Freedom of Expression and Speech Not Absolute: SC

New Delhi
Freedom of Expression and Speech Not Absolute: SC
outlookindia.com
-0001-11-30T00:00:00+0553
The Supreme Court today refused to frame guidelines across the board for reporting sub-judice matters but laid down a constitutional principle enabling aggrieved parties to seek postponement of publication of court proceedings.

It also cautioned the media against crossing the 'lakshman rekha' (limits) on reporting sub-judice matters to protect itself from contempt action and observed that freedom of expression and speech is "not an absolute".

Evolving a doctrine of postponement as a "neutralizing device" to balance freedom of media and right of accused to have free trial, a five-judge constitution bench headed by Chief Justice S H Kapadia ruled that the media can be directed by the High Court or the apex court to defer the broadcast and publication of 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 D K Jain, S S Nijjar, Ranjana Prakash Desai and J S Khehar, said.

"Hence, guidelines on media reporting cannot be framed across the board," the bench said.

The bench said that trial by media interfers with the administration of justice and court can in those cases ask for postponement of reporting for a certain period saying that "presumption of innocence has been held to be a human right".

"Trial by newspaper comes in the category of acts which interferes with the course of justice or due administration of justice," the bench said, adding that "the object of contempt law is not only to punish, it includes the power of the Courts to prevent such acts which interfere, impede or pervert administration of justice".

The apex court's verdict comes against the backdrop of criticism of court coverage by aggrieved parties who complained that the publication of such reporting was coming in the way of a fair trial and hurting their interests.

The apex court said that the "postponement order is not a punitive measure", but a "preventive measure" and it would also protect press from getting prosecuted for contempt.

"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 would nonetheless give rise to substantial risk of prejudice not in the pending trial but in the later or connected trials.

"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 trials. Thus, postponement order not only safeguards fairness of the later or connected trials, it prevents possible contempt by the media," the bench said.

It, however, said that such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication.

"They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial, if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint.

"The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period," the bench said.

"It is important to bear in mind that sometimes even fair and accurate reporting of the trial (say murder trial) could nonetheless give rise to the real and substantial risk of serious prejudice to the connected trials," the bench said.

The postponement principle protects the media from getting prosecuted or punished for committing contempt and, at the same time, such neutralizing devices or techniques evolved by the courts effectuate a balance between conflicting public interests, it said.

It said that such orders should be passed by the High Courts and the Supreme Courts "only where there is substantial risk to administration of justice".

"Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice," the bench said.

"In our view, orders of postponement of publications/ publicity in appropriate cases 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," it said.
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