The judgment of the Constitutional Bench of the Supreme Court which has created a right in the accused or an aggrieved person to live in peace free from the troublesome worries of media trial is being critically looked into in this story

The unending saga of the conflict between the freedom of speech and expression and the right to fair trial has yet again surfaced and shifted centre stage of public debate. The most cherished hallmark of a free democratic society viz. freedom of speech and expression seems to be under undue strain from various quarters, including the latest salvo by the Hon’ble Apex Court.

In what may seem to be a juggling out by the Supreme Court, on the issue of media coverage of sub judice matters, the outcome is rather an ambiguous one.

The five-Judge Supreme Court bench in Sahara v. SEBI has recently (on Sep. 11, 2012) sought to draw a blurred demarcation between the “possible”, an increasingly narrowed ambit of media reporting and the “impermissible”, a correspondingly widened sphere of judicial intervention through prior restraint of media coverage of proceedings in courts, in case it is considered to be prejudicial to the interests of the parties and thereby to justice.

The judgment has thus conferred a significant right to the accused or aggrieved person, who apprehends an infringement of law under Article 21 as regards fair trial, to approach the appropriate writ court and seeks an order of postponement of offending publication/broadcast or of reporting of certain phases of trial. The court may then grant such preventive relief after considering the relative strengths of right to fair trial vis-à-vis freedom of speech and expression, in case of real and substantial risk of prejudice to proper administration of justice or to fairness of trial. It may be noted here that even fair and accurate reporting of a trial is a cause of concern to the judiciary.

The ratio is clearly at variance from the larger nine-Judge Constitution Bench, the Supreme Court case of Naresh Shridhar Mirajkar vs. State of Maharashtra (AIR 1967 SC 1) wherein it was held that ‘save in exceptional circumstances, proceedings of a court of justice should be open to public’.

“Open Justice” is a concept that provides the basis of functioning of the superstructure of courts in India, thereby contributing immensely towards strengthening the democratic fibre of the country. The transparency in the working of the court system is basically conveyed through the instrumentality of the media that helps in the dissemination of information to the citizens and furthers their confidence in the effectiveness of the dispute resolution public forum. Thus, landmark cases come to public knowledge.

Right to information (RTI) is today a key component in the array of fundamental rights in India. Access to information of judicial proceedings should therefore not be obstructed by a ‘curtain’ drawn to shelter the same on the behest of those able to utilise such a provision to their advantage.

There are enough legal measures to combat any perceived menace of media coverage becoming irresponsible. Article 19 (2) is in the nature of reasonable restrictions including ‘contempt’ as a ground for curtailment of freedom of speech and expression guaranteed by Article 19 (1)(a) of the Indian constitution. The Contempt of Courts Act, 1971, enumerates civil and criminal contempt and prescribes deterrent punishment in respect of them.

In the case of prejudicial reporting on sub judice matters, the main legal remedy then is the power of the judges to punish for contempt. There is moreover, the power of the court under Civil Procedure Code (Order XXXII-A)to extend in camera proceedings to an appropriate case especially relating to family matters or under Criminal Procedure Code in relation to sexual criminal offences.

The court systems in Canada, Australia etc., having availed of postponement orders more frequently, are often cited as examples for introducing a similar mechanism in India too. It must be remembered that the attempt there is to insulate the citizen-juror from any susceptibility from adverse press reportage while in India, the presence of independent and impartial judiciary pre-empts any such fear.

It is nonetheless imperative that media discharges its vigilant role in a democratic, constitutional set up, in a forthcoming and responsible manner and not with a tendency to scandalise and sensationalise. Here, self- regulation by the media becomes an essential perquisite to obviate even the cognitive speculation of prescribing guidelines. In fact, Press Council of India, Editor’s Guild etc. provide the internal mechanism of adherence to ethical standards (verification of facts etc.) and self-discipline of the media.

In case, however, the media oversteps its framework of responsibility it is possible for judiciary to intervene and restrict the freedom through the provisions of ‘existing’ law.

Unfortunately, the said judgment seeks to introduce a restrictive measure on freedom of speech and expression, of media coverage of proceedings in court in anticipation of wrongdoing of justice, as though not sure of its own treatment of matter on hand. It may in turn undermine the confidence of the common man in the efficacy of the justice delivery system to mete out justice in a transparent manner and an alternate paradigm may emerge whence justice is done in private.

In its attempt to plug an apparent loophole, the judiciary may be paving the way to a floodgate of postponement of coverage by media of trials in various cases, which shall result inevitably in a larger damage to the robust, vibrant freedom of expression enjoyed by different forms of media, including the press in Indiaso far.