Government has chosen to remain silent because many of the judicial gags on media have come in cases that raise troubling questions.
The Indian judiciary’s conundrum on gagging media from reporting on criminal investigations and even certain court proceedings has resurfaced in the last two weeks.
On 8 September, Justice U.U. Lalit, a Supreme Court judge, said in a public lecture that the highest court of the land has “the inherent right to gag media” while talking about how the media must report criminal investigations.
Just a few days later, the Supreme Court sought the response of the Central Bureau of Investigation (CBI) and the Bihar government on a petition challenging a Patna High Court ruling that imposed a blanket ban on the media from reporting on the Muzaffarpur shelter home sexual abuse case.
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These two events throw light on a significant poser for the courts: where is the thin line that recognises separation of powers between the executive and the judiciary in regulating free speech?
For some time now, the judiciary has been slowly monopolising the power to censor free speech, a right it is supposed to protect. From entertaining pleas on banning books, editing movies to forcing cultural values and nationalism on citizens, the courts have experimented with many ways to interfere with free speech.
While constitutionally freedom of speech can be restricted, but it is the domain of the legislature. Courts can review the legislative acts that restrict free speech but cannot curb the right through judicial orders.
Judicial gag orders
Every now and then, courts across the country have issued orders barring the media from reporting on court proceedings. In 2017, a Bombay court had gagged media from reporting on the politically sensitive Sohrabuddin Sheikh alleged fake encounter case. Allahabad High Court has banned reporting on a hate speech case involving Uttar Pradesh chief minister Yogi Adityanath. Constitutional courts have barred reporting on sexual harassment cases involving former judges.
While Article 19(1)(a) of the Constitution guarantees free speech, Article 19(2) empowers the state to place “reasonable restrictions” on the freedom through ‘law’ made by Parliament. The Supreme Court rulings do not qualify as ‘law’ for this purpose.
In 2012, in the Sebi-Sahara case, a five-judge constitution bench led by former CJI S.H. Kapadia had laid down that courts can restrict media from reporting on court proceedings. However, the court had said it would look at every case individually rather than framing guidelines for future.
Justice Lalit’s statement last week was a reference to this ruling where the court reserves the right to bar media at its discretion even when it refuses to lay down any criteria.
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To make matters worse, a seven-judge bench in Justice Karnan’s case casually directed media houses to not report any of C.S. Karnan’s statements. Ironically, the same court had ruled that government cannot censor media through ‘prior restraint’ – a case law that the press treasures to protect its freedom.
Until these troubling rulings are overruled, the judiciary can use the power it does not really have to arbitrarily gag media.
The government naturally chooses to remain silent since many of these judicial gags have come in cases that raise troubling questions.
These gag orders supposedly draw their legality from Article 129 of the Constitution that allows the court to punish for its “contempt”. The court has however expanded this to mean ‘preventing’ its contempt.
Media trouble for the court
On one hand, judiciary bats for transparency in court proceedings allowing live telecast, but it has a troubled relationship with the media when they report on the judiciary.
Judges have debated if their observations, which include banter with the bar, should be reported at all. Last year, the Delhi High Court set up a committee to “regulate” reporting of the court proceedings. One former CJI would routinely turn to reporters in the gallery and ask his “media friends” to not report his observations.
Few years ago, a senior judge of the apex court, troubled by negative coverage of his observations in court, had pushed for media briefings by a judicial officer for journalists reporting from the Supreme Court to ensure that there is no ‘adverse reporting’. Fortunately, the idea was shot down by then-CJI Kapadia and Justice P. Sathasivam.
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To top this, the threat of contempt of court is always looming large on the media that creates a chilling effect.
While there is no rational explanation for such sweeping expansion of judicial powers, there is no doubt that the Supreme Court itself is turning out to be threat to free speech.
The Muzaffarpur shelter home case might be a chance for the courts to start tracing their way back to being protector of rights again.
Someone will have to tame the irresponsible media, which sees everything from the political lense, because that’s the trouble & also where the money is! Remember Rajan Pillai’s death, when during 1995, he was in urgent need of medical attention was denied bail by the court as the media was running the trial, which influenced the judge(s). So where do you draw a line. All institutions need to be mature. Media being unorganised & disorganised has lot of work to do in this direction
even media is biased thet should noy cry .People have lost their faith in judiaciary and media both. 2 pillars of democracy
Fully agree. There are mis-reportings on criminal and many other cases by a section of the media but as a matter of principle, media must be allowed to ‘self-discipline’ itself on that. If SC sets a precedents, all other layers of judiciary down the line – and the bureaucracy will gleefully follow, will multiply the ruling on any cases they feel inconvenienced. This is very dangerous precedent.
By the way, if something needs to be regulated, it is the selective, pre-mature, one-sided and mala-fide ‘leakages’ – mostly attributed to ‘sources’, by the investigating agencies. There should be a guideline to oversee – not gag, those reporting so as defaming of the under-trial suspects is prevented. After all, most of them get acquitted at the end but have lost their reputation in the process.