REPORTING OF SUB JUDICE MATTERS AND FAIR TRIAL

Freedom of Press has not been explicitly mentioned as Fundamental Right under the Indian Constitution but it is implicit under Right to freedom and expression under Article 19 (1) (a) of the Constitution.

Right to freedom of press is not absolute right but subject to reasonable restriction under Article 19 (2) including on the ground of contempt of court. High Court and Supreme Court, being court of record, have contempt powers under Article 215 and 129 respectively. Further, Contempt of Court Act, 1971 regulates the contempt proceedings. Under Section 2 (c) (ii), interference with due court of judicial proceedings are covered under definition of “criminal contempt”. Under Section 2 (c) (iii) interference with administration of justice is covered under definition of “criminal contempt”.

Contempt of Courts Act, 1971 provides for several defenses. Section 3 protects innocent publications with interferes with course of justice of civil and criminal proceedings.  Section 4 protects and fair and accurate reporting of court proceedings except exceptions mentioned under Section 7.  Section 5 protects fair criticism of decided cases.

PUBLICATION OF COURT PROCEEDINGS AND FAIR TRIAL

Right to fair trial is enshrined under Article 21 of the Constitution. The fair trial includes presumption of innocence till proven guilty, open trial, speedy trial, legal representation etc.  The fair trial not only includes proceedings before the trial court but also investigation done by the police.

Right of freedom of press to publish report of court proceedings  implicit in Article 19 (1) (a) has to read harmoniously with right to fair trial enshrined under Article 21 of the Constitution as such reporting of court proceedings can  be regulated by the Courts if such reporting interferes with administration of justice.

There are several instances of media trial of a case for the sake of higher TRP, wherein the rights of accused are infringed.  Widespread perception of guilt of the accused person is created even before completion of trial.  Reputation of the accused as well as the Presiding Officer of the Court is damaged. In such circumstances regulation of reporting of the sub-judice matters becomes a necessity.

RIGHT TO PROHIBIT PUBLICATION OF COURT PROCEEDINGS

The Supreme Court in several judgments has held that Courts have inherent jurisdiction to prohibit temporarily publication of judicial proceedings to protect interest of justice and administration of justice.

The Supreme Court in A K Gopalan Vs. Noorden (1969) 2 SCC 734  held that such statements which could be prohibited temporarily would include statements in the media which would prejudice the right to a fair trial of a suspect or accused under Article 21 from the time when the criminal proceedings in a subordinate court are imminent or where suspect is arrested.

The Supreme Court held in Naresh Sridhar Mirajkar Vs. State of Maharastra (AIR 1967SC1) held that right to open justice in not absolute. It can be restricted by the Court in its inherent jurisdiction.  Temporary prohibition of publication of court proceedings in media to protect interest of justice and administration of justice cannot be said to be violative of Fundamental Rights under Article 19 (1) (a).

The Supreme Court in Sahara India Real Estate Corp Ltd. Vs. Securities & Exchange Board of India dealt extensively regarding reporting of  sub-judice matters and held that an order of postponement has to be passed only when other alternative measures such as change of venue or postponement of trail are not available. In passing such orders of postponement, courts have to keep in mind the principle of proportionality and the test of necessity. The applicant who seeks order of postponement of publicity must displace the presumption of open justice and only in such cases the higher courts shall pass the orders of postponement under Article 129/215 of the Constitution. Such orders of postponement of publicity shall be passed for a limited period and subject to the courts evaluating in each case the necessity to pass such orders not only in the context of administration of justice but also in the context of the rights of the individuals to be protected from prejudicial publicity or misinformation, in the other words, where the court is satisfied and Article 21 rights of a person are offended. There is no general law for courts to postpone publicity, either prior to the adjudication or during adjudication as it would depend on facts of each case. The necessity for any such order would depend on extent of prejudice, the effect on individuals involved in the case, the overriding necessity to curb the right to report judicial proceedings conferred on the media under Article 19 (1) (a) and the right of the media to challenge the order of postponement.

GUIDELINES OF REPORTING OF SUB-JUDICE MATTERS

Bombay High Court in Mr. Nilesh Navalakha Vs. Union of India :PIL (ST) No 92252 of 2020  considered the aspect of reporting of matters under investigation in respect of alleged suicide of actor Sushant Singh Rajput. The Bombay High Court issued several guidelines regarding reporting of matters under investigation. The Supreme Court as yet has not issued any comprehensive guidelines for reporting sub judice matters.

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