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SC media trial day 3: Editors’ counsel Dhavan pitches internal regulation of ‘non-yellow’ media

The Supreme Court was bluntly told on Thursday by senior counsel Rajeev Dhavan that it did not have the power to legislate and curb the press from reporting on court cases. Dhavan appeared on behalf of the Editors Guild, Foundation of Media Professionals and some individual journalists and argued that “internal mechanisms” of the media could resolve the concerns.

A constitutional bench headed by Chief Justice of India SH Kapadia asked how it could possibly balance the rights of an individual under Article 21 (right to life) with the right to freedom of speech and expression, so as to ensure that accused persons and undertrials are not condemned through a media trial.

On Wednesday the court had suggested introducing “postponement” or a “delay in reporting” till a court takes note of case or evidence is finished being recorded, before allowing publication. This suggestion was again rejected by Dhavan, who told the court that such a measure amounted to pre-censorship.

“We want to know if postponement is unconstitutional under the right to life with dignity. How do we balance Article 19(1)(a) (freedom of speech and expression), Article 19(2) (restrictions to free speech and Article 21?” asked the court.

“Your Lordships do not have the power and there is a premium attached to pre-censorship under the Constitution,” said Dhavan, arguing that the constitution did not prescribe what the court was contemplating. “This was never the intent of the framers of the constitution. After all there is a framework under Article 19.”

Under the Indian constitution, free speech can be restricted in seven situations, one of which is when there is a contempt of a court.

The court is seeking to strike a balance between the freedom of speech and expression and the right to life and dignity of an accused and the administration of justice.

“But we are on an area where there is no statute yet. If law is not there, then can you say this concept is unconstitutional? What is constitutional may not be desirable. But we have to do it. We have never asked for it. An application has come to us so we have to decide,” said the court.

Senior advocate Fali Nariman had filed an application on behalf of his client in a regulatory case, claiming that a conficential document was aired on a business channel and his client had suffered as a result. Nariman's application to the court asks the court to form guidelines for reporting on subjudice cases.

Interestingly, it was the court which prompted Nariman to file the application on 10 February when the senior lawyer walked into Kapadia's courtroom to complain against the leak. Nariman's application also records that it has been filed on “directions” from the bench.

Dhavan said the media had internal methods to deal with misreporting and “yellow journalism”.

“There is a respectable media and a yellow media. And in the respectable media they have internal mechanisms. You can impose a fine, you can ask for an apology on the front page, but you go any further, and as your Lordships put it, ‘you are going too far’,” contended Dhavan.

“You are interfering with free speech.”

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