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Report No. 200

Article 19 and Art 14, 21: Balancing rights of free speech and due process:

In Express Newspapers v. Union of India 1959 SCR 12, the Supreme Court exhaustively dealt with freedom of the press but stated that it can not be unbridled. Like other freedoms, it can also suffer reasonable restrictions. The subject of 'trial by media' or prejudice due to 'pre-trial' publications by the media is closely linked with Article 19(1)(a) which guarantees the fundamental right of 'freedom of speech and expression', and the extent to which that right can be reasonably restricted under Article 19(2) by law for the purpose of Contempt of Court and for maintaining the due process to protect liberty.

The basic issue is about balancing the freedom of speech and expression on the one hand and undue interference with administration of justice within the framework of the Contempt of Courts Act, 1971, as permitted by Article 19(2). That should be done without unduly restricting the rights of suspects/accused under Article 21 of the Constitution of India for a fair trial.

There is no difficulty in stating that under our Constitution, the fundamental right of freedom of speech and expression can, by law, be restricted for purposes of contempt of Court. However, this can be done only by law passed by the Legislature and the restrictions that can be imposed on the freedom must be "reasonable". If the restriction imposed by any law relating to contempt of Court is unreasonable, it is liable to the struck down by the Courts on the ground that the restriction is not proportionate to the object sought to be achieved by the restriction.

As at present, the provisions of Section 3 of the Contempt of Courts Act, 1971 restrict the freedom of speech and expression - which includes the freedom of the media, both print and electronic - if any publication interferes with or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding which is actually 'pending' (i.e. when charge-sheet or challan is filed, or summon or warrant is issued). Further Section 3(1) protects the publication, if the person who made the publication had no reasonable grounds for believing that the proceeding was pending.

In our view, the provisions of section 3(2), now allow totally unrestricted freedom to make publications, granting full immunity even if criminal contempt is committed, even if they interfere or tend to interfere with the criminal proceeding, if such proceedings are not actually 'pending' in a Court at the time of the publication. The Explanation below section 3 defines 'pendency' of a judicial proceeding. So far as a criminal proceeding is concerned, we have to refer to sub clause (B) of clause (a) of Explanation which reads:

"(B) In the case of a criminal proceeding, under the Code of Criminal Procedure, 1898 (5 of 1898) or any other law -

(i) where it relates to the commission of an offence, when the charge-sheet or challan is filed; or when the court issues summons or warrant, as the case may be, against the accused, and

(ii) in any other case, when the court takes cognizance of the matter to which the proceedings relates ... ... ....

.... ... ... ... ... ... ... ..."

Therefore under section 3 of the Act, the starting point of the pendency of the case is only from the stage where the court actually gets involved when a charge-sheet or challan is filed under Section 173 of the Code of Criminal Procedure,1973 or when the criminal court issues summons or warrant against the accused. Any publication before such events if it interferes or tends to interfere with rights of suspects or accused for a fair trial, is not contempt because Section 3(2) starts with the words,

"Notwithstanding anything to contrary contained in this Act or any other law for the time being in force".

Trial by Media free speech and fair trial under Criminal Procedure Code, 1973 Back

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