PEOPLE’S UNION FOR CIVIL LIBERTIES AND ANR.versusTHE STATE OF MAHARASHTRA AND ORS.

                  [2023] 12 S.C.R. 370 : 2023 INSC 833



                             CASE DETAILS

      PEOPLE’S UNION FOR CIVIL LIBERTIES AND ANR.
                                      v.
            THE STATE OF MAHARASHTRA AND ORS.
                   (Criminal Appeal No. 1255 of 1999)
                          SEPTEMBER 13, 2023
          [DR. DHANANJAYA Y. CHANDRACHUD, CJI,
           PAMIDIGHANTAM SRI NARASIMHA AND
                    MANOJ MISRA, JJ.]

                              HEADNOTES

      Issue for consideration: Matter pertains to the modalities to be followed
by the police in conducting media briefings during criminal investigation.
     Media – Media briefings/reporting by police personnel – Propriety
and procedure:
      Held: Media reporting in criminal matters involves degree of public
interest associated with the fundamental right u/Art. 19(1)(a) – Guidelines for
conducting media briefings were prepared by the Union Ministry of Home
Affairs over a decade ago – Since then with the upsurge in the reporting
of crime, the print media, the electronic and social media have evolved
significantly – There should be a Standard Operating Procedure which
balances out the considerations – There is a need to have a uniform policy
– 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 themselves – Disclosure should not result in a
media trial – Media trials are liable to result in a derailment of justice by
impacting upon the evidence adduced and its assessment by the adjudicating
authorities – In view thereof, the Union Ministry of Home Affairs to prepare
a comprehensive manual/guidelines on media briefings by police personnel,
within the stipulated period – Issuance of direction to all the Directors
General of Police to give their suggestions to the Union Ministry of Home
Affairs and the views of National Human Rights Commission would also
be considered.[Paras 6, 17,18,19 and 20]

                                     370
PEOPLE’S UNION FOR CIVIL LIBERTIES v. THE STATE OF 371
                 MAHARASHTRA


      LIST OF CITATIONS AND OTHER REFERENCES
    People’s Union for Civil Liberties v State of Maharashtra (2014) 10
SCC 635: [2014] 12 SCR 54; A K Gopalan v Noordeen (1969) 2 SCC 734;
Sahara India Real Estate Corporation Limited v Securities and Exchange
Board of India (2012) 10 SCC 603: [2012] 12 SCR 256 – referred to.
      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES
     CRIMINAL APPELLATE/ORIGINAL/INHERENT JURISDICTION
: Criminal Appeal No.1255 of 1999.
     From the Judgment and Order dated 22.02.1999-25.02.1999 of the
High Court of Judicature at Bombay in Criminal Writ Petition No.1146 of
1997.
     With
    Criminal Appeal Nos.1256, 1367 of 1999, Contempt Petition (Civil)
No.47 of 2011 In Writ Petition (C) No.316 Of 2008, Tc (C) No.27 of 2011
And Writ Petition (Civil) No.316 Of 2008
     Appearances:
     Gopal Sankaranarayanan, Sr. Adv. (AC)
      Arunabh Choudhury, Sr. Adv., Dhiraj, Ashutosh Dubey, Mrs.
Anshu Vachher, Akshat Vachher, Ms. Abhiti Vachher, P. N. Puri, Prashant
Bhushan, Aditya Sharma, Ms. Apurba Pattanayak, M/s. Parekh & Co., Ms.
Sumita Hazarika, Ms. Ruchi Kohli, Ms. Shobha Gupta, Aditya Ranjan,
Ms. Jessy Kurian, Ms. Tarjana Rai, Aaditya Aniruddha Pande, Siddharth
Dharmadhikari, Bharat Bagla, Sourav Singh, Aditya Krishna, T A
Khan, Wasim Quadri, Chinmayee Chandra, Mrs. Swarupama Chaturvedi,
Arvind Kumar Sharma, Ms. Diksha Rai, Ms. Ragani Pandey, Ms. Pragya
Baghel, Jayant Mohan, D. S. Mahra, Anil K. Chopra, Anil Shrivastav,
P. V. Yogeswaran, Guntur Prabhakar, Dr. Monika Gusain, Ms. Suvarna
Singh, Sanjay Kumar Visen, Amit Anand Tiwari, Ms. Devyani Gupta,
Ms. Tanvi Anand, M/s. Corporate Law Group, Samir Ali Khan, D. Mahesh
Babu, Jatinder Kumar Bhatia, Krishnam Mishra, Param Kumar Mishra,
T. Mahipal, Gopal Singh, M. R. Shamshad, Manish Kumar, Ms. Shaswati
372           SUPREME COURT REPORTS                          [2023] 12 S.C.R.


Parhi, Ravi Shanker Jha, Ranjan Mukherjee, Ms. Sharmila Upadhyay,
Sarvjit Pratap Singh, M/s. Coac, Ms. G. Indira, Abhisth Kumar, Ashok
Kumar Singh, Ms. Hemantika Wahi, Shuvodeep Roy, Deepayan Dutta,
Chanchal Kumar Ganguli, Praveen Agrawal, Mukesh Kumar Maroria, M.
Shoeb Alam, M/s. Karanjawala & Co. Ms. Tulika Mukherjee, Sudarshan
Rajan, Sunny Choudhary, V. K. Verma, Rajat Srivastav, T.C. Kaushik,
Tarun Verma, Rajat Arora, Shibashish Misra, Hrishikesh Baruah, Saumitra
Srivastava, Ms. Radhika Gupta, Ms. Ruchira Goel, Rajiv Kumar Sinha,
Raj Kumar, Kapil Sahni, Sabarish Subramanian, Vishnu Unnikrishnan, C
Kranthi Kumar, Naman Dwivedi, Danish Saifi, Ms. Vanshaja Shukla, Ms.
Rachana Gandhi, Saurabh Trivedi, Ashutosh Kumar Sharma, Aravindh S.,
Abbas, Pukhrambam Ramesh Kumar, Karun Shrama, Abhinav Mukerji,
Raghvendra Kumar, Anand Kumar Dubey, Jainendra Ojha, Simanta Kumar,
Pradeep Misra, Daleep Dhyani, Manoj Kumar Sharma, Suraj Singh,
Bhuwan Chandra, Ashok Panigrahi, Merusagar Samantaray, Ms. Swarupama
Chaturvedi, Subhasish Mohanty, Ms. Jaspreet Gogia, Ms. K. Enatoli Sema,
G. Prakash, M. Yogesh Kanna, Ms. Pragati Neekhra, Arvind H. S., M/s
Arputham Aruna & Co. V.K. Sharma, V.N. Raghupathy, M.K. Maroria,
Krishnanand Pandey, Advs. for the appearing parties.
      Petitioner-in-person
        JUDGMENT / ORDER OF THE SUPREME COURT

                                  ORDER

      1. This batch of cases raises two significant issues:
      (i)   The procedure to be followed by the police in investigating police
            encounters; and
      (ii) The propriety and procedure of media briefings by police
           personnel.
     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 Maharashtra 1.


1     (2014) 10 SCC 635
PEOPLE’S UNION FOR CIVIL LIBERTIES v. THE STATE OF 373
                 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 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 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


2    Surat Singh v Union of India (Writ Petition (C) No 316 of 2008)
374          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


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.
      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
PEOPLE’S UNION FOR CIVIL LIBERTIES v. THE STATE OF 375
                 MAHARASHTRA

     (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 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 India 4, this Court underscored the


3   (1969) 2 SCC 734
4   (2012) 10 SCC 603
376           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


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?
      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;
PEOPLE’S UNION FOR CIVIL LIBERTIES v. THE STATE OF 377
                 MAHARASHTRA

     (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 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.
378          SUPREME COURT REPORTS                       [2023] 12 S.C.R.


      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.
      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 profi le of the stake holders, including
PEOPLE’S UNION FOR CIVIL LIBERTIES v. THE STATE OF 379
                 MAHARASHTRA

victims, witnesses and the accused 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 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.
380            SUPREME COURT REPORTS                    [2023] 12 S.C.R.


    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.


Headnotes prepared by:                                     Directions issued.
Nidhi Jain