A constitution bench of the Supreme Court is in the midst of an important and interesting debate over how to balance rights of the accused and press freedom to ensure fair trial is not a casualty. Rightly, it has been voicing concern about intrusive or excessive media reporting of trial proceedings, which sometimes vilified an accused or endangered witness security.
If an accused had a genuine apprehension of breach of his right to life which involves his dignity and reputation because of media glare and sought protection by a preventive judicial order, what should the constitutional courts do?
Can the court not order temporary postponement of reporting to prevent pernicious effect on a precious right? Should it ask the accused to wait until his right was violated and then seek damages through a suit? These are the questions the SC wants the constitutional experts to deliberate upon and come up with some practical solution to strike a balance between the right of the accused and the press freedom. In situations born out of serious infraction of fundamental rights, the courts have an unquestionable mandate to protect the citizen's rights, even prisoners. In Sunil Batra vs. Delhi Administration [1980 SCC (3) 483], the SC had said: "Where injustice, verging on inhumanity, emerges from hacking human rights guaranteed in Part III (of the Constitution) and the victim beseeches the court to intervene and relieve, the court will be a functional futility if it does not go into action until the wrong is righted. The court is not a distant abstraction omnipotent in the books but an activist institution which is cynosure of public hope. The court can issue writs to meet the new challenges."
The reason behind the guidelines for protection of the prisoner's right in the Sunil Batra case is evident from the critical words - injustice, inhumanity, hacking of human rights contrasted with public hope and new challenges. But, guidelines for reporting criminal case proceedings have an important flip-side and the Supreme Court must bear in mind the constant attempt by some rich, powerful, influential and famous accused to scuttle the trial through methods, both legit and illegal. Let us take an example. The court orders temporary suspension of reporting on the plea of an accused. During this period, the accused colludes with prosecution to get certain crucial charges dropped. What should a reporter do - report it any way keeping in mind public interest or honour the court's temporary gag order passed in consonance with the Supreme Court laid down guidelines?
It has happened in a hit-an-run case. A sting operation by a TV channel saved the trial. When poor suffer at the hands of rich and powerful or die under their car wheels, money plays an overbearing role in silencing the gut-wrenching animated sobs of the victim's kin. The cars turn into trucks in their testimonies, reporting of which would surely be objected to by both the accused and witnesses.
The accused would not like the smokescreen created with money power to be pulled down. The relatives would like to secure their future after the death of their breadwinner. Punishing the rich and telling the truth would not really help the kin in life. What does a reporter do - report it any way or just look the other way?
True, it is difficult to strike a balance between the rights of an accused against the press freedom, which involves public's right to know.
The Punjab and Haryana High Court had dealt with a similar situation in a case relating to huge cash-for-job scam in state Public Service Commission relating to recruitment of Class-I and II officers, few of whom were allegedly kin of Judges.
Aggrieved by incessant reporting of the scam, then PPSC chief and main accused Ravinderpal Singh Sidhu moved the HC. A gag order was passed by Justice K S Garewal on May 3, 2002. He ordered: "It is in the interest of fair and impartial investigation, besides trial, that the respondents (newspapers) are completely prohibited from disclosing the contents of the statements of the witnesses recorded under Section 161 of the Code of Criminal Procedure or the contents of the statements and confessions, if any, recorded under Section 172 of the Code".
On an appeal, a bench of Justices G S Singhvi (now a Supreme Court Judge) and Bakhshish Kaur on May 31, 2002, said, "There was no valid reason for imposing any restriction, much less a ban, on publication of news items and reports on the progress of investigation being conducted by various agencies of the Punjab government into what is being described as PPSC recruitment scam."
Importantly, the bench said: "The reports appearing in the press and the electronic media about a case involving PPSC chairman Ravinderpal Singh Sidhu, suggesting that he had amassed wealth running into crores of rupees by corrupt means and polluting the progress of selection leading to the recruitment of various persons to Class I and II services in the state of Punjab, do not in any manner violate his fundamental right to free and fair trial under Article 21 of the Constitution of India".