The recent media exposé of the personal chats between Shah Rukh Khan and former Narcotics Bureau Officer, Sameer Wankhede, which were excerpts from the court reporting of the ongoing extortion case before the Bombay High Court, raised important questions around plausible restrictions court reporters should be subjected to. The brazen public discussions around a private conversation of an eminent personality which was presented as a piece of evidence in a sub judice matter, reignited a prolonged debate over the need to balance the right to privacy of the litigants with the freedom of the press. It also highlighted the risk of transgressive reporting of court proceedings in the media which can interfere with the process of fair trial.
In the current case, the Bombay High Court refrained Wankhede from making any press statements while the case is pending. However, this certainly is not an isolated incident and is in fact, an impetus to inquire into the rules of court reporting in India.
Can the media cover everything about a court proceeding?
Broadly, the media does have the right to publish details of a court proceeding, stemming from its right to freedom of speech and expression under Article 19(1) of the Indian Constitution. This was also endorsed by the precept of “promotion of full, fair and accurate reporting of court proceedings” as held by the Supreme Court in Swapnil Tripathi v. Supreme Court of India (2018).
However, in line with the limitations imposed on free speech by Article 19(2), the Court can forbid the media from reporting on certain aspects of a case pending before a court. For instance, in criminal cases involving sexual crimes, especially child sexual abuse, the law strictly prohibits publication of any sensitive information. Moreover, in cases of “in-camera proceedings” where the proceedings are not open to the public, no information can be shared outside the courtroom. In Romila Thapar v. Union of India (2018), the Supreme Court directed law enforcement authorities to not reveal any details about the parties involved until the trial is completed. This effectively means that the media can report freely on all court proceedings unless there are expressed restrictions.
So what can the media report on?
Materials presented or conversations held before a court of law qualify as “public documents” according to section 74 of the Indian Evidence Act, 1872. Therefore the public has the right to access such information. Hence, an uninhibited reporting of court proceedings is both the right and duty of the media. Transparency of court proceedings is the norm. In fact, all judgements delivered by the Supreme Court have to be in an open court, according to Article 145 (4) of the Indian Constitution. However, there are exceptions to this norm.
And they are…
As mentioned before, in cases where there is already a statutory embargo or an injunction from reporting, for example, POCSO and rape cases, media reporting of specific aspects is not allowed. However, there is no overarching list of the type of cases or categories of information that the media cannot report on. Having said that, courts have time and again restricted media reporting if it threatens to interfere with the “administration of justice” or jeopardizes the right to life of the concerned parties or the right to a fair trial of the accused.
The need to balance accountability with freedom of the press
The responsibility of ethical and accurate reporting lies with the media. The former Chief Justice of India, N.V Ramana had regretted the lack of accountability of the media in reporting of legal issues in the context of journalist Mohammad Zubair’s arrest. In the 2012 case of Sahara v. SEBI, it was prayed before the Supreme Court that guidelines on media reporting of cases be framed. This was again echoed by the Karnataka High Court in the H Nagabhushan Rao v. Ministry of Information and Broadcasting (2021) case.
While we have seen the perils of media overreach on numerous occasions, preemptive restrictions on the media goes against the “soul of justice”. In fact, in the Sahara case, the Supreme Court refrained from framing any guidelines on media reporting across the board upholding the value of open justice.
What can be done in case of unauthorized reporting or misreporting by the media?
The Supreme Court in the Sahara case listed down certain constitutional principles according to which publication of certain court proceedings may be postponed if the court felt that reporting of such cases can adversely impact the process of justice. The order of postponement will only be passed if it can be proven that such an order is both proportionate and necessary. Besides, anyone who is affected by misreporting by the media can seek legal remedies under the provisions of the defamation laws as well as other constitutional remedies like violation of the right to privacy or the right to life under Article 21 of the Indian constitution.