If powerful figures are not subjected to transparent court proceedings, the opacity in the face of a critical issue is likely to undermine public faith in the judiciary

It is odd indeed that the Delhi High Court seems to believe that sensational media coverage can sway the Supreme Court into prejudice against one of its own retired judges. Justice Manmohan Singh of the Delhi High Court has said in Swatanter Kumar v. Indian Express and Others, that the pervasive sensational media coverage of the sexual harassment allegations against the retired Supreme Court judge “may also result in creating an atmosphere in the form of public opinion wherein a person may not be able to put forward his defence properly and his likelihood of getting fair trial would be seriously impaired.” This Delhi High Court judgment has drawn upon the controversial 2011 Supreme Court judgment in Sahara India Real Estate Corp. Ltd v. SEBI (referred to as the Gag Order case in this piece), to prohibit the media from publishing headlines connecting retired Justice Swatanter Kumar with the intern’s allegations and from publishing his photograph in connection with the allegations.

Reporting proceedings

Although the Gag Order judgment was criticised at the time that it was delivered, Swatanter Kumar v. Indian Express illustrates its detractors’ argument more clearly than anyone could have imagined. Sukumar Muralidharan wrote of the Gag Order case that the postponement (of media coverage) orders that it set up as a remedy, could become an “instrument in the hands of wealthy and influential litigants, to subvert the course of open justice.” Here we find that although a former Supreme Court judge is pitted against a very young former intern within a system over which he once presided, Justice Manmohan Singh seems to think that it is the judge who is in danger of being victimised. The High Court’s Swatanter Kumar judgment was enabled by both the Gag Order case as well as the 1966 Supreme Court judgment in Naresh Shridhar Mirajkar v. State of Maharashtra, which in combination created a process for veiling court proceedings. Naresh Mirajkar stated that the inherent powers of courts extend to barring media reports and comments on ongoing trials in the interests of justice, and that such powers do not violate the right to freedom of speech; and the Gag Order case created an instrument — the “postponement order” — for litigants, such that they can have media reports of a pending case restricted. The manner in which this is used in the Swatanter Kumar judgment raises very worrying questions about how the judiciary views the boundaries of the right to freedom of expression, particularly in the context of reporting court proceedings.

Broad power to restrict reporting

The Gag Order case was problematic: it used arguments for legitimate restraints on media reporting in exceptional circumstances, to permit restrictions on media reporting of court proceedings under circumstances “where there is a real and substantial risk of prejudice to fairness of the trial or to proper administration of justice.” The Supreme Court refused to narrow this or clarify what publications would fall within this category, saying that this would depend on the content and context of the offending publication, and that no “straitjacket formula” could be created to enumerate these categories. This discretionary power is broad and ambiguous. It imperils openness and transparency in the context in which the public needs it the most — when powerful public figures whose actions have public implications are under trial.

Court proceedings are usually open to the public. This openness serves as a check on the judiciary and ensures public faith in the judiciary. In countries as large as ours, media coverage of important cases ensures actual openness of court proceedings — we are able to follow the arguments made by petitioners who ask that homosexuality be decriminalised, the trial of suspected terrorists and alleged murderers, and the manner in which our legal system handles sexual harassment complaints filed by young women.

When court proceedings are closed to the public (known as “in-camera” trials) or when media dissemination of information about them is restricted, the openness and transparency of court proceedings is compromised. Such compromise of transparency does take place in many countries, to protect the rights of the parties involved, or prevent the miscarriage of justice. For example, child-participants are protected by holding trials in-camera; names of parties to court proceedings are withheld to protect their privacy sometimes; and in countries where juries determine guilt, news coverage that may prejudice the jury is also restricted.

Damage done

Although the Supreme Court stated in principle that the openness of court proceedings should only be restricted where strictly necessary, this appears to lend itself to very varied interpretation. For example, it is very difficult for some of us to understand why it was strictly necessary to restrict media coverage of sexual harassment proceedings in the Swatanter Kumar case. Justice Manmohan Singh on the other hand seems to argue that the adverse public opinion will affect the retired judge’s chance of getting a fair trial. However, his judgment also seems to indicate his concern that the sensational headlines will impact public confidence in the Supreme Court.

The Delhi High Court’s concerns about the effects of the newspaper coverage on the reputation of the judge did not need to translate into a prior restraint on media coverage. They may better have been addressed at a later stage by evaluating whether there was defamation once the facts were determined. His concerns about the reputation of the judiciary may also have been better addressed by transparency. If powerful public figures, especially those with as much influence as a former Supreme Court judge are not subjected to transparent court proceedings, the opacity in the face of such a critical issue is likely to undermine public faith in the judiciary. Such opacity undermines the purpose of open courts.

Since the Delhi High Court ruling, there has been little coverage of the sexual harassment case. The suppression of media coverage leaves the young woman comparatively isolated, without all the support that media coverage can bring. Wide coverage of the other sexual harassment complaint involving Justice Ganguly helped the intern in that case find support. The circulation of information led to other former interns in a similar position as well as from a larger network of lawyers and activists reaching out to her. Media coverage is often critical to whether someone relatively powerless is able to assert her rights against a very powerful person, and it is the reason that we protect the freedom of expression in our democracy.

If the Supreme Court was confident that the high courts in India would use their broad discretionary power under the Gag Order case sparingly and only in the interests of justice, the Swatanter Kumar case should offer it grounds to reconsider. Openness and freedom of expression are not meant to be diluted to protect the powerful — they exist precisely to ensure that even the powerful are held accountable by state systems that they might otherwise be able to sway.

(Chinmayi Arun is research director, Centre for Communication Governance, National Law University, Delhi, and fellow, Centre for Internet and Society, Bangalore.)

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