Judicial censorship violates our Constitution

Recent cases in which courts have banned the press from reporting judicial proceedings violate India’s Constitution. Before his timely retirement, Justice C.S. Karnan made a series of shocking orders in two high courts against judges of the Supreme Court of India. He was sentenced to a term in prison for contempt of court. Then Chief Justice of India J.S. Khehar made an order on May 9, 2017 forbidding the media from publishing the contents of the orders passed by Justice Karnan. The public surely has every right to know why he was sent to prison and the contents of his orders.

Orders such as this are not only erroneous in law but also provide wrong guidance to the high courts.

On November 7, the Allahabad high court barred the media from reporting proceedings of a hate speech case in which Uttar Pradesh chief minister Yogi Adityanath was the prime accused, saying “wrong reporting of the day-to-day proceedings of this case... is causing a lot of embarrassment as the observations are reported out of context and very often misquoted... We are constrained to pass the order directing that no one shall publish or cause to be published any proceedings of this case till the delivery of judgment”. The courts have ample power to deter deliberate slanted reportage, but such a ban is not supported by law.

On November 28, the court asked people holding public office not to comment on the film Padmavati. “When a matter is pending for consideration before the Central Board of Film Certification, how can persons in public authority comment on whether the CBFC should issue certificate or not?” It is well settled that the pendency even of judicial proceedings is no bar to a discussion of issues of public policy or public concern in the media. How then can such a ban apply to a statutory body like the CBFC? It is of vital importance that the board be informed of popular sentiment and comment by informed persons in the press or “persons in public authority”. They cannot lose their rights as citizens. Such executions on their part are, in turn, open to public censure. The democratic process needs no nannies to regulate it.

The last order in the unfortunate series was made on November 29. In the aftermath of Narendra Modi’s reign as chief minister of Gujarat, 15 persons were put on trial in a famous encounter case. In November 2005, Sohrabuddin Sheikh and his wife Kausar Bi were allegedly abducted by the Gujarat police’s anti-terrorism squad while on their way from Hyderabad to Sangli. Sheikh was allegedly killed in a fake encounter near Gandhinagar, the state capital. His wife disappeared, and is believed to have been killed as well. Prajapati, Sheikh’s aide and eyewitness to the alleged encounter, was also allegedly killed by police in Gujarat in December 2006.

The 15 accused were discharged. Charges were framed against 22 police officials and private persons.

The case was transferred by the Supreme Court from Gujarat to Mumbai. On November 29, Justice S.J. Sharma, while allowing journalists present in the CBI special court to stay, barred the media from reporting proceedings. “It may happen that publication (of reports) may create security problems for the accused, prosecution witnesses, defence team and the prosecution.” This can happen in any criminal trial of this kind.

These orders stem from a fundamentally wrong notion of the rights of the people and the press. In Richmond Newspapers, Inc vs Virginia (1980) the Supreme Court of the US ruled: “Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard.”

Wrong precedents were set earlier. In a libel case against R.K. Karanjia, editor of Blitz, a judge of the Bombay high court orally ordered that a witness’ deposition must not be published because earlier reports had harmed his business. In 1966, eight of the nine judges on a bench of the Supreme Court upheld the order. Dissenting Justice M. Hidayatullah rightly held that it was made without jurisdiction. In 2012, the court upheld “postponement orders” for media reporting.

Neither ruling was well considered. Both overlooked the Privy Council ruling in 1939 that an order directing proceedings to be held in-camera “was so completely beyond the powers of the high court that… it might be disobeyed… with impunity”.

By arrangement with Dawn