Media gag order violates right to know

THERE

The order of the CBI Special Court Judge SJ Sharma gagging the entire media from reporting on the sensational Sohrabuddin fake encounter case is a blatant violation of press freedom and the people’s right to know guaranteed by Article 19 (1) (a) of the Constitution. This is why India is now ranked 136th among 180 nations in the 2017 world press freedom rankings.

Shamefully, India is ranked just three notches above Pakistan and one notch below violence-torn Palestine, so that we delude ourselves that our media is free. The Constitution is silent on the media although it grants privileges to the legislature, the executive and the judiciary which are homogenous organs of the state unlike the media, which was never free, nor will it ever be free because it consists of a hotchpotch of competing private businesses without privileges.

To illustrate, the media has no privilege to keep their sources of information confidential and can be compelled to disclose who told them what by any Indian court. This itself will make whistleblowers afraid approaching the media. Whenever there is a confrontation between any state organ versus the media, the latter becomes the victim.

The over worn hackneyed cliché of being called the fourth estate is a chimera because whenever lawyers for accused persons ask the courts to gag the media, most courts promptly accede. They do so without balancing two conflicting rights — the people’s right to know versus the right of the accused to a fair trial. Court proceedings are open to all because justice must be seen to be done before the people which is why a judgment is preceded by the Latin word Coram which means before the people.

Gagging the media is denying the people’s right to know about a sensational trial where the accused are top police officers like DG Vanzara and ministers of the Gujarat and Rajasthan governments.

Coming on the heels of these sensational developments, denying voters information about their leaders is allowing the lawyers for high-profile accused to manipulate information flow and brainwash the electorate. This can lead to allegations that the subordinate judiciary can be manipulated because the subordinate judiciary comes under the administrative control of the states with the 24 high courts having supervisory powers.

There can be no quarrel that the accused should have free-and-fair trial without witnesses being intimidated. But judges are trained to weigh evidence and control court proceedings without being influenced by media reports. This is why it is the conflict between the people’s right to know versus the right to a fair trial which is put on public display time and again whenever a high profile accused person has to face a trial.

This took place during the trial of Pravin Mahajan who was convicted for murdering his brother Pramod Mahajan when the former wanted to disclose something in his defence which would have shown his elder brother in a negative light but served to lessen his crime. Prevented from speaking in open court, Pravin Mahajan wrote a book in Marathi, giving his story. This book is not available because every publisher is terrified of printing it fearing that his premises will be gutted by BJP supporters.

So also, when a young law intern accused a retired Supreme Court judge, Swatanter Kumar, of sexual harassment, he filed a defamation suit against news channels and got an unprecedented gag order against the entire media from reporting the proceedings. Jaidev Thackeray made a sensational statement about the paternity of his son, Aishwarya, during court proceedings challenging the will of his late father, Shiv Sena supremo, Bal Thackeray. The high court judge, Justice Gautam Patel, promptly excluded the media and declared the proceedings in camera. Till today, nobody knows what took place.

Hence, the test to adopt when there is a conflict between the people’s right to know versus the right to a fair trial of a high-profile accused is the Latin axiom “salus populi est suprema lex” or the good of the people is the supreme law, laid down by Jeremy Bentham (1748-1832). This is the principle of utilitarianism which makes law respond to the needs of the people and prevents it being used as a tool by ministers to block adverse information about themselves.

Hence, the principle of utilitarianism places the locus of right and wrong solely on the consequences of choosing one action or policy over another action or policy. So, it moves beyond the scope of private interests of corrupt ministers and judges so that a law or policy is deemed to be good only if it has the benefit of the greatest majority at its core. Using this yardstick, it becomes obvious that by gagging the media, the values of a democracy are subverted as in the dark days of the Emergency when Indira Gandhi even removed the privilege of the media to report Parliamentary proceedings without fear of a defamation suit.

Forty years after the shameful Emergency, court reporters can only attend but not report day-to-day proceedings of what transpires in the Sohrabuddin fake encounter trial which has already been shifted from Gujarat to Mumbai because justice would not have been seen to be done in Gandhinagar. Whether the beleaguered reporters will challenge this order in the high court remains to be seen.

can be no quarrel that the accused should have free-and-fair trial without witnesses being intimidated. But judges are trained to weigh evidence and control court proceedings without being influenced by media reports.

The author holds a PhD in media law and is a journalist-cum-lawyer of the Bombay High Court.