Judicial overreach & restraints on freedom of press
By Vijayasai Reddy V| Published: 14th December 2020 07:21 AM
For representational purposes
Before we discuss the judicial overreach into freedom of speech and expression, which is
a constitutional right, let us pause to recall that the Constitution is a document that starts
with “We the people” and ends with “ in our Constituent Assembly this day of November
1949 do hereby adopt, enact and give to ourselves this Constitution .…”, meaning that it
is the people who gave themselves this Constitution. It is the people who, in the
democracy called India, have given themselves the right to unequivocally express
themselves if they feel passionately about an issue.
Then is it not mandatory that the three organs of the government, while trying to
maintain a system of checks and balances, do not lose sight of the fact that they are
answerable to the people? Can they indulge in a game of one-upmanship and lose sight
of the fact that they are here to serve the interests of the people? Though there are no
definite provisions acknowledging the separation of powers in an absolute form, the
Constitution has embraced the principle in an implied manner. According to the doctrine
of separation of powers followed, the legislature, executive and the judiciary all have
separate functions that are maintained via a system of checks and balances to avoid
overreach.
What, then, is the role of the fourth pillar, the media? It acts as a watchdog of the three
organs. Unlike in the US, where the freedom of press is guarded by the First Amendment
to the US Constitution, the same finds no mention in the Indian Constitution. Freedom of
press in India is considered an extension of Article 19(1) of the Constitution, thus making
it a bone of contention for a long time. Freedom of speech in India is subject to
restrictions under which it is curtailed for protecting the “sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public order,
preserving decency, preserving morality, in relation to contempt of court, defamation or
incitement of an offence”.
The Supreme Court, in Romesh Thapar v. State of Madras, first recognised the essence of
freedom of speech in the efficient functioning of democratic institutions. It observed that
“Freedom of speech and of the press lay at the foundation of all democratic
organisations, for without free political discussion no public education, so essential for
the proper functioning of the process of popular government, is possible”. Similarly, in
Union of India v.
Association of Democratic Reforms, the apex court noted: “True democracy cannot exist
unless all citizens have a right to participate in the affairs of the polity of the country.
The right to participate in the affairs of the country is meaningless unless the citizens are
well informed on all sides of the issues, in respect of which they are called upon to
express their views. One-sided information, disinformation, misinformation and noninformation all equally create an uninformed citizenry, which makes democracy a
farce...” Additionally, the Indian judiciary has, on several occasions, been celebrated for
its activism where it has played a proactive role in dispensing social justice.
But time and again, the thin line between judicial activism and judicial overreach has
constantly been blurred by High Courts across states, severely impacting the freedom of
press. Even with several judgments by the apex court to act as a guiding light, instances
of judicial overreach have been occurring frequently. For instance, in 2007, the Delhi
High Court sentenced the Editor, a journalist, printer, publisher and cartoonist of Mid
Day newspaper to four months in jail for carrying a ‘scandalous’ report and cartoon of
former Chief Justice of India Y K Sabharwal.
The newspaper in a series of reports alleged that the sons of the then-recently retired
chief justice used his office to profit from a sealing drive ordered in Delhi by their father
against several shops and establishments. Though the HC’s order was stayed by the
Supreme Court in 2007 itself, it took the apex court 10 years to give a final verdict on the
issue. More recently, in 2017, the Orissa High Court in the High Court Bar Association v.
State of Odisha & Ors put prior restraints on the media from reporting on a case. In
February 2017, a woman inspector who had visited the High Court alleged that a few
advocates misbehaved with her on the premises of the court.
Soon after the incident, a petition was filed by the Orissa HC Bar Association to stop the
media from reporting on the issue claiming that the media was only reporting the
woman inspector’s version of the story without checking facts of the case. The advocates
were able to receive a prior restraint on the argument that “... the entire incident has
been scandalised to the detriment of the reputation of the lawyers community and in
case such reporting is not stopped by an interim direction of this Court, the reporting by
the Print and Electronic Media (on the case) would bring down the reputation of the
institution as a whole and the public at large will lose faith in the High Court, which is
the highest body of the State Judiciary and regarded as a temple of justice.”
The Andhra Pradesh High Court’s recent gag order on the media from reporting on the
Amaravati land deal case is also a clear instance of judicial overreach. This order was
delivered within hours of the FIR being lodged, highlighting the chaos created when the
judiciary oversteps its powers. M Sridhar Acharyulu, a legal expert and former central
information commissioner, told an online news portal that the HC’s orders are “against
the rule of law, core text of freedom of expression under 19(1) and 19(2)”. He said the
courts have such powers according to a few past judgments, but facts on the ground do
not justify the invocation of such extraordinary powers and such a restriction was
judicial censorship.
The SC in Sahara vs SEBI (2012) held that the court can grant preventive relief on
balancing the right to free trial and a free press. Such temporary restraint was granted
by the apex court in the Sahara case, perceiving a real and substantial risk of prejudice
to the administration of justice. But the question of prejudicing the trial process will not
arise in this particular issue as the case is at the stage of an FIR, said K Nageshwar, a
professor of mass communication and journalism in Osmania University, Hyderabad.
There is no denying that the media should cover sensitive cases in a responsible manner
and must in all instances avoid media trials. However, infringing on the freedom of the
press and putting a lid on the mere reportage of issues is a disservice to the citizens. The
issue is of a serious nature because the judiciary acts as the recourse of justice for orders
passed by the executive and the legislature, but what happens when it infringes on the
freedom of speech and expression of the citizens? The ground reality remains that the
world’s largest democracy cannot afford to have instances of judicial overreach,
especially on the freedom of press. If not safeguarded properly, its curtailment could
lead to destruction of democracy.
Vijayasai Reddy V (venumbaka.vr@sansad.nic.in)