Expression By Media Regarding Guilt Or Innocence Of Party In Criminal Case Before Authoritative Pronouncement Not Protected Under Article 19(1)(a) Of Constitution: Kerala HC

The Kerala High Court held that the expression by media regarding the guilt or innocence of a party in a criminal investigation or a case pending adjudication before an authoritative pronouncement is made by the adjudicatory forum is not protected under Article 19(1)(a) of the Constitution.

The Court held thus in a batch of Writ Petitions raising an interesting question regarding the scope, content, and extent of the Right to Freedom of Speech and Expression.

A Full Bench comprising Justice A.K. Jayasankaran Nambiar, Justice Kauser Edappagath, Justice Mohammed Nias C.P., Justice C.S. Sudha, and Justice Syam Kumar V.M. observed, “In the context of reporting facts relating to criminal investigations or cases pending adjudication before the various adjudicatory forums, the right of the media to freedom of speech and expression under Article 19(1)(a) would be further de-limited by their obligation to defer to the principle of separation of powers that is recognised under our Constitution. The said principle, coupled with the concept of rule of law, mandates that the final and authoritative determination of guilt or innocence can be pronounced only by a judicial authority. Therefore the expression by the media of any definitive opinion regarding the guilt or innocence of a party in a criminal investigation or a case pending adjudication, before an authoritative pronouncement is made by the adjudicatory forum concerned, would not get the protection under Article 19(1)(a) of the Constitution.”

Advocate Johnson Manayani represented the Petitioner while Advocate General K. Gopalakrishna Kurup, Senior G.P. V. Manu, Senior Advocates N.N. Sugunapalan (Amicus Curiae), Elvin Peter P.J., and R. Lakshmi Narayan represented the Respondents.

Factual Background -

The writ petitions raised an interesting question as regards the scope, content and extent of the right to freedom of speech and expression enuring to the media when they report facts about ongoing criminal investigations or the proceedings in cases pending adjudication before the various adjudicatory forums in the country. The writ petitions were initially considered by a Full Bench of the High Court. However, by an order in May 2018, the Full Bench took the view that in the light of an earlier decision of another Full Bench of the Court in S. Sudin v. Union of India and Others [2015 (2) KLT 296 (FB)], these matters needed to be referred to a Larger Bench of five Judges for consideration. It was thus, and pursuant to an order of September 2024 passed by the Acting Chief Justice, that these matters were before the Court.

The following six issues were framed earlier for consideration by the Full Bench –

1. Whether the existing regulations are sufficient to keep the media and press within the bounds of Article 19(2) of the Constitution of India?

2. Does the case reported in (2012) 10 SCC 603 Sahara India Real Estate Corporation's case finally decide on the powers of the Court to frame guidelines for reporting/publishing the Court proceedings? If not, whether it is necessary to frame guidelines by the High Court?

3. Whether the fundamental right guaranteed under Article 19(1)(a) of the Constitution of India is available to Media Institutions/Corporation apart from citizens?

4. Whether a Media room available to news reporters in the Supreme Court is to be provided for in the High Court also?

5. Are the Press and Media Institutions under an obligation to publish true and correct version of the news? If so, can the media project their own policies and views as part of the news?

6. In terms of Article 19(1)(a) of the Constitution of India, are not the citizens entitled to know the true and correct events covered by the news items and to insist for true and correct reporting?

However, the Full Bench later referred this matter to a Larger Bench since it noticed that another Full Bench of the Court had held that a writ cannot be issued directing the media to adhere to Norms of Journalistic Conduct. Hence, these questions were required to be answered by the Larger Bench – (i) whether the print and electronic media have unlimited and unrestricted freedom to publish details of criminal cases pending their investigation and trial, (ii) whether any restriction in that regard can and ought to be put in place by this court? and (iii) whether the High Court can frame guidelines regarding reporting of criminal cases at the stage of investigation and trial?

The High Court in the above regard, noted, “What is of significance, however, is that the single proportionality standard is used to test whether the fundamental right in question can be restricted for the sake of State interest and if it can, whether the measure used to restrict the right is proportional to the objective.”

The Court emphasised that the right of the media to freedom of speech and expression under Article 19(1)(a) cannot be restricted save by a law made by a competent legislative body, and even thereunder only on the grounds expressly mentioned in Article 19(2) of the Constitution.

“The right to freedom of speech and expression under Article 19(1)(a), like any other constitutional right, has a content that is determined by the inter-play of that right with the rights granted to others under the Constitution, as also by the obligations imposed under the Constitution on the rights holder. In other words, the ideals, values and concepts under the Constitution, the rights conferred on others thereunder, and the duties imposed on the right holder itself under the Constitution, serve to delimit the particular right and determine its content, scope and extent”, it added.

The Court further elucidated that where an aggrieved individual can establish that his/her right to dignity/reputation traceable to Article 21 of the Constitution has been, or is likely to be infringed by the actions of the media, he/she can approach a Constitutional Court which can forge a suitable measure to either prevent or contain the damage occasioned by the breach of that right, by relying on the precedent in Sahara case.

“In the case of a conflict arising between the right of the media to freedom of speech and expression under Article 19(1)(a), and the right of an individual to his/her dignity or reputation that is traceable to Article 21 of the Constitution, the former has to be seen as controlled not only by the latter, but also by the ideals, values, concepts and fundamental duties recognized under the Constitution which are equally binding on the media. The right under Article 19(1)(a) thus gets correspondingly delimited and, in appropriate cases, must yield to the right of the individual under Article 21 of the Constitution”, it remarked.

Accordingly, the High Court answered the reference and disposed of the Writ Petitions.

Cause Title- Dejo Kappan v. Deccan Herald & Ors. (Neutral Citation: 2024:KER:82715)

Appearance:

Petitioner: Advocates Johnson Manayani, Benhur Joseph Manayani, and Jeevan Mathew Manayani.

Respondents: Advocate General K. Gopalakrishna Kurup, Senior G.P. V. Manu, Senior Advocates N.N. Sugunapalan (Amicus Curiae), Elvin Peter P.J., R. Lakshmi Narayan, CGC Suvin R. Menon, SC P.C. Chacko, Advocates R. Ranjante, P. Aniyan, G. Biju, Benoj C. Augustin, V.B. Hari Narayanan, Jomy George, S. Jiji, Kaleeswaram Raj, J. Kasthuri, Legith T. Kottakkal, Millu Dandapani, V.V. Nandagopal Nambiar, Nagaraj Narayanan, K.P. Pradeep, V. Renju, Ruby P. Paulose, M. Rajagopalan Nair, Ron Bastian, V. Raima Ramesh, Sebastian Paul, Sebastian Thomas, Saijo Hassan, Sreekala Krishnadas, Sebin Thomas, Sabeena P. Ismail, Sajna T. Ummer, S. Vinod Bhat, Vivek V. Kannankeri, Vishnu Bhuvanendran, P.C. Sasidharan, and C.P. Udayabhanu.

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