The Supreme Court on Thursday said its attempt to frame guidelines for media for covering courts was aimed at making clear the "limitations" of journalists under the Constitutional scheme.
The five-judge Constitution Bench deliberating on the issue got support from the Centre which said there was no constitutional bar on the apex court to regulate the reporting of judicial proceedings by media.
"We want the journalists to know their limitations," observed the bench headed by Chief Justice S H Kapadia.
It also tried to dispel apprehensions that the guidelines would have stringent provisions by saying "we are not for journalists going to jail."
The bench said effort was being made to lay the guidelines so as to balance the rights guaranteed to press under Article 19 (right to freedom of speech and expression) and Article 21 (right to life and liberty).
Supporting the apex court's endeavour, Additional Solicitor General Indira Jaising opposed the contentions of those who said restriction cannot be imposed on media by framing guidelines and "the right to a fair trial under Article 21 must be given preference over the right to freedom of speech and expression under Article 19."
"Therefore, the contention raised before this court that no restrictions other than those contemplated under Article 19(2) can be placed upon the right under Article 19(1)(a) is erroneous and ignores the fundamental principles of Constitutional interpretation," the ASG said.
The law officer suggested that there was a genuine need to regulate the reporting of judicial proceedings but it also has to be "borne in mind that media reporting also contributes to transparency and fairness in administration of justice".
To ensure accuracy in reporting, efforts should be made by court to provide transcript of the proceedings, she added.
She said there was no privilege available under the common law for journalists in reporting and publication of proceedings of the Supreme Court or other courts.
Further, Jaising said privilege will also not attach to publication of pleadings in public interest litigations (PILs) which are not brought or heard in open court.
"Action can be taken in relation to those publications," she said before the bench, also comprising justices D K Jain, S S Nijjar, Ranjana Prakash Desai and J S Khehar.
She said the question before the court pertains not to freedom of the press in general or in abstract but specifically to the scope of the freedom to report judicial proceedings, particularly in criminal cases, where it is widely acknowledged that adverse reporting by the press can affect the rights of accused to a fair trial.
The ASJ said the scope of the right to report judicial proceedings has to be understood in the light of the principles that "the right to inform does not include the right to misinform" and "the freedom of press cannot include the right to misinform."
"If a journalist deliberately or accidentally misinforms the public about judicial proceedings through his/her publication, then she/he cannot be considered to be exercising her freedom of speech and expression. In fact, he/she would be violating the freedom of speech and expression of readers," she submitted.
"There can be no right to misinform/misguide the public under the guise of the right to freedom of speech and expression," Jaising said.
An attempt by the apex court to frame guidelines for minimising inaccuracy in reporting of judicial proceedings cannot be termed as "restrictions" on the fundamental right under Article 19(1)(a), she said.
She also opposed the contention that Article 19(1)(a) has to be balanced with other constitutional provisions without reference to Article 19(2) which deals with reasonable restrictions in exercise of fundamental rights.
The ASG said that restrictions on reporting and publication of court proceedings can be imposed in the interest of "decency or morality".
She said the exercise of freedom of press under Article 19(1)(a) directly comes in conflict with the right of accused to a fair trial under Article 21 when media publishes statements that have the effect of painting the accused as guilty even before the judgement.
"In that scenario it is the duty of this court to determine which fundamental right must curtail the contours of the other fundamental right to the extent of their conflict, on the basis of the relative importance of each fundamental right," she said while adding that fundamental rights are individual rights and not the rights of institutions.
