Reporting of court proceedings -openness and transparency is the basis of a fair trial

In Sahara India Real Estate Corporation Limited  freedom of press and the right to fair trial were the competing rights. In this case, the Constitution Bench was dealing with a question whether   an   order   for   postponement   of   publication   of   the proceedings   pending   before   a   Court,   would   constitute   a restriction   under   Article   19(1)(a)   and   as   to   whether   such restriction is saved under Article 19(2).   This question was answered by the Constitution Bench in para 42 as follows:

“42. At the outset, we must understand the nature of such orders of postponement. Publicity postponement orders should be seen in the context of Article 19(1)(a) not being an absolute right. The US clash model based on collision between freedom of expression (including free press) and the right to a fair trial will not apply to the   Indian   Constitution.   In   certain   cases,   even   the accused seeks publicity (not in the pejorative sense) as openness and transparency is the basis of a fair trial in which all the stakeholders who are a party to a  litigation including the Judges are under scrutiny and at the same time people get to know what is going on inside the courtrooms. These aspects come within the scope of Article 19(1) and Article 21. When rights of equal   weight   clash,   the   Courts   have   to   evolve balancing   techniques   or   measures   based   on recalibration under which both the rights are given equal space in the constitutional scheme and this is what the “postponement order” does, subject to the parameters mentioned hereinafter. But, what happens when   the   courts   are   required   to   balance   important public interests placed side by side. For example, in cases where presumption of open justice has to be balanced   with   presumption   of   innocence,   which   as stated  above,  is  now  recognised  as a  human  right. These   presumptions   existed   at   the   time   when   the Constitution  was  framed   [existing  law  under  Article 19(2)] and they continue till date not only as part of rule of law under Article 14 but also as an Article 21 right. The constitutional protection in Article 21 which protects the rights of the person for a fair trial is, in law, a valid restriction operating on the right to free speech under Article 19(1)(a), by virtue of force of it being   a   constitutional   provision.   Given   that the postponement   orders curtail   the   freedom   of expression of third parties, such orders have to be passed   only   in   cases   in   which   there   is real   and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is “the end and purpose of all laws”. However,   such   orders   of   postponement   should   be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change   of   venue   or   postponement   of   trial   will   not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order   of   postponement   will   only   be   appropriate   in cases where the balancing test otherwise favours nonpublication for a limited period. …” 6