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‘Fetters on press hurt democracy’-Dhananjay Mahapatra

Former law minister and anti-Emergency crusader Shanti Bhushan on Tuesday pleaded with a Supreme Court's five-judge constitution bench not to go ahead with the framing of reporting guidelines and said fetters on press freedom would impede democracy. 

Bhushan cited the infamous ADM Jabalpur case judgement rendered by a constitution bench of the Supreme Court, which had by 4:1 majority upheld suspension of right to life during the Emergency, and said it was destructive of the republican form of democracy, where people were sovereign and had the censorial power over the government and not the other way round. 

"The government in this context means all institutions of governance which would include the executive, the legislature as well as the judiciary," he said and demanded to know an instance when media had caused miscarriage of justice. 

"It is the media reporting which keeps people informed about justice delivery system and in a way keeps it in track. Is it the apprehension of the apex court that media reports influence our trained judges? 

If not, then framing guidelines is meaningless. All burning issues in India are pending in one court or the other. Should the people stop talking about it? Should people be not informed about it?" he asked. 

Concluding arguments before a bench comprising Chief Justice of India S H Kapadia and Justices D K Jain, S S Nijjar, R P Desai and J S Khehar, Bhushan said, "I beseech your Lordships not to be a party to curtail press freedom which is the bedrock of democracy". 

The bench clarified that it was not an adversarial litigation but wanted to know whether reporting of certain events could be postponed. 

It gave the example of the couple, who were arrested on their return from foreign holiday for alleged ill-treatment of their maid. The bench said a media blitz almost painted the couple guilty even before a case was registered. "Can we say that the couple did not have a right to apply for anticipatory bail?" it asked. 

"We are talking of ground realities and want to know whether there could be guidelines to protect the right to life of accused and witness. We know there cannot be a straight-jacket formula," it said. 

Appearing for the daily "The Hindu", senior advocate Anil Divan termed the exercise for formulation of reporting guidelines by the apex court as an unprecedented event and pointed out two primary shortcomings in the process. 

"If the Supreme Court lays down guidelines and parliament adopts them to enact the law, then the citizens would be barred from challenging the law even if their fundamental right to freedom of speech and expression was violated. The guidelines cannot be 'be all, end all' propositions visualizing all possible situations. Should the people be deprived of their right to question legality of such a law?" he asked. 

Secondly, framing of guidelines to fill a legal vacuum for protection of right to dignity of accused, if coercive or binding, was a quasi-legislative exercise, he said. "But, the legislative process demands that there should be a draft Bill which would be subjected to debate and possible amendments before voting. Where are the draft guidelines on media reporting? What are the concrete proposals to debate on," he asked. The bench said if the court could not lay down binding guidelines, then no Visaka judgment would have been passed laying down norms against sexual harassment of women at workplace.