The fundamental object is freedom of speech and expression. It is for the pursuit of truth that such freedom is given. It is only when there is free expression of ideas that truth reveals itself. Without a relentless pursuit of truth, the great things of heart and intellect might be lost to us. The object of protecting freedom of speech and expression is to ensure that the life of the mind, as lived by members of society, is given full expression.
Article 19(1) of the Constitution guarantees to citizens six freedoms in all. Of these, the first is the right to freedom of speech and expression in Article 19(1)(a). This right is subject to the power of the State to make a law imposing reasonable restrictions on the right in the interest of various considerations set out in Article 19(2).
Rule of Law is the basic rule of governance of any civil democratic policy. Our Constitution is based upon the concept of rule of law which we have adopted and given to ourselves. Whoever the person may be, however, high he or she is, none is above the law, notwithstanding how powerful and how rich he or she may be. For achieving the establishment of rule of law the Constitution has assigned the special task to the judiciary in the country. It is only through the courts that the rule of law unfolds the contents and establishes its concept for the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. On the other hand, interference with dignity of courts or protection amounts to interference with the administration of justice.
It has been decided in The Indian Express newspaper'scase reported in AIR 1986 S.C.515 that the expression of freedom of press is not being used in Article 19 but it is comprehended within Article 19(1)(a). The expression means freedom from interference from authority which would affect interference with the content and circulation of newspaper. There cannot be any interference with that freedom in the name of the public interest. Freedom of press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of press and invalidate all laws for administrative action which interfere with it contrary to constitutional mandate. It is also held by the apex court in the Tata Press Limited case in 1995 that the freedom of speech and expression under Article 19(1) (a) of the Constitution can be restricted only on the grounds specified in clause (2) of the Article 19 or in relation to contempt of court, defamation or incitement of an offence.
By taking cue from Article 19(2) of the Constitution various laws have been enacted by Parliament. Amongst other laws the Contempt of Court Act 1971 deals with the provisions of contempt of court. It will not be out of place to mention that in the case of Arundhati Ray, the apex court held that under the Constitution there is no separate guarantee of the expression, which is conferred on all citizens under article 19(1). Any expression of opinion would, therefore, not be immune from the liability for exceeding limits either under the law of defamation, contempt of court, or the other constitutional limitations under Article 19(2) of the Constitution.
It is well settled in law that a trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and he is to be guided strictly by rules of law. The media trial is the example of interference with the administration of justice by print and electronic media. It has been well maintained by the apex court that an article appeared in a magazine based on her interview of the family of the deceased giving version of the tragedy and extensively quoting the father of the deceased as to his version of the case may be used in the forthcoming trial in that case and those articles appearing in the media would certainly interfere with the administration of justice. That is why the apex court has deprecated this practice of indulging in such trial by media where the issue is subjudice.
In recent case of Dr Rajesh Talwar, the print media and electronic media made media trial for which the apex court came forward to frame the guidelines so as to make certain principles while publicising the news with regard to the rights of human being as accused or victim so that there will be least interference with the administration of justice. At the same time, the role of the media cannot be denied in the sensational cases like Jessica Lal, Priyadarshini Mattoo and Nitish Katra because the media activities in those cases are credited to have pleaded a major role in securing justice to the victims. Of course nobody can guard to the base striking balance between the media'sfreedom of speech and expression and accused person'sright to fair trial. It has been asked in recent print media ?is the apex court right in assuming that it could help ensure such a balance by laying down the guidelines for the media?? The apprehension in the minds of the media in my opinion has a relevancy because the apex court in the recent hearings of the matter of Dr Talwar, have categorically observed that there is no attempt to gag the media, but the media has to be responsible at the same time. While the matter is subjudice, the final opinion cannot be expressed, but it appears the apex court has never tried to gag the mouth of the press or media, but have only expressed their view keeping in mind the Constitutional provisions as enshrined in Article 19(2) of the Constitution. The guidelines by the apex court if formulated can always be respected and in no occasion it would create a doubt in the minds of the public at large.
Even, if men and women including judges and journalists were angels, there would be no problem of contempt of court. Angel judges could be undisturbed by extraneous influence and angelic journalists would not seek to influence them. Therefore, it must be observed that if respective pillars of democracy will maintain their lakshman rekha, definitely the activities of both judiciary and media will go together so as to ensure the administration of justice to the public and society at large.
(The writer is Minister of Law, Industry & Rural Development, Government of Orissa. The article is based on his address at a national seminar on Media Report of Court Proceedings?Administration of Justice. The seminar was inaugurated by Chief Justice of India.)