While observing that freedom of speech and expression is not an absolute right under the Constitution, the apex court said journalists should understand the 'lakshman rekha' so that they do not cross the line of contempt
New Delhi: The Supreme Court on Tuesday laid down a constitutional principle where aggrieved parties can seek from appropriate court the postponement of the publication of court hearings and a decision taken on a case-by-case basis, reports PTI.
The court, however, refrained from framing broad guidelines for reporting of sub-judice court matters, saying it cannot be done 'across the board'.
The bench observed that freedom of speech and expression is not an absolute right under the Constitution and the journalists should understand the 'lakshman rekha' so that they do not cross the line of contempt.
A five-judge bench headed by Chief Justice SH Kapadia said it was laying down the constitutional principle which will allow the aggrieved parties to seek from appropriate court the postponement of the publication of court hearings.
The bench said the concerned court will decide the question of postponement of reporting court proceedings on case-by-case basis.
"We are not framing guidelines but we have laid down constitutional principle and appropriate writ courts will decide when the postponement order has to be passed on case-by -case basis," the bench also comprising justices DK Jain, SS Nijjar, Ranjana Prakash Desai and JS Khehar said.
"Hence, guidelines on media reporting cannot be framed across the board," the bench said.
While propounding the doctrine of postponement of publication of court proceedings, the bench said it is a preventive measure and not a prohibitive and punitive measure.
It further said that temporary ban on publication of court proceedings is necessary to maintain balance between freedom of speech and fair trial for proper administration of justice.
The bench said the postponement of publication of court proceedings would be required where there is a substantial risk of prejudicing the trial and administration of justice.
Further the CJI, who read the judgement, said reasonable restrictions on reporting of court proceedings were needed for societal interest and this doctrine of postponement is one of "neutralising technique".
The apex court has undertaken the exercise of framing guidelines after receiving complaints of breach of confidentiality during the hearing of a dispute between Sahara Group and market regulator SEBI.
The issue of breach of confidentiality came up when certain documents regarding the dispute between Sahara and SEBI were leaked to the media.
However, once the hearing had started from 27th March, the Court had expanded its ambit and gave opportunity to others who in the recent past had felt aggrieved due to the publication and broadcast of sub-judice matters.
The constitution bench relied on a catena of judgements from foreign countries like United States of America, England, Canada, Germany, Australia and New Zealand along with the judgements of Indian courts to arrive at a conclusion that postponement of publication of court proceedings in certain cases was necessary to strengthen the balance between free speech and fair trial for proper administration of justice.
It clarified that the order on postponement of publication of court proceedings has to be passed by the writ court subject to the twin test of necessity and proportionality.
The postponement of publication has to be for short duration without disturbing the essence of the proceeding.
While observing that the postponement of publication cannot be viewed as punitive measure, the bench said such steps are necessary to protect the journalists from venturing into the contempt area.
The bench had reserved its judgement on 3rd May after 17 days of hearing.
During earlier hearings, the bench had permitted all parties to present their views and subsequently the Press Council of India, the Editors Guild of India, the National Broadcasters Association and some national dailies and individual reporters had argued in the case opposing any regulation on media reporting.
While majority of the parties were of the view that the apex court did not have inherent powers to lay guidelines on the issue which falls in the domain of legislature, some had favoured guidelines to protect the interest of the litigants.
The bench had said it wanted to have a proper balance between Article 21 (Right to Life and Liberty) and Article 19 (1)(a)(Freedom of Speech and Expression) of the Constitution.
It had observed that its intervention is required to safeguard administration of justice in the absence of any specific law to regulate legal reporting and had came out with the idea of temporary ban on sub-judice matters which was opposed by journalist groups.
The powerful Public Health Foundation of India or PHFI is packed with corporate luminaries and India’s most powerful bureaucrats, international academics, Nobel prize winner Amartya Sen and global NGOs to enhance its credibility. But instead of being a shining example of smart policy making in the crucial healthcare segment, why does it appear dodgy about facts and economical with the truth?
Wrong facts, false information, changing descriptors (sometimes as an autonomous body, at others a public-private-partnership) in official communications—make for a rather dubious image for the powerful Public Health Foundation of India (PHFI). How and why is the government indulging in this obfuscation? Let’s look at more ways in which PHFI seems to be pulling the wool over the public’s eyes.
For starters, the government told Parliament and a parliamentary panel that PHFI would limit itself to public health education and, at the most, some research work that can be put to use in policy making. Specifically, it said, “…this experiment will be confined to the area of public (medical) education only”. But very swiftly, PHFI was turned into a virtual government body. It has been allowed to participate directly and widely in policy formulation, win very lucrative public procurement contracts without any competitive bidding, and even receive aid as part of the health-related agreements that the Centre signs with the foreign governments.
* PHFI acted as a secretariat for the High-Level Expert Group on Universal Health Coverage, chaired by its president Srinath Reddy at public cost. The report of this group is meant to be a blueprint for national health policy for many years to come.
* PHFI was chosen without any competitive bidding as technical partner in the National Initiative for Allied Health Services (NIAHS), an Rs1,100 crore project of the health ministry for expanding paramedical capacity. (The list of handsomely paid central and state projects that it has bagged is too long to be documented here.)
* PHFI received hefty funding from the Norwegian government as part of the Norway India Partnership Initiative (NIPI) for reduction of child mortality in five states.
Private body in public garb
The parliamentary panel was also given an exaggerated sense of government’s ability and intent to influence decision-making at the PHFI. It transpires that the government has never had any significant power—or even the intention—to influence any decision at PHFI. In fact, it does not have direct power to even convene a meeting.
PHFI’s rules limit the number of government representatives on the board and also give non-government members (read Big Business) the super-majority to decide who would be recognized as a “government representative”. For instance, “MS Ahluwalia is a member of the PHFI board as MS Ahluwalia, not as deputy chairman of the Planning Commission,” a counsel for PHFI informed the Central Information Commission (CIC) on 24th January at a hearing that this writer attended.
This is a new record of pushing powerful public servants into powerful bodies by inducting them in their “individual capacity”. It opens the doors to lawlessness and corruption and creates a situation, which the CIC termed as “untenable”.
“It is difficult to assume that senior public servants can be on the board of an organization like PHFI, which has numerous interactions with the government, in private capacity. In fact, this would necessarily imply a conflict of interest. The Commission can only assume that such public servants must necessarily be acting on behalf of the government, when they are required to take executive decisions as members of the board… Any other conclusion would be an improper slur on their integrity,” the CIC wrote in its decision of 14 February. This “improper slur on their integrity” was, nevertheless, written into the rules of PHFI with the connivance of the “senior public servants” themselves.
The government’s covert and overt support to PHFI has been deliberately obfuscated from the very beginning. In February 2006, Srinath Reddy, then head of the cardiology department at AIIMS, and RA Mashelkar, then secretary-DSIR, were encouraged to team up with Rajat Gupta, his two McKinsey colleagues and two corporate lawyers to register PHFI as a society. The Central Civil Services (conduct) Rules, 1964, don’t allow a government employee to form an organization that will replicate or resemble the work of his parent organization on a significant scale and explicitly prohibit him from soliciting funds.
Information obtained through RTI shows that Dr Reddy’s ‘deputation’ from AIIMS to PHFI —effected by a ministerial fiat—was irregular and arbitrary. The AIIMS rules do not allow any such deputation, nor was the proposal was ever placed before AIIMS governing body. Dr Reddy is currently drawing a salary of Rs 60lakh a year and has been provided bungalow accommodation for this job of improving public health and public finances. In fact, ‘deputations’ of all government employees to PHFI can only be regarded as illegal because PHFI does not fit the description of any organization to which rules would allow public servants to be seconded.
Information released by DSIR pursuant to an RTI query shows that it hastily certified PHFI as a Scientific and Industrial Research Organization (SIRO) without any worthwhile record of research work or visiting its facilities. Similarly, PHFI’s public health management courses have no recognition or accreditation from any statutory regulator in the country. This clearly raises several queries.
Whys and the wherefores
(a) Why would the government deceptively empower what is essentially a private club to make crucial decisions in the sensitive area of public health policy concerning a billion plus people?
(b) If the government really wanted a PPP to take care of India’s public health policy and administration, why didn’t it first create policy framework for its operation?
(c) Why did the government lavish vast public resources on an organization without demanding control, accountability and public audit?
(d) Why would the government parcel out the ability to influence public policy to chosen individuals based on their influence, connections, or ability to pay?
(e) Why would the government choose not to have the power to influence decision-making at PHFI (which is packed with big private business houses), when is contrary to notoriety acquired by our bureaucrats for never giving up power?
(f) How has the government addressed the possible conflict of Big Business on PHFI who have an incredible opportunity to further their interest?
g) A look at PHFI’s super powerful board of director will explain why the lack of clarity and transparency is so worrying. The board comprises NR Narayana Murthy, Dr Montek Singh Ahluwalia, Ashok Alexander from the Bill and Melinda Gates Foundation, Ms Mirai Chatterjee- SEWA, Dr Lincoln Chen-Global Equity Center, Harvard’s Kennedy School, Dr James W Curran- Dean, Rollins School of Public Health, Emory University, Dr Gary Darmstadt- Director, Bill & Melinda Gates Foundation, Dr Timothy G Evans-Dean, James P Grant School of Public Health, Bangladesh, Dr Vishwa Mohan Katoch-Director General, Indian Council of Medical Research, Uday Nabha Khemka -Vice Chairman, Sun Group, Gautam Kumra -Director, McKinsey & Company, Dr David Lynn-Director, Strategic Planning & Policy Wellcome Trust, Ms Kiran Malhotra-chairperson, AKM Systems Pvt Ltd, Dr Raghunath A Mashelkar-CSIR Bhatnagar Fellow, National Chemical Laboratory, Mr Raj Mitta-Chairman, Essential Value Associates Pvt Ltd, Mr Shiv Nadar -Founder, HCL, TKA Nair-Advisor, Prime Minister's Office, Dr Ravi Narayan -community health advisor, SOCHARA, Dr Peter Piot-director, London School of Hygiene & Tropical Medicine, PK Pradhan -Secretary, Ministry of Health, Dr Jagdish Prasad -Director General of Health Services, Ministry of Health, JVR Prasada Rao, UNAIDS India, Prof K Srinath Reddy -President, Public Health Foundation of India, Dr Y Venugopal Reddy-Former Governor, Reserve Bank of India, Dr Anil Seal-Director, Cambridge Commonwealth Trust, Dr Amartya Sen-Professor of Economics & Philosophy, Department of Economics, Harvard University, Dr Jaime Sepulveda-Executive Director, Global Health Sciences, University of California, Dr AK Shiva Kumar -Advisor, UNICEF, Mr Michel Sidibé -Executive Director, UNAIDS, Mr Harpal Singh-chairman, Fortis Healthcare (India) Ltd
These questions need to be answered in public interest by PHFI’s eminent board. The writer has written several letters of complaint to at least a dozen members of PHFI’s governing body, including Nair, Ahluwalia, PK Pradhan (Secretary Health), Amartya Sen and Mirai Chatterjee, but has not yet received acknowledgement from any of them.
This is the concluding part of a two-part series.
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(The writer is a Delhi-based freelance journalist who has written about PHFI in the past. He will have much more to say on the topic in the coming days. He has since made his formal complaint about forgery, in the form of first RTI appeal to PHFI.)
The year-long agitation, confined to Indinthakarai and nearby villages, spilled over to neighbouring Tuticorin district and was intensified after authorities announced loading of uranium fuel in the Kudankulam Nuclear Power Plant
Kudankulam (Tamil Nadu): An uneasy calm prevailed here on Tuesday with police tightening vigil as anti-nuclear protesters continued with their relay fast at Idinthakari, epicentre of protests against the Kudankulam Nuclear Power Plant (KNPP), condemning the action against anti-KNPP activists, reports PTI.
Police said the situation was calm but they are keeping a strict vigil. "Security has been stepped up," sources said.
Sources close to SP Udhayakumar, convener of People's Movement Against Nuclear Energy (PMANE), spearheading the protest against KNPP, said key leaders including him and Pushparayan, will court arrest by turning up at the Kudankulam Police Station tonight.
The agitation had turned violent yesterday when one person was killed in police firing when protesters tried to attack a police station at Manapad in Tuticorin district.
The year-long agitation, confined to Indinthakarai and nearby villages, spilled over to neighbouring Tuticorin district and was intensified after authorities announced loading of uranium fuel in the plant.
Police had also resorted to lathicharge and firing of teargas shells yesterday as the seashore in Indinthakarai village turned into a battlefield with clashes between protesters and police.
Slamming the police action, PMANE had yesterday launched a 48-hour relay fast against it.
A cameraperson of an English TV channel allegedly suffered injuries on the forehead during the melee in the police action. Channel authorities said a complaint has been lodged at the police station here.
Tirunelveli District Superintendent of Police V Bidari promised strong action by identifying the personnel involved in the alleged assault on the cameraperson..
Expressing solidarity with the protesters and condemning the police action, fishermen in southern districts are staying away from fishing today.
Situation in neighbouring districts is normal, according to police.
The anti-KNPP protest took a new turn when PMANE gave the call for a siege of the plant as a last-ditch effort to stall the Indo-Russian project after regulatory authorities gave their clearance for loading the uranium fuel in the first of the two reactors.
Around 4,000 security personnel, including Rapid Action Force, have been deployed in the area.
Tamil Nadu Chief Minister Jayalalithaa has defended the police action and appealed to people not to fall prey to the "designs" of anti-nuclear lobbyists and to maintain calm.
The first unit of KNPP was scheduled for commissioning in December last, but ran into trouble with locals demanding its scrapping on safety concerns.