40 Years of Kesavananda Bharati!

24th April, 1973.

The day when Indian Judiciary managed to save the Constitution by a whisker.

The day when Supreme Court of India passed its judgment in Kesavananda Bharati vs. State of Kerala holding that amending power of the Parliament cannot be used to alter the basic structure or the essential features of the Constitution.

Marking 40th anniversary of passing of this landmark judgment, here is some of the interesting trivia about the case:

1. This was the largest Bench (13 Judges Bench) that had heard the lengthiest arguments and covered the widest area of case laws and legal literature in the history of the Supreme Court.

2. This decision was made by a wafer-thin majority of 7:6, i.e. with 6 judges dissenting to the majority view. (If the decision of Justice Khanna is vivisected carefully, one would find that the verdict is really 6.6:6.4!)

3. The case was heard for the longest number of days. It totally took 68 working days commencing on October 31, 1972 and concluding on March 23, 1973. The written arguments were submitted by March 27, 1973.

4. The entire case came close to being reheard because of the illness of Justice Beg. He fell ill in February and March, 1973 and was hospitalized thrice. At that time, Chief Justice Sikri had to go on a two-week trip to Europe in the last week of March and was to retire on April 24, 1973. If Beg did not sit again or if Chief Justice Sikri retired, the hearings, which had already taken five months, would have to commence once again.

5. The illness of Justice Beg left Nani Palkhivala who appeared for the Petitioner with no choice but to give up his arguments in rejoinder for the last two days.

6. Ironically, the Petitioner ‘His Holiness Kesavananda Bharati Sripadagalvaru’ neither met Nani Palkhivala nor even spoke to him. Kesavananda Bharati was actually quite surprised to see his name appearing in the papers every day and wondered why the case was taking so much time.

7. The longest judgment, covering 703 pages was delivered on April 24, 1973. The headnotes of SCC reported judgment alone runs into 80 pages.

8. The controversial summary of the judgment was prepared by the Bench however it was signed only by nine judges out of thirteen judges. Justices Ray, Mathew, Beg and Dwivedi refused to sign it.

9. Though the most important contribution of this judgment is the basic structure theory, there was no unanimity on what constituted the basic structure of the Constitution even among the judges who gave the majority view. Different examples of what constitutes basic structure were given by different judges.

10. A shocking revelation by T. R. Andhyarujina (in his book ‘The Kesavanada Bharati Case – The Untold Story of Struggle for Supremacy by Supreme Court and Parliament‘) is that the Government was in possession of some of the draft judgments even before they were delivered on April 24, 1973.

11. H.M.Seervai, one of the staunchest supporters of the unlimited power of Parliament to amend the Constitution appeared on behalf of the Respondents in the case. With his characteristic honesty, he later admitted that if the basic structure doctrine had not been laid down, the consequences would have been very grave and India would have been in danger of being converted into a police State ‘as the experience of the emergency clearly showed’.

12. The judgment was delivered on the last working day of Chief Justice Sikri. He retired on April 25, 1973. The tradition of appointing the senior most judge as the Chief Justice was abandoned and Justice Ray, who was the fourth in the line of seniority, superseded Justices Shelat, Hedge and Grover. This announcement was first made known through a radio broadcast over the All India Radio.

13. The marathon hearing yielded no relief to His Holiness Kesavananda Bharati or any of the other petitioners. But they have the consolation of being responsible for the basic structure doctrine and saving India democracy.

[The above facts are extracts from the book ‘Nani Palkhivala – The Courtroom Genius’ written by Soli Sorabjee and Arvind P Datar. No student of law, no lawyer, no chartered accountant, no member of the judiciary, and no well-informed citizen can afford to miss reading this book!]


An eventful year – 2012

2012, unarguably, is one of the worst years for Indian politics with unvarying scams and uninspiring deeds of politicians. Hardly any steps were adopted (except for few attempts in later half) to revive the economy either. If there is a single institution which had an eventful year, it has to be the Apex Court of India. Far from perfection though.

Here is a simple review of landmark judgments/ legal developments happened in this eventful 2012 (with links to judgments and reading materials). Hope you will find it useful.

JANUARY 20, 2012 – VODAFONE JUDGMENT

On January 20, 2012, the Supreme Court ruled in favor of Vodafone saying capital gains tax is not applicable to the telecom major. The Court overruled the judgment of Bombay High Court and held that Income Tax department should return Rs.2,500 Crores to Vodafone with 4% interest. As a huge boost for cross border mergers in India, the Court held that there is no question of TDS being deducted under Section 195 of the Income Tax Act, 1961 and that it is a bonafide FDI transaction. It is considered to be one of the major blows for the tax department in recent years.

Full text of the Bombay High Court Judgment (September 8, 2010) – Click here.

Full text of the Supreme Court Judgment – Click here.

Reaction

The matter however did not rest with the judgment of Supreme Court.

The government, in March 2012 proposed, in its budget, the most controversial retrospective amendment to the Income Tax Act that would help the government to overturn the Supreme Court order.

The prospective retrospective amendment can be seen here. [Taxmann]

Recently, the government has approached the Apex Court seeking a review of the judgment. The department wants the matter heard afresh by a larger seven-judge bench. [Financial Express]

Besides these desperate attempts by the government, there are few people who have also criticized the judgment for having exceeded its jurisdiction. [Indian Express]

FEBRUARY 2, 2012 – CANCELLATION OF 122 TELECOM LICENSES 

On February 2, 2012, the Apex Court cancelled all 122 unified access service licences which were issued in January 2008 by former telecom minister A Raja. The decision came as a heavy setback for the government. The eight companies who were holding the licences together invested Rs 35,000-40,000 crore, of which two-thirds was put in by two telcos, Uninor and Sistema.

The Court also directed the Telecom Regulatory Authority of India (TRAI) to make fresh recommendations for the telecom spectrum auction route in future, within four months of the Order.

List of cancelled 2G licenses [Business Standard]

Full text of the Judgment – Click here.

Reaction

Few observations and directions by the Court on method of disposal of natural resources lead to a Special Reference by President under Article 143 of the Constitution of India. The Hon’ble Court rightly ensured, through this special reference, that this judgment does not fall within the never-ending battle between Judiciary and Legislature/ Executive. It clarified that the scope of 2G judgment is restricted only to spectrum and also that Court cannot and will not prescribe any policy as the only constitutional permissible policy. It was a concurring opinion which offered separate reasons for same conclusions on majority.

Original presidential reference – Click here.

September 27, 2012 – Opinion rendered by Supreme Court in presidential reference – Click here.

APRIL 12, 2012 – RIGHT TO EDUCATION JUDGMENT

On April 12, 2012, the Supreme Court rejected a batch of petitions and upheld the constitutional validity of Right to Education Act (RTE), 2010 through a majority of then Chief Justice SH Kapadia and Justice Swatenter Kumar. However, Justice Radha Krishnan dissented from the view that a fourth of seats in all schools, including private ones, should be reserved for admission to economically weaker students.

RTE mandates 25 percent reservation and the bench brought all educational institutions within the ambit of this Act except for unaided minority institutions. The Act, which is operational in at least 19 states, envisages free and compulsory education for all poor children aged between 6 and 14 years.

Full text of the Judgment – Click here.

AUGUST 31, 2012 – SAHARA

The second major judgment of the year, in terms of money involved, came from the bench of Justices KS Radhakrishnan and Justice JS Khehar on August 31, 2012, where two Sahara group companies were ordered to refund Rs 24,000 Crores they had collected through optional fully convertible debentures, to SEBI with 15 per cent interest by November 30, 2012, since they had violated various regulatory norms. The judgment is undoubtedly a boost for SEBI in reinstalling its powers as a regulator in the market.

Full text of the Judgment – Click here.

Reaction

The Court invited strong criticism recently when a bench presided over by Chief Justice of India Altamas Kabir modified the judgment of August 31, 2012 by allowing SAHARA to pay the amounts in installments. It was a shocking incident for many lawyers. Legal luminaries have criticized this order particularly because final order passed by one bench could not possibly be modified by another bench and that it would set a wrong precedent. [Legally India]

SEPTEMBER 6, 2012 – BALCO JUDGMENT ON ARBITRATION

On September 6, 2012, the Constitution bench of then Chief Justice of India SH Kapadia and Justices D. K. Jain, Surinder Singh Nijjar, Jagdish Singh Khehar and Ranjana Prakash Desai overruled the doctrine laid down in its own 2002 landmark judgment Bhatia International v Bulk Trading SA & Anr case, which held that Indian courts had exclusive jurisdiction to test the validity of an arbitral award made in India even when the proper law of the contract is the law of another country.

The Apex Court held that part 1 of the Arbitration Act does not apply to international arbitration and that the seat of arbitration will determine jurisdiction of the court. This judgment is hailed as one of the landmark judgments which renewed arbitration in India.

Full text of the Judgment – Click here.

SEPTEMBER 11, 2012 – MEDIA GUIDELINES

The special constitutional bench of Supreme Court, on September 11, 2012 laid down a new doctrine that, if requested, would allow courts to temporarily ban media from reporting a case if it would adversely affect the trial. However, the Court declined to create wider guidelines on how the media should report court cases

The Chief Justice of India S.H. Kapadia, said that if publishing news related to a trial would “create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial”, the court could grant a postponement order, temporarily gagging electronic or print media from reporting on the case.

However, this excise undertook by the Court was more of an academic nature and it helped none.

Full text of the Judgment – Click here.

SEPTEMBER 13, 2012 – RTI JUDGMENT

On September 13, 2012, a division bench of the Supreme Court, comprising Justice AK Patnaik and Justice Swatander Kumar disposed of a writ petition (within two months) ruling that information commissions under the Right to Information Act, 2005 (RTI Act) must function with two-member benches, one of the two members being a high court chief justice or a supreme court judge for the post of chief information commissioner. The judgment certainly brought the functioning of CIC to an abrupt emergency halt.

The judgment also prescribed procedures for appointment to these posts.

Full text of the Judgment – Click here.

Reaction

This judgment has been criticized by all quarters and considered to be one of the major blunders committed by the Apex Court. It is opined by many RTI activists and legal luminaries that this judgment could just kill the RTI Act and that it would create unnecessary hurdles and delay in its enforcement.

Few articles:

A recent Supreme Court ruling could kill RTI [Forbes]

Judges’ quota ruffles RTI panel [Hindustan Times]

SC ruling stumps RTI fraternities [The Hindu]

Information Commissions need judicial members: apex court [Live Mint]

NOVEMBER 9, 2012 – REVISITING COLLEGIUM SYSTEM

After almost 19 years of nine-judge bench of Supreme Court passing a judgment as to collegium in the appointment of judges in Supreme Court and High Courts, the possibility of Supreme Court revisiting the same by eleven-judge bench has increased. The bench headed by Chief Justice of India Justice Altamas Kabir on November 9, 2012 issued notices to the Union of India and Attorney General on a petition filed by a trust seeking review of the 1993 judgment.

The government has already been working on, for a long time, a Constitution Amendment Bill to provide for a Judicial Appointments Commission.

OTHER MAJOR DEVELOPMENTS

(i) Many issues as to validity of few provisions of IT Act, 2002 (particularly Section 66A) as also its enforcement were raised this year by various quarters and rightfully so. Incidents like blocking twitter accounts/ websites and unnecessary arrests/ charges had triggered these issues and recently a PIL has been filed by one law student in Supreme Court challenging constitutional validity of Section 66A of the Act. The Court has taken cognizance and issued notice to the government.

(ii) Though it is more of a policy decision, allowing FDI in multi-brand retail can be considered one of the major legal developments happened in the year 2012. On September 14, 2012, the government of India announced the opening of FDI in multi-brand retail, subject to approvals by individual states. On September 20, 2012, the Government of India formally notified the FDI reforms for single and multi-brand retail, thereby making it effective under Indian law. On December 7, 2012, the Government of India allowed 51% FDI in multi-brand retail in India. The government managed to get the approval of multi-brand retail in the parliament despite heavy uproar from the opposition.

(iii) After a long wait, Companies Bill, 2011 has been passed by Lok Sabha on December 18, 2012.

Full text of the Companies Bill, 2011 – Click here.


Issue 4 – Supreme Court’s power to frame guidelines

Whether Supreme Court has the power to impose restrictions on Article 19(1) (a) when Article 19 (2) specifically mentions that limitations can be imposed only by ‘state enacted law’?

Most of the senior counsels including Fali Nariman and Ram Jethmalani contended that Supreme Court does not have any power whatsoever to impose restrictions on Article 19 (1) (a) and it would be considered a judicial outreach because as per Article 19 (2), only state enacted law can impose restrictions on the said right.

Undoubtedly, the contention is unambiguous. Only State can impose restrictions through its laws. But, what if State fails to enact a law? What if there is a vacuum?

Particularly regarding the issues which are being discussed by the Supreme Court in this case, Law Commission submitted its report almost 5 and half years back and suggested few changes in law. However, so far, the Government has not accepted the said report or enacted any law to protect the rights of an accused.

As stated in the earlier post, there certainly is a vacuum in case of protection of rights of an accused till the charge sheet is filed in case of criminal cases since the Contempt of Courts Act does not cover the same.

The Supreme Court has decided in numerous cases that when there is a vacuum in law and State has failed to fill the same, it is essential and indeed a constitutional obligation for the Supreme Court to issue such directions/ guidelines for the enforcement of fundamental rights.

Chief Justice Kapadia had a simplified illustration. For example, if some restrictions are being imposed by the Supreme Court on a Mining business to safeguard fundamental rights of other aggrieved persons, is it outside Supreme Court’s jurisdiction simply because Right to business/profession [Article 19(1)(g)] can be restricted only by state enacted law under Article 19 (2) ? What if there is no law?

This is certainly not the first time that directions/guidelines have been issued by the Supreme Court. The law on this aspect is very clear. Article 142 of the Indian Constitution is certainly wider enough to include the powers of the Supreme Court to frame guidelines for the purpose of protecting fundamental rights of the citizens.

Some of the cases wherein guidelines were issued by the Supreme Court are as follows:

  1. S.P. Gupta v Union of India 1981 Supp SCC 87 para 27
  2. Lakshmi Kant Pandey v Union of India 1984 (2) SCC 244 (para 1)
  3. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, para 13
  4. Delhi Judicial Service  Assn v State of Gujarat (para 51, guidelines at para 55) 1991 (4) SCC 406
  5. Union Carbide Corporation etc v UOI, & Ors. (para 15) 1991 (4) SCC 584
  6. Kartar Singh Vs. State of Punjab (1994) 3 SCC 569 (para 263)
  7. Kumari Madhuri Patil v Commr. Tribal Development 1994 6 SCC 241
  8. Common Cause v Union of India 1996 (1) SCC 752 (para 1, guidelines/directions at para 14)
  9. Delhi Development Authority v Skipper Construction Co. (P) Ltd. & Anr. 1996 (4) SCC 622 (paras 15, 16, 32, 34)
  10. People’s Union of Civil Liberties (PUCL) Vs. Union of India (UOI) and Anr.  (1997) 1 SCC 301
  11. D.K. Basu v State of West Bengal 1997 (1) SCC 416 (para 22, 23, 35)
  12. Vishaka & Ors v State of Rajasthan & Ors 1997 (6) SCC 241 (paras 1, 11 and 16)
  13. Vineet Narain & Ors v Union of India & Anr. 1998 (1) SCC 226 (paras 49, 51, 52, and 53)
  14. Union of India v Association for Democratic Reforms & Anr with PUCL & Anr v UOI & Anr 2002 (5) SCC 294 (para 15, 16, 20, 45, 46)
  15. Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284, para33
  16. Destruction of Public & Private Properties v State of AP 2009 (5) SCC 212 (paras 17, 18, 25, 28, 29 30, 32)

Irrespective of the fact that, whether the guidelines which might be framed by the Supreme Court would be effective or not and even could be enforced or not, this case would certainly set what rights are available to the press and what are not.

Or, at least, it will give an opportunity for the future judiciary to overrule and come up with a better judgment.


Issue 3 – Art.21 and Art.19(1)(a) – Priority or balance

Which right shall have priority over the other?

Right to Freedom of Speech and Expression as provided under Article 19(1)(a) or Right to Life and Liberty under Article 21 of the Constitution of India?

Press has the freedom of speech and expression. The Supreme Court intends to protect the right to life and liberty of citizens by placing restrictions on the media reporting on cases.

Few of the counsels who appeared before the Supreme Court have contended that Article 19(1)(a) should be priority over Article 21 because Article 19 gives explicit right to the citizens where Article 21 is a negative covenant which says ‘no person shall be deprived of his life and liberty except according to the procedure established by law’.

Few counsels contended that, Article 21 is an indefeasible right and it should be given priority over the Article 19(1)(a) citing some judgments to that effect.

The Supreme Court, from the beginning, was of the view that, there cannot be one fundamental right having priority over the other but it is the duty of the Supreme Court to find balance between these two rights.

With all these contentions, Mr. Harish Salve made an interesting point. According to Mr. Salve, reporting anything on cases by the Media is not a right guaranteed under Article 19 (1) (a). No right under Article 19 is absolute and obviously, every right has to be exercised within its limits.

Mr. Salve made it very clear that, Supreme Court framing guidelines on ‘media reporting on cases’ cannot be treated as imposing restrictions on Article 19 (1) (a) for the simple fact that, press do not have the absolute right at the first place. Mr. Salve was of the opinion that, at this circumstances, it is necessary that the Supreme Court at least defines and clarifies to the press through this judgment what all their rights and what not. Can’t agree more.

One more interesting point made by another Counsel during the hearing. In his views, the right under Article 19 (1) (a) is a right entrusted by the Constitution to its citizens wherein right under Article 21 is assumed to have been there even prior to the Constitution. Conscious reading of both these Articles would suggest the difference.  Article 19 (1) (a) reads as “All citizens have the right to freedom of speech and expression”, whilst Article 21 does not even have the word ‘right‘. It reads, “No person shall be deprived of his life and liberty”, clearly indicating that right under Article 21 is omnipresent even prior to the Constitution.

The Supreme Court of India would definitely not find either of these rights having priority over the other. But, it will be interesting to see how the Court interprets both these Articles without damaging any of its basic constitutional values.


Issue 2 – What efficacious remedy?

What efficacious remedies are available to a person who is aggrieved by media?

Whilst most of the counsels contended before the Supreme Court that implementation of laws on ‘defamation’ and ‘contempt of court’ in its true intent can certainly be considered as efficacious remedy, few counsels find them to be inefficient.

Defamation

Firstly, when a person’s right is violated by hyped media, damage is already done and least expected from such a person is to file a case for defamation which means standing in court for years together. Civil defamation, highly ineffective.

Criminal defamation under Section 500 of the Indian Penal Code is bailable and non-cognizable and has no impact on the offender.

Add to it, unlike most other crimes, the legislature has placed a restriction under Section 199 of the Criminal Procedure Code on the filing of defamation cases that only aggrieved party can set criminal law in motion. In the event of aggrieved person staying behind the bars for months because of adverse media publicity, how can he even file a defamation case which requires the filing of a private complaint through a private lawyer and physical person in the court for the verification statement under Section 200 of the Criminal Procedure Code is required?

Defamation is an efficacious remedy in these cases? Certainly, not.

Contempt

With respect to criminal cases, Contempt of Courts Act, 1971, expressly states in the Explanation to Section 3 that unless a charge sheet is filed or process of summons or warrant is issued, the proceedings are not said to be pending in a Criminal case. Therefore there is no Contempt of Court for want of ‘pendency’.

Under the law of contempt, the Contempt of Courts Act, 1971 has to be followed even in exercise of the jurisdiction under the Article 215 of the Constitution. This is so as even though the High Court under Article 215 can invoke powers and jurisdictions vested in it but such jurisdiction has to be exercised in accordance with the procedure prescribed by law which is the Contempt of Courts Act, 1971.

Unfortunately, prior to filing charge sheet, press can publish anything and get away with it from contempt of court in the technical sense for want of pendency.

Even if post charge sheet or cognizance by issuance of summons/warrant, contempt is committed, even then a criminal trial court under the Criminal Procedure Code has no inherent jurisdiction. [Bindeshwari Prasad Singh Vs. Kali Singh 1977 1 SCC 57; Maj. Genl. A.S. Gauraya and Anr. Vs. S.N. Thakur and Anr. 1986 (2) SCC 709].

Under the Criminal procedure Code, 1973, there are no provisions for the trial court to pass any orders to prevent such injustice. Criminal trial courts do not enjoy inherent jurisdiction like civil trial courts. High Court, though can exercise its inherent jurisdiction under Section 482 of the Criminal Procedure Code, in the practical sense, it is highly unlikely that a High Court takes cognizance of rights being violated by press under its inherent jurisdiction.

The remedy of contempt, even if committed before the trial court is of hardly any practical benefit as the court cannot punish for contempt.

It has to make a reference under Section 15 of Contempt of Courts Act by which is time-consuming and practically not effective.

So, contempt is an efficacious remedy in these cases? certainly not.

In any event, as the Supreme Court has made it very clear, the entire exercise of the Court in this present case is to find preventive measures to safeguard the fundamental rights but not to find punitive measures. Defamation or contempt serves no purpose in that case.


Issue 1 – What violation of rights?

Whilst there is a hue and cry about infringement of rights of press, the point on ‘what fundamental rights the Supreme Court is ‘allegedly’ intending to protect’ has been conveniently given a miss by the media.

No exaggeration. Almost every single day, due to some reporting of pending cases in newspapers/electronic media, someone’s fundamental right is getting violated. Most of the times, unfortunately, unnoticed.

Few instances of reporting of cases (mostly criminal cases) amounting to violation of rights are:

  1. Right to fair trial is a basic fundamental right under Article 21 of the Constitution irrespective of nature of an offence ‘allegedly’ committed. Media trial, Media investigation, Media conviction.. Numerous options for a press to violate this fundamental right. With media sensationalizing every issue, credible or not, right to fair trial hardly has any meaning these days.
  2. One of the basic principles of criminal laws is ‘Presumption of innocence’, i.e. “Every accused is innocent unless he is proven guilty”. Sounds funny, given the circumstances.
  3. Under Section 25 of the Indian Evidence Act, 1872 and Section 162 of the Criminal Procedure Code, 1973, an accused has the invaluable right of his confession made to the police not being used against him in a Court of law. A simple search in YouTube would show many instances of Television channels broadcasting confession made by an accused in police custody. Not only the sanctity of the aforesaid provisions is at stake but also the fundamental right of an accused to have fair trial.
  4. Article 20 (3) of the constitution guarantees a person his fundamental right to silence, which would certainly include a person’s right not to give any interview to a press. There are numerous occasions when press showed no respect whatsoever to such right and inferred guilty from a person exercising his fundamental right to remain silence.
  5. Often, press publishes photographs of suspected accused even before the Identification parade. At some circumstances, it even affects the case of prosecution because of accused challenging sanctity of such identification parade on this ground alone.
  6. The interviews with the witnesses, most of the times, are in direct contradiction with Sec. 162 Cr.PC which mandates that no use can be made of a prior statement in the trial.
  7. As per Section 27 of the Indian Evidence Act, if the police produces an article through a statement of an accused which is having an evidentiary value in a crime, it would be considered as ‘relevant fact’, only if knowledge about such article is given by the accused. If the police have prior knowledge about the article or its knowledge is available from the press before the accused discloses it, then it can’t be linked to the accused. Such a situation arose in a recent murder case, where press identified some articles even before accused confessing about it to the police.
  8. One cannot certainly overrule the ‘subconscious mind’ of a Judge, deciding bail or anticipatory bail, getting affected by hyped media publicity in a particular case. The English courts have accepted the doctrine of subconscious influence of reporting of cases on the courts and the public. 200th Law Commission Report also discusses on this particular point. Australian courts adjourn a particular matter if it is convinced that media hype would affect the fair trial of that case. Interestingly, if the media hype is not settling down in such case and the court is convinced that the same would affect the fair trial of that case, the courts are even empowered to acquit the accused on that ground alone.

As per the 200th Law Commission Report, dated 31st August, 2006 by Justice Jagannadha Rao (pgs 195 – 220), the following publications amount to interference in the due course of administration of justice and are recognized as prejudicial to accused/suspects:

  • Publications concerning the character of accused or previous conclusions (convictions)
  • Publication of confessions
  • Publications which comment or reflect upon the merits of the case
  • Photographs
  • Police activities
  • Imputation of innocence
  • Creating of atmosphere of prejudice
  • Criticism of witnesses
  • Premature publication of evidence
  • Publication of interviews with witnesses
  • Premature publication of evidence

Certainly, it is not the case that, there cannot be any reporting whatsoever on cases by the Media. The least expected is, media recognizing and respecting rights of an individual who is involved in a case.

The bitter truth is, there is a lack of awareness about these issues. And, those media concerns who knows about them, gives a damn. Obvious commercial reasons.


Guidelines on Media Reporting – The Case and Issues

On March 20, 2012, Supreme Court of India issued a Notice notifying that, the case ‘Sahara India Real Estate Corporation Ltd. & Ors. vs. Securities and Exchange Board of India & Anr.’, relating to framing of guidelines for reporting of cases in media, will be taken up for hearing before the Constitution Bench on and from March 27, 2012.

It could have possibly ended there. Sadly, it didn’t. Continued, “Hon’ble the Chief Justice has directed that any party who desires to make submissions in the matter, may do so by way of intervention”.

Since then, almost every possible Senior Counsel, wannabe Senior Counsel, Counsel with a Cause, Counsel for Publicity, Just a Counsel and so on, in and around Supreme Court, have appeared before the Constitution Bench.

Some, made their point. Some, failed to get to the point.

Names like, Fali Nariman, Shanthi Bhushan, Prashant Bhusan, Ram Jethmalani, Harish Salve, T.R. Andhyarujina, Soli Sorabjee, K K Venugopal, Vahanvati, Dr. Dhavan, all in one case, might show some ‘importance‘ attached to it. Let that be, commercial or constitutional.

Not too many people are convinced with the Supreme Court’s endeavor to frame guidelines with respect to reporting of cases in media. Two major arguments: (a) Come what may, no curbing of freedom of press/freedom of speech and expression (b) This case is not for what it is meant to be.

Whilst slightly agreeing to the later contention that, the scope of this matter has been stretched little too much than what it otherwise ought to have been, I have some reservations with the former contention.

I somehow feel, the real constitutional issues which the bench intends to decide, through this matter, have not been given enough focus. Not even by main stream media. Probably, that’s why they are discussing about it.

As a privileged lawyer, who managed to get his name in appearance list which is predominantly lengthier than the order itself, I give my ‘not-so-expert’ opinion about this case, through four issues, in its order, as follows:

(1) What rights are being violated by media/press?

(2) What efficacious remedies are available to such aggrieved person?

(3) Article 21 and Article 19(1) (a) – Priority or balance?

(4) Whether Supreme Court has the power to impose restrictions on Article 19(1) (a) when Article 19 (2) specifically mentions that limitations can be imposed only by ‘state enacted law’?

Considering the significance attached to each of these issues, I shall discuss these issues individually in separate posts.