Media can't declare guilt or innocence of accused pending trial: Kerala High Court full bench

The Kerala High Court on Thursday ruled that comments by the media declaring an accused guilty or innocent while a criminal case is still pending does not fall under protected free speech under Article 19(1)(a) of the Constitution of India [Dejo Kappan v. Deccan Herald & ors and connected cases].

A five-judge Bench of Justices AK Jayasankaran Nambiar, Kauser Edappagath, Mohammed Nias CP, CS Sudha and Syam Kumar VM pronounced the verdict.

The judgment included detailed analyses by four judges in separate, concurring opinions.

"Expression by the media of any definitive opinion regarding the guilt or innocence of a party in a criminal investigation or a case pending adjudication, before an authoritative pronouncement is made by the adjudicatory forum concerned, would not get the protection under Article 19(1)(a) of the Constitution," the lead opinion by Justice Nambiar said.

In a concurring opinion, Justice Edappagath flagged concern that the media habitually overlooks the principle of "innocent until proven guilty" and conduct "parallel investigations" that harm individuals who are accused in a case even before a court decides on their guilt or innocence.

The judge noted that public opinion is often fueled by such media reports and criticised such "kangaroo courts." While the media has a right to report on true and correct events relating to criminal trials, it must not overstep into the domain of investigating agencies or courts, he emphasised.

In another concurring opinion, Justice Nias observed,

"The media need to refrain from reporting on those aspects of the case that may affect the impartiality of the judicial proceedings, to preserve the integrity of the legal process and the rights of all individuals involved. Half-truths and misinformation must not be the foundation of any media publications or broadcasts, especially regarding ongoing criminal investigations, court proceedings, or trials. The media does not possess the authority to speculate on the outcomes of these legal processes or to draw conclusions about the individuals involved based on unverified information."

He also criticised the publication for "leaking" sensitive information from investigating agencies while criminal cases are pending. Such reportage will not be protected by Article 19 (1)(a), he said.

Justice Nias added that any media reporting that goes beyond the factual recounting of events that have transpired in a courtroom is subject to checks and can be curtailed.

Justice Syam Kumar referred to jurisprudential theories on competing rights (in this case the media's rights versus the rights of individuals accused in criminal cases) to emphasise that each right is accompanied by a duty to not infringe on other rights.

This ruling came on three writ petitions that challenged media reporting on ongoing investigations and trials. The petitioners contended that the media should not have an unfettered right to pronounce the guilt or innocence of individuals accused in criminal cases before a court decides on the matter after a trial.

The matter was referred to a larger Bench on May 24, 2018 for a conclusive determination on the scope of media reporting in criminal case.

The petitions were filed by Dejo Kappan from the Centre for Consumer Education and a Kerala-based organization, Public Eye. Along with these petitions, the High Court also took up a suo motu petition, triggered by a stand-off between the Bar and the media in July 2016.

Kappan’s petition raised concerns about inaccuracies in reporting oral observations made by judges, while Public Eye’s petition sought substantial reforms in reporting criminal trials. The petitioners further urged the authorities to establish guidelines for responsible court reporting.

In the November 7 verdict, the Court highlighted that courts have a role as a 'sentinel on the qui vive' (watchful guardian) to prevent fundamental rights of individuals from being breached by excessive or irresponsible reporting by media.

It said that while freedom of the press is a cornerstone of democracy, it must be exercised responsibly, especially when reporting on criminal matters.

The Court noted that though open court proceedings were essential for public awareness and accountability, the media should abstain from expressing definitive opinions that could influence public perception prematurely while reporting on criminal cases.

"In an age where live streaming of court proceedings offers a discerning citizen the option of following the court proceedings from a place of his choosing, and the principles of rule of law and separation of powers under our Constitution mandate that the adjudicatory function be exclusively discharged by courts, tribunals and like forums, we do not think the constitutional freedom of the press/media under Article 19(1)(a) of the Constitution extends in its scope and ambit to airing its personal opinion on what the result of a criminal investigation or an adjudicatory process would be by projecting it as a definite and inevitable outcome of the proceedings," the Court added.

Further, it highlighted that individuals whose dignity or reputation or right to privacy under Article 21 is compromised by the media's actions can seek remedies before the constitutional courts to protect these rights.

Advocates Johnson Manayani, Benhur Joseph Manayani and Jeevan Mathew Manayani represented Dejo Kappan.

Advocates CJ Joy, CC Abraham and Tiny Thomas represented Public Eye.

Senior Advocate NN Sugunapalan assisted the Court as amicus curiae.

Advocate General K Gopalakrishna Kurup, Additional Advocate General KP Jayachandran, Senior Government Pleaders Jaffer Khan and V Manu, and Special Government Pleader S Renjith represented the State. Advocates Suvin R Menon and TC Krishna represented the Union of India.

Counsel who represented various other respondents, including several media organisations and press unions, included Senior Counsel Elvin Peter PJ, R Lakshmi Narayan, K Ramakumar, MR Rajendran Nair, Grashious Kuriakose, G Shrikumar and Shyam Padman and advocates Ashik K Mohammed Ali, R Ranjanie, P Aniyan, G Biju, Benoj C Augustin, V BHari Narayanan, Jomy George, S Jiji, Kaleeswaram Raj, J Kasthuri, Legith T Kottakkal, Millu Dandapani, VV Nandagopal Nambiar,  Nagaraj Narayanan,  Dr KP Pradeep,  V Renju,  Ruby P Paulose,  M Rajagopalan Nair,  Ron Bastian, V Raima Ramesh,  Sebastian Paul, Sebastian Thomas,  Saijo Hassan, Sreekala Krishnadas,  Sebin Thomas,  Sabeena P, Ismail, Sajna T, Ummer  S, Vinod Bhat,  Vivek V Kannankeri, Vishnu Bhuvanendran,  PC Sasidharan, PC Chacko, CP Udayabhanu, Asha Babu, K Ramakumar, Krishnadas P Nair, MR Sudheendran, CM Andrews, Boby M Sekhar, Vj James, Jaimon Andrews, AH Najmal, Peeyus A Kottam, TT Rakesh, Ruben George Rock,  A Salini Lal, R Sunil Kumar, T Thasmi, S Vaisakh and Vimal Sankar

Standing Counsel Rajit appeared for the Bar Council of India.

[Read Judgment]