Tuesday 11 September 2012

Supreme Court Propounds New Doctrine On Media Regulation

It is called the "Doctrine Of Postponement". The Hon'ble Apex Court has yesterday held that "An accused or an aggrieved person, who genuinely apprehends an infringement of rights guaranteed under Article 21 of our Constitution can seek postponement of publication." The Hon'ble Court was dealing with the dispute between the Sahara Group and market regulator SEBI, when a complaint was filed against breach of confidentiality during the pendency of the dispute in Court. It was alleged that certain sensitive confidential documents regarding the dispute were allegedly leaked and telecast. Adjudicating upon the complaint, the Hon'ble Court has laid down its observations. The Hon'ble Chief Justice of India, Sri S.H. Kapadia, observed that "Finding an acceptable constitutional balance between the freedom of press and administration of justice is a difficult task in every legal system." He also recalled the observation made by the Hon'ble Court in 1977 in the case of State of Maharashtra Vs. R.J. Gandhi that "A trial by press, electronic media or public agitation is the very antithesis of rule of law."

While allowing liberty to the accused to move Courts for postponement of publication of his case the Court also laid down a caveat that "Such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial."..."Reasonable restrictions on reporting of Court proceedings are needed for societal interest and this doctrine of postponement is one of neutralizing technique." It further observed that "Orders of postponement should be ordered for a limited duration and without disturbing the content of the publication... The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period,"

This doctrine is aimed at balancing the right of an accused to be presumed innocent till completion of trial with the media's right to freedom of expression.

It is pertinent to mention here that the Supreme Court refused to frame guidelines for media reporting of court trials but said higher judiciary could impose a temporary freeze on coverage if it was convinced that reporting in a case thus far had harmed the right of the accused to fair trial.

"The Doctrine of Postponement will serve as a lakshman rekha for the journalists and warn them not to cross it," the CJI said while reading out the judgment. The bench said when there was conflict between two weighty rights - right to dignity and right to presumption of innocence guaranteed under Article 21 and right to free speech under Article 19 - the right to free speech must give way to right to life as in India, the right under Article 19(1)(a) was not an absolute one. And ofcourse the media will have the right to appeal against postponement orders.


  1. With the addition of social media to conventional media, this would be even more difficult to implement

    1. Actually one has to read the full judgment to understand whether it applies against social media. But I guess, generally speaking, in my considered interpretation of the judgment, it should apply to social media as well. Because if it doesn't then what news channels will do is that though they will not broadcast it on TV, they will simply poist it on, say for instance, their facebook page or on their website. Thereby defeating the whole purpose of the directive.

      The implementation will be difficult but not impossible. What the accused / aggrieved person can do is get a blanket order (against all kinds of media publication) in his favour from the Court and if after that anyone publishes the concerned matter in any manner in any media, the accused / aggrieved person can drag him to Court for contempt of Court.

      But that's all easier said than done. I agree with you on that.
      Thanks Nishant for sharing your pov.

    2. The implementation gets pretty difficult. If I remember correctly Ryan Giggs, the footballer, had got such a blanket order but his name came out because some MP mentioned it in their House of Commons. And remarks made in House of Commons cant be sued against. And the reporters were free to report about the House proceedings.

      So it will be pretty difficult to restrain each and every individual.

    3. Yeah absolutely right. But then I fail to understand why no action was taken against twitter for having allowed publication of prohibited matter.

      As far as the issue of making remarks in House of Commons is concerned, it's true that they can't be challenged in courts of law due to legislative privelege. But I have serious doubts whether that would apply in this case, because when the MP made the remark, a prohibitory court order was already in place. And the MP knew that he was making a remark which is likely to be published as part of the House proceedings.

      I'll tell you what Nishant, everyone hankers after an opportunity to score brownie points. The MP knew that by saying against the prohibition he'd be a favourite of the media. And what better than that for a politician.

      A real legislator would have never discussed the issue considering the sensitivity of a legal injunction.

      And the Court has very rightly pointed out that though privacy can't be protected all the time, harassment can. Everyone knowing a secret affair is one thing and repeated broadcasting of the same (with all expected spicing) is entirely another thing. So you see the footballer may not have lost the battle entirely, with only having banned the media from continuous broadcasting of his private affairs.

      But I seriously believe, Twitter, in this case too like any news channel hankering after TRP, chose profit over ethics.

  2. really your blog is informative one,I get to know about this through you my friend.....thank you

    1. You are welcome brother. I'm glad that your info base is updated. Knowledge is power bro !!!!