The Supreme Court on Tuesday restrained the Hindi television channel Sudarshan News from airing future episodes of its controversial Bindas Bol show that claims to have unearthed “a conspiracy to infiltrate the civil service by Muslims”. The channel aired the first episode of a 10-part series on the subject on September 11 after the Supreme Court refused to pass a restraining order late August.
Revisiting the case on Tuesday, the court said “the object, intent and purpose of the programme is to vilify the Muslim community with an insidious attempt to portray them as part of a conspiracy to infiltrate the civil services”. It rejected the argument made by the channel’s lawyer that a decision should be made after all 10 episodes are aired.
Three different cases in the courts over the last few weeks have brought to sharp focus the question of judicial scrutiny of media reporting. While the Sudarshan News case involves questions on hate speech, the other cases emerge from the TV coverage of the deaths of celebrities – actor Sushant Singh Rajput, and entrepreneur Sunanda Pushkar who was married to former minister Shashi Tharoor. In both the cases, the courts have been asked to put a stop to “trial by media”.
This article examines the powers available to courts to intervene in media reporting, how these powers have been used in the past, and the questions that surface while making such interventions.
Pre-publication restraint is rare in India.
Unlike the United States, where the First Amendment to the Constitution provides an absolute right to speech, which makes pre-publication judicial restraint illegal, in India, speech is subject to reasonable restrictions listed under Article 19(2) of the Indian Constitution.
Both the Supreme Court and the High Court have powers under the Constitution to restrict media reporting of cases, in addition to the High Court’s power under Section 151 of the Civil Procedure Code, which gives the court powers to pass any order to achieve the ends of justice.
While courts can pass prior restraint orders, they have to justify them based on the reasonable restrictions. The courts have ruled multiple times that passing an injunction against publication or broadcast should be resorted to only in exceptional cases.
In the context of media trials, this exceptional reason would be the protection of the criminal justice delivery, which functions on the foundation of the principle that a person is assumed to be innocent until proven guilty. This principle demands that the process of justice delivery is untainted and protected from egregious external influences.
It is this argument that has been made in the petitions filed in the Sushant Singh Rajput case.
Over the last two months, the death of the Bollywood actor has dominated television news coverage. Initially, the Mumbai Police said it was a case of suicide, but subsequently Rajput’s family filed a complaint with Bihar Police accusing his former live-in partner Rhea Chakraborty of abetment of suicide and cheating. Three Central agencies – the Central Bureau of Investigation, the Enforcement Directorate, the Narcotics Control Bureau – took up cases against her.
Every time Chakraborty appeared for questioning, she was mobbed by TV cameras. Some channels claimed to possess “exclusive” transcripts of her private WhatsApp messages, presumably leaked by the investigative agencies. A television anchor even claimed victory for their “investigative journalism” when Chakraborty was arrested by the Narcotics Control Bureau for drug possession last week.
Two public interest litigations asked the Bombay High Court to put an end to Chakraborty’s “media trial”.
On September 2 , a petition moved by former senior Indian Police Service officers said a section of TV channels were trying to influence the course of investigation being done by Central agencies through their biased reporting and false propaganda. The 24X7 “vituperative coverage” had adversely violated principles of natural justice by presenting Chakroborty as guilty even before the investigation had been completed.
Filmmaker Nilesh Navlakha, journalist Mahibub D Shaik and former civil servant Subhash Chander Chaba also filed a petition seeking temporary postponement of media reporting in the case, alleging that some television channels were creating a scandal out of it.
On September 3, the Bombay High Court asked the news channels to show restraint in reporting the case. When the matter came up before the court again on September 11, the bench expressed surprise that there was no state control over electronic media.
In the meantime, on September 10, the Delhi High Court asked Republic TV and its Editor-in-chief Arnab Goswami to show restraint in reporting on the death of Congress MP Shashi Tharoor’s wife Sunanda Pushkar, stating that the sanctity of the criminal justice process had to be maintained.
Pushkar was found dead in a hotel in New Delhi in January, 2017. Later that year, Tharoor moved a defamation suit against Arnab Goswami for portraying the death as murder and linking him to the case. In December 2017, Goswami gave an undertaking to the court that restraint will be shown in the the reporting on the case.
On September 10, the Delhi High Court reminded Goswami of this undertaking and said the sanctity of the criminal investigation should be protected. Tharoor had moved an application in August pointing to episodes of Goswami’s show in July and August that made allegations against him and asked for a stay on such broadcast.
In the past, courts have intervened to stop publication of media reports in a wide range of cases.
In 1988, in a case involving a series of reports published in The Indian Express on the Reliance group, the Supreme Court issued an injunction halting the publication till the company had completed the process of issuing debentures to its stakeholders, a process which in itself was sub judice.
The court ruled that when there was a “clear and present danger” to the administration of justice and fair trial, the court can use its inherent jurisdiction to restrict publication, though no general standard could be set for this intervention and the decision will depend upon the facts of each case.
The Supreme Court said:
“Public interest demands that there should be no interference with judicial process and the effect of the judicial decision should not be pre-empted or circumvented by public agitation or publications. At the same time, right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. A balance has to be struck between the requirements of free Press and fair trial.”
In 1966, the Supreme Court, in a defamation case moved by a witness asking for a restraining order over media reporting of his testimony as it would affect his business, even went to the extent of stating that “open justice”, which involves the concept of open access to judicial proceedings, was not absolute. If the court feels the administration of justice could be affected by publication of witness statements, it could restrain the media from doing so.
In Sahara vs SEBI in 2012, dubbed famously as the “media guidelines case”, a Constitution bench of the Supreme Court held that a balance has to be found between the right to fair trial guaranteed under Article 21 and right to freedom of expression under Article 19.
While upholding the view that prior restraint orders are constitutional, the court also made it clear that such orders are for a temporary period till the danger to the fair trial abates. Any individual, the bench said, could approach the court if they feel there was a real danger to them getting a fair trial due to certain publications.
Hate speech poses a different challenge for courts, as the Sudarshan News case shows.
So far, the position of the courts has largely been that the penal provisions will kick in after the speech. For instance, when a petitioner moved the Supreme Court after the 2014 Lok Sabha elections for curbing hate speech during poll campaigns as mandated by the Representation of People Act, the Supreme Court said there were enough provisions in place to tackle hate speech. The problem was more of implementation.
However, there have been instances where the courts have elaborated on when a publication or a broadcast can be stopped on grounds such as hate speech against a community or security of state.
In 1989, petitions were moved against the Tamil movie “Ore Oru Gramathile” with allegations that it portrayed the reservation policy of the government in bad light and that it could provoke communal violence. The High Court revoked the ‘U’ certification given to the movie, after which an appeal was filed in the Supreme Court.
The Supreme Court, while allowing the film to be screened, held that in order to restrict the element of free speech, there should be a proximate and immediate nexus with imminent danger to the community.
The court said:
“Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”.
This principle will be put to test in the Sudarshan News case.
On August 28, both the Supreme Court and the Delhi High Court heard petitions asking for a restraining order on the TV channel which had aired a promo of a show in which it made allegations of “UPSC Jihad”. The term was coined by the channel to allege that the success of Jamia Millia Islamia students in the civil services examination 2020 represented a “conspiracy to infiltrate the civil service by Muslims”.
While the Supreme Court refused to stay the broadcast in a petition moved by lawyer Firoz Iqbal Khan, the Delhi High Court issued a stay on the same day in a petition filed by current and former students of the Jamia Millia Islamia university.
The next day, however, the High Court disposed of the petition with a direction to the Ministry of Information and Broadcasting to take a decision on the matter. The ministry had issued notices to the channel based on complaints it had received, but eventually allowed the channel to air the show on September 10 with an instruction to ensure it did not violate any programme code. It warned the channel that action would be taken if the code was violated.
On Monday, after the first episode of the show had been telecast, several former Indian Administrative Service officers moved the Supreme Court arguing that even though the Indian Penal Code has Section 153A and 153B to deal with hate speech, their application has been uneven and inconsistent with the rights guaranteed under Article 19(1)(A), which includes the right to free speech and expression and assembly.
On Tuesday, the court stayed the broadcast, calling the show “rabid”. Hate speech has different effects on constitutional rights, including on the right to equality as communally targeting a particular section of the society robs it of the dignity of equal citizenship. Further, hate speech could provoke violence, leading to a disruption of public order.
The court will continue hearing the matter on September 17.
High Court’s role during investigation
Returning to the question of media trials, while many judgements on prior restraint orders deal with cases already in trial, the Supreme Court has made specific observations on what the High Court could do whenever it is evident that an investigation or a trial is in jeopardy.
In RK Anand vs Registrar, Delhi High Court, which involved a case of contempt following a sting operation into the infamous BMW hit and run case by NDTV in 2007. The sting operation had exposed a nexus between the public prosecutor, defence lawyers and the accused to influence a witness in the hit-and-run case involving businessman Sanjeev Nanda and led to contempt of court proceedings in the Delhi High Court.
In the judgement which upheld the contempt conviction of the lawyers, the Supreme Court elaborated on the duties of a High Court in ensuring a fair investigation and trial are conducted.
While the Supreme Court acknowledged that the powers of the High Court during the investigation stage were limited when compared to the trial stage, it nevertheless asked the High Courts to be proactive even during the investigation stage.
The Supreme Court said:
“A step in time by the High Court can save a criminal case from going astray. An enquiry from the High Court Registry to the concerned quarters would send the message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences.
There have been allegations of political motives behind the investigation into the death of Sushant Singh Rajput and television channels have run an outright campaign against Chakraborty. It remains to be seen whether the High Court would seek a status report from the investigation agencies to ensure a fair probe.
Unlike prior restraint orders that involve the question of free speech, the High Court seeking a status report does not infringe on the fundamental rights of third parties such as the media.