New Delhi: The Rajasthan government’s ordinance on absolute restraint against media on identifying and reporting about legislators, judges and public servants is fraught with immense dangers against free press and right of public to know. After all, the primary role of media is to disseminate relevant information which would help the truth come out.
Prior restraint on media has been an issue often considered by the Supreme Court of India, which has invariably ruled against unbridled prohibition.
In 2012, a Constitution Bench had set out to examine the subject of pre-censorship of media and the ruling emphatically negated any concept of absolute restraint against media.
Although the five-judge bench had begun this exercise suo motu, the Court finally held that “guidelines on reporting cannot be framed across the board”.
Mapping out the “Lakshman Rekha”, the Court had then evolved the principle of “postponement of publication”, and its bid to balance the rights of freedom of press and fair trial.
As per the constitutional principle laid down by the court, an aggrieved party can move a high court or the Supreme Court seeking deferment of publication on a sub-judice matter. After going through the alleged offending publication and its effect, the court concerned can pass appropriate orders.
Not just this verdict put the onus on the person complaining against a publication to move a writ court, it also clarified that it will be decided by the judges on a case to case basis as to what would constitute an “offending publication”.
Further the Bench held it specifically that “such orders of postponement should be for short duration and without disturbing the content of the publication” and that “it should be applied only in cases of real and substantial risk of prejudice to proper administration of justice or to the fairness of trial.”
The Constitution Bench underlined that free press has been acknowledged as a constitutional right by several judgements of the top court and that media will be free to challenge any order on deferment of publication.
The Court had noted that postponement orders has to be considered as a “neutralising device”, not “punitive” but “preventive”, to be passed by a writ court if any other alternative remedy, such as change of venue or postponement of trial, failed to balance conflicting societal interests of right to know versus fair administration of justice.
A writ court could pass such an order under its inherent powers, and as a facet of reasonable restriction on the fundamental right to freedom of speech and expression — the only limitation laid down by the Constitution to free press.
This principle was reiterated by the apex court in January this year when it said that that pre-broadcast or pre-publication censorship is not the business of the court. The Court made it clear that the role of a court or a statutory authority will come in only after a complaint is levelled against a telecast or publication.
On the other hand, the ordinance by Rajasthan government tends to put the cart before the horse by drawing a prohibition across the board for a period which may extend to 180 days when a sanctioning authority in the government vets accusations against legislators and other public servants.
This prohibition is to be read with another restraint against initiating investigation against legislators and other public servants without sanction by an authority to be empowered by the state government.
Although the ordinance imposes the prohibition against investigation against judges and magistrates as well, it would not mean much in their case since a Supreme Court ruling has already laid down that chief justice of the high court concerned shall have to give a nod before judicial officers are investigated.
The ordinance therefore controls not just the investigation but publication of new and other details of individuals sought to be investigated, and a breach may invite a jail term up to two years.
Gagging media has never been approved by the highest court of the land, which has equated free press to fundamental right to expression and people’s right to know. It has described free press as “heart and soul of political discourse” and a “public educator” with a purpose to “advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.”
A 2016 judgment by the top court said that “freedom of speech and expression is regarded as the first condition of liberty”.
Given the emphasis on the utmost importance of free press in a democracy by the Supreme Court, Rajasthan government’s ordinance definitely becomes a suspect and its fate is bound to hang in balance as and when challenged before a constitutional court.
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