“It is the darkest hour for the Indian media since the Emergency. Historically, the media and judiciary have been partners in the journey of democratic India; in mirroring the hopes and aspirations of the poor, the faceless and the voiceless for justice. Now, the contours of an avoidable confrontation are becoming visible.
“Mainstream media and social media have in recent months been under a concerted attack from the executive and the legislature that makes a mockery of our freedom. By opting for opacity instead of transparency in the media age, the third pillar of our democracy has sent a questionable signal with its over-reach.
“Instead of a blanket ban on court reporting or a blanket OK on court reporting, the SC has taken an in-between path which is prone to be arbitrary, ad-hoc, subjective and in the long run dangerous. Who decides that the media coverage should be postponed? What is to prevent a 2G or coal scam accused from claiming his/her rights are being trampled?
“The Indian situation is very different from the British, Australian or American ideals that the SC cites in its order. It is not my case that the media does not mis-report, mis-quote or sensationalize. But for every media representative or organ doing that, there are many more doing a fair and honest job. By lumping them all together, the SC order has thrown the baby out with the bathwater.
“There are at least 56,000 cases pending in the SC, and over three crore cases in the high courts and lower courts. In how many of those cases have we seen mis-reporting, mis-quoting, sensationalism—leading to a mis-trial—that necessitated such guidelines?
“To protect the interests of a few, the apex court has sacrificed the interests of millions of Indians looking for direction, guidance and, in the end, justice. The judiciary is not just about corporate cases like Sahara or Vodafone. What kind of impact will this order have on cases which involve millions who do not have the same legal firepower like say tribals in the mining areas, like industrial workers in a labour strike?
“News is a perishable commodity. Who is interested in reading or viewing a case months later?
“Instead of positive action like educating court reporters, or telecasting court proceedings live on television, the SC has jumped the gun. There are at least 17 pieces of law that an aggrieved party could use to seek redress for bad journalism. What will this new order—and implemented under which provision of the law—achieve?"
“It’s a balanced judgement that recognizes that imposing pre-publication/pre-telecast guidelines on the media would be inadvisable, but is also conscious that no freedom is absolute. I think, to that extent, it reminds us in the media not just of our rights, but also of our responsibilities when we cover sensitive court cases."
“I don’t see anything dramatically new in this. In a way all the major points are already in place—the ambiguous lakshman rekha that the media must not cross, freedom of expression not being an absolute, journalistic process being subordinate to judicial process, the restraint on the media coverage of a trial (the Arushi Talwar case, for instance, has that in place)."
“Absolutely. In fact I’d argued for that position."
On whether the court should have made more general guidelines:
“It’s very difficult to do because it is a very fact-specific thing—it is a misunderstanding of the correct state of the law, that people (should be able to say anything they want)."
The UK courts have famously started granting super injunctions preventing any reporting of certain cases. Could this be an issue here in future?
“It won’t become a super injunction. It has to be sanctioned from the high courts of India (that have contempt jurisdiction)."
Could lawyers potentially abuse this to keep cases out of the public eye?
“Needs to be appealed to the Supreme Court (if there are any such issues)."
“I’m sure there’ll be a few cases where (things are decided wrongly but they) will (be) corrected (by the Supreme Court)"
Rahul Singh, competition law expert, who teaches at the National Law School of India University:
“I think it is a logical culmination of India’s penchant for content-based regulation of free speech. The Constitution of India is vague and is not of much assistance without an overarching clarity in jurisprudence... Unless we as a society have a clarity that a belief in free speech is per se antithetical to the idea of content-based regulation, such irrational contradictions in free speech jurisprudence are bound to recur. Also...there may be a risk beyond court coverage."
Ameet Datta, media lawyer and partner at Saikrishna and Associates in Delhi:
“(The judgement) is exceptionally well written. I find it very exhilarating when I can cleanly and clearly understand an Indian judgement. Very lucid. I note what (Chief Justice of India S.H. Kapadia) has done. Essentially the Supreme Court has at the very outset rejected the notion of prior censorship or pre-censorship, but they have noticed the neutralizing devices in the court processes in the powers of court in various jurisdictions including in India.
“They seem to have settled on this device of postponement of media reporting as a balancing act between what our fundamental freedoms are, especially in this context of freedom of speech and the ability of courts to assert this sui generis (of its kind) right under contempt of court laws
“My takeaway from this judgement is that this is a judgement that will not be applicable in each and every case where a litigating party will ask for a postponement of reporting.
“Court has very much made it clear that will be done on a case-by-case basis and will be an exceptional remedy.
“I am hopeful that this will not be used as good authority for each and every case where a gag order is requested. But the danger is that it will.
“But the danger is that I feel it will be used in a variety of proceedings, criminal law proceedings, corruption-related proceedings.
“As the judgement has recorded there have been many cases where the court has granted postponement of reporting, it is just the first time that the Supreme Court has crystallized that law.
“They seem to have created a system—and a process that you can approach the courts (to get postponement).
“From a media organization perspective, this now brings to the fore a requirement to do what targets of reporting would call more responsible reporting... That you report on facts as fully and accurately as possible and you leave it at that.
“The order seems to achieve a balance—in any case the courts have inherent power to employ these neutralizing devices. Every case, every litigant will want to use that benefit (of postponement of reporting)— who wouldn’t?
“In that I guess a new door has opened for securing orders against the media institutions in reporting what is in the public interest. It is likely you may see lesser instances of in-trial reporting—reporting during the course of a trial, at least controversial trials for that matter.
“From a news reporting perspective—you get into the various semantics.
“The distinction that they drew in the judgement—‘prior censorship is something we are rejecting’. But postponement is something that is within the colours and is something that is definitely viable within the law. From a news reporting perspective or a public interest perspective, how different would it be (to postpone reporting or not to report it at all).
“If you were to report on the arrest of somebody, or the arraignment or the production of somebody before a magistrate, or with what deposition or what arguments in court made, and that was postponed for a reasonable period of time where is the public interest value left?
“Old news is no news.
“I couldn’t think any litigating party really wants censorship—but I think what they really want to go after is delay of reporting or postponement. ‘I have an IPO coming out, I have funding coming in, how can I delay it?’
“At the end of the day you are likely to see a moderate degree or large degree—I would say it’s not like floodgates would open, but you would see an increasing number of applications in cases being filed (to postpone reporting). Definitely you would, yes.
Subscribe to Mint Newsletters
* Enter a valid email
* Thank you for subscribing to our newsletter.
Never miss a story! Stay connected and informed with Mint.
our App Now!!