The Bombay High Court is presently hearing PILs filed registering protest over the media trial being conduct in the reporting on the death of actor Sushant Singh Rajput. The matter is being heard by a Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni.
ASG Anil Singh continues from the previous hearing - relying on the Sahara judgment.
ASG is arguing for the Union of India.

He points out from the Sahara judgment that the context and content of the offending publication has to be taken into consideration.
ASG reads another judgment of the Supreme Court of Common cause.
Read judgment here:…

ASG reads out para 7 and 10.
ASG reads out the suggestion given by the SC: Central
Government having framed Rules in the nature of Cable
Television Networks Rules could frame similar rules in exercise of the power vested with it under S.22 to formalize the complaint redressal mechanism.
ASG now refers to the Kerala HC judgment of August 2020.

Read judgment here:…
ASG also relies upon the judgments mentioned in the Kerala HC judgment.

Reads out the final observation of the court in the judgment: Taking into account the intention of the constituent assembly by incorporating Articles 19(1)(a) and 21 to the Constitution of India..
.. (contd.) it is clear that both will have to be enjoyed by
the citizens among themselves without interfering inter se with the rights guaranteed in the said provisions.

ASG then refers to the part where the court decides whether any guideline should be framed by the court.
ASG reads - making a law is the absolute
domain of the parliament and the State legislatures in terms of the provisions of the Constitution of India, and the framers of the constitution intended and envisioned a clear demarcation of exercise power by the Legislature...
ASG: (reading jugment) ...we have no hesitation to hold that a public interest litigation to frame guidelines to restrict the media on the basis of the allegations made in the writ petition cannot be entertained and no guidelines can be framed considering contentions of Pet.
ASG: recent judgment where the entire law has been discussed and the court has refused to frame guidelines, Having said that media should act responsibly.

ASG (continuing about the judgment): Court will not be influenced by any media publications
ASG moves on to other submissions based on facts.

ASG: I have placed on record an affidavit which the Union had filed in the Sudarshan TV matter, because it is very much relevant in this case as well.
ASG relies on the affidavit to point out compliance of the Union with the guidelines as mentioned in the Common Cause judgment of Supreme Court.
ASG refers to two other affidavits which set out the statutory and regulatory mechanisms have been set up, how there are internal committees in place for redressal mechanism.
ASG: Complaints which are received are sent to NBA, if NBA does not take action, then it goes to the Ministry and they take action.

ASG: Time and again, courts have held that minimum interference should be there from govt. there should be self-regulation.
ASG: NBA has their own code and guidelines.

ASG: It is not like we are not acting, we take action, we step in and take action.

Court: Only in those cases, where media channel is not member of NBA?
ASG: if he is not member, then we send it to the channel, if channel takes no action, then there is inter-ministerial committee to take action.

Court asks if there is a mechanism for surveillance of ministry or prior censorship?
Court: Or are actions taken by existing mechanisms only after complaint?

Court asks if there is any machinery to keep checking if the media channel is following the law, before the "so-called damage" is caused?
ASG tries to argue that the state is trying to comply with the court precedents and interfering to the minimum.

But Court asks why is there nothing for electronic media, when for press there is an act since 1970s.
Court: all public officers are liable to be removed if something happens. Same for private employment. People are taken to task for not behaving properly.

It starts from the President, for everyone.

For print media you have censure, something is there by the state.
Court: you do not seem to be in the mood to ruffle feathers with respect to electronic media.
ASG: For electronic media, time and again this issue has been discussed, whenever this matter goes to Apex court or High court, the courts have held that there should be self-regulation.

Court: you mention common cause judgment, look at your affidavit - what happened after Jan?
Court: what happened after January 2020?

What happened to the reputation of the persons?

The situation before the court is different than what prevailed when these precedents were passed.

There is a programme which is claimed to be reporting ongoing investigation.
Court: These judgments are from 2012-2013. Times have changed. This is the most misused freedom now, as CJI has said.
Court: You should have something for electronic media.

We are saying this out of concern. Everyone seems to have unfettered licence to say whatever they want to.
There is such hue and cry, the entire system will breakdown, if you do not do something.
Court: We cherish words of our forefathers, there is preamble which has words, there is no fraternal feeling left.

ASG: I will ask the Department to take more serious steps.

ASG invites court's attention to the SC affidavit.
ASG agrees with the court and says that we shoudl take measures.

Court: someone had pointed out to us that there was a Bill after the 200th law commission report.
There is confusion which is the report either 83rd or 200th. But what happened to that Bill?
ASG: We are also taking these issues seriously. We are working on how to regulate non-member, to bring effective mechanisms against non-members.

ASG: I will advice my department, whatever has to be done, has to be done speedily.
Court: Media will have all its rights, for the good of the public. But it should be for the public

Court: Right to speech, roght to fair trial and right to protect one's reputation, a right balance has to be struck. for these three rights.
Court: Do not forget about the reputation of the subject for the purpose of submission.

He may be free after the trial, what happens after days of hard work required to build reputation, what happens to his family and neighbours, there is a stigma.

What happens to Article 21?
Legiitmate restrain is a must else there will be absolute mayhem.

These are young person, they have their life ahead of them, see the impact of this on their life, on their family.

A minor child's friends would taunt him in school.
Court: let the investigative journalism continue, is legitimate, let them do their work, but not to such an extent.

Court: all we are saying there is no mechanism to control the electronic media.

Court: separation of powers is for a reason.
Court: So much is happening, who is going to look into it.

Court: at this point, it is left to the wisdom of the legislature and judiciary. Why is media exempt from such scrutiny? Why should citizens come to court every time? It is not good for the media as well.
Court: It is urgent situation, the ministry must look into it urgently.

ASG: Before the Apex court we have mentioned, that we are trying to work on a mechanism.

Court: That is the need of the situation.

ASG: As regards the existing framework, there is a committee.
ASG points out that there is a committee to show how the ministry has been taking steps.

Court: What is the highest punishment or penalty on a channel?

ASG: 1 lakh rupees, I think.
ASG reads out the Affidavit submitted to SC to show the committee which is being proposed to be constituted for monitoring content.
Court: Are there any instances where the ministry has taken suo motu actions against the channel due to the nature of content?

ASG is taking instructions.
ASG informs that they have taken suo motu actions by suspending licenses but not the exact number of actions.

Court asks the ASG to give the reasons for suspending the licenses so that they can know the benchmark for cancelling licenses.
ASG points out certain submissions in his Affidavit in reply to the court's question.
Court reads from Affidavit: violations of programmes and advertisement code are dealt in the following manner. (after reading) ...ultimately it is upto the Central government to take action. When have you taken action?
Court reads what the State level committee does after being pointed out by the ASG.

Court: everything goes to the Ministry.
Court: central government is the authority for satellite channels. District committee cannot take actions against national satellite TV channels, it is clearly mentioned.

Court: We don't know whteher their committees are functional at all.
Court: there has to be some enforceable code, a code of conduct.

Court: even law officers are bound by code of conduct.

Court: It cannot be that for a section of the society, there is no code of conduct just because Art. 19(1)(a).
ASG: The Government will enjoy have a stringent control over the media.

Court: has anybody challenged the Press Act in 42 years? Why do you fear?
ASG: The government does not support media trial. There has to be a proper balancing and nobody' reputation cannot be tarnished.

Court: once self-regulation has field and where is no regulating itself... when the self-regulation fails, we are in that situation.
ASG: Now the givernment is also taking into consideration these factors, and working towards creating something.

We expected media to show restraint, but they did not, so we are taking measures to come up with some mechanism.
ASG: We will look into it in a responsible manner. You leave it to us.

Court: That is the only hope we have.
Court: in which case, the media does not cross the lakshman rekha is for the legislature to lay down, why should judiciary do it?
ASG: I have responsibly stated that all mechanisms are in place, but I have also added that we are working to build a mechanism while ensuring freedoms.
Court: when legitimate boundaries are crossed then the legislature must step in.
Court: 'X' person is affected today, 'Y' person is affected tomorrow. There should be uniformity for all times to come. One channel is one direction, the other channel goes in some other direction.
ASG: I bow down Milords, I will convey to my department.

Court: A deeper thought is required. Anything else?

ASG: One more submission milord.
ASG refers to a judgment from the compilation submitted, to make the final submission.

Court: If you are making these judgments to remind us what our duty is, we are very alive to that.

We cannot direct the legislature to legislate. But we know what our duty is.
Court: We are putting ourselves in the shoes of the citizens.
ASG was reading this judgment - State of Himachal Pradesh & Others v/s Satpal Saini

Read it here:…
ASG: would your lordships want me to argue on the contempt petition?

Court: yes

ASG refers to the petition filed by "In Pursuit of Justice" by Adv. Neela Gokhale.
ASG points out the averment which he would reply to.

ASG: Nobody has challenged the vires of the section 3 of the contempt act then why prayer that the explanation must go. But that is possible only when the act is challenged.

There is no argument regarding the contempt part.
ASG: We are of the view there should be balance, there should be no media trial.

ASG: If we look at how law has developed through judgments on freedom of speech, the courts have held that there should not be intereference from the government.
ASG: But media has freedom subject to Art 19(2), this is laid down in judgments too, no doubt.

ASG: There was need for self-regulatory mechanism, so NBA was constituted.

ASG: WE feel there should still be some changes, so we are looking into it (a mechanism).
ASG: Lordship may leave it to us, whatever is possible for regulation, would be done.

ASG thanks the court for a patient hearing.

Sr Adv. Arvind Datar begins arguments on behalf of the National Broadcasting Association.
Datar: I will start with the role of NBA, what are the regulations in place? There is a restriction by programme codes, they have passed 180 orders in 6 years. Of course, your question if enough has been done will be seen.

Datar: then I proceed to Sahara judgment and Contempt.
Datar: Media is the eyes and ears of the public. It is considered a trustee, and discharges its duty.

Datar: Press has certain benefits. Free press, electronic media is the heart and soul of the democracy.

To maintain this freedom, let us give you self-regulation.
Datar: What happened in coalition government, and other governments, one can see what is the inevitable.

Datar: Self-regulation is the norm, by and large in most democracies, there is no fetter on free speech and expression.

Datar: We have 19(1)(a) subject to restrictions.
Datar: If you add restriction beyond a point where functioning of the press is problem, then that has been struck down.

Datar: NBA chairman is a former SC judge. Currently Justice AK Sikri is chairman.

Datar: This is a body capable of deciding the violation with 19(1)(a)
Datar: What is one lakh, nothing. But on instructions, I say it is also an order against the repute of the channel.

Datar: Why not something like Press Act?
Datar: It is not correct to say that media is unchecked.

Datar: I have a compilation of the actions taken and the mechanism.

Datar: Press council of India code is similar to our code. Press council is a regulatory body, but NBA can ban a channel, it has more powers.
Datar: what is a law and is there a gap with the changing nature of the society?

Datar: There is separation of powers we all know. But is there something judiciary can do keep in check?

Datar: There is enough safety and guidelines, we do not implement them.
Datar: What safeguards are we taking? I submit that just for a few channels, we should not be a ground for imposing severe restrictions on entire media.
Datar: We cannot discount the fact that media in India with investigative journalism, and sting operations have exposed many scams. In foreign jurisidctions too.

Datar: But what is the lakshman rekha is debatable and it is for the court to decide, but it is difficult to define.
Datar refers to a compilation NBA has filed in Mahesh Narayan Singh matter

Datar points out to the actions taken by NBA in the past.

Datar: This is the Ministry's not NBA.

Datar: Details of order/ warnings/ advisory for violation of programme code.
Datar: It can be seen that there are over 200 actions taken.

Datar: For instance, Alpha Punjabi - telecasting vulgar content, etc.

Court: which is the authority imposing?

Datar: Ministry of Information & Broadcasting.
Court: Who is the officer passing orders?

Datar: it looks like Director of Broadcasting, it is seen on most orders.

Datar reads out more examples.

Datar: There is a warning, run an apology for a day or two. A channel was banned for 30 days for running sting operation.
Datar: I am told there is a separate wing for all channels.

Court: Is there any instance where media trial was taken action against.

Datar: So far none, but I will check.

Court: On cursory glances, these actions are against content of bad taste, or against privacy rights.
Datar: There are total 180 orders from 2004 to 2010. There are 30 orders per year.

Court: News channels are mostly warning and advisories issued.

Datar: to come back with advertisements after being banned is a huge punishment.

Court: that is a responsibility.
Datar: With great freedom comes great responsibility.
Court: What we see is that there is regime of warnings, advisories.

Datar: banning too.

Court: yes but regime of advisory and warning!

All laugh.
Datar: in the case of Common Cause submitted by Supreme court - there was a complaint that people do not know what is a redressal mechanism against the media channels but also radio stations.

Datar: Standard advertisement were asked to be issued Datar reads one from a newspaper.
Datar: The advertisement had given out a mechanism for raising grievances.

Datar then refers to the compilation and reads out portions on which he will make submissions.
Datar: I want to argue that there is specific guideline for media briefing by police.

Datar: How does channel know about the whatsapp chats and emails? How does one channel and other does not?
Datar relies on the Delhi HC direction that media should get information only from press release by the police.

Datar: there is action being taken from time to time.

Datar: That no action is not being taken is incorrect statement.
Corut: did you receive any complaints against what is before us? and what action did you take?

Datar refers to his affidavit to point out what actions were taken.
Datar reads from the Affidavit (in the PIL filed by the police officers).
Datar reads certain complaints received against Aaj Tak, Zee News, News 25.

Court asks Datar if he can continue on Monday?

Court informs all advocates that they will finish their arguments with a side note that no one will repeat arguments.
Court points to poster in Datar's office which reads "good thoughts, good words, good deeds" and remarks if everyone follows this, the world will be a good place.

The court adjourns the matter for today and will continue hearing the matter on Monday.

Hearing ends.

• • •

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