The judiciary and free expression

Book Extract
CONSTITUTIONAL CONUNDRUMS,
Challenges to India’s Democratic Process,
author V Venkatesan,
Published by LexisNexis, Gurgaon 2014
pp 394, price, Rs 495/-

 

Freedom of Expression

 

The Indian judiciary’s approach to issues involving freedom of expression has been inconsistent over the past few years. Seen in the backdrop of the Supreme Court’s early jurisprudence in favour of the freedom of expression and the press, judgments and orders in some of the recent cases from the Supreme Court and the High Courts have given rise to concern that the judiciary’s commitment to free speech is not as robust as it was earlier. This chapter looks at some of the recent cases litigated before the courts and their outcomes to make sense of the recent jurisprudence.

Journalist’s Right to Report and Express Views

In his autobiography, the late former Supreme Court judge, Justice O Chinnappa Reddy observes that no case of any journalist being denied the right to express himself has come before the Supreme Court, but there can be no denial of the fact that press barons do control the free expression of views by journalists.1 Indeed, the control exercised by the editors of newspapers and magazines over the free expression of views by the journalists, in their group publications and elsewhere, on the ground of their employment flies in the face of Constitutional guarantees of liberty of thought and expression. A journalist is like any average reader of a newspaper or a magazine and has views over and above what he or she could express in the ordinary course of his or her duties as a journalist. If the duties involve reporting of events or issues, professional norms would require that a journalist keeps out his/her views. But should the journalist always censor his or her views in order to satisfy the professional norms or enjoy some limited freedom like any reader, to contribute to opinion-making, with the best of his abilities and competence? It is because right to read is not an empty right, but includes within itself the right to express one’s views on what one reads. Beyond this, a journalist also has a duty to inform the reader what he or she might have missed to know because of limitations of journalism. It is not unusual to find instances when these rights and duties are resisted from within—by those at the helm of the media organizations—under the guise of hierarchy and unjustified hidden professional norms, without any accountability. Those who brazenly defy the Constitutional guarantees do so because they are non-State actors, and the journalists who suffer have no courage to expose them, for the fear of facing further professional harassment. Unfortunately, such cases do not come before the Judiciary, and we don’t really know how such issues could be legally resolved.

Although Justice Reddy referred to this issue in passing in his book, it deserves more elaborate consideration than what has been possible so far. It has been my experience that editors use informal channels to impose restraints on free expression of views and even on attempts to bring to light unreported aspects in public discourse by journalists. Such journalists find no mechanism to redress their professional grievances. The reasons cited for such restraints are many, and some are bizarre. The so-called special privileges enjoyed by journalists also become their liabilities when they aspire for more freedom of expression. Editors assume unstated police powers on the thought processes of journalists, and decide on their behalf what could be expressed and how. This is despite the fact that Supreme Court has, in a few cases, upheld the right of a journalist to express views in a medium of his/her choice, in order to reach as many readers as possible. There is indeed need for a suitable forum to resolve such issues without the fear of victimization of journalists, who seek such resolution. If a journalist is threatened with punishment for expressing views or reporting something believed to be worth reporting, it will have a chilling effect on the professional independence. It will mean in-house use of prior restraint which even those in power cannot exercise without proper judicial sanction.

Prior Restraint

The doctrine of prior restraint allows a writ court to grant preventive relief, if a litigant seeks an order of postponement of publication or broadcast or reporting of certain phases of the trial in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial.2 Although freedom of expression is not an absolute guarantee under the Indian Constitution, and is subject to reasonable restrictions, the doctrine of prior restraint had never found favour with the Indian judiciary in the earlier case law. In Brij Bhushan v. State of Delhi,3 one of the earliest cases decided in 1950, the Supreme Court held that the pre-censorship on a journal was a restriction on the libertyof the press.

During the Internal Emergency which lasted from 25 June 1975 to 21 March 1977, the Censorship Order was imposed under the Defence of India Rules, 1971. This Order required every newspaper, periodical, or other document to submit any news, comment, rumour, or other report relating to a list of specified subjects to an authorised officer for scrutiny before publication. The government kept expanding this list till the Censorship Order was withdrawn coinciding with revocation of the Emergency.

Surprisingly, this Order was not challenged before the Supreme Court, but before two high courts. In Binod Rao v. Minocher Rustom Masani,4 the judgment was delivered by Justice Dinshah Pirosha Madon and Justice Madhukar Hiralal Kania of the Bombay High Court on 10 February 1976. Masani was the Editor of the monthly journal, Freedom First, which was subjected to censorship. A single judge of the High Court, Justice RP Bhatt had already granted relief, by setting aside the censorship orders against the magazine, which was under appeal before the Division Bench. The High Court held that except in two out of 11 items censored, it did not find any intention or likelihood of the censored articles creating disorder or disturbance of law and order or incitement to violence. It held that most of the consequences contemplated by the censor were fanciful and far-fetched, and that the view taken by it was such as no person acting rationally could ever possibly take.
The other was the Gujarat High Court’s judgment in Chunibhai Vaidya v. HJD’Penha (Special Civil Application No.141 of 1976),  delivered on 22 March 1976 by a Bench comprising Justices JB Mehta and S H Sheth. In this case, copies of Bhumiputra, a journal dedicated to Sarvodaya, were forfeited after it had published a report of a civil liberties conference held at Ahmadabad. The court held that it is wrong to think that once the legislature has made the law which places restrictions on or curtails the inherent and natural right of a citizen to speak and express himself, it is open to the executive to do anything which it likes irrespective of what the law empowers it to do and how much forbidden area it craves out. The Court also refused to concede that there is any nexus between the forfeiture order and public safety and order, as claimed by the Chief Censor to the Government.6

It is natural to expect that these two High Court judgments would be cited by the Courts in subsequent cases, in order to vindicate the futility of the doctrine of prior restraint. Ironically, in the Media Guidelines case,7 decided by the Supreme Court’s five-Judge Constitution Bench, these two judgments were cited in order to buttress its holding that prior restraint per se is not constitutionally impermissible, and to draw a distinction between prior restraint per se and cases of misuse of pre-censorship which were corrected by the Courts.8

However, it is gratifying to note that in the first two cases to come up before the Supreme Court, after the Media Guidelines verdict, the Court did not see merit in imposing prior restraint, as urged by the petitioners.

In Vidya Dhar v. Multi Screen Media Private Limited,9 decided on 3 May 2013, the Court refused to impose prior restraint on the telecast of a programme allegedly prejudicial to the petitioner because the trial had already been concluded, and the petitioner stood convicted, and therefore, the doctrine of prior restraint cannot be relevant in the appeal stage.10

In Saint Asharam Bapu v. Union of India, the Supreme Court refused to direct postponement of publication and telecast of news reports/articles prejudicial to the petitioner’s right to fair

trial and presumption of being innocent until proved guilty by the competent court, asking the petitioner to approach the Court if the media does not follow the ratio laid down in the previous cases.11

As pointed out by Madhavi Goradia Divan, while granting an injunction restricting reporting, the court cannot be oblivious to the futility of orders overtaken by technology. Once the news item has already entered the public domain by any means, whether on Twitter or on YouTube, it is pointless ordering a newspaper not to publish a report.12 However, this limitation did not deter the Delhi High Court in imposing restraints on the print, electronic and social media (internet) from reporting (apart from the court proceedings) anything on the allegations of sexual harassment of an intern against a former Supreme Court Judge.13

The verdict in the Sahara India case was relied upon by the Delhi High Court in the case of Swatanter Kumar v. Indian Express Ltd. The High Court held that it has ample powers under its inherent powers to restrain the publication in media in the event it arrives at the finding that the said publication may interfere with the administration of justice or would be against the principle of fair trial or open justice. The High Court acknowledged, in paragraph 49, that it is the degree of prejudice and its nexus with fetching the fair justice or open justice which is a potent factor which is required to be examined and tested by the Courts at the time of passing the injunction restraining or postponing the publication. The line between fairness and unfairness is sometimes blurred but if the same is likely to prejudice the accused and project him as culprit which may cause irreversible damage to a person, the Court can step in and assume jurisdiction for future prevention of such damage so that the administration of the justice is not impaired, the High Court explained.14

In paragraph 55, the High Court observes that ‘it is also true that the freedom of press cannot be extended beyond reporting of facts’. The observation, although expressed as a truism, is debatable.15

 

 

 

1. O Chinnappa Reddy, The Court and the Constitution of India: Summits and Shallows, OUP, Delhi 2008 at 196.
2. See V Venkatesan, ‘Tensions between two natural allies’, The Hindu, 26 June 2013. Available at http://www.thehindu.com/opinion/op-ed/tensions-between-two-natural-allies/article4850434.ece (last accessed on 28 December 2013).
3. AIR 1950 SC 129.

6. Ibid.
7. Sahara India Real Estate Corpn Ltd. v. SEBI (2012) 10 SCC 603.
8. Sahara India Real Estate Corporation Ltd v. SEBI (2012) 10 SCC 603.
9. Last accessed at http://judis.nic.in/supremecourt/imgs1.aspx?filename=40371 on 18 June 2014.
10. Ibid.

11. http://www.supremecourtofindia.nic.in/outtoday/wp9002013.pdf, last accessed on 18 June 2014.
12. Madhavi Goradia Divan, Facets of Media Law, 2nd Edition, Eastern Book Company, Lucknow, 2013 at 481.
13. Order pronounced by Justice Manmohan Singh of Delhi High Court in Swatanter Kumar v. Indian Express Ltd. on 16 January 2014. (I.A. NO.723/2014 in CS (OS) No.102/2014). Accessed at http://lobis.nic.in/dhc/MAN/judgement/16-01- 2014/MAN16012014S1022014.pdf on 18 June 2014.
14. Ibid.
15. Ibid.