Divan: Press freedom cannot be compromised for other rights

‘Unless media freedom to report court proceedings is protected, the right to know will be impaired”

Freedom of the press cannot be compromised with any other fundamental right enshrined in the Constitution, senior counsel Anil Divan argued in the Supreme Court on Wednesday.

Continuing his submissions before a five-judge Constitution Bench headed by Chief Justice of India S.H. Kapadia, counsel said the right conferred under Article 19 (1) (a) though not absolute could be abridged only as specified in Article 19 (2) (reasonable restrictions).

Mr. Divan, appearing for the Editor of

The Hindu , Siddharth Varadarajan, told the Bench that included Justices D.K. Jain, S.S. Nijjar, Ranjana Desai and J.S. Khehar: “We cannot remove all evils all over the world. We must examine how far we can go. Should we go [the] judicial way or there can be any other approach?” He said “if guidelines are laid down, they should not be coercive and punitive but normative.”

The CJI made it clear to Mr. Divan: “We are deliberating not much on the issue of media coverage. We are more concerned with Article 21 for the rights and liberty of people. The layman will not sit with editors and tell [them] what the mechanism to deal with it is. It is not the question of freedom of the media but if media is used to destroy someone, then what is the remedy? That is the question we are asking.”

Fair, accurate reporting

Mr. Divan, said press freedom under Article 19 (1) (a) could not be compromised to promote other rights. Article 21 could not be relied upon to impose restrictions `de hors' the limits carved out in Article 19 (2) on grounds of national security. “Fair and accurate reporting can be done if there is a facility of providing transcript of court proceedings. We don't have transcripts of court proceedings. It is worth considering having an official transcript because we are on fair and accurate reporting.”

Counsel said: “Article 19 (1) (a) includes the right to know and the right to be informed. Media (print and electronic) are the eyes and ears of the citizen and unless media freedom to report court proceedings is protected the right to know is impaired.” He said if the court was to have the power to make orders against the public at large it must be conferred by legislation. Quoting a catena of earlier Supreme Court decisions, he said: “A desirable end can't be achieved by prohibited means. It [framing guidelines] may be laudable but it can't be done.”

New jurisprudence

The CJI told Mr. Divan: “A new jurisprudence is now emerging. We have to take into consideration socio-economic factors. These things were not there before. How to balance the rights in such cases?” Mr. Divan said, “Don't make it coercive. It has to be normative.”

Counsel cited a 9-judge Bench judgment in the ‘Mirajkar case,' wherein the court held that the inherent power must be exercised with great caution and only if the court was satisfied beyond doubt that the ends of justice themselves would be defeated if a case was tried in open court, could it pass an order to hold in-camera trial.

‘Mirajkar case'

He said the ‘Mirajkar case' judgment was sufficient to protect the rights of fair trial. The present Bench could consider whether the exercise of giving guidelines was at all necessary when the principles laid down by the 9-judge Bench continued to hold the field, he said. Arguments will continue on Thursday.