Freedom of Press is not specifically mentioned in Part III of Indian Constitution, however the Hon'ble Supreme Court in a number of judgments has recognized that freedom of speech and expression also includes freedom of press1. In rapidly changing socio-economic conditions of a country like India, the role of media/ press has gained prominence and hence it is often quoted that "Media" is the fourth pillar of Indian Democracy. According to criminal jurisprudence, a suspect/accused is entitled to a fair trial and is presumed to be innocent till proven guilty by a Court of law. None can be allowed to prejudge or prejudice his case till the completion of trial. However, media on account of excessive coverage goes beyond its domain and publishes and covers interviews of witness or relative of a victim and prejudges the issue of conviction of the accused while the matter is pending adjudication in a court of law. This has a tendency to prejudice the mind of Court, prosecutor and general public at large.
Art. 19(1)(a) of the Constitution of India guarantees, freedom of speech and expression and Art. 19(2) permits reasonable restrictions to be imposed. However Article 19(2) does not refer to 'administration of justice' but interference of administration of justice is clearly referred to in the definition of 'criminal contempt' in Sec. 2 of the Contempt of Courts Act,1971 and in Sec. 3 thereof as amounting to contempt. Therefore, publications/coverage which interfere or tend to interfere with the administration of justice amount to criminal contempt under the Contempt of Court Act and if in order to preclude such interference, the provisions of that Act impose reasonable restrictions on freedom of speech, such restrictions would be valid.
Under Article 19(1)(a) of the Constitution, the rights of the freedom of Press have been recognized as Fundamental Rights and under Article 21 of the Constitution the accused/suspect and under trial and the Civil litigant have Fundamental Right to have a free and fair trial3. Therefore balancing between the two fundamental rights has become inevitable and the time has come that Courts should give appropriate directions with regard to reporting of matters (in electronic and print Media) which are sub judice. When rights of equal weight clash, Courts have to evolve balancing measures based on re-calibration under which both the rights are given equal space in the Constitutional Scheme. In the Constitution of the United States of America, freedom of press is absolute and any interference with right of media to report, comment upon pending trial is illegal.
The Law Commission of India in order to harmonize the aforesaid two rights Freedom of Press Versus Right to free and fair trial, in its 200th Report4 submitted on 31st August 2006 recommended various amendments to the Contempt of Court Act 1971 and measures of postponement of proceedings and further said that such powers cannot be vested in the subordinate courts where the criminal proceedings are 'active'. This is because under the Contempt of Court 1971 Act, the subordinate courts have no power to take action for contempt. Under Section 15(2), they can only make a 'reference' to the High Court. Further, the balancing of the rights of freedom of speech and the due process right of the suspect/accused as explained in Maneka Gandh's5 case can be done more appropriately by the High Court which is a Constitutional Court. The High Court for the purpose of passing postponement orders will be a Bench of not less than two Judges.
However, it needs to be appreciated that Media also plays a good role while divulging corruption in government exchequer and in bringing out the government's inaction on many occasion to the lime light and eventually action is taken. But at the same time conflicts arise when media transgresses its domain and tries to usurp the power of judiciary and make judgmental comments on pending trials. But balancing between the rights of people to know and presumption of the accused to be innocent till he is found guilty by a competent court, has become inevitable but neck to neck competition regarding publication and coverage among various media houses having a tendency to interfere with administration of justice has become matter of concern for legislature as well as judiciary.
The Hon'ble Supreme of India in the matter Sahara India Real Estate Corporation Ltd. and Ors.Vs. Securities and Exchange Board of India and Anr6 Constituted the five judge Constitution Bench when during the pendency of appeal despite the interim order of the Court some of the news papers published the proceedings of the judgment, the Hon'ble Court laid down appropriate guidelines with regard to reporting in electronic and print media of matters which is sub judice in Court including public disclosure of documents forming part of Court proceedings and also the manner and extent of publicity to be given by print/electronic media of pleadings/documents filed in proceeding in Court which are pending and not yet adjudicated upon and the court suggested following measures:-
1. Prior restraint
"Open Justice" is the cornerstone of our judicial system. It instills faith in the judicial and legal system. However, the right to open justice is not absolute. It can be restricted by the court in its inherent jurisdiction as done in Mirajkar's case7 if the necessities of administration of justice so demand. That, such orders prohibiting publication for a temporary period during the course of trial are permissible under the inherent powers of the court whenever the court is satisfied that interest of justice so requires. Such a temporary prohibition of publication of court proceedings in the media under the inherent powers of the court cannot be said to offend Article 19(1)(a).
2. Contempt of Court Act , 1971
The media has a right to know what is happening in courts and to disseminate the information to the public which enhances the public confidence in the transparency of court proceedings. As stated above, sometimes, fair and accurate reporting of the trial (say a murder trial) would nonetheless give rise to substantial risk of prejudice not in the pending trial but in the later or connected trial. In such cases, there is no other practical means short of postponement orders that is capable of avoiding such risk of prejudice to the later or connected trial. The inaccuracy of reporting of court proceedings will be contempt only if it can be said on the facts of a particular case, to amount to substantial interference with the administration of justice. The reason behind Section 4 is to grant a privilege in favor of the person who makes the publication provided it is fair and accurate. This is based on the presumption of "open justice" in courts.
3. Order of Postponement of publication
Right to freedom of expression under the First Amendment in US is absolute which is not so under Indian Constitution in view of such right getting restricted by the test of reasonableness and in view of the Heads of Restrictions under Article 19(2). Thus, the clash model is more suitable to American Constitution rather than Indian or Canadian jurisprudence, since First Amendment has no equivalent of Article 19(2) or Section 1 of the Canadian Charter. This has led the American Courts, in certain cases, to evolve techniques or methods to be applied in cases where on account of excessive prejudicial publicity, there is usurpation of court's functions. These are techniques such as retrials being ordered, change of venue, ordering acquittals even at the Appellate stage, etc. In our view, orders of postponement of publications/ publicity in appropriate cases, as indicated above, keeping in mind the timing (the stage at which it should be ordered), its duration and the right of appeal to challenge such orders is just a neutralizing device, when no other alternative such as change of venue or postponement of trial is available, evolved by courts as a preventive measure to protect the press from getting prosecuted for contempt and also to prevent administration of justice from getting perverted or prejudiced.
4. Right to approach the High Court/ Supreme Court
In the light of the law enunciated hereinabove, anyone, be an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate Writ Court and seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the Court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the abovementioned principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial.
Though Media is the fourth pillar of Indian Democracy and under Article 19(1)(a) of the Constitution it has a fundamental right, but at the same time it cannot be allowed to transgress its domain under the garb of freedom of speech and expression to the extent as to prejudice the trial itself and the time has come to legislate to control the unfettered power of media.
Unlike American Constitution, Indian Constitution has wide power to impose restriction and control the power of media under article 19(2) of the Constitution. Recently it has also come to light that the media houses are making an arrangement with corporate houses for not reporting anything against them for immoral consideration. Thus while balancing between the two fundamental rights on account of excessive coverage in an appropriate case mode of prior restraint and self regulation should be effectively invoked and those who violate the basic code of conduct must be punished under Contempt of Court Act, 1971. When rights of equal weight clash, Courts have to evolve balancing techniques or measures based on re-calibration under which both the rights are given equal space in the Constitutional Scheme.
1 Indian Express Newspapers V Union of India 1985 SCR (2) 287
2 Bennett Coleman & Co. & Ors Vs Union Of India & Ors AIR1973 SC 106
3 Maneka Gandhi Vs Union Of India 1978 SCR (2) 621
5 1978 SCR (2) 621
7 Naresh Shridhar Mirajkar V. State of Maharashtra AIR 1967 SC 1
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