Judges push back against gag orders

Bottom left, Bombay High Court, bottom right, Justice Dere

 

Over the last few months, Indian judges have issued gag orders in a number of high profile cases such as the Tarun Tejpal rape trial before a court in Goa, the Sohrabuddin Sheikh murder trial taking place before a court in Maharashtra, the Yogi Adityanath communal hate speech case before the Allahabad High Court and the Pachauri defamation lawsuit before a trial court in New Delhi.

This trend of gagging the media from reporting on judicial proceedings is very worrisome because judicial proceedings have always been open to the public. This minimum degree of transparency is important to foster public confidence in the Indian judicial system. Two recent judgments from the Bombay High Court and the Additional District Judge at the Patiala House Courts have pushed back against demands for gag orders.

The judgment of the Bombay High Court was delivered in response to two petitions filed by nine journalists and the Brihanmumbai Union of Journalists, and quashed an order by a special CBI court that banned the media from reporting on the proceedings in the Sohrabuddin Sheikh 'fake encounter' case.  The accused in the case originally ranged from the lower rung of the Gujarat Police to Amit Shah, now president of the BJP.

 

The case got murkier when it was reported by Caravan magazine that one of the earlier judges hearing the case, Judge Loya, had died in allegedly mysterious circumstances. Some time after the story was published in Caravan, the judge presiding over the trial acted on a petition by some of the accused and gagged the media from reporting on the trial proceedings. In response, several journalists filed a petition before the Bombay High Court seeking to vacate the gag order passed by the trial court judge.

Given the suspicious deaths and the high voltage controversy surrounding the death of Judge Loya, Sohrabuddin Sheikh and his wife, Kausar Bi, I had expected the Bombay High Court to sidestep the petition by the journalists until things had cooled down in the media. But to my pleasant surprise, Justice Revati Mohite Dere of the Bombay High Court took the bull by the horns and over-ruled the lower court’s decision to gag the media in a clear and concise judgment.

The crux of the case was the interpretation of Section 327 of the Code of Criminal Procedure in light of various judgments of the Supreme Court. This provision of law requires all criminal trials to be conducted in courts that are open to the public. As explained by Justice Dere, the logic of criminal courts being open to the public is the fact that the state is prosecuting crimes on behalf of society and members of society have a right to observe the proceedings and judge for themselves whether the accused is being provided a fair trial.

Other reasons for open courts, as highlighted by Justice Dere in this case, include the maintenance of public confidence in the justice system. She quotes an old English judgment which makes the same point rather eloquently:

“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.' 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

At a later point in the judgment, she also links the importance of an open court to the right of the media to report on judicial proceedings, commenting that:

“The media, by reporting court proceedings, is fulfilling the public's right to information about the working of the courts. In fact, the media not only exercises its own right to freedom of expression under Article 19(1)(a) but it also serves a larger public purpose by disseminating or being the carrier of information, which otherwise is not easily available or accessible to the public at large. In that sense, the Press are the eyes and ears of the public, who, by reporting, fulfil the public's right to know about the happenings in court proceedings.”

On the point of law, Justice Dere is categorical in her conclusion that a sessions court judge does not have the power to gag the media. She writes, “…. it is thus clear that the learned Judge, had no power under the Code to pass the impugned order. In fact, even the learned counsel for the respondent-accused were unable to point out the provision under which the learned Judge could have banned the media from publication/reporting of the trial court proceedings”.

 

The only exceptions to the rule are special laws like the Official Secret Acts, which allow the presiding judge to conduct a closed-door trial. In the absence of any specific provision in the statute, the only way to gag a criminal trial is to approach the High Courts or Supreme Court under their contempt jurisdiction.

The case could have ended at this point but the court also examines the session court’s order and notes that “the learned Judge was essentially swayed by the sensationalism of the said case” and that “Sensationalism, by itself, cannot be the sole ground for banning the media from publishing, posting and/or reporting proceedings.” If witnesses were in danger, the court held that they should be provided protection.

As a result, the gag order was vacated and the media is now free to report on the trial before the Sessions Judge.

The other judgment that deserves to be discussed, was passed in the civil context by the Additional District Judge in a civil defamation lawsuit filed by Dr. R. K. Pachauri in 2015 against Bennett, Coleman and Company which owns the Times of India, NDTV, the India Today Group, lawyer Vrinda Grover, an anonymous complainant, and other un-named defendants.

Accused by multiple women of sexual harassment during his tenure at TERI, Pachauri has been the subject of intense media scrutiny as some of his victims even filed criminal complaints against him. In order to muzzle the press, Pachauri sued for defamation and then sought a gag order by relying on the infamous judgment of the Supreme Court in the Sahara case where the Supreme Court legitimized gag orders in the guise of “postponing” free speech.

The Delhi High Court initially granted Pachauri a gag order but subsequently vacated that order on the next day. The case then appears to have been transferred to the district court because of a change in the pecuniary jurisdiction of the High Court.

The district court heard both sides and, on February 25, 2017 passed an order that basically imposed on the media a list of restrictive conditions while reporting on the allegations against Pachauri. This included the requirement to publish in any report the line that “the allegations have not been proved and they may not be correct”. Similar conditions were placed on the broadcast of news reports about the case. Sample this condition:

“They shall also telecast after every five minutes during telecast that the concerned channel, publishing house is not going to comment whether the plaintiff is guilty or no judgment or verdict has been passed against the plaintiff along with the above said subtitle so that right of the plaintiff should also be safeguarded. The title should be in bold letters and similar in font and the manner as the channel informs about breaking news so that public should be aware that no offence or any crime has been proved against the plaintiff”.

 

These are only a small sample of the conditions imposed on the media. In other words, although there was no gag order, the court had issued the equivalent of a temporary injunction till the matter was decided on merit.

These restrictive conditions were sought to be reversed by the defendants who moved an application before court towards this effect. After a judgment that rambles on for 67 pages, the court finally sets aside the restrictive conditions in a judgment dated February 13, 2018. The court set aside the conditions imposed by the previous judge but imposed a fresh mandate on the media to ensure they sought comment from the plaintiff and that they carried the following line every time they reported on Pachauri’s case: “That the matter is still subjudice or the matter is still pending in the Court or a final decision in the case is still awaited.”

Two particular conclusions of the court deserve a discussion.

The first is its finding that although Pachauri is not holding public office, he is still a public figure and hence can be the subject of media scrutiny and subject to the standards laid down by the Madras High Court in the case of Rajagopal v. Jayalalitha (2006). This could have implications going forward in the trial if the court decides to adopt the dicta that  public figures could sue only if the defamation was motivated by malice - a threshold that is quite different from the standard in ordinary defamation cases. 

The second conclusion of the court is a rather strange application of the traditional ‘discussion, advocacy, incitement’ test of free speech discussed by the Supreme Court in the Shreya Singhal case while determining whether Section 66A was a reasonable restriction aimed at protecting ‘public order’.

For reasons not clear, the judge transposes that reasoning into a defamation case and concludes that there was no ‘incitement’ by the defendants. But with all due respect to the judge, the threshold for defamation is not incitement to commit an offence but whether the statements were false and damaging to the reputation of a person.