Académique Documents
Professionnel Documents
Culture Documents
on
G.N. Ray
2.
Law Lecture by Mr. Justice G.N. Ray, Chairman, Press Council of India on Reasonableness
of restrictions on reporting on matters sub judiced on August 31, 2008 at Bhubaneswar
organised by Gora Chand Pattnaik Memorial Trust
to proceed for contempt of such Courts. Article (19) (1) (a) and 19 (2) are,
therefore to be read with Article 129 and 215 of the Constitution.
The Constitution of India has not laid down any specific provisions
for fundamental rights to be enjoyed by the media as such. The media
persons enjoy the freedom of speech and expression subject to reasonable
restrictions like any other Indian citizen. Law courts in India including the
Apex Court of the country have not failed to observe in no uncertain terms
that freedom of speech and expression enshrined in Article 19 (1) (a) is
available to media even though, the Constitution does not specifically refer to
media.
It may be appropriate to note that the Apex Court in Ministry of
Information Vs. Cricket Association reported it 1995 (2) SCC 161 indicated
what freedom of speech and expression means. It has been held that such
freedom means right to express ones convictions and opinion freely by word
of mouth, writing, picture or any other manner addressed to eyes. The Apex
Court has also held that publication of advertisements is a commercial speech
protected by Article 19 (1) (a) (Tata vs. MNTL 1995 (5) SCC 161). Similarly
right to hold telephonic conversation in privacy has been upheld by the Apex
Court in PUVL Vs. UOI 1997 (1) SCC 301.
Freedom of media being an integral part of the freedom of
expression is essential pre-requisite of a democratic set up. The media, the
mighty Fourth Estate in a democracy, operates in tandem with the other
three: legislature, executive and the judiciary within the framework of the
constitutional provisions in public and national interest. Constitution makers
have ensured that the freedom of expression to be enjoyed by the media
does not come in conflict with the independence of justice delivery system
and misuse by media against such independence of judiciary does not go
unchecked.
by the Press Council of India, the statutory regulatory body for the print
media in the country, and similar other bodies by way of minimum standards
of ethics to be observed and followed by media so that by observing the
same, media in turn enjoys higher standards of protection in the matter of
freedom of expression. It goes without saying that for this, an independent
and fair judiciary is a sine qua non.
Justice Felix Frankfurter a celebrated jurist and judge observed. A
free press is not to be preferred to an independent judiciary, nor an
independent judiciary to a free press. Neither has primacy over the
other, both are indispensable to a free society.
by quoting
5
Since judges,
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conviction
that
general
public
start
believing
that
the
crime
was
Guild of India and National Legal Services Authority prime mover being
Supreme Court Legal Services Authority of which Chairman is brother Justice
Arijit Pasayat. In the said Seminar various aspects of media functioning vis a
vis courts of law have been addressed by eminent jurists, media personalities,
Honble Judges of the Apex Court and also by the Honble the Chief Justice of
India. Later on, as a follow up measure, regional workshops were organised.
The first of such workshop was held at Cochin. Honble Chief Justices and
Judges of various High Courts in southern zone, jurists, media persons and
Honble Judges of Supreme Court participated in the workshop. The second
regional workshop has been held at Cuttack where Honble Chief Justices and
Judges of High Courts in eastern region, jurists and media persons and the
Honble the Chief Justice of India and some Honble Judges of the Supreme
Court have taken part. Needles to point out, such seminar and workshops
will go a long way in finding out the proper equation between judiciary and
media and guiding the two limbs of democracy to have proper understanding
and evolving ways and means for more effective functioning of media vis a
vis courts of law. It does not require reiteration that critical evaluation of the
equation between functioning of media and law courts will strengthen both
the institutions, the two strongest pillars of democratic set up. The subject
matter of todays topic for discussion Reasonableness of Restrictions on
Reporting Sub-judice Matters is undoubtedly very relevant in todays
scenario of media functioning deserving dispassionate approach to various
aspects of the issue.
Mr. Justice R.S. Sarkaria, a former Judge of the Apex Court and
former chairman of the Press Council of India made valuable comments on
pending proceedings published in the Guide to Journalistic Ethics.
The implications of pending proceeding in the context of Contempt
of Court, Press Council of Indias jurisdiction, and journalistic ethics were very
succinctly indicated by Justice Sarkaria pointing out that when does a matter
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become sub judice in a court of law is a question which is important not only
for the purpose of ascertaining whether the bar of Press Councils jurisdiction
under sub-section (3) of Section 14 of the Press Council Act, 1978, is
attracted, or not, but also in the context of Contempt of Courts Act.
It will be appropriate at this stage to appreciate what is meant by
the expression sub judice. This Latin expression means under a Judge. A
case in seisin of a competent court of law is treated as sub judice. The case
retains such status till the judgment in the case is delivered. Section 3 of
Contempt of Courts Act 1971 defines what is pending proceeding. It
provides:a judicial proceeding
(a)
is said to be pending
(A)
(B)
(i)
(ii)
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(b)
namely, civil contempt and criminal contempt. Civil contempt is defined under
Section 2(b) of the Act. In the discussion of todays topic, civil contempt may
not engage us. The definition of criminal contempt under Section 2(c) is wide
and the same is directly referrable to publication whether by words spoken or
written or even by signs or by visible representations which scandalises or
tends to scandalise, or lowers or tends to lower the authority of any court or
prejudices or interferes or tends to interfere with the due course of any
judicial proceeding or interferes or tends to interfere with or obstructs or
tends to obstruct the administration of justice in any other manner.
Section 2(c) seeks to protect (i) authority of the Court, (ii) due
course of judicial proceeding, and (iii) the larger issue of administration of
justice. Any publication, which scandalises or tends to interfere or interferes
or tends to obstruct or obstructs authority of the court, due course of judicial
proceeding and administration of justice would come under the cover and
sweep of criminal contempt. The definition of criminal contempt although
very wide is tempered by Section 3.
Section 3 provides that although there has been publication or
distribution of publication which interferes or tends to interfere with, or
obstructs the course of justice in connection with any civil or criminal
proceeding (whether pending or not at the time of publication), such
publication or distribution would not constitute contempt of court unless the
circumstances and to the conditions specified in the section being fulfilled.
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Is said to be pending
A.
B.
(i)
(ii)
b.
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parameter of fair criticism has held that if the criticism is likely to interfere
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Section 13(b) also provides that in any proceeding for contempt of court,
justification of truth can be a valid defence if it is satisfied that (a) it is in
public interest and (b) the request for invoking the said defence is bona fide.
Sub Section (b) has come by way of an amendment, which the Press Council
supported by giving its view in writing to Parliamentary Committee examining
the proposed amendment when such view of the Press Council was sought
for. Section 13 (b) has substantially fine tunes the import and amplitude of
Section 2(c) of the Act.
The observation made in the Contempt of Court and the
Press, published jointly by Indian Law Institute and Press Council of India
deserves consideration. The High Courts and Supreme Court have worked on
the assumption that any attempt to undermine the confidence of the people
in the administration of justice must be given priority over the need to
guaranteed freedom of expression.The Press is seen as transmitting
information about the public proceedings and judgment of courts. Anything
else which may have the effect of undermining respect for the administration
of justice falls within the reach of the law of contempt. The courts have
accorded the Press a limited censorial role within this overall perspective.
In England and Wales, Australia and Canada it is generally
considered inappropriate to publicly comment on cases sub- judice and can
even be an offence in itself, leading to contempt of court proceedings. This is
particularly true in criminal cases, where publicly discussing sub- judice cases
may constitute interference with due process.
In the United States, First Amendment concerns about stifling the
right of free speech which prevents such tight restrictions on comments subjudice. However, there are still protections for criminal defendants. There is a
body of opinion that holds that the sub-judice rule in its current form should
be revised to provide more protection for freedom of expression. Central to
this argument is the media obligation to cover issues that are in the public
interest.
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Most public matters before judges are simply in court, and not
necessarily sub-judice to the extent that voicing ones views about them
publicly would merit contempt charges. The courts should recognize the
distinction.
It is only desirable that the Supreme Court should draw a clear
distinction between matters that are simply in court, and those that are
subjudice and are likely to invite contempt charges. The leading case on the
subject (Naresh V State of Maharashtra AIR 1967 SC 1.10.11.) decided by the
Supreme Court holds that, where the ends of justice would be defeated by a
public trial, a court has an inherent jurisdiction to hold the trial in camera.
Further, the Supreme Court has held that the power to hold the trial in
camera must include the power to hold a part of the trial in camera or to
prohibit excessive publication of the proceedings held at such trial.
A number of statutes in India restrict, or empower or require the
court to restrict, admission to certain proceedings before the court or
publication of those proceedings. Time constraint does not permit to refer
and catalogue all such statutes. A few of such specific statutory prohibitions
are listed below:
(a)
(b)
Section 53 of the Indian Divorce Act, 1869, which provides that the
whole or any part of the proceedings under the Act may be heard
behind closed doors in certain circumstance. This Act, contrary to
what its title would seem to suggest does not contain the entire
Indian law of divorce, but is confined to matrimonial causes
between persons professing the Christian religion.
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(c)
(d)
(e)
(f)
(g)
(h)
The Press Council of India, over the years has given guidelines on
various issues relating to functioning of print media of the country. The print
media has an obligation to abide by the ethics of journalism formulated by
the Council and to follow the guidelines indicated by it in different spheres of
media reporting by the Press. Although, Press Council of India Act as it stands
now does not contain any provision to enforce compliance of the ethics and
guidelines formulated by the Council presumably because it was expected by
the Parliament that mandates and ethics of the Council being framed by the
peer body of the print media and high representatives of people constituting
the Council will be followed in letter and spirit. As such fond hope was belied
in view of paradigm shift in functioning of media in our country and also
elsewhere there has been felt need to amend the Act for giving more powers
to Press Council of India the view also endorsed by the Apex Court and High
Courts, for enforcing the guidelines and ethics of journalism formulated by
the Council. The Council perceived that it should not be converted to a penal
body but noting the shift in functioning of print media being dictated more by
profit motive at the cost of fair journalistic practice and various other
aberrations in its functioning, the Press Council has recommended for
amendment of the Act for incorporating few provisions which, in the opinion
of the Council will give more teeth in its adjudicatory function and may help it
to effectively regulate the print media. Such proposal is pending consideration
for being translated into action by appropriate amendment of the Act.
Unfortunately, however, electronic media has no regulatory body constituted
with its peers and other responsible personalities such as PCI. It will be only
appropriate if the said media is also effectively regulated without any loss of
time. Constitution of a media commission for in-depth study of various
aspects of functioning of both electronic and print media of the country by
such expert body for identifying the areas needed to be addressed and for
evolving proper measures and mechanism to regulate media in India in a
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more effective and pragmatic manner, is a need of the hour. Sooner such
step is taken by the Government of India better would be for all of us.
Even though there should not be any kind of pre-censorship in
media reporting even at the risk of occasional abuses of the freedom enjoyed
by the media on account of irresponsible reporting, the constitutional,
statutory and other restrictions or mandates of media ethics need to be
obeyed because such restrictions are not unreasonable but are founded on
good public policy. The media, in my view, can operate quite effectively and
in a responsible manner under the umbrella of fundamental right of freedom
of speech and expression guaranteed to it and respected and recognised by
law courts in India and people at large. A right, however fundamental it may
be, cannot be devoid of corresponding duty and obligation not to interfere
with such right of others and destabilising the functioning of other limbs of
democracy and the fabric of the Indian Society, the equilibrium of which, in
the context of multi religious, multi lingual and multi ethnic denominations, is
extremely delicately balanced. It is bound to suffer irreparable damage if
irresponsible and unbridled reporting is allowed in the name of freedom of
speech and expression. In this context, it will be worthy to remember the
comment of Justice Black in dissenting judgment in Dennis Versus US (1951)
341 US.
There comes a time when even speech loses
its constitutional immunity. Speech innocuous
one year may at another time fan such
destructive flames that it must be halted in the
interests of the safety of the Republic. When
conditions are so critical that there will be no
time
to
avoid
the
evil
that
the
speech
21
reporting for want of such basic knowledge takes place. They should take
extreme care in ensuring that there is no distortion of facts or orders made
by court in pending proceedings and fair reporting is made without any
angularity. The law courts should also ensure by devising modalities so that
relevant and undistorted fact and orders made in court cases are made
available to media for proper reporting of the case. Occasional conflict
between judiciary and media is only natural but it will be sad day if mutual
respect between the two is lost or even eroded.
It is heartening that the Apex Court has taken initiative in holding
Seminars and Workshops by involving Judges, lawyers, jurists and media
persons so that issues causing disharmony between the two vital organs are
properly identified and addressed in order to eliminate areas of conflict in the
functioning of media vis a vis court. The topic selected for todays law lecture
only points out the genuine concern of the members of legal fraternity, the
priests in the temple of justice, to ensure that proper equation between the
judiciary and media is maintained and not destabilised. I sincerely thank the
organisers of todays lecture to give me an opportunity to share my views on
a topic which is so close to my heart.
Namaskar
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