Thread by @barandbench

#BombayHighCourt to resume hearings this afternoon in PILs filed against #MediaTrial in the wake of media coverage on matters concerning the death of actor #SushantSinghRajput

In the last hearing, Sr Adv Aspi Chinoy (for a petitioner) argued for the issuance of guidelines to be followed while reporting on criminal investigations and sub-judice matters, so that the media does not end up 'pre-judging' in the pretext of reporting.

barandbench.com/news/litigatio…

Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni has assembled.

Hearing to start shortly.

#MediaTrial
#BombayHighCourt

Court is waiting for Senior Advocate Devadatt Kamat to re-join the hearing. There was an audio interference issue earlier.

Senior Adv Arvind Datar is appearing along with Advocate Nisha Bhambani for the News Broadcaster’s Association today.

Datar recounts that Court had earlier queried over applicable media guidelines: We have put all the guidelines on record, which are being followed for the last of years.

#MediaTrial
#BombayHighCourt

Sr Adv Devadatt Kamat rejoins hearing.

Kamat points out that the State should be responsible in matters concerning media reportage, rather than outsourcing the responsibility to private bodies.

#MediaTrial
#BombayHighCourt

Kamat: The question is whether this outsourcing is permissible or whether the authorities have to be responsible to enforce what the statute provides.

#MediaTrial
#BombayHighCourt

Kamat: We have filed a compilation of relevant statutes.

Referring to the Cable TV Networks Act, Kamat: Kindly have a look at Section 5

#MediaTrial
#BombayHighCourt

Section 5 states:

"Programme code - No person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code."

Kamat: The Statute is very clear.

Section 11 deals with confiscation and other penal provisions if the programme code is not adhered to.

Please see Sections 16 (dealing with punishment for violating the Act's provisions)

#MediaTrial
#BombayHighCourt

Court: Section 11 is pertaining to cable operators?

Kamat: Yes, I bow down to your Lordships

He adds: These broadcasters are obliged to follow the statutory regime under the Cable Act as per the uplinking and downlinking guidelines.

#MediaTrial

Kamat on what the "programme code" violations would be, broadly, reads out that they would include half-truths, innuendos.

He adds that this is "what is happening for last 3-4 months, which Senior Advocate Chinoy has been at pains to point out..."

#MediaTrial

Kamat adds that programme code violations would also include contempt of Court.

#MediaTrial
#BombayHighCourt

Kamat: When a matter is pending investigation or is at the stage of trial - publishing material which tends to portray a particular outcome - your lordships have taken a consistent view, for the last 30 years, that this amounts to contempt

#MediaTrial
#BombayHighCourt

Kamat further reads that programme code violations may also include content that maligns, slanders, persons or groups and content which denigrates women.

#MediaTrial
#BombayHighCourt

Kamat: The uplink, downlink guidelines are applicable to broadcasters. The programme code has been incorporated...

Kamat refers to guidelines for uplinking of TV channels from India.

#MediaTrial
#BombayHighCourt

Court: What is the source of power?

Kamat: It will flow from the Cable TV Networks Act itself.

Kamat: The GOI is the sole repository of the airwaves. It (airwaves) is a public property which these private channels are given by licence to exploit.

#MediaTrial
#BombayHighCourt

Kamat: There is no dispute as to whether it (airwaves) will fall under the State or Centre's jurisdiction. They fall under the Centre's jurisdiction.

SC has said that it is the GOI which is responsible...

#MediaTrial
#BombayHighCourt

Adv Rajesh Inamder weighs in on further that there is a contractual relationship between private news broadcasters and the Govt when it comes to the use of airwaves and compliance with programme codes.

#MediaTrial
#BombayHighCourt

Adv Inamder: There is a specific undertaking that they (broadcasters) will abide by all the programme codes and the policy guidelines.

There is a contract. There are penalties for violations

#MediaTrial
#BombayHighCourt

Kamat agrees and sums up: This (airwaves) is a natural resource, it is a public property of UOI, so its use has to be in accordance with Government guildies. Additionally, they are bound by a contract.

#MediaTrial
#BombayHighCourt

Kamat:

1. Airwaves are public property.

2. Right to use airwaves is not a right under Article 19(1) (a), Constitution of India.

3. It can only be used by way of a contract with Govt permission, complying with applicable guidelines which are in Uplink/Downlink guidelines.

Kamat refers to how airwaves have been viewed in the case of Ministry of Information v. Cricket Association of Bengal.

Judgment can be read here:

indiankanoon.org/doc/539407/

Kamat: When complaints regarding this case (#SushantSinghRajputCase) come up, strangely instead of complying with its own mechanisms to deal with the violation of the programme code... they send complaints to these private organisations - NBA IBF ...

Court: Was there any complaint?

Kamat: Yes, milords. Kindly have a look at the first affidavit.

Kamat: At the end of the day- if there is a contract and a statutory regime which binds these broadcasters - the govt cannot outsource this...

#SSR
#MediaTrial
#BombayHighCourt

Kamat draws an analogy of if there was a complaint against the BCCI.

Kamat: The BCCI cannot say our internal mechanisms are looking at it, there cannot be any prosecution.

Kamat refers to intimations that complaints against news coverage in the #SushantSinghRajputCase have been "forwarded" to NBA etc.

Kamat: When Govt has a regime in place, where is the question of GOI abdicating its duties and asking these private, self-righteous associations?

Kamat: I am surprised at how the UOI can abdicate its own statutory regime, its own contractual obligations and say "the private self-appointed organisations will look into these acts of egregiousness.

Mr Chinoy has already shown were ex facie violations of the programme code

Kamat: It cannot be delegated. The authority should have considered those complaints under the uplinking and downlinking guidelines.

They are empowered to enquire and impose penalties for programme code violations (including suspensions and revocation of license)

#MediaTrial

Kamat adds that apart from the decision to "forward" complaints to NBA etc. being illegal, there is a practical problem.

Kamat refers to @republic 's affidavit

Kamat: They say "we are not members of the NBA, we are not obliged to follow their guidelines."

#MediaTrial
#BombayHC

Kamat: Therefore, the UOI cannot say "we will leave this field open and let the private, self-appointed keepers of righteousness look into this"

The channel says they are not bound and Govt forwards the complaint these bodies.

"Total non-application of mind": Kamat

Court asks whether there is any other regulatory body like the NBA.

The court is told that there is the News Broadcasters Federation.

#MediaTrial
#BombayHighCourt

Adv Inamdar interjects to inform the Court that NBF was formed after the NBA passed an order against the channel.

Inamder: NBA had passed an order against the channel asked them to follow certain directions. Instead of complying, they formed another association.

#MediaTrial

Inamder: So, tomorrow if some other channel has some difference of opinion with the NBA, they will form their own association!

Therefore, this task cannot be left to private bodies: Petitioners add.

Kamat adds that the Press Council of India had also clearly stated there is a #MediaTrial and advised the media against giving excessive publicity in the #SushantSinghRajputCase

Kamat adds, therefore: Prima facie, the Govt of India has material before it that there is a programme code violations.

Court queries if PCI would cover electronic media also (apart from print media)

Kamat: It is not covered

#MediaTrial
#BombayHighCourt

Court: Were there any instances of violations by print media?

Kamat: There may have been instances. My petition only deals with Electronic media.

#MediaTrial
#BombayHighCourt

Kamat: It is plainly media trial (in the #SSRcase). This violates the programme code. The logical sequitur is that the Govt must step in and take action.

#MediaTrial
#BombayHighCourt

Kamat: The second aspect is that a media trial is ex facie violative of Article 21 and amounts to an interference in the administration of justice.

#MediaTrial
#BombayHighCourt

Kamat: Therefore, it is not merely a violation of statutory guideline, but it involves infarction of rights of several actors and interference with the administration of justice.

Kamat reads 200th Law Commission report on #MediaTrial

Full report:

lawcommissionofindia.nic.in/reports/rep200…

Kamat continues reading from the Law Commission Report, including its observations on "Publications which comment or reflect upon the merits of the case"

Kamat: This is what we are concerned about.

#MediaTrial
#BombayHighCourt

Creating an atmosphere of prejudice, criticism of witnesses: Kamat continues reading.

Kamat: Whatsapp chats of accused - everything is flashed on TV!

Kamat continues reading: "... publication of interviews with witnesses" - this has been done with impunity!

#MediaTrial

Court points out that Law Commission Report only has recommendations.

Court: What is the sequitur?

Kamat: These are recommendations but this brings out the correct position on existing law as to what is a "media trial." That is the relevance.

#MediaTrial
#BombayHC

Kamat: Till a law is framed, the existing regime has to be made working...The instances which I pointed out is based on what the law is today.

#MediaTrial
#BombayHighCourt

Kamat: Even during Aarushi Trial similar reporting was going on.

He adds that the Supreme Court went on to direct the media not to report in such a manner as to interfere with the investigation or sully the reputation of parties.

#MediaTrial
#BombayHighCourt

Kamat refers to certain case law by the Supreme Court.

Kamat adds that even the Supreme Court has said that "the trial by press and media is the very antithesis of the rule of law."

#MediaTrial
#BombayHighCourt

Kamat reads another case law where the Court deprecated "trial by media when the matter is sub judice."

Manu Sharma's case is also cited (Jessica Lal murder case).

Judgment can be read here:

indiankanoon.org/doc/1515299/

#MediaTrial
#BombayHighCourt

Kamat: This whole theory of murder was propounded for 4 or 5 months on national TV...

Now since #AIIMS report rules out the murder, what happens to the months of slandering?

#SushantSingRajputDeathCase
#MediaTrial
#BombayHighCourt

Kamat continues reading case: "We would certainly caution all modes of media to extend their cooperation to ensure fair investigation, trial, defence of accused and non-interference in the administration of justice in matters sub judice."

#MediaTrial
#BombayHighCourt

Kamat refers to a case that arose over the release of the film, "Black Friday" released after the Bombay Blasts.

When the matter was pending for judgment, a film was sought to be released.

Kamat: The accused came to court and said such a film (Black Friday) will vitiate the judgment, and the court accepted that.

The case can be read here:

casemine.com/judgement/in/5…

Kamat adds that he is only pointing out the legal paradigm that "a media trial is the total antithesis of rule of law."

Kamat: Court has not only passed severe strictures but also restrained - that's my point.

#MediaTrial
#BombayHighCourt

Kamat continues reading the case. Says the issue is not whether the Court is actually influenced.

Kamat: ... (The issue is) whether the public will have an impression of guilt. That influences the process of administration of justice.

#MediaTrial
#BombayHighCourt

Kamat adds that an allied issue is the leakage of information by investigating agencies and the line of questioning and answers given being shown at primetime - whether this is also #MediaTrial

#SushantSinghRajputCase
#BombayHighCourt

Kamat: Publication of prosecution material or line of questioning by investigation agencies is also an affront to the administration of justice.

#MediaTrial
#BombayHighCourt

Kamat refers to a case where Court has deprecated the tendency of probe agencies "to inform the media, even before the completion of the investigation."

The case can be read here: indiankanoon.org/doc/62107217/

#MediaTrial
#BombayHighCourt

Kamat, as he concludes his arguments, sums up:

- The media coverage in the #SushantSinghRajput case violates programme code;
- It constitutes a Media Trial, which has been summed up by the Law Commission, based on the law which exists today ...

Kamat .... ten instances were listed for media trial in the Law Commission report. All 10 can be seen in this case

- There is leakage of information or "purported leakage" of information in because the CBI and ED say on affidavit that they do not have this information.

Kamat adds (on "purported leakage" of official info): This becomes even more serious. How are these channels getting access? This would clearly interfere with the administration of justice.

Forwarding the complaints to the private bodies was an abdication of Constitutional responsibility of the State: Kamat concludes.

#MediaTrial
#BombayHighCourt

Court quizzes ASG Anil Singh (for UOI) on action taken over the complaints.

Court notes in one affidavit an inter-ministerial committee was constituted to recommend penalties

#SushantSinghRajputDeathCase
#MediaTrial
#BombayHighCourt

Court asks: Who can impose the penalties?

Bench notes that it not clear in the Centre's affidavit who would impose the penalties.

Court: We would presume it is the Ministry to whom the recommendation is sent.

#SushantSinghRajputDeathCase
#MediaTrial
#BombayHighCourt

There is another short affidavit, which says complaints are forwarded to the NBA, Court notes further.

The bench goes on to orally observe, on the aspect of action for media trial: There are so many orders passed by SC. Nobody cares!

#MediaTrial
#BombayHighCourt

Court refers to submissions made by Kamat

Court: He referred to a particular private channel having been hauled up by NBA which said I am not going to comply (and formed another association)

Who enforces the order?

#MediaTrial
#BombayHighCourt

ASG response that there are other mechanisms.

ASG Anil Singh adds: All this is to ensure that media is not controlled by media, that media remains independent

HC: When you have a Press Council of India for print media, why don't you have a similar mechanism for electronic media

Court says it will hear further submissions at the next hearing.

Datar (for NBA): Your Lordships have gone the impression that the area is 'no man's land'. I have much to say. we have been taking action.

#SushantSinghRajputDeathCase
#MediaTrial

PILs against #MediaTrial in #BombayHighCourt filed in the wake of media coverage in the #SushantSinghRajput case to be taken up next on Wednesday, 3 pm.

Hearing for the day over.

SSR Case: Bombay HC hears PILs against Media Trials [LIVE UPDATES]

barandbench.com/news/litigatio…