A recent order barring the media from covering the trial of Sohrabuddin Sheikh, his wife, Kauser Bi, and aide Tulsiram Prajapati in the alleged fake encounter case in the sessions court has sparked a debate on whether it thwarts the freedom of the press and contravenes the Criminal Procedure Code, which states that the court should have open hearings that can be accessible to the public.
Retired Justice Abhay Thipsay, who has presided over a few contentious trials, including the 2002 Best Bakery case in Baroda and the bail order of actor Salman Khan after his conviction in the hit-and-run case, spoke to The Hindu on the media’s right to report and the power of the court to ban reporting of trials.
Justice Thipsay says forthrightly that “the press does not have a separate or special right in the Indian Constitution” and the right of the press to publish flows from the right to freedom of speech and expression guaranteed under Article 19 (1) of the Constitution.
He says, “Like other rights mentioned in Article 19 (1), this right is not absolute and is subjected to reasonable restrictions as may be imposed by the State by making a law for the purposes mentioned in Article 19(2).” Justice Thipsay says that Section 327 of the Cr.PC mandates that the courts be open, but it also gives the presiding judge power to restrict access.
What exactly does the Section say?
Section 327 of the Cr.PC reads: The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access, so far as the same can conveniently contain them: Provided that the presiding judge or magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.
So what is the legal position about the media covering court proceedings?
So, as far as the legal position is concerned, one would say that the press has the right to report the proceedings of the court in the interest of the public; and that the public also has right to know/have information. The right to information has been held to be part and parcel of the right to freedom of speech and expression and is thus considered a fundamental right in itself. The press has a right to report the proceedings of the court, and the public has the right to know what is going on in the court, but these rights are subject to reasonable restrictions under Article 19 (2) of the Constitution.
Does it then allow the court to restrict the media?
The question is whether to exercise the power to restrict the right. If there is no open trial, it is difficult to keep a check on the proceedings. The open trial is a rule, subject only to certain just exceptions. In fact, open trial is a right of the accused. The rule of open trial is basically for the protection of the accused. In-camera trials are held in rape cases, which is an exception to the rule of open trial for the protection of the victim. But here, the request has come from the accused. So, I wonder what prejudice will be caused to them by an open trial and publication of the proceedings of the court.
Can we then say the order is bad in law?
What needs to be seen is that in this case it is not where there is great outrage in the public against the accused. First, the case is old. Secondly, it took place in Gujarat and not in the area where the court is located. Thirdly, those who have been encountered [killed] have been termed dubious and criminal. Therefore, the accused should fear the publicity in media, which is actually likely to be a safeguard for the accused from arbitrariness and judicial whims; it is rather strange.
But the case has already seen the main accused being discharged?
Absolutely. So far, so many accused are already discharged indicating the opinion of the court about there being no satisfactory material against them. In these circumstances, it is not likely that by giving publicity, other accused will be prejudiced.
Is there any provision in law that permits the court from banning the media?
There is no provision in the Cr.PC that empowers the court to ban the media from publishing reports of the proceedings until the trial is made in-camera. However, such power is held to be implicit in the power of the court to prohibit access to the public. It has been held by the Supreme Court that if there exists a power to disallow entry, the entry in the court hall could be given certain conditions, i.e. not co-publish the report of the proceedings.
However, permitting the media to be present inside the courtroom but not permitting them to publish the report of proceedings can be seen to be dangerous. The point of being accurate will be gone, intentionally or unintentionally. It can be dangerous because court is allowing people inside who cannot be stopped from speaking what they observe and things could be easily exaggerated. People will give their account of what happened in the court, and that will be more dangerous.
The order compares this case to the Malegaon 2008 blasts, would that be fair?
The Malegaon case is under MCOCA [Maharashtra Control of Organised Crime Act, 1999], and that has different provisions for protecting the witness, i.e. non-disclosure of their identity because there would be danger to the life of the witness. But here the accused are the police and the request has not come from the victims but from the accused. So I don’t know how the accused should think that avoiding publication of the reports of the proceedings would ensure a ‘fair trial’ for them.
Why didn’t you think of banning the media while hearing the 2002 Best Bakery trial?
I don’t think there was a greater challenge before me at any point. I did not ban any publication. In fact, I thought I will get protection because of the press, as everything would be in the open. I always believed thatr everyone must see what is happening inside the courtroom.
Why the accused should feel in this case that a fair trial is more likely behind ‘closed doors’ rather than in the open is difficult to understand.
