CASE DETAILS v. THE STATE OF MAHARASHTRA & Ors.

ORDER

This batch of cases raises two signifi cant issues: (i) The procedure to be followed by the police in investigating police encounters; and (ii) The propriety and procedure of media briefings by police personnel.

The fi rst issue, governing police encounters, has since been dealt with in the judgment of this Court dated 23 September 2014 in People’s Union for Civil Liberties v State of Maharashtra1. 1 (2014) 10 SCC 635 PEOPLE’S UNION FOR CIVIL LIBERTIES v. THE STATE OF MAHARASHTRA 373

The second issue pertains to the modalities to be followed by the police in conducting media briefi ngs where a criminal investigation for an alleged off ence is in progress. The issue assumes signifi cance, particularly, in the context of the manner in which media reportage takes place, particularly in crimes involving a degree of public interest.

Having regard to the ramifi cations of the issues involved, the Court appointed Mr Gopal Sankaranarayanan, senior counsel, as Amicus Curiae.

A questionnaire was circulated by the Amicus Curiae in order to elicit information from the States and Union Territories. Several States, including the States of Bihar, Goa, Haryana, Jharkhand, Rajasthan, Tamil Nadu and Uttarakhand have responded, besides the Administrations of Andaman and Nicobar Islands, Chandigarh and Puducherry. Observations have been submitted by the People’s Union for Civil Liberties, one of the appellants in the batch of cases. Other States, including the States of Assam, Chhattisgarh, Himachal Pradesh and Madhya Pradesh have served copies of the replies fi led by them in a connected petition2.

Media reporting on matters involving the commission of crimes involves several aspects bearing on public interest. At a basic level, the fundamental right to free speech and expression is directly implicated. This engages the right of the media to disseminate news, views and information and the right of the viewing public or readers of printed news. There can be no gainsaying the fact that both the media in pursuance of its fundamental right to the freedom of speech and expression as well as the consumers of news, information and ideas have a right to disseminate and to receive fair and unbiased information. Criminal off ences and investigation into them by the law enforcement machinery involves signifi cant elements of public interest bearing upon the right to be informed and the right to know.

At the same time, there are competing considerations which are also of immense signifi cance. At one level, the accused whose conduct is under investigation is entitled to a fair and unbiased investigation by the police. Unfair reporting by the media has the potential to aff ect public opinion and impinge upon the presumption of innocence which is one of the cardinal 2 Surat Singh v Union of India (Writ Petition (C) No 316 of 2008) 374 SUPREME COURT REPORTS [2023] 12 S.C.R. principles of criminal jurisprudence. At the stage of the investigation and even trial, every accused is entitled to the presumption of innocence. Media reportage in a manner which implicates the culpability of the person who is under investigation is liable to seriously impinge upon the reputation and personal dignity of the individual under investigation. Biased reporting also gives rise to public suspicion that the person under investigation has committed the off ence though the complicity of the accused is yet to be investigated and, if a charge-sheet is submitted to be subjected to the administration of criminal justice in accordance with law.

At another level, media reportage also impinges upon the right of victims or, as the case may be, survivors of crimes. In a given case, the victim may be a minor. In some cases, the nature of the crime may involve the privacy of the victim, in cases such as those involving gender violence. The publication of photographs and visuals of the bodies of deceased victims of crime aff ects the very notion of preserving the dignity in death.

While a disclosure by the media of relevant details involves public interest associated with the fundamental right under Article 19(1)(a) of the Constitution, equally, the rights of the accused and of the victims or, as the case may be, survivors of crimes have a direct bearing on the fundamental right to life and personal liberty which is protected by Article 21.

At this stage, it would be material to note the provisions of the Explanation to Section 3 of the Contempt of Courts Act 1971, which reads as follows:

Explanation.—For the purposes of this section, a judicial proceeding— (a) is said to be pending— (A) in the case of a civil proceeding, when it is instituted by the fi ling of a plaint or otherwise, (B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1898 (5 of 1898)1., or any other law— (i) where it relates to the commission of an off ence, when the charge-sheet or challan is fi led, or when the court issues summons or warrant, as the case may be, against the accused, and PEOPLE’S UNION FOR CIVIL LIBERTIES v. THE STATE OF MAHARASHTRA 375 (ii) in any other case, when the court takes cognizance of the matter to which the proceeding relates, and in the case of a civil or criminal proceeding, shall be deemed to continue to be pending until it is heard and fi nally decided, that is to say, in a case where an appeal or revision is competent, until the appeal or revision is heard and fi nally decided or, where no appeal or revision is preferred, until the period of limitation prescribed for such appeal or revision has expired; (b) which has been heard and fi nally decided shall not be deemed to be pending merely by reason of the fact that proceedings for the execution of the decree, order or sentence passed therein are pending.

The manner in which the Explanation has been incorporated may expose a person to a charge of contempt for reporting on a criminal proceeding only after the charge-sheet has been fi led or, as the case may be, cognizance taken or summons/warrant issued. The two hundredth Report of the Law Commission chaired by Justice M Jagannadha Rao, a former Judge of this Court, noted the background of the provision as it arose upon the report of the Bhargava Committee under the auspices of a Joint Committee of Parliament. The Amicus Curiae has adverted to the fact that the report of the Bhargava Committee did not take notice of the decision in A K Gopalan v Noordeen3 which treated the arrest of an accused as the point of commencement for taking cognizance of criminal contempt. The Law Commission in these circumstances made recommendations for remedying the situation.

The ambit of these proceedings is confi ned to the pre-trial stage where the investigation has been initiated and is continuing. The Amicus Curiae submitted that any disclosure by the police about an investigation must be cognizant of the fact that the information as disclosed impacts not only upon the victim of the crime and the accused, but on the rule of law. In its decision in Sahara India Real Estate Corporation Limited v Securities and Exchange Board of India4, this Court underscored the 3 4