The gag on free speech 

The gag on free speech 

Context

Recent actions by the Indian judiciary suggest a trend of creeping censorship

What has happened?

• A special Central Bureau of Investigation (CBI) Court, hearing the Sohrabuddin Sheikh and Tulsiram Prajapati fake encounter cases, has issued a gag order prohibiting the press from reporting on the court proceedings
• This order, allegedly issued at the behest of the lawyers for the defence has come only a few days after the Allahabad High Court gagged the media from reporting on an ongoing case concerning an alleged instance of hate speech by the Chief Minister of Uttar Pradesh, Yogi Adityanath, in 2007, who was then a Bharatiya Janata Party parliamentarian from Gorakhpur, Uttar Pradesh

Author’s contention

These two instances, which are not isolated, are representative of an alarming trend of creeping judicial censorship, increasingly across large domains

Growing trend

Instances which indicate a growing trend of judicial censorship,

• Constitution of a committee to recommend cuts to a satirical film called “Jolly LLB 2”
• The Madras High Court telling condom manufacturers to have the illustrations on their packets cleared by the Advertising Standards Council of India
• The Supreme Court directing cinema halls to play the national anthem before the screening of every movie

However, the CBI Court and the Allahabad High Court’s gag orders, are significantly more serious because they strike at the heart of our system of democratic governance. Why?

The task of courts under the Constitution is to deliver justice, and a functional democracy is defined by a justice system that is open, transparent, and, above all, public

The authority of judges and courts originates not from popular consent and periodic elections, but from their loyalty to the laws and the Constitution, and the strength and quality of their legal reasoning. For these reasons, “secret justice” — bringing to mind the infamous trials of the Star Chamber in medieval England — is a paradox in terms

How SC played an enabling role in wrt gag orders in question?

In 2012, the Supreme Court held that in certain circumstances, courts could pass “postponement orders” barring coverage of specific judicial proceedings. The court framed the issue as requiring a balancing of two competing rights: the right to free speech, and the right to a fair trial. Observing that sometimes excessive publicity could jeopardize a fair trial, the court held that to the extent it was reasonable and proportionate, “prior restraints” on court reporting could be imposed.

Problem with SC’s rationale

• A judge is immune against Media trials: e idea that “media trials” might distort the outcomes of cases makes sense in a jury system, where guilt or innocence is decided by a jury of twelve men and women who do not possess specialised legal training, and need to be immunised from undue forms of influence
  • No jury trials in India: In India, however, we abolished jury trials more than 40 years ago, and it is judges now who decide cases on their own. Judges, by definition, are not only supposed to apply the law but also have to have the relevant training and temperament to apply the law regardless of whatever public outcry that might exist outside the courtroom
  • The argument for fair trial, therefore, displays a startling lack of faith in the judiciary’s own ability to decide controversial cases objectively
• Failure to set limits, scope of subjecitivty: The 2012 Supreme Court judgment failed to adequately limit the kinds of cases in which these exceptional “postponement orders” could be passed; it failed to limit the duration for which they could be passed
  • In fact, by using subjective words such as “reasonable” and “proportionate”, it left the door wide open for future courts to issue sweeping gag orders, insulating themselves from public reporting and, thereby, public criticism. It has the potential to transform into a gag writ

Impact of such SC orders

Author, rightly states that, the trial courts and the High Courts also take their cue from the Supreme Court, which is the ultimate driver of jurisprudence so SC should be very careful in what decisions come out of its ramparts

So, how to deal with misreporting of court proceedings?

• Contempt of courts act: There are laws to deal with inaccurate reporting, especially the Contempt of Courts Act, which the judiciary has never shied away from invoking
• Making proceedings public: Make written transcripts and audio or video recordings of court proceedings available to the public

Emergency cases

Author states that in cases where inaccurate reporting could cause imminent damage, a temporary halt on reporting could be justifiable, but it should be limited to a single hearing, and only in the most exceptional of situations

Conclusion

The CBI Court and the Allahabad High Court’s gag orders demonstrate an urgent need for some conscious course-correction by the judiciary. They come with a democratic cost that is simply too high to pay: sunlight, they say, is the best disinfectant. Often, it is the only disinfectant