DOCTRINE OF POSTPONEMENT – BALANCING RIGHT TO FAIR TRIAL OF ACCUSED & RIGHT TO FREEDOM OF SPEECH & EXPRESSION OF MEDIA

“A defendant on trial for a specific crime is entitled to his day in court, not in a stadium or a city or

nationwide arena.” -          Thomas Campbell Clark (United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of  the United States from 1949 to 1967)

While upholding the death sentence of Ajmal Kasab, the Hon’ble Supreme Court came down heavily on the electronic media and made a scathing criticism of its reckless coverage of the 26^th November terror attack on Mumbai and observed that "the coverage helped the assailants counter security movements as their positions were being reported live. The operational movements were being watched by the collaborators across the border on TV screens and being communicated to the terrorists.” Media overreach is a daily affair these days, especially in under trial cases. Accused persons standing trial or who are likely to stand their trial in Courts, are being treated and tossed around like villains on prime time television debates much prior to the hearing of their cases.  Television channels indulge in deliberating, discussing and garnering speculative opinion regarding the facts and fate of under trial cases. The peril of prejudice born out of such unwarranted barrage of speculations and opinions about sub judice matters never appears to be considered by the media while dealing with such subjects. What the media seems to be unmindful of is the fact that excessive prejudicial publicity leading to usurpation of functions of the Court, not only interferes with administration of justice which is sought to be protected under Article 19(2), it also prejudices or interferes with a particular legal proceeding.

One specific area where the media of our country urgently needs to focus is that of achieving a correct poise while dealing with sub judice matters without surrendering journalistic ideals. The Apex Court has declared that “A trial by press, electronic media or public agitation is the very antithesis of rule of law”. Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent their encroachment upon civil rights. Therefore any prevention and / or regulation must necessarily come from the outside. Amidst such circumstances, the Supreme Court delivered a landmark verdict on 11.9.2012 in the case of Sahara India Real Estate & Ors Vs Securities & Exchange Board Of India & Anr.,wherein it expounded what is known as the doctrine of postponement. In this case the Court was seized with the adjudication of a dispute between the Sahara Group and market regulator SEBI (Securities Exchange Board of India) which had arisen due to alleged leakage of sensitive confidential communication inter parties and their consequential publication by the media. As a preventive measure against publications tending to prejudice the targets of such publication, the Apex Court propounded the ‘doctrine of postponement’ the gist of which it stated as thus:

“anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the …. principles of necessity and proportionality and keeping in mind 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. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fall within the proper constitutional framework.”

 The Supreme Court has categorically remarked that orders of postponement should not disturb the content of the publication and such orders would only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period. The Hon’ble Court elucidated the requirement of the doctrine by observing that

‘when there is no other practical means that is capable of avoiding the real and substantial risk of prejudice to the connected trials, postponement orders safeguards the fairness of such trials.’

Critics of the verdict predict that the judgment will lead to harassment of media persons and that it would create serious problems and opens the floodgates for the high and mighty to seek virtual censorship. However, in order to preempt any inference of its verdict as an attempt to suppress freedom of the media, the Apex Court while indoctrinating in the aforestated case has already made its views on the importance of media’s role clear. The Court has acknowledged that the media, in several cases in India, is the only representative of the public to bring to the notice of the court issues of public importance including governance deficit, corruption, drawbacks in the system. It has been further clarified that by setting forth the doctrine the Court is not passing a blanket order, rather the concerned Courts shall be free to deal with each application on a case by case basis. It is equally noteworthy that, this is not the first time that the Supreme Court has favoured the principle of postponement. In several instances in the past it has allowed prior restraint on publication and has thereby asserted that such an approach on its part is neither unwarranted nor unjustified.

A fair and unbiased media is indispensable in our country. It has in its own way served as a check against the corrupt and stood guard against exploitation of the vulnerable. Incidental to such purport and objective of its function, the media must necessarily carry with it the inherent right to freedom of speech and expression, guaranteed by our Constitution. However, unlike in the United States of America where freedom of expression is absolute under the First Amendment, in India freedom of speech and expression is not absolute and it is subject to reasonable restrictions. It’s high time the media realized the necessity of such a limitation keeping in mind the principles discussed and directions laid down in Sahara India Real Estate & Ors Vs Securities & Exchange Board Of India & Anr . It must also remember that playing to the gallery may maximize media's immediate commercial gains but slowly yet surely it’ll stand bereft of the support and admiration of the right minded people and that would be a barter the media cannot afford to make. Reinforcing the foundation of our democracy involves according due weight to both – right to free speech and expression on one hand and the effective administration of justice by ensuring fairness of trials on the other - a valued rule required to be remembered by all concerned.