New Delhi, April 11 (IANS) While protecting the rights of an accused to a free and fair trial not prejudiced by media reporting, the Supreme Court should not cross the 'Lakshman Rekha' of reasonable restrictions provided in the constitution, a senior lawyer contended Wednesday.
An apex court constitution bench of Chief Justice S.H. Kapadia, Justice D.K. Jain, Justice S.S. Nijjar, Justice R.P. Desai and Justice J.S. Khehar was told by senior counsel Anil Divan that the restriction on free speech and expression could only be reasonable and confined to those specified under Article 19(2).
"This is a Lakshman Rekha. You can't go beyond Article 19(2) to protect the (right guaranteed under) Article 21. This would amount to undoing the 60 years of jurisprudence done by the Supreme Court," said Divan, who appeared for The Hindu newspaper.
The court was hearing an application by the Sahara India Real Estate Corp voicing its grievance over a news channel reporting its proposal made to the Securities and Exchange Board of India on securing the money it mopped up from the market.
The court earlier said that it would frame guidelines for reporting on sub-judice matters.
Divan said that the reasonable restriction specified under Article 19(2) could only be in "relation to sovereignty and integrity of India, security of the state, friendly relations with foreign States, public order, decency or morality".
Besides this, restrictions could be imposed in relation to "contempt of court, defamation or incitement to an offence", he said.
He said that the guidelines for reporting on sub-judice matters, if at all they had to come, must not be coercive and binding in nature.
In a poser to Divan, Chief Justice Kapadia asked: "If a court says that it wants to protect the rights of an accused (to free and fair trial) under Article 21, would it amount to restriction on any other fundamental right under chapter III of the constitution."
As Divan resisted the attempt to put in place guidelines to regulate media reporting of the sub-judice matter, the chief justice said: "If presumption of innocence is the basis of the rule of law and if a court feels that due to media reporting that presumption of innocence is breached, thereby infringing upon the administration of justice, does the court have no powers to put the restrictive ban or temporary ban on media reporting the court proceedings."
The senior counsel told the court that it could not frame the guidelines taking recourse to its inherent powers under Article 142, which empowers the apex court to enlarge the scope of hearing in a particular matter.
"The inherent powers had to be exercised with great caution" as it may happen that the exercise of the power, intended to achieve justice, may end up frustrating the goal, he said.
Chief Justice Kapadia asked if a competitor in business used media to attack his rival, should there be no guidelines to check them.
"There are cases where they (media) know that they are being paid by a party to hurt or destroy someone's business rival. What happens in that situation?" he asked.
Referring to an earlier apex court constitution bench judgment, Divan said that the proceedings in a pending matter were open to public and media could not be restrained from reporting it.
He told the court that apex court had already "balanced the requirement of 'open justice' principle and the 'fair trial' doctrine..."
Arguing that guidelines could not cure all the ailments in the world, Divan said "how far we can go. We can't cure all ailments in the world by guidelines. Where we say thus far and no more".
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