[I recently had the pleasure of attending a conference organized by the National Law School, Bangalore on Delimiting Media Rights. The conference was structured along two panels – one dealing with privacy issues involved in media reporting and the second dealing with regulation of media reporting of judicial proceedings. The following post is not a summary of the deliberations, but merely a brief discussion of some of the observations of the speakers that stood out in my mind. Readers are welcome to point out any mistakes.]
The conference began with a speech by Justice Muralidhar of the Delhi High Court. Justice Muralidhar is celebrated for his strong commitment to human rights and most notably his agreement with Justice A.P. Shah in decriminalizing consensual homosexuality in Naz Foundation v. N.C.T Delhi. Justice Muralidhar began his discussion on privacy by stating that he viewed privacy rights as a means of enforcing personal dignity, whether in a personal space, decisions or relationships. He also correctly drew attention to the historical fact that privacy jurisprudence took root very modestly through a dissent in Kharak Singh, which was later read into Article 21 of the Constitution. He was also candid in stating that legal responses to privacy violations are mostly reactive, instead of deliberating these issues before egregious violations actually take place. A consequence of this delayed manner of thinking about and enforcing privacy rights was a disjoint and underdeveloped understanding of privacy.
Ms. Geetha Seshu (a journalist with the media watch dog organization The Hoot) provided an insight on the relationship between privacy rights and journalistic practices. She stated that journalists in the 1980’s and 1990’s had no conscious awareness of privacy rights, and as a result would often compromise the identity of vulnerable people or communities. She also acknowledged that some media organizations have recently begun to be sensitive towards privacy interest, but on the whole, journalists remain ignorant about privacy rights. She attributed this to two broad causative factors. First, she stated that journalists are under immense pressure from editors to capture the news with the greatest detail and in the least amount of time. This professional obligation to “get the story first” in large part clarifies the reason why journalists often violate the privacy of the subjects they report on. Furthermore, she stated that employment conditions of journalists are extremely adverse, in that most journalists are not hired permanently but are mostly engaged on a contract basis. Second, she was very critical of Press Council of India and its complete failure in developing robust guidelines for journalists and lacking any real authority to impose any sanctions on erring journalists or media organizations.
Mr. Apar Gupta (A Delhi based lawyer and blogger about law and technology issues) spoke on the second panel dealing with regulation of media reporting of judicial proceedings. He dealt primarily with the recent decision of the Supreme Court in Sahara v. SEBI (popularly known as the media guidelines judgment). He was critical of the opinion and characterized it is as vague, unsubstantiated and unnecessary. According to Mr. Gupta, the vagueness in the judgment permeated not only the reasoning (by virtue of loose references to principles of proportionality and necessity) but also in the final remedy of this opinion. He also stressed that the judgment is not a welcome development, as it does not provide adequate safeguards against the option of prior restraint through a postponement order, and may lead to unconstitutional regulation of speech. His final critique related to the normative justification for the opinion, as it was unclear whether the central concern of the judges was contempt of court or whether it was concerns of a fair trial. If the concern was contempt of court, this decision was completely unnecessary since the Contempt of Courts Act already provides for civil and criminal remedies. Mr. Gupta concluded by noting that although the decision has been characterized, as a restatement of law as laid down in Mirajkar, there was one significant difference. The Sahara judgment unlike Mirajkar created a writ remedy for prejudicial reports of judicial proceedings. In doing so, the judgment created a questionable exception to the procedure as contemplated under the Contempt of Courts