Case BriefsHigh Courts

Bombay High Court: G.S. Patel, J., held that the reporter or any other commentator should not deliver for public consumption a view on the quality of evidence before judgment is pronounced. Only the Court can do that and that is firmly and exclusively the prerogative of the Court.

High Court noted that the 2nd respondent had gone beyond what was legitimately permissible in its reportage of a part of the cross-examination in the present matter.

Further, the Court stated that, in proceedings, in an Open Court System fair reporting cannot be restrained, except perhaps in the most extraordinary circumstances, or where there are valid issues of privacy and security.

“…with modern communications technology, the nature of reporting — often from the well of the Court itself — has radically changed: we often now see updates going out every few minutes on digital media.”

Expressing more on the said matter, Bench stated that there is a limit to what a news report can say and do.

“…fair reporting of court proceedings does not extend to comments on the quality of evidence or arguments before a Court before judgment is delivered. Assessing those — finding them good or bad —is no part of a reporter’s job. It is the work of a Court and only a Court.”

Elaborating the above, High Court remarked that Judges and lawyers are trained in the matter of appreciation of the entire body of evidence in a trial. It is often described as an art. A reporter or commentator, whether a journalist, columnist or a lay person, is certainly entitled to critically examine the resultant judgment. He or she is perfectly at liberty to critique or criticize that judgment, in terms that may even be fierce, harsh and unsparing.

What assessment can reporter do?

High Court added that simply noting a particular question and answer might also be acceptable, or at least not objectionable. But the line is crossed when such reproduction is accompanied by what is effectively a judgment on merits, a statement that purports to assess the evidentiary value and weight of the cross-examination in a matter yet pending before Court; for instance, by suggesting that some part of the cross-examination was repetitive or ineffective or futile. That is an assessment that no Court reporter can do.

An editorialising of yet-to-adjudged evidence, when communicated publicly, directly affects the decision-making process and, more importantly, clouds the perception of necessary neutrality in the decision-making process.

“…a fleeting impression by a journalist of the value of evidence is entirely beyond his or her legitimate scope. Such a journalistic pronouncement becomes unacceptable when it is conveyed to the reading audience or public as something already decided, or about which no other view is possible.”

Stating that the understanding of the process of appreciation of evidence, with which lawyers and judges are familiar not to be obvious to others who watch or follow a trial, Court held that the Udaipur Times was an advertent error.

“…the press and courts each have their roles to play. Each must respect the other’s duties and responsibilities, always careful not to cross the dividing lines. If courts should not gag or silence the press, then, equally, the press must be reasonably circumspect about entering a territory that is exclusively the preserve of a court.”

Dr Saraf assured the Court that the above has been explained to the staff concerned at the Udaipur Times and stated that no repetition of such would be committed.[Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2021 SCC OnLine Bom 1579, decided on 27-07-2021]


Advocates before the Court:

Mr Anand Desai, with Mr Chirag Mody, Mr Samit Shukla, Mr Nausher Kohli, Ms Saloni Shah & Ms Shivani Khanwilkar, i/b DSK Legal, for the Plaintiff in Suit and for Respondent No. 1 in IA/1152/2021 in S/337/2014.

Mr Iqbal Chagla, Senior Counsel, with Mr Fredun DeVitre, Senior Counsel, Mr Pankaj Savant, Senior Counsel & Mr Murtaza Kachwalla, i/b Argus Partners for the Applicant/Original Defendant.

Dr Birendra Saraf, Senior Advocate, with Dipesh Siroya, i/b Dipesh Siroya, for Respondent 2.

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Sabina and Manoj Kumar Vyas, JJ., dismissed a petition which was filed by way of public interest litigation praying to,

  • issue a writ order or direction in nature thereof thereby call for the entire record of the case and may kindly direct the respondents authorities to declared unapproved journalist as front line health workers and grant packages them benefit of Insurance Scheme and included them scheme of exgrosiya which provided Rs 50,00,000/- aid to dependent of deceased who died during service in prevention of Corona Virus and made a covid centre in press club and given preference for vaccination to journalist and their family members in the larger interest of justice.
  • issue any other order or direction which this Hon’ble Court may deem fit, just and proper in the facts and circumstances of the case may also passed in favour of petitioner.
  • Cost of the writ petition be also awarded in favour of the petition.

The Court while dismissing the petition held that there was no need for interference and that the present case was strictly a policy decision.[Vivek Singh Jadon v. State of Rajasthan, 2021 SCC OnLine Raj 509, decided on 28-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Appearance:

For Petitioner: Mr Samarth Sharma

Case BriefsHigh Courts

Orissa High Court: S. Pujahari, J., dismissed the application under Section 438 of Criminal Procedure Code, 1973 filed by the petitioner being devoid of merits.

A case was registered pursuant to an order of commitment passed in R.C. Case No.31(S) of 2014-Kol. under Section 44(1)(c) of the PMLA Act, by the Special C.J.M. (CBI), Bhubaneswar. Being apprehensive of his arrest by the C.B.I. in connection with PMLA Case No.148 of 2019 on the file of the Special Court under the Prevention of Money-Laundering Act, 2002 (hereinafter referred to as the “PMLA Act”), Bhubaneswar, and present application under Section 438 of CrPC was filed seeking pre-arrest bail.

Counsel for the petitioner Mr Debasish Panda, submitted that the entire transaction of the petitioner with Saradha Group was nothing but a business dealing having no element of criminality, and the C.B.I. is already in possession of all the connected documents of such business transaction. It was further contended that on earlier occasions, the petitioner had shown his willingness and readiness to cooperate with the investigation, and in future also he will make himself available before the C.B.I. for the purpose of further interrogation, if necessary, and there is no necessity of his being taken to custody.

Counsel for the CBI Mr Sarthak Nayak submitted that Since the Supreme Court of India has specifically directed the C.B.I. to investigate larger conspiracy, money trail, roles of regulators etc., the arrest and custodial interrogation of the petitioner by the C.B.I. in the present case involving Saradha Group is essential, inasmuch as it is apparent on record that the petitioner by misusing his media company and adopting an arm-twisting technique against some selective companies dealing with ponzi schemes, extracted crores of rupee which belonged to gullible depositors.

The Court relied on P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 165 wherein it was observed that that grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the Accused and in collecting the useful information and also the materials which might have been concealed and success in such interrogation would elude if the Accused knows that he is protected by the order of the Court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.

The Court further observed that in this case the petitioner has been indicted in an economic offence which is of serious in nature and the larger angle of conspiracy with regard to patronage of political and other persons in growth of such ponzi firms are required to be unearthed.

The Court held “I am of the view that no effective investigation can be made by the police by enlarging the petitioner on pre-arrest bail, even if he is ready and willing to cooperate with the investigation by remaining on pre-arrest bail.”

[Suman Chattopadhyay v. Republic of India, 2021 SCC OnLine Ori 676, decided on 17-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Hot Off The PressNews

Editors Guild of India statement on ED raids at the office of NewsClick.in, and residences of its senior journalists and officials

The Editors Guild of India is deeply concerned about the raids by the Enforcement Directorate (ED), at the office of the independent news website NewsClick.in, the residences of its editor-in-chief and promoter, the editor, as well as some of its senior management officials.

In the recent past the website has been at the frontline of reporting on the farmers agitation, the anti-CAA protests, and has been critical of various government policies and of a few powerful corporates houses.

EGI is concerned that raids by government agencies are not used as coercive measures to suppress free and independent journalism. The Guild demands that care be taken to not undermine the news operations of NewsClick and that it’s journalists and stakeholders are not harassed under the garb of such measures.


Editors Guild of India

[Press Statement dt. 10-02-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., while addressing the several questions on reporting by electronic media, expressed that:

“The duty of the press/media to have news items printed/telecast based on true and correct version relating to incidents worth reporting accurately and without any distortion/embellishment as well as without taking sides, cannot, therefore, be overemphasized.”

Genesis of the Several Public Interest Litigations

In the instant matter, several PIL’s cropped from the unnatural death of the actor Sushant Singh Rajput on June 14, 2020.

Insensitive and Disparaging Comments by News Channels

On June 20, 2020, a complaint was lodged against one of the prominent news channels before the Secretary, Ministry of Information and Broadcasting seeking action for insensitive and disparaging comments against the Indian Army and the coverage of the death of the actor, stated to be in defiance with the Programme Code.

Further, it was said that no action against the media channel was taken in regard to the complaint made.

Media Trials

Since the time of death of the actor, several prominent media channels have been literally conducting ‘media trials’ and ‘parallel investigation’ by conducting and broadcasting debates, rendering opinions, exposing the material witnesses, examining and cross-examining the witnesses, chasing the officials of CBI who were investigating the case.

Petitioners added that the above-stated telecast and broadcast are available in the public domain.

Sensationalization and Scandalize the death of the Actor

It is said that the prominent news channels in their attempt to sensationalize the issues have gone as far as displaying the CDR records which is a vital piece of evidence, thereby resulting in the several threat calls and messages sent to the alleged accused.

The petitioners say that to scandalize and sensationalize the death of the actor, irresponsible reporting to implicate one of the prominent ministers of the State of Maharashtra and have been making derogatory, false and distasteful remarks against several ministers.

Further, it was also pointed that the news anchors and reporters were examining and cross-examining all the proposed witnesses exposing the probable evidence to the public which could be examined only by the investigating agency or by the competent courts during the course of the trial.

Press Council of India

PCI had also issued a statement wherein it was stated that the coverage of the alleged suicide of the actor by many media outlets was in contravention of the norms of journalistic conduct.

Undermining the concept of free and fair trial

Petitioners submitted that the freedom of the media, especially of the TV channels, cannot be allowed to super stretch to a point where, by outpouring reprobate information, begins to clog and cloud the pellucid comprehension of ‘facts/news’ in the people’s minds and impinges upon free and fair investigation.

Fundamental Question

Whether the media under the garb of reporting news, can serve their own opinions as facts/news?

Petitioner observed that media works to create or induce opinions by narrating and reporting opinionated and tailored facts as news, which is beyond the scope, power and privilege accorded to the proverbial fourth pillar and a blatant abuse and misuse thereof.

Petitioners assert that media is plagued with the affliction of disproportionate reporting, which may be seen from the undue coverage given to inconsequential and mindless matters, unrelated to the greater good of the people of the country, as opposed to issues of national and international importance which the people are grappling with such as the COVID 19 crisis, mass joblessness, economic downfall, starvation, medical and healthcare structural problems, farmers issues, domestic violence, etc.

Adding to the above, petitioners stated that it is not the media’s domain to prove someone guilty a definitely no question of calling out someone guilty or innocent until the investigation and trial is complete.

Petitioners referred to the Supreme Court decision in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1, wherein the Supreme Court has commented on the danger of serious risk of prejudice if the media exercises unrestricted and unregulated freedom, and stated that people at the helm of affairs should ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever.

Petitioners refer to the decision of the Supreme Court in R.K. Anand v. Delhi High Court, reported in (2009) 8 SCC 106, where the Supreme Court observed that it would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers of the court.

Observation

Contention that media houses have crossed the ‘Lakshman Rekha’

Bench opined that the petitions filed aimed at redressal of genuine public harm or public injury and involve substantial public interest.

Hence, the Court overruled the objections of the media houses to the maintainability of the writ petitions.

Important Legal Questions before the Court

  1. What does the expression “administration of justice in any other manner” in Section 2(c)(iii) of the Contempt of Courts Act, 1971 connote, and whether trial by media/pre-judgment while a police investigation is in progress could lead to interference with/obstruction to “administration of justice”, thereby constituting criminal contempt under the aforesaid section?
  2. Is it necessary to construe “judicial proceedings” in Section 3 of the Contempt of Courts Act, 1971 to have commenced with the registration of an FIR? Also, is it at all necessary to read Section 3 of the Contempt of Courts Act, 1971 in the manner the petitioner in PIL (St.) 2339 of 2020 urges us to read?
  3. Whether media trial in respect of matters pending investigation of a criminal complaint, fall within the restrictions as contained in the Programme Code as postulated under Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the rules framed thereunder?
  4. Whether the regime of self-regulation adopted by the news channels would have any sanctity within the statutory framework?
  5. While emphasizing on the need to strike the right balance between freedom of speech and expression and fair investigation/right to fair trial, to what extent, if at all, should press/media reporting be regulated if the same interferes with or tends to interfere with, or obstructs or tends to obstruct, “administration of justice”?

Further, the Court also proposes to address the following incidental questions:

  1. Are the guidelines for reporting cases of deaths by suicide sufficient? If insufficient, should further guidelines be laid down for reporting cases of deaths by suicide?
  2. Has the media coverage complained of in these writ petitions interfered with/obstructed and/or tends to interfere with/obstruct “administration of justice”, and thus amounts to criminal contempt within the meaning of section 2(c)(iii) of the Contempt of Courts Act, 1971? and whether criticism of Mumbai Police by the electronic media is fair?
  3. Is the accusation that the Ministry of Information and Broadcasting, Government of India, being the Nodal Ministry, has abdicated its statutory functions [under the Cable Television Networks (Regulation) Act and the rules framed thereunder read with the Policy Guidelines of 2011 and the license executed with the broadcaster] of deciding complaints received in respect of offending programmes, by forwarding the same to private bodies like the News Broadcasting Authority (NBA) and the News Broadcasters Federation (NBF), justified?
  4. Should an order be made, on facts and in the circumstances, postponing reporting of events by the media in respect of investigation by the CBI into the FIR registered by it pursuant to the complaint of the actor’s father? Also, is it necessary for the Court to suggest measures for regulating media coverage of incidents such as the one under consideration to address the concerns expressed in these writ petitions?

Analysis

  • Investigative Journalism

The controversy in the instant matter raises questions of contemporary importance touching upon the right of the press/media to express views freely, the right of the deceased to be treated with respect and dignity after death, the need to ensure investigation of the crime to proceed on the right track without being unduly prejudiced by media reports based on “investigative journalism”, and the right of the accused to a free and fair trial as well as the right to not be prejudged by the media.

“Right guaranteed by Article 19(1)(a) of the Constitution is not merely a right of speech and expression but a right to freedom of speech and expression.”

 In Supreme Court’s decision of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 the need to protect the ‘Freedom of Press’ was highlighted, which is the heart of social and political intercourse.

Further, the Court referred to in LIC v. Manubhai D. Shah (Prof.), (1992) 3 SCC 637, wherein the flavour of the right to freedom of free speech and expression was brought out by the Supreme Court.

 “What resonates in our ears now is whether the right guaranteed under Article 19(1)(a) is the most abused right in recent times?”

 To the above stated, Court answered in negative and expressed that “it is a reminder of what has at times been the unsavoury past of the press/media in India crossing the proverbial ‘Lakshman Rekha’.”

Rule of Law

There can be no two opinions that in a society governed by the rule of law, no price is too high to maintain the purity of administration of justice; and, as a Constitutional court, we have the power, nay the duty, to protect not only the Fundamental Rights of the citizens as well as the press/media in the judicious exercise of our jurisdiction under Article 226 of the Constitution but also to secure that the stream of administration of justice flows unsullied and unpolluted, uninfluenced by extraneous considerations.

 Supreme Court’s decision in Harijai Singh, In Re., (1996) 6 SCC 466 held that:

“10. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving unrestricted freedom of speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists.”

PCI Guidelines

Electronic media should also be guided by the contents of the guidelines of the PCI on reporting of death cases by suicide for two reasons: first, the said guidelines have a statutory flavour and similar such binding guidelines on reporting cases of death by suicide are non-existent for the electronic media; and secondly, the absence of such guidelines could lead to the dignity of the dead being breached with impunity.

The death of the actor was followed by such crude, indecent and distasteful news reporting by a few of the TV channels that we do not consider it worthy of being referred to here and be a part of this judgment.

Court’s Ruling

“No report/discussion/debate/ interview should be presented by the press/media which could harm the interests of the accused being investigated or a witness in the case or any such person who may be relevant for any investigation, with a view to satiate the thirst of stealing a march over competitors in the field of reporting.”

High Court opined that the press/media ought to avoid/regulate certain reports/discussions/debates/interviews in respect of and/or touching upon any on-going inquiry/investigation into a criminal offence.

Hence, Bench directed the press/ media to exercise restraint and refrain from printing/displaying any news item and/or initiating any discussion/debate/interview of nature, as indicated hereunder:

  1. In relation to death by suicide, depicting the deceased as one having a weak character or intruding in any manner on the privacy of the deceased;
  2. That causes prejudice to an ongoing inquiry/investigation by:

(i)  Referring to the character of the accused/victim and creating an atmosphere of prejudice for both;

(ii)  Holding interviews with the victim, the witnesses and/or any of their family members and displaying it on screen;

(iii)  Analyzing versions of witnesses, whose evidence could be vital at the stage of trial;

(iv)  Publishing a confession allegedly made to a police officer by an accused and trying to make the public believe that the same is a piece of evidence which is admissible before a Court and there is no reason for the Court not to act upon it, without letting the public know the nitty-gritty of the Evidence Act, 1872;

(v)  Printing photographs of an accused and thereby facilitating his identification;

(vi)  Criticizing the investigative agency based on half-baked information without proper research;

(vii)  Pronouncing on the merits of the case, including pre-judging the guilt or innocence qua an accused or an individual not yet wanted in a case, as the case may be;

(viii)  Recreating/reconstructing a crime scene and depicting how the accused committed the crime;

(ix)  Predicting the proposed/future course of action including steps that ought to be taken in a particular direction to complete the investigation; and

(x)  Leaking sensitive and confidential information from materials collected by the investigating agency;

  1. Acting in any manner so as to violate the provisions of the Programme Code as prescribed under section 5 of the CTVN Act read with rule 6 of the CTVN Rules and thereby inviting contempt of court; and
  2. Indulging in character assassination of any individual and thereby mar his reputation.

Role of Media Houses

Bench advised media houses to inform, guide and advise the guest speakers to refrain from making public utterances which are likely to interfere with and/or obstruct the administration of justice and thereby attract contempt.

The role of the anchor, in such cases, is also important. It is for him/her to apply his/her mind and avoid the programme from drifting beyond the permissible limits. Muting the speaker if he flies off or shows the tendency of flying off at a tangent could be one of several ways to avoid embarrassment as well as contempt.

Investigative Agencies

Court also reminded the investigative agencies that they are entitled to maintain secrecy in the course of the investigation and are under no obligation to divulge materials thus collected.

Further, the Court added that:

If indeed there is leakage or disclosure of materials, which has the potential of stifling a proper investigation, it could pave the way for such information being laid before the competent court having powers to punish for cri6minal contempt under Section 2(c) of the CoC Act and in an appropriate case, for being dealt with in accordance with law.

Appointment of an Officer as a Link between the Investigator and Media Houses

Agreeing with Mr Datar’s suggestion Court observed that:

Mumbai Police, as well as the other investigating agencies, may consider the desirability of appointing an officer who could be the link between the investigator and the media houses for holding periodic briefings in sensitive cases or incidents that are likely to affect the public at large and to provide credible information to the extent such officer considers fit and proper to disclose and answer queries as received from the journalists/reporters but he must, at all times, take care to ensure that secret and confidential information/material collected during the investigation, the disclosure whereof could affect the administration of justice, is not divulged.

In case an officer as stated above would be appointed, he would be expected to bear in mind the Supreme Court’s decision in Rajendran Chingaraveluv. R.K. Mishra, (2010) 1 SCC 457.

“Every journalist/reporter has an overriding duty to the society of educating the masses with fair, accurate, trustworthy and responsible reports relating to reportable events/incidents and above all to the standards of his/her profession. Thus, the temptation to sensationalize should be resisted.”

Therefore, in light of the above discussions, the Court disposed of the PIL’s filed.[Nilesh Navalakha v. Union of India, 2021 SCC OnLine Bom 56, decided on 18-01-2021]


Advocates for the Parties:

Mr. Devadatt Kamat, Senior Advocate a/w Mr. Rajesh Inamdar with Mr.Shashwat Anand, Mr. Pankaj Kandhari, Ms. Smita Pandey, Mr.Amit Pai, Mr. Vishal Jagwani, Kevin Gala, Siddharth Naik, Pinky Chainani, Mr. Ankur Azad, Mr. Sarveshwari Prasad, Mr. Rahat Bansal, Mr. Faiz Ahmad. i/b Mr. Pankaj Kandhari for Petitioners.

Mr. Anil Singh, Additional Solicitor General a/w Mr. Sandesh Patil, Mr.Aditya Thakkar, Mr.Amogh Singh, Ms. Apurva Gute, Mr. Chintan, Mr. Mayur Prashant Rane, Mr. Sumedh Sahakari, Mr. D. P. Singh, Ms.Reshma Ravapati, Mr. Saurabh Prabhulkar and Medvita Trivedi for respondent Nos.1, 4, 12 and 13.

Mr. Arvind Datar, Senior Advocate i/by Mr. Bharat Manghani for respondent 3 (NBA)

Mr. P. P. Kakade, Govt. Pleader with Mrs. R. A. Salunkhe, AGP for respondent 5 -State.

Mr. Rajeev Pandey with Mr. Madhur Rai i/by PRS Legal for respondent No.6(The India Today Group).

Mr. Kunal Tandon a/w Ms. Prachi Pandya i/by Corporate Attorneys for respondent No.7 (Times Now).

Ms. Malvika Trivdei a/w Mr. Saket Shukla, Mr. Vasanth Rajshekharan, Mr. Mrinal Ojha, Mr. Debashri Datta, Mr.Rajat Pradhan, Ms. Madhavi Joshi and Mr. Siddhant Kumar i/by Phoenix Legal for respondent 8 (Republic TV).

Mr. Angad Dugal, Mr. Govind Singh Grewal, Shiva Kumar, Tanya Vershney, Raj Surana a/w Rishi Murarka for respondent 9 (NDTV Ltd.).

None for respondent  10 (News 18).

Mr. Ankit Lohiya a/w Mr. Hetal Thakore, Mr. Kunal Parekh, Ms. Bhavika Tiwari i/by Dua Associates AOR Mumbai for respondent 11 (Zee News).

Ms. Hetal Jobhanputra for respondent No. 14 (ABP News).

Mr. Jayant Mehta a/w Mr. Alankar Kirpekar a/w Mr. Tejveer Bhatia, Mr. Rohan Swarop, Mr. Shekhar Bhagat i/by MAG Legal for respondent 15 (India TV).

Mr. Siddhesh Bhole, Mr. Rishabh Dhanuka i/by Alba Law Offices for respondent No. 16 (News Nation).

Mr. Siddharth Bhatnagar, Senior Advocate a/w Mr. Pralhad Paranjape for respondent No. 17 (NBF).

Hot Off The PressNews

Press Council of India is distressed with the incident of alleged murder of Shri Gnanadraj Moses, Journalist of ‘Tamilian TV’, for running stories on suspected drug smuggler and land mafias in the channel.

Taking suo-motu cognizance, the Chairman has directed the Government of Tamil Nadu through the Chief Secretary, the Secretary (Home) and Director General of Police, Tamil Nadu to submit a Report on the facts of the case at the earliest.

PRESS RELEASE


Press Council of India

[Press Release dt. 15-12-2020]

Hot Off The PressNews

The Press Council of India Chairman Justice C.K Prasad has noted with concern that a number of journalists working for Business Standard of the Business Standard Pvt. Ltd. have been terminated from its Kolkata, Bengaluru, Chennai, Hyderabad and Bhubaneswar bureaus.

While taking Suo-Motu cognizance of the case, Comments have been called for from the Management of the newspaper in this regard.


Press Council of India

[Press Release dt. 30-07-2020]

Hot Off The PressNews

The National Human Rights Commission has taken suo motu cognizance of a media report that a journalist was allegedly killed by sand mafias in the Unnao district of Uttar Pradesh on the 19th June, 2020. Reportedly, the victim Shubham Tripathy was working as a correspondent with a Hindi Daily, Kampu Mail. He had been reporting about illegal sand mining in the district and had apprehended threat to his life from them. Reportedly, his opponents had also lodged a complaint against him with the District Magistrate.

The Commission has issued a notice to the Government of Uttar Pradesh through its Chief Secretary and the Director General of Police calling for a detailed report in the matter. The State Government has also been directed to get an impartial enquiry into the matter by an independent agency, preferably the State CB CID and to ensure safety of the family of the victim and the witnesses in the matter. The call details and other forensic evidences gathered during inquiry to be preserved as the Commission might call them during consideration of the case. The response is expected, within 4 weeks.

The Commission has observed that the news report has mentioned that in many cases the media persons have been targeted by the anti-social elements and in most of the cases no action against the culprits has been taken by the police authorities.

In the democratic system of Government, the media is considered as its fourth pillar which cannot be allowed to be victimised by the anti social elements in such a cruel manner. It is the duty of the state to provide adequate safety and security to the media persons who in the public interest, keep taking great risks to highlight the illegal activities prevailing in the society. The death of Shubham Tripathy in this case is a matter of concern for the Commission and also an issue involving violation of human rights.


National Human Rights Commission

Press Release dt. 26-06-2020

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., stayed the investigation against the television anchor and journalist Vinod Dua, alleged for spreading rumours and misinformation about the sensitive issue of Delhi Riots and causing hatred and ill-will between the different communities through his web cast on You Tube.

Who filed the present petition?

The petition was filed by Vinod Dua — Journalist and Television Anchor praying for quashing of an FIR registered under Sections 290/505/505(2) of the Penal Code, 1860. Petitioner sought investigation into the said registration of the FIR, as also for violation of his fundamental rights.

Genesis of the matter

Petitioner has a webcast on HW News Network on the YouTube Platform named “The Vinod Dua Show”.

Petitioner’s Stand

Senior Counsel, Vikas Singh submitted that the webcast was made on 11.03.2020 and ran for approximately 12 minutes, comprising two parts, each addressing a different current affairs issue. About 08 minutes of the webcast was in relation to the politics of government formation in the State of Madhya Pradesh in the context of some recent happenings.

As per the allegations contained in FIR, the above mentioned part of the webcast is not subject matter of the FIR.

Second part of about 4 minutes was in relation to the riots that happened in the North-East part of Delhi in February, 2020 and the complainant’s grievance appears to be with what was said in relation to the riots; and that was the subject matter of the complaint made and the FIR registered against the petitioner.

Petitioner’s Counsel relied on the following Supreme Court Judgments:

FIR

FIR records that the petitioner is spreading rumours and misinformation about the sensitive issue of Delhi Riots, which are resulting into causing hatred and ill-will between the different communities.

Respondent’s Stand

Counsel, Piyush Singhal on behalf of respondent 1 submitted that the notice has been issued to YouTube and petitioner has so far not even called for investigation.

Respondent 2’s counsel’s Anil Soni, Ajay Digpaul and Satya Ranjan Swain argued against granting interim relief to the petitioner on the following basis:

  • ingredients of Section 505(2) IPC are made-out on the basis of the allegations in the complaint and in the FIR
  • narration made in the offending webcast to the effect that Delhi Police should issue a fact-sheet indicating as to how many people from the minority community were picked-up and arrested; from where; in what condition and under what threat, amounts to propagating alarming news with intent to create or promote enmity, hatred or ill-will between classes, which is an offence punishable under Section 505(2), and which is both cognizable and non-bailable;
  • What is stated in the offending narration is merely the petitioner’s ‘opinion’ and not based on any ‘fact’, and that only rumour has been fostered to create enmity;
  • there is no legal basis or precedent for staying investigation or proceedings in an FIR

On Prima Facie view, following aspects emerge:

  • Substantial unexplained delay in filing of the complaint and registration of the FIR: Delay of almost 3 months
  • Petitioner learned about the registration of FIR through social media
  • what the complainant alleges was said in the webcast, is not what appears in the transcript of the webcast ; and to that extent no cognizable offence is disclosed on the basis of the material cited by the complainant warranting registration of an FIR
  • there is no allegation that any adverse consequences, in terms of enmity, hatred or ill-will, much less any violence or breach of peace, occurred as a consequence of the webcast
  • ingredients and gravamen of the offence under section 505(2) do not seem to be made-out as required per Manzar Sayeed Khan Judgment.

Thus, it prima facie appears that the registration of the FIR requires to be examined on the touchstone of the law.

Though petitioner has already been granted an interim protection by Additional Sessions Judge, this Court is of the view that further investigation or proceedings pursuant to the FIR would cause unwarranted and unjustified harassment to the petitioner.

Investigation in the matter arising from the subject FIR is stayed, till the next date of hearing.

Matter to be listed on 23-07-2020. [Vinod Dua v. State (Govt. of NCT of Delhi), 2020 SCC OnLine Del 644 , decided on 10-06-2020]

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J. has quashed the defamation case filed by V.V. Minerals (P) Ltd. against Economic Times and its reporter.

Facts

The respondent V.V. Minerals had instituted a defamation case against the petitioners ? Grievances Redressal Officer, the Editor, a reporter of the Economic Times and the husband of the reporter. As per the complaint, the offending publication appeared in the February 1-7 2015 issue of Economic Times Magazine titled “Scam on the Shores”. The article which was written by the 3rd petitioner ? Sandhya Ravishankar, a journalist working with the Economic Times, was based on a Public Interest Litigation (“PIL”) filed by one Victor Rajamanickam. According to the report, the T.N. Government had authorised the respondent to mine and export monazite which is a prescribed substance. To mine monazite, approval of Department of Atomic Energy is necessary. The report further claimed that on account of the enormous illegal mining, the local villagers have been exposed to serious health hazards.

The respondent controverted the allegations and issued notice pointing out that the husband of the said journalist (the 4th petitioner) had earlier applied for employment in a news channel in which the respondent is having substantial stakes and that his request was rejected. The respondent directly alleged that the journalist wrote the article out of hatred and malice and to settle scores with the complainant for having declined to employ her husband. The respondent lodged a complaint with the Judicial Magistrate, Thirunelveli, who found that prima facie, a case under Section 500 (punishment for defamation) read with Section 109 (punishment for abetment) of the Penal Code. was made out. Accordingly, he issued summons to the petitioner. Aggrieved, the petitioners approached the High Court under Section 482 CrPC (inherent powers of High Court).

Submissions

Anand Chandrasekar, counsel for the petitioners, relied on a host of precedents to contend that the proceedings against the petitioners deserve to be quashed. Per contra, V. Lakshminarayanan, counsel for the respondent, submitted that the offending publication is per se defamatory and that it has brought down respondent’s reputation and caused irreparable harm.

Two apparent errors

1. Improper description of Accused 1 & 2 (Petitioners 1 & 2 herein)

In the complaint filed by the respondent, Accused 1 & 2 were described only as the Grievance Redressal Officer, Economic Times & the Editor, Economic Times, respectively. They were described by posts and not by names. Referring to Section 476 read with Section 61 read with Form 1 of the Second Schedule, CrPC, the High Court restated that in a criminal case, where the accused is an individual, he/she will have to be named in person and if he is merely referred to by designation, the court ought to return the complaint as defective. Here, the trial Magistrate appeared to have acted mechanically while taking cognizance of the complaint without noticing the said defect. This apart, merely because the Grievance Redressal Officer could redress the respondent’s grievance, he cannot be accused of having committed an offence of defamation. 

2. Overstepping of territorial jurisdiction

Referring to Section 202 CrPC, the Court stated that a mere look at the cause title would have revealed that the accused are not residing within the jurisdictional limits of the Judicial Magistrate, Thirunelveli.

Wife ? an independent personality

The 4th petitioner (husband of the journalist, Petitioner 3) was roped on the sole ground that he abetted the offence. As per the complaint, the 3rd petitioner wrote the offending article at the instigation of her husband because he applied for a job in a news channel run be the respondent and his application was rejected. As per the Court:

“The 3rd petitioner is an independent freelance journalist. If I accept the contention of the complainant’s counsel, that would undermine the agency of the woman concerned. This concept of agency has considerable philosophical import and was evolved by the feminists during the last century. The complainant wants me to assume that the 3rd petitioner lacks personal autonomy. The 3rd petitioner definitely has the capacity to act independently and make her own free choice. I cannot assume that the 3rd petitioner was a pawn or tool at the hands of her husband. Her innate dignity can be upheld only by deleting the 4th petitioner from the array of accused.”

The Sullivan principle

The High Court referred to New York Times v. Sullivan, 376 US 254, wherein the Supreme Court of the United States noted the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. In order to survive, free speech needed breathing space – that is, the space to make mistakes. Erroneous statement was inevitable in free debate and therefore, the very existence of free debate required the protection of such statements. In that case, Justice Brennan propounded the test of “actual malice” wherein liability for defamation could be imposed only if the maker of the statement either knew it was false or published it with reckless disregard for its truth or falsity. On this, the High Court referred to the book “”Offend, Shock or Disturb” by Gautam Bhatia.

Criminal law of defamation involving the press ? clarified

The criminal law on defamation stands codified in Sections 499 and 500 IPC. Referring to the Second Exception (pubic conduct of public servants) and the Third Exception (conduct of any person touching any public question) to Section 499, the High Court clarified:

The Sullivan principle as amplified in Rajagopal v. J.Jayalalitha, AIR 2006 Mad 312, and Petronet Lng Ltd.v. Indian Petro Group, (2009) 158 DLT 759 (Del), have to be necessarily read into the Exceptions to Section 499 whenever the freedom of the press is involved. There can always be a margin of error. The permissible width of the margin will depend on the facts and circumstances of each case. The media can avail this defence whether the complainant is a public official or a private entity. Mere inaccuracies in reporting cannot justify initiation of prosecution.

The Court further explained:

“What must be seen is whether the subject matter is a public question or not. Exception 3 to Section 499 IPC refers to public question. Of course, the said expression has not been defined anywhere including the Law lexicons. But, one can safely understand it to mean an issue in which the public or the community at large has a stake or interest. Media ought to be relieved from any criminal prosecution once it is noted that its case falls within the Exception as delineated above.”

Duty of High Court in safeguarding the freedom of press

Referring to the decision in State of Madras v. V.G. Rao, AIR 1952 SC 196, where the Supreme Court described itself as sentinel on the qui vive, the High Court observed that the Court can never desert its duty when it comes to protecting the fundamental rights. The High Court stated that the observations of the Supreme Court will apply to the entire higher judiciary.

The Court then referred to the provision of Section 482 CrPC and observed:

“Most of the legal provisions conferring power are couched in a permissive language. But there is something called ethical imperative. It envisions that inherent powers go with implicit duties. Courts often nudge and remind the executive that possession of power is coupled with a duty to exercise the same. Judicial power can be no different. When freedom of press which is a fundamental right is at stake, higher judiciary is obliged to exercise not only its inherent power but also exert itself a bit. An unused power is a useless tinsel. There is no point in merely saying that press is the foundation of democracy.”

The Third Exception

The offending article was based on the allegations in a PIL filed in the Madras High Court against the respondent. Notably, the article contained the response of the respondent. Although there were a few mistakes in the reporting, but a clarification was later carried by Economic Times expressing regret. Also, it is true that the original petitioner turned out to have lacked bona fides and he was relieved from the proceedings, but the PIL was not terminated. It was converted into a suo motu PIL and the case is pending till date. It was noted that a Division Bench of the High Court is actively seized of the matter and this sufficiently indicates the importance of the issue raised in the offending article.

On such facts, it was held that this on the very face of it would fall within Exception 3 to Section 499. The Court observed that:

“When a defence can be established in a summary manner and does not warrant a regular trial, relief ought to be granted in a petition under Section 482 CrPC. As already pointed out, Petitioners 2 and 3 have shown their bona fides by reaching out Thiru.Vaikundarajan and publishing his response in the very same article.” 

Decision

In such view of the matter, the High Court held that the petitioners could not be said to have defamed the respondent by the article in question. The very institution of the impugned complaint was held to be an abuse of the process of court. Quashing the same alone would secure the ends of justice. Accordingly, the impugned proceedings against the petitioners were quashed. [Economic Times, v. V.V. Minerals (P) Ltd., 2020 SCC OnLine Mad 978 , decided on 5-5-2020]   

COVID 19Hot Off The PressNews

The Press Council of India is saddened to know that a large number of journalists while on call of duty have contracted the COVID virus.

It appeals to the Government and all other authorities to help the journalists those who have contracted the virus while reporting on the pandemic from the containment Zone, hotspots and other COVID affected areas by providing medical help and required support to mitigate their hardships.

The media persons who are working on ground zero are advised to take due health related precautions while performing their duties.

Further keeping in view their vulnerability, the management of media/publication house need to take necessary steps to ensure their care.


Press Council of India

PR/11/2020-PCI

[Press Release dt. 22-04-2020]

Hot Off The PressNews

As reported by ANI, the United States of America has passed a bill unanimously, which would impose sanctions on Saudi officials who were involved in the killing of Saudi journalist Jamal Khashoggi.

House of Representatives passed Saudi Arabia Human Rights and Accountability Act which requires — director of National Intelligence to publicly identify persons who were involved in the murder of Saudi journalist last year.

The said act requires the director of National Intelligence to publicly identify the persons involved in killing of Khashoggi and impose visa and travel sanctions on them.


[Source: ANI]

Case BriefsHigh Courts

Manipur High Court: A Bench of Lanusungkum Jamir and Kh. Nobin Singh, JJ., released Kishorchandra Wangkhem, the 39-year old journalist who was detained under the National Security Act, 1980 for criticising the Government through Facebook posts.

At about 2 pm on 27-11-2018, Kishorchandra was picked up by some unidentified persons on Police uniform and brought to Imphal Police Station where he was detained for about 5 hours. On the same day, a detention order under NSA was passed against him by the District Magistrate, and he was taken to Manipur Central Jai, Sajiwa, where he had been lodged since.

S. Chitranjan, Advocate led arguments on behalf of Kishorchandra and challenged his detention under NSA as illegal and unlawful contending that he did not get a chance for making an effective representation against his detention. Per contra, N. Kumarajit, Advocate General of Manipur and S. Suresh, Additional Solicitor General appearing for the Union of India supported the detention order.

The primacy issue in focus was: whether the detention order date 27.22.2018 stood vitiated due to non-supply of the picture with captions alleged to have been posted by the petitioner on his Facebook wall on 7.8.2018 and non-supply of the duplicate copy of the CD containing four video clips relied on by the DM, thereby preventing the petitioner from making an effective representation before the concerned authority?

The High Court found that the pictures in controversy and the CD concerned, which found mention in the ‘grounds of detention’ were not supplied to Kishorchandra. This, as per the Court, prevented the petitioner from making an effective representation against his detention. The Court said: “We have, therefore, no hesitation to come to the conclusion that non-furnishing of the pictures with copies alleged to have been posted by the petitioner on his Facebook wall on 7-8-2018 and compact disc containing four video clips, vitiates the very detention order dated 27-11-2018.”

In such view of the matter, the writ petition filed by Kishorchandra Wangkhem was allowed and the detention order passed against him under the National Security Act was set aside. He was directed to be set at liberty forthwith unless wanted in other cases. [Kishorchandra Wangkhem v. State of Manipur, WP (Crl.) No. 18 of 2018, dated 04-03-2019]

Hot Off The PressNews

As reported by media, Journalist Priya Ramani appeared in the Patiala House District Court for the defamation case filed by MJ Akbar (Former Union Minister).

Priya Ramani was the first woman to accuse MJ Akbar of sexual allegations during the “#me too” campaign.

MJ Akbar had filed a defamation case against her, stating the cause that the article published by Ramani in which she had stated she was sexually harassed by MJ Akbar in the past. Several women had raised their voices in support of Ramani along with the ones who had been the victim of the same.

Therefore, today on appearance at the Patiala House District Court, Ramani was granted bail with a bond of Rs 10,000 by Additional Chief Metropolitan Magistrate, Samar Vishal.
Ramani after the court proceedings gave a statement that “truth is her defence” and after the next date it will be her turn to tell the story.

The next date of hearing is fixed to be 10-04-2019.

[Source: ANI]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission (NHRC): The NHRC has taken suo motu cognizance of a media report that the network of editors and media practitioners, namely, SAMDEN has urged the NHRC to seeks swift probe into Shujaat Bukhari’s killing along with his two personal security officers in Lal Chowk area of Srinagar in Jammu & Kashmir on 14.06.2018. Reportedly, SAMDEN has also demanded swift action to be taken by the Central and the State Government for the necessary steps ensuring safety and security of all the journalists across the country.

As per news report, the deceased journalist had been under police protection since the year 2000. He was reportedly facing threats, being a rare voice of moderation and an advocate for peace and justice. Many other NGOs and human rights defenders have also raised their voice against the threats, attacks and murders carried out against the media persons.

The Commission has observed that in view of special provisions laid down under Section 1(2) of the Protection of Human Rights Act, 1993 in connection with the State of Jammu & Kashmir, it generally does not intervene into the matters relatable to entries enumerated in the List II (State List) mentioned under Seventh Schedule to the Constitution of India. In such cases, it is for the State Human Rights Commission to take cognizance of the complaints regarding alleged violation of human rights in the State of Jammu & Kashmir.

However, it further observed that it is learnt that the State Human Rights Commission is closed for summer vacations till 30th June, 2018 and till date, cognizance of this case has not been taken by them. The way, Mr Shujaat Bukhari had been killed by the miscreants indicates that the media persons, even those who have been provided police protection by the State Government, are not safe in the valley. This is a case of violation of right to life of the victim and the incident is causing serious threat to free speech and freedom of press in the State.

Looking into the gravity of the matter, the Commission has issued a notice to the Chief Secretary and the Director General of Police of the State of Jammu & Kashmir calling for detailed report in the matter. The State Government is also expected to provide details of the attacks made on the media persons during last two years along with number of persons died/ injured and status of relief/ rehabilitation provided to the victims and their families. The Commission would also like to know as to what special measures have been taken by the State Government to stop such incidents in the State of Jammu & Kashmir. The response is expected within four weeks.

Besides this media report in the matter, a complaint from the Front Line Defenders, an NGO has been received which has been registered by the Commission. The formal letter from the Commonwealth Human Rights Initiative (CHRI) is yet to be received by the Commission.

National Human Rights Commission

Case BriefsSupreme Court

Supreme Court: In the controversy arising due to the voice samples taken in the matter where the appellants had allegedly demanded a sum of money to refrain from telecasting programmes on a television channel pertaining to the alleged involvement of a corporate entity in a wrongful activity pertaining to the allocation of coal blocks, it was argued by the Appellants that they were being made to read out inculpatory material drawn from an audio recording of the alleged sting operation.

The 3-judge bench of T.S. Thakur, CJI, A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ held that there was no substance in the submission that the text which is to be read by the Appellants in the course of drawing their voice samples should contain no part of the inculpatory words which are a part of the disputed conversation as a commonality of words is necessary to facilitate a spectrographic examination. Stating that it is not open for the Appellant to dictate the course of investigation, the Court said that the Appellants had not been forced or coerced into furnishing such a sample since it was they who had furnished their consent; secondly, a voice sample is not evidence since its purpose is only to compare it with the questioned text.

Earlier, Delhi High Court had ordered that the purpose of a voice sample is to facilitate the process of comparing it with a recorded conversation. The voice sample is not a testimony in itself since it only constitutes what was described as ‘identification data’ and hence, it is not a substantive piece of evidence. By the order dated 01.07.2016, the Court had directed the Appellants shall be required to read out for the purpose of giving their voice samples using words, but not the sentences, appearing in the disputed conversation in such number as the Director/Scientific Officer may consider necessary for the purpose of comparison in order to ensure that the text which the Appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the investigating authorities for making a fair comparison. [Sudhir Chaudhary v.  v. State of NCT of Delhi, 2016 SCC OnLine SC 747, decided on 29.07.2016]