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Seniors shoot down ideas as SC wrestles with press freedom, not Twitter, in Kapadia media watch project, day 1

Hacks still battling 30-headed SC hydra (click image for more on their relationship)
Hacks still battling 30-headed SC hydra (click image for more on their relationship)
The Supreme Court’s special constitutional court of five judges headed by Chief Justice of India (CJI) Sarosh Homa Kapadia descended into mixed messages and arguments yesterday as it sat for the first day to decide on new guidelines to regulate reporting of court cases by the media.

Justices DK Jain, SS Nijjar, Ranjana Desai and JS Khehar presided alongside Kapadia, as a battery of senior counsel including Fali Nariman, KK Venugopal, Goolam Vahanvati, Rajeev Dhawan argued.

It is understood that the mood in court was combative in the first half of the day as senior counsel, 11 of whom had complained to him about media coverage, criticised Kapadia’s proposal to frame a new law to regulate court coverage of media beyond the existing contempt of court laws.

The Financial Express reported:

“I have this grave apprehension... I don’t want the freedom of press to go,” [Kapadia] underlined his point on the first day of the court hearing, which he said should be held as an “exalted seminar” and not “litigious proceedings”.

The Hindu added:

The CJI made it clear, “We are not interested in controlling media content.” Eleven complaints of misreporting proceedings had been pending with the court. “We are interested in prevention rather than initiating contempt of court proceedings against the erring media. How to prevent before the damage is done.”

The Financial Express:

Senior advocate Fali S Nariman, suggested to the Bench that the best way would be to “pull up” the reporter for misrepresentation on a case-by-case basis, but not sit down to frame “general” guidelines which may in effect curb the freedom of press. “We cannot build a wall around ourselves,” Nariman said.


Kapadia appeared to hold a different opinion: “In a sensitive matter, if the court is of the view that public disclosure of some documents might prejudice an accused, would the court not be entitled to enforce that guideline and prevent publication till the end of the trial?” he asked.

“We are trying to balance the freedom of the press vis-a-vis the rights of an undertrial,” explained justice D.K. Jain.

Nariman filed a complaint after a proposal between his client, Sahara Group, and Securities and Exchange Board of India (Sebi) was aired on a business channel. Nariman claimed that his client had suffered “prejudice” because of the leak. On 10 February, Kapadia’s bench asked Nariman to file a complaint in writing. Other lawyers, including KK Venugopal and Harish Salve, had previously filed complaints with the court after similar directions from the same bench.

Nariman argued that the court could start contempt proceedings against errant newspapers or television channels that were misreporting or misrepresenting events from a courtroom.

The court was curious about the extent of its powers in “preventing” publication in order to protect the reputation of a person not yet convicted. “SIT (special investigation team) report, even before it comes to court, it is coming in the newspapers. People go to the press first and then file petitions,” said Kapadia.

[…] Senior lawyer Fali S Nariman told the bench that the guidelines they were contemplating would not be enforceable. Attorney general Goolam E. Vahanvati and senior counsels Rajeev Dhawan and Soli Sorabjee held similar views—that the court did not have powers under Articles 141 and 142 of the Constitution to “make law”.

Financial Express:

Senior advocate Soli Sorabjee said he believed that “mere embarrassment to the counsel or judge” is not good enough a reason to stop the media from reporting a case.

“Can we issue an injunction on reporting which affects the assets of a corporate house or a company? Look at the recent news on the CAG report... the report was yet to be submitted in Parliament. The news item may be right or wrong, but the whole economy has already suffered. We are giving an illustrative example of how a news item has affected an institution,” the Bench said.

It stressed that the right to life and dignity of an accused is as important as the freedom of speech of the media.

Attorney General GE Vahanvati, also asked to assist the court, apprised the Bench that media does have “self-regulation”. “Journalists do not operate in vacuum. They have editors. If they feel that something has gone wrong, they act. That by itself is a check,” the AG submitted.

Twitter & citizen journalism

Senior advocate Rajeev Dhawan, who represents the Editor’s Guild of India, specifically asked the court what to make of the micro-blogging service Twitter and a world where every man and woman was a journalist, which Kapadia dismissed in his response as being outside of the scope of the hearing. Financial Express:

Senior advocate Rajeev Dhawan asked the court how it intends to enforce the guidelines, if formed, in a society where “everybody is a journalist”.

Speaking for the Bench, Chief Justice Kapadia said the court was not meant as an adversarial exercise and the judiciary was not trying to “control content” in a news story, but the guidelines, if framed, were meant to prevent misreporting which affects administration of justice and the rights of the accused. “If we are misrepresented, arguments are misrepresented, can’t we do anything about it. We have 11 complaints, all from senior advocates. We are misquoted day in and day out... can’t we do anything about it? “ he asked.

The hearing continues today.

Legally India columnist Court Witness described the torrid love affair between journalists and the Supreme Court in August 2011, after the Supreme Court was looking to impose stricter controls on journalists to enter the apex court building. The court and reporters agreed on a truce in October 2011.

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