Wednesday, September 12, 2012

Supreme Court’s Guidelines on Reportage of Sub-judice Matters

Yesterday, I had put up a short snippet on the Supreme Court’s decision on guidelines to the media on reportage of sub-judice matters. Here’s the judgment which was pronounced yesterday. In an earlier post, coincidentally I had discussed those provisions of the Contempt of Courts Act, 1971 (“CCA”) which deal with the extent of reportage permitted in pending judicial proceedings and defenses available under Section 13 of the CCA in the event contempt is alleged on grounds of interference with administration of justice.

In that post, I had even discussed provisions of the Delhi High Court Rules which govern access to records of pending judicial proceedings. Pertinently, in its decision, the Supreme Court has observed in Para 33 as follows:

“33. At this stage, it may be  noted that the judgment of the Privy Council in the case of Independent Publishing Co. Ltd. v. AG of Trinidad and Tobago [2005 (1) AC 190] has been doubted by the Court of Appeal in New Zealand in the case of Vincent v. Solicitor General [(2012) NZCA 188 dated 11.5.2012].  In any event, on the inherent powers of the Courts of Record we are bound by the judgment of this Court in Mirajkar.  Thus, Courts of Record under Article 129/Article 215 have inherent powers to prohibit publication of court proceedings or the evidence of the witness.”

I do not wish to reproduce the facts of the petition in which the SC was asked to issue guidelines to the print and electronic media on sub-judice matters; however, the relevant fact in this case which attracted provisions of contempt was that a proposal which was exchanged between the counsel for Sahara, and SEBI was leaked to the media.

The Court observed that parties have the right to negotiate in privacy and the freedom of speech under Article 19(1)(a) cannot be exercised to undermine such privacy. The decision of the Court is educative on the law of prior restraint of publication and sub-judice reportage in several jurisdictions such as the UK, Canada, Australia, New Zealand and Germany.

On internal page 21, from Para 25 on the Court discusses the position of Indian law, which in a nutshell is as follows:
1. If prior restraint is sought on a publication, there must be reasonable grounds to believe that there is real and imminent danger to the administration of justice.

2. Critically in Para 31, the Court notes as follows:

“31. In the case of Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1], this Court dealt with the power of a court to conduct court proceedings in camera  under its inherent  powers and also to incidentally prohibit publication of the court proceedings or evidence of the cases outside the court by the media.  It may be stated that “open Justice” is the cornerstone of our judicial system.  It instils faith in the judicial and legal system.  However, the right to open justice is not absolute.  It can be restricted by the court in its inherent jurisdiction as done in Mirajkar’s case if the necessities of administration of justice so demand... Even in US, the said principle of open justice yields to the said necessities of administration of justice.”

3. In Para 32, the Court cites the Mirajkar decision in which it was held that a temporary prohibition of publication of court proceedings in the media under the inherent powers of the court cannot be said to offend Article 19(1)(a) rights [which includes freedom of the press to make such publication], since the prohibition is with a view to protect the interest of justice and the administration of justice.

4. As mentioned in the beginning of the post, Para 33 is of critical importance. In this Para, the Court observes that Courts of Record (such as High Courts) under Article 129/Article 215 have inherent powers to prohibit publication of court proceedings or the evidence of witnesses.

5. Further, all Courts which have inherent powers, i.e., the Supreme Court, the High Courts and Civil Courts can issue prior restraint orders or proceedings, prohibitory orders in  exceptional circumstances temporarily prohibiting publications of Court proceedings to be made in the media and that such powers do not violate Article 19(1)(a).

6. The SC further notes that if one reads Article 19(2) which refers to law in relation to Contempt of Court with the first part of Article 129 and Article 215, it becomes clear that the power is conferred on the High Court and the Supreme Court to see that “the administration of justice  is not perverted, prejudiced, obstructed or interfered with”. 

7. To ensure that administration of justice is not prejudiced or perverted clearly includes power of the Supreme Court/High Court to prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.

8. Critically, the Court has observed that presumption of innocence is held to be a human right.  If in a given case the appropriate Court finds infringement of such presumption by excessive prejudicial publicity by the newspapers (in general), then under inherent powers, the Courts of Record suo motu or on being approached or on report being filed before it by subordinate court can under its inherent powers under Article 129 or Article 215 pass orders of postponement of publication for a limited period.

This may be done if the applicant is able to demonstrate substantial risk of prejudice to the pending trial and provided he is able to displace the presumption of open justice and to that extent the burden will be on the applicant who seeks such postponement of offending publication.

9. In Para 35, the SC discusses Sections 4, 7 and 13 of the Contempt of Courts Act, which I discussed in an earlier post.

10. Finally, the Court deals with mechanisms which neutralize the effect of prejudicial publication/reportage. In this context, the Court discusses the object and practicality of “postponement orders”- orders which postpone the publication of content which may have the effect of interfering with/prejudicing administration of justice.

11. On Page 45, the Court notes as follows:

Thus, balancing of such rights or equal public interest by order of postponement of publication or publicity in cases in which there is real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial and within the above enumerated  parameters of necessity and proportionality would satisfy the test of reasonableness in Articles 14 and 19(2).”

12. On Page 46, the Court observes the following:

Fourthly, in case of criminal contempt, the offending act must constitute interference with administration of justice.  Contempt jurisdiction of courts of record forms part of their inherent jurisdiction under Article 129/ Article 215.  Superior Courts of Record have inter alia inherent superintendent jurisdiction to punish contempt committed in connection with proceedings before inferior courts. 

The test is that the publication (actual and not planned publication) must create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial.  It is important to bear in mind that sometimes even fair and accurate reporting of the trial (say murder trial) could nonetheless give rise to the “real and substantial risk of serious prejudice” to the connected trials. 

In such cases, though rare, there is no other practical means short of postponement orders that is capable of avoiding the real and substantial risk of prejudice to the connected trials.  Thus, postponement orders safeguard fairness of the connected trials.  The principle underlying postponement orders is that it prevents possible contempt.  Of course, before passing postponement orders, Courts should look at the content of the offending publication (as alleged) and its effect

Such postponement orders operate on actual publication.  Such orders direct postponement of the publication for a limited period.  Thus, if one reads Article 19(2), Article 129/ Article 215 and Article 142(2), it is clear that Courts of Record “have all the powers including power to punish” which means that Courts of Record have the power to postpone publicity in appropriate cases as a preventive measure without disturbing its content.

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