The gag on free speech

On Wednesday, a special Central Bureau of Investigation (CBI) Court, hearing the Sohrabuddin Sheikh and Tulsiram Prajapati fake encounter cases, issued a gag order prohibiting the press from reporting on the court proceedings. This order, allegedly issued at the behest of the lawyers for the defence has come only a few days after the Allahabad High Court gagged the media from reporting on an ongoing case concerning an alleged instance of hate speech by the Chief Minister of Uttar Pradesh, Yogi Adityanath, in 2007, who was then a Bharatiya Janata Party parliamentarian from Gorakhpur, Uttar Pradesh.

A growing trend

These two instances, which are not isolated, are representative of an alarming trend of creeping judicial censorship, increasingly across large domains. The Indian judiciary has had a historically ambivalent relationship with free speech, from upholding the constitutionality of sedition in 1962, to endorsing the law of criminal defamation in 2016. Recently, however, it has begun to go further than simply rejecting constitutional challenges to the state’s speech-restrictive laws. Traversing well beyond the bounds of the Constitution, it has begun to actively censor or compel speech of its own accord, without even the existence of a parliamentary law on the subject. Recent, notorious examples include the Bombay High Court constituting a “committee” to recommend cuts to the satirical film, “Jolly LLB 2”, the Madras High Court telling condom manufacturers to have the illustrations on their packets cleared by the Advertising Standards Council of India, and the Supreme Court directing cinema halls to play the national anthem before the screening of every movie.

However, the CBI Court and the Allahabad High Court’s gag orders, are significantly more serious because they strike at the heart of our system of democratic governance. The task of courts under the Constitution is to deliver justice, and a functional democracy is defined by a justice system that is open, transparent, and, above all, public. The authority of judges and courts, we must always remember, stems not from popular consent and periodic elections, but from their fidelity to the laws and the Constitution, and the strength and quality of their legal reasoning. For these reasons, “secret justice” — bringing to mind the infamous trials of the Star Chamber in medieval England — is a paradox in terms. As the great British judge, Lord Diplock, noted, “if the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice.”

Tracing the line

Unfortunately, however, the judicial gag orders, by the CBI Court and the Allahabad High Court, were enabled, at least in part, by the Supreme Court itself (although it is questionable whether the CBI Court had even the power to pass a gag order, let us assume, for the purpose of argument, that it did). 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.

There are, however, two problems with this. First, the idea that “media trials” might distort the outcomes of cases makes sense in a jury system, where guilt or innocence is decided by a jury of twelve men and women who do not possess specialised legal training, and need to be immunised from undue forms of influence. In India, however, we abolished jury trials more than 40 years ago, and it is judges now who decide cases on their own. Judges, by definition, are not only supposed to apply the law but also have to have the relevant training and temperament to apply the law regardless of whatever public outcry that might exist outside the courtroom. The argument for fair trial, therefore, betrays a startling lack of faith in the judiciary’s own ability to decide controversial cases objectively.

Second, and more importantly, the 2012 Supreme Court judgment failed to adequately limit the kinds of cases in which these exceptional “postponement orders” could be passed; it failed to limit the duration for which they could be passed. In fact, by using subjective words such as “reasonable” and “proportionate”, it left the door wide open for future courts to issue sweeping gag orders, insulating themselves from public reporting and, thereby, public criticism. As media and civil rights lawyer Apar Gupta noted at the time, the judgment was so “open to interpretation and probable abuse” that, in the course of the years, it could well transform itself into a “gag writ.” The recent orders of the CBI Court and the Allahabad High Court indicate that this is precisely what has happened.

Handling misreporting

It is often argued that the media reports court proceedings inaccurately; judicial observations are published out of context just to provide good headline copy, and sometimes, there is outright misquotation. In fact, this was precisely the reason cited by the Allahabad High Court to justify the gag order, although the court did not provide any examples of “misquotation”. There are, however, laws to deal with inaccurate reporting, especially the Contempt of Courts Act, which the judiciary has never shied away from invoking. Perhaps more importantly, however, there is a more straightforward way of dealing with the spectre of misreporting: to make written transcripts and audio or video recordings of court proceedings available to the public. Until that happens, to ban reporting of court proceedings by invoking “misquotation” is to invoke a bogey at worst, and to throw the baby out with the bathwater at best.

Of course, there might be situations where inaccurate reporting could cause imminent damage. Imagine, for example, the cross-examination of the principal accused in a communal riot, in an already charged atmosphere. There might also be situations where a case involves arguments pertaining to national security, which cannot at that time be made public. In these situations, a temporary halt on reporting could be justifiable, but it is in the very nature of these situations that the bar would be limited to a single hearing, and only in the most exceptional of situations. The CBI Court and the Allahabad High Court’s sweeping gag orders do not even come close to satisfying that condition.

Ultimately, the trial courts and the High Courts take their cue from the Supreme Court, which is the ultimate driver of jurisprudence. And unfortunately, earlier this year, the Supreme Court passed a sweeping gag order of its own. While convicting (the now retired) Justice Karnan of contempt of court, a bench comprising the seven senior-most judges of the Supreme Court ordered that “no further statements issued by Shri Justice C.S. Karnan would be publicized”. Whatever the special circumstances of that case, there is little doubt that such a command sends a clear message about the appropriateness of sweeping gag orders, should a court feel that they are necessary.

The CBI Court and the Allahabad High Court’s gag orders demonstrate an urgent need for some conscious course-correction by the judiciary. They come with a democratic cost that is simply too high to pay: sunlight, they say, is the best disinfectant. Often, it is the only disinfectant.

Gautam Bhatia is a Delhi-based lawyer