SSR Case Media Trial: Centre Cannot Say Private Self-Appointed News Bodies Will Look Into Complaints, Argue Petitioners In Bombay HC

In the previous hearing, Senior Advocate Aspi Chinoy had vehemently argued that pre-judging in a criminal case violates principles of a fair trial. He had cited various such instances of media trial that took place in the Sushant Singh Rajput death case.

Senior Advocate Devdatt Kamat appeared on behalf of the petitioners Nilesh Navlakha(filmmaker/producer), Mahibub D. Shaikh(editor of a regional newspaper) and retired civil servant Subhash Chander Chaba

He began his submissions reading from the Cable TV Network (Regulation) Act, 1995 its statutory provisions and rules therein.

Referring to Section 5 of the said act, Advocate Kamat submitted that the statute is very clear. The said provision states that no person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code.

Programme Code has been incorporated to include broadcasters for both uplinking and downloading purposes. These broadcasters are bound to follow the statutory regime under the Cable TV Network Act as per the uplinking and downlinking guidelines. The airwaves belong to the Government of India, it is the sole repository of airwaves, Kamat contended.

When the bench enquired about the source of the guidelines, Advocate Kamat responded by saying that the source flows from the Cable TV Networks Act itself. Therefore, the airwaves have to be used abiding by the union's guidelines as the airwaves are public not private property, Kamat added.

Advocate Kamat also placed reliance upon the judgment of the Supreme Court in Ministry Of Information & Broadcasting vs Cricket Association Of Bengal in support of his arguments.

When the complaints regarding the media trial that took place in the Sushant Singh Rajput death case came up, the Government itself sent these complaints to private organisations like News Broadcaster's Association & News Broadcasting Standard's Authority, Advocate Kamat asserted. The Government cannot outsource this, it is binding on them to take this up, Kamat said referring to the Union's reply to the said complaints.

Kamat referred to a statement in the reply submitted by the Republic TV-

"I say that being one of the most reliable leading media houses in the country, the answering respondents takes practice of ethical journalism very seriously, however, it is pertinent to mention that the answering respondent is not a member of the News Broadcaster's Association, accordingly any code of ethics, broadcasting standards and code issued by NBA do not apply."

Advocate Kamat questioned the said reply and submitted-

The Government sends all these applications before NBA! Total non-application of mind on the government's part.

The bench asked- Is it a member of any self-regulatory body?

News Broadcasters Federation, Advocate Kamat said. Adding to the same, Advocate Rajesh Inamdar submitted -

"There is a new story behind the constitution of this new federation.. The NBA has passed an order against Republic TV and directed them to comply with the order. The channel instead formed a new federation with some new channels. So tomorrow if any channel has some disagreement with NBA or NBF, they will form their own association. In these circumstances , Union cannot simply forward complaints to a private body."

Is there any mechanism to enforce orders by NBA or NBF? CJ Dipankar Datta sought to know.

Sr Adv Kamat: Article 19(2) will be a bar. Only the State can enforce this. No delegation can be done and no private organization can curb freedom of speech. How can the Union abdicate its own obligation and say that private self-appointed organizations will look into this egregious conduct against channels in the Sushant Singh case? It is prima facie evident from the headlines that there has been a violation".

He then referred to certain instances of reporting the case on Times Now and Aaj Tak and submitted-

"Some snippets in rejoinder to show plainly media trial in Sushant Singh Rajput's death case. There is a violation of Programme Code.The Union must step in and take action. A media trial of this kind is in direct connivance with Article 21 of the Constitution."

On the question of what constitutes a media trial and what constitutes an offence, Sr Adv Kamat referred to the 200th Law Commission report. Court intervened saying that these are recommendations.

These recommendations sum up the law in terms of what constitutes a media trial. Till a new law is framed, the existing regime has to be made effective, Kamat said.

Referring to the Aarushi Talwar case, Kamat submitted that the Supreme court had observed in the said case that trial by press and media is "the very antithesis of the Rule of Law".

This whole theory of murder was propounded for four to five months on National TV. Now since the AIIMS report rules out murder, speculation sregarding the same will pass but what happens to the months of slander? Kamat questioned.

If the public has an impression of guilt, it influences the process of administration of justice. Moreover, publication of prosecutions' case information is an affront to the administration of justice, Kamat submitted

Finally, in conclusion of his arguments, Advocate Kamat told the bench that the coverage in Sushant Singh's case violates the Programme Code, constitutes a media trial as summed up by the Law Commission's 200th report and leakage of information or purported leakage of information amounts to interference in administration of Justice.

Kamat further urged that there is leakage of information by agencies like CBI and ED. This becomes even more serious. How are these channels getting access? This would clearly interfere with the administration of justice, Kamat concluded.

Thereafter, the Court asked Additional Solicitor General Anil Singh, who appeared for the Union of India about no action taken by the Union on complaints received in this case.

In one affidavit an inter-ministerial committee was constituted to recommend penalties. The bench noted- Who can impose the penalties as it is not clear. We would presume it is the Ministry to whom the recommendation is sent.

Referring to Sr Adv Kamat's submission that a particular channel refused to comply with NBA's order and formed its own association., the bench asked-

Who enforces the order?

ASG Singh said that there are other mechanisms adding that all this is to ensure that media is not controlled by media, that the nature of the medium remains independent.

The matter has now been adjourned to Wednesday at 3 pm.

Earlier, a division bench of Justices AA Sayed and S P Tavade, while issuing notice in the PIL, had observed that media should exercise restraint while reporting on the case.