Thus, the timely reporting of the event would be a necessary precondition for the news to relevant to the public at large. Bhambani also suggested that a postponement would only be possible in case of in camera hearings.

Senior counsel Rajeev Dhawan was perhaps the most vocal critic of the need to formulate an enforceable set of rules against misreporting. Representing the Editor’s Guild of India, the senior counsel had earlier told the Court that the legal mechanism for curbing misreporting were already present in the form of contempt proceedings. As reported by India Today, On Wednesday too, Dhawan continued this line of argument albeit partly since the Bench rose for the day before the submissions were complete. Dhawan is expected to continue his arguments today.

This is not the first time that the Supreme Court and the media have had a difference of opinion when it comes to the manner in which court proceedings are reported. In 2011, as reported by Bar & Bench, the Supreme Court had directed that a law degree is mandatory for all journalists who are covering proceedings in the Supreme Court, a move which had faced much criticism by the media.