Thread by @barandbench

The Bombay High Court will shortly resume hearing PILs filed registering protest over the media trial stated to have been conducted in reporting on the death of actor Sushant Singh Rajput.

Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni will begin hearing.

In the previous hearing, the Court came down heavily on news channels on their reportage in the #SSRCase observing that they appeared to have disregarded basic norms and etiquettes of journalism.

Read more:
barandbench.com/news/litigatio…

Hearing begins.

Court asks if anyone wants to submit on behalf of CBI and NCB.

Advocate Ankit Lohia for Zee News seeks court's leave to make a submission to the Court.

He points out to a European article which discusses freedom of media and self-regulation.

The article is based on a committee report based on research conducted for 4 years after the World War 2 dicussing statutory regulation versus self-regulation.

Court: We are ruled by rule of law. We accept your submission but do not subscribe to this. There will be no checks and balance left. We might as well do away with 19(2).

Media back in 1947 was unbiased.

Lohia: My submission is that the possibilty of abuse by few people can be controlled by judicial intervention, than having a statutory regulation which will cause more harm.

The checks and balances in place giving courts the power is what is better.

Court: You could have submitted the 1983 law commission report which studied the European and US model (1st amendment effect) and then gave suggestions for India.

Court: Deep study has gone into by Indian Scholars.

Court: The impression was always that the 1st amendent was sacrosanct.

But it has been diluted with time.

The most significant suggestion is what should be the content on the journalism course. Contempt of court, defamation, fundamental rights should be part of the course.

Court: We are saying there should not be extremes, there has to be a balance.

The difficult arises when people forget their lines. Do whatever is permissible within the lines. Criticise the government.

We are initiating a discussion so that the Government can take suggestions.

Court: We won't like to stop the media. There are precedents and we are bound by those precedents. But we are dealing with something that is not in precedents, hence we will have to lay down guidelines.

Lohia: I bow down, but I am only submitting that there are channes who have not crossed the line, that should be considered.

Lohia concludes.

Sr.Adv. Arvind Datar appearing for NBA seeks leave from the Court to record his protest against statements made by Nilesh Navlakha (petitioner in the PIL) making allegations against NBA.

Datar said he will make detailed submissions after everyone is finished arguing.

Advocate Alankar Kirpekar appearing for India Today begins his submissions.

He clarifies at the outset that India Today submits to the regime of NBA and he is adopting the submissions made by Datar and Sr. Adv. Siddharth Bhatnagar.

Kirpekar points out that he objects to the statements made by Advocate Malvika Trivedi (forRepublic TV) during her submissions.

He states that none of the petitions have any specific allegations against India Today.

Kirpekar: Our editor in chief, Rajat Sharma is senior journalist with accolades. We have never crossed lakshman rekha.

Kirpekar concludes his arguments.

ASG Anil Singh seeks leave from the court to make submissions for CBI.

He responds to allegations that ED, CBI and NCB are leaking information.

ASG: We have submitted an affidavit placing on record that ED< CBI and NCB have never leaked out any information. We as an organisation know our jobs.

Advocate Zeeshan Hashmi appearing for News Nation seeks leave from court to begin his submissions.

He submits that they are members of NBA and agree to them.

Hashmi informs that NBA has heard complaints in the past and none of the complainants have ever later gone to the Ministry stating that the actions was not sufficient.

Hashmi submits that there is no contempt for two reasons, because the witnesses are enlisted and charges are fraed after chargesheet and before that it is only mere speculation.

Advocate Rahul Sarda appearing for one of the petitioners seeks leave from the Court to allow Sr. Adv. Aspi Chinoy to rejoin in the next week.

Court informs that they will not be able to spare time in the next week before vacation.

Court: He can come today at 5, but it has to be today.

Advocate Sunny Punamiya seeks leave from the court to submit 3 judgments on record dealing with investigative journalism, right to fair trial and pending proceedings.

Court reprimands Punamiya for submitting new cases now.

However allow him to submit.

Punamiya submits Padmawati Devi Bhargava vs R.K. Karanjia (indiankanoon.org/doc/1920320/) and Vinubhai Haribhai Malaviya vs The State Of Gujarat (indiankanoon.org/doc/131202146/)

Punamiya concludes his rejoinder.

Sr. Adv. Devdutt Kamat seeks leave to begin his rejoinder.

Kamat invites court's attention to the uplinking and downlinking guidelines.

Court: Your contention is that the uplinking and downlinking is applicable to parties, is it?

Kamat: My submission is that there is a binding contract between the govt and the broadcaster.

Kamat: Media due to its very nature has been on the forefront on maintaining the democratic structure of the country.

No freedom is absolute.

Kamat: Your question was Milord, where is the power to issue these guidelines.

One important statute is Section 4 of the Telegraph act.

Kamat points out that the telegraph act clarifies that the airwaves are owned by the Government.

Court: Your argument is that the ministry has the power to withdraw, subject to a finding and the penalty is left to the self-regulatory body, this is in your affidavit.

Kamat: I find it quite strange that this argument has been canvassed by all broadcasters that "Oh we shoudl have self-regulation regime, we should not allow govt, t enforce programme code."

There is a binding contract between broadcatser and govt.

Kamat: There is an undertaking, how can one of them come and say, forget all that. We will go to the NBA and let them decide.

Kamat: The uplinking and downlinking guideliens, the contracts between broadcasters, how can the govt ignore that? How can they delegate it?

Kamat: Power is coupled with duty, the person who has the power, has to perform the duty.

Kamat: Uplinking Downlinking, the contracts say that if you violate any provision therein, you will be penalised.

The govt cannot let the private bodies take over for them. The procedure of these private bodies is questionable.

The governemnt has a duty they have to perform.

Kamat: One side of the coin is the duty of the Union of India to enforce the guidelines (uplinking downlinking), the other side is the duty of the broadcaster to comply with those guidelines.

He submits that the broadcasters undertake to comply.

Kaamt: The broadcaster gives an undertaking to comply with the guidelines when they want to register for airwaves. He thinks, I will earn revenue from the airwave but not comply with the guidelines.

Kamat: There is a precedent of SC which says you cannot approbate and reprobate at the same time.

Kamat: You (broadcaster) did not challenge the guideline, you undertake, you cannot disregard at your convenience.

Kamat refers to the judgment of New Bihar Biri Leaves Co. & Ors vs State Of Bihar & Ors.

Read here: indiankanoon.org/doc/178717/

Kamat: The maxim is qui approbat non reprobat, (one who approbates cannot reprobate) (reads from the judgment)

Court: Are these decisions in your compilation? Now we will have to go back to the respondents to get their response on the judgments.

Kamat: Milords I am submitting from the affidavit that the guidelines are not binding.

ASG and Datar intervene that they have never made such a statement - oral or written.

ASG: We have submitted to the court our actions which we ave taken, we have taken. We have power, hence we have taken action. What stage we take action on is mentioned in the affidavit.

Court: Under which provision do you grant license to broadcaster?

ASG: There is a provision, and there is a body, I will get all details till Kamat finishes his arguments.

Court: We can see from the Telegraph act that there is a license, there are powers to revoke those license

Bhambhani clarifies that the license to broadcasters is granted under the Cable Television REgulation Act, under a policy.

Court: The license will have that provision, hence we are requesting that the license be produced before us, just a sample.

Nisha Bhambhani appears for NBA with Sr Adv. Arvind Datar.

Court: Kamat has submitted that the guidelines come from the SEction 4 of telegraph act. IF you want to contradict then show us where is the authority for granting license.

Kamat: My next submission is self-regulation should be a substitute. Because:

Kamat: 1. Pvt. bodies do not have teeth of enforcement.
2. Ultimately these so-called self-regulators are ad-hoc bodies of representatives of various channels.
When acts complained are aggrievaous, you cannot be a judge in your own cause.

Kamat points out that Republic TV had left NBA to form a new federation NBF.

Kamat: 3. These bodies do not say they will embody the programme code, each have their own code.
If you want a universal regime, can you dilute it like that to suit different needs.

Datar: Milords I have to interrupt, Kamat is making new submissions outside the pleadings.

Kamat: I am merely responding to you.

Kamat: Another argument by the bodies - "Oh govt's regulation will lead to issue for the freedom and abuse."

Kamat: this "dooms day" argument is no excuse to avoid a regulation.

Kamat refers to Mafatlal judgment.

Kamat: The answer is not to do away with the regulation, but to put safeguards after regulation.

Kamat: Safeguards can be added. This is a constitutional court, milords have powers to direct.

What is the best check to avoid abuse of legislators? Judicial review! Milords have powers to keep the executive and legislative in check.

Milords have power under Art. 32 and 226.

Kamat: The order passed by the govt taking a channel off air can be remedied by allowing the channel to first come to the court before their channel is taken off air.

Kamat: The judgements of RK Anand, Sahara, none of these judgements take into account the contracts and licenses

Kamat: The courts did not have before them these facts.

Endorsing self-regulation was a premature decision.

Sahara judgement was rendered ina particular context, it in no way deals with the problems we have been confronted.

Kamat: Broadcatsers need to bear consequences.

Kamat: The reasonable restriction, the programme code incorporates any violation, and the broadcasters have to bear those.

Kamat: We thank your Lordships for a patient hearing on a Friday.

Court: What about the perjury remarks your client has made against the bodies?

Court: What is all that?

Kamat: I will ask my client to submit that..

Court: No need, we will take down your statement that he will not be pressing those charges.

Kamat: Yes Milord.

Court: Mr. Datar, does that take care of your problem?

Datar: Yes milord. (laughs)

Court breaks for lunch.

Hearing to resume at 2.30 pm.

Hearing resumes.

Adv. Punamiya submits that he still has to argue on those judgments he has submitted.

Court replies that they have noted already.

Advocate Rahul Sarda appearing for one of the petitioners point out that Mr. Chinoy will not be able to make submissions today

and if the court can accomodate him in the next week.

Court says that they will hear Mr. Chinoy next Thursday.

Datar asks the court to direct Mr. Chinoy to submit his written submissions before his arguments.

Datar also seeks leave of the court to give time to submit their arguments after Mr. Chinoy does.

Court grants leave to parties.

They ask all parties to email the soft copies of their submissions.

Hearing is adjourned to next week Thursday October 29 at 10.30 am.