The advent of the gag writ

Reactions which have poured in from op-eds of major newspapers, columnists and senior lawyers have gravitated towards condemning the media guidelines judgment (Sahara India Real Estate Corp. v. Securities and Exchange Board of India C.A. №9813/9833 of 2011). The case arose from the leak of a confidential proposal exchanged between the Counsel’s for Sahara and SEBI in a pending litigation before the Supreme Court. Due to the leak, and an application made by the parties, the Supreme Court deemed it necessary to frame guidelines on reporting of sub-judice cases.

However when the judgment was pronounced, to the relief of many, it did not lay down any such guidelines but at the same time prescribed that a person could approach the High Court for a writ seeking postponement of a publication which could impact the trial. The Court stated in Paragraph 43 that:

43. In the light of the law enunciated hereinabove, 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), and that 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 abovementioned 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. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fall within the proper constitutional framework.

Though I disagree with the approach taken by the Supreme Court in reasoning its way to the conclusion, I will try to avoid most of the formalistic legal analysis and give my top 5 reasons why I anticipate it will lead to the rise of the gag writ. At the same time, I would caution readers that some legalese is unavoidable and is necessary since the criticism is directed against a judicial pronouncement.

1. open to interpretation and probable abuse

The new writ which may properly be called a writ of postponement of publication, though hinted at several portions of the judgment is most clearly restated under paragraph 43. The first criticism which I direct is as the relaxed locus of the petitioner, where it indicates that the writ is available to “anyone” including an “aggrieved person”. Without any qualification such as “directly” or “immediately” this can be interpreted both, narrowly or broadly. If interpreted broadly, which I foresee happening, complete strangers without a legitimate connection to the case may approach a high court to issue the writ.

Where such a loose locus standi requirement worked well in the past for bonded workers or detenus who may be unable to approach our Courts, it may have the opposite effect in the present case. For instance, party workers may file such petitions to prevent news reports of corruption cases against their political bosses. As indicated in the paragraph, the Order prohibiting publication may even prohibit the publication of the name of the accused during certain phases of the trial. Hence, due to a lawyer’s smarts, only the name of a low ranking party worker will be available for publication and not even the name of the Politician or the case pending against him would be disclosed.

The second major fault which arises from the loose wording is with regard to the time limits. The judgment first stated in Paragraph 35 that such an order has to be for a “limited period”, and Paragraph 43 then again states it should be for a “short duration”, however such period has not been adequately prescribed or illustrated in the judgment. No outer time limit is prescribed. Given the delays in adjudication if the prohibition from publication is linked to a period in the trial then the prohibition may stretch for a long time. Also, it may also create an incentive to the accused/complainant to game the system by obtaining the writ and then seeking repeated adjournments till the media interest in the story wanes.

2. Acts as a prior restraint

The writ differs from the nature of judicial powers which have been historically exercised against the press whereby the censure is post publication. In some cases trials are conducted in camera, however they are done through a legislative mandate or through an order which records reasons for withholding such information. Even in Mirajkar’s Case [1966 SCR (3) 744], the Supreme Court only stated that a High Court hearing a case would have the inherent power to delay the publication of a part of the proceeding. Here the High Court would not jump in to grant such orders if it was not hearing the main case itself.

However, with the media guidelines judgment an independent legal procedure has been provided to the High Court which dangerously expands the powers of persons to prohibit publications of trials which may otherwise be public, diluting the general rule of post publication sanctions.

The justification for this given by the court at the very outset is that pre-publication censorship has been ruled to be constitutional. However, the three cases cited by the Supreme Court in justifying pre-publication censorship do not go as far as they are made out to, and on the contrary demonstrate that pre-publication prohibitions are the exceptions rather than the rules.

The first case which is cited is that of Brij Bhushan v. State of Delhi [AIR 1950 SC 129], which states that, “There can be little doubt that the imposition of precensorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19(1)(a).” The case did not even question the validity of such a prior restraint but only proceeded on the basis of examination of the legislative vires of the act under Article 19(2). It is not without reason the Supreme Court in Brij Bhushan, observed after only a few lines, “The only question therefore is whether section 7(1)© which authorises the imposition-of such a restriction falls within the reservation of clause (2) of article 19.” Hence, to my mind the case in no way supports the proposition that prior restraint on publications is constitutional. The maximum extent to which it goes is that it refuses to answer such a question because it found an easier breach of a constitutional provision and struck down the law.

The second case cited for support is the case of Virendra v. State of Punjab [AIR 1957 SC 896], concerned a case regarding the Punjab Special Powers (Press) Act, 1956 which was passed in the backdrop of the communal tension between Hindus and the Akali Sikhs over the question of the partition of the Punjab. The Punjab Press Act was passed in the backdrop of incredible communal tension which is acknowledged at various places in the judgment. Moreover, when Sec. 2(1) of the Punjab Press Act was held to be constitutional it was done because it had an important safeguard against its abuse. This safeguard was an outer time limit of 2 months on which the order preventing the publication would expire. In our case no such limit has been prescribed.

The third case of K.A. Abbas v. Union of India [AIR 1971 SC 481] is most easy to distinguish since the judgment of the Supreme Court in the case itself when approving the constitutional vires of the Cinematograph Act noted that the impact of film was greater than of print and hence required pre-censorship. Hence, all three cases clearly point out that imposing a prior restraint on publication is an exception rather than the rule. Also if such an exception is made, it should be made with adequate safeguards.

3. Absence of clear safeguards

It is quite clear by now that the writ creates a broad powers and to be fair, the Supreme Court realizing this aimed to balance it with safeguards. These safeguards which are hinted in Para 34 as the writ being issued after balancing proportionality of the interference with free speech and the test of necessity has been repeated in Paragraph 43. Though the specific ingredients of this, “balancing test” and “neutralizing device”, though described in part in the judgment is incomplete and will naturally require legal determination. In the absence of such clear safeguards, which are held to be essential requirements when interference with free speech is made, one can expect disparate court rulings and potential for abuse by Petitioners.

For instance, the John Doe Order which is also a judicially crafted injunction provided to Plaintiffs to prevent the piracy of their content has recently come in for attention due to reports that Plaintiffs have been applying such orders broadly and asking ISP’s to block entire file sharing websites, when the maximum protection the order entitles them is to block specific URL’s which infringe their copyright.

4. induces uncertainty in the law

The judgment will introduce uncertainty in the law in two ways. Firstly as I have stated above, the creation of a new writ, which is many ways unprecedented will need to be defined better. This will only happen through adjudication and judicial pronouncements. Since the writ itself is broadly framed and the power to issue the writ is vested with multiple High Courts, one can expect diverging opinions emanating for sometime. To settle the law on this point the Supreme Court may be referred the common appeal arising from such judgments. This process will be time consuming and may take some years. In the interim uncertainty will prevail.

Secondly, even the foundation on which the writ rests is shaky and is susceptible to challenge. The source of law for the writ is reasoned to be the term, “in relation to “contempt of court” appearing under Article 19(2) of the Constitution. Here the writ is fashioned to be an extension of the inherent power of the court to punish for contempt. This extension springs from the term, “in relation to”. Drawing on the strength of these three words, the Court reasons, that the writ is a reasonable restriction which can be imposed on the freedom of speech and expression.

I say with the greatest respect that this reasoning seems to be fashioned for the result it produces and is not an exercise in deductive reasoning or appreciating precedent. The natural construction of this term does not in any way indicate the creation of a fetter in the form of a new Writ for the postponement of publication.

Solely placing reliance on these terms for creation of the Writ power, opens it up to probable challenges. As the Supreme Court itself has acknowledged it may be the final word on the interpretation of law, but such interpretation is not eternal the Judgment can be expected to be challenged and reviewed. The costs of such a decision which stands but is disputed will be enormous as it will bring uncertainty to the law and disturb editorial practices.

5. Appeals will not be efficacious

Lastly what is the recourse against the grant of such a writ ? The remedy which has been indicated in the judgment is that of an appeal against the order which prohibits the publication. I doubt it is a sufficient or efficient remedy. News cycles are severely contracted with public interest shifting from one story to the other each week. In such a situation an appeal against an order, even if it succeeds due to its timing would be a Pyhrric victory.

I acknowledge that there are problems in the way the media reports court proceedings and many a talk show has been complicit in organising a televised trial. Such acts do erode the efficacy of courts to administer justice. However the creation of such a special remedy without a clear legislative mandate is fraught with dangers of abuse. Only time and adjudication will tell whether this abuse is borne out, or whether the writ is granted sparingly. I hope I am wrong, but given the level of ingenuity I see lawyers practice in court I would not be surprised that the writ for postponement of publication becomes popularly referred to as the gag writ.

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This article was orignally published on The Hoot and can be accessed here : http://thehoot.org/web/The-advent-of-the-gag-writ/6309-1-1-7-true.html

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