#bombayhighcourt will shortly begin hearing the 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.
The matter is being heard by a Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni.
In the previous hearing, ASG Anil Singh appearing for Central government informed the Court that it is taking all measures to come up with a robust mechanism for electronic media that will also safeguard the freedom of speech.
Read here: barandbench.com/news/litigatio…
Read here: barandbench.com/news/litigatio…
Hearing begins. Sr. Adv. Arvind Datar continues his submissions on behalf of National Broadcasting Association (NBA).
He begins by refering to the orders passed by NBSA in the complaints received against the reporting on the Sushant Singh Rajput murder investigation.
He begins by refering to the orders passed by NBSA in the complaints received against the reporting on the Sushant Singh Rajput murder investigation.
Datar pointed out to the Court that the orders had directed all the concerned channels to remove the disputed content from their websites, archives, etc.
Datar refers to the Affidavit submitted by NBA which has the orders.
Datar refers to the Affidavit submitted by NBA which has the orders.
Datar reads out the order of the NBSA (order no. 73) of 2020.
Read order here: nbanewdelhi.com/assets/uploads…
Read order here: nbanewdelhi.com/assets/uploads…
Datar invites court's attention to an older affidavit which has NBA guidelines annexed to it.
Datar relies upon judgment In Re: Destruction of Public and Private Properties v. Govt. of AP (Read here: indiankanoon.org/doc/169453366/) to point out even the Court had accepted the NBA model
Datar relies upon judgment In Re: Destruction of Public and Private Properties v. Govt. of AP (Read here: indiankanoon.org/doc/169453366/) to point out even the Court had accepted the NBA model
Datar invites court's attention to the NBA guidelines for reportage - Rule 3 - Law & Order, Crime & Violence
Read guidelines here: nbanewdelhi.com/assets/uploads…
Read guidelines here: nbanewdelhi.com/assets/uploads…
Datar moves on the specific guidelines for reporting court proceedings.
Read here: nbanewdelhi.com/assets/uploads…
Read here: nbanewdelhi.com/assets/uploads…
Datar: The purpose of showing is, there are sufficient guidelines in place, we have issued advisories, warnings, we have taken action.
Datar: My next proposition is that SC has itself confirmed that self-regulation should be the norm.
Datar: My next proposition is that SC has itself confirmed that self-regulation should be the norm.
Datar: Why is media on a higher pedestal, for that I will ask your Lords to look at Sahara once again.
Court: We want to know the guidelines on how you deal with the complaints received and how do you enforce it?
Court: We want to know the guidelines on how you deal with the complaints received and how do you enforce it?
Adv. Nisha Bhambani appearing with Datar for NBA points out the News Broadcasting Standards Regulations also annexed to their affidavit. She points out Clause 8 of the regulations.
Read here: nbanewdelhi.com/assets/uploads…
Read here: nbanewdelhi.com/assets/uploads…
Datar begins with Clause 7 - Powers of the News Broadcasting Standards Authority.
Then moves to Clause 8 - Procedure for dealing with Complaints
Then moves to Clause 8 - Procedure for dealing with Complaints
Court: What happens when there is fine, and the broadcasters refuse to pay?
Bhambani points out that such non-compliance has only happened once, in all instances, the order has been obeyed.
Only Republic TV channel hasn't complied with order, they left NBA and formed NBF.
Bhambani points out that such non-compliance has only happened once, in all instances, the order has been obeyed.
Only Republic TV channel hasn't complied with order, they left NBA and formed NBF.
Court: So a member could leave NBA instead of complying, then what do you do?
Datar: Milords, most leading channels are members of the NBA and they comply with the order. It is self-regulation, it is like a gentleman's honour.
Datar: Milords, most leading channels are members of the NBA and they comply with the order. It is self-regulation, it is like a gentleman's honour.
Bhambani: All members give an undertaking to follow NBSA orders.
Datar: I have some suggestions as to what can be done for the non-members. I have recommendations for the Ministry.
Datar: I have some suggestions as to what can be done for the non-members. I have recommendations for the Ministry.
Court: In this peculiar situation where a channel is not a member and they have to be regulated, then what is to be done?
Court: When the Ministry forwards complaints to the NBA then it is a matter of concern.
Court: When the Ministry forwards complaints to the NBA then it is a matter of concern.
Court: Guidelines which will be framed have to take into consider eventualities.
It should consider situations, so that no one can go scot-free.
If a party after giving an undertaking later says, I will not follow the guidelines, orders and join some other assocations, then?
It should consider situations, so that no one can go scot-free.
If a party after giving an undertaking later says, I will not follow the guidelines, orders and join some other assocations, then?
Datar: Then Milord, the Ministry of Information and Broadcasting has to take the strictest of action against such a channel.
Court: Is there a procedure, where channels can submit a bond with their membership, so that orders can be executed?
Court: Is there a procedure, where channels can submit a bond with their membership, so that orders can be executed?
Court: When doctors are admitted to a PG course at concessional rates, they have to serve in rural areas. If they cannot fulfill that condition, then the doctors will not be given their certificate.
If they refuse the condition, then they are fined heftily.
If they refuse the condition, then they are fined heftily.
Court: continuing
Why can't you have such guidelines like that? This should be the teeth of a guidelines.
Datar: Can a channel decide to be away from guidelines? No. There are orders and guidelines.
Datar: If there are non-members, then they still come under the Ministry.
Why can't you have such guidelines like that? This should be the teeth of a guidelines.
Datar: Can a channel decide to be away from guidelines? No. There are orders and guidelines.
Datar: If there are non-members, then they still come under the Ministry.
Datar: And such orders are blackmarks. Advertisers note, consumers note. It is publicly available.
Court: This particular reporting of the death (refering to SSR's case) shows how guidelines have bee flouted.
Court: This particular reporting of the death (refering to SSR's case) shows how guidelines have bee flouted.
Datar: Milords may kindly hear my recommendations, subject to Court's approval.
Datar: And just because one channel refuses to comply with the NBSA orders and NBA guidelines, that does not mean this association is ineffective.
Datar: And just because one channel refuses to comply with the NBSA orders and NBA guidelines, that does not mean this association is ineffective.
Datar: All channels followed guidelines in the Tablighi Jamat case.
So it is not like the guidelines are not followed at all.
Datar then proceeds on to the Sahara judgment referred by ASG Anil Singh previously.
So it is not like the guidelines are not followed at all.
Datar then proceeds on to the Sahara judgment referred by ASG Anil Singh previously.
Datar: Now I am making some new propositions for your consideration.
If some channels begin media trial, and then due to such reporting the viewer makes up his mind, and the evidence may point the opposite to what was reported.
If some channels begin media trial, and then due to such reporting the viewer makes up his mind, and the evidence may point the opposite to what was reported.
Datar: My proposition is if selfregulation fails the the court must step in.
Datr: What are the statutory propositions we can rely on?
Court: A person who is being adversely affected can knock the doors of the court. That is your submission?
Datr: What are the statutory propositions we can rely on?
Court: A person who is being adversely affected can knock the doors of the court. That is your submission?
Datar: One way, or some activist, can step in. We have had instances like that.
Court: Locus would be available based on the situation.
Datar: There are two propositions...
Court: One interruption Mr. Datar.
Court: Locus would be available based on the situation.
Datar: There are two propositions...
Court: One interruption Mr. Datar.
Court: Your proposition is if there is failure of self-regulation, then the citizen should approach court, there will no legislative support, in so far as the NBA or NBF is concerned.
If non-members, then the inter-ministerial committee will step in, if not then again court.
If non-members, then the inter-ministerial committee will step in, if not then again court.
Court: Can we not make a request to the Government, that there are guidelines in place, so that those guidelines get a stamp and can be enforced?
Court: IF this self-regulation fails, why shoud the aggreived person come to court, and not to the Government?
Court: IF this self-regulation fails, why shoud the aggreived person come to court, and not to the Government?
Court: Why shouldn't the Government step in before the Court? And if you want the Court to direct the Union, then you must point out our jurisdiction to do so.
Datar: Your Lordships have jurisdiction under Art. 226 and not just 142.
Datar: Your Lordships have jurisdiction under Art. 226 and not just 142.
Datar: I am going to place two propositions.
The High Court or Civil courts have power to grant stay even before admitting cases. I am going to refer to the Case Ms. Neela Gokhale referred to during her submissions, but before that kindly note Art 19(1)(a) and 19(2).
The High Court or Civil courts have power to grant stay even before admitting cases. I am going to refer to the Case Ms. Neela Gokhale referred to during her submissions, but before that kindly note Art 19(1)(a) and 19(2).
Datar: There is not only statutory law of contempt but also common law of contempt. Art. 215 gives you power to deal with contempts beyond the contempts of court act.
Datar proceeds to read the Naresh Mirajkar judgment. Read here: main.sci.gov.in/judgment/judis…
Datar: I want to canvas that Your Lordships have additional powers under the Common laws of contempt beyond the powers given by the Contempt of Courts act.
Datar: I want to canvas that Your Lordships have additional powers under the Common laws of contempt beyond the powers given by the Contempt of Courts act.
Datar then goes back to Sahara judgmennt.
Datar: Your Lordships power under At. 215 go beyond the Contempt powers for the administration of justice.
Datar: Ms. Gokhale (Advocate for Petitioners - In pursit of justice) referred to 2(c). I would like Milords to see that.
Datar: Your Lordships power under At. 215 go beyond the Contempt powers for the administration of justice.
Datar: Ms. Gokhale (Advocate for Petitioners - In pursit of justice) referred to 2(c). I would like Milords to see that.
Datar: Please also see Section 22 of the contempts of court act.
Datar: Kindly see 2(c) (iii) for your consideration.
PLease note the words 'administration of justice', 'interferes or tends to interfere' and 'obstructs or tends to obstruct'.
Datar: Those judicial proceedings defined for the purpose of 2(c)(ii), and media trials happen,
PLease note the words 'administration of justice', 'interferes or tends to interfere' and 'obstructs or tends to obstruct'.
Datar: Those judicial proceedings defined for the purpose of 2(c)(ii), and media trials happen,
Datar: (continuing), then Milords can take action under Section 2(c)(iii) and common law of contempt.
Datar: I am saying, Milords already have ample power.
Datar: administration of justice is mentioned in 108 statutes. Many of them repealed.
Datar: I am saying, Milords already have ample power.
Datar: administration of justice is mentioned in 108 statutes. Many of them repealed.
Datar: If it is mentioned in 108 statutes, then it is not nomem juris. It should be interpreted by text and context.
Datar referring to Puttaswamy judgment where he says What is use of privacy if it cannot be protected?...
Court: In the 1952 contempt of court act, was this 2(c) mentioned?
Datar: Does milords have the commentary?
Court: In the 1952 contempt of court act, was this 2(c) mentioned?
Datar: Does milords have the commentary?
Court: Woud you go that far to interpret 2(c)(iii) to include investigation?
Court: Criminal investigation is the means to the end in a criminal trial.
Datar: IN 1989 judgment - they defined what is common law of criminal contempt.
Court: Criminal investigation is the means to the end in a criminal trial.
Datar: IN 1989 judgment - they defined what is common law of criminal contempt.
Datar: They said criminal case starts at a pre-trial stage.
Datar: SIT v. Godavari Devi Saraf, I will show this judgment post lunch.
Datar: We have to understand admiinstration of justice to give it a proper definition.
Datar: Lordships can go beyond 2(c)(iii) with Article 215
Datar: SIT v. Godavari Devi Saraf, I will show this judgment post lunch.
Datar: We have to understand admiinstration of justice to give it a proper definition.
Datar: Lordships can go beyond 2(c)(iii) with Article 215
Datar: Should I continue now or post lunch break?
Court: Yes, we will re-assemble at 2.45 pm.
Hearing ends for now, will resume at 2.45 pm.
Court: Yes, we will re-assemble at 2.45 pm.
Hearing ends for now, will resume at 2.45 pm.
Hearing resumes.
Sr. Adv. continues with his submissions on behalf of NBA.
Sr. Adv. continues with his submissions on behalf of NBA.
Datar refers to case laws on the subject of contempt.
A judgment by the Kerala HC (Jolly Joseph murder case) judgment of 15 October 2020.
Read judgment here: indiankanoon.org/doc/37539924/
A judgment by the Kerala HC (Jolly Joseph murder case) judgment of 15 October 2020.
Read judgment here: indiankanoon.org/doc/37539924/
Datar: The Jolly Joseph was a sensational case, and the court noted that the police and media has to follow some guidelines and if not, then the Court will step in.
Datar then proceeds to read Rahul v. State, 2020 SCC OnLine Del 596.
Datar then proceeds to read Rahul v. State, 2020 SCC OnLine Del 596.
Datar: If the guidelines are followed, then there will be no worrying of information being leaked. THere will only be official briefing.
Datar: There is another policy for media guidelines pending in SC.
Datar: Briefing should be done by Police, so that everyone gets same info.
Datar: There is another policy for media guidelines pending in SC.
Datar: Briefing should be done by Police, so that everyone gets same info.
Datar then refers to Naveen Jindal v. Zee TV case.
Read judgment here indiankanoon.org/doc/115501094/
Read judgment here indiankanoon.org/doc/115501094/
Court is asked to note the following line: The power of the High Court to order restrain of publication in the media would clearly encompass the stage when the criminal case against the accused is at the preliminary enquiry or investigation stage also.
Datar: The importance of this judgment is that it shows that the power of the court starts just as soon as investigation begins.
Datar then points out an English judgment.
Datar then points out an English judgment.
Datar: CJ said some judgments are of 2009, before that. I am submitting based on this judgment (English judgment) that common law evolves and adopts with time.
Datar: Just a few more submissions on statutory guidelines.
I submit that a media trial cannot escape just because a channel is not a member or escapes the Ministerial proeedings. court's powers are very wide to ensure nothign interferes with the administration of justice.
I submit that a media trial cannot escape just because a channel is not a member or escapes the Ministerial proeedings. court's powers are very wide to ensure nothign interferes with the administration of justice.
Datar: Administration of Justice is wide.
Datar: If administration of justice in any manner is not defined, then administration of justice should include criminal proceedings before the police too.
Court: THere is one judgment of SC - R. Subba Rao, and CK Dattari judgment.
Datar: If administration of justice in any manner is not defined, then administration of justice should include criminal proceedings before the police too.
Court: THere is one judgment of SC - R. Subba Rao, and CK Dattari judgment.
Daar finds the judgment and reads the relevant para which the court asks Datar to interpret for the court in light of his submissions.
Read judgment here: indiankanoon.org/doc/1896811/
Datar refers to Baradakanta Mishra vs The Registrar Of Orissa High Court to point out how the administration of justice was interpretated.
Datar: IN changing times, if tomorrow another unfortunate incident happens to a celebrity, then within 96 hours, anything can happen.
Datar: IN changing times, if tomorrow another unfortunate incident happens to a celebrity, then within 96 hours, anything can happen.
Datar: In Sudarshan matter, Del HC did not grant injunction, but by the time someone moved to SC under Art. 32, 4 episodes had aired, and then injunction was granted.
Datar: So administration of justice is interpreted as per situation.
Datar: So administration of justice is interpreted as per situation.
Datar points out the prayers in the PIL (Nilesh Navlakha) seeking guidelines from the Court, he submits that there are non-statutory guidelines present already.
Datar: Today there is statutory guideline by the name of programme code, Rule 6 specifically.
Datar: Today there is statutory guideline by the name of programme code, Rule 6 specifically.
Datar: This code is what is refrred to in the Petition too.
Datar: So there are statutory rules framed. You cannot carry a programme which is expressly prohibited in those guidelines.
Datar: So there are statutory rules framed. You cannot carry a programme which is expressly prohibited in those guidelines.
Court: referring to the Rule 6, these rules operate for the cable operator.
Datar: This applies to the channels also.
Bhambhani: These code rules have come in the downlinking and uplinking guidelines which apply to broadcasters.
Datar: They can discontinue the channel.
Datar: This applies to the channels also.
Bhambhani: These code rules have come in the downlinking and uplinking guidelines which apply to broadcasters.
Datar: They can discontinue the channel.
Court: where is the registration of broadcaster required in the Act?
Bhambhani: There is nothing in the Act, but when a broadcaster is following the procedure as the downlinking-upinking rules, they actually are registering, but there is nothing in the Act.
Bhambhani: There is nothing in the Act, but when a broadcaster is following the procedure as the downlinking-upinking rules, they actually are registering, but there is nothing in the Act.
Sr. Adv. Devdutt Kamat intervenes and points out to the Court that the broadcasters essentially submit an affidavit.
Kamat: Actually license which is granted to them is based on a form, and the form has an undertaking in which if they do not follow the norms..
Kamat: Actually license which is granted to them is based on a form, and the form has an undertaking in which if they do not follow the norms..
Kamat: (Contd.) then their channel can also be taken down.
Kamat: The legal regime which the Union has put in place is by way of contract. Broadcaster and Union have a licence agreement.
Kamat: In tender mattes, when the tendors are granted for a public resource, then they cannot say that the he won't abide because of Fundamental Right
Kamat: In tender mattes, when the tendors are granted for a public resource, then they cannot say that the he won't abide because of Fundamental Right
Kamat: The meat question of law is when a party enters into a public contract with the state, and terms impose obligations, can he then turn around and say I will continue to broadcast while trampling those obligations.
Bhambhani: A person can include broadcaster as per Section 5 of the Program Code.
So this will operate to all, boradcaster, cable operator or multi-service operator.
So this will operate to all, boradcaster, cable operator or multi-service operator.
Datar: Every broadcaster is covered by the Program Code, I don't think there is any debate in this.
Court: Where is the necessity to send complaints against channel to NBSA? OR is it an escape route for companies to contend that an action has been taken against me under a policy guideline and not law.
Datar: Policy guidelines are stringent guidelines. Ministry refers to me because policy of self -regulation continues ot be in vogue.
Datar: All court have held that NBA is an accepted model.
Datar: All court have held that NBA is an accepted model.
Court: Kamat has submitted that the govt hs abdicated its duty.
Datar: I submit that the Govt has not abdicated its duty.
Court: If provisions are present in the Cable Television Act, then why forward complaints to NBSA? Further can the Government act on these provisions?
Datar: I submit that the Govt has not abdicated its duty.
Court: If provisions are present in the Cable Television Act, then why forward complaints to NBSA? Further can the Government act on these provisions?
Datar: If it is practice of self-regulation, then the TV channels have to come together for that.
Datar: There has been a practice of self-regulation for 15-20 years by a panel.
Datar: There has been a practice of self-regulation for 15-20 years by a panel.
Datar: The present broadcasting regime - direct complaint to Ministry who can forward to us or take an action against.
The aggrieved can approach us directly and we will take an action if a member.
Or the aggrieved can approach the Court.
The aggrieved can approach us directly and we will take an action if a member.
Or the aggrieved can approach the Court.
Datar: there are serious provisions in the regime, like banning. The self-regulation should not be subject to the judicial intervention. The courts have upheld the self-regulation mechanism.
Datar: WP(c) 762 of 2020 - filed in SC - for Central Government to considering constitution of a Broadcasting Regulatory authority of India. Notice has been issued.
Read: barandbench.com/news/litigatio…
Read: barandbench.com/news/litigatio…
Datar: We want to continue the self-regulatory mechanism.
If Kamat's submission is accepted then it is not good. Self-regulatory mechanism is preferred over statutory supervision.
There is a reason SC has accepted self-regulation.
If Kamat's submission is accepted then it is not good. Self-regulatory mechanism is preferred over statutory supervision.
There is a reason SC has accepted self-regulation.
Court: As friend of the Court, answer this. A reference has been of PCI, there has never been a complaint against the PCI by the newspaper, then why the apprehension against the media.
Datar: There is no apprehension. All over the world, they want to keep media separate.
Datar: There is no apprehension. All over the world, they want to keep media separate.
Datar: WE have had scam after scam, but the Supreme Court has maintained self-regulation. What is bothering the Court is the media trial not the regulations.
Datar: THe fastest remedy is coming to tbe Court. Look at Sudarshan case, after 4 episodes, the Court stayed.
Datar: THe fastest remedy is coming to tbe Court. Look at Sudarshan case, after 4 episodes, the Court stayed.
Datar: The fastest relief is the Court's reliefs. The Courts have considered several cases in the past too.
Datar: I do not want the statutory remedy to take away my remedy with the Court. I am safer with the Court than with a statutory body.
Datar: I do not want the statutory remedy to take away my remedy with the Court. I am safer with the Court than with a statutory body.
Datar: Statutory guideline is already in place.
Datar: My submission is the to approach the Court for any interference with the administration of justice. Request is to not let any self-regulating powers be taken away.
Datar: My submission is the to approach the Court for any interference with the administration of justice. Request is to not let any self-regulating powers be taken away.
Datar: Maybe Court can direct the channels to not go outside of NBA, or Ministry, but not take away any existing powers.
Datar: This process given to us is in addition to what the Ministry can do, it is not the only remedy available.
Datar finishes his arguments.
Datar: This process given to us is in addition to what the Ministry can do, it is not the only remedy available.
Datar finishes his arguments.
Court directs ASG Anil Singh to assist the Court on the point of why is this being followed that despite of existing guidelines for the Ministry, why is the Ministry is sending to the NBSA? Has there been instances where the channels have been banned by the MInistry?
Court: Is it a loophole kept for channels to escape when they come to court that the orders under NBSA are not law under 19(2)?
Court: We want you to address us on this on Wednesday for 10 mins.
Hearing ends for today.
Hearing will continue on Wednesday at 10.30 am.
Court: We want you to address us on this on Wednesday for 10 mins.
Hearing ends for today.
Hearing will continue on Wednesday at 10.30 am.
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