http://www.epw.in/web-exclusives/judicial-doctrine-postponement-and-demands-open-justice.htmlAmid much scepticism, the Supreme Court in February took on the
ambitious agenda of laying down norms for media reporting on matters under active
judicial consideration. It heard a variety of opinions, including a serious
suggestion from Additional Solicitor-General Indira
Jaising, that all proceedings be televised to ensure that instances of
misreporting would not go unnoticed. Others less indulgent towards the
judiciary’s ambitions, such as senior counsel Shanti
Bhushan advised Chief Justice S.H. Kapadia, to simply dissolve the
five-judge bench that had initiated the hearings since it was engaged in a futile
pursuit. There were some who expressed partial
endorsement , but aside from directly aggrieved parties, few who thought
that the Supreme Court could arrive at a reasonable set of rules, consistent
with the constitutional guarantees on free speech. There was no real sympathy
for the media here. Just the realisation that that correcting one form of
excess with another, would be corrosive of basic democratic norms.
Perhaps chastened by these abundant expressions of doubt , the
Supreme Court on September 11 arrived at a final
determination that was modest in relation to its initial agenda. Far from a
comprehensive set of guidelines on media reporting, the judgment authored by
Chief Justice Kapadia chose to propound merely one solitary new principle: of a
court-ordained “postponement” of reporting, when a credible case could be made
that it would serve the cause of justice.
“Postponement” is a word that does not have the same numbing
impact as “prohibition”. But despite the effort to soften the blow, a “postponement”
of reporting seemed suspiciously to sound like a measure of “prior restraint”
on the right to free speech. In free speech doctrine, “prior restraint” is held
to be a vice with no redeeming quality. Individuals in a democracy are expected
to have the awareness and sense of responsibility to determine what can be said
and what not. Corrections could be applied post
facto in any case where speech is held to be offensive or violative of
another’s rights. To make a law allowing prior restraint is to cast mature
citizens in the role of infants and to appropriate to the government the power
of guardianship.
Unsurprisingly, a large part of the Supreme Court judgment
is taken up with a consideration of the numerous judicial precedents which have
sanctioned the imposition of prior restraints on speech, in particular,
narrowly defined cases. In defiance of ordinary understanding, it argues that
prior restraint is permitted, though only in certain “exceptional”
circumstances even under the absolutist doctrine of press freedom represented
by the first amendment to the U.S. constitution. The authority cited here is
the 1931 judgment of the U.S. Supreme Court in Near versus Minnesota, which is remembered in judicial history as a
law which firmly rules out prior restraint except, hypothetically, in a limited
number of contingencies where it may serve a broader public purpose: war, gross
obscenity, the imminent threat of violence against innocent citizens, and a
threat to the foundations of legitimate government. Curiously though, the
Supreme Court while taking note of these purely incidental and inconsequential
observations in a judicial ruling that argues the case against prior restraint,
completely ignores the more authoritative ruling in the 1971 case of New York Times versus the United States which
prepared the ground for the publication of the Pentagon papers and contributed
to a rapid shift in the climate of public consent for the Viet Nam war. Several
of the analogies and illustrations cited in the judgment, moreover, would seem
more relevant to situations of trial by jury, rather than the “bench trial”
system prevalent in India.
Despite finding what it deems to be sanctions in the law for
this manner of action – which in less polite terms would be called censorship –
the Supreme Court is anxious to establish that its propositions do not yet
constitute prior restraint. Rather, they are a part of the necessary balance
that has to be established between the various constitutional values, none of
which is absolute. The right to free speech, though fundamental, cannot be
granted the kind of wide amplitude that would pose a threat to other values.
The Supreme Court provides a restatement of the current understanding on
article 19 of the Constitution, reading the right to information -- which is
not explicitly mentioned – into the intent of the text: “Freedom of expression
... has a capacious content and is not restricted to expression of thoughts and
ideas which are accepted and acceptable but also to those which offend or shock
... It also includes the right to receive information and ideas of all kinds
from different sources. In essence, the freedom of expression embodies the
right to know”.
The value of this restatement is at once qualified by the
remark that “free speech (would have), in appropriate cases, .. to correlate
with fair trial. It also follows that in appropriate case(s) one right [say
freedom of expression] may have to yield to the other right like right to a
fair trial”. (All phrases within square
brackets from the original.) “Trial
by newspaper” the court holds, falls within “the category of acts which
interferes with the course of justice or due administration of justice”.
Articles 129 and 215 of the Constitution, which give the Supreme Court and all
High Courts the status of “courts of record” and endow them with authority to
punish for contempt, also confer the power to “prevent such acts which
interfere, impede or pervert (the) administration of justice”. The “presumption
of innocence” is held to be a fundamental right. And if “in a given case the
appropriate Court finds infringement of such presumption by excessive
prejudicial publicity by the newspapers, then under inherent powers, the Courts
of Record suo motu or on being
approached or on report being filed before it by subordinate court can under
its inherent powers under Article 129 or Article 215 pass orders of postponement
of publication for a limited period”.
This order of postponement is not to be read as a censorship
or as prior restraint. Rather, common law provides most courts with the
authority to use contempt law to formulate various “neutralising” devices,
“such as postponement of the trial, re-trials, change of venue and in
appropriate cases even to grant acquittals in cases of excessive media
prejudicial publicity”. The power of postponement is to be read as precisely
this manner of “a neutralising device”, or “as a preventive measure to protect
the press from getting prosecuted for contempt and also to prevent
administration of justice from getting perverted or prejudiced.”
Beyond the novelty of the doctrine of “postponement”, this judgment
adds little to the existing position in law, under which courts can order
particular trial proceedings to be held in camera if necessary for ensuring
fair procedure, or defer the publication of witness testimony when material
harm could ensue to the individual concerned. This position was upheld by the
Supreme Court as far back as 1966 in the case of Naresh Shridhar Mirajkar versus State of Maharashtra. The Mirajkar
case was heard by a bench of nine judges, of whom eight concurred in three
separate judgments that the temporary ban on the publishing of testimony of a
witness summoned by a weekly magazine in a defamation case, was not violative
of article 19 of the Constitution. Only Justice M. HIdayatullah dissented,
arguing that the imperatives of justice demanded an “open trial” and free and
unfettered access to the media.
What the recent Supreme Court judgment does is to make the
exception a general principle to which any litigant could seek recourse. The
applicant who seeks an order of postponement would of course have to make a
clear case that his interests would be prejudiced by unfettered media reporting
and create sufficient grounds for “displacing” the “presumption of open
justice”. An order of postponement moreover, would not be given prior to the
fact. Rather, the test would be “that the (actual and not planned) publication
must create a real and substantial risk of prejudice to the proper administration
of justice or to the fairness of trial”. Shortly afterwards, the point is
further underlined: “Such postponement orders operate on actual publication.
Such orders direct postponement of the publication for a limited period”.
The effort to write a rulebook for the media originated
in February, when Chief Justice Kapadia was alerted to a news report that
revealed an ostensibly privileged communication between two contesting parties.
The issue involved an instrument floated by the real-estate and finance
conglomerate. Sahara’s counsel in a letter to the market regulator, the
Securities and Exchange Board of India (SEBI), revealed “without prejudice”
that it held assets in real estate and other sectors to secure all deposits
mobilised under the instrument. Since the information was conveyed “without
prejudice” to the ultimate outcome of the hearings, it could not be deemed to
have compromised Sahara’s case in any way. If anything, it was a source of
reassurance for a few hundred thousand investors in the Sahara instrument,
which was unlike anything seen in the Indian markets and did not have
regulatory sanction.
For the Supreme Court to have picked this case as the ground
for decreeing a wide-ranging set of guidelines for the media was curious. Even
more breathtaking was its seeming determination to take on an expansive agenda,
by sweeping up all proximate complaints received about media practice and
assembling them into a common docket. In bringing back into focus matters -- of
which some had been settled by apology, retraction and administrative
correction by erring media organisations -- the Supreme Court seemed clearly to
be signalling that ex post remedies
are of little use when media freedom becomes a potential hazard to the
administration of justice.
After all its labours though, the Supreme Court has emerged
with another form of ex post remedy,
though one the judiciary will retain the final authority to administer. This
could well be a superfluous power, or one that could lend itself to
considerable misuse. In restating the need for balancing the right to free
speech with other constitutional values, the Supreme Court is clear, under
article 141 of the Constitution, that it is laying down law for the entire
country. This of course presumes a degree of coherence within the judicial
system and consistency in the interpretation of the findings of the highest
judicial bench.
Because the ruling of the Supreme Court coincided with a
wave of public outrage over the arrest
of a young cartoonist and anti-corruption campaigner on sedition charges, a
readily available test case is available on the degree to which article 141 is
honoured. The sedition clause – article 124A of the Indian Penal Code -- was
held ultra vires of the fundamental
rights in a 1958 ruling by the Allahabad High Court. Four years later, the
Supreme Court reinstated it, ruling in the case of Kedar Nath Singh versus State of Bihar that it is not to be lightly
used and would ordinarily be contrary to the fundamental rights, unless used to
deal with an imminent threat of
violence.
Despite this very clear decision, which should under article
141 be applicable to the entire country, prosecution under the sedition clause
has been multiplying and courts have been acting in ignorance or wilful disregard
of the law. There is a dimension of coherence and consistency that has gone
missing within the judicial apparatus. Viewed from this perspective, the
doctrine of “postponement” propounded by the Supreme Court with numerous
safeguards against possible abuse, is not quite immune to arbitrary
interpretation. Indeed, it could well become an instrument in the hands of
wealthy and influential litigants, to subvert the course of open justice.
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