There was difficulty for the court to give guidelines in the absence of any power under the common law to postpone or prevent publication of proceedings held in open court.
Urging the Supreme Court to refrain from laying down any guidelines on court reporting, the Editors Guild of India today suggested that the apex court call editors for discussing the issue.
Senior counsel Rajeev Dhavan, representing the Guild, said the Court should refrain from laying down any guidelines for reporting of sub-judice matters because it would imperil free speech as there is "not a sufficiently rich jurisprudence to balance media rights."
Instead, it suggested that there was a need for the Court on its administrative side to sit with the editors for discussing the guidelines.
Also there was difficulty for the court to give guidelines in the absence of any power under the common law to postpone or prevent publication of proceedings held in open court.
"If statute is brought then free speech and administration of justice will be at peril," Dhavan submitted before a Constitution bench headed by Chief Justice S H Kapadia.
"We have not developed sufficiently rich jurisprudence on the question of balancing media rights against other rights. The shadow of contempt law hangs over our jurisprudence," he submitted before the bench, also comprising justices D K Jain, SS Nijjar, Ranjana Prakash Desai and J S Khehar.
The Bench during the hearing wanted to know as to on what stage in case of PIL matters media should publish the contents of the petitions and said that there are 13 petitions pending in the apex court in which judges and senior advocates have been attacked.
"Can you analyse the evidence before the judge? Can the press analyse a petition before it is heard by Judge?," the CJI queried.
Dhavan said at any stage a person can approach the writ court for protection of rights and in cases of PILs, a person cannot be debarred from filing petitions nor can he be prevented from going to media.
The bench had put the question by pointing out to the arguments of Soli Sorabjee, who had said PILs are filed and given to media and in many cases by publication of the contents of PIL the reputation of a person is harmed before it is entertained by the court.
Dhavan, who was also arguing for Foundation for Media Professionals, made submissions on guidelines prevailing in some European nations and Canada and said unlike in those countries, "here we have a high degree of ad hocism".
"We have a case which can be addressed but guidelines will be an unwarranted legislation," he said while defending "sensationalism" in reporting.
"Prima facie sensationalism will be there in press by perforce. It is bound to happen," he said and spoke about the term "trial be media".
"Trial by media is a pejorative term...you have not given content as to what is trial by media," he said while elaborating the difficulties of the court in framing the guidelines.
"Guidelines is an unwarranted legislation," he said adding "Jurisdictionally, your lordship has no power to issue guidelines."
He said broad factors can be added in the self-calculated guidelines which "must come from the judgements".
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