Open justice – Supreme Court strikes a blow for both media freedom and fair procedure

Source: The post is based on the following articles

“Open justice – Supreme Court strikes a blow for both media freedom and fair procedure” published in The Hindu on 7th April 2023.

“In Media One verdict, SC does some much-needed plain-speaking on national security” published in the Indian Express on 7th April 2023.

“Free Speech: 1 Big Bench, 1 Benchmark” and “Article 19 Redux” published in The Times of India on 7th April 2023.

Syllabus: GS – 2: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Relevance: About Freedom of Press in India.

News:  The Supreme Court in the Madhyamam Broadcasting Limited vs Union of India case, annulled the Union government’s telecast ban on the Malayalam news channel.

What were the observations made by the court while delivering the judgment?

-The Centre said that the media channel is having alleged links with Jamaat-e-Islami Hind (JEIH). But the Court points out that JEIH is not a banned organisation. So, “it will be rather precarious for the state to contend that links with the organisation would affect the sovereignty and integrity of the nation.”

-The court agrees that restrictions on press freedom could lead to a “homogenised view on issues that range from socioeconomic polity to political ideologies” which “would pose grave dangers to democracy”.

-The Court could appoint an amicus curiae, who could be given access to the material whenever the state claims immunity from disclosure.

What is the significance of the ruling on Freedom of Press in India?

The ruling highlights a) An independent press is vital for the robust functioning of a democratic republic, b) The “anti-establishment” views of Media channels are not adequate grounds for invoking the national security exception to free speech, c) The need for greater openness and more freedom of the press, without which both justice and democracy are incomplete, d) Set standards for restrictions based on national security and the use of sealed envelopes by Centre, e) Enforces the established principle of natural justice thereby relevant material must be disclosed to the affected party along with ensuring right to appeal.

About the freedom of the press in India

Article 19 of the Constitution protects the freedom of the media. Like other fundamental rights, this freedom is subject to reasonable restrictions. Article 19(2) provides several reasons to curtail free speech “in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.

However, the Constitution doesn’t detail a benchmark to test the reasonableness of a restriction.

This non-availability of benchmarks resulted in governments at all levels have been using restrictions arbitrarily to clamp down on journalists and thereby restrict media freedom in India.

How courts in the past had different views on freedom of the press?

The court judgments in matters of free speech have often varied. A senior advocate once said that “depending on where your matter goes, who those two judges are, the outcome can be completely, radically different.”

For example, a) A SC bench at present is looking at “hate speech” without even defining the term, b) In 2010, a SC bench upheld the ban on a book that was critical of Islam. In that, the court held “We are not against your right (to free speech). But we are more for public interest and public peace in the country.” c) In 2017, the court refused to ban a book which allegedly defamed the entire vysya community, d) A recent trial court judgment upheld a complaint against Rahul Gandhi for his alleged remarks on the surname Modi, for which he has been sentenced to two years in prison for defamation.

What should be done?

The court’s view on freedom of the press has to be reasonably consistent. SC must not leave matters to individual judges and specific cases to decide the law. As this can only result in contradictory guidelines on free speech. To avoid that, the SC should constitute a full bench of seven or nine judges to review all free speech judgments (or those curtailing them) of the past, both at the apex court level and the high courts. This bench a) Can bring out the real limits to free speech, and the legitimate exercise of this right, b) Define hate speech clearly, and c) Laid down guidelines for police forces to determine when a speech actually constitutes a threat to public order of a magnitude where things may go out of control.