Senior counsel Shanti Bhushan submitted to Chief Justice (CJI) Kapadia’s constitutional bench yesterday, that even incorrect statements do not justify restrictions on the media, and even half-truths and misinformation should not warrant punishment for contempt regardless of concern for the reputation of courts.
The former law minister was arguing before the five judge bench considering the question of framing guidelines for media’s reportage of subjudice matters, in the case of Sahara India Real Estate Corporation Ltd & Ors V Securities and Exchange Board of India & Anr.
Bhushan was acting for one of the intervenors, after four earlier cases were clubbed in Sahara India’s hearing.
Bhushan stated that India’s republican form of government gave the censorial mandate to the people over the governing institutions and not the other way round, unlike the British form where the crown is sovereign. The media’s role arose from the duty of the people to play an important part in governance, and Article 19 in the Constitution enables the media to perform its “function”.
He submitted that the reasonable restrictions that Parliament can impose on the fundamental right contained in Article 19, envisaged only such guidelines as will direct the media to not publish anything which it knows is not true or which has been published with reckless disregard to its falsity.
He cited the Supreme Court’s (SC) decision in R Rajgopal v. State of Tamil Nadu, as adopting the United States Supreme Court principle that constitutionality prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless he proves that the statement was made with “actual malice”.
Bhushan added that there was not a single known case where injustice resulted from a wrong court decision on account of open public debate, as against a number of known instances where gross injustice has been avoided on account of a vigorous debate between the public and the media while the matter was sub judice.
“All burning issues in India are pending in one court or the other. Should the people stop talking about it? Should people be not informed about it?” Bhushan was reported by the Times of India as asking the bench yesterday.
"I beseech your lordships not to be a party to curtail press freedom which is the bedrock of democracy", he concluded.
- Download Shanti Bhushan’s written submissions of today, courtesy of advocate Kartik Seth, who is Shanti Bhushan’s junior
- Download senior counsel Rajeev Dhavan’s submissions for Editors Guild of India
- Download Attorney General of India Goolam Vahanvanti’s written submissions
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