Freedom of speech includes press freedom, as the Supreme Court held in the Express Newspapers case as far back as in 1958.
Though the Indian constitution does not recognise freedom of the press as unambiguously as the US constitution, the Supreme Court has read an important status to it, not the least as reflecting the citizens’ right to know.
Pre-censorship of the written medium is impermissible, and even the visual medium cannot be censored beyond what is a reasonable restriction as per Article 19(2) of the constitution and thus incorporated in the Cinematograph Act or the Cable TV Networks Act.
Whether the press or media has crossed its legitimate boundaries is a perennial question. Recently, the Andhra Pradesh high court gagged all forms of media including the social media from publishing anything that relates to an FIR filed by the Anti-Corruption Bureau (ACB) Guntur.
Freedom of the press also came into focus before the Supreme Court in a case in which it restrained Sudarshan TV from airing its Bindas Bol programme “UPSC Jihad” on the grounds that it sought to vilify a community.
A clear and present danger to public health, safety or morals, such as falsely crying “fire” in a crowded theatre, or incitement to violence in a charged atmosphere, or a deliberate rumour that the village well is poisoned is like a spark in a powder keg and may warrant an injunction on an emergent basis. Another class of injunctions is in private civil actions for defamation, where it shall be refused if the defendant claims the defence of truth. The third class is an injunction given to protect fair trial from unwarranted media comment, often called ‘trial by media’.
Media freedom reflects the right of citizens to information, further crystalised by the enactment of the Right to Information Act in 2005. Access to unadulterated information and many shades of opinion is the essence of democracy.
In Brij Bhushan v the State NCT of Delhi the Supreme Court held that the pre-censorship of a journal was an unreasonable restriction on the liberty of the press.
In R. Rajagopal v State of Tamil Nadu, the court went on to rule that public officials, public acts and public record could not be protected from publication by injunctions except on specific points like the identity of a rape victim.
Having expanded on the right and indeed the duty of the media to inform the citizens, the Supreme Court has also repeatedly cautioned against media trials which might hamper the administration of justice. In R.K Anand v Registrar, Delhi High Court, it noted with some severity that free speech did not include the right to publish just any kind of report concerning a matter before the court or to carry out sting operations on some matter concerning a pending trial.
In Siddhartha Vashisht v State NCT of Delhi, the court made the important distinction between trial by media and informative media. The case of Sahara vs SEBI is a review of the case law on the point, and it reinforces the line between legitimate comment, and a usurpation that affects the presumption of innocence.
Is the difference between a legitimate comment and an unwarranted trial by media so vexed a question that it must repeatedly find its way to courts of law?
How then does the danger of a media trial play out, and what manner of restriction could prevent that?
The essential difference is captured by the terms used in the Sidharth Vashisht judgment, “informative expression” and “trial by media”. Where the people are informed of news and views, it is a legitimate expression that cannot be restrained, however unpalatable it may be to some.
When, however, the media either frontally or suggestively pronounces on the merits of a controversy at large in a court (often called the sub judice rule), it enters the province of courts. In criminal trials, if the media declares or builds public opinion on the guilt or innocence, it jeopardises the presumption of innocence, a right as important as free speech. Hence it is “trial” by the media, that it is neither competent nor permitted to hold.
In Mahmood Moosa Tarani better known as the Black Friday case, a film which was publicised as a “true account’ of the Bombay blasts was injuncted by the Bombay high court from being screened while the trial was on. The visual medium has been seen as more potent, and despite their training, judges could not be expected to remain immune from public opinion, roused to indignation by a purported exposure of those “truly” guilty”.
In Navin Jindal (2014) a gag order was refused but in Navin Jindal (2015), and Swantantra Kumar a limited restraint order was passed. These are examples of the Delhi high court issuing limited restraint orders in order to prevent pending proceedings (including investigation) from media assertions on character. But, none of these was a universal ban on reporting news, and the orders were issued only after reviewing what was published, and limited to specific aspects after hearing the publisher.
Most recently the Delhi high court on September 22, 2020, in the case of Harper Collins Publishers PVT Ltd v Sanchita Gupta @ shilpi and others was dealing with an ex parte injunction passed against a book on Asaram Bapu and his co-accused. While recognising the importance of the rights of individuals to reputation, the court held that if there is fair discussion, which is based on established facts and which is not ex facie malicious, there can be no bar on the discussion or publication.
Factual reporting of a criminal proceeding and a media trial are not the same. A media ‘trial’ happens when the media starts conducting parallel proceedings, and asserting its view as the correct view, over those statutorily entrusted with the task of investigation or adjudication. Reporting leaked information in ongoing investigations. if it prejudices the accused is also undesirable as observed in Romila Thapar v Union of India.
Simply put, a media trial ensues when the media seeks to appropriate the role of the courts in charging, convicting or acquitting the accused. As the Supreme Court said in Sahara v Sebi, that which affects the “presumption of innocence” must be injuncted, if there is an ongoing adjudication. However, a factual reporting is protected even by the Contempt of Courts Act.
The Criminal Procedure Code, 1973 deals with the investigation and prosecution of criminal offences. Broadly speaking, every criminal proceeding will have the following stages:
- Registration of FIR
- Filing of charge-sheet or closure report
- Conviction or acquittal.
The Andhra Pradesh high court has interfered at the stage of registration of the FIR by staying the investigation at its nascent stage and has gone beyond the relief claimed before it by issuing a total ban on publication in any manner in the public domain. It has interfered with the informative role of the media. In doing so, the high court acted contrary to the law settled by the Supreme Court. Once the FIR is registered, it comes into the public domain and becomes a matter of public record. As we have seen, the Supreme Court has held that there can be no objection to a publication which is based upon public records or court records and once information is in the public domain there is no right to privacy.
The law is also fairly well settled that an accused cannot seek to interfere with the manner of investigation or the mode of prosecution. The consequence of blanket gag orders in a democratic society are severe and have a chilling effect on the freedom of speech. Consequently, staying an investigation even before it starts and restraining any factual reporting about it is an excessive measure.
In conclusion, the courts must evaluate the consequences of a publication and the present and imminent danger to a fair trial and if the publication is purely factual in nature and based on public documents, it cannot constitute such a threat and consequently, blanket gag orders should not be issued.
Raghav Tankha is a lawyer practising in Delhi.