Present:mr.Akshay Bhan Advocate Vs. the Publisher Times of India Chandigarh and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1057302
CourtPunjab and Haryana High Court
Decided OnApr-04-2013
AppellantPresent:mr.Akshay Bhan Advocate
RespondentThe Publisher Times of India Chandigarh and Others
Excerpt:
civil writ petition no.7160 of 2013 (o&m) :1: in the high court of punjab and haryana at chandigarh date of decision: april 04 2013 courts on its own motion .....petitioner versus the publisher, times of india, chandigarh & others ....respondents coram:- hon'ble mr.justice ranjit singh 1 whether reporters of local papers may be allowed to see the judgement?.2. to be referred to the reporters or not?.3. whether the judgment should be reported in the digest?. present: mr.arun palli, senior advocate with mr.tushar sharma, advocate, amicus curiae. mr.anup bhambani and mr.sumeet goel, advocates, for the hindustan times. mr.vivek sethi, advocate, for press council of india. mr.r.s.rai, senior advocate with mr.gautam dutt, advocate, for times of india. mr.gurpreet singh, senior standing panel.....
Judgment:

Civil Writ Petition No.7160 of 2013 (O&M) :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 04 2013 Courts on its own motion .....Petitioner VERSUS The Publisher, Times of India, Chandigarh & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1 Whether Reporters of local papers may be allowed to see the judgement?.

2. To be referred to the Reporters or not?.

3. Whether the judgment should be reported in the Digest?. PRESENT: Mr.Arun Palli, Senior Advocate with Mr.Tushar Sharma, Advocate, Amicus Curiae. Mr.Anup Bhambani and Mr.Sumeet Goel, Advocates, for the Hindustan Times. Mr.Vivek Sethi, Advocate, for Press Council of India. Mr.R.S.Rai, Senior Advocate with Mr.Gautam Dutt, Advocate, for Times of India. Mr.Gurpreet Singh, Senior Standing Panel Counsel for Union of India. **** RANJIT SINGH, J.Much of the sheen relating to norms of covering court proceedings in a pending case by Media is taken away in view of the Civil Writ Petition No.7160 of 2013 (O&M) :2: pronouncement of the Hon'ble Supreme Court in recent decision titled Sahara India Real Estate Corp. Ltd. & Ors. Versus Securities & Exchange Board of India & Anr., 2012(4) R.C.R. (Civil) 801. Considering that still there may be some scope left in this regard, I have decided to express myself in this case where this court by taking suo-motu notice had put some of the Newspapers in the region to respond. The issue primarily arose from a news item covered by Times of India dated March 2, 2009, where opinionated news was regularly seen in a case which was listed before this Court. It was noticed that such news item appeared a day prior to the date fixed for hearing of the case listed before the Bench. This case was to come up before this court on 2.3.2009 and on the same day the news appeared in the Times of India, Chandigarh Edition under the heading “Haryana for mine auction, but its plea admits pitfalls”.. In this News item, the stand of the Haryana Government was reflected and commented upon. News item starts by mentioning that “Haryana Government may be sticking to its decision to auction the mines of Khori Jamalpur and Sirohi on March 3, but the petition it has submitted to the Punjab and Haryana High Court on Wednesday is littered with reasons for not doing so”.. Then the News item has gone on to state its opinion on various issues, which were pending before the Court. Noticing the same, this court issued notice to the Times of India on 2.3.2009 by recording the following observations:- Civil Writ Petition No.7160 of 2013 (O&M) :3: “C.M.Nos.2438 & 3676 of 2009 (O&M) Civil Writ Petition No.1300 of 2009 Present:Mr.Akshay Bhan, Advocate, for the petitioner. Mr.H.S.Hooda, Advocate General, Haryana with Mr.Yashwinder Singh, AAG, Haryana, for the State. *** C.M.No.3676 of 2009 Prayer for interim relief is rejected. C.W.P.No.1300 of 2009 Main case is adjourned to 27.3.2009. Even since this case has been listed for hearing, the local edition of `The Times of India' has been extensively covering this case in an opinionated manner. The news paper is aware of the fact that the case is sub-judice as even the dates of the case were also mentioned in some of the news items. Even in today's Time of India newspaper, the entire stand, as projected on behalf of the State, is reflected in the news with comments thereon. This act is apparently aimed at interfering with the administration of justice. A just decision may be a casualty in such like eventuality. This may even be at the instance of some interested person or organisation. In fact, a fresh writ petition is filed today to challenge the auction fixed for 3.3.2009. Lastly the newspapers have been going over-board and to the extent of even quoting verbal Civil Writ Petition No.7160 of 2013 (O&M) :4: observations of the Court. They are required to faithfully report the proceedings, which take place in the Court, but perhaps are not doing so with some purpose. Time has come when parameters may have to be laid down as to what extent the Press Reporters can go while reporting the proceedings which take place in the Court. Let notice issue to the Editor, Times of India, Chandigarh Edition, its Publisher and all the Correspondents of the newspaper, who have covered this news item for the adjourned date i.e. 27.3.2009 to show cause as to why action be not initiated to see if there has been any aim to interfere in the administration of justice. A copy of the news item dt.2.3.2009 is kept on record.”

. The counsel appeared to represent various functionaries in the newspapers. The names of the correspondents, who had covered this news item, were also supplied. On 20.5.2009, the Court considered appropriate to appoint a counsel to assist in this case. Mr.Arun Palli, Senior Advocate readily accepted the task and was appointed as Amicus Curiae. Subsequently, on 28.7.2009, the court took notice of another news paper report published in Hindustan Times Chandigarh Edition covering some legal issues relating to the High Court. This news item was found to be aimed at bringing disrepute to the Civil Writ Petition No.7160 of 2013 (O&M) :5: judiciary. Notice was also issued to the Resident Editor, Hindustan Times, Chandigarh Edition. What was written by Hindustan Times in its news dated June 3, 2009 was nothing but scandalous. When the matter was heard partly on 9.12.2009, it was considered necessary to have assistance from the Press Council of India as well as from Union of India through Ministry of Information and Broadcasting. Even the counsel appearing for Hindustan Times brought it to the notice of the court that he had already moved an application to implead Union of India as well as the Press Council of India as additional respondents. The Amicus Curiae was also of the view that it would be necessary to hear the said respondents for proper adjudication of the issues being considered by the Court. Union of India as well as the Press Council of India were accordingly impleaded as a party respondents and put to notice. Both the newly added respondents subsequently put in their appearance and have filed their respective responses. The replies on behalf of the respondent-Times of India, Hindustan Times and by the Union of India as well as the Press Council of India were filed. The stand taken by the Times of India is that the news articles were published and printed not with intention of interfering or obstructing the administration of justice. Otherwise, it is stated that the mining in the Aravalis Hills is an issue of utmost public importance as it directly concerns the environment degradation of Aravalis and life of the public at large living in the region. It is stated that the newspaper Times of India had been running a campaign for saving the Aravalis for more than six months. Various newspaper Civil Writ Petition No.7160 of 2013 (O&M) :6: reports published by Times of India in regard to campaign have been placed on record. Reference is also made to the norms formulated by Press Council of India under the Caption “caution in criticising judicial acts”.. These are reproduced as under:- “a) Caution in criticising judicial acts i) Excepting where the court sits `in-camera' or directs otherwise, it is open to a newspaper to report pending judicial proceedings, in a fair, accurate and reasonable manner. But it shall not publish anything:- -which, in its direct and immediate effect, creates a substantial risk of obstructing, impeding or prejudicing seriously the due administration of justice; or -is in the nature of a running commentary or debate, or records the paper's own findings conjectures, reflection or comments on issues, subjudice and which may amount to abrogation to the newspaper the functions of the court; or -regarding the personal character of the accused standing trial on a charge of committing a crime. ii) Newspaper shall not as a matter of caution, publish or comment on evidence collected as a result of investigative journalism, when, after the accused is arrested and charged, the court becomes seized of the case: not should they reveal, comment upon or evaluate a confession allegedly made by the accused. iii) While newspapers may, in the public interest, make Civil Writ Petition No.7160 of 2013 (O&M) :7: reasonable criticism of a judicial act or the judgement of a court for public good; they shall not cast scurrilous aspersions on, or impute improper motives, or personal bias to the judge. not shall they scandalise the court or the judiciary as a whole, or make personal allegations of lack of ability or integrity against a judge. iv) Newspaper shall, as a matter of caution, avoid unfair and unwarranted criticism which, by innuendo, attributes to a judge extraneous consideration for performing an act in due course of his/her judicial functions, even if such criticism does not strictly amount to criminal contempt of Court. b) Reporting News pertaining to Court Proceedings Before publishing a news item about court proceedings, it will be appropriate for the correspondent and editor to ascertain its genuineness and, correctness and authenticity from the records so that the concerned person can be held guilty and accountable for furnishing incorrect facts or wrong information about the court proceedings.”

. It is disclosed in the reply that workshop was organized by the Hon'ble Supreme Court in March, 2008, where an extensive debate took place which was addressed by Hon'ble Judges and some lawyers as well. This was concerning the issue of oral observations of the court by the Media. The consensus statedly was that the journalists should take care in their reports to distinguish Civil Writ Petition No.7160 of 2013 (O&M) :8: between oral observations and orders. Journalists were also sensitized to the possibility of some of those oral observations actually being no more than the questions put to draw out information from the counsel. It is stated that consensus did not favour the extreme view that the media should be banned from reporting oral observations. Copy of the revised norm for accreditation of the legal correspondents in the Supreme Court issued on 3.1.2007 is also placed on record. Reference to these may also be relevant and these are as under:- “REVISED NORMS FOR ACCREDITATION OF THE LEGAL CORRESPONDENTS IN THE SUPREME COURT OF INDIA. (Dated 03-01-2007) 1. He must have a Law degree recognized by the Bar Council of India under the Advocate Act.

2. He should ordinarily have seven years' Court reporting experience in a daily newspaper and/or a national or international news agency or electronic Media Organization of which at least five years must be at Supreme Court or at any High Court(s) in India. Provided, however, that out of the said period of five years three and a half years at least should, immediately prior to the application or accreditation, be continuous. OR He should have five years continuous regular court reporting experience for an Electronic Media Civil Writ Petition No.7160 of 2013 (O&M) :9: Organization, immediately prior to the application for accreditation, of which at least two years must be in Supreme court or at any High Court(s) in India.

3. He has regularly reported the proceedings of the Supreme Court for at least six months for a daily newspaper or for one year for an electronic media organization, on temporary accreditation granted to him and continues to represent a daily newspaper of not less than 40,000/- circulation certified by the Registrar of Newspapers, the Audit Bureau of Circulation (ABC) or the Director of State Information Bureau or a national or international news agency or an electronic media organization. 3(A) The Chief Justice of India, for special reasons, may refer to the Accreditation Committee the case of any deserving candidate for consideration of according accreditation in relaxation of the rules and guidelines and on such reference the Accreditation Committee may advise the Chief Justice of India suitably.

4. On being granted regular accreditation on the prescribed application, the legal correspondent will be issued an identity card which will be valid for one year and which will have to be renewed annually.

5. In case, an accredited legal correspondent is transferred or otherwise ceases to represent the above- mentioned newspaper, news agency or electronic media Civil Writ Petition No.7160 of 2013 (O&M) :

10. : organization for which he was granted accreditation, he shall, within two weeks of such transfer or cessation, return the identity card issued to him by the Supreme Court Registry.

6. TEMPORARY ACCREDITATION: An applicant for temporary accreditation will be eligible for consideration on his fulfilling the following conditions: (a) He is working journalist desiring to report regularly the Supreme Court proceedings and furnishes a letter from his newspaper, news agency or other media organization concerned to that effect. (b) He possesses a Law degree recognized by the Bar Council of India under the Advocates Act. (c ) The application must be accompanied by an attested copy of the Law degree. (d) He should ordinarily have seven years' court reporting experience in a daily newspaper and/or a national or international news agency or electronic Media Organization of which at least five years must be at Supreme Court or at any High Court(s) in India. Provided, however, that out of the said period of five years three and a half years at least should, immediately prior to the application for accreditation be continuous. OR He should have 3½ years continuous regular court reporting experience for an Electronic Media Civil Writ Petition No.7160 of 2013 (O&M) :

11. : Organization, immediately prior to the application for accreditation, of which at least 1½ years must be in Supreme Court or at any High Court(s) in India. (e) The application must be supported by clippings showing the Court reportage for the requisite number of years and a letter from the Chief Editor certifying the above-mentioned experience of reportage. Clipping will however not be required, if experience of Court reporting for a news paper is not claimed.

7. All facilities including the supply of free cause list and a copy of the judgment/order will be confined only to the accredited legal correspondents. Each media organization will be entitled to only one free copy of the judgment/order/cause list through its regularly accredited correspondent. 7(A) An accredited correspondent, regular or temporary, shall while in Court precincts be in a formal dress, in a manner befitting the décor of the Court and displaying prominently his accreditation card.

8. TEMPORARY REPORTING FACILITY: The Registrar in his discretion may grant temporary reporting facility to a working journalist for a day/short duration or for a specific case on his fulfilling the following criteria; He must submit a formal letter from the Editor making a specific request along with his PIB Accreditation Card of Civil Writ Petition No.7160 of 2013 (O&M) :

12. : Parliament Pass for correspondents for being considered for the grant of such temporary reporting facility.

9. That whenever a press representative who has been accorded accreditation leaves the Press/Agency/ Organization which he is representing and joins another Press/Agency/Organization, he may not be extended the privileges of an accredited press representatives unless he seeks fresh accreditation by making appropriate application in accordance with the norms.

10. Grant of accreditation will be in sole discretion of Hon'ble the Chief Justice of India and his decision in this regard shall be final and binding on all.

11. The accreditation, whether permanent or temporary, can be withdrawn, at any time, without assigning any reason. The High Court has also issued guidelines for registration of legal correspondents and for reporting proceedings and judgments of this Court. In its reply filed by the Press Council of India, it is stated that the Council is established by the Parliament of India under Press Council Act, 1978 and its function is to preserve the freedom of Press and to maintain and improve the standards of newspapers and news agencies in India. The Press Council is headed by a Chairman, who has by convention, been a retired Judge of the Supreme Court of India. The Council consists of 28 other members of whom 20 represent the Press and are nominated by the Press Organizations/News Agencies recognised and notified by the Council and represent the categories such as editors, working journalists and Civil Writ Petition No.7160 of 2013 (O&M) :

13. : owners and Managers of Newspaper, whereas five members are nominated from the two Houses of Parliament and three represent cultural, literary and legal fields as nominees of Sahitya Academy, University Grants Commission and Bar Council of India. In response to the notice issued by this Court, reference is made to the Norms of Journalists conduct (which are already reproduced above). The Press Council has further submitted that the Print Media is expected to abide by the norms regarding caution and criticizing judicial acts and reporting news pertaining to court proceedings, which have been formulated by the Council. However, it is asserted that these norms are declaratory and are backed by moral sanctions only. It is urged that the Press Council of India does not have any punitive powers for enforcement of these norms. Finally, the Council has disclosed in the reply that it has approached the Government with specific amendments to be incorporated in the Press Council Act, 1978 for suitable empowering the Council which were statedly under consideration. on receipt of this reply, Union of India was called upon to respond as to further action taken or proposed to be taken on the approach made by the Press Council of India when Annexure R-4/1 was placed on record pointing out to the existing provision in the Press Council of India Act and the changes that were proposed and were under consideration. Mr.Anup Bhambani referred to Annexure R-4/1, which were the proposed amendments in the existing provisions and offered his valuable suggestions and comments in this regard. These Civil Writ Petition No.7160 of 2013 (O&M) :

14. : were duly noticed by this court in a detailed order passed on 5.4.2010, which reads as under:- “Mr.Anup Bhambani, appearing for Hindustan Times, has taken me through Annexure R4/1 filed on behalf of Union of India and especially the proposed amendment in the existing provisions of Press Council of India Act, 1978 (for short, “the Press Council Act”.). Proviso is proposed to be added under Section 14 of the Act to make the compliance of the directions mandatory and binding upon the newspaper and the agencies. It is also proposed that failure to comply with the directions could invite censure with further direction to suspend or stop the release of advertisement to the newspaper till adjudication is published or for the period specified by the Council. Purpose further is to add a provision that award of two censure within a period of six months may invite direction to the concerned authority to suspend the newspaper for the purpose of release of Government funded advertisement and further for suspension of accreditation of such Editor or Journalist as the case may be for a period not exceeding three months. Even a provision has not been proposed to be added for suspension of registration of the newspaper or the news agency for a period not exceeding fortnight in event of more than two instances of non-compliance with the direction issued under Section 14 within a period of one year. It is also Civil Writ Petition No.7160 of 2013 (O&M) :

15. : proposed to make the direction under this section to be binding on the authority concerned. Similarly, some amendments are also proposed in Section 15 of the Press Council Act where the Council is being authorised to pass such orders and give such direction as it may think fit in any of its decision or report respecting the conduct of any individual or any authority including the Government. Any adverse observation as made by the Press Council against any authority of State, Central or Union Territory would also be placed before the Parliament/State/ Union Territory Legislation as per the further amendment. Having highlighted the proposed amendment, the learned counsel has also placed before me the address of Hon'ble Chief Justice of India made at Guwahati on a workshop held regarding reporting of Court proceedings by Media and administration of justice and implementation of National Rural Employment Guarantee Scheme. Learned counsel has referred to the concern expressed by the Hon'ble Chief Justice of India, which is summed up as under:- “First and foremost, there is an obligation to ensure fair and accurate reporting throughout the course of a legal proceeding, whether at the stage of investigation, during arguments in the court room and eventually when the judgment or order is given. Civil Writ Petition No.7160 of 2013 (O&M) :

16. : This is a concern since it is very common to come across reports where statements made by investigators or even the court room discussions between the judges and lawyers are either erroneously cited or quoted without an explanation of their context. Secondly, in some cases there is a compelling need to protect the identity and privacy of parties. As a norm, judicial proceedings should be open to public scrutiny, but there is a need to restrain the same in some exceptional circumstances. For instance the identity of victims of sexual offences should not be disclosed. Furthermore, our procedural laws empower judges to order in camera proceedings in family-related disputes and rape trials so as to protect the victims and witnesses from undue pressure. The Madrid principles on the relationship between the media and judicial independence (1994) expressly allow for the preservation by law of secrecy during investigation of crimes even when such investigation forms a part of the judicial process. The preference for secrecy in such circumstances must be regarded as mainly for the benefit of persons who are suspected or accused and to preserve the presumption of innocence.”

. Learned counsel has then very aptly Civil Writ Petition No.7160 of 2013 (O&M) :

17. : submitted that some of the concerns specified by Hon'ble the Chief Justice about the covering of the Court proceedings may not be found reflected in the proposed amendment in the Act. Learned counsel would also submit that the stage at which these amendments are under consideration is also not indicated in the affidavit filed on behalf of Union of India. It is also not clear as to whether any amendments are proposed in the Press and Registration of Books Act, 1867. As per the counsel, to effectively provide mechanism to ensure accountability, there may be a need to amend some provisions of Press Council Act as well. The counsel has also placed before the Court the draft of suggested guidelines for Media briefing by Police which is filed on behalf of News Broadcast Association before another High Court. Copies of all these documents have also been supplied to the counsel assisting the court as amicus and the counsel appearing for the Union of India and the Press Council of India. All these documents are taken on record. On the basis of above submissions, the counsel submits that the counsel or the parties can suggest some amendments if still required either in the Press Council Act or in the Press and Civil Writ Petition No.7160 of 2013 (O&M) :

18. : Registration of Books Act, 1867. Let this exercise be done to see some agreeable amendments of these provisions further are needed. These may be directed to be followed till the time the amendments are incorporated in various enactments. The counsel representing the parties have expressed their willingness to undertake this exercise. Let the needful be done by the adjourned date.”

. A meeting was then held regarding the issue of enforceability of Press Council Act as far as norms to cover court proceedings. Minutes of the meeting dated 3-4.1.2011 were then placed on record. The Press Council has approved the proposal that at the pre-adjudicatory stage, the member of the Press Council, who hails from various parts of the country can be nominated as observer by the Chairman to monitor the press violation of Norms of Journalistic Conduct for specific areas, who may propose suo motu action in deserving cases for consideration of the Chairman. Regarding the post adjudicatory stage, it is observed that norms can be effectively enforced if the proposals of Council are approved which were under consideration of the Government. It was viewed that the passage of the amendment would provide some deterence thereby ensuring better enforceability as far as Norms of Journalistic Conduct is concerned. The counsel for the parties were then heard in detail. Mr.Arun Palli, the learned Amicus Curiae has placed before the Court number of judgments. The counsel would urge that Civil Writ Petition No.7160 of 2013 (O&M) :

19. : Journalists and the Press would not have any unfettered right under the garb of freedom to speech to even flout the mandate of law. There has to be some constrains and the restrains on the aspect of manner in covering the court proceedings and where such publication interferes with the administration of justice, then certainly court can take some effective measures, including the proceedings under the Contempt of Courts Act. Reference is made to Suo Motu Contempt Petn.(Crl.) No.10 of 2001, Dated 6.3.2002, AIR 200.Supreme Court 1375, where the court has observed that no person can flout the mandate of law respecting the courts for establishment of rule of law under the cloak of freedom of speech and expression guaranted by the Constitution. It is observed that such a freedom is subject to reasonable restrictions imposed by any law. Where a provision, in the law, relating to contempt imposes reasonable restrictions, no citizen can take the liberty of scandalising the authority of the institution of judiciary. Freedom of speech and expression so far as they do not contravene the statutory limits as contained in the Act, are to prevail without any hindrance. It must, however, be remembered that the maintenance of dignity of courts is one of the cardinal principles of rule of law in a democratic set up and any criticism of the judiciary institution couched in language that apparently appears to be mere criticism, but ultimately results undermining the dignity of the court cannot be permitted and when it is found to have crossed the limits, then it has to be punished. In Shamim Rehmaney Versus Zinat Kausar Dehalvi and others, 1971 Crl.L.J.1586, the Hon'ble Supreme Court has Civil Writ Petition No.7160 of 2013 (O&M) :

20. : observed that the course of justice must not be interfered with by publications which constitute opinions upon the merits of the case or create an atmosphere for or against an accused person before his or her case is finally decided. As per the Hon'ble Court, all that is permitted is fair and accurate reporting of the proceedings of courts of law and once the courts of law have dealt with the facts of a case and judgment is finally pronounced, the Press and public are at liberty to express their views on the evidence and to give their own interpretation subject to the risks of proceedings for defamation by the injured parties. It may call for a notice that criminal trial is not over till the final court of appeal on facts has given its verdict. In this context, it is observed that mere arrogation of the function of pronouncing and publishing verdicts upon the motives of an accused or of prosecutor in a criminal case or comments, attempting to bring out real truth will constitute contempt where the case is still undecided. However, the mere possibility of affecting conduct of a party concerned is not enough. The Hon'ble Supreme Court was to notice chief forms of contempt which will include insult to Judges, attacks upon them, comments on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of the courts, witnesses or the parties abusing the process of Court, breach of duty by officers connected with the court and scandalising the Judges of the Courts. Elaborating on the last form regarding scandalising the Judges or the Courts, the Hon'ble Supreme Court has observed that generally speaking, when Civil Writ Petition No.7160 of 2013 (O&M) :

21. : the conduct of a person tends to bring authority and administration of law into disrespect or disregard, this may be committed in respect of whole of the judiciary or judicial system as such. The counsel would then refer to D.Jones Shield Versus N.Ramesam and others, AIR 195.Andhra 156, where constructive contempt depending upon the influence of an intention to obstruct the course of justice is also held to be one form of contempt. A letter or a pamphlet addressed to a Judge, who is to decide the case with the intention either by threats or flattery or bribery to influence his decisions is again a contempt. The case titled In re Subrahmanyan, Editor, Tribune and others, AIR (30) 1943 Lahore 329 is old decision where one kind of contempt of court is scandalizing the court itself. Any act or writing published calculated to bring a court, or a Judge of the court into contempt, or to lower its or his authority is a contempt of Court. In this case, it is observed that any publication which is calculated to poison the minds of the jurors, intimidate the witnesses or parties or to create an atmosphere in which administration of justice would be difficult or impossible amounts to contempt. As has been held in this case, a person may be guilty of contempt though there was no intention to commit contempt. It is sufficient if the effect of the article complained of is to create prejudice and to interfere with the due course of justice. An offence of contempt may be made out even if there is no proceeding or cause actually pending provided that such a proceeding or cause is imminent and the writer of the offending publication either knew it to be imminent or should have known that it Civil Writ Petition No.7160 of 2013 (O&M) :

22. : was imminent. A reference is then made to M.P.Lohia Versus State of W.B. And another, (2005) 2 Supreme Court Cases 686, where it is observed that articles appearing in the media concerning the case of suicide where special leave petition was pending before the Supreme Court would certainly interfere with the administration of justice. Supreme Court deprecated such practice and cautioned the publisher, editor and Journalist who were responsible for the said article against indulging in such trial by the media when the issue was sub judice. Court further observed that others concerned with journalism may also take note of the said displeasure expressed by the Court. It would be appropriate to reproduce the actual word of anguish expressed by the Apex Court, which are as under:-

“10. Having gone through the records, we find one disturbing factor which we feel is necessary to comment upon in the interest of justice. The death of Chandni took place on 28-10-2003 and the complaint in this regard was registered and the investigation was in progress. The application for grant of anticipatory bail was disposed of by the High Court of Calcutta on 13-2-2004 and special leave petition was pending before this Court. Even then an article has appeared in a magazine called “Saga”. titled “Doomed by Dowry”. written by one Kakoli Poddar based on her interview of the family of the deceased, giving version of the tragedy and extensively quoting the father of the deceased as to his version of the case. The facts Civil Writ Petition No.7160 of 2013 (O&M) :

23. : narrated therein are all materials that may be used in the forthcoming trial in this case and we have no hesitation that these type of articles appearing in the media would certainly interfere with the administration of justice. We deprecate this practice and caution the publisher, editor and the journalist who were responsible for the said article against indulging in such trial by media when the issue is sub judice. However, to prevent any further issue being raised in this regard, we treat this matter as closed and hope that the others concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice.”

. In Ajay Goswami Versus Union of India and others, (2007) 1 Supreme Court Cases 143, the counsel appearing for Press Council of India spoke about the limited power and authority enjoyed by the Council with a prayer that it will be appropriate for the court to formulate certain guidelines as suggested by the Press Council of India vide letter dated 6.1.2002 for amendment by way of incorporated two provisions namely section 14(2)(a) and section 14 (2)(b) of the Press Council Act. Still, nothing has moved in this regard. The counsel, thus, would plead that courts certainly has to preserve the administration of justice and the concern shown by the court is a well reflected view of the public at large. Mr.Anup Bhambani appearing for Hindustan Times, however, has confined his prayer by stating that the court may have jurisdictional constrains in issuing guidelines on the court's reporting Civil Writ Petition No.7160 of 2013 (O&M) :

24. : by media which otherwise would also have applicability in limited territorial jurisdiction exercised by this Court. Otherwise, the counsel made reference to the case of Vishaka & Ors. Versus State of Rajasthan & Ors, (1997) 6 SCC 24.to point out that the court may legislate upon a subject that is not already covered by legislation to fill-up void. The counsel has also made reference to the limited powers of the Press Council of India and the constrains that it faces to urge that evidently, the issue here is not of “lack of norms”. but “lack of compliance”. and “lack of enforceability”. which is mainly due to lack of effective statutory powers and mechanism to enforce; and lack of deterrent consequences for breach of such norms by the errant journalists is another reason advocated in this regard. The counsel finally would plead that this court may record its consternation on the governmental and legislative inaction and delay in relation to long-pending amendments to the Press Council Act and the Press & Regulation of the Books Act to give a matter an unsatisfactory closure. In a way, the counsel would plead that this court is helpless which approach apparently is misplaced. The learned counsel perhaps has completely ignored the powers which this court will possess to initiate contempt proceedings if it finds that any act of the journalist or the press interferes with the course of administration of justice or otherwise tend to bring the judiciary to disrepute or to scandalize the Judge or judiciary. The heading of the news item and the manner in which news was covered by Hindustan Times concerning this court was nothing but an attempt to scandalize, for Civil Writ Petition No.7160 of 2013 (O&M) :

25. : which the paper can certainly be made answerable for contempt. However, this court in its magnanimity may not initiate that action which should not be construed as a sign of helplessness to give such cases an unsatisfactory closure as is being propagated by the counsel. Coming back to the core issue, it may be noticed that the issue concerning “Trial by Media: Free Speech Vs. Fair Trial”. in a criminal procedure has remained under serious consideration of Law Commission of India as well. In fact, this subject was taken up suo motu having regard to the extensive prejudicial coverage of crime and information about suspects and accused, both in the print and electronic media. This concern is well conveyed by the then Chairman of the Law Commission, Hon'ble Justice M.Jagannadha Rao in his communication addressed to Law Minister dated 31.8.2006. The Chairman of the Law Commission has rightly expressed himself that there is today a feeling that in view of the extensive use of the television and cable services, the whole pattern of publication of news has changed and several such publications are likely to have prejudicial impact on the suspects, accused, witnesses and even Judges and in general, on the administration of justice. Noticing that the suspect/accused is entitled to a fair procedure where he is presumed to be innocent till proved guilty in a Court of law, the Law Commission has observed that none can be allowed to prejudge or prejudice his case by the time it goes to trial. About this issue of trial by media and right of freedom of speech and expression under Article 19(1)(a) of the Consideration of India, the Civil Writ Petition No.7160 of 2013 (O&M) :

26. : Commission has observed that Article 19(2) does not refer to `administration of justice' but interference of the administration of justice is clearly referred to in the definition of `criminal contempt' in Section 2 of the Contempt of Courts Act, 1971 and in Section 3 thereof as amounting to contempt. Obviously, the publication which interferes or tends to interfere with the administration of justice amount to criminal contempt and in order to preclude such interference, the provisions of that Act impose reasonable restrictions on freedom of speech, then such restrictions would be valid. At present, there is immunity to publication even if it prejudicially interfere with the cause of justice in criminal trial. Under Section 3(2) of Contempt of Courts Act, if a charge sheet or challan is not filed. Such publication would be contempt if criminal proceedings are actually pending. Whether this can be allowed to remain under our Constitution would require consideration. Accordingly, it is impressed that publication relating to suspects and accused for the date of arrest ought to be regulated. The Law Commission has also gone into the affect which such prejudicial publication produces on the Judges subconsciously. Reference is made to the view of the Hon'ble Supreme Court and House of Lords accepting that prejudicial publication may affect Judges subconsciously. It is said that this can be at the stage of granting or refusing bail or at the trial. Prejudicial publication after “arrest”. can be a criminal contempt as is held by the Hon'ble Supreme Court. Before the Contempt of Courts Act, 1971, the common law principles were applied to treat prejudicial publications Civil Writ Petition No.7160 of 2013 (O&M) :

27. : made even before the `arrest' of a person as contempt. Some courts were treating as `criminal contempt', prejudicial publications even if they were made after filing of FIR. In Surendra Mohanty Versus State of Orissa (Crl.App.107/56 dt.23.1.1961), it is held that filing of an FIR could not be the starting point of pendency of a criminal case. Because of this view, a prejudicial publication made after filing of the FIR gained immunity from the law of contempt. In 1969, the Supreme Court has held in A.K.Gopalan Versus Noordeen, 1969(2) SCC 734.the publication made after `arrest' of a person could be contempt if it was prejudicial to the suspect or accused. This continues to be the law as of today so far as Art.19(1)(a), 19(2) and Art.21 are concerned. The Sanyal Committee, which was appointed for this purpose, recommended that so far as criminal matters are concerned, the date of “arrest”. is crucial, and that should be treated as the starting point of `pendency' of criminal proceedings. The Committee had even prepared a Bill stating that the prejudicial publications could be a criminal contempt if criminal proceedings were `imminent'. This Bill was reviewed by the Joint Committee of Parliament (Bhargava Committee) and after some brief discussion, the Joint Committee decided to drop reference to `imminent' proceedings. The reason in this regard was that the word `imminent' was vague and such a vague expression may unduly restrict the freedom of speech if the law applied to `imminent' criminal proceedings. This recommendation resulted in omission of reference to `imminent' proceedings or to `arrest' as the starting point of Civil Writ Petition No.7160 of 2013 (O&M) :

28. : pendency of criminal proceedings. Finding fault with the reasons given by the Joint Committee, the Law Commission has mentioned that attention of the Joint Committee was not drawn to the decision in A.K.Gopalan' case (supra). It is noted that once the Supreme Court judgment had fixed the date of `arrest' as a starting point for treating a criminal proceeding as pending, there remained no vagueness in law as it is further observed that the Hon'ble Supreme Court had balanced the rights of suspect and the accused on the one hand and the rights of media for publication on the other. Editor of the Newspaper and others who made prejudicial publication after arrest were convicted for contempt, while Mr.A.K.Gopalan, who made statement after FIR but before arrest was exonerated by the Supreme Court. Reference in this regard is also made to the law on the point under UK Contempt of Courts Act, where date of arrest is the starting point. So is the position in Scotland, Ireland, Australia or the Law Commission Reports of those countries, which have also declared that if a person is arrested or if criminal proceedings are imminent, prejudicial publication will be criminal contempt. Judgment in the case of Hall v. Associated Newspaper, 1978 SLT 24.(Scotland) is referred, which has been followed in other jurisdiction. According to the Hall's case (supra), once a person is arrested, he comes within the `care' and protection of the Court as he has to be produced in Court within 24 hours. This is also a guarantee under Article 22(2) of the Constitution of India. In such a case if any reference is made to the character of a person or of his previous Civil Writ Petition No.7160 of 2013 (O&M) :

29. : conviction or confession, then his case will be prejudiced even in bail proceedings when issue arises as to the grant of bail or refusal thereof. Such publications may even affect the trial, which takes place later. The case of Maneka Gandhi Versus Union of India, AIR 197.SC 59.can be referred to notice the added dimension to Article 21. As is held in this case, the procedure established by law must be fair, just and reasonable procedure. This was not the situation when Joint Committee gave its report in 1970. On this basis, it is recommended that Explanation to Section 3 of the Contempt of Courts Act be amended to make the arrest as the starting point of pendency. Noticing that the present procedure of reference by Subordinate Courts to the High Court even when the Judges are scandalised, the Law Commission has proposed Section 10(A) to provide that there is no need for reference by subordinate Courts and the High Court could be approached directly without the consent of Advocate General. Need to empower the court to pass `postponement' orders as to publication is also emphasised. Though the courts have held that condition for passing orders of prior restraint should be permitted only under stringent conditions, but it is accepted that temporary order of postponement of a publication can be passed. This is statedly accepted in several jurisdictions across the world. UK Act of 1981, requires special proof of `serious risk of prejudice' to be shown for passing a postponement order. The Law Commission, Civil Writ Petition No.7160 of 2013 (O&M) :

30. : however, has proposed clear words by recommending real risk of serious prejudice which has to be proved before any postponement orders are issued. It is in this context, not reference may be made to the recent decision of the Hon'ble Supreme Court in Sahara India Real Estate Corp. Ltd.'s case (supra), where the Court has held that the right of an accused or any aggrieved person who genuinely apprehends on the basis of the content of publication to approach the High Court and Supreme Court, which can then pass an order of postponement in the absence of any other alternative measures such as change of venue or postponement of trial, satisfy the requirement of justification under Article 19(2) which would help the courts to balance the conflicting societal interest of right to knot vis-a-vis another societal interest in fair administration of justice. In this regard, the court has held as under:- “In the light of the law enunciated hereinabove, anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to Civil Writ Petition No.7160 of 2013 (O&M) :

31. : a fair trial and Article 19(1)(a) rights, bearing in mind the abovementioned principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fall within the proper constitutional framework.”

. By holding that prior restrain order can be passed in cases of real and substantial risk cases, the Hon'ble Court in this case seems to be closer to the view of the Law Commission, which advocated such order on the ground of “real risk of serious prejudice”. instead of serious risk of prejudice considered sufficient in some of the jurisdictions. Thus, it has to be a real risk which is substantial as well instead of serious risk alone. Even the publications in the media which could be prejudicial are enumerated in the report. These are like character, previous conviction, confession, publication of photographs, judging the guilt or innocence of the accused, discrediting witnesses. Even recent phenomena of media interviewing potential witnesses and about publicity that is given by the police and about investigative journalism is also referred. The Law Commission has also recommended that Journalists need to be trained in certain aspects of law relating to freedom of speech in Article 19(1)(a) and the Civil Writ Petition No.7160 of 2013 (O&M) :

32. : restrictions which are permissible under Article 19(2) of the Constitution, human rights, law of defamation and contempt. This report is exhaustive on the issues, which are crucial in our country so far as criminal justice is concerned. Even the Law Commission felt that at present there is considerable interference with the due administration of criminal justice and this has to be remedied by the Parliament. The Law Commission has felt it necessary as a matter of information to media and to the public to refer to the categories of publications in the media which have generally been recognised as prejudicial to a suspect or accused. Thus, it is observed that observation calculating to excite feelings of hostility towards any individual who is under a charge amounts to a criminal contempt. This can be induced by commenting unfavourably upon the character of the accused. Publication of past criminal record is recognised as a serious contempt satisfying the substantial risk of serious prejudice test. Need to prevent prejudice caused by past criminal record is one of the most deeply rooted and jealously guarded principles of criminal law. To bring home this aspect of the prejudicial publication, reference is made to number of judgments in various countries, where this has been so emphasized. It is further noticed that though a confession to police is inadmissible in law, still publications of confession before trial are treated highly prejudicial and affecting the courts in partiality, which amounts to serious contempt. Publication which comment or reflect on the merits of the case, is referred as an extreme form of trial by newspaper as the Civil Writ Petition No.7160 of 2013 (O&M) :

33. : newspaper in such a case would usurp the functions of the court without the safeguard of procedure, right to cross-examination etc. Such publications prejudge the facts and influence the court, witnesses and others. However, it is permissible to publish the facts of arrest and exact nature of charge, which would not be a contempt (See R. v. Payne, 1896 (1) QB 577). The assertion of guilt or innocence are again treated as a serious contempt. Reference is made to R. v. Bolam, ex p Haigh, (1949) 93 Sol J.220, where Haigh was described as `vampire', who had committed other murders and the publication gave the names of victims. Publisher of Daily Mirror was sent to jail and its proprietors were fined calling it “a disgrace to English journalism”.. Even the assertion of guilt by `innuendo' has been held to be a contempt. An article which was published in a magazine pending appeal against conviction for murder expressing opinion on merits was held to be contempt of court as it was an interference into the course of justice. Publication of photographs interfere with the procedure of identification of the accused and, thus, likelihood of such publication giving a colour of guilt with added emphasis. While talking about the police activities, it is noticed that how a disclosure by police of an alleged confession after arrest was held to be a contempt in AG (NSW) v. Dean: (1990) NSWLR 650 It may be perfectly proper to publish reference to police activities surrounding a crime, such as the various searches, questioning of suspects and any arrest, but it should not be thought that there is an automatic immunity in doing so. Civil Writ Petition No.7160 of 2013 (O&M) :

34. : Imputation of innocence, creating an atmosphere of prejudice, criticism of witnesses, premature publication of evidence, publication of interview with witnesses are some of the other aspects, which would call for attention and how these need to be regulated. Detailed reference is made to various view points in different countries regarding the affect on Judges or the publication in media having a subconscious affect. Anglo-Saxon view is that Judges at any rate may be still subconsciously (though not consciously) influenced and the members of public may think that the Judges are influenced by such publications and as such this situation is held to attract the principles that `justice must not only be done but must be seen to be done'. American view appears to be that the Jurors and Judges are not liable to be influenced by media publication. Our Supreme Court appears to have accepted the Anglo- Saxon's view in Reliance Petrochemicals v. Proprietors of Indian Express:

1988. 4) SCC 592.The analysis of this judgment in the light of earlier view expressed in P.C.Sen (in Re) (AIR 197.SC 1821), the opinion of the Supreme Court appears to be clear. As is observed in P.C.Sen's case (supra), no distinction is warranted that a comment on pending case or abuse of party may amount to contempt when the case is triable with the aid of Jury and not when it is triable by a Judge or Judges. The Supreme Court, thus, appears to have accepted the view that Judges are likely to be subconsciously influenced. In P.C.Sen's case (supra), the Supreme Court revealed that the speech of Chief Minister was ex facie calculated to interfere Civil Writ Petition No.7160 of 2013 (O&M) :

35. : with the administration of justice and in the course of judgment, it was stated that no distinction can be made on the ground whether a case is triable by a Judge or Jury. If an action tends to influence the Jury, it may also tend to influence a Judge. In Reliance Petrochemicals Ltd.'s case (supra), an order of prior restraint was passed by the Supreme Court initially while civil case was pending adjudication. The Newspaper “Indian Express”. applied for vacating the order and the Hon'ble Supreme Court while vacating the order considered the case law pertaining to publication which could be prejudicial and referred to the exceptions. The Hon'ble Supreme Court in this case has adverted to absolute terms in which U.S.First Amendment dealing with freedom of speech and expression is couched and to the theory of `real and present danger' which was evolved by the courts in U.S. The Hon'ble Supreme Court has stated that the position in India was different where the right of freedom of speech and expression was not absolute as is in USA. It is noted in this case that the court was not dealing with the case of publication by press affecting judicial administration in the context of contempt of Court, but was examining the question of publication as a matter relating to public interest. Observations of Justice Frankfurter made in John D. Pennekamp v. State of Florida, (1946) 328 US 331.can be noticed as per which judiciary could not function properly if what the press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the Court. It is further observed that the judiciary is not independent Civil Writ Petition No.7160 of 2013 (O&M) :

36. : unless Courts of Justice are unable to administer law by absence of pressure from without, or presence of disfavour. Following passage in this judgment may need a notice:- “No Judge fit to be one is likely to be influenced consciously, except by what he sees or hears in Court and by what is judicially appropriate for his deliberations. However, Judges are also human and we knot better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process.... and since Judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print. The power to punish for contempt of court is a safeguard not for Judges as persons but for the functions which they exercise. It is a condition of that function-indispensable in a free society-that in a particular controversy pending before a court and awaiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the undertone of extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the right to influence Judges and Jurors”.. After referring to US First Amendment, as being absolute and to the test of `real and present danger' evolved in US and after holding that the position in India was different because here Article 19(1)(a) granted only a conditional right, the Supreme Court has turned to Anglo-Saxon Jurisprudence and has examined English Civil Writ Petition No.7160 of 2013 (O&M) :

37. : cases, like Attorney General v. BBC:

1981. A.C. 306 (HL). In this case, Attorney General had brought proceedings for injunction to restrain the defendants from broadcasting a programme dealing with matters which related to an appeal pending before a Local Valuation Court. Lord Denning in the Court of Appeal had observed that the professionally trained Judges are not easily influenced by publications. Disagreeing with the view of Lord Denning, Lord Dilhorne stated as under in regard to subconscious affect on the mind of a person:- “It is sometimes asserted that no Judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with layman. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a Judicial Office does his utmost not to let his mind be affected by what he has seen or heard or read outside the Court and he will not knowingly let himself be influenced in any way by the media, not in my view will any layman experience in the discharge of Judicial duties. Nevertheless, it should, I think, be recognized that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. It is the law, and it remains the law until it is changed by Parliament, that the publications of matter Civil Writ Petition No.7160 of 2013 (O&M) :

38. : likely to prejudice the hearing of a case before a court of law will constitute contempt of court punishable by fine or imprisonment or both.”

. Reference here can also be made to the view of American Supreme Court Judge Cardozo regarding the Subconscious Element in Judicial Process, where while referring to the forces which enter into the conclusions of Judges observed that: “the great tides and the currents which engulf the rest of a men do not turn aside in their course and pass the Judges by”.. The full text of the passage is as under:- “Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex instincts and emotion and habits and convictions, which make the man, whether he be litigant or Judge...... There has been a certain lack of candor in much of the discussions of the theme or rather perhaps in the refusal to discuss it, as if Judges must lose respect and confidence by the reminder that they are subject to human limitations..........”

. Cardozo then stated in a very famous quotation, “None the less, if there is anything of reality in my Civil Writ Petition No.7160 of 2013 (O&M) :

39. : analysis of the Judicial Process, they do not stand aloof on these chill and distant heights;........The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the Judges by.”

. Reference is also made to the publications where the most law reform bodies have taken the view that the Judicial Officers should generally be assumed capable of resisting any significant inference by media publicity, but despite this they have not gone so far as to exclude altogether as a possible ground of liability of sub- judice contempt, the risk of influence on a Judicial Officer. The justification of this approach is two-fold: firstly, it is always possible that a Judicial Officer may be subconsciously influenced; and secondly, it is just as important to protect the public perception of Judges' impartiality as to protect against the risk of bias. It is also noticed that Judges are generally capable of putting extraneous matter out of their minds, but in its recommendations, the Phillmore Committee in UK did not exclude the influence on Judicial Officers as a ground for liability. In M.P.Lohia's case (supra), the Hon'ble Supreme Court while granting bail to the accused and while passing the final order has referred very critically to certain news items in Calcutta magazine. The court deprecated two articles published by the magazine in one sided manner setting only the allegations made by the woman's parents, but not referring to the documents filed by the accused to prove that the lady was a schizophrenic and observed “these types of articles appearing in media would certainly interfere Civil Writ Petition No.7160 of 2013 (O&M) :

40. : with the course of administration of justice”.. The court deprecated the article and cautioned the Publisher, Editor and Journalist, who were responsible for the said article against indulging in such trial by media, when the issue is sub-judice and observed that all other should take note of displeasure expressed by the Court. Even this Court in Rao Harnarain v. Gumori Ram: AIR 195.Punjab 273 stated that “liberty of the press is subordinate to administration of justice”.. The plain duty of journalist is the reporting and not the adjudication of cases. The Orissa High Court in Bijoyananda v. Bala Kush, AIR 195.Orissa 249 has observed as under:- “The responsibility of the press is greater than the responsibility of an individual because the press has a larger audience. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice not can it include any unrestricted liberty to damage the reputation of respectable persons.”

. The Supreme Court has even observed that the press or the Journalists enjoy no special right of freedom of expression and guarantee of this freedom was the same as available to every citizen. The press does not enjoy any special privilege or immunity from law. Summarizing the position, it can be observed that right to free speech in US is absolute and no restraint order where the publication is possible unless there is a clear and present danger to the right itself, but the position in India is different. The right to free speech in our country is not absolute as in US, but is conditional and Civil Writ Petition No.7160 of 2013 (O&M) :

41. : restricted by Article 19(2). Treating a publication as criminal contempt under Section 2(c ) of the Contempt of Court Act, 1971, where the Court comes to the conclusion that the publication as to the matters pending in the Court `tends' to interfere with the administration of justice, amounts to a reasonable restriction on free speech. The view obtaining USA that trained Judges or even jurors are influenced by publication in the media was not accepted in England as it is noted that Judges and Jurors may be influenced subconsciously and the Judges could not claim to be super human was quoted by Supreme Court in Reliance Petrochemicals. It may not be visible from their judgment as to in what manner they are influenced but they may be influenced subconsciously. Even in USA, it is accepted that the Judges and Jurors are likely to be influenced. In our country, the view is also that the Judges and Jurors are likely to be influenced and that the view in Angro-Saxon law appears to have been preferred by the Supreme Court in Reliance Petrochemical's case (supra). Thus, it can be viewed that the Judges are subconsciously influenced by several forces, which is even the view of various Law Commissions, which have been referred to in the report. In view of the detailed discussion above and the recent decisions of the Hon'ble Supreme Court in Sahara India Real Estate Corp. Ltd.'s case (supra), it would be reasonable to hold that the press in this Country does not enjoy a free right or freedom to speech unhindered and there can be a reasonable restriction where publication tends to interfere in the course of justice. The Civil Writ Petition No.7160 of 2013 (O&M) :

42. : publications, which tend to interfere with the course of justice would also make the Publisher and the Journalist liable for being proceeded against under the Contempt of Courts Act. It is different matter that the Court in its magnanimity may ignore such publications and may not initiate the contempt proceedings even in those cases where the publication has a tendency to interfere in the course of justice. Press Council has issued Norms of Journalistic Conduct in 2010. It is noticed that the fundamental objective of journalism is to serve the people with news, views, comments and information on matters of public interest in a fair, accurate, unbiased and decent manner and language. The media today has assumed the foremost importance in society and governance. It is noticed that such is the influence of media that it can make or unmake any individual, institution or any thought. All pervasive and all powerful is the impact of media today on the society. This being the nature of power, the media cannot loose sight of its privileges, duties and obligations. Media is mandated to follow certain ethics in collecting and disseminating the information that is to ensure authenticity of news, use of restrained and socially acceptable language for ensuring objectivity and fairness in reporting and keeping in mind its cascading effect on the society and on the individuals and institutions. Freedom of press has to be preserved and protected not only from outside interference but equally from those within. The sanction behind the code of ethics is moral; the source of their motive-force is within the conscience of the media person concerned. Accordingly, the norms of Journalistic Conduct have been updated in the year 2010, which Civil Writ Petition No.7160 of 2013 (O&M) :

43. : cover very wide field requiring accuracy and fairness in reporting, prepublication, verification. It also contains cautions against defamatory writings and cautions in criticizing judicial acts. Issue of trial by media has also been discussed in detail in these norms, besides various other aspects of publication, which may not be relevant to notice for the limited issue being considered in the present case. While considering the Journalistic Norms in the light of trial by media, it is noticed that in a conflict between fair trial and freedom of speech, fair trial has to necessarily prevail because any compromise of fair trial for an accused will cause immense harm and defeat justice delivery system. The media person, thus, should be duly trained and imparted basic knowledge about functioning of the courts and basic processes of law. In this regard, following guidelines have been laid down:- “i) An accused is entitled to the privilege of presumption of being innocent till guilt is pronounced by the Court. ii) The media reports should not induce the general public to believe in the complicity of the person indicted as such kind of action brings undue pressure on the course of fair investigation by the police. iii) Publishing information based on gossip about the line of investigation by the official agencies on the crime committed gives such publicity to the incident that may facilitate the person who indeed committed the crime to Civil Writ Petition No.7160 of 2013 (O&M) :

44. : move to safer place. iv) It is not always advisable to vigorously report crime related issues on a day to day basis not to comment on supposed evidence of the crime without ascertaining the factual matrix. v) While media's reporting at the investigation stage in a criminal case may ensure a speedy and fair investigation, disclosure of confidential information may also hamper or prejudice investigation. There cannot therefore be an unrestricted access to all the details of the investigation. vi) Victim, Witnesses, Suspects and accused should not be given excessive publicity as its amounts to invasion of their privacy rights. vii) Identification of witnesses by the newspapers/media endanger them to come under pressure from both, the accused or his associates as well as investigative agencies. Thus, media should not identify the witnesses as they may turn hostile succumbing to the pressure. viii) The suspect's picture should not be shown as it may create a problem during `identification parades' conducted under the Code of Criminal Procedure for identifying the accused. ix) The media is not expected to conduct its own parallel trial or foretell the decision putting undue Civil Writ Petition No.7160 of 2013 (O&M) :

45. : pressure on the judge, the jury or the witnesses or prejudice a party to the proceedings. x) The reporting on post trial/hearing often consists of reporting on the decision handed down. But when there is a time lag between the conclusion of the proceedings and the decision, the comments on the concluded proceedings, including discussion on evidence and/or arguments, aimed at influencing the forthcoming decision must be avoided. xi) Media having reported an initial trial is advised to follow up the story with publication of final outcome by the court, whenever applicable.”

. 2010 Norms also contain guidelines on sting operations, norms for photo journalism and do's and don'ts in this regard. These norms are extensive and cover almost every field connected with journalism and publication and has also touched the aspect concerning financial journalism etc. As observed above, the Courts would also have power and authority to effectively interfere by passing specific and a general order directing postponement of publication known as prior restraint order. It may be that some stringent conditions are required if postponement of publication by the Court is to be ordered. This ofcourse would be not regulated by the law laid down by the Supreme Court in Sahara India Real Estate Corp. Ltd.'s case (supra). That publications tend to influence the Judge Civil Writ Petition No.7160 of 2013 (O&M) :

46. : subconsciously is a well recognised fact. Thus, this aspect would have to be kept in view by the media. The Hon'ble Supreme Court in M.P.Lohia' case (supra) has deprecated this practice and even cautioned the Journalists, Publishers and all who are involved in this one sided publication which was found capable of interference with the course of justice. Viewed in this background, the news item published in “Times of India”. ofcourse can be termed as such, which could influence the course of justice as this news item was capable of having subconscious affect on the Judge hearing the case. So far as the news item published in “The Hindustan Times”. is concerned, this, in my view, was calculated to disrespect the court. The apparent aim was to bring the institution of judiciary or the High Court in disrepute. See the heading itself-which reads- “Punjab Phone Taps; a Story of tapes, touts and judges”. and “Judiciary Opaque, Courts trouble”.. The language which ultimately results in undermining the dignity of the court, though couched in a manner which may appear to be a criticism can not be permitted. Insult to a Judge or an attack upon Judge, or scandalizing the Judges or Courts would clearly bring authority and administration of law into disrespect and disregard. This news item has brought disrespect to judiciary. One of the norms of journalistic conduct is that the headings be not sensational/provocative and must justify the matter printed under them. Provocative and sensational headings are to be avoided. This news item obviously had exceeded the limits of fair publication and as such the submission made by the counsel appearing for Newspaper Hindustan Times to give this issue an Civil Writ Petition No.7160 of 2013 (O&M) :

47. : unsatisfactory closure is not considered appropriate. It would, therefore, be proper to express and convey concern and caution to all concerned with this news item to show care and caution in future while publishing any news item concerning the judiciary and the judicial set up at various levels. The concern which every one has shown in some Radia Tapes and the snooping of political figure is totally absent in case where some police officials had the arrogance to prepare tapes concerning the Judges. It is rather a serious issue which has been given an unceremonial burial. It called for action specially when the illegality thereof surfaced in report given by the then Chief Justice, which appeared in some print media. This news paper is, therefore, cautioned to be careful in future while covering court proceedings or commenting on the judicial institutions. As has been the stand of Press Council of India, the print media as well as the other forms of media are expected to abide by the norms regarding caution and criticising judicial acts and reporting news pertaining to court proceedings. These norms have been formulated by the Press Council. These may be declaratory in nature, but these certainly can call for adherence by responsible Journalists. The Journalists, thus, ought not to publish anything which in its direct and immediate effect, creates a substantial risk of obstructing, impeding or prejudicing seriously the due administration of justice. The Journalists can be expected not to publish report in the nature of running commentary or debate or record its own findings, conjectures, reflection or comments on issues, which are sub-judice. They have to refrain themselves from commenting on the personal Civil Writ Petition No.7160 of 2013 (O&M) :

48. : character of the accused standing trial on a charge committing a crime. As a matter of caution, the newspaper and the Journalist ought to avoid publishing or commenting on evidence collected as result of investigative journalism at least from the date of the arrest of the accused, who is charged. They can be expected to scrupulously avoid commenting or evaluating a confession alleged to be made by any accused, lest they expose themselves to liability of contempt. The Newspapers and the Journalists have to avoid casting scurrilous aspersions on, or to impute improper motives, or to allege personal bias to the Judge while publishing news items. They can not be permitted to scandalize the courts or the judiciary as a whole or make personal allegations of lack of ability or integrity against a Judge. They have to avoid unfair and unwarranted criticism by innuendo against the Judge. They can certainly be expected to ascertain the genuineness, correctness and authenticity from the record so as to avoid incorrect facts and wrong information about the court proceedings. All concerned have to acquaint themselves with the legal position that by violating such norms concerning the court proceedings, they can certainly expose themselves to a liability for action in various forms as already discussed in detail in the foregoing part of this judgment. Despite the concern shown by the Law Commission, which has gone on record to notice the considerable interference with the due administration of criminal justice which is required to be remedied by the Parliament or the Government, it (Government) has Civil Writ Petition No.7160 of 2013 (O&M) :

49. : made no move in this regard. Judges are human and their task ought not be made difficult by some irresponsible prints. It is rightly noticed that power to punish for contempt is a safeguard not for Judges as persons but for the functions which they exercise. The impartiality of the Judges has to be protected from any extraneous influences. Freedom of speech under the Constitution can not include the right to influence Judges. It will be high time for the Government to consider amendment proposed in Section 14 of the Press Council Act, which is aimed at making compliance of the directions issued by the Press Council to be mandatory and binding upon the newspapers and agencies. There is need to provide some teeth to the Press Council of India. The proposed mode requiring censure on failure to comply with the directions and further direction to suspend or stop the release of advertisement for a specified period, in my view, would go a long way to be an effective check and balance the right of coverage of court proceeding. The provision for suspending a newspaper for purpose of release of Government funded advertisements on award of two censure within a period of six months is another provision which may ensure enforceability of norms. The proposed amendment even contains a power to suspend registration of a newspaper or news agency for a period not exceeding fortnight in event of more than two instances of non- compliance of direction issued under Section 14 within one year is another aspect which can have salutary effect to ensure adherence to the norms. The Courts should restrain themselves from issuing Civil Writ Petition No.7160 of 2013 (O&M) :

50. : command to Legislature to legislate though as per law laid down in Vishaka's case (supra), some scope to legislate upon a subject that is not already covered by Legislation to fill up the void can be issued. The matter being under active consideration would not need any directions except for showing concern over the delay on the part of the Government in attending to important aspect affecting the administration of justice. As has been pointed out before me, it is not a case of lack of norms, but it is lack of compliance and lack of enforceability, due to absence of effective statutory powers and mechanism to enforce the norms. Lack of deterrent consequences is another reason for which the errant Journalists have on occasion been breaching the norms, which morally they are required to follow. In this view of the matter, this Court would like to express a pious hope and a wish and would urge the Government to seriously consider introducing the amendments proposed in the Press Council Act, so that the interference in the cause of justice on account of unfair and unjust coverage of court proceedings is checked. The Law Commission has also made very meaningful suggestions for amending the relevant provisions of Contempt of Courts Act, whereby the Court can have some effective control over the publications by passing a prior restraint order though for a limited duration. This course would not be available in view of the law laid down by the Hon'ble Supreme Court in Sahara India Real Estate Corp.Ltd.'s case(supra). Before concluding, I would wish to express that all the Publishers, Journalists and other media people ought to comply with Civil Writ Petition No.7160 of 2013 (O&M) :

51. : the requirement, so as to avoid uncomfortable situation. Any violation of such norms may expose them to reliability of proceedings under the Contempt of Courts Act. The present petition is accordingly disposed of in the above terms. April 04, 2013 ( RANJIT SINGH ) ramesh JUDGE