As reported earlier, the Bombay High Court has quashed and set aside the media gag order by special CBI judge SJ Sharma dated November 29 and held that subordinate courts did not have such inherent powers to pass such an order.
In the 39-page judgment published yesterday on the high court website, Justice Revati Mohite Dere held that it is only the ‘courts of record’, i.e., the Supreme Court and high courts that have the inherent jurisdiction to pass postponement orders.
Open trial is a rule
Senior advocate Mihir Desai appeared for one of the petitioners in the matter and submitted that there are only 3 or 4 contingencies in which a court i.e. ., the Supreme Court and high courts can restrain the media from publication and that too, for a short duration, i.e. (i) when there is a real and imminent danger to a fair trial; (ii) that there is real and substantial risk of prejudice to the administration of justice or to the fairness of trial; and (iii) where reporting by the press would shift the burden of innocence.
He further submitted that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, includes freedom of the press and that the same has been recognized as a fundamental right.
Advocates Abad Ponda and Abhinav Chandrachud also appeared for one of the group of petitioners and submitted that the trial judge had exceeded his jurisdiction in passing such an order which was illegal and arbitrary.
However, Abdul Hafeez, who was appearing for one of the accused in the case, supported the gag order and submitted that the case has a chequered history and there is an apprehension to the lives and safety of witnesses and lawyers.
The court then observed: “The language of Section 327 itself indicates that the place where the Criminal Court is held for the purpose of inquiry and trial of any offence shall be deemed to be an open court. An open trial is the rule and wherever exceptions are carved out, they are made only to secure the ends of justice. Section 327 declares that the place of inquiry and trial of any offence shall be deemed to be an “open court”. The words “open court” used in Section 327 of the Code are significant. Section 327 embodies the principle of public trial.
Apart from the question of power of the Sessions Judge to pass the impugned order, it is also necessary to spell out the underlying principles behind an `open trial'. It is one of the salutary principles of the administration of justice, that justice must not only be done but must also be seen to be done and an `open trial' reaffirms the said principle.
Thus, an `open trial' sub serves the ends of justice. It acts as a safeguard for protection of the rights of all i.e. witnesses, accused, etc. and as such ensures fairness of the proceedings. Open trial is the rule and must be scrupulously adhered to, except under exceptional and extraordinary circumstances. Section 327 recognizes the right to public trial. Closed proceedings foster distrust in the judicial system and hence, proceedings must be open proceedings, as it helps maintain The court also said the right to know flows from the rights of the press under Article 19(1)(a) of the Constitution of India, i.e. to publish and circulate information.
The apex court, in the case of Bennett Coleman & Co & Ors v Union of India & Ors para 31, has observed that although Article 19(1)(a) does not mention the freedom of the press, it is the settled law that freedom of speech and expression includes freedom of the press and circulation.
No danger for life of Accused
The Court has also rejected the contention of some accused regarding the fear of their lives. The Court said;
"Although, some of the learned counsel for the respondents submitted that they feared for their lives and for the lives of the accused or apprehend some untoward incident, nothing has been brought on record to substantiate the same, except bare words made across the bar. Similarly, how national security would be affected, if media is permitted to report, the proceedings, is in the realm of speculation, without any basis. Thus, the apprehensions expressed are not such that they do not show real and substantial risk of prejudice being caused to the accused or a clear and present danger to a fair trial. In fact, the record shows that till date, almost 15 accused have been discharged from the said case and as such the apprehension is misplaced and unjustified".
PIL on Death of Judge Loya In SC
It is also urged that the matter be deferred, as the Apex Court was hearing Public Interest Litigations (PILs) in connection with the death of a former Judge dealing with the said case and that one of the reasons given for banning the media from publication was the manner in which the death of the said Judge was distorted. To this the Court replied as follows;
"Learned counsel for the petitioners vehemently opposed the deferring of these petitions and submitted that the said petitions had no bearing with the PILs pending before the Apex Court. Perused the order of the Apex Court. Admittedly, the petitions before the Apex Court are with respect to the death of Judge Loya and therefore in that context, it was stated that no other High Court including the High Court of Bombay will entertain the petition with regard to the subject matter in issue. The present petitions are not even remotely connected with the PILs or the subject matter of the PILs, before the Apex Court and as such there is no question of deferring the hearing of these petitions".
Right To Information
The Court observed that the right to open justice flows from the right to a fair trial.
The importance of public trial in a democratic country governed by the rule of law can hardly be overemphasized, as the primary function of the judiciary is to do justice between the parties, which bring their causes before it. The right of the public to information flows from the right of the Press under Article 19(1) (a) of the Constitution. The media, by reporting court proceedings, is fulfilling the public's right to information about the working of the courts. Infact, the media not only exercises its own right to freedom of expression under Article 19(1)(a) but it also serves a larger public purpose by disseminating or being the carrier of information, which otherwise is not easily available or accessible to the public, at large. In that sense, the Press are the eyes and ears of the public, who, by reporting fulfill the public's right to know, about the happenings in court proceedings.
In conclusion, Justice Dere said: “The Press is the most powerful watchdog of public interest, in a democracy. In fact, the presence of Press and public in criminal trials encourages all participants to perform their duties diligently and conscientiously. It discourages misconduct and abuse of power by the prosecuting agency, prosecutors, judges and all other participants. It discourages decisions based on partiality and bias. It discourages witnesses from committing perjury. In that sense, the presence of Press and public protects the integrity of the trial; and public awareness of court proceedings helps maintain public confidence in the judicial system.”
Read the Order Here
Image Courtesy : The Wire