Sohrabuddin Shaikh trial: Bombay HC judgment lifting ban on reporting of case comes as big relief to media

It had become a trend of sorts for trial courts to impose blanket restrictions on reporting by the media in high-voltage trials. The courts were issuing gag orders quite indiscriminately, often at the accused persons’ and defence counsels’ mere expression of apprehension of prejudice, without considering the cascading effect they have on the concept of an open trial, which is integral to justice being not only done but also seen to be done. In such a scenario, the judgment by Bombay High Court’s Justice Revati Mohite Dere on 24 January, which was made available to the public on 3 February comes as a big and essential relief to the media and journalists whose fundamental right to freedom of expression by reporting was being severely and arbitrarily curtailed by a plethora of gag orders. Justice Dere’s judgment came in the case of a writ petition filed by nine Mumbai-based journalists and the Brihanmumbai Union of Journalists against the 29 November order by Additional Sessions Judge SJ Sharma which imposed a complete prohibition on reporting the proceedings of the trial in the Sohrabuddin Shaikh encounter case, in which BJP president Amit Shah is one of the main accused. In quashing judge Sharma’s gag order, Justice Dere referred to various Supreme Court judgments and turned down the pleas of those who wanted a blanket ban on reporting. [caption id=“attachment_4336341” align=“alignleft” width=“380”]  File image of Bombay High Court. Reuters[/caption] Interpretation of Section 327 CrPC According to Section 327 of the Code of Criminal Procedure, all criminal trials should be open trials, unless, as the exception in Section 327(2) provides, the court orders that the proceedings should be in-camera where offences as defined by various categories of rape are being tried. Nowhere does it provide for a ban on media reporting, that too by a trial court which is hearing a case brought under the Indian Penal Code. However, it must be said that there are provisions in special laws which allow for restrictions on media reporting, such as Section 16 of Terrorist and Disruptive Activities (Prevention) Act , Section 17 of the National Investigation Agency Act, and Section 18 of the Maharashtra Control of Organised Crime Act. Senior Advocate Mihir Desai and Advocate Aabad Ponda, appearing for the writ petitioners, argued that judge Sharma had no legal power to restrict media reporting since the trial was not being conducted under any special laws like the ones mentioned above. Justice Dere referred to the fundamental principles justifying the public’s access to criminal trial as laid down by the Supreme Court in the Khehar Singh case — that they perform a “sunshine function”, helping build the public’s belief and confidence in the judicial system, and also encourage witnesses to “perform more conscientiously”. She categorically agreed with the principle of open trial as provided in Section 327, and also pointed out that the trial was not an in-camera one. She said that there are only three or four contingencies in which a court i.e. the High Courts and the Supreme Court, can restrain the media from publication and that too, for a short duration, that is. when there is a real and imminent danger to a fair trial; that there is real and substantial risk of prejudice to the administration of justice or to the fairness of trial; and where reporting by the press would shift the burden of innocence. “The language of Section 327 itself indicates that the place where the Criminal Court is held for the purpose of inquiry and trial of any offence shall be deemed to be an open court. An open trial is the rule and wherever exceptions are carved out, they are made only to secure the ends of justice,” she held. Power to gag only with superior courts In the Bindeshwari Prasad Singh case (1977), the Supreme Court held that trial courts in criminal cases have no inherent power to issue gag orders against the media — this power is vested only in high courts and the apex court. Moreover, the top court held in the case of SEBI v Sahara (2013) that such powers to impose restrictions on reportage through “postponement orders” shall be exercised “only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial”, and that too, for short durations, and not for the entire course of the trial. Referring to these two decisions, Justice Dere held that judge Sharma “was essentially swayed by the sensationalism of the said case. Sensationalism, by itself, cannot be the sole ground for banning the media from publishing, posting and/or reporting proceedings.” She held that the accused persons and defence counsel had failed to submit concrete evidence that their apprehensions regarding prejudice caused by reporting of proceedings were reasonable. Stating that the media performs a public service by reporting on court proceedings, Justice Dere quoted from the House of Lords’ decision in Scott v Scott (1913) : “Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice…Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.”