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Media can be gagged to ensure fair trial, says SC

September 11, 2012 12:03 pm | Updated November 17, 2021 12:49 am IST - New Delhi

The Supreme Court on Tuesday refused to frame guidelines across the board for reporting sub-judice matters but laid down a constitutional principle under which aggrieved parties can seek postponement of publication of court hearings.

A five-judge bench headed by Chief Justice S H Kapadia said it was laying down the constitutional principle which will allow the aggrieved parties to seek from appropriate court the postponement of the publication of court hearings.

The bench said the concerned court will decide the question of postponement of reporting court proceedings on case-by-case basis.

“We are not framing guidelines but we have laid down constitutional principle and appropriate writ courts will decide when the postponement order has to be passed on case-by-case basis,” the bench also comprising justices D K Jain, S S Nijjar, Ranjana Prakash Desai and J S Khehar said.

“Hence, guidelines on media reporting cannot be framed across the board,” the bench said.

While propounding the doctrine of postponement of publication of court proceedings, the bench said it is a preventive measure and not a prohibitive and punitive measure.

It further said that temporary ban on publication of court proceedings is necessary to maintain balance between freedom of speech and fair trial for proper administration of justice.

The bench said the postponement of publication of court proceedings would be required where there is a substantial risk of prejudicing the trial and administration of justice.

Further the CJI, who read the judgement, said reasonable restrictions on reporting of court proceedings were needed for societal interest and this doctrine of postponement is one of “neutralising technique“.

The apex court has undertaken the exercise of framing guidelines after receiving complaints of breach of confidentiality during the hearing of a dispute between Sahara Group and market regulator SEBI.

The issue of breach of confidentiality came up when certain documents regarding the dispute between Sahara and SEBI were leaked to the media.

Experts differ on SC verdict

The doctrine of postponing publication of sub judice cases evolved by the Supreme Court on Tuesday evoked mixed response from jurists. Some said it would create serious problems and open the floodgates for the high and mighty to seek virtual censorship, while others felt that it would not lead to unreasonable media restrictions.

Senior advocates Dushyant Dave and Prashant Bhushan said the apex court had delivered the most “imbalanced” judgment that would benefit the influential accused to seek pre-publication ban.

“Prosecuting agencies or the lower courts may be in cahoots with them [influential accused],” Mr. Bhushan said. He said giving such powers to High Courts and the apex court to ban pre-publication could be “dangerous.”

Mr. Dave termed the propounding of such a constitutional principle contrary to the constitutional principles, legal points and hard realities.

“I would characterise the judgment as one of the worst that the Supreme Court has delivered on constitutional provisions,” he told a TV channel while adding that the verdict completely ignored the rights of victims and their families.

However, differing with Mr. Dave and Mr. Bhushan, noted jurists P.P. Rao and Shanti Bhushan said the doctrine of postponement would not lead to unreasonable restrictions but there was need for self-regulation instead of media guidelines.

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