DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

MEDIA AND LAW

PROJECT ON:

(FINAL DRAFT)

A CASE IN “MEDIA OVERREACH”: IRRESPONSIBLE MEDIA

REPORTING AND THE RIGHTS OF REHABILITATED OFFENDERS

SUBMITTED BY: UNDER THE GUIDANCE OF:

PRANAV BHANSALI Mrs. ANKITA YADAV

ROLL NO: 109 ASSISTANT PROFESSOR (LAW)

SECTION ‘B’ DR. RAM MANOHAR LOHIYA

B.A. LLB (Hons.), SEMESTER IX NATIONAL LAW UNIVERSITY

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 ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher for the subject Mrs. Ankita Yadav for
giving me such a challenging topic and also for her exemplary guidance, monitoring and
constant encouragement throughout the course of this thesis.

I also take this opportunity to express a deep sense of gratitude to my seniors in the college
for their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.

I am obliged to the staff members of the Madhu Limaye Library, for the timely and valuable
information provided by them in their respective fields. I am grateful for their cooperation
during the period of my assignment.

Lastly, I thank almighty, my family and friends for their constant encouragement without
which this assignment would not have been possible.

INDEX OF AUTHORITIES
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Cases

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454..................................................6

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454................................................11
Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287, 295-96...............................................................9
Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287..........................................................................10
Olga Tellis v. Bombay Municipal Corpn, (1985) 3 SCC 545, 571.........................................................9
R. Rajagopal v. State of T.N., (1994) 6 SCC 632, 649...........................................................................7
Statutes

Indian Penal Code 1860, s. 279...........................................................................................................14

Indian Penal Code 1860, s. 499...........................................................................................................12
Other Authorities

‘Press Council of India, Introduction (Press Council of India)

<http://www.presscouncil.nic.in/Content/1_1_Introduction.aspx>, as accessed on 30.10.2019......15
Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8 (Convention
for the Protection of Human Rights and Fundamental)
http://conventions.coe.int/Treaty/en/Treaties/html/005.htm, as accessed on 29.10.2019...................8
International Covenant on Civil and Political Rights 1966, art 17 (International Covenant on Civil and
Political Rights) <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>, as accessed on
29.10.2019.........................................................................................................................................8
Law Commission, 200th Report on Trial by Media: Free Speech v. Fair Trial Under Criminal
Procedure (Amendments to the Contempt of Court Act, 1971) (Law Com No. 17, 2006)..............11
Norms of Journalistic Conduct, r 6 (Press Council of India)
<http://www.presscouncil.nic.in/Content/62_1_PrinciplesEthics.aspx>, as accessed on 31.10.2019.
.........................................................................................................................................................15
U.P.: Panchayat to decide whether Aruna Shanbaug's assailant Sohanlal Valmiki can stay in Parpa
village’ (IBNLIVE, 1 June 2015) <http://www.ibnlive.com/news/india/up-panchayat-to-decide-
whether-aruna-shanbaugs-assailant-sohanlal-valmiki-can-stay-in-parpa-village-999683.html..........6
Universal Declaration of Human Rights 1948, art 12 (Universal Declaration of Human Rights)
<http://www.un.org/en/documents/udhr/index.shtml#a12>, as accessed on 28.10.2019...................7
Constitutional Provisions

Constitution of India, art 129...............................................................................................................16

Constitution of India, art 20(2)..............................................................................................................9
Constitution of India, art 21...................................................................................................................7
Constitution of India, art 253.................................................................................................................7
Constitution of India, art 39(a)..............................................................................................................9
Newsapaper Articles

Tabassum Barnagarwala,‘Between life and death for 42 long years, Aruna Shanbaug passes away’
The Indian Express (Lucknow, 19 May 2015) 1................................................................................6

TABLE OF CONTENTS
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INTRODUCTION.......................................................................................................................................2
PROTECTING REHABILITATED OFFENDERS: THE MANDATE IN CONSTITUTIONAL AND
INTERNATIONAL HUMAN RIGHTS LAW............................................................................................3
The First Ground: The Right to privacy...................................................................................................3
The Second Ground: Protecting the Right to life and personal liberty of a rehabilitated offender...........4
Third Ground: Protection from double jeopardy......................................................................................6
Fourth Ground: The reformatory goal of punishment..............................................................................6
PROTECTING REHABILITATED OFFENDERS: DRAWING AN ANALOGY WITH LAW
COMMISSION'S RECOMMENDATIONS ON MEDIA TRIAL...............................................................7
RESTRAINING IRRESPONSIBLE JOURNALISM: CRIMINAL PROCEEDING FOR
DEFAMATION UNDER THE PENAL CODE..........................................................................................8
RESTRAINING IRRESPONSIBLE JOURNALISM: IMPLEMENTING THE CONCEPT OF
‘SPENT CONVICTION’ IN THE INDIAN CONTEXT...........................................................................10
DRAWING UPON THE GUIDELINES AND POWERS OF THE PRESS COUNCIL OF INDIA.........11
CONCLUSION.........................................................................................................................................13

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 INTRODUCTION
When Aruna Shanbaug died after a long period of silent suffering in 2015 1, the media, in
a bid to provide its readers with information pertaining to this case, dug up all the legal issues
that were raised out of her suffering. The reason why Aruna Shanbaug case2 attracted
widespread attention was the brutal assault she had been subjected to, and the subsequent
petition for euthanasia, that triggered a lot of debate and discussion on the legal aspect of the
issue. So when she died, the media went back to its archives and brought out all the records
related to her case.

However, what was unusual was that the media reports also triggered a debate on whether the
person, who had committed the brutal assault on Aruna, and had been convicted for that
offence, should be tried for the offence of murder, now that Aruna had died. Obviously, the
legal experts were unanimous in their opinion on this issue: such a trial couldn't be allowed as
that would undoubtedly be a violation of the fundamental right against double jeopardy. In
India, the Constitution specifically provides that no one could be tried more than once for the
same offence.

This debate however, stimulated some investigative journalism on the part of the media
which traced the convict to his present residence and occupation. His photographs were
published and his take on the issue was also put forward. However, such reporting initiative
also had some undesirable effects: the convict lost his job and was forced to leave the village
where he had been residing.

The aforesaid chain of events following the death of Aruna Shanbaug raise an important issue
in respect of media investigations: the convict in this case had been released from jail in
19803, after he had served his punishment for the crime. So after a period of almost 35 years,
the media reporting has come to haunt him again and has actually deprived him of his
residence and means of livelihood. So the question that arises is very pertinent: should the
media be allowed to function in a way that could deprive a convicted person of his right to
life and personal liberty, even after a long period of time has elapsed since the convict had
been released after serving his punishment? In this project, an attempt has been made to find
an answer to this question.

1
Tabassum Barnagarwala,‘Between life and death for 42 long years, Aruna Shanbaug passes away’ The Indian
Express (Lucknow, 19 May 2015) 1.
2
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454
3
U.P.: Panchayat to decide whether Aruna Shanbaug's assailant Sohanlal Valmiki can stay in Parpa village’
(IBNLIVE, 1 June 2015) <http://www.ibnlive.com/news/india/up-panchayat-to-decide-whether-aruna-
shanbaugs-assailant-sohanlal-valmiki-can-stay-in-parpa-village-999683.html.

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 PROTECTING REHABILITATED OFFENDERS: THE MANDATE IN
CONSTITUTIONAL AND INTERNATIONAL HUMAN RIGHTS LAW
Before exploring the legal intricacies of an action against the kind of journalism that may
deprive a convict of his means of livelihood and residence, it is important to understand
whether our legal framework provides for the protection of a convicted person who has
served his entire sentence and has been rehabilitated. The answer to the aforesaid question, it
will be argued below, is in the affirmative. There are maximum four lines of arguments that
justify this stand.

The First Ground: The Right to privacy

Our Constitution guarantees the right to life and personal liberty to everyone. 4 And such a
right cannot be meaningfully exercised and realized if the privacy of an individual is not
preserved. The Supreme Court of India has time and again reiterated the aforesaid and has
upheld that the right to privacy is an integral element of the broader right to life and personal
liberty. In 1994, the then Supreme Court Judge, Jeevan Reddy summed up the concept of the
right to privacy in the following words:5

“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens
of this country by Article 21. It is a “right to be let alone”. A citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-
bearing and education among other matters. None can publish anything concerning the
above matters without his consent — whether truthful or otherwise and whether
laudatory or critical. If he does so, he would be violating the right to privacy of the
person concerned and would be liable in an action for damages.”

Our Constitution also empowers the Parliament to enact laws that are in compliance with
international laws and treaties.6 As the right to privacy has also been heralded as a human
right in several international conventions and treaties (including those to which India is a
signatory), there is a strong reason and legal basis for enactment of a law that would provide
protection to privacy of an individual. The Universal Declaration of Human Rights
(“UDHR”) recognizes the right to privacy expressly, as follows:

“No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks.”7

4
 Constitution of India, art 21.
5
R. Rajagopal v. State of T.N., (1994) 6 SCC 632, 649.
6
 Constitution of India, art 253.
7
Universal Declaration of Human Rights 1948, art 12 (Universal Declaration of Human Rights)
<http://www.un.org/en/documents/udhr/index.shtml#a12>, as accessed on 28.10.2019.

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In the International Covenant on Civil and Political Rights (“ICCPR”), the same right is
enshrined in the following words:8

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.

2. Everyone has the right to the protection of the law against such interference or
attacks.”

Similarly, the Council of Europe's Convention for the Protection of Human Rights and
Fundamental Freedoms provides for the protection of the right to privacy in the following
Article:

“1. Everyone has the right to respect for his private and family life, his home and his
correspondence.

2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”9

 The aforesaid goes to show that the right to privacy is now recognized as a fundamental legal
norm in international law. In the case of a convict whose case is the subject matter of the
present project, his right to privacy would encompass his identification as a convict. It may
be argued that the public has a legitimate interest in knowing about any convict, particularly
one who has been convicted of an assault. However, this right to be informed should be so
balanced against the right to privacy of the convict that it should not hamper the possibility of
his rehabilitation and in this regard, there is an imminent need to curb the right to freedom of
the press.

The Second Ground: Protecting the Right to life and personal liberty of a
rehabilitated offender
More than the right to privacy, the most obvious implication of right to life is the right to
means of livelihood and the State is responsible for ensuring that no one is unreasonably
deprived of adequate means of livelihood. Again, this principle is enshrined in our
Constitution, not only as a fundamental right but also as a Directive Principle of State Policy,
which reads as under:

8
International Covenant on Civil and Political Rights 1966, art 17 (International Covenant on Civil and Political
Rights) <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>, as accessed on 29.10.2019.
9
Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8 (Convention for the
Protection of Human Rights and Fundamental) http://conventions.coe.int/Treaty/en/Treaties/html/005.htm, as
accessed on 29.10.2019.

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 “The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of
livelihood;”10

 The Supreme Court of India has unequivocally ruled that the right to an adequate means of
livelihood is an integral part of the right to life:11

“The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does
not mean merely that life cannot be extinguished or taken away as, for example, by the
imposition and execution of the death sentence, except according to procedure
established by law. That is but one aspect of the right to life. An equally important facet
of that right is the right to livelihood because, no person can live without the means of
living, that is, the means of livelihood. If the right to livelihood is not treated as a part
of the constitutional right to life, the easiest way of depriving a person of his right to life
would be to deprive him of his means of livelihood to the point of abrogation. Such
deprivation would not only denude the life of its effective content and meaningfulness but
it would make life impossible to live.”

 Moreover, time and again, the same has been emphasized and reiterated as part of
international human rights law.

Even a convict, when he is sentenced to imprisonment, is only deprived of his right to liberty
and that too as per a just, reasonable and fair procedure established by law. Also, he is not
thereby deprived of his right to adequate means of livelihood (as he is duly compensated for
his prison labour).12. However, as has been observed in the case of the convict of Aruna
Shanbaug assault, the media reporting caused public censure, which not only deprived the
convict of his right to personal liberty but also caused his unemployment. His personal liberty
was curbed in so far he was forced to leave his erstwhile residence and the fact of his induced
unemployment points towards the loss of his means of livelihood. It is obvious that public
censure, induced by media reporting, doesn't amount to “just, fair and reasonable procedure
established by law”, and therefore, there is no way in which such deprivation as pointed out
above could be justified.

Third Ground: Protection from double jeopardy

Our Constitution specifically provides that no person shall be punished twice for the same
offence.13 This is an important aspect of the right to life which is the hallmark of all
fundamental and human rights, recognized throughout the world.

10
 Constitution of India, art 39(a)
11
Olga Tellis v. Bombay Municipal Corpn, (1985) 3 SCC 545, 571.
12
 Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287, 295-96.
13
 Constitution of India, art 20(2).

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In the case of the convict of Aruna Shanbaug assault, public censure and the subsequent
deprivation of job and residence amount to “punishment” for the convict. This is because a
penalty entails deprivation of liberty and the media reporting has exactly caused this through
public criticism, by imposing social stigma. Moreover, since the convict has already suffered
for the entire period of his punishment for the offence which he had committed, it is unfair to
so “punish” him again through the imposition of social stigma.

Our Constitution also prescribes that no person shall be subjected to a penalty greater than
that that to which he would have been subjected at the time of his committing the offence.
Now, subsequent to the commission of the offence, the convict was punished for the period
that was then prescribed in the law. But deprivation of his liberty after the expiration of more
than thirty years from the date when he has fully served his sentence, would amount to
imposition of a penalty greater than the one prescribed in the law and one to which he could
have been subjected to as per the law.

 Thus, in respect of this right, the media reporting can be seen as depriving the convict of the
human rights that he is entitled to by being a human being and thereafter, being an Indian
citizen.

 Fourth Ground: The reformatory goal of punishment

There has been a long and extensive debate on the issue of abolition of death penalty.
Even the international human rights law prescribes the objective of punishment to be
reformation and rehabilitation. Our Supreme Court has, time and again, reiterated that the
objective of punishment is to reform and rehabilitate the offender. In one of the cases, it was
observed:14

“It is thus plain that crime is a pathological aberration, that the criminal can ordinarily
be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that
leads to anti-social behaviour has to be countered not by undue cruelty but by re-
culturization. Therefore, the focus of interest in penology is the individual, and the goal is
salvaging him for society. The infliction of harsh and savage punishment is thus a relic of
past and regressive times. The human today views sentencing as a process of reshaping a
person who has deteriorated into criminality and the modern community has a primary
stake in the rehabilitation of the offender as a means of social defense.”

It is significant to observe, in the present case pertaining to the assault on Aruna Shanbaug,
that the convict had been released way back in 1980 when he had served his entire sentence.
It had been more than thirty long years during which he was absent from the media glare.
There are no reports, even in the investigative journalism of which the present study is so
critical, that he had committed any other offence. This raises a presumption of his
rehabilitation after his punishment. Perhaps this is a perfect case, where one could see that the
14
Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287.

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triumph of law in perhaps reforming a criminal. The natural consequence should have been
his assimilation into the society, and not contempt for him.

 However, the media reporting has defeated the object of the law by creating unnecessary
hurdles and impediment in the process of the assimilation of the convict. Though the death of
Aruna Shanbaug and her endless suffering were unfortunate, but it is also unfortunate for a
civil society to deprive an offender who has served his sentence, and is attempting to mend
his ways, of his right to the legitimate opportunity to be rehabilitated.

PROTECTING REHABILITATED OFFENDERS: DRAWING AN

ANALOGY WITH LAW COMMISSION'S RECOMMENDATIONS ON
MEDIA TRIAL
There is another justification for the argument that the State must protect the right to life
and liberty of rehabilitated convicts. This justification flows from the recommendations of the
Law Commission on media trial. 15 Although it must be conceded at the very outset that the
Law Commission's report is in respect of the protection of the accused, and not convicts, it
can be seen that the Law Commission did observe that during a subsequent trial, the
publication of the fact of previous conviction of the suspect or accused could amount to
contempt.

The rationale is simple: such publication is restrained because the fact of previous conviction
must not be so represented to unfairly influence the Judge trying the accused. Otherwise the
accused would be placed in a disadvantaged situation, and in effect his conviction at the
subsequent trial would then be seen as a result of the conviction for his previous offence,
which in fact, would be double jeopardy, albeit latent and indirect. Similarly, publication of
whereabouts of a rehabilitated offender would subject him to public censure and deprive him
of his right to life (as seen in Aruna Shanbaug case16), in a way punishing him for his
previously committed offence yet again. Hence, the analogy drawn here warrants the use of
the Law Commission's recommendations in justifying the need for constitutional and State
protection of rehabilitated offenders from media reporting exactly on the lines of the
protection that is extended to an accused who had been previously convicted in a case.

RESTRAINING IRRESPONSIBLE JOURNALISM: CRIMINAL

PROCEEDING FOR DEFAMATION UNDER THE PENAL CODE
Now that it is clear from the aforesaid analysis that the constitutional mandate requires
protection of the life and liberty of the convicts who have rehabilitated, the next question is in

15
Law Commission, 200th Report on Trial by Media: Free Speech v. Fair Trial Under Criminal
Procedure (Amendments to the Contempt of Court Act, 1971) (Law Com No. 17, 2006).
16
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454.

10 | P a g e
respect of the legal mode in which such protection could be ensured. One of the ways in
which the State could ensure such protection is by initiating a prosecution for defamation
against the media professionals/institutions that are responsible for triggering the public
censure for the rehabilitated convicts. Of late, there has been a lot of controversy about the
need for repealing defamation as an offence from the Indian Penal Code, 1860. However, the
present case is a perfect example of a situation wherein a person may have a remedy through
a criminal proceeding of defamation.

It is unreasonable to expect that a convict who has been deprived of his means of livelihood
would be able to initiate a suit of defamation against the large media houses in the country.
Moreover, even if we presume that such a state of affairs could somehow exist, there is no
assurance of his getting justice considering the fact that the law of defamation, as a civil
wrong, is not codified in India. And therefore, the outcome of such a civil suit would be
highly uncertain.

In contrast, a criminal proceeding of defamation would be prosecuted by the State on behalf

of the convict. Moreover, the provision dealing with criminal defamation in the Indian Penal
Code is quite comprehensive with all the exceptions and explanations laid down17. Thus a
criminal proceeding of defamation is more likely to deliver justice in the circumstances being
talked about, as compared to a civil suit.

Moreover, the provisions for the offence of defamation in the Indian Penal Code provide for a
possibility for protection of the rights of the rehabilitated convict. A perusal of the relevant
part of the provision would make things clear. The relevant part of section 499 is being
reproduced hereunder:

“499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs

or by visible representations, makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that such imputation will
harm, the reputation of such person, is said, except in the cases hereinafter excepted, to
defame that person18.

Explanation 4.—No imputation is said to harm a person's reputation, unless that

imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual
character of that person, or lowers the character of that person in respect of his caste or of
his calling, or lowers the credit of that person, or causes it to be believed that the body of
that person is in a loathsome state, or in a state generally considered as disgraceful.

First Exception.—Imputation of truth which public good requires to be made or

published.—It is not defamation to impute anything which is true concerning any person, if it

17
 Indian Penal Code 1860, s. 499.
18
Indian Penal Code 1860, s. 499.

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be for the public good that the imputation should be made or published. Whether or not it is
for the public good is a question of fact.”

Firstly, the reporting by the media could very justifiably be argued to be within the contours
of the offence of defamation. It may be argued further that that the convict has been deprived
of his means of livelihood owing to irresponsible media reporting points to the fact that the
media reporting lowered his character in the estimation of the members of the society.

 Moreover, the reporting by the media in this case doesn't qualify within the exception of
public good as the unnecessary reports of the present residence of the convict is not an
imputation of truth that was required to be made for public good. As the convict had already
been tried for his crime and had already duly served his sentence, there is no amount of
public good that could have been done now. Moreover, it has been over thirty years since the
convict had been released, and since there have been no imputation of another offence that he
might have been alleged to have committed, there is no legitimate public interest in knowing
about his present whereabouts. Also, since he was definitely not absconding in relation to any
case, this reaffirms the futility of such extensive media coverage of his present whereabouts.

 All the aforesaid goes to show that a proceeding for criminal defamation is highly likely to
restrain media houses in their unreasonable reporting and journalistic practices. Therefore,
undertaking prosecution under the provision for defamation under the Indian Penal Code is
one way in which the State could protect the rights to life and liberty of rehabilitated
convicts.

RESTRAINING IRRESPONSIBLE JOURNALISM: IMPLEMENTING

THE CONCEPT OF ‘SPENT CONVICTION’ IN THE INDIAN
CONTEXT
In the United Kingdom, the concept of “spent conviction” aids the plaintiff-convict if he
had initiated a suit for defamation. In fact, the defenses in an action for defamation would not
be available to the defendant if it is established that the publication was made with malice.
The relevant provision is being provided hereunder:

“Defamation actions

(1) This section applies to any action for libel or slander begun after the
commencement of this Act by a rehabilitated person and founded upon the
publication of any matter imputing that the plaintiff has committed or been
charged with or prosecuted for or convicted of or sentenced for an offence which
was the subject of a spent conviction.

12 | P a g e
 (5) A defendant in any such action shall not by virtue of subsection (3) above be
entitled to rely upon the defense of justification if the publication is proved to
have been made with malice.”

There are two difficulties that lie in the idea of India exactly enacting a similar provision in
the Indian context. They are as follows:

a.) Firstly, as already argued in this paper earlier, it is unreasonable to presume that the
convict will be able to file a civil suit for defamation, considering the socio-economic
context of the offenders in India. Instead, the Indian legal provision should be drafted
in a manner consistent with the provision for criminal defamation in the Indian Penal
Code.

In light of the above, it is suggested that the proposed law should make a reference to
section 499 and 500 of the Indian Penal Code. This could be in addition to a provision for
a civil suit of defamation. In other words, it is suggested that the benefit of a provision
similar to that which is in effect in the United Kingdom should be available in India, not
only in a civil suit but also in a criminal proceeding for defamation.

b.) Secondly, it will be difficult to establish “malice” in cases of irresponsible journalism,

which is the requirement in the United Kingdom Act's provision. The state of mind
here is not necessarily malice but that which could be termed as recklessness. It must
be accepted that media persons will not have malicious intent in defaming the convict.
But their utter disregard for the ethics of journalism result in deprivation of life and
liberty of the rehabilitated convict, despite their being aware of the consequences of
such irresponsible journalism. This could be compared with the criminal liability for
rash driving. In the offence for rash driving 19, the offender could not be made liable
for “malice” but is punished for the utter disregard for the safety of the people driving
and walking nearby. Therefore, in the criminal proceeding for defamation, the state of
mind should be recklessness. In such a case, if it is established that the convict's
livelihood was endangered owing to reckless journalism on the part of the defendant,
then the defenses of defamation would not lie against the plaintiff-convict.

DRAWING UPON THE GUIDELINES AND POWERS OF THE PRESS

COUNCIL OF INDIA
It is often argued as part of jurisprudence that law is ineffective without sanctions. If we
look at traffic laws, most of the guidelines therein are bereft of any ethical element, yet
offences have been defined together with punishment for better enforcement of these
guidelines to ensure that the traffic is in order. This implies that there are greater chances that
guidelines could be effectively enforced if they are supported by effective sanctions.
19
 Indian Penal Code 1860, s. 279.

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 In view of the abovementioned idea, it may be argued that the rights of rehabilitated convicts
in India could be duly protected if certain press regulation guidelines that already exist could
be provided with sanctions for enforcement. For this, it needs to be assessed that what are the
guidelines on media that could thus be used to protect the interest of rehabilitated convicts
against irresponsible journalism.

In India, the Press Council of India is the statutory, quasi-judicial authority that acts as the
watchdog of the media in the country.20 It was established in 1966 and currently functions
under the mandate of the Press Council Act, 1978. The Press Council is empowered under the
law to lay down code of ethics to be followed by the journalists and other media
professionals. The Press Council Act, 1978 reads:

Objects and functions of the Council

The Council may, in furtherance of its objects, perform the following functions,
namely to build up a code of conduct for newspapers, news agencies and journalists
in accordance with high professional standards;”34

 Some of these guidelines that have a bearing on the case of reporting of rehabilitated
offenders, albeit indirectly, are being explored here.

 The list of the Principles and Ethics issued by the Press Council accords importance to the
respect for the right of privacy. The guidelines are reproduced hereunder:

“Right to Privacy”

i) The Press shall not intrude or invade the privacy of an individual, unless outweighed
by genuine overriding public interest, not being a prurient or morbid curiosity. So,
however, that once a matter becomes a matter of public record, the right to privacy
no longer subsists and it becomes a legitimate subject for comment by the Press and
the media, among others. Special caution is essential in reports likely to stigmatize
women. Explanation: Things concerning a person's home, family, religion, health,
sexuality, personal life and private affairs are covered by the concept of PRIVACY
excepting where any of these impinges upon the public or public interest.”21

And consistent with the analysis of the right of privacy earlier in this project, it can be argued
that the relevant guidelines have significance in the context of reporting the whereabouts of
rehabilitated convicts, once they have been released after completion of their sentence.

20
‘Press Council of India, Introduction (Press Council of India)
<http://www.presscouncil.nic.in/Content/1_1_Introduction.aspx>, as accessed on 30.10.2019.
21
Norms of Journalistic Conduct, r 6 (Press Council of India)
<http://www.presscouncil.nic.in/Content/62_1_PrinciplesEthics.aspx>, as accessed on 31.10.2019.

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 Despite the fact that the aforesaid guidelines protect the interest of rehabilitated offenders,
the effect is only indirect and hence weak. And therefore perhaps, the guidelines have failed
to discourage the media professionals from undertaking irresponsible journalism. One of the
reasons is also the lack of adequate powers with the Press Council to deal with such cases by
itself. Although it has issued the guidelines requiring press to respect the right to privacy of
individuals, it is not adequately equipped under its parent statute to strictly enforce its
guidelines. The most it can do is to warn, admonish or censure the press. However, these are
inadequate means of enforcement.

 In view of the aforesaid limitations of the Press Council's guidelines and the powers of the
Press Council to enforce its guidelines, it is suggested that a comprehensive legal measure
should be provided for to rein in the overenthusiastic but irresponsible journalism in respect
of rehabilitated convicts.

 One manner in which the aforesaid limitations could be remedied is by equipping the Press
Council with the power to punish for violation of its guidelines akin to a power to punish for
contempt, which is vested in courts of record, like the Supreme Court 22. This could be
justified on the basis of the fact that as a matter of convention, all the persons who have
chaired the Press Council since its inception have been members of the judiciary (in
particular, sitting/retired Judges of the Supreme Court of India) and therefore it could be
presumed that being well versed with the content of the powers of contempt and the mode of
their exercise, the chairperson, being a judicial member, would be best circumstanced to
exercise like powers reasonably.

 Moreover, the exercise of such powers to punish could be limited to only pre-specified
situations of violation of Press Council's guidelines. And one such guideline could be made to
pertain to the protection of the rehabilitated offenders. Therefore, in effect, first of all,
specific guidelines should be introduced prohibiting journalism that impinges on the right to
privacy of rehabilitated offenders, and then powers should be conferred upon the Press
Council to effectively enforce such guidelines. In the alternative, to do away with the
concerns of creating an all-too powerful Press Council, the Parliament could enact specific
laws with specified penalties in respect of the irresponsible journalism that defames the
rehabilitated offenders.

CONCLUSION
Of late, “media trial”, as a term, has been associated with media publishing reports about
a suspect or an accused before his trial has ended. However, as this paper demonstrates,
irresponsible media reporting could adversely affect a person even after he has served his

22
Constitution of India, art 129.

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sentence, long time after his trial has already ended. The paper analyses the adverse effects in
terms of the deprivation of the fundamental rights of a convict, who has perhaps rehabilitated.

 From the analysis above, it can be concluded that there is an urgent need to restrain the
media in its unusual zeal to provide information about such convicts. This conclusion is
reinforced in view of the fact that today, media reports have a far greater influence than they
had in the past-the advent of social media-Facebook, Twitter, Google-has made proliferation
of information easier and faster, coupled with the fact that the information, once put into
motion, cannot be withheld over internet later.

 It must be realised that the freedom of speech and expression, enshrined as a fundamental
right in our Constitution, is not an absolute right and it must be restrained in favour of the
right to privacy of others-in this case, a rehabilitated offender. This standard is required to be
enforced considering the fact that a failure in the process of rehabilitation could result in
disruption of public order (public order is a ground on which freedom of speech and
expression can be reasonably restricted). This is obviously in addition to the law's concern to
prevent defamation of the rehabilitated convict.

 Press Council's guidelines, although worded in general terms, in respect of protection of the
right to privacy, could be used to protect the rehabilitated offenders, by supplementing them
with adequate penalties that could be used to restrain media. Alternatively, specific
provisions could be made for the protection of rehabilitated convicts, and media reporting
depriving them of their right to life and liberty could be penalized (this may require
enactment of a special legislation on the lines of the law that has been enacted in the United
Kingdom and described in this project).

 Rehabilitation of offenders is a subtle process, which fulfils the reformatory goal of

punishment. Therefore, the State has a legitimate interest in ensuring that rehabilitation of
offenders is not unduly interfered with, as rehabilitation goes a long way in reforming, not
only the convict, but also the society as a whole. Moreover, the State is constitutionally
bound to protect a convict's right to livelihood once he has served his sentence. Therefore,
“media overreach” must be curtailed to the extent that it unduly interferes with the State's
obligations.

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