Airing private WhatsApp messages of accused is dangerous: Government in Supreme Court

NEW DELHI: Days after Chief Justice S A Bobde flagged the misuse of freedom of speech, attorney general K K Venugopal on Tuesday told the Supreme Court that there was an urgent need to strike a balance between freedom of speech and contempt of court as the media was foraying into "forbidden territory".

Addressing the court on larger issues arising from the decade-old contempt proceedings against advocate Prashant Bhushan for his statement alleging that half of the past 16 CJIs were corrupt, Venugopal told a bench of Justices A M Khanwilkar, B R Gavai and Krishna Murari that abuse of the right to freedom of speech "had taken serious proportions today".

In what appeared to be an obvious reference to reporting of actor Sushant Singh Rajput’s death by suicide and ancillary issues by TV channels, the AG said, "A bail petition is filed in a court of law and TV channels go to town with private WhatsApp conversation messages of the accused. This is prejudicial to the rights of the accused and is very dangerous for the administration of justice."

Venugopal also referred to publication of articles in the nature of advisories to the SC before it was scheduled to deliver important verdicts. "Whenever a big case is scheduled for hearing before the Supreme Court, big articles are published in newspapers discussing the pros and cons of possible decisions and the course of action that should be taken by the court. The (authors of the) articles also advise the Supreme Court what decisions would meet the public expectations. All these are forbidden. These issues need to be discussed," the AG said. The remark seemed to be aimed at the trend of activists, senior lawyers and former judges publicising their views on what the court should do in important cases, though the AG refrained from making a specific reference.

Last week, while hearing a petition seeking preventive and punitive measures to curb broadcast and circulation of hate speech against Muslims, a CJI-led bench had reacted sharply to a suggestion that these were issues relating to free speech. "Freedom of speech is the most abused freedom these days," the CJI had said on October 8.

The focus, representing a confluence of views of the court and the AG, is the fallout of the contempt case brought against Bhushan, who has defended himself by invoking the right to free speech. Appearing for Bhushan, senior advocate Rajeev Dhavan said possible questions arising in the case, including the limits of the SC's discretionary suo motu contempt powers under Article 129 of the Constitution, needed to be addressed threadbare in juxtaposition with the ambit of the Contempt of Court Act.

Dhavan said the media and contours of reporting, especially in criminal case trials, has already been laid down by a five-judge bench of the SC in the Sahara case. However, the other part relating to the right to free speech was wide and bona fide comments on judges and the judiciary should be permitted. "Can we today say that the press cannot cover the criminal trial in the case relating to Shylock?" he asked.

The bench asked the AG, Dhavan and Kapil Sibal, who appeared for the other contemnor, Tarun Tejpal, to discuss and finalise the questions of law to be debated in the SC before adjudication in the contempt case against Bhushan, who has already been held guilty of committing contempt by tweeting "false and malicious" statements against present and four former CJIs. He paid up the fine of Re 1 to avoid the alternative punishment of three months' imprisonment and three years' debarment. However, Bhushan has already filed two petitions seeking review of his conviction and sentence.