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Don't frame coercive media norms, SC told-Dhananjay Mahapatra

Constitutional expert Fali S Nariman and former attorney general Soli S Sorabjee on Thursday told the Supreme Court that it would be judicial overreach if the Supreme Court framed coercive media guidelines on reporting ongoing criminal trials.

The ominous warnings from Nariman and Sorabjee came on the concluding day of the over month-long deliberations by a five-judge bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, R P Desai and J S Khehar, which heard wide-ranging arguments from counsel on the need for framing guidelines for media on reporting of trials.

Sorabjee said, "The Supreme Court should not take upon itself the task of framing any guidelines which are coercive in nature. This is a legislative function. Court-framed guidelines would take away the right of a citizen to challenge such a guideline had it been framed by Parliament or a state legislature."

However, he agreed with the bench that the apex court could enunciate the principles based on earlier verdicts, drawing the contours of press freedom which would be applicable to very limited cases where the right of the accused to fair trial was prejudiced. "You can enunciate the law, but no guidelines," he said.

He said the apex court must not confuse interest of media in a high-profile case with media trial. "True media cannot hold a parallel trial by commenting on the guilt of an accused during the trial, but surely it can discuss if someone should have got bail or not," he said.

Nariman was more forthright. "All that was needed to be said on press freedom and restriction has been said in the Constitution and there is no vacuum for the court to contemplate laying down guidelines. Normative guidelines, which attorney general G E Vahanvati also agreed to, will surely be respected by the media. The apex court is held in high esteem and there should be no misgivings about the media honouring such normative guidelines," he said.

The bench said it never intended to punish journalists but let them know the 'Lakshman Rekha' while exercising press freedom in reporting ongoing criminal trials. "This will protect the journalists from possible contempt proceedings as well as prevent prejudice to accused," the bench said.

But Nariman was unconvinced. He said, "The right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution is limited by the restrictions enumerated in Article 19(2). There is no gap to be filled by the apex court. If there is a need for additional restrictions, it has to be done by Parliament or state legislature."

He said there were enough restrictions and powers conferred under the Contempt of Court Act to regulate media reporting. "Anything which is not part of the Contempt of Court Act cannot be inserted by the Supreme Court as an additional restriction on press freedom. Let us not go to the jurisdictions in Canada and Australia, for our Constitution is long enough to cover all fields," he said.

Senior advocate K K Venugopal said the best way to deal with unscrupulous reporting of trial proceedings was to examine case by case whether there was anything published which would prejudice the accused or impede administration of justice. He also suggested that media guidelines could be built into the journalist accreditation norms to make them more accountable towards fair and accurate reporting.