A special CBI Court recently issued a gag order prohibiting the press from reporting on the court proceedings of a fake encounter case.
In another case, Allahabad High Court gagged the media from reporting on an ongoing case concerning hate speech by the CM of Uttar Pradesh.
What is the justification?
The orders were enabled by the Supreme Court itself.
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 jeopardise a fair trial, the court held that to the extent it was reasonable and proportionate, “prior restraints” on court reporting could be imposed.
Allahabad High Court cited that the media reports court proceedings inaccurately to justify the gag order.
Is the justification fair?
In a Jury system, guilt or innocence is decided by a jury of twelve who do not possess specialised legal training
The idea that “media trials” might distort the outcomes of cases makes sense only in such a system.
In India we abolished jury trials more than 40 years ago, and it is judges now who decide cases.
Judges, by definition, are not only supposed to apply the law but also have to have the relevant training and temperament to be regardless of the public.
The 2012 SC order also failed to adequately limit the kinds of cases in which these exceptional “postponement orders” could be passed.
It also failed to limit the duration for which they could be passed.
This has given ample space for abuse as happened in the recent orders.
What should be done?
Media misreporting of court proceeding can be rectified by making the written transcripts and recordings of court proceedings available to the public.
In some situations, a temporary halt on reporting could be justifiable.
But the bar should be limited to a single hearing, and only in the most exceptional of situations.
