Supreme Court: Not for media censorship, but TV self-regulation mechanism needs more teeth

The HC had said media trials amounted to contempt of court and urged the press not to cross the “Lakshman Rekha”, as it found the coverage of actor Sushant Singh Rajput’s death case by some news channels as “contemptuous”. It had observed that existing self-regulatory mechanisms could not take the character of a statutory mechanism.

Issuing notice, the SC said in its order, “We are of the considered view it would be necessary for this court to consider as to whether the steps which have already been taken for constituting a self-regulatory mechanism need to be strengthened both in terms of the ambit of the jurisdiction of mechanism as well (as) in terms of the final orders that may be passed.”

The CJI referred to a statement that “almost all TV channels observe self-restraint in telecasting” and said, “I don’t know if you take a headcount of people in the court whether people will agree with what you say”.

Apparently referring to the media coverage of actor Sushant Singh Rajput’s death in 2020, the CJI then referred to the “frenzy after the death of that actor…. Everybody went berserk presuming whether it’s a murder or suicide”. He said, “you preempt a criminal investigation by doing that.”

Representing NBDA, senior advocate Arvind Datar said the same thing happened in the Arushi murder case. He said Delhi Police “has…curbed one thing”. While earlier the media reported quitting sources, giving the impression that the report is authentic, now it has been said that there will be a press officer in these sensational cases to give a daily briefing and no one can report anything other than that, he said.

Asked “what are the fines that you impose”, Datar told the bench that the fine was fixed at Rs 1 lakh in 2008. He said more than the penalty amount, those who violate the code of ethics also have to issue a public apology.

The CJI, however, expressed doubts whether the fine of Rs 1 lakh would act as a deterrent. “No TV channel has any motivation to comply with your self-regulatory mechanism…if at the end of a violation” the penalty is Rs 1 lakh, he said.

He said: “You don’t want the government to be intruding into this space. You want the channels to be self-regulated. That point you validly made…. But, equally, the self-regulatory mechanism has to be made effective. If you impose a fine of Rs 1 lakh on errant channels, is that really effective?”

The court also asked whether NBDA did not find it appropriate to raise the fine amount in the last 15 years. “Your fine must be a proportion or more than the entirety of the profits you made from that particular show,” CJI Chandrachud said.

“Like a disgorgement,” Datar said, adding that he will take instructions. The CJI remarked: “While we accept the fact that there has to be self-regulation, because that has been accepted as a principle, your self-regulatory body has to be more effective. Merely having a judge of SC is not going to really (help)…because what happens then is you carry the reputation of the judge of SC. You had Justice R V Raveendran earlier…Now you have Justice A K Sikri — all eminent judges, undoubtedly — but their remit is confined by your guidelines. All they can impose is a lakh of rupees.”
The NBDA is headed by a retired SC judge.

Appearing for the Centre, solicitor general Tushar Mehta also said Rs 1 lakh fine is no deterrent.

Asked by the bench how he proposes to “give some bite to your guidelines”, Datar said the court could elaborate the guidelines already in place. “If you can elaborate it further and make a disgorgement — like what SEBI has, where somebody making money out of insider trading has to pay it into the investor fund or some fund.”

The senior counsel said he will speak with Justice Sikri and Justice Raveendran, too, and provide suggestions to the court.

Agreeing, the bench said “we will issue notice and strengthen the framework laid down”.

The CJI added, “Please rest assured that we are as much concerned as the TV channels about 19(1)(a) [right to freedom of speech and expression]. It’s just that at the same time, areas where you are intruding upon the reputation of individuals, it is as if sometimes there is a presumption of guilt, as opposed to a presumption of innocence…when a report is carried on electronic media. We are not branding everybody with the same brush. There are obviously very responsible channels on the electronic media (but) there are some who don’t observe that restraint.”

“We would like to strengthen the self-regulatory mechanism. We will look at what SG is filing. And you can speak to Justice Sikri and Justice Raveednran and make some suggestions…. Then maybe we can have some suggestions on how to strengthen this whole process,” the CJI said.

Directing that the counter-affidavit be filed in three weeks, the SC recorded in the order Datar’s clarification that Bombay HC’s observations on the self-regulatory mechanism “may not reflective of the correct position in law, particularly since both uplinking and downlinking guidelines formulated by the Union government expressly contemplate a self-regulatory mechanism” headed by a former SC judge.

The bench also noted that “over 4,000 complaints have already been disposed of” the News Broadcasting and Digital Standards Authority, an independent body set up by the NBDA. “That apart, it has been submitted that while the self-regulatory mechanism does not partake the character of a statutory body, yet it would not be correct to assert that the mechanism has no sanctity in law. As regards those TV channels which are not members of the self regulatory mechanism set up by the petitioner, it has been submitted that the complaints go to the inter-ministerial committee which has been set up by the union government,” the bench said, citing Datar’s submissions.