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 non-information 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)
MP, YSRCP Parliamentary Party Leader and National General Secretary