Developments over the last few years in news reporting in India, culminating into the coverage of the Sushant Singh Rajput case, has brought out a significant issue regarding the extent and manner in which the media should be regulated, particularly, electronic and digital media, when it comes to reporting ongoing criminal investigations and trials. Now, that's a delicate issue as any step towards any form of "external regulation" (as opposed to self-regulation) is fraught with dangers of branching out into regulating other spheres of media activity as well as to give a tool to control the media, which is antithetical to the fundamental objective in a democracy; an independent and impartial media. The inquiries and coverage done by media has helped several people get justice, so any form of regulation should not become a case of "killing the messenger".
Investigative journalism, which is fair and objective, is welcome, but the problem happens when reporting on sensitive cases is done from a particular prism, and to support a particular "opinion" or "point of view". Also, public opinion and frenzy whipped up on social media and television, influences the investigating authorities as well as court proceedings. Leaks of investigation and witness statements are worrisome. Any prejudicial effect on the individual or entity in this regard, such as that which colours the mind of the investigating authorities or the courts; deters witnesses from coming out with the truth; or one which impinges on the presumption of innocence, and hampers the administration of justice, would cause serious prejudice. It is possible that judges may get influenced by public perceptions. Some may get; some may not, but the possibility cannot be ruled out, and therein lies the problem. Benjamin Cardozo, one of the greatest Judges of the American Supreme Court, referring to the "forces which enter into the conclusions of Judges" observed that "the great tides and currents which engulf the rest of men do not turn aside in their curse and pass the Judges by". Even the 200th Law Commission report acknowledges that the judges of the Supreme Court and House Lords accept that prejudicial publications may affect judges subconsciously and this can be at the stage of granting or refusing bail or at the trial.
This then severely impinges upon the rights of the accused, including under Article 21 of the Constitution. A group of 40 distinguished lawyers and media personalities, convened by the International Commission of Jurists, met in Madrid, in 1994, and while laying down guidelines for protecting freedom of expression, emphasised that the media can gather and convey information to the public and comment on the administration of justice including cases before, after or during trial, but without violating the presumption of innocence.
The question then, when things happen otherwise than desired, which is bound to be asked, is whether the existing framework of self-regulation is sufficient? Whether time has come for some form of external guidelines? While these questions are painful for the media, introspection on these lines would be in their own interest. The media survives on credibility amongst the people, and "public trust" forms the foundation of its sustenance and growth. Anything that is likely to chip away on these fundamentals should ring the alarm bells for the institution. In so far as digital media is concerned, there are even no self-regulatory bodies on the lines of the National Broadcasters Association (NBA) for electronic media, and it is largely "uncontrolled"; therefore there is an immediate need, in the least, of steps in that direction. In relation to the electronic media, the News Broadcasters Association (NBA) has laid down its code of ethics for the media to follow. As far as self-regulation is concerned, while the News Broadcasting Standards Authority (NBSA) acts as a peer based regulator, and has an array of powers available to it, but, in practice, cases of imposition of severe penalty such as suspension or revocation of license of the broadcaster, are rare. Even the fine amount is a maximum of Rs.1 lakh, which is not effective and for deliberately errant broadcasters would not matter, if broadcasting certain news or broadcasting it in a certain way effectively furthers their commercial or other objectives. A broadcaster can even press the "eject button" and altogether step out from being under the umbrella of the NBA.
One must keep in mind that the media also has a conflict of interest, between its commercial objectives, and its journalistic ethics of fair and independent reporting of news. True, any censure or fine by NBSA has its own effect on the credibility of the channel and how it is perceived, and that is what the premise for creating a self-regulatory body, but such deterrents often don't hold in front of the cut throat competition that electronic news has now become and the survival based aggressive news reporting that it fosters.
To address these anomalies, steps can be taken in several directions. Firstly, one often-advocated path is to notify the NBSA guidelines, under the Cable TV Act and Regulations, which would then bind all news broadcasters, whether or not they are members of the NBSA and also give it more teeth. Secondly, to protect reputations, tribunals can be set up to speedily dispose of defamation cases, which would act as a deterrent, as in the current scheme of things, defamation suits take years to be heard and disposed of, thereby taking away their deterrent purpose. Thirdly, the contempt jurisdiction of the courts is available, but the powers of criminal contempt under the Contempt of Courts Act 1971, to punish for interfering with the administration of justice, are limited to "events" that occur post the filing of the charge sheet or challan (On this the Act goes contrary to the earlier 1969 SC judgement in A.K. Gopalan v. Noordeen, which states that a publication made after the arrest of a person could be contempt if it was prejudicial to the suspect or the accused). Thus, there is no statutory framework which prohibits or regulates the publication of content in the media at the stage prior to the filing of the charge sheet. In a way the 1971 law has put the trust on the media to "self-regulate", and to "self-assess".
But what is to be done when this mechanism of self-assessment or regulation does not work, as desired? The courts constitutional powers of contempt, of course, may be construed in a wider sense to cover broader situations. However, the point is, that, at a more fundamental level, there is a need for "order" and of streamlining by having standardised guidelines that clear spell out the do's and dont's, instead of leaving it to individual litigations raised by individual litigants. Protection of fundamental rights in such situations, where infringement cannot necessarily be anticipated and nipped in the bud (especially in relation to digital media), may not be left to depend on whether the individuals have the resources and wherewithal to approach the court and take on the various stakeholders. In the Sahara case (2012), the Supreme Court did not interfere and frame guidelines, and it felt that it can be left to individual litigants to seek appropriate remedies such as a postponement of publication, if required, against any broadcaster. This remedy is also prevalent in English and Canadian Jurisprudence, but is not available in the American system, as the right of Freedom of Speech under the First Amendment is absolute, and there can be no restrictions of any kind, unlike in India, where there can be reasonable restrictions under Article 19 (2) (The courts in the US tend to give relief to victims of any breach "post the event" and not prior thereto). Despite this remedy being available in India, the larger question nevertheless, is whether, in today's times, when the media widely reports on matters under investigation, is the remedy of postponement of publication, as outlined in the Sahara case, or contempt of court, sufficient to govern the field?
As stated by Justice Uday Lalit while delivering the P.D. Desai Memorial Lecture, in this country we consider the rights of the press to be at such a level of eminence that we do not want to curtail them; no statute can curtail them, but that does not mean there is complete lawlessness; there should be self-regulation.
In the Sahara case the Supreme Court did not think it fit to frame any guidelines, because perhaps it was not the right time then, but it may be time now. The possibility of framing such guidelines is envisaged, and the judgement states, in this regard, that, "….under Article 141, law-making through interpretation and expansion of the meanings of open-textured expressions such as "law in relation to contempt of court" in Article 19(2), "equal protection of law", "freedom of speech and expression" and "administration of justice" is a legitimate judicial function."
Given the proliferation of news channels and digital media over the last years, the field has changed, compared to the time prevalent in 2012. Ultimately, as long as any intervention by the courts of the land, in the form of guidelines, is done keeping in mind the purity of its purpose, which is to preserve the fundamentals on which the media thrives, and to balance the conflicting interests, then that should be fine. Therefore, it may be time for the courts to step in, and after hearing all stakeholders, frame guidelines, as to reporting of cases in media, at a trial stage, or a pre-trial investigation stage. The Supreme Court, Delhi High Court, and Mumbai High Court are seized off different matters in this regard. Perhaps the Supreme Court can hear all stakeholders and frame guidelines in this regard. The advantage here is that all stakeholders would get an opportunity to voice their points of view, and apprehensions before the court, leading to a more thorough evaluation and intervention. Effective self-regulation is ideal, but if self-regulation is not able to meet the ends required, then the courts should consider stepping in, in a way that does not do damage to the media, as an institution, but at the same time serves the purpose.
Views are personal.
(The author is a practising Advocate at the Supreme Court of India)