The Kerala High Court held on Thursday that statements from the media declaring an accused person guilty or innocent while the trial is pending would not fall under protected free speech under the Constitution.

A five-judge bench of the court said that if accused persons believe that their right to dignity has been infringed upon by the media, they can seek redressal before a constitutional court.

On May 24, 2018, a full bench of the High Court had referred a set of legal questions before a five-judge bench. These questions included whether existing rules were enough to regulate the media as per constitutional principles, and whether the fundamental right to freedom of speech and expression was available to the media in the same way as to citizens.

The five-judge bench held on Thursday that the media’s right to freedom of speech could not be restricted, except by a law made by a competent legislative body. Even in such cases, the right can only be curbed on the grounds mentioned in Article 19(2) of the Constitution.

Article 19(2) states that the government can restrict freedom of speech on account of national security and sovereignty, friendly relations with foreign countries and public order, among other grounds.

However, the court said: “The 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 guaranteed under Article 19 (1) (a) of the Constitution.”

Only a judicial authority can provide the “final and authoritative determination” of guilt or innocence, the court said.

The bench headed by Justice AK Jayasankaran Nambiar said that a trial by media shapes public opinion even before the suspects are charged. “Nowadays, we witness TV channels initiate intense discussions during prime time on ongoing criminal investigations and pending criminal trials of public interests,” it noted.

The court added that the media has “habitually overlooked” the legal presumption that an accused person is innocent until proven guilty.