When are prior restrictions on reporting by the media acceptable?
The Americans would unapologetically say: never. The Canadians would apologise, then see if press freedom was at stake, and then probably say they aren’t acceptable. The English would say they can be in the interests of ensuring justice. The Chinese would… well, never mind.
In India, the law only allows prior restraints on press reporting in very limited circumstances, but unfortunately this has not stopped even the courts from imposing legally-questionable restrictions, from the CBI court in the Sohrabuddin Sheikh case to the Supreme Court in the Justice Karnan case.
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Patna High Court’s Gag Order
The latest example, of course, is from the Patna High Court regarding the horrific Muzaffarpur shelter home abuse case. On 23 August 2018, the Chief Justice of the Patna High Court restrained the print and electronic media from:
“reporting anything with respect to the case, more particularly, with respect to the investigation already undertaken and/or which is likely to take place as it may seriously hamper the investigation of the case.”(emphasis supplied)
Now while it may be necessary for the media to exercise some restraint and regard for the privacy of the victims (as the Supreme Court has had to direct), to prevent them from reporting anything on the case seems unwarranted even without getting into the legality of such a gag order.
After all, the Muzaffarpur case is one where the media has played a crucial role in bringing the exploitation of the inmates to light, and where the media’s scrutiny continues to be important given the influence of those responsible for it, like Brajesh Thakur.
Without a media spotlight on the case, how many of us could say we are confident that the guilty will be held accountable? Just take the primary reason why the High Court was even conducting this hearing: that the status report of the investigation hadn’t submitted by the CBI despite a previous court order. In such a scenario, given the nature of our justice system, how many of us would be confident of the guilty being held accountable even with media scrutiny?
This is a case that demonstrates how at every possible level, the state failed to protect those who were vulnerable. Care workers, politicians, bureaucrats, police officers, all of them betrayed the victims, over 30 of whom were minors. Regardless of what the final verdict says, this is a case that needs to be reported, that needs to be highlighted, so that the lessons we need to learn from it can be driven home, and remain in public consciousness.
What Does the Law Say?
Of course, if such reporting were indeed prohibited by law, then we would need to abide by the law and not break it just because of some perceived public interest. For instance, this is why the identities of rape and child sexual assault victims cannot be revealed regardless of whether some media houses think this is necessary.
But the Patna High Court has gone much further than that, and has put in place a blanket ban against all reporting on the case, for which there is no basis in law.
Press freedom is very much a part of the fundamental right to freedom of speech under Article 19(1)(a) of the Constitution, and can only be restricted under the limited conditions set out in Article 19(2). These are:
“the interests of sovereignty and integrity of India, security of the State, friendly relations with other countries, public order, decency or morality or in relation to contempt of court, defamation of incitement to an offence.”
When it comes to prior restraints on free speech, i.e. where you are restricting someone from saying something in advance without even knowing what they are going to say – the tests are even stricter. The current legal position on prior restrictions is set out in the Supreme Court’s judgment in the Sahara vs SEBI case, commonly known as the ‘Media Guidelines Case’.
A Constitution Bench of the apex court held here that prior restrictions are permissible under the Constitution in the form of “postponement orders”, where reporting on judicial proceedings can be postponed in the interests of administration of justice. For a postponement order to be permissible, it needs to satisfy all the following conditions:
- It is necessary to prevent a real and substantial risk to the fairness of a trial (basically, where reporting in the media is likely to influence the result of a trial by the court).
- It is ordered for a limited duration.
- Reasonable alternative methods or measures such as change of venue or postponement of the trial will not prevent the risk.
- The court conducts a balancing test between the effects of such an order in preventing risk to the administration, and the adverse effects on freedom of speech (a test of reasonableness), and the former outweighs the latter.
Why the Patna High Court’s Order Needs to be Reviewed
The Patna High Court’s gag order clearly falls foul of these tests:
First and foremost, prior restrictions can only apply to judicial proceedings (since the restriction arises out of contempt of court), not an investigation by the CBI or other investigative authorities. Since the trial has not begun, there can be no question of imposing restraints on reporting in this case. The division bench was therefore precluded from even considering a gag order in the case at this time.
Even if one were able to argue that somehow, this was a situation where administration of justice is under threat, and so a postponement order was possible, the judges have failed to ensure it satisfies the requirements for a valid order. It applies “till the investigation is completed”, which is an open-ended duration. The 3-page order, which devotes barely two paragraphs to this issue, includes no consideration of any reasonable alternatives, and the balancing test is also ignored.
That the bench (headed by the Chief Justice of the High Court, no less) should fail to apply binding precedent set out by the Supreme Court when passing this order just adds to the disappointment one feels in the judge’s disregard of free speech. Thankfully, it also means that the order would be struck down if appealed in the apex court.
The Editor’s Guild has already released a statement condemning the order for being counterproductive, and part of a “growing trend” which undermines “one of the pillars of democracy.” It also appealed to Chief Justice of India Dipak Misra and Justice MR Shah (Chief Justice of the Patna High Court) to review the order.
In the event that neither court takes the issue up themselves, it is vitally important that appeals be filed against this order – any media house or collection of media houses would be able to successfully do so (as happened with the Sohrabuddin Sheikh case gag order). If we fail to do so, we would be allowing those who are meant to protect our right to free speech to weaken it, without the slightest basis.
It sets a dangerous precedent, both generally – given our current political climate –and particularly, in a case where being able to speak truth to power could be key to justice being served.
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