The gag order

The Supreme Court’s ban on the press in the Justice Karnan case is a standing affront to the citizens’ right to freedom of speech and a threat to the media and to the democratic process.

Justice Hidayatullah. He had raised, in a dissenting judgement, the question whether the court can suppress the publication of the deposition of a witness heard not in camera but in open court.

It is a most unfortunate legacy which the Chief Justice of India, Justice J.S. Khehar, will bequeath when he demits office. He showed not a trace of judicial discretion, let alone statesmanship, in his gross mishandling of Justice C.S. Karnan. It is precisely when the provocation is grave that judges must keep their calm and not lose their balance. Justice Karnan provided provocation in plenty; but none could or should have suspected him of being in the grip of a medical condition in his mind. To his unworthy behaviour, the Supreme Court, led by its Chief Justice, responded with an order devoid of any sense of proportion. It ordered his medical examination rather in the style of people involved in a brawl who accuse each other of being nuts. Chief Justice Khehar spurned sensible advice to adjourn the matter until the offender retired the following month. The tragic comedy enacted in Kolkata did not enhance the court’s prestige. Justice Karnan had none to be affected.

All this pales into insignificance when compared to the gag order on the press which the Chief Justice pronounced on May 9. It was of a piece with the lack of balance that alone can explain why it was made at all. “The Court also ordered the media not to publish contents of orders passed by Justice Karnan” ( The Hindu , May 10, 2017).

One is appalled and saddened at the deafening silence of leaders of the Bar in the court, of the country at large as well as by the muted criticisms in a few sections of the press. The loud-mouthed TV anchors are too uneducated to realise the significance of the order.

Dubious precedent

The order belongs to the family which produced its kin—the ban on reporting proceedings in the court. Both are violative of the citizen’s fundamental right to freedom of speech and expression (Article 19(v)(a) of the Constitution). They are made without jurisdiction and can be ignored or defied with impunity. The right to move the Supreme Court for the enforcement of the fundamental right is itself a fundamental right (Article 32). You have here the court itself flouting this right, without deliberation or hearing argument, out of sheer pique. Their Lordships need to be told that the Supreme Court is very much bound by the fundamental rights.

There is a precedent for all this. As a judge of the Bombay High Court, Justice V.M. Tarkunde was known for arbitrariness and brusqueness, traits which emerged in the gag order he made, for which he received his just deserts at the hands of H.M. Seervai. One misses Seervai sorely in these depressing times. He has no peer now in scholarship, courage of integrity.

Let Seervai himself record the facts of the case. It was “a sensational libel case, K.M.D. Thackersey vs. R.K. Karanjia in the Bombay High Court in which hearings had been held in public. One Goda, who had been examined earlier, was recalled for further examination, when he applied that his evidence should not be allowed to be reported, because reports of his evidence earlier had injured him in his business. Although the trial continued to be held in public, Tarkunde J. orally directed that Goda’s further evidence should not be reported. The next day, the defendant’s counsel submitted that the above order ought not to have been passed, and, in any event, the judge should pass a written order. The judge adhered to his order and declined to pass a written order. A writ petition to quash the judge’s order was dismissed by the Bombay High Court on the ground that a writ could not issue from a bench of the High Court to another bench, or to single Judge, of the same court. The present petitions were filed by journalists (who were affected by the judge’s order), contending that it violated their rights to the freedom of speech and expression guaranteed by Art. 19(1)(a), and that a writ should be issued quashing the judge’s order.

“The petitions were heard by a bench of nine judges. Five judgments were delivered: Gajendragadkar C.J. delivered a judgment for himself. Wanchoo, Mudholkar, Sikri and Ramaswamy JJ. (‘the majority judgment’) dismissing the petitions; Sarkar, Shah and Bachat JJ, each delivered separate concurring judgments dismissing the petitions. Hidayatullah J. delivered a dissenting judgment, allowing the petitions. He accurately formulated the questions for determination as follows: ‘(i) Can a court, which is holding a public trial from which the public is not excluded, suppress the publication of the deposition of a witness heard not in camera but in open court, on the request of the witness that his business will suffer; (ii) does such an order breach (the) fundamental right of freedom of speech and expression entitling persons affected to invoke Art. 32; and (iii) if so, can this court issue a writ to a High Court?’ …

“It is difficult to understand why the majority judgment held that Tarkunde J.’s order imposed a ban on the publication of Goda’s evidence only during the trial of the suit. It is submitted that Hidayatullah J. was right when he said that ‘as the intention was to save Goda’s business from harm, it is reasonable to think that the prohibition was perpetual and that is how the matter appears to have been understood… because no report of his deposition has since appeared in any newspaper’. The majority judgment considered the authorities relating to the holding of a trial in camera and held that a judge had inherent jurisdiction to hold a trial in camera if he was satisfied that in no other way could justice be done. If a judge wrongly ordered a trial in camera he acted not without jurisdiction, but in the mistaken exercise of jurisdiction. On this assumption the majority held that the order was passed by Tarkunde J. acting as Judge, and just as his order would be binding between the parties and could not be questioned except on appeal so also an order made by a judge in a judicial proceeding affecting third parties, and in that sense collateral, stood in the same position. Assuming that the order incidentally affected the fundamental rights of the petitioners that did not involve a violation of fundamental right. …

“Hidayatullah J. held that the order of Tarkunde J. enjoined a perpetual prohibition and that the order was without jurisdiction. If there was one point in which the Law Lords were agreed in Scott v. Scott it was that there was no jurisdiction to enjoin a perpetual prohibition of the evidence given in camera except in cases not material to the present inquiry. Secondly, even if there was jurisdiction to hold a proceeding in camera , the order was made when the Court was not sitting in camera and a judge had no jurisdiction at all to prohibit the publication of evidence when the hearing was not in camera .

“The right of publication flowed from the fact that such publication merely enlarged the area of the court and communicated to all that which all had the right to know. He held that the judiciary was subject to fundamental rights and he considered several other Articles in Part III in order better to understand the alleged violation of Art. 19(1). He held that as the order was without jurisdiction, the fundamental right to the freedom of speech was violated.”

Seervai submitted the majority view to a trenchant analysis. He opined the judiciary fell in the ambit of “the state” in Article 12 and was bound by the fundamental rights. Seervai’s critique of the majority view is followed by a discussion of whether the judges are bound by the fundamental rights. “It is submitted that Hidayatullah J. was right when he held that a breach by a Judge of the provisions of several Articles relating to fundamental rights, could not be excluded from the writ jurisdiction of the Supreme Court, and the reservation made by Shah J. … suggests, though it does not decide, that Hidayatullah J’s view of Arts. 20 to 22 is correct. Mirajkar’s case was followed in S.N. Koya v. L.M. & A. Islands ” (AIR 1967 Kerala 259).

He added: “If Tarkunde J. had jurisdiction to pass the order, then it would be correct to say that no matter how grievously he erred in the exercise of his jurisdiction, the order did not violate the fundamental right to the freedom of speech and expression which includes the freedom of communication and the freedom of the press. For reasons already given. It is submitted that Hidayatullah J. was right when he held that the order contained a perpetual prohibition against publication of the evidence and the order was beyond the jurisdiction of Tarkunde J., and using the language of the Privy Council in McPherson v. McPherson , we may say that it was an order that could be disobeyed with impunity. If this is the correct view, it is submitted that Hidayatullah J. rightly held that it violated the petitioner’s freedom of speech and expression” ( Constitutional Law of India, fourth edition, pages 390-395).

In McPherson v. McPherson [(1936) A.C. 177], the Privy Council said “the order directing the proceedings of the trial to be held in camera was so completely beyond the powers of the High Court that although obtained at the instance of the appellant, it might be disobeyed by her with impunity.”

In the classic Media Law , Geoffrey Robertson Q.C., a champion of human rights, and Andrew Nicol write: “British courts have refused, for example, to permit ‘secret trials’ on the grounds of morals or public order, or to uphold gagging orders imposed to protect the private lives of witnesses or parties. The press has not needed the (European) Convention to challenge successfully such diverse rulings as an order not to name a witness from a famous family lest publicity might interfere with her cure for heroin addiction; an order not to publish the address of a former MP defendant lest his estranged wife should discover his whereabouts and harass him; and an order that reporters should leave the Court so that a distressed defendant could explain in privacy the matrimonial problems that drove her to drink before she drove her car. In all these cases trial courts had been moved by personal plight to overlook the fundamental principle that trials must be open in every respect.”

In the instant case the gag was not in respect of proceedings in the court but on a person well outside it. He was not heard, nor were the media. It made an order which deserves a speedy burial by the court itself. It has the power, indeed a duty, to do so.

A seven-judge Bench of the Supreme Court held that an order by the Supreme Court can be challenged on the ground that the court had violated fundamental rights ( A.R. Antulay vs R.S. Nayak & Another (1988) 2 Supreme Court Cases 602). It ruled: “In giving the directions this court infringed the constitutional safeguards guaranteed to a citizen or to an accused and injustice results therefrom. It is just and proper for the court to rectify and recall that injustice, in the peculiar facts and circumstances of the case. … No man should suffer because of the mistake of the court” (pages 670 and 672, paragraphs 80 and 83).

The Supreme Court’s gag order of May 9 is a standing affront to the citizens’ right to freedom of speech, a threat to the media and to the democratic process. If allowed to pass muster, what is there to prevent the Supreme Court—or the High Courts—from banning in advance reports of a speech by a politician, or a lawyer or a writing by a journalist? It would be best if the Supreme Court recalls the order.