20, Jan 2018 | CJP Team

The November 2017 gag order on the coverage of the controversial Sohrabuddin trial where powerful politicians and policemen had been arraigned as accused has led to a debate on how Indian Courts have dealt with curbs on press freedom. Here we take a look at various instances and circumstances related to court strictures against reportage of cases and trials.

The Media Gag Order in the Sohrabuddin Case

In November 2017, a CBI Court judge passed strictures against reporting the developments in the ongoing trial in the Sohrabuddin Fake Encounter case. The order can be viewed here:

Shortly afterwards a group of nine journalists who cover courts and crime in Mumbai moved Bombay High Court to quash the order. Subsequently another petition was moved by the Brihanmumbai Union of Journalists (BUJ) with an identical prayer.

The petition by the court reporters can be read here:

The petition moved by the BUJ can be read here:

Circumstances under which the Supreme Court has upheld a ban order on press reportage

Naresh Shridhar Mirajkar and others vs. State of Maharashtra and others (1967)

The Judgment may be read here

Naresh Shridhar Mirajkar, who was a reporter for English Weekly “Blitz”, published an article under the caption “Scandal Bigger than Mundhra”. Mr. Krishnaraj M. D. Thackersey sued Mr. R. K. Karanjia, the editor of the magazine and claimed Rs. 3 lakhs by way of damages for alleged malicious libel published in the Blitz. During the trail, one of the witnesses Mr. Bhaichand G. Goda prayed that the Court may order that publicity should not be given to his evidence in the press as his business would be affected. After hearing arguments, the trial Judge passed an oral order prohibiting the publication of the evidence of the witness. The reporter of the weekly along with other journalists moved this Court under Art. 32 challenging the validity of the order.

The SC held that the order was passed to help the administration of justice for the purpose of obtaining true evidence in the case. Thus, the order was within the inherent power of the High Court to prohibit the media’s right to publish.

Parvez Parwar vs. State of U.P and others (2008)

The Judgment may be read here

Mr. Adityanath, the then BJP parliamentarian from Gorakhpur, was accused of making a provocative speech in front of a railway station on 27 January, 2007. The Petitioners, local journalist Pervez Parwaz and activist Asad Hyat, alleged that it was his speech that led to the riots in Gorakhpur riots.

The court agreed with the submission by Additional Advocate General Mr. Manish Goel that “wrong reporting of the day to day proceedings of this case is being made by the media which is causing lot of embarrassment as the observations are reported out of context and very often misquoted”. After a perusal of media reports submitted before it, the Court ordered “directing that no one shall publish or cause to be published any proceedings of this case till the delivery of the judgement.

Sahara India RealEstate Corporation Limited and Ors. Vs. Securities and Exchange Board of India and Anr., (2012) 10 SCC 603

The Judgment may be read here

• The Supreme Court bench, headed by Chief Justice of India S.H. Kapadia, said that if publishing news related to a trial would “create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial”, the court granted a postponement order, temporarily gagging electronic or print media from reporting on the case.
• The point of law thus stands 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).
• The court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial.

In cases of gendered violence, the Courts have often upheld in camera trials, in fact even the laws facilitate this.

Vijay Singhal & Ors. vs Govt. Of Nct Of Delhi & Anr. on 22 March, 2013 (Nirbhaya Rape case)

The Judgment may be read here

• The court held that the right to fair trial will have to be kept in a balance along with the right to know. The weight used, will be the “ends of justice”. This weight will determine the tilt of the balance.
• As per the court, fundamental principles justifying the public access to criminal trials was: The crime is a wrong done more to the society than to the individual. It involves a serious invasion of rights and liberties of some other person or persons. The people are, therefore, entitled to know whether the justice delivery system is adequate or inadequate. Whether it responds appropriately to the situation or it presents a pathetic picture. This is one aspect. The other aspect is still more fundamental. When the State representing the society seeks to prosecute a person, the State must do it openly. 
• The courts considered the rights of the victim and other material factors such as the huge public interest, apart from the criminality, in knowing whether there was a lapse, if any, in the working of the State apparatus.Also, the facts that the case would provide empirical material to bring about a systemic change in the State apparatus as grounds to restrict full access of the media’s right to publish.