THE MEDIA: A temporary gag

Published : Oct 19, 2012 00:00 IST

THE Indian Constitution does not guarantee an absolute right to freedom of speech and expression. However, the judiciary, through its interpretations, had always maintained a delicate balance between free speech and reasonable restrictions on it.

On September 11, a five-judge Constitution Bench headed by the outgoing Chief Justice of India, Justice S.H. Kapadia, upset this balance when it held that anyone could seek from a writ court an order postponing reporting of certain phases of a trial (including the identity of the victim, witness or complainant) if there was a genuine apprehension that such reporting would prevent a fair trial.

On the basis of an application from an aggrieved party, the court will have the discretion of ordering postponement of reporting the case for a short duration, only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. What constituted an offending publication would depend on the decision of courts on a case-to-case basis, the Supreme Court said.

While the Court has refrained from framing general guidelines for the media, its enunciation of the doctrine of postponement to justify the temporary gagging of the media from reporting on court matters is likely to have a chilling effect on the freedom of the media, more than what any guideline would have achieved.

Although the court has held that in each case orders must satisfy tests of necessity and proportionality, the wide discretion available to the High Courts and the Supreme Court in issuing such orders points to the potential risks to the freedom of the media. Critics apprehend that the judgment will open the floodgates of litigation against the media.

The courts intervention in the matter was the result of a complaint of Sahara India Real Estate Corporation Limited that the media breached confidentiality by broadcasting its e-mail correspondence with the Securities and Exchange Board of India, the respondent in the case. The correspondence was about the fair market value of the assets proposed to be offered by Sahara to secure its liability to the investors in optionally fully convertible bonds, one of its schemes.

Observers of this case point out that sections of the media were right in reporting leaks of this correspondence and that directing them to postpone such reporting would be against the public interest.

V. Venkatesan
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