The Supreme Court was today told that it has entered into legislative domain by attempting to frame guidelines for media for covering court proceedings and was cautioned that a careful approach was needed so that freedom of press is not abridged.
Senior advocates Shanti Bhushan and Anil Divan submitted that any guidelines framed by the court "must not infringe" the constitution as it "cannot be challenged" and becomes "immune from judicial review".
"I cannot challenge your guidelines but if Parliament makes any guidelines, I can challenge them before you," Divan, appearing for The Hindu daily, submitted before a Constitution bench headed by Chief Justice S H Kapadia.
He said the guidelines which will be laid down through a judgement of the apex court cannot be challenged on grounds of breach of freedom of speech and expression under Article 19 (1)(A) and as such "guidelines become immune from judicial review".
Bhushan, who was appearing for a scribe, said freedom of press should not be curtailed in any way. "And the only guidelines which would be Constitutional would be that the media would not publish anything which it knows is not true or which has been published with reckless disregard of whether it was false or not," he said.
Senior advocate P P Rao, appearing for Press Council of India, said that there are adequate guidelines for print media for covering court proceedings but electronic media is not under its ambit.
"The Council will be privileged to assist this Constitution bench in framing of guidelines that balance the rights of the affected parties with the duties of the media to report matter of public interest," he said.
Maintaining that the exercise carried by the court was not prudent in view of globalisation of technology on information dissemination, Divan said if the guidelines will be coercive or binding in nature then it is covered by the legislative process.
On his submission, the bench said the deliberation on the guidelines was not a result of adversarial litigation and it was only trying to regulate the media to the extent that the rights of person in criminal cases be protected under the Article 21 (Right to life and liberty).
"Give us your suggestion if you feel they (accused, victims and witnesses) need protection, vis-a-vis Article 21," the bench, also comprising justices D K Jain, S S Nijjar, Ranjana Prakash Desai and J S Kehar asked Desai.
Bhushan, who was arguing that "reasonable restrictions" prescribed in the Constitution, said it was not for the purpose of stifling the fundamental right of people.
Burning issues will keep coming to the court and people should not be prohibited from receiving information which is their right, he said.
When the bench told him that it was only deliberating for laying guidelines for "temporary ban" on publication without disturbing the contents to protect the fundamental rights of accused, victims and witnesses under Article 21, Bhushan said "it cannot be done" as "trained" trial court judges cannot be carried away by media reports of the cases in hand.
His view was earlier supported by senior advocate K K Venugopal, who said right to know is part of Article 19(1)(A) and fair and accurate reporting of sub-judice matter is permitted and postponement of a publication will kill the news value of the proceedings.
"Judges are robust people. They are trained in law of evidence, IPC, Cr PC, etc and they can't be swayed by media reports. Public debate help the course of justice," Bhushan said.
He mentioned the 1976 judgement of the Constitution Bench in ADM Jabalpur case relating to the Emergency and said the fundamental right was abridged in that case by the judges with the solitary exception being Justice H R Khanna.
He said subsequently it was felt by the apex court itself that restricting the fundamental right of life was a mistake.
Bhushan said care should be taken that such a situation is not repeated and guidelines by the court may not strike down the very basis of the Constitution.
He said in the republican form of government, the censorial power is in the people over the government and not in the government.
Further, "in democratic republic, it is not only the right but also the duty of the people to oversee the functioning of all institutions including the judiciary," the senior advocate said.
"Every important issue needs to be vigorously debated by the people and the Press even if the issue is sub-judice in a case.
"It is well known that in many cases which were sub- judice, gross injustice has been avoided only on account of vigorous debate among the people and the media and there is no known case in which on account of an open public debate, the court has decided wrongly and injustice was the result," Bhushan said.
He also pointed out that a vigorous public debate in media helped in the Jessica Lall murder case.
"It has been recognised that even while vigorously criticising an action of a public authority, if some incorrect statements have been made, that would not justify placing restrictions on the people and the media exercising their right of free speech."
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