Media Giving "Definite Opinion" Of Someone's Guilt Or Innocence Pending Probe/ Trial Not Protected Under Article 19(1)(a): Kerala HC Full Bench

A five Judge of the 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, held that when an accused feels his right to reputation is infringed by the media, he can approach any constitutional court to prevent such act or demand compensation.

“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 guaranteed under Article 19 (1) (a) of the Constitution. The declaration of law as above is deemed necessary so as to guide the media in its exercise to right to freedom of speech and expression in situations where they deem it necessary to report facts relating to criminal investigations and cases pending adjudications before various adjudicatory forums in our country. Reference to the said declaration of law would go a long way in preventing unnecessary instances of breach of fundamental rights of individuals in society and hopefully will usher a new era of responsible journalism.”

The Court referred to the Supreme Court decision in Sahara India Real Estate v SEBI (2012) which held that a blanket regulatory measure will be considered as pre-censorship. The Court held that the determination on the regulation of media should be considered on a case–to–case basis.

The Court observed that there is an interplay between the right to speech and expression of media under Article 19(1)(a) and the right of reputation to an individual which can be traced to Article 21 of the Constitution.

“In the case of a conflict arising between the right of a media to freedom of speech and expression under Article 19(1)(a) and the right of an individual to his/ her dignity/ 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 recognised 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. In the context of reporting facts relating to criminal investigation 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 delimited by their obligation to defer to the principles of separation of powers that is recognised under our Constitution.”

The Court asked the media to be mindful of the limits so that it does not infringe on the right of the individual guaranteed under Article 21 of the Constitution. The Court stated that the media must make investigative stories predicting the result of a criminal investigation or an adjudication process using their personal opinions because it can affect the privacy of an individual. Additionally, the Court stated that such personal opinions by the media persons could also create doubt in the minds of the public if the adjudicatory forum reaches a different conclusion, as opposed to the opinion given by the media.

Court said, "In the matter of predicting outcomes of judicial proceedings, the press/media have to understand that their opinions in that regard have the propensity to influence the minds of those who read/view their reports/programmes and that, in the event of a contrary verdict being pronounced by the adjudicatory forum, there is a strong likelihood of public trust in the judicial process being eroded."

The Court passed the above judgment based on a reference order dated May 24, 2018, whereby three writ petitions were referred to the consideration of a larger bench based on an earlier decision of a Full Bench in Sudhin v Union of India (2015).

In Sudhin (supra), the Court was considering whether the media can be restrained from the publication of news or information regarding strikes and hartals. The three bench of the High Court held that every citizen has the right to publish his or her views through the printing and/or electronic media subject to reasonable restrictions imposed under Article 19(2) of the Constitution. It was stated that freedom of speech and expression is fundamental to a democratic country and media cannot be restrained using such prohibitions from publication or dissemination of information.

The writ petitions were filed seeking to impose restraints on the power of media to report facts about pending cases and ongoing criminal investigations that are pending before adjudicatory forums. It was stated that media do not have an unfettered right to declare the innocence or guilt of parties under the guise of freedom of speech and expression while a criminal case is pending before an adjudicating authority.

Detailed Order is awaited.

Case Number: WP(C) 21108/ 2014 & Connected Cases

Case Title: Dejo Kappan V Deccan Herald & Connected Cases