AT long last, the issue is now finally settled in favour of free speech. This right is not suspended merely because the issue is under trial before a court of law.
However, no right is or can be absolute. Its enforcement depends on the rights of others. There was a time when the disclosure of a plaint in a civil suit or a complaint in criminal case was barred. The quaint expression used in English law in older times was ‘prejudicing the mankind’. Now the press freely publishes documents filed in court by the parties.
One of the finest 20th-century judges, Lord Diplock held in the House of Lords: “Discussion, however strongly expressed, on matters of general public interest of this kind is not to be stifled merely because there is litigation pending arising out of particular facts to which general principles discussed would be applicable.
“If the arousing of public opinion by this kind of discussion, has the indirect effect of bringing pressure to bear upon a particular litigant … this must be borne because of the greater public interest in upholding freedom of discussion on matters of general public concern.” As Sir Kenneth Diplock QC, he also appeared before the Supreme Court of Pakistan in the Constituent Assembly case.
When the principle of freedom of speech conflicts with the principle of fair trial, the former must give way to the later. For involved here is the liberty of a person and his right to a fair trial.
The enforcement of a right depends on the rights of others.
As Geoffrey Robertson QC and Andrew Nicol, QC point out in their classic Media Law “The law of contempt serves a valuable purpose in so far as its operation is confined to placing a temporary embargo on publication of information that would make a jury more likely to convict a person who is on trial or shortly to face trial. Without such a law, the legal system would be forced to adopt the expensive, and not entirely successful, expedients used in notorious trials in America, where jurors are quizzed at length as to what they have seen in the press or on television and are then sequestered under guard in hotels, denied access to family, newspapers and television programme for the duration of the case. For all the fuss that is made about ‘trial by media’, it is very rare for convictions to be quashed because of adverse publicity.”
Latterly, there has between in India and elsewhere some disquiet at the excesses of the sentinel of liberty, the judiciary. Justice Frankfurter’s verdict in the ‘Minersville School District vs Gobitis’ is worth recalling: “Judicial review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to the courts is committed the guardianship of deeply cherished liberties. …
“Where all the effective means of inducing political changes are left free from interference, education in the abandonment of foolish legislation is itself a training in liberty. To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people.”
Justice Harlan’s words are remembered: “The constitution is not the panacea for every welfare; nor should this court, ordained as a judicial body, be thought of as a general haven for reform movements”
Earlier, chief justice Stone had mentioned another consideration: “While unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check of our own exercise of power is our sense of self-restraint.”
With such caveats, critics like Nathan Glazer readily concur. The very titles of his critiques ‘Towards an imperial judiciary?’ (and ‘Should judges administer social services?’ proclaim the core of his thesis.
The debate has been conducted with an erudition not often seen controversies. The prime object of the Bill of Rights is simply stated: “We set up government by the consent of the governed, and the Bill of Rights denies those in powers any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority” (justice Robert H. Jackson).
The court has, to be sure, gone beyond its mandate sometimes as it has no occasion failed to act. On every such occasion, whether of excess in action or in passivity, it has aroused keen and open controversy within its own ranks. “A dissent in a court of last resort,” Charles Evans Hughes wrote in 1928, “is an appeal to the brooding spirit of the law, to the intelligence of a future day.” It is very much more than that. It is at once an appeal to the people of the country.
The writer is an author and a lawyer based in Mumbai.
Published in Dawn, November 13th, 2021