Freedom of the Media and String Operations

Introduction The termination of service of a service member of a police force on the ground of his involvement in corruption, indulging in string operation conducted by media raised several issues despite the fact that the order of termination was set aside, as no enquiry was conducted in the case.1 Participation per se in the string operation conducted itself being treated as misconduct deserving dismissal from service. The first question arises for discussion whether the media can claim a right to freedom of liberty, speech and expression and whether it could be widened to allow the media to conduct a trial or string operation. The freedom of press and expression guaranteed by the Constitution of India2 has been interpreted to include the freedom of the press3 which includes medium like magazine or movie including the electronic and audio visual.4 As elucidated in Virendra’s case5 the right of the media to propagate, communicate and circulate the ideas, is within the scope of freedom of the press.  The freedom of the press is violated, if a law makes a direct effect on circulation.6 The violations were further elaborated so as to include acts such as:-7 Imposing excessive or prohibitive burdens which has the effect on circulation; Imposing penalty on media’s right to choose the instrument for its exercise; To seek alternate media to prevent the newspapers from being started; and Acts which ultimately drives the press to seek Govt., aid in order to survive; In the case of Life Insurance of India, the Supreme Court held that ‘freedom to air one’s views is the life-line of any democratic institution and any attempt to stifle or suffocate or gag this right would send a death knell to democracy and would help usher in autocracy or dictatorship8. Text of the article The freedom of the press is not an absolute right but subject to the power of State to impose reasonable restriction on specific grounds9. However, right to criticize the Govt., is not a restriction on this right as it is considered as a ‘sin quo non’ of a healthy democracy committed to rule of law. As observed by Donglas, J, ‘acceptance by Govt., of a dissident press is the measure of maturity of the nation10 and there is no room which would lead to standardization of ideas either by legislation, courts or dominant political group or community groups11. Cardinal democratic values need tolerance and diversity of viewpoints and ‘popular percepts, however strong, cannot over-rule values’ which the constitution embodies as guarantees of freedom,12 which has been equally emphasized by the United Nation’s Charter on declaration of human rights.13 In fact, there can be no denial of the fact that electronic media facilitated the transmission of information all over the World in a few seconds. Media has been viewed as the ‘eyes and ears’ of the people and as trustees of the right of the people to know.14 The right of the media in relation to trials to publish or by conducting interviews of prisoners in jail or in the matter of reporting the proceedings of the court as well to conduct trials (string operations) require a thorough study. Press does not enjoy any greater freedom than what a citizen has but certain privileges are attached to the press such as to sit in the press bench. In other words, the right of the media to attend court proceedings and to present a faithful and accurate report to the public has been guaranteed,15 but this right can be curtailed, if the court is satisfied that the trial in the open court, justice would be defeated and by virtue of inherent power of the courts, it could order proceedings in ‘Camera’.16 Trial in open court not only ensures ‘transparency’ but also keeps the Judge himself while trying, under trial17 and publicity has been considered as the ‘soul of justice’.18 In the matter of granting interviews to media certain guidelines19 are to be followed:- Under-trails consent is necessary for the interview including photographing; It should in conformity with the regulations of jail manual; and The publication should be done in a manner which would not impair the administration of justice.  However, weighty reasons to be recorded in writing are necessary for refusal of interviews by media.20   Rule 549(4) of Jail manual gives any prisoner sentenced to death to give interviews, engage in communication with relations, legal advisors and others, which the Supdt., of Jails considers reasonable. Thus, the right of the media to conduct interview with under trials or prisoners is subject to legal regulations.  Media exercises its professional functions in the matter of trials at four stages:- Before the case is registered; During the pendency of the trial; When the Judgment is given in the case; By publishing complaints against members of Judiciary to ensure Judicial accountability.  In the exercise of these functions, the media’s right is regulated by law.  (i) In the first stage, media exposes violations of laws, corruption and scams etc., through the investigative journalism. It gathers information from all sources, collect documents and other available evidence and reports through publication in the media which would lead to investigation of the case by the appropriate authorities such as police etc., or appointment of commission by authorities to enquire into the allegations or set up a departmental enquiry through its Vigilance Department. Credit must be given to the media, where such reports had led to discovery of fraud, misappropriation of funds; scams etc., and in a way served a worthy cause to protect the interest of public revenue or a public interest of vital importance. However, once the case is taken up, there could be no parallel investigation by media or interference with investigations conducted by the public authorities such as Police, Commissions of enquiry or other bodies. Nothing prevents the media from supplying the material which it has collected before reporting the event to the authorities for expediting the proceedings or making the task of authorities not time consuming. By responsible investigation a journalist may facilitate a strong judicial system which in turn inspires greater public confidence. At the Second stage, the media is allowed to attend the proceedings and publish a faithful and accurate record of the same, unless the proceedings are held in ‘Camera’. By publishing the proceedings of a court held in camera, the media may be hauled up for contempt proceedings. Media is not free to publish any kind of report concerning a case which is sub-judice or to conduct string operations which might be construed as ‘trial by media’. A string is based on deception and would attract legal restrictions subjecting the media to far greater stringent punishments. The details of some of the string operations carried out by the media is given below:- In a trial pending for 8 years after the incident in which BMW hit and run case which resulted in the death of six persons, by a BMW car driven by a wealthy and influential family, the NDTV telecast a ‘string operation’. This was done in order to expose the manner in which a senior advocate appearing for the accused was negotiating to favor the defense. This was done with the help of a special public prosecutor and also with the help of a concealed camera used by a witness. Thus, there was an unholy nexus involving the prosecution and witnesses of either side. The Delhi High Court instituted ‘suo moto’ proceedings21 in which the special public prosecutor and the defence lawyer were held guilty and were punished thus:- Debarred from appearing in Delhi High Court and its subordinate courts for a period of (four) months; and Recommendations were made that the senior advocate be stripped of the status of a ‘senior advocate’.  In an appeal to the Supreme Court, the argument of the parties that if the string operations were carried out with the permission of Delhi Court, it could have been telecast, was rejected and the Supreme Court held as follows:-  String operations cannot be considered as an exercise in journalism as it would be acting as some sort of special vigilance agency for the court which would be contrary and repugnant to the court as well as to the media; It would be a sad day for the court to employ the media for setting its house in order and the media also will not relish the idea of acting as ‘snoopers for the court’; Prior permission of the court to conduct string operations would operate as pre-censorship of reporting of court proceedings which would be contrary to the guaranteed right under Art 19 (1)(a) of the Constitution; TV and press coverage on a person’s reputation by creating a wide-spread perception of guilt, regardless of any verdict by a court of law and the impact thus created cannot be erased; High publicity court cases, the media is often accused of provoking an atmosphere of public hysteria akin to a lynch mole which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial in public perception the accused is already held guilty and would not be able to live the rest of his life without intense public scrutiny. Even in these days when a trial court order of conviction is reversed by an honourable acquittal, there is a tendency to regard the person as of bad antecedents and disqualified for several positions, as a result of intelligence report that the person came to adverse notice as a result of arrest, prosecution and initial conviction despite honorable acquittals. This is even happening to MLA’s or MP’s etc., when they are to be selected to certain positions by virtue of his position as an MP or MLA. This has happened to a police officer for participating in a string operation conducted by the media.22  String operations undermine the public faith in judiciary which is considered as the last hope of redressal against administration and other Government agencies for their failure to perform their functions when the aggrieved citizen suffers. People’s faith in administration of justice is continuously affirmed by public interest litigation and its growing popularity among the people.  Media gets into the contempt jurisdiction of the courts for publishing allegations against judicial officers. When baseless complaints are published in the media such complaints undermine the public confidence in judiciary by creating an impression that cases are handled by persons who lack integrity and the institution of judiciary is the ultimate sufferer. Criminal contempt as defined by Sec 2(c ) of the contempt of courts Act, 1971 as follows:-  Publication, whether by words spoken or written or by signs or by visible representation or otherwise of any matter or doing of any other act whatsoever, which  Scandalizes or tends to scandalize or lowers or tends to lower the authority of any court; Prejudices or interferes with the due course of any judicial proceedings; or Interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.  The words used in Sec 2(c ) are wide enough to easily attract th4e contempt jurisdisction of the courts with the object of that such a  Contempt jurisdiction is not to protect Judges personally from imputation or otherwise but to safeguard the interests of the public which would be adversely affected, if the authority of the court is denigrated and public confidence in the administration of justice is weakened;23 Right of the public to ensure that administration of Justice is not perverted, pre-judiced, obstructed or interfered with;24 To balance the right of free speech with the necessity to preserve public confidence in the judicial system but not to confer immunity from criticism for judiciary25 and Justice is not a cloistered virtue and must be allowed to suffer scrutiny. Even an ordinary person can make comments.26 Libel against a Judge constitutes criminal contempt27 if the imputation made Is of such gravity to erode public confidence in the judicial system;  or  Affects the administration of justice;  or  Majesty of justice  Judgments of courts are public documents and they could be analysed, criticized or commented upon. However, care has to be taken to do it in a dignified manner without attributing motives to the Judges. This can be taken as the legitimate limit and crossing the same would invite the contempt jurisdiction. Hence, media should resist the temptation of making it public when the legal limit is crossed or when it goes beyond the limit of legitimate criticism. The greater the truth in the allegations made against Judges, greater jolt to public faith is caused. However, the allegations made should be proved beyond all reasonable doubt.28 In view of the recent amendment to contempt of courts Act, truth is now recognized as a valid defence.29 One reason for invoking contempt jurisdiction can be traced to Judges being precluded from replying to criticism made against them.  Cases where some serious allegation were made against Judges can be cited as follows:- Sundaram’s case30  One Mr. Sundaram sent a Telegram to Chief Justice of India demanding his resignation on the ground that he has exceeded the age of retirement. Within three days, he filed a criminal complaint against CJI making allegations of cheating, criminal breach of Trust and falsification of records. The President of India determined his age and his petition was dismissed. However, the court held that it was a serious malign and undermined the dignity and authority of court and sentenced him to 6 months which was suspended for 5 years on medical grounds and on the condition that he would not indulge in committing such acts in future. However, when the then law minister Mr. Ram Jethmalani made remarks against the same CJI, in the controversial land acquisition case involving the family members of CJI no judicial response came. The remarks are as follows :-   “It has been my misfortune to discover the present CJI an unpardonable degree of conceit and self-righteousness”.31   Another case, where judicial reluctance was observed is the case of P.N.Duda Vs. P.shiva Shankar32 wherein the law minister made remarks against the Supreme Court thus:-   “The Supreme Court composed of the element from the elite class had the unconcealed sympathy for the haves-Zamindars and therefore ‘compensation’ under Art 31 was interpreted contrary to the spirit and intendments of the Constitution…..  Anti-social elements – FERA violators bride-burners and a whole horde of reactionaries have found their heaven in Supreme Court”.33   Judicial response in Sundaram’s case and lack of response to the remarks of Mr. Ram Jethmalani and Mr. Shiv Shankar could not be explained.  In Wah India case,34 a survey grading the Judges of Delhi High Court was published with their photographs on the basis of their personal integrity, quality of Judgments delivered and understanding of law. There was no material to support that they were true and published in good faith. Six journalists35 who made allegations against the CJ and Judges of Supreme court, without verifying the truth of the allegations were found guilty of contempt of court. In Hitavada36 a report was published regarding acquittal of an accused in Niyogin murder case stating that the Judge who was on the verge of retirement should not have been entrusted in deciding the criminal case and the Judgment was described as ‘biased and rubbish’. Media person could not stand by and prove the allegation, and found guilty of contempt of court. In Arundati Roy’s case,37 certain passages in the book of Roy was found objectionable but let off with a light punishment of one day imprisonment and a fine of rs.2000/-.  The court observed:  “Court’s shoulders are broad enough to shrug off the comments”.  Suggestions and Recommendations In conclusion, it may be stated thus:-  Trial by media and string operations are illegal and the media exposes itself for action and punishment; Criticism of Judgments should be legitimate and no motives to be attributed to Judges; Truth and good faith can be defences for media in making allegations against members of the Judiciary. It has to be established beyond any reason of doubt otherwise the media is liable for contempt of court; Self-regulation by media is best in dealing with court cases and reporting should be fair and accurate; No publicity should be given to rumours; Objectionable matters already published shall not be reproduced; Matter which is likely to cause disaffection arising civil servants and armed forces or promoting hatred and contempt of Govt., shall not be published; No matter to be published which encourages or incites use of criminal force against public servants; and Matter which is likely to promote feelings of enmity and hatred between different classes of people should not be published _____________________________________________________________________________________________________________________________

1. Risal Singh Vs. State of Haryana, AIR 2014 SC P.2023.
2. Art 19(1)a of Part III- Fundamental Rights.
3. Ramesh thapper Vs. State of Madras, AIR 1950 SC P.124.
4. S.Ranga Rajan Vs. P.Jagjivan Ram (1989)2 SCC P.574.
5. Virendra Vs. State of Punjab AIR 1957 SC P.96.
6. Sakal Papers Vs. Union of India AIR 1962 SC P.305.
7. Express News Papers (P) Ltd. Vs. Union of India AIR 1958 SC P.578 at P.617
8. Life Insurance Corporation Vs. Manubhai Shah (1992)3 SCC P.641.
9. See Art 19(2) of the Constitution.
10. Terminiello Vs. Chicago quoted in Secretary, Ministry of Information & Broad casting Vs. Cricket Association, Bengal (1995)2 SCC P.161.
11. Ibid, 337 US 1 (1949)
12. Anand Chintamani Vs. State of Maharashtra (2002)2 Mah L J P.14.
13. See Art 13 of the United Nations Charter on declaration of Human Rights.
14. Attorney General vs. Guardian Newspapers Ltd. (1988)3 All ER P.595.
15. Vineet Narain Vs. Union of India (1998)1 SC P.226.
16. See Section 151 of the Civil Procedure Code and also Naresh shridhar Vs. State of Maharashtra, AIR 1967 SC P.1 and also para 21 at Page 8-9.
17. Ibid.
18. Ibid.
19. State Vs. Charulata Joshi (1999)4 SCC P.65.
20. Sheela Barse Vs. Union of India (1987)4 SCC P.378.
21. R.K.Anand Vs. Delhi High Court (2009)8 SCC P.106.
22. In Re Risal Singh, See Foot No.1
23. In Re Arundhathi Roy (2002) 3 Sec P.343.
24. Delhi Judicial Service Association Vs. State of Gujarath (1991)4 SCC P.406 at P.457.
25. Rajinder Sail Vs. M.P.High Court Bar Association (2005)6 SCC P.109.
26. Even sita in Ramayana had to undergo an ordinal by fire to establish her chastity when an ordinary washermen spoken against her suspecting her chastity for being kept in captivity in Lanka by Ravana.
27. D.C.Saxena Vs. Chief Justice of India (1996)5 SCC P.216.
28. Mrutyun Joy Das Vs. Sayed Hasibin Rehaman (2001)3 SCC P.739
29. Sec 2 of the contempt of court Act substituting for Sec 13 by the contempt of court (Amendment) Act, 2006.
30. (2001)2 SCC P.171.
31. These remarks were in the book titled “Big Egos Small Man” at P.14.
32. P.N.Duda Vs. P.shiv Shankar.
33. These remarks were made at a speech delivered at the Bar Council at Hyderabad. Mr. Shiv Shankar was himself a Judge of the High Court and as such it had the effect of undermining the public confidence in the judicial system.
34. Surya Prakash Khatri Vs. Madhu Trehan (2001)92 DLT 665.
35. In Re Harijan Singh (1996)6 SCC P.466.
36. Rajendra Sail’s case (2005) 6 SCC P.109.
37. Narmada Bachao andolan vs. Union of India (1999) 8 SCC P.308

Author Name: Prof. (Dr.) Mukund Sarda