'Right to fair trial can't overshadow freedom of speech'

New Delhi, April 17 (IANS) A person's right to free and fair trial enjoys no primacy over the right to freedom of speech and expression of the media, senior counsel Ram Jethmalani told the Supreme Court Tuesday.

Fundamental rights could only be restricted by a legislation passed by parliament and no guidelines by the apex court could shrink them, Jethmalani told the 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.

The court was hearing an application by 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.

"Article 21 has no primacy over any other article in part three of the constitution dealing with fundamental rights. If you satisfy Article 21 then you will have to satisfy the Article 14 (equality before law) which has an independent vitality," Jethmalani, who appeared for the Broadcast Editors Association, told the court.

As Jethmalani sought to build a case against the framing of the guidelines, Chief Justice Kapadia asked: "When it comes to Article 21, it is not a question of one right overriding the other... a person is dying of HIV and needs second line of treatment which is not available in all the government hospitals and is available in private hospitals and if we give some direction under Article 21, can you say 19(1)(g) is violated."

Responding to the query by the court, Jethmalani said that Article 21 does not put positive duties on the state to preserve and protect the right.

"If court wants the state to be so generous, even then it can't be done unless the government makes a statutory provision. All restrictions on fundamental rights under Article 19 need enactment of law," Jethmalani told the court.

Asking Jethmalani to assist the court, Chief Justice Kapadia raised the question that if there was enough material on record indicating that presumption of innocence would be violated by the media coverage "would the courts be debarred from passing the order of restraining the publication".

The senior counsel told the court to "frame guidelines and recommend the parliament to make a law and media may be asked to self-regulate itself in the light of the guidelines. We will persuade the parliament to pass a law".

The chief justice asked as to "why the government is not making law on the recommendation of the Law Commission".

The judges said they are not saying that the government should to take the recommendation of th Law Commission as it was, but something could be done on those lines, the court observed.

Appearing for The Statesman newspaper, counsel Madhavi Divan said for the sake of a few influential people, the right of a large number of people for open and free and fair administration of justice could not be compromised.

She said that what was needed was to generate public understanding and confidence in the administration of justice.