Case Summary and Outcome

The High Court of Kerala held that the media’s right to freedom of speech and expression under Article 19(1)(a) is not absolute and must be balanced against the individual’s right to dignity and reputation under Article 21 of the Constitution of India. The Court recognized the media’s critical role in democracy but emphasized its duty to provide accurate and contextually rich reporting, especially regarding criminal investigations and pending adjudications. Highlighting the risks of “trial by media,” the Court stressed that reporting that skews public perceptions or undermines judicial integrity violates constitutional principles. Adopting a double proportionality test, the Court established that while the media enjoys the right to report, this right is limited by constitutional values and cannot infringe on others’ rights or constitutional morality. It mandated that the media refrain from declaring guilt or innocence before judicial determinations and upheld the individual’s right to seek remedies for breaches of dignity or reputation caused by irresponsible journalism.

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Facts

Dejo Kappan, the Managing Director of the Center for Consumer Education, Kottayam filed a Writ Petition before the Kerala High Court under Article 226 of the Constitution, seeking to impose restraints on the power of media to report facts about pending cases and ongoing criminal investigations that are pending before adjudicatory forums. It was stated that media do not have an unfettered right to declare the innocence or guilt of parties under the guise of freedom of speech and expression while a criminal case is pending before an adjudicating authority. Subsequently, a public educational trust namely, “Public Eye” from Ernakulam, Kerala, also filed a similar Writ Petition. The petitions were placed before the Full Bench of the Kerala High Court. 

On May 24th, 2018, the Full Bench noted that considering an earlier decision of another Full Bench of Kerala High Court Court in S. Sudin v. Union of India, (2015), the Writ Petitions ought to be heard by a Larger Bench of five Judges of the High Court.

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Decision Overview

Justice A.K. Jayasankaran Nambiar, Justice Kauser Edappagath, Justice Mohammed Nias C.P., Justice C.S. Sudha, and Justice Syam Kumar V.M. heard the case. The primary issue before the Court was to determine what is the scope, extent, and content of the right to freedom of speech and expression guaranteed to the press/media under Article 19(1)(a) of the Constitution of India, in the context of reporting facts relating to criminal investigations and cases pending adjudication before various adjudicatory forums in our country. 

The Petitioner contended that existing regulations, such as the Press Council Act, 1978, the Cable Television Networks (Regulation) Act, 1995, and various other laws, including the Contempt of Courts Act, 1971, and guidelines issued by regulatory bodies, failed to adequately regulate the publication of news concerning matters pending in court. The Petitioner urged that while the media possessed the right to publish news and views, this right did not extend to reporting on ongoing investigations or pending criminal trials, as such reporting risked interfering with the administration of justice. The Petitioner further highlighted that inaccurate or contextually distorted reporting of court proceedings misled the public and undermined confidence in the judiciary, particularly when the court’s verdict differed from public expectations shaped by such reports. The Petitioner insisted that journalists, as part of democratic institutions, bore a duty to present truthful and accurate facts and urged the court to frame guidelines to define the media’s duties and limit their rights under Article 19(2) of the Constitution. [para. 4]

On the other hand, the Respondent contended that the reference of the issue to a Larger Bench was unwarranted, as the referring Full Bench had not doubted the correctness of the law established in S. Sudin case. The Respondents referred to the precedents such as Pradip Chandra Parija v. Pramod Chandra Patnaik, Shah Faesal v. Union of India, and Dawoodi Bohra Community v. State of Maharashtra to emphasize that a co-ordinate Bench must question the correctness of another co-ordinate Bench’s decision before making such a reference. The Respondent further contended that the Full Bench in S. Sudin had followed the Supreme Court’s judgment in Sahara India Real Estate Corporation v. SEBI, which ruled against external regulations on the press, favoring internal regulation instead. Petitioner, while referring to Article 141 of the Constitution, asserted that this court could not reinterpret the binding Sahara judgment under Article 226. [para. 5]

The Respondents further contended that imposing blanket regulatory measures would amount to pre-censorship of the media, violating the principles established in Sahara, which called for a case-by-case examination and application of balancing principles. They highlighted the democratizing effect of digital and online hearings, which enabled real-time reporting and enhanced public access to judicial processes, making additional restrictions unnecessary. They referred to the Supreme Court’s ruling in Kaushal Kishor v. State of Uttar Pradesh, (2023), asserting that restrictions on free speech could only be imposed through legislation under Article 19(2). The Respondents also emphasized that while privacy is a fundamental right under Article 21, as recognized in K.S. Puttaswamy v. Union of India, this does not justify prior restraint or external regulation of the media. In conclusion, they referred to  R.K. Anand v. Registrar, Delhi High Court, and Nebraska Press Association v. Stuart, to contend that existing laws and regulations sufficiently address media conduct, and additional judicial guidelines would overstep constitutional boundaries by creating judicial legislation. [para. 5]

The Court analyzed the balance between the right to freedom of speech and expression of the media and the protection of individuals’ dignity and reputation, particularly in the context of criminal investigations and ongoing legal proceedings. It recognized that media reporting can influence public perception, often skewing the public’s view on the guilt or innocence of a person under investigation or the probable outcome of a pending case. This can undermine the integrity of the legal system, especially if media reporting distorts facts or omits crucial context, thereby affecting the rights of the individuals involved. The Court emphasized the importance of balancing the right to free speech and expression with the right to a fair trial. In Suraj T.N. v. State of Kerala, (2022), it was observed that “trial by media” could influence public opinion and create a perception of guilt or innocence that might not align with the judicial process. The media’s power to shape public perceptions was seen as undermining the trust in the legal system, particularly when media outlets criticized judges rather than judicial decisions. [para. 7]

The Court reaffirmed the importance of open court proceedings, noting that public access to court hearings is crucial in a democracy, as it ensures transparency and accountability within the judicial system. The right to know what transpires in court was deemed essential for the public to maintain faith in judicial processes. Referring to the Swapnil Tripathi v. Supreme Court of India (2018) case, the Court discussed how the media plays a pivotal role in bridging the knowledge gap caused by physical constraints preventing the public from attending court hearings. It also referenced R v. Socialist Workers Printers (1974), which stressed the disciplinary effect public presence has on court proceedings, urging more careful behavior from judges and lawyers when the press and the public are present. [paras. 8-9]

The Court further examined the media’s fundamental right to freedom of speech under Article 19(1)(a) of the Constitution, recognizing that this freedom is vital for a healthy democracy and an informed citizenry. However, it emphasized that the media’s responsibility includes providing accurate, truthful, and contextually rich information. While referring to Sakal Papers (1962) and Express Newspaper Pvt. Ltd. v. Union of India, (1984), the Court reinforced that any law infringing on the media’s right must be justified under Article 19(2). The Court underlined that the right to freedom of speech and expression must be balanced with the individual’s right to reputation and a fair trial, as seen in cases like Subramaniam Swamy v. Union of India (2016) and Noise Pollution (V) In re (2005), where certain limitations on speech were justified in the interest of public safety and reputation. [paras 10-12]

The Court referred to previous rulings on the balancing of rights, particularly when fundamental rights conflict. It referred to Sahara India Real Estate Corporation Ltd. (2012) to illustrate how media reporting could infringe on the right to a fair trial, and suggested remedies like postponing trials or changing venues to minimize the harm caused by prejudicial publicity. In K.S. Puttaswamy v. Union of India (2017), the Court recognized the right to privacy and introduced the proportionality test for resolving conflicts of fundamental rights, a framework that the Court adopted for balancing the competing rights in this case. The Court concluded that a fair trial must be protected from media influence, and judicial remedies must be employed to avoid irreparable harm to the accused’s rights. [paras. 13-16]

The Court acknowledged the challenges in balancing fundamental rights, particularly when two rights conflict. In discussing the concept of proportionality, it referenced the academic views of Aparna Chandra, who argued that the proportionality test, a global standard, requires a balance between the purpose of limiting a right and the harm caused. However, the Court found that the single proportionality standard, typically used to evaluate rights violations, is insufficient for conflicts between two fundamental rights. In this case, the tension between the media’s freedom of speech under Article 19(1)(a) and the individual’s right to dignity and reputation under Article 21 needed to be addressed. [paras. 17-19] The Court recognized that the media’s right to freedom of speech must be reconciled with the individual’s right to privacy, and it questioned how best to balance these competing interests.

The Court adopted the double proportionality standard, as outlined in Association for Democratic Reforms v. Union of India, (2024), which provides a more nuanced approach to conflicting rights. This standard involves four key steps: determining if a hierarchy between rights exists, ensuring the measures are suitable for both rights, verifying that the measures are the least restrictive, and assessing any disproportionate impact. The Court emphasized the need to protect both rights as much as possible and create a balanced “measure” that reconciles them in situations involving media reporting on criminal cases. The Court further emphasized that it must operate within its constitutional mandate, particularly when determining the limits of the right to free speech in specific scenarios. [paras. 19-23]

The Court also referred to previous judgments, including Kaushal Kishor v. State, (2023), which addressed the limits of free speech and the state’s role in protecting rights. It clarified that restrictions on speech must be based on the grounds specified in Article 19(2), and these restrictions cannot be imposed by the judiciary but only through laws enacted by the State. The Court also recognized that speech that violates others’ rights or goes against constitutional morality falls outside the protective scope of Article 19(1)(a). The fundamental duties enshrined in the Constitution were also cited as essential for evaluating speech’s limits, linking rights with duties like promoting fraternity and unity. [paras. 24-25] 

The Court concluded that speech violating another’s fundamental rights or breaching constitutional values cannot be protected under Article 19(1)(a). It held that the media’s right to freedom of speech and expression under Article 19(1)(a) is subject to restrictions imposed by a law made by a competent legislative body, as well as by the principles enshrined in Article 19(2) of the Constitution. This right is inherently limited by its interplay with other constitutional rights, such as the right to dignity and reputation under Article 21, and the duties imposed on the rights holder by the Constitution. The court emphasized that in cases of conflict, the media’s right under Article 19(1)(a) must yield to the individual’s right to dignity and reputation, as well as to the values, concepts, and fundamental duties recognized by the Constitution. It further held that when reporting on criminal investigations or pending adjudications, the media must respect the principle of separation of powers, refraining from expressing definitive opinions on guilt or innocence until a judicial authority has made a determination. The court declared these principles to guide responsible journalism and prevent violations of individual rights. It also affirmed the right of aggrieved individuals to seek constitutional remedies for breaches of their dignity or reputation caused by media actions, drawing on precedents to ensure appropriate measures to prevent or address harm. [para. 26]

Concurring Opinion of Justice Dr. Justice. Kauser Edappagath

Justice Dr. Kauser Edappagath, in his concurring opinion, underscored the critical balance between the media’s right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution and the competing rights of dignity, privacy, and a fair trial. He began his opinion by affirming that while a free press is indispensable in a democracy for ensuring transparency, accountability, and an informed citizenry, this freedom is not absolute and must be tempered by restrictions aimed at safeguarding the rights of individuals involved in legal proceedings. He emphasized that the right to fair trial, which is a cornerstone of justice and a constitutional guarantee under Articles 20 and 21, must not be undermined by unchecked media practices. Justice Edappagath acknowledged the media’s role as a “watchdog” but cautions against overstepping its boundaries and interfering with judicial processes. [paras. 3-6]

Justice Edappagath further elaborated on the principle of open justice, which allows the media to report on court proceedings to uphold transparency and public faith in the judiciary. He highlights that public access to legal processes, as enshrined in Section 327 of the CrPC, aligns with the constitutional right to know. However, he warned that the media’s right to report must be balanced against the potential harm caused by sensationalism or premature disclosures that might jeopardize investigations or unfairly influence public opinion. Such practices, he noted, risk undermining the presumption of innocence, a fundamental tenet of criminal jurisprudence, until guilt is established beyond reasonable doubt. [paras. 5-7]

Justice Edappagath’s opinion critically addressed the phenomenon of “media trials,” wherein investigative journalism or editorializing by the media often prejudices legal processes. Justice Edappagath observed that sensationalist reporting can distort the distinction between an accused and a convict, creating a “kangaroo court” atmosphere that violates the presumption of innocence and impinges on the accused’s right to a fair trial under Article 21. He referred to landmark judgments like Manu Sharma and Rajendran Chingaravelu, which caution against the media’s tendency to prematurely declare individuals guilty, thereby undermining the judicial process and potentially allowing real culprits to escape due to procedural lapses. [paras. 9-10]

Justice Edappagath concluded by reaffirming that the media, as the fourth pillar of democracy, must act responsibly and within constitutional limits. It has a duty to inform the public without encroaching upon the domains of investigative agencies, prosecutors, or the judiciary. While freedom of speech and expression remains vital, this right must not be exercised at the cost of human dignity, privacy, and the rule of law. He called for adherence to constitutional principles to ensure that justice is not only done but is also seen to be done, emphasizing the importance of fairness and impartiality in media reporting. [paras. 10-11]

Concurring Opinion of Justice Mohammed Nias Chovvakkaran Puthiyapurayil 

Justice Mohammed Nias Chovvakkaran Puthiyapurayil in his concurring opinion addressed the critical balance between media rights and judicial integrity in criminal proceedings. He began with an acknowledgment of his fellow judges’ scholarly opinions and framed the discussion around the complex intersection of justice dispensation and journalistic responsibility. Justice Puthiyapurayil emphasized that while the public had a vested interest in understanding the criminal justice system through media coverage, this right needed careful balancing against constitutional protections, particularly Article 21 (right to life and personal liberty). He explicitly stated that Article 21 rights took precedence over Article 19 rights when it came to reporting about ongoing investigations or pending court proceedings. Justice Puthiyapurayil explained this hierarchy as crucial because media coverage could significantly influence public perception and potentially impact the fairness of trials. [paras. 1-3]

Justice Puthiyapurayil focused heavily on the phenomenon of “trial by media” and highlighted its detrimental effects on the justice system. He strongly criticized media reports that went beyond factual courtroom events, particularly those based on leaked information from investigative agencies or speculative allegations. Justice Puthiyapurayil argued that such reporting fell outside the protection of Article 19(a) of the Constitution and could severely undermine the presumption of innocence principle. He expressed particular concern about how media portrayals created public perceptions that contrasted with judicial conclusions, leading to widespread distrust when court verdicts differed from media-shaped expectations. This erosion of public confidence in the justice system, he warned, could have far-reaching consequences for democratic society and the rule of law. [paras. 4-8]

Justice Puthiyapurayil concluded by offering practical guidelines for responsible media coverage while supporting his arguments with significant legal precedents. He referred to the Press Council of India Norms of Journalistic Conduct 2022 and emphasized that the media should remember its role was not that of a prosecutor and needed to follow the principle of presumption of innocence. He suggested that media personnel needed training about court functioning and legal processes to understand their responsibilities better. Justice Puthiyapurayil referred to State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) and Express Newspaper Pvt. Ltd. v. Union of India, (1984), and reinforced that press freedom, while crucial, was not absolute. Justice Puthiyapurayil proposed a practical solution: the media should provide relevant material to investigating officers or inform the court rather than publish it directly. This approach, he argued, maintained the media’s essential watchdog role while preserving the integrity of judicial proceedings. [paras. 9-13]

Concurring Opinion of Justice Syam Kumar 

Justice Syam Kumar V.M., in his concurring opinion, emphasized the nuanced interplay between fundamental rights, especially freedom of speech under Article 19(1)(a), and the right to dignity, privacy, and a fair trial under Article 21. While concurring with the opinions of Justices Nambiar and Edappagath, he elaborated on the need to reconcile these seemingly conflicting rights in the context of media reporting on criminal investigations and pending judicial proceedings. He underlined the jurisprudential evolution through landmark cases like Sakal Papers, Shreya Singhal, and Sahara, which outline the boundaries of free speech and the necessity to protect against misuse that may compromise fair trials or individual dignity. [paras. 4-5]

Applying Hohfeldian legal analysis, Justice Kumar explained that rights are relational and exist within a framework of corresponding duties and obligations. He underscored that the right to freedom of speech must be understood not as an absolute entitlement but as part of a legal relationship that balances privileges with responsibilities. This perspective requires recognizing both the rights of the media to inform and the obligations to avoid harm to individual dignity or judicial processes. He concluded that a harmonious balance between these rights can be achieved through adherence to constitutional mores, including principles like the separation of powers and the interdependence of rights and duties. [paras. 6-8]

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