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Report No. 200

Stringent conditions have to be imposed if postponement of publications by Court is to be permitted:

While subsequent punishment may deter some speakers, prior restraint limits public debate and knowledge more severely and prior restraint must be subjected o stringent conditions, whether I is permanent or temporary.

Under English law, section 4(2) requires proof or 'substantial risk of prejudice' has to be proved if a postponement order has to be passed by Court. We have o examine what kind of restrictions can be imposed under our law to postpone publications which are likely to prejudice trial.

In fact, we have seen in the last Chapter the peculiar case of Glennon in Australia, - to which we have already referred to in Chapter IV, where the person who made the prejudicial publication was punished for contempt on the ground of likelihood of prejudice to the accused but later on, the Court refused to quash the accused's conviction when a plea was raised by the accused relying on the judgment in the contempt case, that the trial was vitiated. The Court required proof of actual prejudice for quashing the trial and said that likelihood of prejudice which is relevant for contempt, was not relevant for quashing a conviction. This judgment has, as already stated, been severely criticized.

It is, therefore, necessary to see if there can be prevention of prejudice rather than take serious measures after prejudice has occurred. Of course, this has to be limited to extreme cases because it amounts to 'prior restraint' on publications which it is accepted as being a serious encroachment on the freedom of speech.

In the United States where the only exception is 'grave and present' danger, prior restraint procedures are very narrow. We have pointed out that there is considerable difference between the American law which does not contain any provision like Art. 19(2) of the Constitution of India which permits 'reasonable' restrictions on the freedom of speech and expression for certain exceptional purposes and contempt of Court is constitutionally recognized as one which the exceptions.

The Sunday Times case discussion in Chapter VII was also a case of a restraint order. But, we have pointed out that that case is distinguishable because the Court's order of prior restraint related to the publication of prejudicial matter affecting settlement in a batch of civil cases. Several civil actions were filed against a company which sold thalidomide to pregnant women who filed cases against the company on account of the probable after-effects of the drug on their children to be borne. The publications criticized the drug and the company when settlement proceedings were pending. We pointed out that that case did not relate to publications affecting suspect or accused in a pending or imminent criminal law.

Yet another point we had noted was that the European Court while deciding Sunday Times case held that in order to grant an injunction it was incumbent on the party affected to prove 'necessity' because Art. 1 of the European Convention requires that the restriction to be imposed on the freedom of speech was 'necessary' in a democratic society. The European Court specifically pointed out that the Convention did not use the word 'reasonable' but used the word 'necessary'.

Our Constitution uses the words 'reasonable restriction' and permits a law to be made imposing 'reasonable restrictions'. Further, the European Court commented on the 'absolute nature of the injunction' granted by the UK Courts and said that while such a permanent ban on publication was not necessary, an order postponing the publication for some time was permissible even under the Convention.

Therefore, US precedents and Sunday Times case are not precedents in our country. In the Indian context, where an injunction was granted and vacated in Reliance Petrochemicals case, we have pointed out in Chapter III that the injunction in that case related to a civil case and that that case is also not relevant so far as restraints on publications to prevent prejudice in criminal cases, particularly, after arrest.

While there are these differences between the American and Strasbourg jurisprudence and Reliance case on the one hand and the Indian constitutional provisions, it is still incumbent for us to decide whether serious interference with the freedom of speech and expression guaranteed by our Constitution in Art. 19(1) can be prevented by an injunction order of a temporary nature. We have also to decide what conditions have to be imposed.

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

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