Full Judgment Text
2023INSC833
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE/ORIGINAL/INHERENT JURISDICTION
Criminal Appeal No 1255 of 1999
People’s Union for Civil Liberties & Anr .... Appellant(s)
Versus
The State of Maharashtra & Ors ....Respondent(s)
WITH
Criminal Appeal No 1256 of 1999
Criminal Appeal No 1367 of 1999
Contempt Petition (Civil) No 47 of 2011 in
Writ Petition (C) No 316 of 2008
TC (C) No 27 of 2011
Writ Petition (Civil) No 316 of 2008
O R D E R
1 This batch of cases raises two significant issues:
(i) The procedure to be followed by the police in investigating police
Signature Not Verified
encounters; and
Digitally signed by
Sanjay Kumar
Date: 2023.09.15
16:23:32 IST
Reason:
(ii) The propriety and procedure of media briefings by police personnel.
2
2 The first issue, governing police encounters, has since been dealt with in the
judgment of this Court dated 23 September 2014 in People’s Union for Civil
1
Liberties v State of Maharashtra .
3 The second issue pertains to the modalities to be followed by the police in
conducting media briefings where a criminal investigation for an alleged offence
is in progress. The issue assumes significance, particularly, in the context of the
manner in which media reportage takes place, particularly in crimes involving a
degree of public interest.
4 Having regard to the ramifications of the issues involved, the Court appointed Mr
Gopal Sankaranarayanan, senior counsel, as Amicus Curiae .
5 A questionnaire was circulated by the Amicus Curiae in order to elicit information
from the States and Union Territories. Several States, including the States of
Bihar, Goa, Haryana, Jharkhand, Rajasthan, Tamil Nadu and Uttarakhand have
responded, besides the Administrations of Andaman and Nicobar Islands,
Chandigarh and Puducherry. Observations have been submitted by the People’s
Union for Civil Liberties, one of the appellants in the batch of cases. Other
States, including the States of Assam, Chhattisgarh, Himachal Pradesh and
Madhya Pradesh have served copies of the replies filed by them in a connected
2
petition .
6 Media reporting on matters involving the commission of crimes involves several
aspects bearing on public interest. At a basic level, the fundamental right to free
speech and expression is directly implicated. This engages the right of the
media to disseminate news, views and information and the right of the viewing
public or readers of printed news. There can be no gainsaying the fact that both
1 (2014) 10 SCC 635
2 Surat Singh v Union of India ( Writ Petition (C) No 316 of 2008)
3
the media in pursuance of its fundamental right to the freedom of speech and
expression as well as the consumers of news, information and ideas have a right
to disseminate and to receive fair and unbiased information. Criminal offences
and investigation into them by the law enforcement machinery involves
significant elements of public interest bearing upon the right to be informed and
the right to know.
7 At the same time, there are competing considerations which are also of
immense significance. At one level, the accused whose conduct is under
investigation is entitled to a fair and unbiased investigation by the police. Unfair
reporting by the media has the potential to affect public opinion and impinge
upon the presumption of innocence which is one of the cardinal principles of
criminal jurisprudence. At the stage of the investigation and even trial, every
accused is entitled to the presumption of innocence. Media reportage in a
manner which implicates the culpability of the person who is under investigation
is liable to seriously impinge upon the reputation and personal dignity of the
individual under investigation. Biased reporting also gives rise to public
suspicion that the person under investigation has committed the offence though
the complicity of the accused is yet to be investigated and, if a charge-sheet is
submitted to be subjected to the administration of criminal justice in accordance
with law.
8 At another level, media reportage also impinges upon the right of victims or, as
the case may be, survivors of crimes. In a given case, the victim may be a
minor. In some cases, the nature of the crime may involve the privacy of the
victim, in cases such as those involving gender violence. The publication of
photographs and visuals of the bodies of deceased victims of crime affects the
very notion of preserving the dignity in death.
4
9 While a disclosure by the media of relevant details involves public interest
associated with the fundamental right under Article 19(1)(a) of the Constitution,
equally, the rights of the accused and of the victims or, as the case may be,
survivors of crimes have a direct bearing on the fundamental right to life and
personal liberty which is protected by Article 21.
10 At this stage, it would be material to note the provisions of the Explanation to
Section 3 of the Contempt of Courts Act 1971, which reads as follows:
“Explanation.—For the purposes of this section, a judicial
proceeding—
(a) is said to be pending—
(A) in the case of a civil proceeding, when it is
instituted by the filing of a plaint or otherwise,
(B) in the case of a criminal proceeding under the
Code of Criminal Procedure, 1898 (5 of 1898)1., or
any other law—
(i) where it relates to the commission of an offence,
when the charge-sheet or challan is filed, or when
the court issues summons or warrant, as the case
may be, against the accused, and
(ii) in any other case, when the court takes cognizance
of the matter to which the proceeding relates, and
in the case of a civil or criminal proceeding, shall
be deemed to continue to be pending until it is
heard and finally decided, that is to say, in a case
where an appeal or revision is competent, until the
appeal or revision is heard and finally decided or,
where no appeal or revision is preferred, until the
period of limitation prescribed for such appeal or
revision has expired;
(b) which has been heard and finally decided shall not be
deemed to be pending merely by reason of the fact that
proceedings for the execution of the decree, order or
sentence passed therein are pending.”
11 The manner in which the Explanation has been incorporated may expose a
person to a charge of contempt for reporting on a criminal proceeding only after
5
the charge-sheet has been filed or, as the case may be, cognizance taken or
summons/warrant issued. The two hundredth Report of the Law Commission
chaired by Justice M Jagannadha Rao, a former Judge of this Court, noted the
background of the provision as it arose upon the report of the Bhargava
Committee under the auspices of a Joint Committee of Parliament. The Amicus
Curiae has adverted to the fact that the report of the Bhargava Committee did
3
not take notice of the decision in A K Gopalan v Noordeen which treated the
arrest of an accused as the point of commencement for taking cognizance of
criminal contempt. The Law Commission in these circumstances made
recommendations for remedying the situation.
12 The ambit of these proceedings is confined to the pre-trial stage where the
investigation has been initiated and is continuing. The Amicus Curiae submitted
that any disclosure by the police about an investigation must be cognizant of the
fact that the information as disclosed impacts not only upon the victim of the
crime and the accused, but on the rule of law. In its decision in Sahara India
Real Estate Corporation Limited v Securities and Exchange Board of
4
India , this Court underscored the need to maintain the balance between the
right of the accused under Article 21 and the right of the media/public under
Article 19(1)(a).
13 During the course of the submissions, the issues which have been raised by the
Amicus Curiae in the written note of submissions are as follows:
“1. Who can brief the media?
2. At what stage is the briefing done?
3. How much information is to be shared at each stage?
3 (1969) 2 SCC 734
4 (2012) 10 SCC 603
6
4. What information cannot be shared?
5. Is the information to be shared or conveyed verbally or in
writing?
6. What safeguards to be followed (no names of victims, no
photos of accused who have to stand Test Identification
Parade, no opinions/judgments, no disclosure of line of
investigation or technical knowhow, no information in
National Security issues)
7. Whether copies of Press Releases are maintained by the
police department?
8. Disciplinary action against officers who do not abide by
instructions.”
14 A painstaking exercise has been conducted by the Amicus Curiae in preparing a
compilation containing:
(i) The Media Relations Handbook of the Los Angeles Police Department;
(ii) The Press Relations Notice of the New York Police Department;
(iii) The Communication’s Advisory of the Association of Chief Police Officers,
UK;
(iv) The Standard Operating Procedure issued by the Metropolitan Police,
London in regard to Media Relations in June 2012;
(v) The Dorset Police’s Media Relations Guidelines;
(vi) The instructions prepared by the Central Bureau of Investigation more
specifically in paragraphs 24.9 to 24.31 of the CBI Manual titled “Policy
Division”; and
(vii) The Office Memorandum dated 1 April 2010 issued by the Union Ministry
of Home Affairs which contains an advisory on the media policy of the
7
police.
15 At this stage, it would be material to note that among the statutory provisions,
the following have a broad bearing on the issues which are raised in the course
of the proceedings:
Section 228-A of the Indian Penal Code, 1860
Section 327 of the Criminal Procedure Code, 1973
Section 74 of the Juvenile Justice Act, 2015 (earlier Section 21 of the Juvenile
Justice Act, 2000)
Sections 8(1)(g) & (h) and 8(2) of the Right to Information Act, 2005
16 The Amicus Curiae has prepared the following suggestions on the basis of which
appropriate guidelines can be formulated for conducting media briefings:
“1. Each district or town ought to have a Media Briefing Cell
(MBC) for interactions with the media. Such interaction /
Press Releases must be in writing and with the
authorization of a senior police officer. Press Briefs must
be prepared on each case, which will be the basis of any
media briefings.
2. The briefing of the press can be done at any stage after
an FIR has been registered, an arrest effected or a raid
conducted. However, at the earliest stages, very little
information must be parted with, as facts would need full
and complete confirmation.
3. Notwithstanding anything else, the primary concern of
the police ought to be the fair administration of justice
without compromising on individual rights of privacy or of
presumption of innocence.
4. Information ought not to be released which would portray
the police as insensitive or vindictive or which would
suggest the pre-judging of an issue.
8
5. The location of the offence, especially in the context of
harassment, domestic violence, stalking etc., ought to be
avoided as it would compromise the victim.
6. In no circumstances may the identity of victims of sexual
offences and juvenile cases be divulged by the police.
The same may apply to the victims of continuing
offences, i.e. abductions and kidnapping. The police
would also be careful to share details of ongoing
operations or investigative strategy that would alert the
offenders or compromise witnesses confidential
informants.
7. The Press Briefs will be maintained as permanent records
of the media interactions of the police, with one copy at
the Police Station in question, one at the MBC and one at
the District Headquarters. All such briefs will be provided
online as well.
8. Any breach of the above Guidelines must be strictly dealt
with departmentally, so that any such misadventure may
be deterred.”
17 The guidelines of the Union Ministry of Home Affairs were prepared over a
decade ago on 1 April 2010. Since then, with the upsurge in the reporting of
crime not only in the print media, but in the electronic and social media, it
becomes extremely important that there should be a Standard Operating
Procedure which balances out the considerations which we have noted above.
There can be no denying the fact that the disclosure of an official version of the
investigation would ensure against speculative crime reporting, which may be of
a dis-service both to the public interest involved and the interest of the accused,
prospective witnesses as well as the victims and survivors of crime. There is, in
that sense, a need to have a uniform policy which can be adopted for
nominating nodal officers who would be available to share the official version at
the stage of investigation, consistent with the need to ensure that the disclosure
itself does not derail the course of the investigation. The nature of the
disclosure cannot be uniform since it must depend upon the nature of the crime
and the profile of the stake holders, including victims, witnesses and the accused
9
themselves. The age and gender of the accused as well as of the victims would
have a significant bearing on the nature of the disclosure to be made. It is
equally important to emphasise that the nature of the disclosure which is made
by the police in the course of media briefings should be objective in nature and
should not consist of a subjective opinion pre-judging the guilt of the accused.
The guidelines must duly factor in the need to ensure that the disclosure does
not result in a media trial so as to allow for the pre-judging of the guilt of the
accused. Media trials are liable to result in a derailment of justice by impacting
upon the evidence which would be adduced and its assessment by the
adjudicating authorities.
18 Bearing in mind the above aspects, we are of the view that the Union Ministry of
Home Affairs should prepare a comprehensive manual on media briefings by
police personnel. Some of the considerations which would weigh in balancing
various issues of public interest while the framing of guidelines have been
flagged in the earlier part of this order as well as in the questionnaire and the
guidelines which have been prepared by the Amicus Curiae. The Amicus Curiae
has collated, for the purposes of formulation, the practices which have been
followed by police departments in other jurisdictions and by the Central Bureau
of Investigation and Union Ministry of Home Affairs in India.
19 We direct that all the Directors General of Police shall, within a period of one
month from the date of this order, communicate to the Union Ministry of Home
Affairs their suggestions for the preparation of appropriate guidelines.
Thereafter, the Union Ministry of Home Affairs shall proceed to prepare the
guidelines after considering the views which have been received from the
Directors General of Police and after consulting other stake holders including
representative segments of the print and electronic media who may have
10
suggestions on the issue. Organisations representing the print and electronic
media should also be consulted.
20 The National Human Rights Commission which has been represented by Ms
Shobha Gupta, counsel, has also prepared its response to the questionnaire
which was circulated by the Amicus Curiae . The view point of the National
Human Rights Commission shall also be duly taken into consideration.
21 This exercise shall be completed by the Union Ministry of Home Affairs by 31
December 2023.
22 The Union Ministry of Home Affairs shall furnish a copy of the guidelines to the
Amicus Curiae , Mr Gopal Sankaranarayanan, and to Ms Shobha Gupta, counsel
for the National Human Rights Commission.
23 List the proceedings in the second week of January 2024.
..…..…....…........……………….…........CJI.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[Pamidighantam Sri Narasimha]
…..…..…....…........……………….…........J.
[Manoj Misra]
New Delhi;
September 13, 2023
-S-
11
ITEM NO.103 COURT NO.1 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s).1255/1999
PEOPLE’S UNION FOR CIVIL LIBERTIES & ANR. Appellant(s)
VERSUS
THE STATE OF MAHARASHTRA & ORS. Respondent(s)
WITH
Crl.A. No. 1256/1999 (II-A)
Crl.A. No. 1367/1999 (II-A)
CONMT.PET.(C) No. 47/2011 In W.P.(C) No. 316/2008 (PIL-W)
T.C.(C) No. 27/2011 (XIV-A)
W.P.(C) No. 316/2008 (PIL-W)
Date : 13-09-2023 These matters were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA
HON'BLE MR. JUSTICE MANOJ MISRA
Mr. Gopal Sankaranarayanan, Sr. Adv.(AC)
For Appellant(s) Mr. Dhiraj, Adv.
Mr. Ashutosh Dubey, Adv.
Mrs. Anshu Vachher, Adv.
Mr. Akshat Vachher, Adv.
Ms. Abhiti Vachher, Adv.
Mr. P. N. Puri, AOR
Mr. Prashant Bhushan, Adv.
Mr. Aditya Sharma, Adv.
Ms. Apurba Pattanayak, Adv.
M/S. Parekh & Co., AOR
Petitioner-in-person
Ms. Sumita Hazarika, AOR
Ms. Ruchi Kohli, AOR
For Respondent(s) Ms. Shobha Gupta, AOR
12
Mr. Aditya Ranjan, Adv.
Ms. Jessy Kurian, Adv.
Ms. Tarjana Rai, Adv.
Mr. Aaditya Aniruddha Pande, AOR
Mr. Siddharth Dharmadhikari, Adv.
Mr. Bharat Bagla, Adv.
Mr. Sourav Singh, Adv.
Mr. Aditya Krishna, Adv.
Mr. T A Khan, Adv.
Mr. Wasim Quadri, Adv.
Ms. Ruchi Kohli, Adv.
Mr. Chinmayee Chandra, Adv.
Mrs. Swarupama Chaturvedi, Adv.
Mr. Arvind Kumar Sharma, AOR
Ms. Diksha Rai, Adv.
Ms. Ragani Pandey, Adv.
Mr. Arunabh Choudhury, Sr. Adv.
Ms. Pragya Baghel, Adv.
Mr. Jayant Mohan, AOR
Mr. D. S. Mahra, AOR
Mr. Anil K. Chopra, AOR
Mr. Anil Shrivastav, AOR
Mr. P. V. Yogeswaran, AOR
Mr. Guntur Prabhakar, AOR
Dr. Monika Gusain, Adv.
Ms. Suvarna Singh, Adv.
Mr. Sanjay Kumar Visen, AOR
Ms. Sumita Hazarika, AOR
Mr. Amit Anand Tiwari, AOR
Ms. Devyani Gupta, Adv.
Ms. Tanvi Anand, Adv.
M/S. Corporate Law Group
Mr. Samir Ali Khan, AOR
Mr. D. Mahesh Babu, AOR
Mr. Jatinder Kumar Bhatia, AOR
13
Mr. Krishnam Mishra, Adv.
Mr. Param Kumar Mishra, Adv.
Mr. T. Mahipal, AOR
Mr. Gopal Singh, AOR
Mr. M. R. Shamshad, AOR
Mr. Manish Kumar, AOR
Ms. Shaswati Parhi, Adv.
Mr. Ravi Shanker Jha, Adv.
Mr. Ranjan Mukherjee, AOR
Ms. Sharmila Upadhyay, AOR
Mr. Sarvjit Pratap Singh, Adv.
M/S. Coac
Ms. G. Indira, AOR
Mr. Abhisth Kumar, AOR
Mr. Ashok Kumar Singh, AOR
Ms. Hemantika Wahi, AOR
Mr. Shuvodeep Roy, AOR
Mr. Deepayan Dutta, Adv.
Mr. Chanchal Kumar Ganguli, AOR
Mr. Praveen Agrawal, AOR
Mr. Mukesh Kumar Maroria, AOR
Mr. M. Shoeb Alam, AOR
M/S. Karanjawala & Co.
Ms. Tulika Mukherjee, AOR
Mr. Sudarshan Rajan, AOR
Mr. Sunny Choudhary, AOR
Mr. V. K. Verma, AOR
Mr. Rajat Srivastav, Adv.
Mr. T.C. Kaushik, Adv.
Mr. Tarun Verma, Adv.
14
Mr. Rajat Arora, AOR
Mr. Shibashish Misra, AOR
Mr. Hrishikesh Baruah, AOR
Mr. Saumitra Srivastava, Adv.
Ms. Radhika Gupta, Adv.
Ms. Ruchira Goel, AOR
Mr. Rajiv Kumar Sinha, AOR
Mr. Raj Kumar, Adv.
Mr. Kapil Sahni, Adv.
Mr. Sabarish Subramanian, AOR
Mr. Vishnu Unnikrishnan, Adv.
Mr. C Kranthi Kumar, Adv.
Mr. Naman Dwivedi, Adv.
Mr. Danish Saifi, Adv.
Ms. Vanshaja Shukla, AOR
Ms. Rachana Gandhi, Adv.
Mr. Saurabh Trivedi, AOR
Mr. Ashutosh Kumar Sharma, Adv.
Mr. Aravindh S., AOR
Mr. Abbas, Adv.
Mr. Pukhrambam Ramesh Kumar, AOR
Mr. Karun Shrama, Adv.
Mr. Abhinav Mukerji, AOR
Mr. Raghvendra Kumar, AOR
Mr. Anand Kumar Dubey, Adv.
Mr. Jainendra Ojha, Adv.
Mr. Simanta Kumar, Adv.
Mr. Pradeep Misra, AOR
Mr. Daleep Dhyani, Adv.
Mr. Manoj Kumar Sharma, Adv.
Mr. Suraj Singh, Adv.
Mr. Bhuwan Chandra, Adv.
Mr. Ashok Panigrahi, AOR
Mr. Merusagar Samantaray, AOR
Ms. Swarupama Chaturvedi, AOR
15
Mr. Subhasish Mohanty, AOR
Ms. Jaspreet Gogia, AOR
Ms. K. Enatoli Sema, AOR
Mr. G. Prakash, AOR
Mr. M. Yogesh Kanna, AOR
Ms. Pragati Neekhra, AOR
Mr. Arvind H.S., AOR
M/s Arputham Aruna & co.
Mr. V.K. Sharma, AOR
Mr. V.N. Raghupathy, AOR
Mr. M.K. Maroria, AOR
Ms. Ruchi Kohli, AOR
Mr. Krishnanand Pandey, AOR
UPON hearing the counsel the Court made the following
O R D E R
1 In terms of the signed reportable order, we are of the view that the Union
Ministry of Home Affairs should prepare a comprehensive manual on media
briefings by police personnel. Some of the considerations which would weigh in
balancing various issues of public interest while the framing of guidelines have
been flagged in the earlier part of this order as well as in the questionnaire and
the guidelines which have been prepared by the Amicus Curiae. The Amicus
Curiae has collated, for the purposes of formulation, the practices which have
been followed by police departments in other jurisdictions and by the Central
Bureau of Investigation and Union Ministry of Home Affairs in India.
16
2 We direct that all the Directors General of Police shall, within a period of one
month from the date of this order, communicate to the Union Ministry of Home
Affairs their suggestions for the preparation of appropriate guidelines.
Thereafter, the Union Ministry of Home Affairs shall proceed to prepare the
guidelines after considering the views which have been received from the
Directors General of Police and after consulting other stake holders including
representative segments of the print and electronic media who may have
suggestions on the issue. Organisations representing the print and electronic
media should also be consulted.
3 The National Human Rights Commission which has been represented by Ms
Shobha Gupta, counsel, has also prepared its response to the questionnaire
which was circulated by the Amicus Curiae . The view point of the National
Human Rights Commission shall also be duly taken into consideration.
4 This exercise shall be completed by the Union Ministry of Home Affairs by 31
December 2023.
5 The Union Ministry of Home Affairs shall furnish a copy of the guidelines to the
Amicus Curiae , Mr Gopal Sankaranarayanan, and to Ms Shobha Gupta, counsel
for the National Human Rights Commission.
6 List the proceedings in the second week of January 2024.
(SANJAY KUMAR-I) (RENU BALA GAMBHIR)
DEPUTY REGISTRAR COURT MASTER