Indian Media’s Coverage Of Crime: Sub-Judice Or Sub-Police?

In January 2021, the Bombay High Court delivered a judgment that has far-reaching implications for how the media can report criminal cases. In Nilesh Navalakha v. Union of India, the High Court held that the ‘sub-judice rule’ in criminal cases (i.e., the rule that the media must not influence pending cases) begins even before the case is filed in court, i.e., when the case is still under investigation by the police. The judgment marks a significant departure from the law as it has stood in the country since 1971.

The case arose against the backdrop of actor Sushant Singh Rajput’s death in 2020. In the immediate aftermath of the incident, some television channels started reporting the story in a manner that was, in the court’s own words, “crude, indecent, distasteful” and insensitive. For instance, some of them attempted to convince their viewers that the actor had not committed suicide but that he had, in fact, been murdered by his girlfriend, which the Mumbai police were allegedly trying to suppress. One news channel held a poll asking its viewers whether the victim’s girlfriend ought to be arrested. Another showed a close-up image of the dead body.

This is where the court encountered a problem. Ever since the Contempt of Courts Act was enacted in 1971, the law in India has been that a criminal case is “pending” either when a chargesheet is filed by the police or when the court takes cognisance of the case. In other words, when the police are merely investigating a criminal case, the case is not considered to be sub-judice, and the media are free to report on it in any manner they choose. In the Bombay High Court, the news channels, therefore, argued that the Sushant Singh Rajput case was not sub-judice because it was still being investigated by the police and no chargesheet had been filed in court as yet.

The court rejected this argument. It held that a person accused of committing a criminal offence cannot be dehumanised, defamed, vilified, or maligned at the hands of the media even if the case is still under investigation. In other words, interfering with “the administration of justice” is contempt of court and this can occur even if the case is merely being investigated by the police. The court took note of the fact that there were several cases (like the Jessica Lal, Priyadarshini Mattoo, Nitish Katara, and Bilal Joshi cases) in which investigative journalism had played an important role in securing the conviction of the accused. However, investigative journalism, said the court, should not morph into “overzealous” journalism in cases which are sensitive.

The court said that there were several ways in which a media report could interfere with a police investigation. For instance, upon seeing a media report, a suspect could realise that he is wanted by the police, prompting him to abscond or destroy vital evidence. An innocent person wrongly accused of a crime might suffer irreparable harm if the media pronounces her as being guilty without a trial. A police officer investigating a case might be influenced by a media report to abandon a legitimate line of inquiry. Media reports might result in witnesses being threatened, physically harmed, or won over. Police investigations, which are not meant to be public, might be hampered if they are revealed on television.

The Bombay High Court issued guidelines for how such cases should be reported by the media in the future.

• For instance, it held that in suicide cases, the deceased should not be depicted as having a weak character.
• In criminal cases generally, the media should not show interviews with the victim, witnesses, or family members on television.
• Television channels should not analyse the statements of different witnesses, nor should they publish a confession by the accused and give people the impression that it is a piece of evidence.
• Photographs of the accused should not be shown, nor should the media report on the character of the accused or victim.
• The media should refrain from commenting on the merits of the case, from recreating or reconstructing the crime scene and depicting how the accused committed the crime, or leaking sensitive or confidential information obtained from the police.
• The court said that the media should also hesitate to criticise the police “based on half-baked information” and “without proper research”.
• These principles apply not merely to the media but also to guest speakers on television channels.

Much of what the court said in its judgment is important and commendably balances the right to free speech with the right to privacy of the victim and the right to dignity of the accused. There is no doubt that many news channels irresponsibly abused the right to free speech and expression in how they reported the Sushant Singh Rajput case. Against this backdrop, the court showed admirable restraint in refusing to initiate action against the offending television channels, expressing instead only the “hope” that they would exercise their right to free speech more responsibly in the future.

However, one fears that in some paragraphs, the court’s judgment might have gone too far, and that it might ring the death-knell of investigative journalism in criminal cases in the future. For instance, the court said that if a television channel obtains any “information that could assist the investigator”, it must not report that information on its channel, but hand it over to the police. One wonders what might have happened had the same rule been in force during the Jessica Lal case. Journalists obtain “information that could assist the investigator” only so that they can report it to their viewers or readers, which is their job. If they are not able to do so, they will not have any incentives to obtain such information at all.

Further, this “don’t air your grievance in the media, but take it up with the competent authorities” principle also sends us down a slippery slope. After all, will a food critic who writes a negative review of a restaurant be told that instead of writing her review, she should complain about the restaurant to the municipal authorities?

In Nilesh Navalakha v. Union of India, the Bombay High Court has commendably balanced valuable freedoms – the freedom of speech and expression, the right to privacy of the victim, and the right to dignity of the accused. One hopes that the court will ensure that the death of investigative journalism is not one of the unintended consequences of its eloquent judgment.

Abhinav Chandrachud is an advocate at the Bombay High Court and the author of “Republic of Rhetoric: Free Speech and the Constitution of India” (Penguin 2017). The themes discussed in this article draw on a Marathi column written by the author in Loksatta.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.