Yesterday, I had put up a short
snippet on the Supreme Court’s decision on guidelines to the media on
reportage of sub-judice matters. Here’s
the judgment which was pronounced yesterday. In an earlier
post, coincidentally I had discussed those provisions of the Contempt of
Courts Act, 1971 (“CCA”) which deal with the extent of reportage permitted in
pending judicial proceedings and defenses available under Section 13 of the CCA
in the event contempt is alleged on grounds of interference with administration
of justice.
In that post, I had even
discussed provisions of the Delhi High Court Rules which govern access to
records of pending judicial proceedings. Pertinently, in its decision, the Supreme Court has
observed in Para 33 as follows:
“33. At this stage, it may be
noted that the judgment of the Privy Council in the case of Independent
Publishing Co. Ltd. v. AG of Trinidad and Tobago [2005 (1) AC 190] has been
doubted by the Court of Appeal in New Zealand in the case of Vincent v. Solicitor
General [(2012) NZCA 188 dated 11.5.2012].
In any event, on the inherent
powers of the Courts of Record we are bound by the judgment of this Court in
Mirajkar. Thus, Courts of Record under
Article 129/Article 215 have inherent powers to prohibit publication of court
proceedings or the evidence of the witness.”
I do not wish to reproduce the
facts of the petition in which the SC was asked to issue guidelines to the
print and electronic media on sub-judice matters; however, the relevant fact in
this case which attracted provisions of contempt was that a proposal which was
exchanged between the counsel for Sahara, and SEBI was leaked to the media.
The Court observed that parties
have the right to negotiate in privacy and the freedom of speech under Article
19(1)(a) cannot be exercised to undermine such privacy. The decision of the
Court is educative on the law of prior restraint of publication and sub-judice
reportage in several jurisdictions such as the UK, Canada, Australia, New
Zealand and Germany.
On internal page 21, from Para 25
on the Court discusses the position of Indian law, which in a nutshell is as
follows:
1. If prior restraint is sought
on a publication, there must be reasonable grounds to believe that there is
real and imminent danger to the administration of justice.
2. Critically in Para 31, the
Court notes as follows:
“31. In the case of Naresh Shridhar Mirajkar v. State of Maharashtra
[AIR 1967 SC 1], this Court dealt with the power of a court to conduct court
proceedings in camera under its inherent powers and also to incidentally prohibit
publication of the court proceedings or evidence of the cases outside the court
by the media. It may be stated that
“open Justice” is the cornerstone of our judicial system. It instils faith in the judicial and legal
system. However, the right to open justice is not absolute. It can be restricted by the court in its
inherent jurisdiction as done in Mirajkar’s case if the necessities of administration
of justice so demand... Even in US, the said principle of open justice yields
to the said necessities of administration of justice.”
3. In Para 32, the Court cites
the Mirajkar decision in which it was held that a temporary prohibition of
publication of court proceedings in the media under the inherent powers of the
court cannot be said to offend Article 19(1)(a) rights [which includes freedom
of the press to make such publication], since the prohibition is with a view to
protect the interest of justice and the administration of justice.
4. As mentioned in the beginning
of the post, Para 33 is of critical importance. In this Para, the Court
observes that Courts of Record (such as High Courts) under Article 129/Article
215 have inherent powers to prohibit publication of court proceedings or the
evidence of witnesses.
5. Further, all Courts which have
inherent powers, i.e., the Supreme Court, the High Courts and Civil Courts can
issue prior restraint orders or proceedings, prohibitory orders in exceptional circumstances temporarily prohibiting
publications of Court proceedings to be made in the media and that such powers
do not violate Article 19(1)(a).
6. The SC further notes that if
one reads Article 19(2) which refers to law in relation to Contempt of Court
with the first part of Article 129 and Article 215, it becomes clear that the
power is conferred on the High Court and the Supreme Court to see that “the
administration of justice is not
perverted, prejudiced, obstructed or interfered with”.
7. To ensure that administration
of justice is not prejudiced or perverted clearly includes power of the Supreme
Court/High Court to prohibit temporarily, statements being made in the media
which would prejudice or obstruct or interfere with the administration of
justice in a given case pending in the Supreme Court or the High Court or even
in the subordinate courts.
8. Critically, the Court has
observed that presumption of innocence is held to be a human right. If in a given case the appropriate Court
finds infringement of such presumption by excessive prejudicial publicity by
the newspapers (in general), 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 may be done if the applicant
is able to demonstrate substantial risk of prejudice to the pending trial and
provided he is able to displace the presumption of open justice and to that
extent the burden will be on the applicant who seeks such postponement of
offending publication.
9. In Para 35, the SC discusses
Sections 4, 7 and 13 of the Contempt of Courts Act, which I discussed in an earlier
post.
10. Finally, the Court deals with
mechanisms which neutralize the effect of prejudicial publication/reportage.
In this context, the Court discusses the object and practicality of “postponement
orders”- orders which postpone the publication of content which may have the
effect of interfering with/prejudicing administration of justice.
11. On Page 45, the Court notes
as follows:
“Thus, balancing of such rights or equal public interest by order of
postponement of publication or publicity in cases in which there is real and
substantial risk of prejudice to the proper administration of justice or to the
fairness of trial and within the above enumerated parameters of necessity and proportionality
would satisfy the test of reasonableness in Articles 14 and 19(2).”
12. On Page 46, the Court
observes the following:
“Fourthly, in case of criminal contempt, the offending act must
constitute interference with administration of justice. Contempt jurisdiction of courts of record
forms part of their inherent jurisdiction under Article 129/ Article 215. Superior Courts of Record have inter alia inherent
superintendent jurisdiction to punish contempt committed in connection with
proceedings before inferior courts.
The test is that the publication (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.
It is important to bear in mind that sometimes even fair and accurate
reporting of the trial (say murder trial) could nonetheless give rise to the
“real and substantial risk of serious prejudice” to the connected trials.
In such cases, though rare, there is no other practical means short of postponement
orders that is capable of avoiding the real and substantial risk of prejudice
to the connected trials. Thus, postponement
orders safeguard fairness of the connected trials. The principle underlying postponement orders
is that it prevents possible contempt.
Of course, before passing postponement orders, Courts should look at the
content of the offending publication (as alleged) and its effect.
Such postponement orders operate on actual publication. Such orders direct postponement of the
publication for a limited period. Thus,
if one reads Article 19(2), Article 129/ Article 215 and Article 142(2), it is
clear that Courts of Record “have all the powers including power to punish”
which means that Courts of Record have the power to postpone publicity in
appropriate cases as a preventive measure without disturbing its content.”
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