#BombayHighCourt 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.
Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni will begin hearing.
In the previous hearing, the High Court observed that in light of an unprecedented scenario, it might be required to issue guidelines to curb media trials.
Read more: barandbench.com/news/litigatio…
Read more: barandbench.com/news/litigatio…
Hearing resumes.
Sr.Adv. Aspi Chinoy begins with his rejoinder.
Chinoy: The problem with law is that if there was a robust mechanism in place, it was surprising to see channels for months on end to call people for arrest.
Chinoy is replying to the submissions made that there is regulation.
Chinoy: The problem with law is that if there was a robust mechanism in place, it was surprising to see channels for months on end to call people for arrest.
Chinoy is replying to the submissions made that there is regulation.
Chinoy: What we need to do is consider what is this so called mechanism. Has it worked? And what can be done to enhance it or improved it with directions of the court.
Chinoy: Sahara was a much mis-read judgment.
Proposal between two parties was discussed in media.
Chinoy: Sahara was a much mis-read judgment.
Proposal between two parties was discussed in media.
Chinoy: Same arguments were submitted that media should not be supervised, etc.
But the court went on to decide the question of pre-judgment. What the court said is presumption of innocence is part of Art. 21.
To question guilt of sub-judice matters, was discussed.
But the court went on to decide the question of pre-judgment. What the court said is presumption of innocence is part of Art. 21.
To question guilt of sub-judice matters, was discussed.
Chinoy: Comments on such matters affect administration of justice.
Such pre-judgment falls not under proceedings, but it falls under S.2(c)(iii) and violative of Art.21
Such pre-judgment falls not under proceedings, but it falls under S.2(c)(iii) and violative of Art.21
Chinoy refers to the Section 5 of the Cable Television Regulation Act.
He requests to read this section with Section 20(2).
Section 5 - programme code
Section 20 - Power to prohibit operation of cable television network in public interest.
He requests to read this section with Section 20(2).
Section 5 - programme code
Section 20 - Power to prohibit operation of cable television network in public interest.
Read act here: legislative.gov.in/sites/default/…
Chinoy: under the main statute, you have to follow the programme code or your transmission will be stopped.
Then we proceed to the Rules of 1994, because it sets out the programme code.
Clause 6 of the rules is important.
This is the statutory framework.
Then we proceed to the Rules of 1994, because it sets out the programme code.
Clause 6 of the rules is important.
This is the statutory framework.
Chinoy: If you do not follow these provisions then the state can stop your transmission.
Let us see the non-statutory framework - News Broadcasters Association.
Their regulations are a code of conduct of the ethical standards, which do not deal with anything we are talking on.
Let us see the non-statutory framework - News Broadcasters Association.
Their regulations are a code of conduct of the ethical standards, which do not deal with anything we are talking on.
Under the regulation the maximum fine is 1 lakh, Chinoy adds.
Chinoy: A chart was given to you to show how it work. Request you to kindly look at it.
It has two levels, if you take it sub motu then they can take action in an inter ministerial committee, else it goes to the NBSA
Chinoy: A chart was given to you to show how it work. Request you to kindly look at it.
It has two levels, if you take it sub motu then they can take action in an inter ministerial committee, else it goes to the NBSA
Chinoy: Looks at grievances of the public, there is suo motu actions and there is no explanation by the govt of the actions they have taken.
If they had acted, we wouldn’t have had to come here. But they did not see what is going on.
If they had acted, we wouldn’t have had to come here. But they did not see what is going on.
Chinoy: They are of the view that it does not amount to contempt of court.
I am just formulating it just for clarity. Because your Lordships were repeatedly told there was regulation. See the regulation, what have you done with it?
I am just formulating it just for clarity. Because your Lordships were repeatedly told there was regulation. See the regulation, what have you done with it?
Chinoy: I want to deal with the contempts of court act now.
S.2(c) deals with criminal contempt. I also initially agreed with the SC dealing with pending proceedings.
The kind of conduct we are referring to is ‘pre-judgment’. It is not in relation to proceedings.
S.2(c) deals with criminal contempt. I also initially agreed with the SC dealing with pending proceedings.
The kind of conduct we are referring to is ‘pre-judgment’. It is not in relation to proceedings.
Chinoy: It relates to justice.
So once you are out of s.2(c)(ii), this whole exercise changes.
If you fall under S.2(c)(iii) then (iii) doesn’t come into play at all.
For the purpose of this section - if you are dealing with pending proceedings.
So once you are out of s.2(c)(ii), this whole exercise changes.
If you fall under S.2(c)(iii) then (iii) doesn’t come into play at all.
For the purpose of this section - if you are dealing with pending proceedings.
Chinoy: It is not relevant when the proceedings started or not.
I am going to make it good on authority.
The SC judgment referred to is the Gopalan’s case of 1969.
Read judgment here: indiankanoon.org/doc/203322/
I am going to make it good on authority.
The SC judgment referred to is the Gopalan’s case of 1969.
Read judgment here: indiankanoon.org/doc/203322/
Chinoy: I am not suggesting your Lordship should not commenting, critical reporting. I am only saying there should be a kernel and it should be universal, that there must not be interfering in the administration of justice.
Postponement order stops reporting for a long time
Postponement order stops reporting for a long time
Chinoy: Because that will require going into the facts.
You are no judge or jury to decide who should be investigated or hounded.
In light of this there were judgments cited, but I will show you that wherever there is interstitial space, courts can take over.
You are no judge or jury to decide who should be investigated or hounded.
In light of this there were judgments cited, but I will show you that wherever there is interstitial space, courts can take over.
Chinoy: The clarification I am seeking is in the statutes which are present because they do not specifically include what has happened presently.
The NBSA provides for fine and apology after 30-40 days of complaint.
The NBSA provides for fine and apology after 30-40 days of complaint.
Chinoy: But if a campaign of 2 months is not looked into, what is the reason of the Government of India?
Chinoy: This is not doing its duty or not having power, both which requires judicial intervention.
Court: what is the mechanism to activate 2(3)?
Chinoy: This is not doing its duty or not having power, both which requires judicial intervention.
Court: what is the mechanism to activate 2(3)?
Court: which is the other window?
Chinoy: Window is the govt can act under Section 5 and 6 of the Cable Act and take action. There has to be round the clock supervision.
Court: Is there a mechanism for such supervision?
Chinoy: There are 500 channels.
What is a one lakh fine
Chinoy: Window is the govt can act under Section 5 and 6 of the Cable Act and take action. There has to be round the clock supervision.
Court: Is there a mechanism for such supervision?
Chinoy: There are 500 channels.
What is a one lakh fine
Court: you have submitted activate 2(3) and that there is round the clock supervision is present, the Govt of India must take action.
Chinoy: Stray incidents is fine, but this sustained reporting for so long with no response!
Chinoy: Stray incidents is fine, but this sustained reporting for so long with no response!
Chinoy: In putting in guidelines, your lordships are giving the exposition of the law.
Everything carries on as it is otherwise, there is no need for regulation.
Everything carries on as it is otherwise, there is no need for regulation.
Court: What is this EMMC?
Chinoy: It is their monitoring committee which does the monitoring of the electronic media. This is by the Ministry.
Now they are monitoring 500 channels.
Chinoy: It is their monitoring committee which does the monitoring of the electronic media. This is by the Ministry.
Now they are monitoring 500 channels.
Court: Your contention is there is no need considering the statutory mechanism to involve the NBA.
Chinoy: Yes because after 3 months, they get 1 lakh fine, that is it!
In a matter with obstruction to justice, character of people involved, their action was delinquent.
Chinoy: Yes because after 3 months, they get 1 lakh fine, that is it!
In a matter with obstruction to justice, character of people involved, their action was delinquent.
Chinoy: and for months they did not do anything.
Chinoy clarified the EMMC is a centre not a committee.
Chinoy clarified the EMMC is a centre not a committee.
Court: License copy was to be given to us…
Chinoy: It clearly requires to comply with the programme code and etc.
ASG Anil Singh: I am told the respondents have placed on record.
Sr. Adv. Arvind Datar submits that NBA has submitted an old copy of sample license.
Chinoy: It clearly requires to comply with the programme code and etc.
ASG Anil Singh: I am told the respondents have placed on record.
Sr. Adv. Arvind Datar submits that NBA has submitted an old copy of sample license.
Court asks Datar to explain under which provision of law the uplinking and downlinking was issued?
Datar begins explaining what is the uplinking and downlinking system.
Datar explains that license is not under Section 4 of the Telegraphs Act.
Datar begins explaining what is the uplinking and downlinking system.
Datar explains that license is not under Section 4 of the Telegraphs Act.
Datar refers to a SC judgment of 2019 to substantiate his submission.
As far as uplinking and downlinking rule, it is only under executive actions.
Cable TV rules Rule 6 mentions about such permission.
As far as uplinking and downlinking rule, it is only under executive actions.
Cable TV rules Rule 6 mentions about such permission.
Datar: The SC judgment in Cricket Association of Bengal observed that there has to be some regulation of the air waves.
The technical carriage is covered by TRAI and the content by the Ministry of Information and Broadcasting.
The license does not refer to the telegraph act.
The technical carriage is covered by TRAI and the content by the Ministry of Information and Broadcasting.
The license does not refer to the telegraph act.
Datar: Basically the gateway for channels is teleport which is the wireless telegraph act.
Datar finishes his short submission.
Chinoy continues his submissions.
Datar finishes his short submission.
Chinoy continues his submissions.
Chinoy refers to the In re: Destruction of property case already submitted with the court.
Read judgment here: indiankanoon.org/doc/169453366/
Read judgment here: indiankanoon.org/doc/169453366/
When the statutes are silent on a particular subject and the authority implementing the same has constitutional or statutory power to implement it, the court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted
Court also noted: “pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties”
Chinoy: Judgment supports laying down guidelines in support of the statute.
Court: If you see the reason to take suo motu cognisance, how do you connect with the present case?
Court: Court was concerned with destruction of public property.
Court: If you see the reason to take suo motu cognisance, how do you connect with the present case?
Court: Court was concerned with destruction of public property.
Chinoy: It is a judgment which says give directions.
There is nothing on media trials.
The second judgment is common cause judgment. It is neither here nor there. It says you have mechanism in place, but you have not taken any action.
There is nothing on media trials.
The second judgment is common cause judgment. It is neither here nor there. It says you have mechanism in place, but you have not taken any action.
Court: It says the Union must formalise the complaint redressal mechanism.
Mr. Singh has stated that steps are being taken to formalise it.
Chinoy: In the present situation there is all power in place, but no action has been taken. There is complete silence on this.
Mr. Singh has stated that steps are being taken to formalise it.
Chinoy: In the present situation there is all power in place, but no action has been taken. There is complete silence on this.
Chinoy: Why not at when there was virtual media trials, pre-judging arrests.
Seems that they did not understand that it was within their powers for some reason.
Seems that they did not understand that it was within their powers for some reason.
Court asks ASG: Have you placed on record who are members of the EMMC?
ASG says he will place on record.
Chinoy: Your Lordships intervention is required for all purposes - for exposition of law and to ensure that guidelines are followed.
ASG says he will place on record.
Chinoy: Your Lordships intervention is required for all purposes - for exposition of law and to ensure that guidelines are followed.
Chinoy: I will now refer to Sahara judgment - it will make a lot of things clear.
This judgment really starts 173 pages later.
Chinoy: The Court lays down it had been acting suo motu. This court is concerned with the questions if guidelines be laid down.
This judgment really starts 173 pages later.
Chinoy: The Court lays down it had been acting suo motu. This court is concerned with the questions if guidelines be laid down.
Chinoy: The power of courts to postpone reporting is because of S.2(c)(iii). How the power is picked is what I am showing.
The kernel does not depend on the facts of the case, it should be blanket.
The kernel does not depend on the facts of the case, it should be blanket.
Chinoy: The courts agreed that the acts leading to contempt of court also included in relation to as per Article 19(2).
Chinoy: the law of contempt should be treated as reasonable destruction to prevent administration of justice getting perverted.
Chinoy: the law of contempt should be treated as reasonable destruction to prevent administration of justice getting perverted.
Chinoy: it has been held that the courts of record have the power to punish, to postpone publicity in appropriate cases as preventive measure without disturbing content.
Excessive prejudicial publicity leading to usurpation of functions of the court should be protected.
Excessive prejudicial publicity leading to usurpation of functions of the court should be protected.
Chinoy: How can media channels destroy reputation, and show they are guilty of offence. Inform, criticise, consider, but don’t judge, that is kernel.
I am submitting that anything outside of the kernel, depends on fact to fact basis, but this kernel should be absolute.
I am submitting that anything outside of the kernel, depends on fact to fact basis, but this kernel should be absolute.
Chinoy: Under Section 5 of the Cable TV Act, code has to be followed Rule 6 precludes contempt. Either the Govt of India felt that rule 6 dealt with pending proceedings.
Statutory powers exists.
The guidelines for clarification is exposition of the term in the programme code
Statutory powers exists.
The guidelines for clarification is exposition of the term in the programme code
Chinoy: there is mis-apprehension, there should be a mandated duty cast to take pro-active measures for violation. They cannot wait for NBA to go through all channels to take action on complaint.
I am not asking your Lordships to go in an area unchartered.
I am not asking your Lordships to go in an area unchartered.
Sahara intended to expound the law. If you cannot cull out the minimal level, which is preclusive, not dependent on the facts and circumstances, then one can expound the law, Chinoy adds.
Chinoy: Govt needs to be proactive in the violation thereof.
Chinoy concludes.
Chinoy: Govt needs to be proactive in the violation thereof.
Chinoy concludes.
Court: We want clarification in your written notes. All the cases about trial by media, affecting trials in courts have been placed. Subject to correction, we have not been addressed on the adverse affect of trial by media on the course of investigation of the offence.
Court: We wish to be addressed as to whether, we have the power to lay down guidelines, whether we should say that media should report responsibly keeping in mind the facts.
The whole purpose of investigation is collecting evidence for opining whether accused should stand trial
The whole purpose of investigation is collecting evidence for opining whether accused should stand trial
Court: This power carries with it, where the accused is, and whether to arrest him. How can trial by media can affect this?
Accused: the accused reporting extensively on ongoing investigations may allow an accused to be on guard, indulge in removal of evidence.
Accused: the accused reporting extensively on ongoing investigations may allow an accused to be on guard, indulge in removal of evidence.
Court: If he is being thought to be apprehended he can escape to avoid arrest.
If he is innocent, the media report would tarnish his repute.
If media identifies the vital witness, who could be summoned for the purpose of evidence, he could be won over, he could be threatened.
If he is innocent, the media report would tarnish his repute.
If media identifies the vital witness, who could be summoned for the purpose of evidence, he could be won over, he could be threatened.
Court: or he could even be physically harmed for not giving evidence.
Court: Investigator - submissions and decisions that judges shouldn’t be influenced by media. Can you guarantee for the police officer. Media comes and says this is not the right track, he may get influenced, thereby starts hounding an innocent person.
Court: For an investigator this is bad.
Police officer is competent, not influenced, he continues to be on track instead of following track of media.
Can you malign police force, can you malign a process
Submission has been raised that this part of investigative journalism.
Police officer is competent, not influenced, he continues to be on track instead of following track of media.
Can you malign police force, can you malign a process
Submission has been raised that this part of investigative journalism.
Court: Consider whether there is any law which says, whatever the investigation agency has to be made bare before the public, whenever a proceeding is going on before the court od law, where is the obligation to disclose evidence?
Court: Court: how does post mortem come to media unless it is leaked.
So therefore, should we guidelines on this behalf.
Media says it is aiding investigation. Media is most welcome. Consider the provisions of CrPC, go to police and give information.
So therefore, should we guidelines on this behalf.
Media says it is aiding investigation. Media is most welcome. Consider the provisions of CrPC, go to police and give information.
Court: We want to limit trial by media during investigation. Would this interference amount to media trial, and should we intervene here.
Court: Let us not be blinded by precedents, we have not been shown judgments with pre-chargesheet stage.
Court: Let us not be blinded by precedents, we have not been shown judgments with pre-chargesheet stage.
Court: Come to the bare facts, let us know the boundaries of our jurisdiction. We give you one week time to come with written note on this.
ASG: Lordships want me to address, or give written note.
Court asks him to submit note this.
ASG: Lordships want me to address, or give written note.
Court asks him to submit note this.
Court: Can we bother you on this point on Friday? Show us from your written argument.
Hearing adjourns
In the next hearing all parties are directed to file written submissions before addressing the court.
Hearing will continue next week Friday, November 6.
Hearing adjourns
In the next hearing all parties are directed to file written submissions before addressing the court.
Hearing will continue next week Friday, November 6.
[Media Trial case] You are no judge or jury to decide who should be investigated or hounded: Aspi Chinoy argues in Bombay High Court
#mediatrial
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#mediatrial
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[Media Trial case] "Can you guarantee a police officer will not be influenced by media statement?", Bombay High Court asks
#MediaTrial
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#MediaTrial
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