While seeking, very desirably, media accountability, the judiciary must keep in mind the need to balance it with the need for press freedom in a democracy.
The way most news channels and a few print/digital media bulldozed nuance and the sense of responsible media behaviour in their coverage of the death of actor Sushant Singh Rajput and the allegations in its aftermath would make it hard to disagree with the attorney general of India KK Venugopal. Venugopal told the Supreme Court on Tuesday that electronic and print media “freely” (perhaps meaning without accountability) commenting on pending cases was an “attempt to influence judges and public perception” and should be viewed as contempt of court. Indeed, a vicious, irresponsible narrative was spun by leading English and regional language news channels—screeching anchors more than insinuated culpability of individuals before completion of the probe, while a few others bandied about even WhatsApp conversations of people being interrogated in the case and related matters to claim vindication of their editorial stands. The problem was compounded by social media amplifying the irresponsible coverage and adding its own load of half-truths and plain fake news. Even so, to cite damning conduct by a few and talk of treating media commentary on matters pre-trial or sub-judice as contempt is rather dangerous given the chilling effect it would have on fair and rational discussion on matters of public interest.
While seeking, very desirably, media accountability, the judiciary must keep in mind the need to balance it with the need for press freedom in a democracy. To that end, the 2012 judgment of the Supreme Court, on an injunction plea arising out of Sahara vs Sebi, is quite instructive. The Supreme Court had ruled in AK Gopalan vs Noordeen that media statements that could jeopardise the right to a fair trial can be prohibited, and in Ram Autar Shukla vs Arvind Shukla, it has held that the law of contempt is a way to prevent the due process of law from getting perverted. In the 2012 Sahara injunction judgment, it notes that ‘trial by newspaper’ can be categorised as an act that interferes with the course of justice and could invite contempt. However, the very same judgment strongly underlines the test for whether media reporting constitutes contempt or not: “… the publication (actual and not planned publication) must create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of the trial”. So, a blanket treatment of commentary of sub-judice matters by the media as contempt would be akin to gagging the media, which no respectable democracy would want. And, while the judgement looks upon ‘prior restraint’ as a tool to prevent contempt by the media—even when the reporting is accurate, but may prejudice the trial at later stages or connected trials—it lays down specific guidelines for this: The applicant for an injunction has to demonstrate a substantial risk of prejudice to pending trial and has to “displace the presumption of Open Justice (transparent trial proceedings)”. The courts, too, have to keep in mind the tests of proportionality and necessity. The judgment holds that such action has to be evaluated on the merits of the case, and thus, precludes any blanket ban on commentary.
While the Supreme Court must keep media freedom in mind, the media, on its part, needs to ensure its accountability is upheld—no amount of pleading ‘freedom of the press’ and ‘public interest’ can ever make up for the damage irresponsible editorial righteousness did to the various matters in the Sushant Singh Rajput case.