The much-awaited landmark decision by a five-judge bench of the apex court to minimise an ongoing conflict between media rights and fair trial under Article 21 of the Constitution of India has far-reaching consequences. The issue cropped up on a petition by M/s Sahara India Real Estate Ltd complaining breach of confidentiality by a news channel, which flashed details of a proposal between the parties pursuant to court order.
It is true that every day the media is accused by persons facing criminal investigation or trial. At times, the media also faces the court’s irk on the ground of interference in the dispensation of justice. The Supreme Court did observe that: “the trial by the press, electronic media or public agitation is the very antithesis of rule of law”.
It was against this broader background that the apex court was invited to lay down guidelines to regulate the two constitutional fields. In its exercise to arrive at a rational conclusion, the court adopted the middle path to balance the enforcement of media rights with a mechanism to check its abuse causing prejudice to individuals or tending to interfere in the justice delivery system. In its comparative analysis the existing approaches in the US, Canada, England, Australia and New Zealand have an impact on the outcome of the present judgement. Before referring to the Indian approach on the subject, it may be necessary to understand that, unlike the US, none of the constitutions, including that of India’s, has conferred freedom of press as an absolute right.
The right to access to justice has been well recognised worldwide and is a basic human right, propounded the bench and called for the postponement of publication to avoid risk of prejudice. So much so, that in appropriate cases initiation of possible contempt proceedings is not ruled out. The latest trend also reflects a shift in the American approach as well by devising a neutralising technology to strike a balance. But so far as prior restraint or censorship is concerned, there is no approval, rather the emphasis is on the self-regulation. Possibly, to meet this challenge, the electronic media voluntarily established the News Broadcasting Standards Authority, which is chaired by former Chief Justice of India JS Verma. He, too, in his address to the Federation of Indian Chambers of Commerce and Industry (Ficci) in December 2011 advocated self-regulation by the media.
Our experience has been that self-regulation is the most appropriate and effective mechanism and if it is diligently adhered to, the brunt of the sharp controversy would have come to an end, by respecting the rights of each other and remaining within its domain and jurisdiction.
Unlike the US, the framers of the Indian Constitution did not compartmentalise media protection, but by judicial interpretation, the fundamental right of freedom of speech of press has been established and recognised. The crucial role played by the media to expose any mischief or manipulation and, at times, issues raised to espouse the public cause creates a sense of confidence and is appreciated by the public at large. Equally, the assumption of power to conduct parallel investigation and trial without being authorised by law does invite public wrath. It is an accepted principle that the law permits prosecution and not persecution, a distinction essentially required.
Until recently, the reluctance to approach the court for the postponement of a publication, even temporarily, was due to lack of certainty of interference by the court because of apprehension of encroachment by the media. But this pronouncement permitting filing of cases for postponement or even for initiation of contempt proceedings would open a floodgate of litigation against media houses, editors/reporters and would be some kind of a curb on the so-called yellow journalism. Strictly, it is not a restraint or pre-censorship but a mild dose to media to imbibe self-discipline to understand and respect the rights under the Constitution and take a balanced approach in discharge of its greater obligation under freedom, which includes the public’s right to know.
KC Mittal is former chairman, Bar Council of Delhi
The views expressed by the author are personal