SC refrains from framing rules for reporting sub judice cases

The Supreme Court on Tuesday propounded a new doctrine of “postponement” of publication or broadcasting developments in on-going cases, reasoning that it would act as a neutralising effect between rights of accused persons and freedom of press.

A five-judge Constitution bench led by Chief Justice S H Kapadia, however, did not frame any blanket rules for reporting sub judice cases, but said that this approach could be taken on a case-by-case basis.

“What constitutes an offending publication would depend on the decision of the court on case to case basis. Hence, guidelines on reporting cannot be framed across the board,” wrote CJI Kapadia in a unanimous judgment.

The court said accused or aggrieved persons have the right to approach a high court or the Supreme Court itself, if they feel they are being prejudiced by media coverage of a case. Previously accused or aggrieved persons could file defamation or contempt cases in instances of wrongful media coverage, depending on the circumstances. Tuesday's ruling is effectively another route through which relief can be sought against the media.

The court reasoned that a court which has the power to punish for contempt, also has the power to postpone publication. The court said this was inherent in the powers of the judiciary in order to protect the proper administration of justice.

The court also sought to cushion the media from the law of contempt through the ruling. “Such measures protect the media from getting prosecuted or punished for committing contempt and at the same time such neutralising devices or techniques evolved by the courts effectuate a balance between conflicting public interests,” the court said.

The Bench, also comprising Justices D K Jain, S S Nijjar, J S Khehar and Ranjana Prakash Desai, said postponement orders could be a reasonable restriction on the freedom of speech and expression as given under Article 19(2) of the Constitution.

The court said that such an order is not a “punitive measure but a preventive one”.
“The postponement orders fall under Article 19(2) and they satisfy the test of reasonableness,” the Bench said, adding “Courts are duty bound under inherent jurisdiction to protect the presumption of innocence (of accused) which is now recognised by this court as a human right under Article 21, subject to the applicant proving displacement of such a presumption in appropriate proceedings.”

The court said that the order for prohibiting publication was available as one of its inherent powers as provided under the Constitution.

The court said, “Such judicial law-making is part of the judicial process. Under Article 141, law-making through interpretation and expansion of the meanings of open textured expressions such as ‘law in relation to contempt of court’ in Article 19(2), ‘equal protection of law’, ‘freedom of speech and expression’ and ‘administration of justice  is a legitimate function.”

The SC had earlier this year decided to determine the extent of media coverage of pending cases after leakage of some documents in a section of media in the case of Sahara India Real Estate Corporation Ltd and others versus Securities and Exchange Board of India and another. The bench, began hearing from March 27 after it received several complaints from lawyers about press coverage being untrue or prejudicing their clients. On May 3, the court reserved its verdict after hearing different parties including the Editors’ Guild, Broadcast Editors Association and lawyers for Vodafone and the Sahara Group, amongst others.