The Big Story: Gagging media

As early as in March 1950, the Supreme Court eloquently articulated the effect of prior restraints on speech and expression, calling it a danger to the “marketplace of ideas”. In his opinion in Brij Bhushan vs State of Delhi, Justice Patanjali Sastri quoted British jurist William Blackstone’s views on what prior restraint does to the very idea of freedom of press to drive home the court’s position.

“The liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to say what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.”

However, this caution doesn’t seem to bother courts of today. Prior restraint, the tool with which the state stops a person from even exercising her freedom of expression, is starting to become so common that there is now a fear of this extreme tool turning into a normal procedure.

The latest example of such prior restraint took place in Mumbai on Wednesday, when the Central Bureau of Investigation court hearing the Sohrabuddin Sheikh encounter case, which once involved Bharatiya Janata Party president Amit Shah and senior police officers from Gujarat, gagged the media from reporting on the trial. Following the Caravan magazine’s recent investigation into the circumstances leading to the death of a judge hearing the case in December 2014, the defence team alleged prejudice in the manner in which the media was reporting the trial. If day-to-day reporting of evidences and testimonies was allowed, the lawyers alleged, the lives of the accused could be in danger. The court accepted the pleadings and stopped the media from writing on the case till further orders.

The ingenuity of this argument is startling. An imagined threat to the accused has been converted by the court into a real threat. Since the accused could not cite any incident of intimidation against them in the ongoing case, they chose to cite threats received by lawyers in the 2006 Malegaon blast case. How the two cases are related is unclear.

But this is not a unique case. Citing inaccurate representation of its comments, the Allahabad High Court on November 7 barred the media from reporting on the proceedings of the 2008 Gorakhpur hate speech case, in which Uttar Pradesh Chief Minister Yogi Adityanath is the prime accused.

The role of the media in any criminal trial involving high-profile personalities is the role of a watchdog. While the accused may consider even a reference to the charges against them as prejudice, the constant eye of the media is a crucial part in ensuring that the balance of justice is maintained and any deviation from the procedures established by law is flagged. In essence, the media aides the delivery of justice.

It is for this reason that the Supreme Court in 2012 made it clear that any prior restraint on media could be imposed only when there is “a real and substantial risk of prejudice to fairness of the trial” and “when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint”.

In both the cases, and many others in the recent past, the courts have clearly ignored this guideline.

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