Allahabad HC gag order in Adityanath case worrying

BY PRASHANT THIKKAVARAPU| IN Censorship | 26/11/2017
Since the proceedings involve the CM and serious criminal allegations against him, public interest surely outweighs concerns about inaccurate reporting?
PRASHANT THIKKAVARAPU asks if media will protest this order

 

The Indian Express has reported that the Allahabad High Court gagged the media from reporting on proceedings regarding the grant of permission to prosecute the current Chief Minister of Uttar Pradesh Ajay Singh Bhisht (a.k.a Yogi Adityanath) over serious allegations of instigating communal violence. The UP Government headed by the Chief Minister had conveniently denied the state police the sanction required to prosecute the Chief Minister.

Certain private citizens moved the High Court asking for the investigation to be moved to an independent agency (Criminal Misc. Writ Petition No. - 21733 of 2008). During the course of the hearings, on November 7th 2017 a Division Bench of the Allahabad High Court consisting of Mr. Justice Krishna Murari and Mr. Justice Akhilesh Chandra Sharma gagged the media from reporting on the proceedings on the grounds that there was misreporting. It is worrying that it took the national media more than two weeks to report this order. More worrying is the almost casual nature of the order. I reproduce the entire text of this gag order below:

We have heard Sri Manish Goel, learned Additional Advocate General, and Sri A.K. Sand, learned A.G.A. for the State. Due to paucity of time, the arguments could not conclude. Put up tomorrow for further arguments. After concluding the arguments, Sri Manish Goel, learned Additional Advocate General points out that wrong reporting of the day to day proceedings of this case is being made by the media which is causing lot of embarrassment as the observations are reported out of context and very often misquoted. Earlier also, this fact was brought to our notice when we orally directed not to publish any misleading reports. After looking into the various media reports which have been produced by Sri Manish Goel before us, we are constrained to pass the order directing that no one shall publish or cause to be published any proceedings of this case till the delivery of the judgement.

"It is worrying that it took the national media more than two weeks to report this order. More worrying is the almost casual nature of the order"

 

Gagging the media from reporting on judicial proceedings is an extraordinary remedy that can be granted only in exceptional cases. Moreover, the gag order until the Court delivers judgment is a rather long gag order given the history of this case. There have been 30 hearings in this case since March 2015. 

In a landmark judgment in 1966 a bench of 9 judges of the Supreme Court in the case of Mirajkar & Ors. v. State of Maharashtra had reiterated the importance of ensuring the sanctity of all court proceedings being held in a transparent manner. The court held in pertinent part:

Let us begin by assuming that the petitioners who are Journalists, have a fundamental right to carry on their occupation under Art. 19(1)(g); they have also a right to attend proceedings in court under Art. 19(1)(d); and that the right to freedom of speech and .expression guaranteed by Art. 19(1) (a) includes their right to publish as Journalists a faithful report of the proceedings which they have witnessed and heard in court. In Sakal Papers (P) Ltd., and Others v. The Union of India' , it has been held by this Court that the freedom of speech and expression guaranteed by Art. 19(1)(a) .includes the freedom of press. That being so, the question which we have to consider is: does the impugned order contravene the petitioners' fundamental rights to which we have just referred? Before dealing with this question, it is necessary to refer to one incidental aspect of the matter. It is well-settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the court-room.

"Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice"

 

The import of this judgment was significantly diluted by the Supreme Court in Sahara v. SEBI(2012) when the court held that media coverage could be “postponed” by High Court, under their contempt powers, during the course of a trial to prevent prejudice to the accused but had thrown in several riders. In pertinent part, the court held the following:

Such an order of postponement has to be passed only when other alternative measures such as change of venue or postponement of trial are not available. In passing such orders of postponement, courts have to keep in mind the principle of proportionality and the test of necessity. The applicant who seeks order of postponement of publicity must displace the presumption of Open Justice and only in such cases the higher courts shall pass the orders of postponement under Article 129/Article 215 of the Constitution. Such orders of postponement of publicity shall be passed for a limited period and subject to the courts evaluating in each case the necessity to pass such orders not only in the context of administration of justice but also in the context of the rights of the individuals to be protected from prejudicial publicity or mis-information, in other words, where the court is satisfied that Article 21 rights of a person are offended. There is no general law for courts to postpone publicity, either prior to adjudication or during adjudication as it would depend on facts of each case. The necessity for any such order would depend on extent of prejudice, the effect on individuals involved in the case, the over-riding necessity to curb the right to report judicial proceedings conferred on the media under Article 19(1)(a) and the right of the media to challenge the order of postponement.

Two points needs to be understood in this regard. The postponement orders can be passed only with regard to “criminal trials” – the proceedings in question are however appellate proceedings not trial court proceedings – there is no recording of evidence taking place in the current proceeding before the High Court. The second point to be noted is the requirement to balance the various interests involved – from a reading of the High Court’s gag order, it is clear that there has been no analysis or reasoning aimed at balancing the various competing interests. Given that the proceedings involve the Chief Minister and serious criminal allegations against him, it is but obvious that public interest outweighs any concerns regarding inaccurate reporting.

"The postponement orders can be passed only with regard to “criminal trials” – the proceedings in question are however appellate proceedings not trial court proceedings"

 

This isn’t the first time the Allahabad High Court has passed a poorly reasoned gag order. In 2012, the Supreme Court over-ruled the Allahabad High Court when it gagged the media from reporting on the Indian Express’s infamous report regarding a possible coup by the Army against the government. In that case it was the Press Council of India which moved the Supreme Court seeking a stay on the ban.

Who will now stand up to the judges in a case that could dethrone one of the most polarizing figures in Indian politics?

 

The writer is an Asst. Professor at NALSAR University of Law

 

 

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