While most strongly, strictly and sensibly drawing the clear red lines for the media not to cross while reporting in high profile cases especially criminal, it is most refreshing, most reassuring and most reinvigorating to note that the Full Bench of the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Dejo Kappan vs Deccan Herald & Ors & Connected Cases in W.P. (C) No. 21108/2014, 24499/2016 & 25718/2016 and cited in Neutral Citation No.: 2024:KER:82715 that was pronounced as recently as on November 7, 2024 has minced just no words to hold unequivocally that comments by the media declaring an accused guilty or innocent while a criminal case is still pending does not fall under protected free speech under Article 19(1)(a) of the Constitution of India. To put it differently, the Kerala High Court clearly held that media has the right to freedom of speech and expression but it cannot assume the role of a court, under the guise of this right.
This certainly clearly implies that the media can’t decide guilt even before a judgment is pronounced by a court in criminal cases. It also very rightly and robustly underscored maintaining clearly in no uncertain terms that media trial risk violating an individual’s dignity, privacy and reputation. It thus very rightly urged media to avoid forming opinions in pending criminal cases. No denying or disputing it!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr. Justice Dr. A.K. Jayasankaran Nambiar for a Full Bench of Kerala High Court and concurred by Hon’ble Mr. Justice Dr. Kauser Edappagath, Hon’ble Mr. Justice Mohammed Nias C.P., Hon’ble Ms. Justice CS Sudha and Hon’ble Mr Justice Syam Kumar V.M. sets the ball in motion by first and foremost putting forth in para 1 that:
These writ petitions raise an interesting question as regards the scope, content and extent of the right to freedom of speech and expression enuring to the media when they report facts about ongoing criminal investigations or the proceedings in cases pending adjudication before the various adjudicatory forums in the country. The writ petitions were initially considered by a Full Bench of this Court.
However, by an order dated 24.05.2018, the Full Bench took the view that in the light of an earlier decision of another Full Bench of this Court in S. Sudin v. Union of India and Others – [2015 (2) KLT 296 (FB)], these matters needed to be referred to a Larger Bench of five Judges for consideration. It is thus, and pursuant to an order dated 02.09.2024 of the Hon’ble the Acting Chief Justice, that these matters are now before us.
The issue to be considered:
As we see, the Full Bench then stipulates in para 2 that:
Taking note of the specific prayers sought for in the writ petitions, in the light of the law as it then stood, the Full Bench of this Court that was considering the matter earlier had, on 21.02.2017, framed the following six issues for its consideration;
- Whether the existing regulations are sufficient to keep the media and press within the bounds of Article 19(2) of the Constitution of India?
- Does the case reported in (2012) 10 SCC 603, Sahara India Real Estate Corporation’s case, finally decide on the powers of the court to frame guidelines for reporting/publishing the court proceedings? If not, whether it is necessary to frame guidelines by the High Court?
- Whether the fundamental right guaranteed under Article 19(1)(a) of the Constitution of India is available to Media Institutions/Corporation apart from citizens?
- Whether a Media room available to news reporters in the Hon’ble Supreme Court is to be provided for in the High Court also?
- Are the Press and Media Institutions under an obligation to publish the true and correct version of the news? If so, can the media project their own policies and views as part of the news?
- In terms of Article 19(1)(a) of the Constitution of India, are not the citizens entitled to know the true and correct events covered by the news items and to insist on true and correct reporting?
However, the Full Bench later referred this matter to a Larger Bench since it noticed that another Full Bench of this Court had, in Sudin (supra), held that a writ cannot be issued directing the media to adhere to Norms of Journalistic Conduct.
Order Of The Court
Most significantly, the Full Bench in its order clearly held in its conclusion that:
The reference is answered as follows:
- The right of the media to freedom of speech and expression under Article 19(1)(a) cannot be restricted save by a law made by a competent legislative body, and even thereunder only on the grounds expressly mentioned in Article 19(2) of the Constitution.
- The right to freedom of speech and expression under Article 19(1)(a), like any other constitutional right, has a content that is determined by the interplay of that right with the rights granted to others under the Constitution, as also by the obligations imposed under the Constitution on the rights holder. In other words, the ideals, values, and concepts under the Constitution, the rights conferred on others thereunder, and the duties imposed on the right holder itself under the Constitution, serve to delimit the particular right and determine its content, scope, and extent.
- In the case 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 or 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 recognized 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 investigations 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 principle of separation of powers that is recognized under our Constitution. The said principle, coupled with the concept of rule of law, mandates that the final and authoritative determination of guilt or innocence can be pronounced only by a judicial authority. Therefore, 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 under Article 19(1)(a) of the Constitution.
- The declaration of the law, as above, is deemed necessary so as to guide the media in its 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 cases pending adjudication before various adjudicatory forums in our country. Deference 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 would also usher in a new era of responsible journalism.
- In those instances where an aggrieved individual can establish that his/her right to dignity/reputation traceable to Article 21 of the Constitution has been, or is likely to be infringed by the actions of the media, he/she can approach a constitutional court which can forge a suitable measure to either prevent or contain the damage occasioned by the breach of that right, by relying on the precedent in Sahara (supra).
The reference being answered as above, we do not deem it necessary to specifically deal with the other prayers raised in the writ petitions. The writ petitions shall be seen as disposed in the light of the above declaration of the law.
Briefly stated, the Full Bench very rightly points out in para 6 that:
In the case of criminal investigations, an erroneous or distorted reporting of facts often leads to the public getting a skewed version of the guilt/innocence of the person against whom such investigation is launched. Similarly, in pending cases, an erroneous reporting of the proceedings in court, often on account of not providing the appropriate context, leads a reader/viewer to infer an improbable outcome of the proceedings. Both these situations have the propensity to affect the dignity and/or reputation of the persons who are the subject of investigation or parties to a legal proceedings during the currency of the investigation or legal proceedings.
While elaborating on media trial, the Full Bench enunciates in para 7 that:
The problem was eloquently articulated by one of us (Mohammed Nias C.P., J) in Suraj T.N. v. State of Kerala and Others – [2022 (3) KHC 243], by observing as follows:
In a trial by media which apart from adversely affecting the rights of an accused for a fair trial has immense power to influence public opinion. A perception is created for or against the accused in the mind of the laymen. So much so, that when a judge passes a verdict which may be totally against the layman’s perception, it causes him to distrust the integrity of the very legal system. The time tested system of arriving at the conclusion of guilt on the basis of legal evidence need not always be a concept which is familiar to a person untrained in law. Such persons are more comfortable with the version that media has given him. This loss of faith in justice delivery system is aggravated when the judge, not the judgment itself, is subjected to media criticism. In such cases, trial by media results in denigration of the justice delivery system which, without doubt, is the very foundation of the rule of law in any democratic set up.
While underscoring the importance of media in a democratic country, the Full Bench envisages in para 10 that:
In a parliamentary democracy such as ours, freedom of speech and expression is a necessary right as well as a concomitant for the purpose of not only ensuring a healthy democracy but also to ensure that the citizens could be well informed and educated on governance. The dissemination of information through various media, including print and electronic media or audio-visual form, is to ensure that the citizens are enlightened about their rights and duties, the manner in which they should conduct themselves in a democracy and for enabling a debate on the policies and actions of the governments and ultimately for the development of the society in an egalitarian way. The necessity for the media to provide true and accurate information, along with the necessary context to fully comprehend the same, cannot be understated. It is because the media is expected to discharge such a responsible function that their freedom of speech and expression is zealously safeguarded under our Constitution.
Do note, Hon’ble Mr. Justice Dr. Kauser Edappagath in his concurring judgment while underscoring the paramount importance of media observes in para 4 that, Freedom of speech and expression lay at the foundation of all democratic institutions. The press and media have the same rights—no more or no less than any individual—to write, publish, circulate, and broadcast information. The media derives this right from the right to freedom of speech and expression in Article 19(1)(a) of the Constitution of India. Free and independent media enables citizens to be informed and to hold the powerful to account. In a democratic society like ours, where accurate information is a prerequisite to intelligent decision-making by the public, the news media serve a vital role. The role of the media is that of a watchdog to disseminate truth to the knowledge of the public. In Re : Harijai Singh and Another (AIR 1997 SC 73), the Supreme Court observed that the freedom of the press is regarded as the mother of all liberties in a democratic society.
Be it noted, Hon’ble Mr. Justice Dr. Kauser notes in para 6 underscoring that, Although the right of freedom of speech and expression as enshrined in Article 19(1)(a) of the Constitution is the hallmark of a democracy, thereby protecting the right of the free press and the free media, like every fundamental right, the freedom of the press and media cannot be unlimited or unfettered. This is even if it is accepted that the necessity of free media for the proper functioning of a democratic polity cannot be undermined. Considering that unfettered freedom of speech and expression would be equivalent to providing unrestricted permission, the Supreme Court in Re : Harijai Singh (supra) has voiced that press freedom is neither total nor infinite and if it were left entirely unrestricted, even somewhat, it would cause calamity and turmoil. While the right of the media to keep the public informed about criminal trials and investigations must be safeguarded, equally important is the right to dignity, reputation, and privacy of the victim and the accused must be zealously guarded, and a fair trial, which includes fair investigation, must be ensured.
It is worth noting here that Hon’ble Mr. Justice Dr. Kauser notes in para 9 that:
Fair trial norms include, among other things, the right to be presumed innocent. The presumption of innocence has been acknowledged throughout the world. Article 14(2) of the International Covenant on Civil and Political Rights, 1966, and Article 11 of the Universal Declaration of Human Rights acknowledge the presumption of innocence as a cardinal principle of law until the individual is proven guilty. Criminal jurisprudence in our country is also based on the principle that every accused person is presumed to be innocent until his guilt is proven beyond reasonable doubt. In State of U.P. v. Naresh and Others [(2011) 4 SCC 324], the Supreme Court observed that the presumption of innocence that forms the basis of criminal jurisprudence in India is a human right subject to the statutory exceptions. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) 4 [(2010) 6 SCC 1], reiterating its consistent stand that presumption of innocence is a facet of Article 21, the Supreme Court observed thus:
"In the Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty. The alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India.
While taking potshots at media trial, Hon’ble Mr. Justice Dr. Kauser notes in para 10 of his concurring judgment that:
The media is seen and observed to have habitually overlooked this legal presumption of innocence until proven guilty by indulging in media trials or parallel investigations, thereby negatively impacting the accused in the case. We are now in the era where trial by media and press coverage fuels public opinion, which begins even before the suspects are charged. Nowadays, we witness TV channels initiate intense discussions during prime time on ongoing criminal investigations and pending criminal trials of public interests. It is a kind of a parallel criminal trial of the suspects in the news studios. Some of such channels resort to investigative journalism, as they call it. What we generally see in these kinds of media trials is that the media itself does a parallel investigation, characterizes the accused as a person who had indeed committed the crime, builds a public opinion against him, reincarnates itself into a ‘kangaroo court’, and ‘convict’ the accused by public opinion even before the trial at the court takes off.
It completely overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. In Manu Sharma (supra), it was held by the Supreme Court that presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Art.21 of the Constitution of India.
It is also not uncommon for television channels to telecast interviews with material witnesses and investigating officers of the crimes under investigation. In this regard, referring to the growing tendency among investigating officers to represent to the media, even before the completion of the investigation, that they have caught a criminal or offender with considerable effort, the Supreme Court in Rajendran Chingaravelu v. R.K.Mishra [(2010) 1 SCC 457], observed that premature disclosures or leakage to the media in a pending investigation will not only jeopardise and impede the further investigation but many a time, allow the real culprit to escape from the law.
While underscoring media importance and simultaneously also sounding a note of caution, Hon’ble Mr. Justice Dr. Kauser in para 11 points out that:
There is no doubt that the media, being the fourth pillar of democracy, has a right, duty, and discretion to cover the news relating to the investigation of crime and events that are happening in courts and disseminate that same to their audience in accordance with constitutional principles of freedom of speech and expression. But in the grab of the right to free speech and expression, the media cannot be permitted to take upon themselves the role of the investigating agencies, prosecutors, and adjudicators in pronouncing persons guilty or innocent, even before the lawful investigation is completed by the investigating agencies.
Media personnel could be justified as long as they act just like a catalyst and do not overstep into the domain of the judiciary or investigating agency by creating a widespread perception of guilt or innocence of the suspect before the trial. Such media trials, which exceed the limits of ethical caution and fair comment and project the suspect or accused as guilty or innocent even before the court delivers a verdict, amount to a gross violation of the right of the accused, victim, and witnesses to a fair trial guaranteed under Articles 14 and 21 of the Constitution. It results in undue interference with the administration of justice. Such interference by the electronic media during a lawful investigation of any alleged crime defies all canons of legal legitimacy.
While underscoring the deep impact media trial has on accused and victim, Hon’ble Mr. Justice Dr. Kauser in para 12 of his concurring judgment points out that:
Apart from the right to a fair trial, distorted and warped reporting during a media trial may have a deep impact on the dignity, reputation and privacy of the accused and the victim. It is trite law that the right to dignity and reputation are facets of the right to life of a citizen under Article 21 of the Constitution (Port of Bombay v. Dilipkumar Raghavendranath Nadkarni (1983) 1 SCC 124). The right to privacy, pursuant to declaring it to be a fundamental right by the Supreme Court in K.S.Puttaswamy and Another v. Union of India and Others [(2017) 10 SCC 1] has also been woven into the fabric of Article 21.
It is settled that a person’s privacy, reputation and dignity cannot be impinged without a just, fair and reasonable law which needs to fulfil a test of proportionality, which means that the nature and quality of encroachment of the right, is not disproportionate to the purpose of the law. It is also settled that the precious right guaranteed by Article 21 cannot be denied to accused, convicts, under trials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law (Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others [(1981) 1 SCC 608]).
Harmonising the scuffle between Article 19(1)(a) and Article 21, the Supreme Court in Subramanian Swamy v. Union of India [(2016) 7 SCC 221] held that the reputation of an individual is a basic element under Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity. The right to free speech does not give a right to an individual to defame others. The citizens have a correlative duty of not interfering with the liberty of other individuals since everybody has a right to reputation and the right to live with dignity.
Quite significantly, Hon’ble Mr. Justice Dr. Kauser in para 13 of his concurring judgment spells out that:
The right to freedom of speech and expression available to the press and media under Article 19(1)(a) cannot trample on the right to dignity, reputation and privacy available to the citizen under Article 21. The border between a robust exercise of freedom of expression and protection of the right to privacy has been a matter of intense judicial scrutiny in India and abroad. The Supreme Court of the United Kingdom in Bloomberg LP v. ZXC [(2022) UKSC 5] held that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. The respondent, ZXC, and his employer were the subject of a criminal investigation by a UK Legal Enforcement Body.
The appellant, Bloomberg, obtained a copy of the confidential Letter of Request sent by the enforcement body to a foreign state seeking information and documents relating to the respondent and published an article referring to the fact that information had been requested in respect of the respondent and detailing the matters in respect of which he was being investigated. ZXC brought a claim under the tort of misuse of private information arising out of the publication of the article and sought damages and injunctive relief. Following a trial before the High Court, the claims were upheld and damages of £25,000 was awarded. The Supreme Court unanimously dismissed Bloomberg’s appeal and upheld the High Court’s judgment, confirming that an individual who is being investigated by a law enforcement agency has a reasonable expectation of privacy in the facts and details of that investigation up to the point of charge.
It reasoned that a balancing exercise must be done in such cases to determine whether the respondent’s Article 8 right to privacy or the publisher’s Article 10 right to freedom of expression should prevail, with neither of the rights having the right of precedence over the other. In Estes v. Texas [381 U.S. 532 (1965)], the U.S. Supreme Court set aside the conviction of a Texas financier for denial of his constitutional rights of due process of law as during the pre-trial hearing extensive and obtrusive television coverage took place. The Supreme Court of India has always struck a balance whenever it was found that the exercise of fundamental rights by one caused inroads into the space available for the exercise of fundamental rights by another. The competing claims arose in many of those cases, in the context of Article 19(1)(a) right of one person qua Article 21 right of another.
Most remarkably, Hon’ble Mr. Justice Dr. Kauser in para 14 of his concurring judgment propounds that:
In People’s Union for Civil Liberties (PUCL) v. Union of India [(2003) 4 SCC 399], the right to privacy of the spouse of the candidate contesting the election was declared as subordinate to the citizen’s right to know under Article 19(1)(a). In Sahara India Real Estate Corporation Ltd. and Others v. Securities and Exchange Board of India and Another [(2012) 10 SCC 603], a balance was struck between the right of the media under Article 19(1)(a) and the right to fair trial under Article 21. The right to fair trial of the accused was balanced with the right to fair trial of the victim in Asha Ranjan v. State of Bihar and Others [(2017) 4 SCC 397].
In Puttaswamy (supra), it was held that the Court should strike a balance wherever a conflict between two sets of fundamental rights is projected. In R. Rajagopal v State of Tamil Nadu and Others [(1994) 6 SCC 632], the rights pitted against one another were the freedom of expression under Article 19(1)(a) and the right to privacy of the officers of the Government under Article 21. It was held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education, among other matters, and none can publish anything concerning the above matters without his consent — whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.
It was clarified that any publication concerning an individual’s private affairs becomes unobjectionable if it is based on public records, including court records and once a matter becomes a matter of public record, the right to privacy no longer subsists, and it becomes a legitimate subject for comment by the press and media, among others. However, an exception has been carved out against publishing the name and details of the female victim of a sexual assault, kidnapping, abduction, or a like offence in the interests of decency under Article 19(2).
In Kaushal Kishor v. State of Uttar Pradesh & Others [(2023) 4 SCC 1], while answering the question whether additional restrictions on the right to free speech can be imposed on grounds not found in Article 19(2) by invoking other fundamental rights, it was categorically held that under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual.
In Swapnil Tripathi v. Supreme Court of India [(2018) 10 SCC 639], while dealing with a PIL for live-streaming proceedings, it was observed that in case of conflict between competing constitutional rights, a sincere effort must be made to harmonise such conflict in order to give maximum expression to each right while minimising the encroachment on the other rights. While balancing the right to reputation and the right to freedom of expression, Article 19 of the International Covenant on Civil and Political Rights, 1966, gave more weightage to the right to reputation.
Thus, though generally, the right of speech and expression available to the media is no more or no less than a citizen’s right to dignity, reputation and privacy, when biased and distorted reporting by the media hampers the fair trial and impinges the dignity, reputation and privacy of the accused, victim or witness, privacy right should outweigh the freedom of the press. In such circumstances, the constitutional protection under Article 21 protecting the right to privacy and fair trial is in the nature of a valid ‘restraint’ operating on the right of free speech under Article 19(1)(a).
The upshot of the above discussions is that though media has a legal as well as constitutional right to report true and correct events relating to pending criminal trials and ongoing investigations, any false, derogatory, distorted or unprofessional reporting by them, which may either jeopardize the fair trial or impinge the reputation, dignity or privacy of the accused or the victim, would not be protected under Article 19(1)(a) of the Constitution of India. Any such action on the part of the media would be actionable before the competent court of law. It is desirable that the media realise its responsibility to society and draw the ‘Lakshman Rekha’ themselves without overstepping into the domain of the judiciary and the investigating agency and ensure that no media trial is undertaken, which causes prejudice to the fair trial and has an adverse impact on the privacy and dignity of the accused and the victim.
It merits mentioning that Hon’ble Mr Justice Mohammed Nias C.P. in his concurring judgment very rightly cites in para 2 stating that:
No judge lives in isolation. Therefore, I am conscious of public opinion polls, various petitions, newspaper articles, discussions, proclamations of politicians and lawyers, and public assemblies… Judges in democracies cannot win public trust by seeking publicity and following public moods. They can win trust only by deciding according to law, without regard to public opinion.
-Separate opinion by Ivetta Macejková, judgment of the Slovak Constitutional Court, PL. ÚS 7/2017-159, 31 May 2017.
While striking the right chord, Hon’ble Mr Justice Nias points out in para 3 that:
The interplay of rights concerning the media coverage of criminal cases is complex and multifaceted, particularly within the framework of Article 21 of the Constitution of India, which emphasizes the right to life and personal liberty. The public has a vested interest in understanding the workings of the criminal justice system, including access to information about ongoing criminal cases, as this transparency is crucial for maintaining public confidence in the judicial system and allows citizens to be informed about matters affecting their safety and welfare. The media serves as a conduit for information, exercising its right to free speech and expression; however, this right must be exercised responsibly, avoiding sensationalism or misinformation that could prejudice ongoing investigations or legal proceedings.
As a word of advice to media, Hon’ble Mr Justice Nias expounds in para 4 that, Victims of crime have the right to seek justice and uncover the truth through a fair trial, which includes the ability to present their case and evidence without interference. The media’s role in reporting on a case can influence public perception, which may impact the trial’s fairness.
Moreover, the accused is entitled to the presumption of innocence until proven guilty, and media coverage that portrays the accused negatively before conviction can undermine this legal principle, potentially swaying public opinion against them, which may affect the justice dispensation. Article 21 also encompasses the right to reputation and privacy; thus, the media must navigate these rights carefully, ensuring that reporting does not unjustly harm the reputation of the accused or violate the privacy of victims and their families.
Above all, the ultimate goal is the due administration of justice, which entails a balanced approach where the rights of all parties— victims, accused, and the public—are respected. Courts can impose restrictions on media coverage in certain cases to avert justice being subverted. While the media plays a vital role in informing the public about criminal cases, it must do so within the bounds of legal and ethical standards that protect the rights of all involved and uphold the integrity of the judicial process and be conscious of the fact that rights under Article 21 would prevail over those under Article 19 in the matter of reporting about ongoing investigations or pending proceedings in Courts.
Adding further, it is then stated in para 5 that:
The rule of law, a fundamental aspect of our Constitution, guarantees every accused person the right to a fair trial. This right includes being tried solely based on evidence presented in court, without influence from media commentary or speculation about the cases yet to be decided by the Court. Media reports that claim guilt or innocence, or cast doubt on the integrity of witnesses, risk prejudicing the trial and undermining the legal rights of the accused. Thus, the media need to refrain from reporting on those aspects of the case that may affect the impartiality of the judicial proceedings, to preserve the integrity of the legal process and the rights of all individuals involved.
Further, it is then noted in para 6 that:
Half-truths and misinformation must not be the foundation of any media publications or broadcasts, especially regarding ongoing criminal investigations, court proceedings, or trials. The media does not possess the authority to speculate on the outcomes of these legal processes or to draw conclusions about the individuals involved based on unverified information. Specifically, the publication of leaks from investigative agencies, along with allegations derived solely from such leaks, is not protected under the freedom of the press as outlined in Article 19(a) of the Constitution.
It is insufficient to defend such reporting either relying on any fundamental right or justify by arguing that it is based on preliminary findings or mere suspicions of the investigative agency. Such trial by media not only shapes perceptions of guilt or innocence but also leads to distrust in judicial outcomes, especially when verdicts differ from prevailing public beliefs. The general public often lacks a thorough understanding of legal proceedings, making them more susceptible to media narratives.
Most forcefully, it is then further pointed out succinctly in para 7 by Hon’ble Mr Justice Nias that:
Reports and telecasts that serve to prejudice the public against the parties involved and the Court before the hearing of the case constitute a blatant interference with the administration of justice. The ramifications of trial by media extend far beyond immediate impacts; they insidiously erode the very foundation of fair trial rights for accused/litigants while wielding significant influence over public opinion. Such media portrayals foster perceptions, whether favourable or detrimental, towards the accused, often leading the layperson to form judgments that starkly contrast with judicial conclusions. Consequently, when a Judge renders a verdict that deviates from widely held beliefs shaped by media narratives, it breeds distrust in the integrity of the legal system itself.
The principled approach of adjudicating guilt based on legal evidence may be foreign to those unversed in the law, who instead gravitate towards the sensationalized versions propagated by the media. This erosion of confidence in the justice delivery system is further exacerbated when the Judge, rather than the judgment, becomes the target of media scrutiny. Such scenarios lead to the disparagement of the justice system—an affront to the rule of law that is essential for the functioning of any democratic society.
Notably, it is then pointed out in para 8 that:
In the context of criminal investigations or trials or matters which are sub-judice, any media reporting that goes beyond the factual recounting of events that have transpired in a courtroom is subject to checks and can be curtailed. While the media serves a critical role in informing the public about judicial matters, it must exercise its rights with caution. The fundamental right to freedom of speech and expression cannot be permitted to override the legal rights of other citizens, particularly those who are accused or under investigation.
Responsible media discourse is essential to ensure that the fairness and integrity of the judicial process are maintained and that individuals are not unjustly prejudiced by speculative or misleading reporting. Such denigration of judicial figures contributes to a broader mistrust of the entire legal system, which is fundamental to upholding the rule of law in any democratic society. The consequences of trial by media are far-reaching, as they not only affect individual cases but also undermine the public's confidence in the capacity of the legal system to administer justice fairly and impartially.
In hindsight, it is rightly recalled in para 9 stating that:
The Press Council of India NORMS OF JOURNALISTIC CONDUCT 2022 also records that the freedom of the Press involves the readers’ right to know all sides of an issue of public interest. The press has to remember that it is not a prosecutor in any investigation and should be guided by the paramount principle of a person’s innocence unless the alleged offence is proved beyond doubt by independent reliable evidence and, therefore, even within the constraint of space, the material facts should find space in the rejoinder so that the public, is guided by the complete and accurate facts in forming its opinion. The readers’ right to know all sides of any issue of public importance is a natural corollary of the freedom enjoyed by the press in a democracy.
Most brilliantly, it is then very rightly underscored in para 10 by Hon’ble Mr Justice Nias mandating that:
The media and judiciary are two vital pillars of democracy and natural allies, one complements the other towards the goal of a successful democracy. Measures which are necessary for due process of law need to take precedence over freedom of speech. In a conflict between fair trial and freedom of speech, fair trial has to necessarily prevail because any compromise of fair trial for an accused will cause immense harm and defeat the justice delivery system.
Thus, media persons should be duly trained and imparted basic knowledge about the functioning of courts and processes of law to realise that an accused is entitled to the privilege of presumption of being innocent till guilt is pronounced by the Court, that the media reports should not induce the general public to believe in the complicity of the person indicted as such kind of action brings undue pressure on the course of fair investigation by the police.
While pointing out the adverse effects of media trial, it is then enunciated in para 11 that:
While the media’s reporting at the investigation stage in a criminal case may ensure a speedy and fair investigation, disclosure of confidential information may also hamper or prejudice investigation. The media is not expected to conduct its own parallel trial or foretell the decision putting undue pressure on the judge, or the witnesses or prejudice a party to the proceedings. Incidents of misreporting and misrepresentation on courts and individuals arise from time to time impacting negatively on the image of the institution. While the freedom of speech and expression of the media, and the right to know of the people need to be protected and promoted, the right to a fair trial of the accused needs to be secured and guaranteed.
The danger of trial by media replacing the rule of law with rule by public opinion. Media freedom is not a licence to interfere with the justice delivery system. However, if the media receives any material relevant to the investigation or against those suspected/alleged, nothing prevents them from handing it over to the Investigating Officer or informing the court in case the Investigating Officer does not pay heed to the information/material provided by the media. Restrictions on media reporting during criminal trials are permissible to protect the integrity of the judicial process and the rights of the accused.
While citing relevant case law, it is then stated in para 12 that:
The freedom of the press in the context of the trial of criminal cases came to be considered by the Supreme Court of India in the judgment in the State of Maharashtra v. Rajendra Jawanmal Gandhi [1997 (8) SCC 386], where the Apex Court expressed its displeasure over the phenomenon, which it called as ‘trial by press, electronic media or public agitation’ as the very antithesis of law. Again the Hon'ble Supreme Court in 2005 when faced with such a situation in the case of M. P. Lohia v. State of West Bengal [AIR 2005 SC 790] took a similar view and echoed these lines: . . . This type of article appearing in the media would certainly interfere with the administration of justice. We deprecate this practice and caution the publisher, editor and journalists who were responsible for the said article against indulging in such trial by media when the issue subjudice.
While citing yet another relevant case law, it is pointed out by Hon’ble Mr Justice Nias in para 13 that:
In Express Newspaper Pvt. Ltd. v. Union of India [AIR 1986 SC 872], the Supreme Court even while upholding the freedom of speech, which our Court has always unfailingly guarded, also added: This freedom is not absolute and unlimited at all times and under all circumstances, but is subject to the restriction contained in Article 19(2). That must be so because unrestricted freedom of speech and expression which includes the freedom of the press and is wholly free from restraints, amounts to uncontrolled license which would lead to disaster and anarchy, and it would be hazardous to ignore the vital importance of our social and national interest in public order and security of the State.
Reports that surpass the aforementioned limits may be subject to action upon a complaint from an affected individual. Thus, I align myself with the answers to the reference authoritatively stated in Dr. Justice A.K. Jayasankaran Nambiar’s opinion.
Do also note, Hon’ble Ms Justice CS Sudha in her concurring judgment held that, I have gone through the opinion rendered by Dr. Justice A.K. Jayasankaran Nambiar, and I concur with the same.
It would be worthwhile to mention that Hon’ble Mr Justice Syam Kumar V.M. in his concurring judgment points out in para 9 that:
The content of the right under Article 19(1)(a) while it is being exercised by the media will have to be thus looked upon as a freedom/privilege/liberty that needs to be exercised taking due note of the other fundamental freedoms as well as duties conferred or imposed under the Constitution. As stressed by Ronald Dworkin (Ronald Dworkin, Taking Rights Seriously, Cambridge, Massachusetts: Harvard University Press, 1977.), Human beings possess a special dignity and self-respect, which must be protected by the possession of rights.
Such rights of individuals must always be taken into account. They ought to be taken note of seriously and with sufficient attention to the scope and depth they are capable of possessing, which could be fathomed, only upon their thorough dissection as revealed in a Hohfeldian study of constitutional rights. Such an analysis would reveal that when pitted against the right guaranteed to a citizen or to the public under Article 19(1)(a) or under Article 21 of the Constitution, the freedoms/privileges enjoyed by the media/press though available, will be circumscribed by the Hohfeldian ‘no right’ thus entailing it to be subservient to the rights, ideals, values, concepts and fundamental duties recognized under the Constitution. Thus, I fully concur with the answers to the reference enumerated in Dr. Justice A.K. Jayasankaran Nambiar’s opinion.
In conclusion, we thus see that the Full Bench of the Kerala High Court has made it indubitably clear in this notable judgment that media can’t declare guilt or innocence of accused pending trial. It is the bounden duty of the media to not cross the red lines! It thus merits no reiteration that media must definitely always pay heed to what the Kerala High Court Full Bench has held so explicitly, eruditely, elegantly, eloquently and effectively in this leading case!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
