The story so far: A Supreme Court bench headed by Chief Justice of India (CJI) D.Y. Chandrachud on September 13 directed the Union Ministry of Home Affairs (MHA) to prepare a comprehensive manual instructing police officers on the dos and don’ts of briefing the media within a period of three months. The Bench also ordered the Director Generals of Police (DGPs) of all States as well as the National Human Rights Commission to provide their recommendations for the manual.
These directives do not come in a vacuum. Last year, the Delhi Police admitted to informing the media about the outcome of AltNews co-founder Mohammed Zubair’s bail hearing even before the judicial order could be pronounced in open court. While Zubair’s lawyer questioned the status of the rule of law in the country and condemned the action of the police, senior Delhi Police officer KPS Malhotra said that he had ‘misheard’ the pronouncement of the order in the case registered over an ‘objectionable tweet’ posted in 2018 that allegedly hurt religious beliefs.
A day after Zubair’s arrest in the case, K.P.S. Malhotra, Deputy Commissioner of Police, claimed that transactions worth over ₹50 lakh had been made to his bank account over three months, following which Alt News co-founder Pratik Sinha clarified on X that the police were linking donations received by Alt News to Zubair. Eventually, the claim was neither made a part of written submissions before the court while seeking Zubair’s police remand nor was it mentioned during oral arguments.
This was, however, not the first time that police authorities unethically divulged case details to the media even before the completion of the investigation. In 2018, five human rights activists critical of the ruling government were arrested during the investigation into the Bhima Koregaon violence. While the probe was still underway, the Maharashtra police held press conferences where they flashed letters purportedly written by these activists, even though forensic analysis of these letters was yet to be completed. While these letters received extensive media coverage and were the subject of relentless television debates, they were never presented in court as evidence.
Following the death of actor Sushant Singh Rajput in 2020, a macabre media trial was orchestrated against his then-partner actor Rhea Chakraborty. Allegedly incriminating WhatsApp chats were leaked to the media by investigating agencies, resulting in a whirlpool of misreported facts.
A few months later in October 2021, the Narcotics Control Bureau (NCB) arrested Aryan Khan, the son of renowned Bollywood actor Shahrukh Khan. A media frenzy soon ensued, which included the circulation of WhatsApp chats between the Bollywood star and former NCB zonal director Sameer Wankhede. The Bombay High Court had to again intervene by restraining Mr. Wankhede from publicising more WhatsApp chats or giving media interviews about a sub-judice case.
Unregulated divulgence of crucial investigation details by law enforcement agencies and a disproportionate reliance on such information by the media results in a grave violation of rights that accompany a fair trial — presumption of innocence and the right to dignity and privacy of all stakeholder in a criminal trial.
Judicial strictures
The directive for revised guidelines on media briefings by the police was passed while hearing a batch of petitions led by the NGO People’s Union for Civil Liberties (PUCL) dating back to 1999. The matter pertained to two critical issues — the procedures to be followed by the police in the event of encounters, and the protocols for police while briefing the media during ongoing criminal investigations. While the former was addressed in the 2014 judgment of PUCL v. State of Maharashtra, the Supreme Court was now deliberating upon the latter.
While underscoring that police briefings must not pave the way for media trials to take place, the court noted that the nature of the information disclosed to the media must take into account individual factors such as the age and gender of the accused persons, victims, and witnesses. Highlighting the need for a balance between the fundamental right to free speech and the right of the accused to a fair investigation, the Court pointed out that biased media reporting gives rise to public suspicion that the concerned person has committed an offence and can also violate the privacy of victims.
Notably, the Chief Justice acknowledged that the existing guidelines prepared by the Union government were almost a decade old and did not address the challenges posed by the evolving landscape of electronic media reporting. A similar order calling for the implementation of revised media briefing guidelines was passed in 2016 by a Supreme Court Bench headed by then Chief Justice J.S. Khehar.
More recently, on June 15, 2021, the Karnataka High Court ordered the State government to issue comprehensive directions to the State police in order to ensure that no information is divulged by the police to the media before the completion of an investigation,
This is not the first time that the judiciary has taken cognisance of the adverse impact that prejudiced media narratives can have on criminal investigations. In 2018, the Supreme Court in Romila Thapar v. Union of India reprimanded the manner in which the police had disclosed sensitive details regarding the probe into the Bhima Koregaon violence to the media.
“The use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt. In the present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media. That the police should lend themselves to this process is a matter of grave concern,” the court observed.
Similarly, criticising media coverage of the Jessica Lal murder case, the Supreme Court in Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) underscored — “There is danger of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or accused before the identification parades are constituted or if the media publishes statements which outrightly hold the suspect or the accused guilty even before such an order has been passed by the court.”
In the aftermath of the vicious media trial of Rhea Chakraborty, the Bombay High Court in 2021 laid down a number of guidelines to be followed by the media when reporting on criminal investigations. Calling the media coverage “prima facie contemptuous,” the court observed that the concerned TV channels “crossed boundaries” and started a “vicious campaign of masquerading as the crusaders of truth and justice and the saviours of the situation.”
Some key directives included not publishing confessions alleged to be made by an accused to the police (not a magistrate) without letting the public know that such evidence is inadmissible in court; not reconstructing the crime scene; and not speculating about the outcome of the investigation and trial.
What are the existing guidelines?
MHA guidelines
In 2010, the MHA issued a circular containing a host of guidelines governing media interactions by the police. The circular stated that officers should confine their briefings to the essential facts and not rush to the press with half-baked, speculative, or unconfirmed information about ongoing investigations. It also instructed that due care should be taken to ensure that there is no violation of the legal, privacy and human rights of the accused/victims.
Importantly, the police authorities were also advised to ensure that no opinionated and judgmental statements are made while briefing the media. Despite the existence of such guidelines, during the investigation into the death of actor Sushant Singh Rajput in 2020, the then Bihar police chief Gupteshwar Pandey told the media that making any kind of statements regarding the State Chief Minister was beyond the aukaat (status) of actor Rhea Chakraborty. Although Mr. Pandey later apologised for his comment, no disciplinary action was taken against him either by the State or the Centre.
State specific police circulars
Various State governments have also issued advisories on this subject. In Delhi, for instance, no officer below the rank of Deputy Commissioner of Police is authorised to give an official quote to the press. Similarly, a circular dated November 30, 2009, issued by the Madhya Pradesh Police Headquarters to the Superintendents of Police, stated that a senior officer should be deputed to share any information with the media and that no disclosures that can affect ongoing investigations should be made. Another circular issued on January 2, 2014, stipulated that the identities of minor and rape victims must not be disclosed and that any information regarding the modus operandi of the offender must not be given.
A standing order issued by the Director General of Police, Himachal Pradesh Police back in 2013 outlined the category of police officers authorised to interact with the media at various levels. Adopting the recommendation of the Punjab Human Rights Commission, the chiefs of police in the districts and the commissionerates in the State apprised the Additional Director General of Police (ADGP), Human Rights through an official communique in 2020 that they will no more parade arrested accused persons before the media.
CBI guidelines
The Central Bureau of Investigation (CBI) also has detailed guidelines governing media interactions in the CBI Crime Manual 2015. These guidelines are however focused more on ensuring that the activities of the agency do not receive any unwarranted bad press. For instance, the guidelines stipulate that, in case of corruption offences, if there’s been an arrest or a search that has recovered something “substantial” or disciplinary proceedings that do not result in a major punishment, then the designation of the accused officer may be communicated but not the name; bribery and corruption convictions should receive more publicity than misconduct and irregularities.
Further, the central agency has been tasked with communicating with the media only through press releases or press briefings by officers of specific designations. CBI personnel are also required to file complaints with the Press Council of India if any media house publishes any “deliberately distorted version of facts.”
Stautory guidelines
While there are no specific statutory guidelines, various legislations regulate the manner in which the media can report information received from law enforcement agencies. Section 228A of the Indian Penal Code (IPC) criminalises the disclosure of the identity of victims of sexual assault, gang rape, and other such offences, with a punishment of imprisonment of up to two years and a fine. The provision also penalises printing or publishing any matter in relation to any proceeding pertaining to these offences before a court without the prior permission of the relevant court or the victim.
With respect to protecting the interests of minors, Section 74 of the Juvenile Justice Act, 2015 prevents the disclosure by media outlets of the name, address, school, or any other particular of a child in conflict with the law or a child in need of care and protection, or a child victim or witness of a crime. Section 24 (5) of the Protection of Children from Sexual Offences Act 2012 (POSCO) also restrains police officers from revealing the child’s identity to the public media unless otherwise directed by the Special Court in the interest of the child.
Guidelines by media regulatory bodies
Media regulatory bodies such as the Press Council of India, the National Broadcasters and Digital Association (NBDA), and the Indian Broadcasting Foundation have issued periodic guidelines and advisories to encourage adherence to a code of conduct amongst journalists in this domain. For instance, the Norms Of Journalistic Conduct issued by the Press Council of India prohibits media houses from running parallel trials predetermining the guilt of an accused. Journalists have also been advised to not publish information about the official line of investigation ‘based on gossip’ or disclose confidential information that may prejudice any ongoing investigation.
Report of the Law Commission
The Law Commission of India in its 200th Report released in August 2006, titled Trial by Media: Free Speech and Fair Trial Under Criminal Procedure Code, 1973 expressed concerns over the extensive prejudicial coverage of crime and information about suspects and accused, both in the print and electronic media. Explaining how media actions affect the administration of justice, the report stated that “excessive publicity” about a suspect or an accused before trial jeopardises the chances of a fair trial and also characterises them as having committed the crime.
The Commission recommended that such media interference should invite proceedings for contempt under the Contempt of Courts Act, 1971.
What are the international standards?
In other jurisdictions, law enforcement agencies at various levels of government have dedicated offices that handle media relations and communications. In the United States, the Federal Bureau of Investigation (FBI) has a National Press Office that manages daily relations with the national and international media. Similarly, the New York Police Department (NYPD) has public information officers supervised by the Office of the Deputy Commissioner, Public Information, to assist media representatives. London’s Metropolitan Police releases information to the media through the DMC Press Bureau or through press/communication officers.
The Media Relations Policy Guide of the FBI mandates that all press releases must be fair, accurate, and sensitive to defendants’ rights. It also stipulates that any release of information involving juveniles should not contain personally identifiable information. Governed by federal and State laws that impose similar directives, the NYPD is not permitted to disclose information that could interfere with an investigation or judicial proceeding; identify children under 18 years of age who are complainants or arrestees; or identify a confidential source or anything which may constitute an unwarranted invasion of personal privacy.
The London Metropolitan Police is guided by an obligation to proactively release information on investigations when there is a need to maintain public confidence. Clear reasoning must also be provided if any information is withheld from the media. The standard protocol is to not name arrested persons unless there are exceptional circumstances.
When it comes to judicial pronouncements, courts in the United States have formulated different standards over time to determine the adverse impact of pre-trial media publicity. In Rideau v. Louisiana (1962), an interview of the accused Rideau was telecast for three days where he was shown with the Sheriff in the jail, confessing to his guilt. Subsequently, a plea for a change in the venue of the trial was made on the ground that the interview had adversely affected his right to a fair trial. The U.S. Supreme Court observed that the interview constituted a ‘trial’ of the accused and proceeded to ‘presume the prejudice’ caused by the broadcasting of the interview.
In Murphy v. Florida (1974), the U.S. Supreme Court held that exposure to information about a State defendant’s prior convictions or to news accounts of the crime with which he is charged does not alone presumptively deprive the defendant of due process and thus laid down the test of ‘totality of circumstances’ in order to determine whether the pre-trial publicity had adversely affected the fairness of the trial or not.
Challenges and the way forward
Ideally, the press as well as law enforcement agencies should be independent institutions, immune from political influence. However, in reality, police narratives may be influenced by a variety of socio-political factors, and the media’s ready acceptance of such narratives without any verification results in a violation of civil liberties. These systemic limitations are aggravated by disparate media policy guidelines with weak enforcement mechanisms. For instance, the MHA’s 2010 guidelines have limited implementation since ‘Police’ is an entry in the State List and thus falls primarily within the jurisdiction of State governments. Most police departments also do not have dedicated media cells, thereby blurring the lines between an official and informal police briefing.
The monopoly that law enforcement agencies have on crucial investigation details also results in access journalism wherein only select journalists get access to such disclosures.
As journalist Vijaita Singh rightly points out, it is crucial to question police statements that seem speculative or motivated. She explains— “Crime reporters depend on the police for information. But a pavement-thumping reporter will always ask questions if the information is speculative or appears to be motivated. Often, thanks to instinct, the reporter drops stories that do not check the required boxes. There have been instances where reporters have been left out of police briefings for critical reports.”
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