TMI Blog2013 (2) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by the members of the society in social and political decision making; and (iv) As maintaining balance between stability and change in the society. But society cherishes other values to be attained. They are equally important. Impartial administration of justice and a right to presumption of innocence is one such value. The two interests i.e. interest of the society in freedom of speech and right to a fair and impartial administration of justice have to be balanced, for more often than not, they frequently clash with one another. The resolution of the two conflicts requires the identification of the core values of the two social interests, for only then, can the society harmonize the two. 2. Communication is the very essence of social life. It is difficult to imagine a civil society which has no expression. Faith in democracy is rested on the dictum: 'Let people have the truth and freedom to discuss it and all will go well.' The proponents of freedom of expression believe that if there is free trade in the market place of ideas, truth will grapple with falsehood and would ultimately prevail. Thus, they maintain that no fetters whatsoever and howsoever small can be pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s where to draw a line between the 'right to tell' and the 'right to a fair trial'. 10. The first reported case in England is Pool vs. Sacheveral (1720) IP. Vms. 675 where the press was charged for contempt. In the decision reported as (1742) 2 ALK. 469 Roach vs. Gorran Lord Hardwick committed the printer of St. James, The Evening Post for libel against witnesses in a pending matter. Perversion or obstruction of the course of public justice was treated as an offence. 11. Any publication which impairs or prejudices or tends to impair or prejudice a free and fair trial was treated as Contempt of Court. Lord Cottenham L.C. in the report published as (1837) 2 Y Cr. 316 'Re Ludlow Charities Lechmere Charlton's said: 'If the object is to taint the source of justice and to obtain the result of legal proceedings different from that which would follow in the ordinary course is a contempt of the highest order'. 12. Thus, one measure to gag the Press would be to see whether the offending publication would amount to a contempt of the Court and this would mean to determine whether the publication interferes or tends to interfere in the administration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. In the decisions (1949) 93 S.O.L. JO 220 R Vs Bolon Ex-parte Haigh, (1957) 1 Q.B. 73 R Vs Odham's Press Ltd. Ex-Parte The People, (1823) 2 L JOS. K.B. 30 R Vs William imputations regarding guilt of the accused were held to be actionable. It was held that any attempt whatsoever to prejudice a criminal case whether by a detail of evidence or by a theatrical exhibition is an offence against public justice. In (1924) 40 T.L.R. 833 R Vs Evening Standards the newspaper which was conducting private investigation and publishing its results was held to be committing 'trial by newspaper' by causing a private 'criminal investigation' and hence interfering in the administration of justice. (1889) 58 LJQ O.490 Hunt Vs Clarke, (1960) 2 All E.R. 891 R Vs Doufly and (1973) 1 QB 710 Attorney General Vs Times Newspaper Ltd. are other reported decisions on the point. 20. The Committee on the Law of Contempt under the Chairpersonship of Salmon L. J. summarized the danger of trial by press in the following words: The witness could be bullied or unfairly led into giving an account which was contrary to or put a slant upon the truth. He could commit himself, particularly unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt interest to be considered. It is the interest of the public in matters of national concern, and the freedom of the press to make fair comment on such matters. The one interest must be balanced against the other. There may be a case where the subject matter is such that the public interest counter balances the private interest of the party. In such cases the public interest prevails. Fair comment is to be allowed. 22. In the opinion published as 1974 AC 273 Attorney General v. The Times Newspapers Ltd. the House of Lords overruled the decision of Lord Denning and granted the injunction holding that if a publication would prejudice the issue in pending proceedings, the injunction must follow. And many are of the opinion that the law declared by Lord Denning has been overturned by the House of Lords, an opinion which is incorrect, for the reason the concurring opinion penned by Lord Reid, Lord Morris, Lord Diplock, Lord Simon and Lord Cross took the same legal view as was taken by Lord Denning; but differed in its application from Lord Denning on facts. 23. 'Gagging injunctions' as was the expression used by Lord Denning were discussed by Lord Reid in the following wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and therefore would be interfering with the administration of justice. 28. In paras 14 and 15 above, we have highlighted that prejudice by a publication would be in two categories : which tend to impair the courts impartiality or which prejudice the court's ability to determine the true facts. With reference to impartiality of the Court being impaired, we have noted that this would be either by commenting on the character of the accused or by publishing alleged confessions by the accused for the reason a fact may be conveyed to a Judge which would have evidentiary value but which a Judge should not be receiving or by commenting on the merits of the case. Thus, with respect to publications, which would include television shows, one must be careful to see as to in which of the three categories by which the impartiality of the Court could be impaired does the offending publication fall; and needless to state if the offending publication does not fall within any of the three categories the question of the same tending to impair the Court's impartiality would not even arise and likewise with respect to publications which are alleged to be likely to prejudice the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court on April 04, 2013. It is pleaded that telecast of the programme would have an immediate and prejudicial impact on the rights of the respondents. But, in what manner there would be a prejudicial impact has not been pleaded. 32. The plaint presumes that the very fact of telecasting the programme, which we are given to understand is a dramatic version of the evidence led at the trial and hence already in public domain, would cause prejudice. 33. Referring to the development of law on the subject of publications vis- -vis court proceedings and after considering the decisions reported as (1998) 4 SCC 592 Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd., 1973 AC 273 (House of Lords) Attorney General v. Times Newspapers Ltd., 2005 (2) ALD 451 D.N. Prasad v. Principal Secretary, 2001 (59) DRJ 298 (FB) Surya Prakash Khatri v. Madhu Trehan, (2012) 10 SCC 603 Sahara India Real Estate Corporation Ltd. Ors. vs. Securities and Exchange Board of India Anr., (2004) EWCA Civ 1462 Greene v. Associated Newspapers Ltd., AIR 2002 Del 58 Khushwant Singh Anr. v. Menaka Gandhi, 1995 (5) SCC 139 Tata Press v. MTNL and AIR 1967 SC 1 Naresh Shridh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoning of the learned Single Judge is that balancing interests demands that at least till such time the application filed by the respondents seeking suspension of sentence is adjudicated by the Court the respondents need to be saved from condemnation by the media. 36. In the absence of any prima facie finding that the plaintiffs had been able to demonstrate a substantial risk of prejudice, the question of balancing the interests as has been done by the learned Single Judge would not even arise for consideration. In fact, the balancing of interest has to be with reference to the right of the media to tell and the right of the citizens to know vis- -vis the right of the accused and the fulcrum of the balancing being : 'Demonstrable substantial risk of prejudice,' and not the financial interest of the Broadcaster vis- -vis the right of the accused. 37. The learned Single Judge has not even viewed the proposed programme, much less read the transcript thereof. Unless the same was viewed and the transcript read, it would be impossible to find out whether the publication made comments on the merits of the case or upon the character of the accused for the reason trial is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
