In laying down a new principle, calling it ‘postponement of publication’, the SC has paid insufficient attention to what should be called ‘news’
The higher judiciary in India is known to be diligent in upholding the freedom of expression, including that of the news media to publish material that is in the public interest. But in laying down a new constitutional principle, calling it “postponement of publication”, the Supreme Court on Tuesday appears to have paid insufficient attention to what should actually be called “news”.
It should, of course, be said at the outset that the five-judge Constitution Bench headed by Chief Justice S.H. Kapadia gave itself the perfectly valid aim of balancing the need of a litigant for fair trial and the principle of freedom of expression. It bears restating that the bench declined to impose blanket restrictions, saying that guidelines on reporting cannot be framed across the board. This is singularly appropriate.
Journalists reporting proceedings at the level of the high courts and the Supreme Court are required to hold law degrees. As such, they generally appreciate the delicate nature of their task. It appears that the new constitutional principle was reached following complaints alleging breach of confidentiality in the hearing of a dispute between a private party and the Securities and Exchange Board of India, the market regulator. Documents pertaining to the dispute in question appeared to have been leaked to the media.
Going by news reports, it is not entirely clear how these impacted proceedings in court. Even if the leaked material would subsequently have been part of the record, in what manner did its premature disclosure impact the fairness of the hearing? At any rate, when the document was revealed in the public domain, it was apparently not a part of the judicial record. On what grounds, therefore, can it be construed to be part of the “sub judice” process? There needs to be absolute clarity on such issues. Besides, are there a significant number of cases in which journalistic work could conceivably have skewed judicial proceedings? What is the responsibility of the judges in such situations?
The new principle does not bar publication, but may postpone it. Also, it is left to the courts to decide when to insist on postponement, which is to be decided on a case-by-case basis. Such a system can lead to arbitrariness and crucially depends on the enlightened consideration of individual judges, which may not always be taken for granted. Journalistically speaking, when a subject is postponed, it may not be worth reporting at all later. In such cases, the order may have the effect of gagging publication.
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