Case BriefsSupreme Court

Supreme Court: In the case where the Election Commission of India (EC) had sought a direction restraining the media from reporting on court proceedings after Madras High Court made certain oral remarks attributing responsibility to the EC for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate COVID-19 safety measures and protocol during the elections, the bench of Dr. DY Chandrachud* and MR Shah, JJ has refused to restrain the media from reporting on Court proceedings and made a strong case in favour of Open Court and freedom of press.

Unmissable quotes

This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.

Citizens have a right to know about what transpires in the course of judicial proceedings. The dialogue in a court indicates the manner in which a judicial proceeding is structured. Oral arguments are postulated on an open exchange of ideas. It is through such an exchange that legal arguments are tested and analyzed. Arguments addressed before the court, the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed.

Courts must be open both in the physical and metaphorical sense. Save and except for in-camera proceedings in an exceptional category of cases, such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy, our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms.

An open court proceeding ensures that the judicial process is subject to public scrutiny. Public scrutiny is crucial to maintaining transparency and accountability. Transparency in the functioning of democratic institutions is crucial to establish the public‘s faith in them. Public scrutiny fosters confidence in the process. Public discussion and criticism may work as a restraint on the conduct of a judge. An open court serves an educational purpose as well. The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights.

An open court and transparent dispensation of justice in all its modalities, is an end in itself.

Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. Courts are entrusted to perform crucial functions under the law. Their work has a direct impact, not only on the rights of citizens, but also the extent to which the citizens can exact accountability from the executive whose duty it is to enforce the law.

The world is adapting to technology at a pace which is often difficult to catalogue, and many of our citizens are becoming digital natives from a young age. It is understandable that they will look towards modern forms of media, such as social media websites and applications, while consuming the news. This, understandably, would also include information reported about the functioning of courts. Hence, it would do us no good to prevent the new forms of media from reporting on our work.

Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power. The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. Therein lies the importance of freedom of the media to comment on and write about proceedings.

Lokmanya Balgangadhar Tilak’s Trial

The Court also cited the Lokmanya Balgangadhar Tilak‘s first trial for sedition to highlight that media reporting has operated alongside formalized court processes for close to a century. “Court proceedings in colonial India, especially sedition trials, were also sites of political contestation where colonial brutality and indignity were laid bare.”

The widespread reportage on Lokmanya Balgangadhar Tilak‘s first trial for sedition highlighted the variance in procedural laws and rights denied to Indian undertrials, as he struggled to access legal aid and was convicted in spite of a non-unanimous verdict of the jury. Lokmanya‘s poignant words, while recorded by the order as a formalized process of sentencing, were circulated far and wide by anti-colonial publications which fueled India‘s struggle for freedom:

“In spite of the verdict of the Jury I maintain that I am innocent. There are higher Powers that rule the destiny of men and nations and it may be the will of Providence that the cause which I represent may prosper more by my suffering than by my remaining free.”[1]

These words incidentally also adorn the plaque outside that very courtroom in the Bombay High Court to this day.

Madras High Court’s remarks that led to this order

During the course of the hearing, the Madras High Court had allegedly orally observed that the EC is “the institution that is singularly responsible for the second wave of COVID-19” and that the EC “should be put up for murder charges”.

Madras High Court’s remarks harsh, metaphor inappropriate but can’t be expunged; Supreme Court junks EC’s plea seeking restrain on Media reporting Court proceedings

[Chief Election Commissioner of India v. M.R Vijayabhaskar, 2021 SCC OnLine SC 364, decided on 06.05.2021]


*Judgment by: Justice Dr. DY Chandrachud

Appearances before the Court:

For EC: Senior Advocate Rakesh Dwivedi and Advocate Amit Sharma

[1] Emperor vs Balgangadhar Tilak, (1908) 10 BOMLR 848 (Bombay High Court)

Case BriefsSupreme Court

“This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.”

Supreme Court: In the case where the Election Commission of India (EC) had sought a direction restraining the media from reporting on court proceedings after Madras High Court made certain oral remarks attributing responsibility to the EC for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate COVID-19 safety measures and protocol during the elections, the bench of Dr. DY Chandrachud* and MR Shah, JJ has refused to restrain the media from reporting on Court proceedings.

“It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing. Hence, in view of the above discussion, we find no substance in the prayer of the EC for restraining the media from reporting on court proceedings.”

During the course of the hearing, the Madras High Court had allegedly orally observed that the EC is “the institution that is singularly responsible for the second wave of COVID-19” and that the EC “should be put up for murder charges”. These remarks, though not part of the order of the High Court, were reported in the print, electronic and tele media.

EC had alleged that these remarks are baseless, and have tarnished image of the EC, which is an independent constitutional authority.

Noticing that these oral remarks are not a part of the official judicial record, and therefore, the question of expunging them did not arise, the Supreme Court said that,

“… the High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens. The remarks of the High Court were harsh. The metaphor inappropriate. The High Court – if indeed it did make the oral observations which have been alluded to – did not seek to attribute culpability for the COVID-19 pandemic in the country to the EC. What instead it would have intended to do was to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections.”

Tasked with balancing the rights of two independent constitutional authorities, the Court observed that the High Courts are often the first point of contact for citizens whose fundamental rights have been violated. High Courts are constantly in touch with ground realities in their jurisdictions.

“During the COVID-19 pandemic, the High Courts across the country have shown commendable foresight in managing the public health crisis which threatens to submerge humanity. Their anguish when they come face to face with reality must be understood in that sense.”

On the other hand, the EC has facilitated the operation of our constitutional democracy by conducting free and fair elections and regulating conduct around them for over seven decades.

“Its independence and integrity are essential for democracy to thrive. This responsibility covers powers, duties and myriad functions which are essential for conducting the periodic exercise of breathing life into our democratic political spaces.”

While the Court held that the High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens and hence, only intended to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections, it emphasised on the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation.

“Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case.”

The Court concluded by saying that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record.

[Chief Election Commissioner of India v. M.R Vijayabhaskar, 2021 SCC OnLine SC 364, decided on 06.05.2021]


*Judgment by: Justice Dr. DY Chandrachud

Appearances before the Court:

For EC: Senior Advocate Rakesh Dwivedi and Advocate Amit Sharma

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing the concern with respect to a very shocking incident wherein a Lady IPS officer was harassed by the Special DGP, expressed that:

“…effectiveness of a criminal prosecution can be ensured only when it is completed at the earliest possible time and there is a certainty of punishment for the accused person, if found guilty.”

The present writ petition was filed for the issuance of a writ of mandamus directing CB-CID to effectively conduct the investigation, duly monitored by the Court and for a further direction to submit the periodical status report.

It has been stated that the State Government has taken up the issue very seriously and that the investigation is proceeding on the right lines and that no stone will be left unturned. Summons to Accused 1 and 2 have been issued under Section 41-A of the Code of Criminal Procedure, 1973.

Enquiry in the Internal Complaints Committee has also commenced parallelly and the developments were also reported before the Court.

Another development that was brought before the Court was that the Superintendent of Police, Chengalpet had already been suspended, pending the departmental inquiry.

High Court when passed the Orders on 01-03-2021, it had restrained the political parties and media from indulging in any discussion, touching upon the merits of the case, along with using or exchanging the names of the victim officer, the accused persons and the witnesses.

In view of the above restraint a representation was made before this Court to the effect that such protection need not be given to the accused persons and therefore, a request was made to modify the earlier direction and permit the use or exchange of name of the accused persons.

Bench while acknowledging the restraint shown by the political parties expressed that the present issue is not just confined to two individuals infact there is a larger issue that requires an effective solution and the interest of the entire police force in Tamil Nadu.

Reasoning for the restrain was that the Court did not want a parallel ‘Media Trial’, since the issue is quite sensitive and required to be handled with maturity.

State, as well as this Court, must maintain neutrality.

 Further, the High Court expressed that it is satisfied with the manner in which the investigation has progressed in this case and the Court hopes that it continues in the same spirit and the same gets completed as expeditiously as possible.

In view of the above discussion, Court held that the restraint imposed by the High Court shall continue. [Government of India, In Re.,  2021 SCC OnLine Mad 1118, decided on 12-03-2021]


Advocates who appeared before this Court:

For Respondents: Mr. N. Ramesh Central Government Senior Counsel for R 1

Mr. Jayaprakash Narayanan, State Government Pleader for R 2 & R 3

Mr. M. Mohamed Muzammil, Government Advocate (Crl. Side) for R 4 & R 5


Madras HC | Lady IPS Officer harassed by Special DGP. “Court is not going to be a mute spectator”: HC takes suo motu cognizance; decides to monitor investigation; issues directions

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while addressing the matter concerning the environmental activist, Disha Ravi, expressed that:

The print and electronic media plays a very important role in ensuring that there is no sensationalism and that they adhere to responsible journalism. Recent coverage by the media definitely shows that there is sensationalism.

An environmental activist, Disha Ravi filed the present petition seeking reliefs against the Police, Ministry of Information and Broadcasting and various news channels in respect of what are allegedly attributed to leakage of her messages and various other investigation material which has been broadcasted and disseminated by the TV channels at the behest of Delhi Police.

Disha Ravi was arrested on 13-02-2021 in Bangalore and brought to Delhi, after which Duty Magistrate, Patiala House Court had sent her on police remand.

Disha’s Claims

She claimed that after her arrest, various messages etc. were leaked by the police to media resulting in a large number of programs, news bulletins and online dissemination of various private messages and interventions which were broadcasted.

She also submitted that some bulletins also made allegations that she was associated with various illegal and unlawful groups.

Senior Counsel, Akhil Sibal, submitted that the Official Twitter handle of the petitioner also released various comments about the investigation which is going on and these formed the basis of the reports by the News Channels.

Four reliefs claimed by Disha Ravi

Firstly, that the alleged WhatsApp conversation ought to be removed from the public domain and the police should be directed not to disseminate anything, which is not part of the public record.

Secondly, media houses ought to be directed to comply with the program code and the advertisement code.

Thirdly, the Delhi police ought not to share the investigation files and ;

Lastly that the police ought not to conduct any press briefings.

What the Court Observed?

Bench noted that the present matter raised issues with regard to public importance and the three aspects present are as follows:

Firstly, the privacy, dignity of the individual concerned as also her right to fair trial.

The second aspect would be the sovereignty/integrity of the country and whether there could be reasonable restrictions that could be imposed considering the nature of the investigation that is currently taking place.

The third aspect would be the right to free speech and the right of the public to know.

While granting time to the respondents for an opportunity to respond to the allegations, Court stated that the question to be addressed at the present stage will be whether the present state of affairs ought to continue?

Bench had the opportunity to view the videos on record of News18 and several other materials.

There is no doubt that the regulation of content in print and electronic media has been a very contested issue across the world and India is no exception to that. The reasons for the same are not far to seek in as much as content regulation is viewed as being directly affrontive to the Right of free speech.

Expressing its views more on content regulation, Bench added that while a journalist cannot be asked to reveal the source, it would have to be ensured that the source ought to be a verified and authentic source and the content ought to be merely speculative or conjectural.

Content also ought not to be offensive, scandalising and to the extent, possible should be factual in nature.

Bench noted that, Delhi Police took an unequivocal position that they are not responsible for the leaking of messaged or the investigation material to the media house. Whereas the media houses in their reports took a contrary stance, hence the said issue would require detailed examination.

Next, Court dealt with regard to the ad interim directions to be passed and noted that:

While police briefings and the happenings in Court proceedings etc. can also be broadcasted and disseminated, leaked investigation material ought not to be disseminated so as to prejudice the investigation.

Directions issued down by the Court:

  • The Delhi Police will strictly abide by the affidavit dated 18th February, 2021, which has been filed today as also the Office Memorandum dated 1st April, 2010, which is, admittedly, still in operation. The Delhi Police or other investigation authorities would, however, be, in terms of the said OM, entitled to conduct their briefings in accordance with law so long as no rights of the Petitioner are violated.
  • Media houses shall also ensure that the telecast/broadcast by them is from verified/authenticated sources, though the sources need not be revealed. All disseminated content shall be in strict adherence to the `Programme Code’ as contained in the Cable Television Networks Rules 1994 as also the Code of Ethics & Broadcasting Standards prescribed by the News Broadcasters Association.
  • Editorial teams of the respective channels shall ensure that only such broadcasts and telecasts are communicated and disseminated, which have verified data and verified content. The channel editors shall ensure that the channels exercise proper editorial control so that the Petitioner’s investigation is not hampered, in any manner.
  • If the charge-sheet is filed in the meantime and the same is made public, once the investigation reaches some conclusion, dissemination of the contents of the charge-sheet would not be interdicted in any manner.
  • Since there is an allegation that persons who sympathise with the Petitioner’s cause are attempting to malign the police and investigation authorities, Mr Akhil Sibal, Senior Counsel while denying the allegation, assures that the Petitioner or any other person directly associated with her do not intend to indulge in any kind of maligning of the police or the investigating authorities. This assurance is accepted by the Court.
  • The question of removal of content, which is already in public domain shall be considered with the hearing of the stay application at a later stage.

While directing the media, in general, to adhere to the above directions, Court directed NBSA to communicate the directions to its members.

Matter to be listed for further hearing on 17-03-2021.[Disha A. Ravi v. State (NCT of Delhi), 2021 SCC OnLine Del 822, decided on 19-02-2021]

——————————————————————————————-

Avocates who appeared for the parties:

For petitioner:

Akhil Sibal, Senior Advocate with Vrinda Bhandari, Abhinav Sekhri,  Sanjana Srikumar, Krishnesh Sapat & Sonali Malik, Advocates.

For Respondents:

Tushar Mehta, Solicitor General, S.V. Raju, ASG with Amit Mahajan, SPP,  Rajat Nair, SPP and Dhruv Pande, Mallika Hiremath, Shantanu Sharma,  Sairica Raju, A. Venkatesh, Guntur Pramod Kumar, Shaurya R. Rai, Zeal Shah, Aarushi Singh and Anshuman Singh, Advocates for R-1/GNCTD.

Chetan Sharma, ASG and Ajay Digpaul, CGSC with Amit Gupta, Vinay Yadav, Sahaj Garg, Akshay Gadeock & R.V. Prabhat, Advocates for R- 2/UOI.

Nisha Bhambhani and Rahul Bhatia, Advocates for R-3.

Mrinal Bharti, Sumant De and Manish Shekhar, Advocates for R-4.

Hrishikesh Baruah, Pranav Jain, Mehma Kaur & Radhika Gupta, Advocates for R-5.

Kunal Tandon, Kumar Shashank Shekhar and Amandeep Singh, Advocates for R-6.

Case BriefsForeign Courts

The High Court of Justice: It was a significant victory for the Duchess of Sussex and noted actress Meghan Markle when the Court ruled in her favour while deliberating on the question that whether Associated Newspapers misused her private information and committed breach of her data protection rights with regards to the Letter to her father. It was held that the Duchess had a reasonable expectation that the contents of the Letter would remain private and that The Mail Articles interfered with that reasonable expectation.

Background

The British Royals have a complicated relationship with the media especially tabloids and the instant case is one such example.

The claimant Meghan Markle, married HRH Prince Henry of Wales on 19th May, 2018. Being a high profile couple, they were consistently under media lens. It was reported that the relationship between the claimant and her father, Thomas Markle, was difficult and 3 months after the wedding, the claimant sent her father a five-page letter (hereinafter ‘the Letter’). In September 2018, Mr. Markle sent a letter in reply. The existence of the Letter first became public on 6th February, 2019, when it was mentioned in an eight-page article that appeared in the US magazine People under the headline “The Truth About Meghan – Her best friends break their silence”. Mr. Markle then provided the defendant with the Letter, or a copy of it. On 9 February 2019, the defendant published in hard copy and online the five articles of which the claimant complains (“the Mail Articles”). These articles quoted extensively from the Letter, under headlines the gist of which is conveyed by the one across pages 4 and 5 of the Mail on Sunday: “Revealed: the letter showing true tragedy of Meghan’s rift with a father she says has ‘broken her heart into a million pieces’”.

The instant action arose from the later reproduction of large parts of the claimant’s Letter in articles published by the defendant in the Mail on Sunday and on Mail Online (hereinafter ‘the Mail Articles’).

Contentions

The Claimant:

  • The contents of the Letter were private; this was correspondence about her private and family life, not her public profile or her work.
  • The Letter disclosed her intimate thoughts and feelings; these were personal matters, not matters of legitimate public interest; she enjoyed a reasonable expectation that the contents would remain private and not be published to the world at large by a national newspaper.
  • The defendant’s conduct in publishing the contents of the letter was a misuse of her private information.
  • The Letter is an original literary work in which copyright subsists; she is the author of that work, and of a draft she created on her phone (Electronic Draft); and the Mail Articles infringed her copyright by reproducing them in a material form, and issuing and communicating to the public, copies of a substantial part of the Electronic Draft and/or the Letter.

 The Defendant: The defendant while denying the claim made the following submissions-

  • The claimant’s right to privacy is limited given the rightful public interest in the activities of the Royal family and the claimant’s status as a “high-ranking member” of that family.
  • The article that was published in the US Magazine People, gave a misleading account of the father-daughter relationship, ‘the Letter’ and Mr. Markle’s response, such that (in all the circumstances) public disclosure of the contents of the Letter in the Mail Articles was justified to protect the rights and interests of Mr. Markle and the public at large.
  • It was further contended that the claimant intended the Letter to be publicised, and to that end disclosed information about it to the “best friends” quoted in the People Article.
  • Regarding the allegation of copyright infringement, the defendant questioned the claim of originality, subsistence of copyright etc. and relied on the defences of fair dealing and public interest.

The instant application was filed under R. 3.4(2)(a) and R. 24.2 of the Civil Procedure Rules which allows the Court to give summary judgment against a defendant on the whole of a claim, or on a particular issue, if it considers that- the defendant has no real prospect of successfully defending the claim or issue; and there is no other compelling reason why the case or issue should be disposed off at a trial.

Observations and Decision

Mark Warby, J., while considering the merits of the instant case, identified certain essential legal principles –

  • The Human Rights Act, 1998 obliges the Court to interpret, apply and develop English law in conformity with the European Convention on Human Rights (hereinafter, the Convention). Where an individual complains that their privacy has been violated by newspaper reports, the Court must ensure that its decision properly reconciles the competing Convention rights. The Domestic Law gives effect to this framework through the ‘Tort of misuse of Private Information’.
  • In the aforementioned Tort, the liability is to be determined by applying a 2 Stage Test– at Stage 1 the question is whether the claimant enjoyed a reasonable expectation of privacy in respect of the information in question; and, at Stage 2, the question is whether in all the circumstances the privacy rights of the claimant must yield to the imperatives of the freedom of expression enjoyed by publishers and their audiences.

It was observed that the defendant publisher is bound by the Editors’ Code of Conduct enforced by the Independent Press Standards Organisation (IPSO) and the Court is obliged to regard the Code. The Court scrutinized the facts, the Letter in question and the events surrounding the controversial publication of the Letter. The aforementioned 2-Stage Test was applied to the facts-

 Stage 1- Reasonable expectation of privacy: It was noted by Warby, J., that there are tow main issue in this Stage- firstly, whether the Defence sets out any case which, (assuming it to be true) would provide a reasonable basis for finding that there, no reasonable expectation of privacy; secondly, whether the defendant has any realistic prospect of successfully defending this issue at trial. Answering both the questions in negative, the Judge observed that, “Nothing that the defendant has pleaded in answer to this part of the claimant’s case provides any reasonable basis for defending the issue. I also consider that there is no real prospect of the Court concluding after a trial that, at the time the Mail Articles were published, or at any material time between then and now, the contents of the Letter were not private, or that the claimant did not enjoy a reasonable expectation that they would remain private”. The Judge explained that he is aware that the defendant’s case has its own complexities and subtleties, “But in reality, there is much that is plain and obvious”.

It was noted that the detailed contents of the Letter had entered the public domain by the time of the publication complained of, however, the People Article had disclosed the existence of the Letter, and provided a broad description, but not its detailed contents. The Court also noted that the claimant being a member of the British Royal Family is a public figure about whom much had been and continued to be written and published, but the nature of the “activity” in which she had engaged was not an aspect of her public role or functions. It was further noted that the Letter fell within the scope of Article 8 of the Convention as “correspondence” that contains matter relating to the “family life” of the claimant and her father. It was therefore concluded that, “the claimant would be bound to win at trial on this issue. It is fanciful to think otherwise”.

Stage 2- Balance between Privacy and Freedom of Expression: It was observed that in some aspects the defendant’s case is legally flimsy. Given the claimant’s status as a public figure ‘be bound to weigh heavily in the balance’ between privacy and freedom of expression. The Court noted that the defendant’s argument about the claimant having a limited right to privacy, echoes “the crude common law principle, enunciated long-ago, but since discarded, that those who seek favourable publicity somehow waive their rights, and must accept adverse publicity”.

Upon detailed perusal of the defendant’s arguments, the Court concluded that the claimant had a reasonable expectation that the contents of the Letter would remain private. The Mail Articles interfered with that reasonable expectation. The only reasonable justification for any such interference was to correct some inaccuracies about the Letter contained in the People Article. Warby, J., further noted that, “Taken as a whole the disclosures were manifestly excessive and hence unlawful. There is no prospect that a different judgment would be reached after a trial. The interference with freedom of expression which those conclusions represent is a necessary and proportionate means of pursuing the legitimate aim of protecting the claimant’s privacy”.

Issue of Copyright Infringement

The instant case also raised the matter of the claimant’s copyright infringement vis-à-vis reproduction of the ‘electronic draft’ of the Letter in material form. Regarding this matter the Court observed that, the Mail Articles proceeded on the basis that the wording of the Letter was entirely the work of the claimant. The Court stated that ‘originality’ is a key matter of consideration in this issue and to satisfy the requirement of originality; a work need not be novel or ingenious. The defendant denies that the works relied on in this case are original, asserting that the Electronic Draft and Letter are “primarily an admonishment” of Mr Markle by the claimant. Noting that it was not easy to identify the precise nature of the defendant’s argument especially when they ignored that there is of course no copyright in news, but copyright has been recognised as subsisting in the literary form of a news report. Warby, J., states that, “The defendant’s case is not that the works relied on did recite pre-existing facts. The defendant pleads that they “purported” to do so. In its pleading, it adopts an agnostic stance. If the burden of proof lies on the defendant, then its case must fail”. The Court concluded that Electronic Draft is and would inevitably be held to be the product of intellectual creativity sufficient to render it original in the relevant sense. The Court concluded that, the Mail Articles copied a substantial part of the work. It is undeniable that they reproduced a substantial part in qualitative terms and in the sense that they reproduced a substantial part of “that which is the author’s own intellectual creation”. Warby, J., pointed out that, “The defendant’s factual and legal case on this issue both seems to me to occupy the shadowland between improbability and unreality”. He was however persuaded that there should be a trial limited to issues relating to the ownership of copyright.[HRH The Duchess of Sussex v. Associated Newspapers Ltd., [2021] EWHC 273 (Ch), decided on 11-02-2021]


Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In a case where withing a couple of days of the alleged dowry death of a doctor in Agra, a suicide note was leaked to the newspapers of the city, the 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has said that selective disclosures to the media affect the rights of the accused in some cases and the rights of victims families in others.

“The media does have a legitimate stake in fair reporting. But events such as what has happened in this case show how the selective divulging of information, including the disclosure of material which may eventually form a crucial part of the evidentiary record at the criminal trial, can be used to derail the administration of criminal justice.”

Background

The deceased, a doctor by profession, married the accused, also a doctor, in 2014. Over Rs.1.50 crores were spent by the deceased’s father for conducting the marriage. It was alleged that even thereafter, deceased’s husband, his parents, brother-in-law and sister-in-law misbehaved with the deceased on account of dowry. Deceased’s father alleges to have paid money on several occasions by cheque to her in-laws. Also, she was severely assaulted in 2017. In the meantime, the deceased suffered miscarriages on two occasions and ultimately, adopted a daughter. The FIR states,

“… dowry greedy people killed Dipti in [xxx] for non-receipt of dowry and non-fulfilment of the demands, and admitted Dipti in their hospital itself in the almost dead condition, in order to save themselves, but she was not allowed any treatment with the intention of killing her. In order to save the life of Dipti, the applicant took her away to the Sarvodaya hospital Faridabad for treatment, at the earlies.” (sic)

While the Sessions Judge denied anticipatory bail on 21 August 2020, the single judge of Allahabad High Court held that

(a) the FIR prima facie appears to be engineered to implicate the applicants;

(b) there is no corelation in between the various allegations leveled in the FIR; and

(c) the allegations “are general in nature” with no specific role being assigned to the accused.

Analysis

On FIR being “engineered” to implicate the spouse of the deceased and his family

Finding the judgment of the Single Judge of the High Court of Judicature at Allahabad unsustainable, the Court held that the FIR contained a recital of allegations bearing on the role of the accused in demanding dowry, of the prior incidents of assault and the payment of moneys by cheque to the in-laws of the deceased. It aslo referred to the telephone calls which were received both from the father-in-law of the deceased on the morning of 3 August 2020 and from the deceased on two occasions on the same day- a few hours before her body was found.

“The grant of anticipatory bail in such a serious offence would operate to obstruct the investigation. The FIR by a father who has suffered the death of his daughter in these circumstances cannot be regarded as “engineered” to falsely implicate the spouse of the deceased and his family.”

On publicity of the alleged suicide by media

“This is not fair to the accused because it pulls the rug below the presumption of innocence. It is not fair to the victims of crime, if they have survived the crime, and where they have not, to their families.”

The investigating officer has a duty to investigate when information about the commission of a cognizable offence is brought to their attention. Unfortunately, this role is being compromised by the manner in which selective leaks take place in the public realm. Neither the victims nor their families have a platform to answer the publication of lurid details about their lives and circumstances.

“The daughter of the appellant had died in mysterious circumstances. The family had completed the last rites. To expect that they should be scouring the pages of the print and electronic media before reporting the crime is a mockery of the human condition.”

Further, the apprehension of the appellant that the deceased’s husband and his family have a prominent social status in Agra and may have used their position in society to thwart a proper investigation cannot be regarded to be unjustified.

On transfer of investigation to CBI

“The investigation by the UP Police in the present case leaves much to be desired.”

The Court said that it would be a travesty if it were to ignore the glaring deficiencies in the investigation conducted so far. Further,

“The status of the accused as propertied and wealthy persons of influence in Agra and the conduct of the investigation thus far diminishes this Court’s faith in directing a further investigation by the same authorities. The cause of justice would not be served if the Court were to confine the scope of its examination to the wisdom of granting anticipatory bail and ignore the possibility of a trial being concluded on the basis of a deficient investigation at best or a biased one at worst.”

Hence, it is necessary to entrust a further investigation of the case to the CBI in exercise of the powers of this Court under Article 142 of the Constitution.

Directions

(i) The order passed by the Single Judge of the High Court of Judicature at Allahabad allowing the applications for anticipatory bail by the respondents-accused set aside and the bail granted to them stands cancelled; and

(ii) The CBI is directed to conduct a further investigation in the matter.

[Dr. Naresh Kumar Mangla v. Anita Agarwal,  2020 SCC OnLine SC 1031, decided on 17.12.2020]

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Editors Guild of India is concerned about the news coverage of the farmers’ protests in the national capitals, wherein certain sections of the media have been labelling them as “Khalistanis”, “anti-nationals”, and other such terms to delegitimize the protests without any evidence or proof. This goes against the tenets of responsible and ethical journalism. Such actions compromise the credibility of the media.

EGI advises media organizations to display fairness, objectivity, and balance in reporting the farmers’ protests, without displaying partisanship against those who are exercising their constitutional rights to express themselves.

Media shouldn’t be complicit to any narrative that derogates dissent and stereotypes protestors based on their attire and ethnicity.


Editors Guild of India

[Media Advisory dt. 04-12-2020]

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Press Council of India has considered references received from various quarters by Government about the responsibility of Indian Newspapers in publishing foreign contents.

The Council is of the view that unregulated circulation of the foreign content is not desirable.

Hence, it advises the media to publish foreign extracts in Indian newspapers with due verification as the Reporter, Publisher and Editor of such newspaper shall be responsible for the contents irrespective of the source from which it is received.


Press Council of India

[Press Release dt. 25-11-2020]

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Press Council of India while considering the communication received from Election Commission of India advises the print media to refrain from publishing article which in any way whatsoever predict the results of the elections during the prohibited period under Section 126A to ensure free, fair and transparent election.

In the council’s view, the prediction of election results in any form or manner by way of predictions, etc. by astrologers, tarot readers, political analysts or by any persons during the prohibited period is a violation of the spirit of Section 126A which aims to prevent constituencies still going to polls from being influenced in their voting by such predictions about the prospects of the various political parties.

Print media is hereby advised not to publish/publicise any such article of results, during the prohibited period i.e. between 7 am on 28-10-2020 and 6.30 pm on 07-11-2020 in the current General Election to the State Legislative Assembly of Bihar, 2020 to ensure free and fair elections.

Hence, in view of the above, newspapers/ news agencies are advised to adhere to the above mentioned time frame before publishing the article of elections results, etc.


Press Council of India

[Dt. 20-10-2020]

Hot Off The PressNews

After the media persons were prevented from reporting the development in  and around Hathras after the Hathras Gang Rape case, the Editors Guild of India has issued a statement condemning the same.

“The Editors Guild Of India condemns the manner in which the law enforcement agencies of the Uttar Pradesh government, led by Yogi Adityanath, have prevented media persons from reporting on developments in and around Hathras after a brutal assault on a woman leading to her death and the hurried cremation of her body by the authorities without the presence of the family of the deceased.”

The statement also shows displeasure over the way the government has tapped the telephones of journalists engaged in covering the Hathras incidents.

“Worse, the tapped conversation of the journalists has been selectively leaked, leading to a social media calumny against them.”

The Guild states that such conduct of the law enforcement agencies of the Uttar Pradesh government undermines and obstructs the functioning of the media. It has, hence, demanded that the government creates conditions in Hathras that do not obstruct journalists in any way.

The statement also states,

“Hathras is the worst such case in the scale of interference but the Guild also notes with concern that such attacks against the media are becoming part of a growing trend seen in recent months, in which a few other state governments have also indulged in such harassment of journalists.”

Read the statement here


Also read

Hathras Gang-Rape | “Shocked by reports of events that led to victim’s cremation”, All HC orders registration of Suo Motu PIL

Gang Rape & brutality of 19-year-old women belonging to Scheduled Caste in Hathras district, UP: NHRC takes suo motu cognizance

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The Council has noted with distress that coverage of the alleged suicide by a Film actor by many media outlets is in violation of the Norms of Journalistic Conduct and, therefore, advises the Media to adhere to the Norms framed by the Press Council of India.

The Media should not narrate the story in a manner so as to induce the general public to believe in the complicity of the person indicted. Publishing information based on gossip about the line of investigation by the official agencies on the crime committed is not desirable. It is not advisable to vigorously report crime related issues on a day to day basis and comment on the evidence without ascertaining the factual matrix. Such reporting brings undue pressure in the course of fair investigation and trial.

The Media is advised to refrain from giving excessive publicity to the victim, witnesses, suspects and accused as it will amount to invasion of their privacy rights. Identification of witnesses by the Media needs to be avoided as it endangers them to come under pressure from the accused or his associates as well as investigating agencies.

The Media is advised not to conduct its own parallel trial or foretell the decision to avoid pressure during investigation and trial.

Further, the reporting of the alleged suicide by the actor by some of the newspapers is also in violation of the norms formulated by the Council for reporting on suicide. The norm prohibits publishing stories about suicide prominently and advises the media not to unduly repeat such stories. The media is expected not to use language which sensationalise or normalises suicides or presents it as a constructive solution to the problems. The Media is advised not to use sensational headlines or use photographs, video-footage or social media links while reporting on suicide cases.


Press Council of India

[Press Release dt. 28-08-2020]

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., while addressing a matter with regard to the Order issued by Delhi Police on 8-07-2020 in respect to the arrests being made in the Delhi Riots matter, made a suggestion that,

“media being the fourth pillar of democracy, news should be clear after verifying the facts so that no prejudice is caused to anyone or hatred is spread among communities in this country.”

Court refused to quash the order issue dby Delhi Police, wherein “arrests of some Hindu youth had led to a degree of resentment among the Hindu community” and therefore, subordinate officers should take due care and precaution while arresting any person.

Petitioners were aggrieved by the issuance of the respondent 4’s order to the investigating officers and teams while the investigation pertaining to the carnage that took place in North East Delhi was still underway.

Indian Express had reported the said order by an Article titled —

‘RESENTMENT IN HINDUS ON ARRESTS, TAKE CARE: SPECIAL CP TO PROBE TEAMS’ on 15-07-2020.

Article pertained to the ongoing investigation, arrests and prosecution by the Delhi Police in cases relating to the carnage in North East Delhi and inter-alia reports that order dated 08-07-2020 addressed to subordinate officers heading probe teams and signed by respondent 4 cites an “intelligence input” about the riot-related arrests of “some Hindu youth from Chand Bagh and Khajuri Khas areas of Northeast Delhi” and goes on to state that arrests of “some Hindu youth” has led to a “degree of resentment among the Hindu community”.

The Order proceeds to direct that “due care and precaution” must be taken while making such arrests.

Adding to the above, it states that “community representatives are alleging that these arrests are made without any evidence and are even insinuating that such arrests are being made for some personal reasons.

The order goes on to name two Muslim men and states: “In the same area, resentment among Hindu community is also reported for alleged police inaction” against the two, “who are alleged to have been involved in mobilizing members of the Muslim community during Delhi riots and anti-CAA protests”.

It has also been stated that direct message has been conveyed to the subordinate officer that due care be taken in case of arresting the Hindu People and no precaution may be taken while arresting the Muslim people.

High court while parting with the decision made it clear that the IOs of the cases shall be dealing in accordance with the law and shall not take into consideration instructions vide order dated 08-07-2020, whereby it was stated that the evidences must be discussed with Special PPs assigned to each case

While issuing any instructions especially in such type of situation, the respondents shall take due care, however, in any eventuality, instructions may be issued within the powers mentioned under Section 36 CrPC.

Bench also noted that the electronic/print media has published some news which was against the letter and spirit of the Order dated 08-07-2020 issued by respondent 4.

Further, the Court also noted that 535 Hindus and 513 Muslims have been charge-sheeted in all cases. Thus, no prejudice has been caused pursuant to letter dated 08.07.2020

Hence, the Court suggested that media being the fourth pillar of democracy, news should be clear after verifying the facts so that no prejudice is caused to anyone or hatred is spread among communities in this country.

Investigating authorities must not create any bias on the basis of any instruction issued by the senior officers which are not recognized under any law.

In view of the above petition was disposed of. [Sahil Parvez v. GNCTD, 2020 SCC OnLine Del 971, decided on 07-08-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Vikram Nath, CJ and P.B. Pardiwala, J., while addressing an issue with regard to the live streaming of the Court proceedings held that a committee to work out the modalities for the said purpose has been constituted comprising of two Judges of this Court.

A law student raised the issue with regard to the Live Streaming/Open Access of the Court proceedings and in the public interest Gujarat High court should work out the necessary modalities for the said purpose.

Bench on perusal of the material on record, stated that to observe the  requirement of an open Court proceedings, members of the public should be allowed to view the Court hearings through video conferencing except the proceedings ordered for the reasons recorded in writing to be conducted in-camera.

Right to Know and receive information is one of the facts of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness the Court proceedings.

As, the above-stated Court proceedings involve the issue impacting the public at large or a section of the public.

Bench appreciated the efforts of the 3rd year law student appeared in person in the public interest.

Further, in line of the above-stated observations, Bench stated that to work out the modalities to facilitate the people at large including the media to watch the virtual hearing, Committee of two Judges of this High Court has been constituted pursuant to Standing Committee’s decision on 25-06-2020.

In the near future, a report of the committee is expected after which to allow access to the public at large including the media persons of print digital and electronic media shall be finalized.

Petition was disposed of in view of the above. [Pruthvirajsinh Zala v. Gujarat High Court, 2020 SCC OnLine Guj 1055 , decided on 20-07-2020]

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

Hot Off The PressNews

Taking note of provisions regarding “Fake News” mentioned in the Media Policy 2020 whereby Government of Jammu and Kashmir authorises its officers to decide the content of print, electronic and other forms of media for “fake news” and proceed against journalists and media organisations, the Press Council of India has moved suo motu as the matter affects the functioning of the press.

Comments in the stated matter have been called from the Chief Secretary the Government of Jammu and Kashmir and Secretary, Information Department, Department of Information and Public Relations, Government of Jammu and Kashmir.

PRESS RELEASE


Press Council of India

Press Release dt. 16-06-2020

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. was hearing a petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter mentioned as CrPC) in the High Court of Judicature at Allahabad pertaining to the complaint filed by the petitioner. 

The petition has been filed by The Group Editor, The Local Editor, and The Press Reporter, Sahara India Mass Communication, Lucknow impugning the orders of summoning by Additional Chief Judicial Magistrate in Case No. 221 of 2010, Ramveer Upadhaiya v. Jaibrat Roy. The case was regarding a news article published by Rashtriya Sahara on 11-09-2009, based on a letter written by Mr Krishan Gopal on behalf of the Chief Minister to Mr J.N. Chamber and a subsequent letter to Mr Navneet Sehgal asking for inquiry over-demanding of Rupees 10 lakhs by respondent 2 (Minister) from Mr R.K. Kashyap, Chief Engineer, Western Electricity, failure in fulfillment of what led to his transfer and his suspension subsequently. Mr. Kashyap later in 2 letters denied allegations over the minister and withdrew his role in the letter writing. 

The petitioner submitted that the article published in ‘Rashtriya Sahara’ on 11-09-2009 was preceded by a similar kind of article published in daily Hindi newspaper ‘Deshbandhu’ and it contained statements made by several political leaders. Later, Mr O.P. Rai, on behalf of the complainant sent a letter to Rashtriya Sahara stating that Mr Kashyap has not given any complaint against the minister. The same was published on 22-10-2009.

The respondent submitted that the petitioners have published the aforesaid news item with an intention to malign the image and reputation of respondent 2 and of the State Government.

The Court held that it is the duty of the press to expose the government and its functionaries. If the press is put under the threat of prosecution, it can not perform its duty and thus the rights granted under Article 19(1)(a) of the Constitution of India is violated. And also the Court took note of the article published in another Hindi daily ‘Deshbandhu’ and if the newspaper had not published the article it would violate its duty. The Court also held that the complaint on behalf of the minister has should be filed through a Public Prosecutor in the Court of Session.

The Court opined that to constitute the offence of defamation under Section 499 of Penal Code, 1860 there has to be imputation, and it must have been made in the manner with intention of causing harm or having reason to believe that this imputation will harm the reputation of a person. It was held that the article is not defamatory and that the complaint is not maintainable before the Additional Chief Judicial Magistrate and hence the petition is allowed. [Ranvijay Singh v. State of Uttar Pradesh, Case No. 284 of 2013, decided on 20-12-2019]

Hot Off The PressNews

Commission has noted that NaMo TV/Content TV is a platform service offered by DTH operators offered to the BJP on a paid basis.

It has been confirmed that there has not been any pre-certification of the content being displayed on NaMo TV/Content TV, by the MCMC Committee.

As NaMo TV/Content is sponsored by a political party, all recorded programmes of a political party, all recorded programmes of political contents displayed on the channel/platform would be covered under the purview of the Commission’s order dated 15-04-2004 issued in pursuance of the order dated 13-4-2004 of Supreme Court in Secy., Ministry of Information and Broadcasting v. Gemini TV, (2004) 5 SCC 714. Accordingly, all political advertisements and all recorded programmes with political contents are mandatorily required to be pre-certified by MCMC before telecasting/displaying.

Further, any political publicity materials/contents, being displayed on electronic media without the requisite certification from the competent authority (MCMC in this case) should be removed immediately and any political content shall only be permitted strictly in accordance with ECI instructions in this regard.


[Order Dated: 11-04-2019]

Election Commission of India

Hot Off The PressNews

As reported by media, Supreme Court restrained the telecasting of images and videos of the minor rape victims at a shelter home in Bihar’s Muzaffarpur district by media.

The bench comprising of MB Lokur and Deepak Gupta, JJ, directed the media not to interview the victims and stated that “they cannot be compelled to relive trauma again and again.” The bench added that the images or videos should not be published in blurred or morphed form as well.

Hence, in this regard the Supreme Court bench has issued notices to the Bihar Government, Women and Child Development Ministry and the Tata Institute of Social Sciences (TISS).

[Source: Hindustan Times]

Case BriefsHigh Courts

Bombay High Court: Hearing a public interest litigation, a Bench comprising of BP Dharmadhikari and ZA Haq, JJ. directed the Union Ministry of Information and Broadcasting to consider directing the media to refrain from using the word Dalit when referring to members of Scheduled Castes.

The Court was hearing a petition filed against the use of the word in official government documents. The petitioner informed the Court that the Ministry of Social Justice and Empowerment has already advised the Central Government to refrain from using any term apart from “Scheduled Caste” when referring to persons falling under the category. The Court was also informed that the State Government is also deliberating on taking appropriate action on the same.

The petitioner’s advocate then pointed out that similar directions to refrain from using the word were yet to be issued to the media. The Court then directed the Central Government to consider the question of issuing such direction to the media and take a suitable decision upon it within next six weeks. [Pankaj alias Lalitji Meshram v. Joint Secretary, Public Interest Litigation No. 114 of 2016, decided on 06-06-2018]