Peoples Union For Civil Liberties vs The State Of Maharashtra

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

ORDER

1 This batch of cases raises two significant issues:

(i) The procedure to be followed by the police in investigating police

encounters; and Signature Not Verified 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

Liberties v State of Maharashtra1.

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

petition2.

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

not take notice of the decision in A K Gopalan v Noordeen3 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

India4, 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