MEDIA AND LAW
*G N Ray
Dear friends, it is indeed a privilege
to communicate with you through the medium of this National Seminar on Media
and Law. I wish to share my views on the
subject in the dual role of a former Supreme Court Judge and also practising
law for several years and as Chairman of the Press Council of India, which is
an Apex body of the Print Media. There
is need to discuss the privileges and specific rights granted by the State to
the media persons and those enjoyed by the judiciary under the
Constitution. This Seminar, I am told
will take us through the larger issues that are bothering the society; the
issue whether the media is crossing limits in commenting on celebrities and
encroaching on the privacy of public figures, blackmailing those in authority
and promoting trial by media in cases pending consideration before the various
courts of the country. I am sure,
several views will be presented over the next two days and concrete suggestions
will emerge from the august audience present here. This two-way communication
will be vital for healthy growth and fruitful result of this Seminar.
Freedom of the media is indeed an
integral part of the freedom of expression and essential requisite of a
democratic set up. The Indian
Constitution has granted this freedom by way of Fundamental Right. The media, which is obligated to respect the
rights of individual, is also obligated to work within the framework of legal
principles and statutes. These
principles/statutes have been framed by way of minimum standards and do not
intend to detract from higher standards of protection to the freedom of
expression.
The media is
the Fourth limb of a democratic system, the legislature, executive and
judiciary being the other three. While
legislature prepares the law for the society and the executive takes steps for
implementing them, the third stepping-stone is the judiciary, which has to
ensure legality of all actions and decisions.
The Fourth Estate i.e. the press has to operate within the framework of
these statutes and constitutional provision to act in public and national
interest. This is indicative of the fact
that nobody is above law. When the
Constitution of India guaranteed freedom of expression and speech to its
citizens, it ensured that the freedom was not absolute and any expression, by
way of words, speech or visual medium, did not violate any statutory provisions
enacted by legislature and executed by the executive. If the media, electronic or print, exceeded
its jurisdiction, the courts came forward to ensure that violation of the
Fundamental rights by the media does not go unchecked.
The Press
Council of India, which I represent here today as its Chairman, was born out of
the anxiety of our constitutional fathers to ensure that democracy can flourish
only where its citizens enjoy full freedom of speech and expression subject
only to reasonable restrictions. The press is rightly covered within the ambit
of Article 19 (1) (a) even without an express mention. However, once the
freedom struggle was over it was realised that a new kind of press was emerging
in the post independence era whose aims and objects were undergoing fast
change. The First Press Commission set up in 1954 examined the issue in depth
and proposed the establishment of a Press Council as a peer body by regulate
the conduct of their own brethren without any outside or governmental
interference. Similar bodies were functional in several other democracies, but
these were primarily voluntary organisations. In
The Press
Council also functions as an advisory body to the government on matters
affecting press freedom and has rendered valuable advise on several
legislations. These cover the areas of libel, invasion of privacy, right to
information, parliamentary privileges, Prevention of Terrorist Activities,
Official Secrets, and many more. Lately, the Press Council had advised the
Parliament on ‘Truth’ being accepted as a defence in contempt of court
proceedings, and the enactment incorporating these provisions in Contempt of
Court Act has recently been passed.
Similarly, the Council has drawn up a
set of norms on media reporting on court proceedings. It will be appropriate to refer to them in
detail here.
i)
Excepting where the court sits ‘in-camera’ or directs
otherwise, it is open to a newspaper to report pending judicial proceedings, in
a fair, accurate and reasonable manner.
But it shall not publish anything : -
-
which, in its direct and immediate effect, creates a
substantial risk of obstructing, impeding or prejudicing seriously the due
administration of justice; or
-
is in the nature of a running commentary or debate, or
records the paper’s own findings conjectures, reflection or comments on issues,
sub judice and which may amount to abrogation to the newspaper the functions of
the court; or
-
regarding the personal character of the accused standing
trial on a charge of committing a crime.
ii)
Newspaper shall not as a matter of caution, publish or
comment on evidence collected as a result of investigative journalism, when,
after the accused is arrested and charged, the court becomes seized of the
case: Nor should they reveal, comment upon or evaluate a confession allegedly
made by the accused.
iii)
While newspapers may, in the public interest, make
reasonable criticism of a judicial act or the judgement of a court for public
good; they shall not cast scurrilous aspersions on, or impute improper motives,
or personal bias to the judge. Nor shall
they scandalize the court or the judiciary as a whole, or make personal
allegations of lack of ability or integrity against a judge.
iv)
Newspaper shall, as a matter of caution, avoid unfair and
unwarranted criticism which, by innuendo, attributes to a judge extraneous
consideration for performing an act in due course of his/her judicial
functions, even if such criticism does not strictly amount to criminal Contempt
of Court.
b)
Reporting
news pertaining to court proceedings
Before
publishing a news item about court proceedings, it will be appropriate for the
correspondent and editor to ascertain its genuineness and, correctness and
authenticity from the records so that the concerned person can be held guilty
and accountable for furnishing incorrect facts or wrong information about the
court proceedings.
A lot remains to be done to ensure
that two of the strongest pillars of our democracy i.e. the judiciary and the
media work in tandem to promote the democratic secular principles enshrined in
our constitution.
In 1994, a group of 39 distinguished
legal experts and media representatives, convened by the International
Commission of Jurists, its Centre for the Independence of Judges and Lawyers,
and the Spanish Committee of UNICEF, met for three days in
-
to examine the relationship between the media and judicial
independence,
-
to formulate principles to help the media and the judiciary
develop a relationship that serves both freedom of the expression and the
judicial independence.
The participants came from
The following are the principles drawn
up at the meet.
The
Freedom of the media, which is an integral
part of freedom of expression, is essential in a democratic society. It is the responsibility of judges to
recognise and give effect to freedom of the media by applying a basic
presumption in their favour and by permitting only such restrictions on freedom
of the media as are authorised by the International Covenant in Civil and
Political Rights ("International Covenant") and are specified in
precise laws.
The media have an obligation to respect the
rights of individuals, protected by the International Covenant, and the
independence of the judiciary.
These principles are drafted as minimum standards and may not be used to detract from existing higher standards of protection of the freedom of expression.
10. Laws may restrict the basic principle in
relation to criminal proceedings in the interest of the administration of
justice to the extent necessary in a democratic society.
(a)
for the prevention of serious prejudice to a defendant
(b) for the prevention of serious harm to or improper pressure being placed upon a witness, a member of a jury, or a victim.
11. Where a restriction of the basic principle is
sought on the ground of national security, this should not jeopardise the right
of the parties, including the rights of the defence. The defence and the media shall have the
right, to the greatest extent possible, to know the grounds on which the
restriction is sought (subject, if necessary, to a duty of confidentiality if
the restriction is imposed) and shall have the right to contest this
restriction.
12. In civil proceedings, restrictions of the
basic principle may be imposed if authorised by law to the extent
necessary in a democratic society to prevent serious harm to the legitimate
interest of a private party.
13. No restriction shall be imposed in any arbitrary or discriminatory manner.
14. No restriction shall be imposed except
strictly to the minimum extent and for the minimum time necessary to achieve
its purpose, and no restriction shall be imposed if a more limited restriction
would be likely to achieve that purpose.
The burden of proof shall rest on the party requesting the restriction.
Strategies of
Implementation
Mr. F. S.
Nariman, the
noted jurist, had once observed, “A responsible Press is the handmaiden of
effective judicial administration. The
Press does not simply publish information about cases and trials but, subjects
the entire Justice – hierarchy (police, prosecutors, lawyers, Judges, Courts),
as well as the judicial processes, to public scrutiny. Free and robust reporting, criticism and
debate contribute to public understanding of the rule of law, and to a better
comprehension of the entire Justice – system.
It also helps improve the quality of that system by subjecting it to the
cleansing effect of exposure and public accountability.”
The need is that the courts be
criticized but there is just as great a need that courts be allowed to do their
duty fearlessly.
I would like to conclude by quoting
Mahatama Gandhi: “one of the objects of
a newspaper is to understand the popular feeling and give expression to it,
another is to arouse among the people certain desirable sentiments, and the
third is the fearlessness to expose popular defects.”
I hope this
seminar would discuss, in the above context, the recent activities of the media
like the sting operations, invasion of the privacy of individual, trial by the
media parallel to court trials and sensationalism and trivialization of news
and information. The question is not of
the deficiency of law on media, but the observance and effective implementation
of the existing laws. With the impact of globalisation, the scenario in media
reporting has undergone and is still undergoing changes faster than
anticipated. There is need for deep introspection by media person charged with
avowed orientation for “Bahujan Hitayaa
– Bahujana Sukhayaa cha”. Being watchdog of the society the media persons
cannot afford to be oblivious even for a moment of its responsibilities and
reasonable expectation of the society from them. Permit me to quote translated
version from a poem of Viswakavi Rabindra Nath Thakur:
“Remain
steadfast; Remain awake like a night candle,
In this hour
of darkness, if you fall asleep;
There who
need you help will go back disappointed
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