Freedom of speech and expression ‘most abused right’ — what Bombay HC said on ‘media trial’

Hearing PILs on the role of electronic media in reporting on Sushant Singh Rajput death case, the court said ‘media trial’ during criminal investigations can lead to contempt action.

Bombay High Court | Commons

New Delhi: Asserting that the freedom of speech and expression is “the most abused right in recent times”, the Bombay High Court Monday issued guidelines to regulate media coverage of the ongoing criminal cases.

The bench comprising Chief Justice Dipankar Datta and Justice G.S. Kulkarni observed, “What resonates in our ears now is whether the right guaranteed under Article 19(1)(a) is the most abused right in recent times. To us, it does appear so.”

The judges added: “It is a reminder of what has at times been the unsavoury past of the press/media in India crossing the proverbial ‘Lakshman Rekha’.”

The court then opined that the media should avoid or regulate certain discussions touching on ongoing investigations into criminal offences. It said the media should present only those things “which are merely informative but in public interest instead of what, according to the media, the public is interested in”.

No report, it said, should harm the interests of the accused or any witness or anybody else relevant to the investigation, “with a view to satiate the thirst of stealing a march over competitors in the field of reporting”.

Issuing the guidelines, the court asserted that “dignity of an individual, even after he is dead, cannot be left to the mercy of the journalists/reporters”.

It also ruled that ‘media trial’ during criminal investigations can lead to contempt action and that this would include reports on criminal investigation even before the trial begins.

The court was hearing a batch of five public interest litigations filed last year, raising issues regarding the role of electronic media in reporting on the investigation in the case related to the unnatural death of Bollywood actor Sushant Singh Rajput.

‘Vicious campaign’

The court also referred to coverage of Times Now and Republic TV on Rajput’s death, and said “these TV channels took upon themselves the role of the investigator, the prosecutor as well as the Judge and delivered the verdict as if, during the pandemic, except they all organs of the State were in slumber”.

It said they “started a vicious campaign” and painted Rhea Chakraborty “as the villain of the piece, had the rug below the presumption of innocence removed, and received the media’s verdict that she is guilty of orchestrating the actor’s murder”.

The court opined that such reports by the channels are prima facie contemptuous, but stopped short of initiating contempt action against the two channels.

Violating Programme Code to attract contempt

Among other things, the guidelines issued by the court said when it is a case of death due to suicide, media should refrain from any debate on depicting the deceased as a person “having a weak character” or intruding in his privacy.

The court also said media houses should refrain from referring to the character of the accused or the victim, holding interviews with the victim, witnesses or any of their family members, publishing confessions made to a police officer without letting the public know about its inadmissibility under the Evidence Act, printing photographs of the accused, criticising the investigative agency “based on half-baked information without proper research”, pre-judging the guilt or innocence of the accused, recreating a crime scene, predicting the future course of action, leaking sensitive and confidential information from materials collected by the investigating agency, or indulging in any person’s character assassination.

The press, it said, should also not violate the “Programme Code”, under the Cable Television Networks (Regulation) Act 1994 and the Cable Television Networks Rules.

The court said this list is not exhaustive, while adding that any erring media house would be liable to face criminal contempt action if found violating the Programme Code, norms of journalistic standards and the Code of Ethics and Broadcasting Regulations.

The judges also said it would be mandatory for authorities to immediately act on any complaints received against TV channels for allegedly violating the Programme Code or any other provisions of the Cable TV Act.

‘Disclaimer won’t help, mute guests’

While media houses had contended that it would be difficult for them to regulate what guests appearing on their shows say, the court asserted that it would not be enough for the media house to put up a disclaimer at the end of the programme and evade liability.

It asserted that in such situations, media houses “would be well advised to inform, guide and advise the guest speakers to refrain from making public utterances which are likely to interfere with and/or obstruct administration of justice and thereby attract contempt”.

The court also highlighted the role of the anchor in such cases, saying it is for them to “avoid the programme from drifting beyond the permissible limits”.

“Muting the speaker if he flies off or shows tendency of flying off at a tangent could be one of several ways to avoid embarrassment as well as contempt,” it added.

‘Overzealous investigative journalism’

The court listed cases such as the Jessica Lal case and the Nitish Katara case, saying media’s intervention in these cases helped nab the guilty. It, however, added that “overzealous investigative journalism” in cases that are sensitive and are capable of arousing interest among the masses has led to comments/observations on the nature and the contours thereof which may qualify as instances of interference with/obstruction to “administration of justice”, calling for judicial scrutiny.”

The court asserted that the media should refrain from being biased or taking sides while reporting.

The court also referred to the guidelines issued in September 2019 by the Press Council of India on reporting on suicide cases. The NBA had also issued an advisory in August last year, on coverage of the actor’s death.

It then ruled that these guidelines should apply to electronic media as well, to guide them while reporting on suicide cases.

‘TV channels should tell investigators if they have evidence’

During the hearing, lawyers for Republic TV had submitted that their “investigative journalism has brought to light matters of grave concern and interest to the society at large”. They contended that the channel has been able to gather incriminating evidence and revealed facts that the Mumbai Police had been suppressing.

The court, however, did not agree with this, observing: “To our mind, the contention proceeds on a clear misunderstanding of the provisions of the Cr.P.C. If indeed the channel is in possession of information that could assist the investigator, it ought not to be part of a news coverage but it would be the duty of such channel to provide the information that it has to the police… to facilitate a proper investigation.”

The court also opined that the “campaign” against Mumbai Police was “ill-founded”, relying on the Supreme Court’s judgment passed in August last year, when the latter upheld the CBI probe in the case.

The court suggested that the Mumbai Police as well as other investigating agencies may consider appointing an officer who could be the link between the investigator and the media houses for holding periodic briefings in sensitive cases and providing credible information and answer queries from the journalists and reporters.

It also placed an onus on the investigating agencies from indulging in acts such as informing the media about catching a criminal before the investigation is complete.

“…such crude attempts to claim credit for imaginary investigational breakthroughs should be curbed,” the court added.