Friday, February 15, 2013

The Fourth Estate As the State? -- A Troubling Precedent by the Delhi High Court

Guest Post by Prashant Reddy, whose views are his own.
It is no secret that several of us who watch the nightly tamasha at nine o’ clock on our news channels are itching to have the Indian media, especially the electronic media, thrown under an army of regulators and regulations. Well, the Delhi High Court appears to have answered your dreams, in a judgment which has opened the door for sweeping, almost dangerous, judicial regulation of the media.
In the case of ABC v. Police Commissioner & Ors. (W.P. (C) No. 12730 of 2005) decided on February 5, 2013 the Delhi High Court deemed the media to be a ‘public authority’ for the purposes of the Constitution of India and fined Aaj Tak Rs. 5 lakhs for violating the fundamental right to privacy of a juvenile victim who was allegedly sexually abused by her father. The Court also adds that the “act was a display of a prurient or morbid curiosity as proscribed in the Norms of Journalistic Conductlaid down by the PCI.” The Delhi Police was also fined Rs. 1 lakh for leaking the initial complaint to the media.
The facts of the case are simple. The un-named juvenile in this case had lodged a police complaint against her father for the crimes mentioned above and which complaint was soon leaked to the media. The Hindustan Times and Aaj Tak in particular covered the case in some detail. While the news article in the Hindustan Times was deemed news-worthy by the Delhi High Court, the news coverage by Aaj Tak was found to have violated the juvenile’s right to privacy since the report by Aaj Tak gave enough details to identify the victim, even without revealing her name. As a result of the coverage, the victim and her mother had to relocate and go into hiding.
Normally, a victim of such intrusion, or in this case her mother, could have sued for damages in a civil law suit before a civil court. Instead the victim’s mother filed a writ petition before the Delhi High Court alleging a violation of her daughter’s fundamental right to privacy guaranteed under Article 21 of the Constitution. The issue with alleging a violation of a fundamental right is that it can be asserted only against the ‘State’ and not against a private person or in this case a private media company.
The events following the filing of the writ petition do not inspire faith in the Indian judiciary. A writ petition, which does not require any recording of evidence, as is the case in a civil suit, should not take eight years to dispose, as happened in this case. As per the electronic record of the Delhi High Court available on its website, after being registered, the petition was adjourned numerous times over the next eight years. The final arguments were heard and the case was reserved for judgment only on April 19, 2012 by Justice Vipin Sanghi.
Then amazingly, on January 8, 2013, in the immediate aftermath of the now infamous Delhi ‘bus-rape’ case, Justice Vipin Sanghi asked both the parties to reargue the case. In pertinent part, his order states “In this case, the judgment had been reserved quite sometime back on 19.04.2012. Unfortunately, it has not been possible to pronounce the
judgment on account of the heavy load of work. I, therefore, propose to
list the case, for hearing submissions of the parties, so as to refresh
myself before I proceed to deliver the judgment.” The judgment was finally delivered on February 5, 2013 i.e. eight years after the victim moved the court.
The final judgment itself is surprising because contrary to established jurisprudence in the field of constitutional law, the Court has held that private media outlets can be sued under Article 226 because they allegedly perform a public function. In pertinent part Justice Sanghi states “In the light of the aforesaid discussion, I am of the view, that the press and the media perform a public function and discharge a public duty of: disseminating news, views & information; initiating and responding to debates; dealing with matters of current interest in the society in all fields such as politics, morality, law, crime, arts, sports, entertainment, science, philosophy, religion, etc.” He then goes on to state “Any function/activity, alleged to be in violation of such duty, would fall within the ambit of scrutiny of this court exercising jurisdiction under Article 226, especially when the same is alleged to have infringed the fundamental rights of the victim”. In doing so the High Court has virtually equated the fourth estate to the ‘State’.   
This is a surprising finding because the ‘State’ as understood in Article 12 of the Constitution, usually means either the State or Central Governments or any other public institution owned, operated or funded by a government. All of these institutions are bound by the Constitution of India and the fundamental rights contained therein. If a public institution violates a fundamental right of a person, they can be sued before a High Court under Article 226. For example if a public official passes an order against a citizen without first hearing the citizen, the citizen can sue for violation of his fundamental right to be heard. Extend this logic to the media and you open the door to a very slippery slope. Can a media outlet now be dragged to court for reporting on a person without first asking him for his side of the story? What about media outlets indulging in ‘paid news’? Can they now be dragged to the High Court and subject to fines for violating some creative interpretation of a fundamental right contained in the Constitution?
The second more interesting limb of the judgment pertains to the enforceability of the journalistic norms of conduct laid down by the PCI. The judgment is not crystal clear on whether a media outlet can now be sued for the violation of these PCI norms. The High Court, making reference to Aak Tak states “by its conduct, has acted in utter disregard and disrespect of the right of the victim of sexual abuse to privacy, recognised not only as inherent to the fundamental right to life under Article 21 of the Constitution, but also enumerated in the norms of journalistic conduct”. So, are the norms of journalistic conduct now enforceable in a court of law?
The third interesting limb of the judgment pertains to the fine and the manner in which it was calculated. The Court admits that it involved a bit of ‘guesswork’ and more importantly that it hoped that the fine would act as a deterrent against such future misconduct by the media. Mixing ‘guesswork’ with the idea of deterrence can lead to dangerous results like the Rs. 100 crore fine against Times Now for defaming a retired Supreme Court judge.  
Is this really the most efficient way to regulate the media? Can we really wait eight years for a High Court to pass judgment on a complaint against the media? Is the framework of ‘fundamental rights’ the most efficient framework to resolve complaints against the media? But then again what choice do we as a people have, when a self-obsessed media insists on the most flimsy version of self-regulation? 
The writer is at Stanford Law School and can be contacted at (All views are personal.)


thenumber10 said...

Just a suggestion, could you upload a copy of the decision for quick reference?
This is rather alarming. Will read the case now to see what it says

Anuj Bhuwania said...

Thank you for lively account and for drawing attention to this important case. I had a basic question- the writ was filed against a state entity- the Delhi Police. The private media enterprise Aaj Tak was only made a party as Respondent no. 3.Indeed, both the Police and Aaj Tak have been fined here. In such cases where the primary respondent is the state body but a private entity too is (necessarily and properly) made a party, can the High Court not order relief against the private body under Article 226?

Ajay Katesaria said...

The judgement has filled void created by the Legislature/Government. The judgement should be taken as another example of judicial activism. If business entities run by Government can be termed as State; then Media discharging public function can also be termed as State.

Prashant Reddy said...

@ Number10: The link to the judgment is embedded in the post, in any case here is the link:

@Bhuwania: Thank you for your comment. As per my understanding, I don't think High Courts have the power to award damages under Article 226 - there are exceptions where courts have awarded compensation for human rights violation but from my understanding this is more of an exception than a rule. Of course, under Art. 226, the High Court could have ordered the Police to charge Aaj Tak for violating the provision in the IPC which protects the privacy of persons who are victims of sexual abuse. But to pass orders against Aaj Tak is pushing the law to it limits.

@Katesaria: True as that maybe, the legal basis for the judgment is very, very shaky. Most of the precedents relied upon by the judge provide little authority for his final conclusion. In the long run, I think it can be very dangerous to regulate the media through a writ courts since such courts typically do not record evidence and lack the procedural safeguards you find in civil courts.


DC said...

@Prashant: Doesn't the HC have power to issue a writ against private parties under Article 226. As far as I know, HC's have a wider writ jurisdiction under A. 226 than the SC does under A. 32. That's one of the reasons why the requirement of many an entity performing a 'public duty' have been held constitutionally responsible in various HC judgments (vaguely remember having read a few).

In addition, with regard to compensation for constitutional infractions - violations of privacy can be undone primarily by two practical methods: public apology and compensation (as you know that once something is put out in public domain, it's irrecoverable). Therefore, the award of compensation seems justified.

IMHO, it's a good start to a privacy law jurisprudence in India - given that the nature of reportage in India is irresponsible. Maybe this is how courts can bring about a modicum of behavioural change.