In an important judgement it delivered on Tuesday, the Supreme Court has institutionalized the power to temporarily prohibit the Press from reporting court proceedings in case it interferes with the right to a free and fair trial.
While the court shied from prescribing guidelines for the Press on court reporting, in the same breath it allowed individuals and companies to approach higher courts for passing of orders that temporarily prohibit reporting of such proceedings.
The right to a free and fair trial is already available under the right to protection of life and personal liberty (Article 21 of the Constitution). The generalized power to pass orders to postpone reporting of court proceedings is a “neutralizing device” to give meaning to this power. This is something new to Indian jurisprudence.
The court has argued that, “…anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief…” (Para 43 of the judgement delivered in the case of Sahara India Real Estate Corp Ltd & ors vs Securities and Exchange Board of India & anr).
The import of the court’s judgement lies elsewhere.
India is passing through a difficult phase in its history. The government of the day is embroiled in scandals involving huge sums of money. From the 2G spectrum allocation case to the coal block allotment issue, among others, the government’s actions have fuelled cronyism in a manner not seen before since independence.
In such conditions, companies involved in dubious deals and officials and politicians who have much to hide have been provided a legal roof to stymie freedom of journalists to report without fear. While the court has passed a very reasonable order, its institutionalization of postponement of reporting court proceedings as a “neutralizing device”, has wider implications. As it is, it is difficult to report on companies that do not report in a transparent manner. After this judgement, such companies will be emboldened to approach the higher courts for restraints on the Press. In fact, it will be unusual if they don’t do so.
While the court prescribed tests of reasonableness, among others, on deciding issues of postponement, time is of the essence for media and citizens dependent on it for information. It is not far-fetched to presume that during this period of stasis, reporters and editors, can be arm-twisted into submission. The judgement whittles down an already embattled freedom available to the Press. It will add psychological pressure and uncertainty in an already difficult environment.
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