Accused has fundamental rights; Media’s freedom of speech not greater than rights of an individual: Jammu & Kashmir Court

Freedom of speech and expression available to media is not on a higher pedestal than the rights of individual citizens, a Jammu & Kashmir court said last week restraining nine Kashmir based media outlets from making derogatory and defamatory remarks against a person accused of kidnapping and sexual assault of a 23-year-old woman. .The Munsiff court at Srinagar further said that even an accused person is entitled to fundamental rights and there is no distinction between fundamental rights of an accused and a common person..Thus, allowing media to publish any derogatory and defamatory material may not only defame the plaintiff and his family but also interfere with fair and impartial investigation, the court said..“The media has the fundamental right of free speech and expression however, the said right is not greater than the rights of an individual. It is the legally bounden duty of the court to protect the fundamental as well as the legal rights of the parties and in the instant case the fundamental and legal rights of the plaintiff. Every person has a right to life and personal liberty and this right includes life with human dignity and in case any person is defamed or any derogatory statement is made against him that results in violation of fundamental rights,” judge Shabir Ahmad Malik said..The Court also directed defendants to suspend the links of any derogatory and defamatory statements or contents already published on social media/internet or news portals besides issuing summons to the media organisations for filing written statement.The Court was hearing a suit filed by Irzan Kounsar Khan against the media outlets seeking an injunction restraining them from uploading any news on their web-portals as well as social media vis- a -vis the plaintiff in any manner till the outcome of the case which is pending before the competent court of law..Advocate Hazim Qureshi, appearing for the petitioner, contended that the defendants had uploaded news on their web-portals, Facebook/ social media without ascertaining the real facts of the case. This caused great mental agony and humiliation to the plaintiff and his family, it was submitted. It was further contended that the plaintiff is the son of a prominent hotelier and the prestige, dignity, honour and status of the family will be badly hit due to the news..The Court said that while considering a prayer for injunction, the court is bound to assess that who shall suffer greater hardship which can’t be undone.“The court is also bound to ascertain that who shall suffer irreparable loss in case the relief is not granted,” it stated..In the instant case, if the ad-interim relief is not granted to the plaintiff, the defendants may continue publishing the derogatory and defamatory statements/contents against the plaintiff and his family members which shall affect the reputation and honour of plaintiff and his family members, the Court said. Therefore, it may cause an irreparable loss to the reputation of the plaintiff, it added.."In case the interim relief is not granted in favour of the plaintiff more inconvenience or mischief will be caused to him than to the defendants if the interim relief is granted, as such the balance of convenience also tilts in favour of the plaintiff and the plaintiff may suffer irreparable loss that cannot be compensated later on," the order said..It also added that the very well-established principle of criminal jurisprudence is that every person accused of an offence is presumed to be innocent until proven guilty.."Every person has a right to life and personal liberty and this right includes life with human dignity and in case any person is defamed or any derogatory statement is made against him that results in violation of fundamental rights," the Court observed..Even though the plaintiff in the instant case is accused of an offence, he is entitled to fundamental rights.“Fundamental rights do not differentiate between a common man and accused as the fundamental rights are equally applicable to every person irrespective of his status, caste, creed, sex, religion etc,” the Court made it clear granting relief to the plaintiff..[Read Order]