There is a need to strike a balance between the freedom of the press and the right of a victim to have fair trial in cases of crime against women, the Supreme Court was told on Wednesday.
Senior advocate Indira Jaising, assisting the court as an amicus curiae, told a bench of Justices Madan B Lokur, S Abdul Nazeer and Deepak Gupta that the media was running "parallel trial" in sub-judice matters and the court should frame guidelines on how to report the cases of crime against women.
Jaising also claimed that the police was leaking information to the media even before filing the charge sheet before a competent court, which amounted to interference in the administration of justice.
"Touchstone of the question is whether it is interference in administration of justice. It is one thing to report court proceeding. It is another thing to run a parallel trial. Running parallel trial in sub-judice matters is interference in the administration of justice," she said.
She referred to the sensational Kathua gang rape and murder case and said that even before the charge sheet was filed in the court, the media pronounced the decision that some of the accused were innocent and not guilty of the offences.
An eight-year old girl, belonging to a minority nomadic community, was allegedly gangraped and murdered in Kathua in the Jammu region on January 10. Her body was found in the same area a week later.
During the arguments, Jaising referred to the provisions of the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act, which deals with disclosure of identity of victims of such offences and the procedure to be followed by the media in reporting these cases, as also the Contempt of Courts Act.
After the amicus concluded her arguments, Additional Solicitor General Pinky Anand, appearing for the Centre, said she needed some time to respond to the submissions, following which the bench posted it for hearing on September 11.
Anand said the Press Council of India also have some guidelines on media reporting.
Jaising told the bench that there was no need to give guardian the right to give consent for disclosing the names of victims of sexual assaults in cases of minors and disabled.
The bench observed that if the kin of such victims say that they have no objection if the name is disclosed, then it cannot be prohibited but it should not become a mean to make money.
"It cannot be that they (kin) will say 'I will give you exclusive right to disclose the name first'. This is unfortunate. We cannot be oblivious to it," the bench said.
Jaising also made it clear that there should not be an "absolute taboo" on the disclosure of the names of such victims.
The amicus said she was not at all against "accurate" reporting of court proceedings by the press, but parallel media trial cannot be allowed.
She said an accused was not supposed to know the evidence against him even before filing of charge sheet against him, but the police was leaking information to the media prior to this.
Jaising said in the recent case in which several activists were arrested in connection with the Koregaon-Bhima violence case, the Bombay High Court had reprimanded the police for leaking letters recovered during the probe to the press.
"Pronouncing someone as guilty or not guilty is the function of the court and not the media," she said, adding that the victims also have right to privacy.
The bench also heard arguments on the reporting of in-camera proceedings in the court.
The court had earlier agreed to examine the provisions of law which provide curbs and balances for the media in reporting incidents of sexual assault, including that of minors, after a complaint that there have been "regular violation" of such provisions.
Jaising had earlier said that a balance of rights of such victims and that of the media to report such incidents was required, and the apex court should interpret Section 228-A of IPC (dealing with disclosure of identity of victims of sexual offences) and provision 23 of the POCSO Act which deals with the procedure to be followed by media along with the Contempt of Courts Act.
The issue had cropped up when the court was hearing a batch of petitions filed after the December 16, 2012 Nirbhaya gang rape and murder incident in Delhi to support the initiatives on women's safety across the country.
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