Rujira Banerjee vs Union Of India & Ors
2023 Latest Caselaw 7180 Cal

  02
17.10.2023



                     IN THE HIGH COURT AT CALCUTTA
                       Constitutional Writ Jurisdiction
                               Appellate Side

                          W.P.A. No. 22990 of 2023

                                Rujira Banerjee
                                     Vs.
                              Union of India & Ors.

             Mr. Kishore Datta,
             Mr. Jishnu Chowdhury,
             Mr. Soumen Mohanty,
             Mr. Ayan Poddar,
             Mr. Piyush Kumar Ray,
             Mr. Agnish Basu,
             Ms. Riddhi Jain
                                                .... for the petitioner

             Mr. Billwadal Bhattacharyya,
             Ms. Debjani Ghosal
                                            .... for the Union of India

             Mr. Dhiraj Trivedi,
             Ms. Debjani Ray
                                         ....for the respondent no.4

Mr. Rajarshi Basu, Mr. K.M. Hossain .... for the State

Mr. Sandipan Ganguly, Mr. Apalak Basu, Ms. Manaswita Mukherjee, Ms. Smita Mukherjee .... for the respondent nos.10 to 12

Mr. Abhirup Chakraborty, Mr. Tuhin Ganguly ....for the respondent nos.13 & 14

Mr. Sabyasachi Chatterjee, Mr. Sayan Banerjee, Mr. Pintu Karar, Mr. Badrul Karim, Mr. Kiron Sk.

....for the respondent nos.17 & 18

Mr. Chiranjib Sinha, Mr. Dyutiman Banerjee, Ms. Suchitra Chatterjee ....for the respondent no.21

1. At the outset, an option was given to the parties

whether the main writ petition would be taken

up for hearing or the prayer for interim orders

was to be heard. Most of the respondents chose

to use affidavits and insisted that the latter

option be resorted to. Hence, for the sake of fair

trial, the matter is being heard on the question

of interim orders, although the lengthy

arguments advanced over several days and the

numerous judgments cited necessitates a

lengthy discourse.

2. The writ petition has been filed by a lady who is

the wife of a politician. The petitioner is an OCI

(Overseas Citizenship of India) card-holder and

not an Indian citizen. It is alleged by the

petitioner that the media in general and the

respondents in particular have been

assassinating her character and maligning her

family by regularly publishing information

regarding an investigation being carried out by

the central investigating agencies, including the

Enforcement Directorate (for short, "the ED")

which is one of the respondents herein

regarding financial and other scams of some

magnitude.

3. The present challenge is primarily on three

grounds:

4. First, the petitioner‟s right to privacy, which is

a component of her fundamental right to live

with dignity, is being assailed.

5. Secondly, fair trial is being affected. A

subsidiary ground of the same is that there is

an element of criminal contempt of court, since

the investigation will lead to a criminal trial

which is being attempted to interfered with.

6. Thirdly, the media trial which is going on is

moulding public opinion by serving

sensationalism in the garb of true news,

thereby providing false information and

opinions to the public.

7. Learned senior counsel for the petitioner cites

Sidhartha Vashisht Alias Manu Sharma v. State

(NCT of Delhi), reported at (2010) 6 SCC 1. In

the said judgment, the Supreme Court observed

that presumption of an innocence of an

accused is a legal presumption and should not

be destroyed at the very threshold through the

process of media trial and that too when the

investigation is pending.

8. Learned senior counsel also cites a judgment of

the Privy Council delivered on April 7, 1914 in

the case of Channing Arnold Vs. The King

Emperor, where it was observed that they are

appeared on the one side in the case the time-

warned fallacy that some kind of privilege

attaches to the profession of the Press as

distinguished from the members of the public.

The freedom of the journalists is an ordinary

part of the freedom of the subject and to

whatever lengths the subject in general may go

so also may the journalists; but apart from the

statute-law, his privilege is no other and no

higher. The Privy Council further observed that

the responsibilities which attach to his power

in the dissemination of printed matter may and

in the case of a conscientious journalist do

make him more careful. The range of his

assertions, criticisms or comments is as wide

as and no wider than of any other subject and

no privilege attaches to his position as a

journalist.

9. Learned senior counsel places further reliance

on Kartongen Kemi Och Forvaltning AB v. State

through CBI, reported at (2004)72 DRJ 693,

where the Delhi High Court observed that the

said case was nefarious example which

manifestly demonstrates how the trial and

justice of media can cause irreparable,

irreversible and incalculable harm to the

reputation of a person and shunning of his

family, relatives and friend by the society. It is

common knowledge that such trials and

investigative journalism and publicity of

premature, half-baked or even presumptive

facets of an investigation either by the media

itself or at the instance of investigating

agencies has become a daily occurrence

whether by electronic media, radio or Press.

They chase some wrong doers, publish material

about him little realising the peril it may cause

as it involves substantial risk to the fairness of

the trial. The latest trend of Police or

investigating agencies encouraging publicity by

holding Press conferences and accompanying

journalists and television crew during

investigation of a crime, it was observed, needs

to be stopped as it creates risk of prejudice to

the accused. After hogging publicity and

holding the person guilty in the eyes of public,

the Police and CBI go into soporific slumber

and take years in filing charge-sheet and

thereafter several years are taken in the trial.

10. The said judgment is cited particularly to assert

that the family members of the person against

whom the media campaign is initiated are also

to be protected.

11. Learned senior counsel next cites Jitesh and

others Vs. The State of Kerala and others,

reported at MANU/KE/2140/2020, where a

Division Bench of the Kerala High Court

observed that the Bench had serious

reservation about police officers conducting

Press meetings in respect of criminal

investigation which they and media consider to

be sensational. In view of the Division Bench of

the Kerala High Court, on many occasions

holding Press meetings would spoil the quality

of evidence collected during the investigation.

No police officer conducting investigation into a

crime, as per the court, shall be authorised to

divulge the facts ascertained during

investigation through media. Some

pronouncements of the Supreme Court were

also considered while passing the

said judgment, which stressed on the fact that

the use of electronic media by the investigating

arm of the State to influence public opinion

during pendency of an investigation subverts

the fairness of the investigation.

12. Learned senior counsel for the petitioner next

cites Sahara India Real Estate Corpn. Ltd. and

others v. Securities and Exchange Board of India

and Another, reported at (2012) 10 SCC 603,

where the Supreme Court balanced the fact

that the right of free speech under Article

19(1)(a) can be restricted in relation to

contempt of court under Article 19(2).

Contempt, it was observed, is an offence sui

generis and one of the ways in which

administration of justice is protected, preserved

and furthered. Articles 129 and 215 of the

Constitution of India save the pre-existing

powers of the Courts as courts of record. The

Court observed that the administration of

justice should not be perverted, prejudiced,

obstructed or interfered with, for which the

court has the power to prohibit temporarily

statements made in the media which would

prejudice or obstruct or interfere with the

administration of justice in a given case

pending in the Supreme Court or the High

Court or even in the sub-ordinate Courts. Trial

by newspaper, it was observed, comes in the

categories of facts which interfered with the

courts of justice or due administration of

justice. The contempt law includes the power

of courts to prevent such acts which interfere,

impede or pervert administration of justice.

Presumption of innocence and open justice

were highlighted for which the Supreme Court

held that the courts have evolved mechanism

such as postponement of publicity to balance

presumption of innocence vis-à-vis

presumption of open justice. The principles of

proportionality and test of necessity are to be

kept in mind, however, in passing orders of

postponement. The context of administration of

justice as well as the rights of the individuals to

be protected from prejudicial publicity or

misinformation were also highlighted.

13. Learned senior counsel also cites Nilesh

Navalakha and Others Vs. Union of India

Through the Secretary/Joint Secretary and

Others, reported at 2021 SCC OnLine Bom 56,

where a Division Bench of the Bombay High

Court observed that any act done or publication

made which presumed by the appropriate

court having power to punish for contempt to

cause prejudice to mankind and affect a fair

investigation of crime as well as a fair trial of

the accused, being essential steps for

administration of justice, could attract Section

2(c)(iii) of the Contempt of Courts Act,

depending upon the circumstances and be dealt

with in accordance with law.

14. The Division Bench took into consideration the

recommendations of the Nariman Committee.

It was observed that specific self-regulatory

mechanism under the NB Act and the NBF is

applicable only to the members of the NBA or

the NBF and not to those TV channels who have

not subscribed to the membership of the self-

regulatory bodies. In such context, the concept

of fair trial and trial by media were considered

and media trial was deprecated by the Division

Bench.

15. Learned senior counsel also cites R.K. Anand v.

Registrar, Delhi High Court, reported at (2009) 8

SCC 106. In the said judgment, the Supreme

Court elaborately dealt with trial by media and

observed that the legal parameter within which

a report or comment on a sub judice matter can

be made is well defined and any action in

breach of the legal bounds would invite

consequences. Trial by media was defined as

the impact of television and newspaper

coverage on a person's reputation by creating a

widespread perception of guilt regardless of any

verdict in a court of law. During high publicity

court cases, the media are often accused of

provoking an atmosphere of public hysteria

akin to a lynch mob which not only makes a

fair trial nearly impossible but means that,

regardless of the result of the trial, in public

perception the accused is already held guilty

and would not be able to live the rest of their

life without intense public scrutiny.

16. Learned senior counsel then cites a Kerala High

Court judgment reported at 2022 SCC OnLine

Ker 621 [P. Gopalakrishnan and Others v. State

of Kerala Represented by the Public Prosecutor

and Another], where the learned Single Judge of

the said High Court observed that mainstream

television media and social media have

commented upon the way the said court went

upon its business in handling a particular case.

It was observed that observations made in court

during the course of hearing have been

dissected and made subject-matter of intense

discussion. The existence of a vibrant,

independent and free press is no doubt

essential to democracy but cannot be a licence

for persons armed with half-baked facts with

little or no knowledge of how the judiciary

functions and little or no knowledge of the

fundamental legal principles that govern it,

abuse the justice delivery system, it was

observed.

17. Lastly, the petitioner cited Venkatesh and

Others Vs. State of Karnataka, reported at

MANU/SC/0549/2022 where the Supreme

Court observed that all matters relating to a

particular crime and whether a particular thing

happens to be a conclusive piece of evidence

must be dealt with a court of law and not

through a TV channel. The public platform, it

was observed, is not a place for such debate or

proof of what otherwise is the exclusive domain

and function of courts of law. Such debate or

discussions touching upon matters which are

in the domain of courts would amount to direct

interference in the administration of criminal

justice, the Supreme Court observed.

18. Learned Deputy Solicitor General appearing for

the Union of India/respondent no.1 submits

that there are grievance redressal mechanisms

and bodies incorporated for redressing

grievances regarding broadcasting and the

operation of the media and hands over a list of

grievance redressal mechanism/bodies

incorporated vide the amended Rules of 2021

on such score. It is highlighted that there are

several levels of grievance redressal mechanism

regarding broadcast. Self-regulation by media,

it is submitted, is sufficient alternative remedy

in such context.

19. Learned DSG also refers to the Cable Television

Network Rules, 1994 and the parent Act that is

the Cable Television Network (Regulation) Act,

1995 to underscore such argument.

20. It is submitted that the FIR lodged against the

petitioner‟s husband are under various Sections

of the Indian Penal Code. They stand on an

independent footing and, as such, the

petitioner cannot in the garb of this writ

petition, seek any order regarding protection of

her husband, who is the accused in such cases.

21. Learned DSG also relies on the notification

dated March 4, 2021 issued by the Ministry of

Home Affairs of the Government of India

regarding Oversees Citizens of India (OCI) card

holders. It is pointed out that in the

explanation thereto, the OCI card holder is

stipulated to be a foreign national holding

passport of a foreign country and not a citizen

of India. Thus, it is argued that the petitioner

does not have the locus standi to seek a

curtailment of the freedom of press under

Article 19 of the Constitution of India, which is

available only to citizens of India. It is argued

that such curtailment can only be under the

provisions of Article 19(2).

22. Learned DSG also contends that this Court

does not have determination and refers to a

notification dated September 30, 2022 which

provides, inter alia, that matters relating to CBI

and Central Agencies in writ petitions under

Article 226 of the Constitution of India are

already included within the comprehensive

reading of subject category „Police‟ in the

Appellate Side Rules, therefore, there is no need

to mention CBI and Central Agencies

separately.

23. Learned senior counsel appearing for the

respondent nos. 10 to 12 contends that nothing

has been produced to show that any derogatory

remarks were carried by the said respondents

in any news item against the petitioner. Hence,

the blanket order sought by the petitioner is

opposed.

24. Learned Deputy Solicitor General appearing for

the respondent no.4-ED, apart from adopting

the submissions of his counter-part appearing

for the UOI vehemently denies that the ED

officials leak any information relating

investigation. It is stressed that the ED only

releases formal Press statements, most of which

are also available on the website of the ED.

The written instruction delineating the exact

extent of dissemination of such information by

the Ed is also handed over and kept on record.

25. Learned counsel for the respondent nos. 17 and

18, placing reliance on the judgment of Sheperd

Vs. Maxwell delivered on June 6, 1966 by the

Supreme Court of the United States, argues

that even if there is massive publicity regarding

a particular trial, the court lacks power to

control the publicity about the trial. The court

can only insulate the witnesses up to an extent

and control the release of leads, information

and gossip to the Press by police officers,

witnesses and the counsel for both sides, if

such information is inaccurate.

26. It is submitted that the freedom of speech and

expression of citizens cannot be gagged by

blanket orders.

27. Learned senior counsel also cites the judgment

delivered in Mohandas Karamchand Gandhi's

case reported at AIR 1920 Bom 175 by a Full

Bench of the Bombay High Court on March 12,

1920. Where the Full Bench observed that

speaking generally, it is not permissible to

publish comments on or extracts from any

pending proceedings in the Court, unless the

leave of the Court is first obtained.

28. Discussing Rex v. Parke , the court observed

that the reason why the publication of articles

like those with which the court was dealing is

treated as a contempt of Court is because of

their tendency and sometimes object to deprive

the Court of the power of doing that which is

the end for which it exists, namely, to

administer justice duly, impartially, and with

reference solely to the facts judicially brought

before it.

29. The court observed that a contempt of court of

a more serious nature is committed in

commenting in the particular manner of the

letter produced therein which amounted the

scandalising a District Judge. In the opinion of

the court, contempt is committed if the

comments tend to interfere with a fair trial and

to prejudice public justice.

30. It is argued that such high test has not been

satisfied in the present case.

31. Learned counsel appearing for the respondent

no.21 places reliance on a judgment of a

Division Bench of the Delhi High Court for the

purpose of pointing out that the actual

addresses of Google India were given therein. It

is argued that the respondent no.21 has been

incorrectly arrayed, since YouTube and Google

India are separate entities. The parent

company for both is Google LLC, which is

situated outside India.

32. The respondents, in general, adopt the

arguments of each other and pray for the

dismissal of the writ petition.

33. The objections as to maintainability are taken

up first. The Union of India and the ED have

raised a question as to whether this Bench has

determination to take up the matter, since

there are allegations against central agencies.

34. Such contention is misplaced. As per the roster

determined by the Hon‟ble the Chief Justice,

who is the master of the roster, writ petitions

pertaining to police inaction are assigned to

another Bench. A sub-category of matters

relating to „Police‟, as per the circulations

relating to determination, is writ petitions

against the „central agencies‟. However, such

matters must essentially pertain to inaction or

overaction of the police or central agencies in

exercise of their functions and authority. If any

and every matter containing allegations against

instrumentalities of the Union Government or

„central agencies‟ is classified under „police

inaction‟ category, the Bench taking up such

matters would be the only Bench taking up all

writ petitions against the Union of India or its

instrumentalities and agencies, which would be

an absurd proposition and an antithesis of the

distribution of business among writ courts

under all the other classifications.

35. Police inaction is a sub-category under the

Residuary Jurisdiction under Group IX of the

writ matter classifications. This Bench has

determination regarding all residuary writ

matters apart from those pertaining to „Police‟.

The present matter does not pertain directly to

the investigation or action/inaction of the

central agencies but only to alleged press

releases and media bytes given by the ED as

well as information allegedly leaked by the ED

officials to the public, thereby violating the

fundamental rights of the petitioner, which is

by no stretch of imagination a „police inaction‟

matter. Thus, the matter is taken up by this

court.

36. The other objection regarding maintainability is

that the petitioner, being a foreign national

(Thai citizen) and OCI card holder, is not

entitled to seek curtailment of the right of the

respondents, which are Indian citizens or

organizations run by Indian citizens, to freedom

of speech and expression under Article 19 of

the Constitution of India. However, the

judgments cited on such count relate to the

rights guaranteed under various clauses of

Article 19 itself. It has been observed by the

Supreme Court in the said reports that the

right to freedom of speech and expression

overrides the other freedoms given under Article

19. However, here the petitioner is asserting

her right to privacy, which is an integral

component of her right to live with dignity as

enshrined in Article 21 of the Constitution of

India and her right to equality before the law as

guaranteed by Article 14. Thus, the question is

essentially of the interplay between different

Articles in Part III of the Constitution and not

Article 19 inter se.

37. It is to be noted in this context that whereas

the language of Article 19 denotes that the said

rights are given only to citizens of India, the

rights guaranteed under Articles 21 and 14 are

not restricted to citizens but are applicable to

anybody and everybody. Several judgments

cited by the petitioner hold as much. Thus,

there cannot be any doubt that even if the

petitioner is not an Indian „citizen‟ but only an

OCI card holder, she is equally entitled to seek

protection of her fundamental rights sought in

the present writ petition as any full-fledged

citizen of India.

38. Another aspect is required to be kept in mind.

The fundamental rights embodied in Articles 21

and 14 are not conferred by the Constitution as

such, but are basic and implicit human rights

guaranteed in any civilized society worth the

name. The Constitution of India, like the

Constitutions and Charters of Rights of several

other nations and international communities,

merely recognizes such implicit human rights.

Thus, the said rights have a universal air and

cannot be restricted by any Legislature or

Judiciary only to the citizens of a country.

Hence, the objection as to maintainability on

such score is turned down.

39. As to other statutes, there is no statute

governing all aspects of the media as such.

Although there are certain self-regulatory Acts

and Regulations in place here and there which

provide forums for grievances and seek to

control activities of the media, there is no

comprehensive statute which stipulates the

yardstick of such control, particularly when the

larger issue of violation of fundamental rights

by the media is alleged. Moreover, such

statutes operate in pockets such as cable

television, etc. but are not universally

applicable to the internet and all other media.

40. Hence, the writ petition is maintainable.

41. The respondents claim their rights under

Article 19 of the Constitution. It is argued that

the said rights cannot be curtailed even by

Article 21 of the Constitution. Such a blanket

norm, taken to its logical conclusion, would

mean that freedom of speech and expression

overrides the right to life. Dead men do not

speak. Thus, the freedom of speech and

expression cannot under normal circumstances

curb the right to live of another.

42. The issue, however, comes under the scanner

since by social and judicial evolution certain

additional rights have been read into the right

to life and personal liberty as its essential and

implicit components. Right to privacy is one

such right. The said evolution in itself is

absolutely justified; the question arises as to

how far the right to privacy would override the

right to freedom of speech and expression. The

mirroring component of the latter right is the

right of the citizens of India to get accurate and

relevant information, without which there

cannot be an assurance of a dignified life and

personal liberty. An informed view of society is

essential for an individual to protect her or his

life and its ancillaries.

43. The fast-paced, competitive modern day world

leaves little scope of introspection. There is no

opportunity to stop by woods in evenings,

snowy or otherwise. Since Nature abhors a

vacuum, such void in our lives is sought to be

filled by resorting to titillating gossip,

„revelations‟ and sensationalism, be it from the

media gossip columns or otherwise.

44. However, if mainstream journalism converts

itself to yellow journalism, the dissemination of

objective news is directly hampered. „News‟,

presented as news, has to be objective, shorn of

opinionated barbs and jibes. The media has

two-fold responsibility - to disseminate

accurate information to the public at large and

to stay afloat by weighing commercial viability.

The latter cannot be entirely shunned, since

commerce provides the funds for sustaining

independent journalism.

45. The petitioner‟s case, considered in such

backdrop, has several facets. The first is the

petitioner‟s right to privacy. The media has to

be cautious to maintain bounds since its huge

impact may make or break individual

reputations as well. Every person, in Indian

criminal jurisprudence, is innocent unless

proved guilty. Although an investigation is not

„trial‟ in the strict sense of the term, it is the

genesis of a trial.

46. „Media trial‟ begins much before the actual trial

in a competent court of law. In the present

case, upon specific query of court as to whether

the petitioner is an accused in any of the cases,

learned Deputy Solicitor General appearing for

the ED submitted that the petitioner, at this

stage, is a suspect and is being interrogated.

The ED disowns any unauthorised leakage of

information regarding the investigation by any

of its officers. It is contended that the said

investigating agency sticks to the press releases

and media bytes formally disseminated by the

ED to the media and on its website. In fact, the

written instruction of ED is filed in court, the

relevant portion of which it reads as follows:

"To focus on the positive work done by the organization and to build confidence with the public, with due care information are put on the website of the ED only after actions are completed. Further, only those facts are shared with due caution which may not impede and jeopardize the interest of the ongoing investigation/action. No opinionated or judgmental statements are made by the ED generally against any person."

47. During arguments, learned Deputy Solicitor

General submits on instruction that the term

"generally", qualifying the sentence that no

opinionated or judgmental statements are made

by the ED, be deleted, as the same was

inadvertently incorporated. Since the ED binds

itself to such submissions, the same has the

force of an undertaking.

48. Such undertaking by the ED is accepted. It

takes ample care of the aspect of interference

with the administration of justice and fair trial,

insofar as the said agency is concerned. The

aspect which remains, however, is the

perspective of the suspect/accused/witness.

Reiterating for the sake of coherence, a person

in Indian criminal jurisprudence is innocent

unless proved guilty. Hence, if the investigating

agency, before filing a charge-sheet, divulges

the name of the person interrogated or

searched prior to conducting such interrogation

or search, the media may have a field day, but

the person‟s personal goodwill, credibility and

respect in society goes for a toss. Either before

or after the search or interrogation, if the

investigating agency discloses to the public or

the media the circumstances, reasons and/or

the details of the interrogation or the search,

the same definitely interdicts a fair trial and

instigates his/her guilt to be assumed in the

public mind.

49. Moreover, the investigating agencies in general

and the ED in particular should not involve or

be accompanied by media persons during their

raids/interrogations/search and seizure

procedure, since such act on the part of the

investigating agency compromises fair trial as

well as privacy of the concerned individual,

raising presumptions of guilt/involvement

before being established in due process of law

before the competent court.

50. Just as courts are supposed to speak through

their judgments and not go about expressing

their opinions in public matters which are sub

judice or which may potentially be the subject-

matter of adjudication, investigating agencies

speak through their charge sheets. The said

agencies are not a part of the media nor courts

of law. Their function is only to investigate. It is

not for the investigating agencies to wear their

success stories on their sleeves. Keeping in

mind the huge responsibilities of the central

investigating agencies, who are an

indispensable and very important arm of the

justice delivery system, they should be

extremely careful in what information they

disseminate, since such information may ruin a

suspect or even accused who after investigation

may not even be named in the charge sheet or

be ultimately acquitted after trial.

51. Thus, the notion of the ED itself of whether the

disclosure would impede and jeopardize the

interest of the ongoing investigation/action

cannot be the only consideration of its media

releases. Fair trial is an important component

of equal access to justice guaranteed under

Article 14 of the Constitution of India and

ought to be zealously guarded by all wings of

the Executive and Judiciary associated with an

investigation and trial.

52. The job of the ED is not primarily to focus on

the positive work done by the organization and

to build confidence with the public, although

confidence-building with the public may be

necessary to the extent required to ensure

smooth investigation. However, the

investigating agencies must not flaunt their

results during investigation but must maintain

a low-key profile to justify the immense powers

vested in them. The investigating agencies are

in a category apart from other agencies and

have to adhere to much higher standards than

the others. As the clichéd adage goes, with

absolute power comes absolute responsibility.

53. In some of the judgments cited by the

petitioners particularly Sidhartha Vashisht

(supra) and Jitesh and others (supra), the

Supreme Court has repeatedly highlighted the

cons of media trial at the investigation stage.

54. Coming back to media, as discussed in the

judgment of the Privy Council cited by the

petitioner, rendered in Channing Arnold (supra)

categorically observed that the journalists have

no extra privilege or right and have equal rights

as a subject/citizen of the country would

otherwise have. What was observed ages back

still holds to even in the post-Article 19 era.

55. Not only do the media not have any extra

freedom of speech and expression, I would go

one step further and say that in view of the

immense impact of media on the society at

large, they are bound by additional and higher

standards of accuracy than an ordinary citizen.

56. Cardinal pre-requisites of responsible

journalism are accuracy in presenting facts and

objectivity. When a news item is presented as a

news item, in whatever medium - audio, visual

or print - the same has to be utterly truthful

and be able to be corroborated by concrete

materials and sources. The exact source may or

may not be disclosed in the news item, but the

Editor/Board of Editors/ Management of the

particular media entity must be able to

corroborate it, if so required by any court of law

or investigating agency or other body

authorised in law.

57. Secondly, newspapers and other forms of media

may, apart from strictly news items, also carry

opinions and investigative articles or even

„juicy‟ pieces of literature, but the name of the

author is to be clearly disclosed, so that the

author cannot avoid responsibility for his or her

own opinions. It is expected that a responsible

media would do its homework and ascertain the

facts before publishing them and it is not for

courts of law to advise them in their own field.

However, in order to enable the public to

discriminate between the grain and the chaff,

the media must clearly allocate separate spaces

/ time slots / sections for actual factual news

and opinionated articles, critiques,

advertisements and other type of literature and

photo/video features and clearly place them

under different heads/slots.

58. Thirdly, during investigation and before filing of

charge sheet, no section of the media should

publish photographs of any person linking him

or her to the investigation in any manner. Even

if photographs of persons who are involved in

an investigation are published in a different

context altogether, there shall not be any

reference in the caption, article or news item

associated with such photograph to the

investigation, during the continuance of such

investigation. Nothing above shall preclude the

media from accurately reporting the press

briefings or media bytes released by the

investigating agencies. That apart, the media

may also carry independent and verified

information regarding the investigation,

including the names of the persons

interrogated/searched, if relevant in the

context. However, no live video/audio/print

footage of the search and seizure process or

raid or interrogation will be published. Such

publication violates all norms of fair trial,

privacy and is utter sensationalism. The media,

taking advantage of their special privileges of

access to information, cannot resort to such

sensationalism, thereby conducting media trial

and castigating a person before he/she is held

guilty by a competent court of law.

59. It has to be kept in mind that there are specific

spheres of specialization of each branch of

society. The investigating agencies are

specialized in investigating and revealing

valuable information for bringing culprits to

justice. The courts are specially trained and

experienced to adjudicate. Similarly, the media

is specially trained to disclose and disseminate

facts having vital bearing on social life of the

polity. „Investigative‟ journalism is definitely

welcome to expose the wrong-doings and

injustices in society and is an essential facet of

a free press exercising the freedom of speech

and expression. However, investigative

journalism cannot be a substitute for

investigation by a specialized agency authorized

in law or trial conducted by a court of law.

60. There are various aspects of the justice delivery

system which may not be understood properly

by laymen. Just as a doctor or a lawyer or a

delivery person or a professional security guard

watching court proceedings are all specialists

in their respective spheres of work, the various

aspects of which may not be understood or

performed by a judge or an investigator,

similarly an investigation process or a court

proceeding has different components and

nuances which are not properly comprehended

by others. For example, during live-streaming,

which is an important technological

advancement in transparency of court

procedure, certain comments are made and

view exchanged between the judge and the

lawyers and litigants which are merely a part of

the process of adjudication. Thesis, antithesis

and synthesis are an ongoing part of

adjudication. Passionate arguments and heated

exchanges ultimately congeal into a judgment

of court. It is only the final outcome which

matters and is binding, and none of the

components leading to it. Reportage in media

and social platforms often mould public opinion

and taint untrained minds with the impression

that those exchanges in-between are final and

is the ultimate verdict on the issue. Often,

passionate arguments made by professionals in

court are not so passionate as they seem and

anti-views expressed by the judge are a mode of

testing the exactly opposite view of the judge on

the corner-stone of debate.

61. Similarly, during investigation, many false

leads and barking up the wrong trees precede

the culmination of a proper investigation. If the

media were to grill each of the leads and trees

before any guilt is attributed to them in a fair

trial, the trial will reach its culmination some

day and the guilty would be brought to justice,

but many an innocent will be crushed in public

censure and unwarranted public focus in the

process.

62. Insofar as the petitioner is concerned, she is

admittedly a suspect and is being interrogated.

However, before being held guilty by a

competent court of law, no guilt can be

attributed to her either directly or by

insinuation by the media. Conjuring up

conjecture should be left to the public mind,

which cannot be restrained, nor does the court

have any intention to. But insofar as the media

and the investigating agencies are concerned,

they should be extremely careful not only to

provide correct and accurate information to the

public, but also protect the dignity of

individuals, irrespective of their affiliations,

gender, class, creed and opinions, as well as to

ensure that the administration of justice, of

which investigation and trial are both

important facets, is not interfered with or

hampered in any manner.

63. However, the petitioner‟s prayers for protective

orders in respect of her family cannot be

granted at this stage. In such context, the

following judgments were cited by learned

senior counsel for the petitioner:

64. In some of the judgments, particularly the

scathing judgment of the learned Single Judge

in Kartongen (supra), the need to protect the

family of the aggrieved person are also

highlighted, since they also suffered the burnt

of media trial and unwarranted public

attention, at the stage of investigation or trial.

65. However, the focal point of the judgments was

the concept of family vis-à-vis the protagonists

therein. The publications allegedly made in

respect of the petitioner‟s husband and family

are not in the capacity of the said persons as

family members of the petitioners. The husband

of the petitioner is a well-known political figure.

Other members of her family are also

prominent functionaries in the State Executive.

The publications against them are in their

individual capacities and/or as political

propaganda. The media publications and

propaganda against them is not in their

capacity as members of the petitioner‟s family.

Rather, it is the other way round, since part of

the propaganda against the petitioner may be

since she is a part of the family. Thus the

protective umbrella sought by the petitioner

cannot be extended to her family, since the

media publications against the said family

members are in their own capacities, which can

always be assailed by them in their

independent capacities.

66. Learned Deputy Solicitor General appearing for

the ED has cited The Union of India has placed

reliance on a judgment which indicates that the

matter of guidelines regarding Press releases

and information dissemination by investigating

agencies is at present sub judice before the

Supreme Court and a learned Amicus Curiae

has already been appointed, whose report is

awaited.

67. As such, it has been contended that the same

exercise ought not to be undertaken by this

Court.

68. However, nothing in this order interferes with

the said exercise being undertaken by the

Supreme Court in any manner or pre-judges

the issues sub judice therein. The context of

the present order is limited to the petitioner

and is merely an interlocutory order pending

final decision in the present writ petition.

69. In view of the above discussions, the

respondents are directed to strictly adhere to

the following guidelines insofar as the

petitioner is concerned (if possible, for other

similarly placed suspects, accused persons,

associates or witnesses as well):

70. Re: Investigating Agencies

i) Before filing of a charge-sheet, the

investigating agencies (in the present case,

the ED) shall not disclose to the public or

the media the circumstances, reasons

and/or details of the interrogation, raids

and search of any particular person, be

he/she an accused, a suspect of a witness.

ii) The Investigating Agencies in general and

the ED in particular shall not involve or be

accompanied by media persons during any

raid/interrogation, search and seizure

procedure at any point of time and also

shall not disclose prior information of such

raids, interrogations, searches and seizures

before holding the same.

71. Re: Media.

i) All forms of media - print, visual, audio or

otherwise - shall clearly delineate the

slots/sections/print-space/web page which

are designated specifically for news items

and distinguish those from similar spaces

which are designated for other articles,

opinions and/or other literatures.

ii) The media, while reporting news items, shall

ensure that the reporting an information

disseminated is objective, accurate able to

be corroborated by concreate materials and

sources. The exact source may or may not

be disclosed in the news item but the

editors/board of editors/management of the

particular media entity must be able to

corroborate it by cogent material, if so

required by any court of law or Investigating

Agency or other body authorised to do so in

law, including self-regulating authorities in

respect of the media.

iii) Even if the media reports/articles

contain opinions and investigative write-ups

or other literature in the form of

entertainment, where particular persons are

stigmatized or ridicule or

aspersions/insinuations are mad in any

manner, the names of the authors of such

articles shall be clearly disclosed in/with

the article/byte.

iv) The media, during investigation and

before filing of charge-sheet, shall not

publish photographs of any person linking

him/her to the investigation, in news items

reporting about the said investigation or any

facet of it.

Even if photographs of persons who

are involved in any manner or associated

with the investigation are published

otherwise and in different context during

the course of such investigation, the said

photograph or article carrying the

photographs shall be placed not in exact

proximity with the reporting of the

investigation but separately.

v) The media shall not publish or broadcast or

telecast live video, audio/print footage of

the process of search and seizure, raid or

interrogation at any point of time.

72. The above guidelines shall be followed by the

Investigating Agencies, in particular, the ED

and all media houses, including the

respondents herein, till January 15, 2024 or

until further order, whichever is earlier. The

matter shall be placed for hearing before the

appropriate Bench having determination in the

Monthly List of Cases for the Month of

December, 2023.

73. Nothing in this order shall preclude the

petitioner from taking out appropriate

proceedings against any individual for

defamation and/or damages in the event the

petitioner is otherwise entitled to do so in law.

74. The respondents shall file their affidavits-in-

opposition within November 24, 2023. Reply, if

any, shall be filed by December 1, 2023.

(Sabyasachi Bhattacharyya, J.)