The Bombay High Court’s recent judgment quashing the gag order on media reporting on the “sensitive” Sohrabuddin Sheikh encounter case has raised some uncomfortable questions: why is the judiciary arbitrarily gagging the press in certain cases, restricting the media’s freedom of expression and the public’s fundamental right to have access to information?

Not just that, gag orders – or “postponement orders” (i.e., temporarily stopping the media from reporting on a particular event) – are being issued by trial courts, who are not allowed to do so, as well as the higher courts. The judiciary, it has been pointed out, can effectively curb “wrong reporting” by judiciously invoking the power of contempt instead of barring the press from reporting.

The reasons given for imposing such restrictions are often vague – sometimes they are issued because the case is deemed “sensitive”, and sometimes at the mere urging of the defence counsel.

In law, “postponement orders” cannot be issued as a pre-emptive measure, but only after proof of harm or even a single instance of the trial and justice being prejudiced is brought forth.

In the case of judge SJ Sharma of the special court, adjudicating over the trial in the Sohrabuddin case, the honourable Additional Sessions Judge issued a media gag order on November 29, 2017, on the application made by one of the accused, citing apprehensions over the security of witnesses, the accused and lawyers.

The court accepted the accused’s plea, observing that publication of trial proceedings may create a “security problem”, and held that the gag order would hold for the entire duration of the trial. However, the judge did not mention or explain in his ruling what were the “exceptional circumstances” which necessitated this course of action.

On January 24, Justice Revati Mohite Dere, while deciding a writ petition filed by nine journalists,  quashed Justice Sharma’s gag order and accepted the petitioners’ contention that the trial court had exceeded its jurisdiction in gagging the press.

As laid down by the Supreme Court in the Sahara vs SEBI case in 2012, lower courts do not have the power to restrict the media from reporting on proceedings – there are no such provisions in the Code of Criminal Procedure or the Unlawful Activities Prevention Act or the Maharashtra Control of Organised Crimes Act – and it can be done only by a high court or the Supreme Court.

Essential conditions for restricting reportage

It is pertinent to note what the Supreme Court said about prior restraint orders in the SEBI vs Sahara case:

“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.” (emphasis added)

Further, the court held that such orders of postponement should be for a limited duration and without disturbing the content of the publication. “The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period,” the judges said.

Seen in this context, the gag order in the immediate case, or the one in the December 2012 Delhi gangrape case (subsequently quashed by the Delhi High Court in 2013) which was issued merely because the prosecution and defence claimed the case would be sensationalised, were clearly beyond the pale of law.

Higher courts also guilty

The transgressions committed by lower courts should not be an occasion for higher courts to bask in self-reflected glory, for they are equally, if not more, complicit in gag orders being issued willy-nilly.

Consider, for a moment, the blanket ban on media reporting that the Supreme Court issued last year in the contempt case against Justice Karnan of Calcutta High Court, just because the apex court judges did not want the delinquent judge’s views and opinions to be given the oxygen of publicity.

Or, the Allahabad High Court’s November 7, 2017, order banning all media reportage of the case for sanction for prosecution of Uttar Pradesh CM Yogi Adityanath over delivering a hate speech.

As stated above, the media can be temporarily restrained from reporting only in cases of ongoing criminal trials, and not for every case pending before a trial court or a superior court.

Despite these boundaries, the high court went ahead, completely oblivious to the fact that wrong reporting (as the judges alleged in that case) can be stopped by judiciously invoking the power of contempt.

Also, remember the Delhi High Court’s January 16, 2014, gag order on reporting about the sexual harassment case against former Supreme Court judge Swatanter Kumar, just because the reputation of a high and mighty apex court judge was at stake and because a cabal of lawyers were determined that the public were not entitled to know the unsavoury truth.

At that time, this writer had trenchantly criticised the high court for championing a SLAPP suit (Strategic Legal Action Against Public Participation).

Prior restraint on the press is presumptively unconstitutional, as the US Supreme Court held in the Nebraska Press Association case and which our Supreme Court held in the Brij Bhushan case in 1950. The Bombay High Court’s ruling against the Sohrabuddin case gag order should deter courts from whimsically and illegally restricting the media’s fundamental right.