We live in a legal environment where the rule of sub judice is regarded as an anachronism, emanating from a time when all trials were decided by jurors susceptible to influence by what was published in the press. By and large, the law of sub judice, which regulates the dissemination of matter under the consideration of the court, is a dead letter. In such a context, the Supreme Court’s judgment justifying a temporary ban on the publication of court proceedings in certain cases is likely to have a chilling effect on the freedom of the press and the very idea of an open trial. Mercifully, the Court refused to lay down broad guidelines for reporting ongoing cases. But though its order looks like a restatement of the Mirajkar case in which a nine-member Bench ruled that the right to open justice is not absolute, the Court has likely upset the “difficult constitutional balance” between freedom of expression and the administration of justice that the landmark 1966 judgment established. Indeed, by emphasising the right of an aggrieved person to seek postponement of media coverage of an ongoing case by approaching the appropriate writ court, there is a danger that gag orders may become commonplace. At a minimum, the door has been opened to hundreds and thousands of additional writs — a burden our legal system is unprepared to handle — filed by accused persons with means.
The five-judge Bench cited precedents in many jurisdictions to maintain “there is power in the courts to postpone the reporting of judicial proceedings in the administration of justice.” Even in the U.S., where the First Amendment trumps any restriction placed on rights to free speech, the courts have evolved “neutralising devices” to prevent the corruption of the administration of justice. But set aside the judicial reasoning and consider its possible impact. Powerful defendants in high-profile cases will try their best to obtain postponement orders despite the very strict criteria laid down by the Supreme Court. Moreover, gag orders issued in contravention of the doctrines of necessity and proportionality may take a long time to vacate, thus robbing the public of its right to know. The public scrutiny of courts is critical in ensuring that judges do justice; a lack of awareness of what goes on in a courtroom can only undermine public confidence in the judicial system. The same Mirajkar judgment also said restraint on publication and closed door trials could apply only in exceptional cases. In all other cases, a court can launch contempt proceedings if a news report attempts to subvert the course of justice. When there is no evidence to show this system of checks and balances has failed, why try and move away from it?