Bombay High Court balances free press vs fair trial, writes Olav Albuquerque

Judges have written reams on the independence of the judiciary while pontificating on freedom of the press. Judges mould and knead the Constitution, and specifically, the right to free speech and expression enshrined in Article 19 (1) (a), like malleable clay to suit the changing situation of society. While listening to contentious arguments, they have to balance conflicting rights of a free media versus the right to a fair trial of cheats, rapists, and economic offenders like Vijay Mallya and Nirav Modi.

So, the Bombay high court has used its discretion this week to refuse to prevent journalists from investigating crimes right after an FIR is lodged. For the benefit of laypersons, a criminal trial begins after the police file a charge-sheet, known as a final report, in legal parlance. This is when the role of the police ends and the public prosecutor (PP) takes over. The media not only reports on who was arrested, what their role was but occasionally converts suicides into murders. As in the case of the death of actor Sushant Singh Rajput.

TV panellists

The PP is usually a seasoned lawyer who is briefed by the police and conducts a trial after charges are framed before the court. At no stage can it be assumed that the rights of the accused are being jeopardised if the media investigates without bias. Lawyers are free to refuse to reply to questions from journalists either before or after charges are framed.

But unfortunately, many lawyers, some of them seasoned seniors who have practised for decades in the Supreme Court, appear on news channels to voice their opinions about the merits of a case even when the matter is being investigated. A few lawyers go ahead to proclaim their clients’ innocence on these news channels when the trial courts are seized of the matter.

After two news channels unleased a tirade against the alleged suicide of Sushant Singh Rajput, five petitioners filed PILs in the Bombay high court, which delivered an erudite thesis on freedom of the press versus the rights of the accused to a fair trial. Some of these petitioners sought that the media should not be allowed to comment and investigate on crimes after an FIR is lodged or an alleged criminal is arrested.

Refused reliefs

Refusing to grant these reliefs, a bench of the Bombay high court, comprising chief justice Dipankar Datta and Girish Kulkarni, declared the doctrine of postponement of reporting or by that yardstick, even commenting on heinous crimes cannot imply the stage when proceedings in a subordinate court were imminent or where the suspect was arrested after an FIR was recorded.

There being a clear definition of ‘contempt’ in the Contempt of Courts (CoC) Act, 1971, reading ‘criminal proceedings’ in section 3 to commence with the registration of an FIR, as suggested by the lawyer based on her reading of case law, would amount to rewriting of the statute, which is impermissible,” the judges declared.

“Significantly, this petitioner has not challenged the constitutional validity of section 3 of the CoC Act but still urges the Court to read down such provision in support of the proposition that criminal proceedings must be said to have commenced even when an FIR is filed and there is obstruction during the course of the investigation by the concerned police on account of irresponsible and misleading dissemination of news,” the judges declared.

Not well-regulated

This erudite judgment has recorded that electronic media, comprising over 1,500 channels, is not well-regulated because there are only two known private associations. The News Broadcasters Association consists of 26 broadcasters, who manage 77 channels. The maximum punishment for flouting their code of ethics is a fine of Rs 1,00,000, which is peanuts for most channels.

The judges recorded in their judgment the submission that Republic TV walked out of the NBA after it refused to tender an unconditional apology as directed by the News Broadcasting Standards Authority (NBSA), to set up a rival self-regulating National Broadcasters Federation, consisting of 60 channels.

The judges recorded their opinion that there was no doubt that freedom of speech and expression guaranteed to all citizens under Article 19 (1) (a) was being abused by the media and those whom they invited to voice their opinions on their channels during pending trials.

Investigative journalism

Were the judges to have accepted the plea to declare the rights of accused persons to a fair trial began after an FIR was recorded and even before a charge-sheet was filed, investigative journalism would have been stymied. Hence, criminals with links to those in power would have got off scot-free, while their victims were mentally harassed for decades, while appeal after appeal rose from the trial courts to the 25 high courts and then to the Supreme Court.

The petitioners and the two judges observed the media forms the fourth pillar of democracy, overlooking the fact that the Constitution does not mention the word ‘media’ because it is the same freedom of speech given to the ordinary paanwaala that the journalist exercises. His freedom is no more, no less. Trite expressions like the ‘fourth pillar of democracy are nowhere found in the Constitution’.

Journalists in India do not enjoy any privileges such as judges, MPs, ministers or governors do because the framers of the Constitution thought it fit to abstain from mentioning the word ‘media’ as part of Article 19 (1) (a) – unlike the U.S Constitution, which ensures the state can never enact laws to curtail press freedom.

Journalists’ so-called privileges of subsidised housing in ‘Patrakar Colonies’ have been extended by some state governments to favour ‘accredited’ journalists, just as the housing society for judges, known as the Nyaya Sagar Housing Society in the Bandra-Kurla Complex was allegedly built on land earmarked for housing weaker sections but was de-reserved in 2004 for the society to come up, according to activists.

Unbiased reporting

Leaving that aside, the judges have pointed out that the media must report news without mixing opinion and comments. This will ensure that the people can form their own opinions by watching the reportage on news channels. Wisely, the judges felt the guidelines framed by various bodies such as the Press Council of India and the NBSA, apart from others, were sufficient to regulate news channels and prevent media trials that would jeopardise the right to a fair trial.

Striking a magnanimous note, the judges warned two news channels which were competing with each other, to desist from displaying confessions on their channels but stopped short of issuing them show-cause notices for committing contempt of court. The judges said there was a need to interfere only in exceptional cases, where the rights of the accused were infringed.

The writer holds a PhD in law and is a senior journalist-cum-lawyer of the Bombay high court.

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