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Indian Supreme Court permits gag orders on judicial proceedings

(IPI/IFEX) - VIENNA, Sep 12, 2012 - The Supreme Court of India on Tuesday refrained from framing guidelines for the media for coverage of court proceedings but declared that the courts could, if necessary for the administration of justice, prohibit publication of any part of proceedings for a temporary period.

The court said such postponement orders could be passed keeping in mind necessity, that is when there is a real and substantial risk to the fairness of a trial and when alternative measures would be ineffective, and proportionality, according to which the benefits of such an order should outweigh the deleterious effects on media freedom.

Parties or witnesses who fear harm from publicity can apply for such orders and media can appeal to the high courts and the Supreme Court against any such restraints.

Journalists and media organisations had opposed the Supreme Court's proposal for framing guidelines for media coverage of court proceedings during the hearing of a case between a private financial company and the financial markets regulator. The finance company had complained of the leak and publication of its confidential negotiating proposal sent to the regulator during the course of the hearing.

The Supreme Court has now ruled that the parties had the right to negotiate in confidence during any court proceedings and the courts could bar the publication of such negotiating proposals till the completion of the trial. The ruling referred to a 1966 case, in which the Supreme Court had upheld an order of a Mumbai court barring the publication of the statements of a witness until the completion of the trial on the grounds that such publication would harm his business, and had said such orders served the administration of justice.

Reacting to the Supreme Court's order, the Chairman of IPI's Indian National Committee and IPI Executive Board member, N. Ravi said: "The order is unfortunate and by allowing a veil of secrecy to be drawn over court proceedings it would undermine the rule of law itself. News would lose its value by delayed publication. The ruling is an open invitation to powerful litigants and witnesses to appeal for gag orders against the media merely to save themselves from embarrassment during a trial. The court's broad declaration is unwarranted in the particular case and the tests of necessity and proportionality it has laid down are too weak to safeguard media freedom.

"Through a balancing test, the Supreme Court has sought to draw a false dichotomy between the requirements of administration of justice and media freedom while in fact an open justice system and publicity form the foundational principle of the rule of law. It has been recognised since the time of Blackstone and Bentham that publicity is an essential requirement for the proper functioning of the legal system. Only when parties are publicly heard, witnesses publicly examined and orders pronounced in open court can public confidence be ensured in the legal system. Publicity checks capricious and arbitrary behaviour of judges and makes witnesses come out with the truth before all.

"There are well established exceptions such as cases involving women and child victims of crime or national security and espionage cases where publicity is barred. To expand that list and to now allow every litigant and every witness the right to apply for orders banning publicity would open the floodgates to gag orders. Litigation is never a pleasant business and all cases involve some inconvenience and embarrassment to parties and witnesses. To make such incidental inconveniences or embarrassment a ground to shut out publicity would undermine the very basis of the legal system."

An editorial published today by the India daily The Hindu about the Supreme Court ruling further warned that "gag orders issued in contravention of the doctrines of necessity and proportionality may take a long time to vacate, thus robbing the public of its right to know".

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