Media expressing a “definitive opinion” as to a person’s guilt or innocence Pending investigation/trial not protected under Article 19(1)(a): Kerala HC Full Bench

A five-judge panel of the court, comprising Justice AK Jayasankaran Nambiar, Justice Kauser Edappagath, Justice Mohammed Nias CP, Justice CS Sudha and Justice Syam Kumar VM, ruled that if an accused feels that his right to reputation is being violated by the media, he to approach a constitutional court to prevent such acts or seek compensation.

“The expression by the media of a definitive opinion as to the guilt or innocence of a party in a criminal investigation or a pending case before an authoritative ruling has been delivered by the relevant judicial forum would not be accorded the protection guaranteed by Article 19, paragraph 1. (a) of the Constitution. The statement of law as above is considered necessary to guide the media in their exercise of the right to freedom of speech and expression in situations where they deem it necessary to report facts relating to criminal investigations and pending cases to various judicial authorities in our country . country. A reference to the said statement of law would go a long way in preventing unnecessary cases of violation of the fundamental rights of individuals in society and will hopefully usher in a new era of responsible journalism.”

The Court referred to the Supreme Court’s decision in Sahara India Real Estate v. SEBI (2012), which held that a blanket regulatory measure will be considered pre-censorship. The Court ruled that the decision on media regulation must be taken on a case-by-case basis.

The Court noted that there is an interaction between the right to speech and expression in the media under Article 19(1)(a) and the right to reputation for an individual, which can be traced back to Article 21 of the Constitution.

“In the event 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/reputation, that to be applied to Article 21 of the Constitution, it must be seen that the former is governed not only by the latter, but also by the ideals, values, concepts and fundamental duties recognized in the Constitution and which are equally binding on the media. The right under Article 19(1)(a) is thus limited accordingly and must in appropriate cases give way to the right of the individual under Article 21 of the Constitution. In the context of reporting facts relating to criminal investigations or cases pending before the various judicial authorities, the right of the media to freedom of expression under Article 19(1)(a) would further are limited by their obligation to defer freedom of expression. the principles of separation of powers recognized in our Constitution.”

The Court asked the media to take the limits into account so that they do not infringe on the right of the individual guaranteed by Article 21 of the Constitution.

The Court passed the above judgment on a reference order dated May 24, 2018, whereby three writ petitions were referred to the hearing 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 considered whether the media can be restrained from publishing news or information about strikes and hartals. The three courts of the Supreme Court ruled that every citizen has the right to publish his or her views through the print and/or electronic media, subject to reasonable restrictions imposed under Article 19(2) of the Constitution. It was stated that freedom of expression is fundamental to a democratic country and that the media cannot be restricted through such bans on the publication or dissemination of information.

The writ petitions have been filed to impose restrictions on the power of the media to report facts about pending cases and ongoing criminal investigations pending before judicial forums. It was stated that the media does 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 a judicial authority.

A detailed order is awaited.

Case number: WP(C) 21108/2014 and associated cases

Case Title: Dejo Kappan V Deccan Herald & Connected Cases