In today’s edition of Mint: The good news for those who deal in news is that the Supreme Court decided against framing guidelines for covering so-called sub judice matters, or those before the courts.

The bad news is that by delivering what some analysts are calling an ambiguous judgement, the apex court may have well made it easier to muzzle the media and, far worse, institutionalized the process by which individuals and entities fighting cases can ensure that these aren’t covered till the order is passed.

On Tuesday, delivering its verdict in a milestone case on setting guidelines for media, a special constitutional bench of the court steered clear of doing so, although it created room for allowing courts to temporarily ban the media from reporting a case if it could adversely affect a trial.

“I am afraid the net effect of the latest judgement will be to add to the ‘chilling effect’ that the press and the other news media are already experiencing from other unreasonable restrictions and pressures on what is supposed to be a robust and expansive freedom of speech and expression, constitutionally guaranteed as a fundamental right,” said N. Ram, former editor-in-chief of The Hindu.

Indeed, over the past months, there have been several attempts to regulate the media. For instance, earlier this year, Congress member of Parliament Meenakshi Natarajan gave notice for moving the Print and Electronic Media Standards and Regulation Bill, 2012, seeking to create a regulator with sweeping powers. She eventually abandoned the plan.

At the very least, the court could have been more emphatic, said one editor.

“Instead of a blanket ban on court reporting or a blanket okay on court reporting, the SC has taken an in-between path which is prone to be arbitrary, ad hoc, subjective and in the long run, dangerous. Who decides that the media coverage should be postponed? What is to prevent a 2G or coal scam accused from claiming his/her rights are being trampled?” said Krishna Prasad, editor-in-chief of Outlook.

In its 56-page judgement, the bench, headed by Chief Justice S.H. Kapadia, said that if publishing news related to a trial would “create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial”, the court could grant a postponement order, temporarily gagging the media from reporting on it.

The judges wrote: “Anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant).” The court could grant such preventive relief after balancing the constitutional rights to a fair trial against freedom of speech, said the bench, keeping in mind that “such orders of postponement should be for short duration”.

“The principle underlying postponement orders is that it prevents possible contempt,” argued the court, adding that in rare cases, such as some murder trials, even fair and accurate reporting of a trial could be prejudicial.

Strategic boon?

Media lawyer Ameet Datta, a partner at Saikrishna and Associates, said he didn’t expect the ruling to apply in all cases where a deferment of reporting is sought. The court has made it clear that this will be done on a “case-by-case basis and will be an exceptional remedy”, he said.

Still, Datta admitted that there was a cause for concern. “As the judgement has recorded, there have been many cases where the court has granted postponement of reporting. It is just the first time that the Supreme Court has crystallized that law. It seems to have created a system—and a process that you can approach the courts (for a deferment),” he said.

And every litigant may want to do that, Datta added. “I am hopeful that this will not be used as good authority for each and every case where a gag order is requested. But the danger is that it will… I couldn’t think any litigating party really wants censorship – but I think what they really want to go after is delay of reporting or postponement. ‘I have an IPO coming out, I have funding coming in, how can I delay [reporting of the case?’”

Datta opined that you would likely see a moderate to large degree of applications to postpone reporting, though it wouldn’t be a case of floodgates opening.

But if news publication were delayed, this would actually be akin in effect to “prior censorship”, which the court was explicitly rejecting. “Old news is now news,” said Datta.

Trilegal co-founding partner Rahul Matthan in Bangalore said that the judgment was a balanced approach to what is a “fairly complicated problem”, which was “nothing earth shattering”. And although he said that there was no harm in giving the judiciary the power to regulate when a case should not be reported, he admitted that lawyers could potentially abuse the new process. “Everything can [be misused by litigants], there is no doubt that everything can. As with everything else in our system or in any legal system it could certainly be misused. But that is taking an extremely pessimistic view, of a judgment which has been passed of a sensible approach.”

“Practically we could use it as one more of the tactic that lawyers use in court, we apply for adjournments when we want, and we know the ways to utilise the legitimate methods that are allowed in the system and some lawyers do it in an unethical manner to delay the interests of justice, but that’s going to happen,” said Matthan. “But it is not for me to say [the judgment is] a bad thing before it has happened or out of context.

“In each circumstance it may be a bad thing or a good thing. Under certain circumstances some journalists have found [the accused] guilty even before the due process of law has wound its way to a final judgment and that necessarily is not an appropriate result.

“They [the Supreme Court] could have been a lot more strict – if they’d laid out guidelines it would have been a lot worse,” note Matthan.

Senior counsel Harish Salve said that the Supreme Court’s position was “absolutely correct”, adding that in fact he had argued that same position before the bench. He said that there was no risk that this could turn into a situation similar to the UK’s super-injunction gag orders on media, because a high court would have oversight of the process in India, and such orders could be appealed to the Supreme Court if the law was misused by lawyers.

Editors’ views

Siddharth Varadarajan, editor of The Hindu, agreed even as he expressed his relief that the court “did not try and lay down guidelines or regulations” on covering court proceedings. “But by forcefully reiterating the ‘right’ of an accused or aggrieved person to seek postponement of media coverage of an ongoing case by approaching the appropriate writ court, there is a danger that the floodgates for gag orders may have been opened,” he added.

The bench also asked journalists to understand their boundaries so that they do not cross the line and are found to be in contempt of court, but once again, stopped short of defining this boundary clearly. “Is it a fuzzy, wandering line that journalists will have to guess at, especially in the absence of concrete guidelines for reporting potentially sub judice court proceedings?” asked Ram.

Most of the editors critical of the judgement seemed to be implying that the bench had lost an opportunity to clearly define freedom of speech and expression. A law expert echoed this sentiment and said the judgement only underlines India’s ambiguous position on free speech.

“I think it (the judgement) is a logical culmination of India’s penchant for content-based regulation of free speech. The Constitution is vague and is not of much assistance without an overarching clarity in jurisprudence... Unless we as a society have a clarity that a belief in free speech is per se antithetical to the idea of content-based regulation, such irrational contradictions in free-speech jurisprudence are bound to recur,” said Rahul Singh, who teaches at the National Law School of India University.

There were editors who welcomed the judgement, too.

“It’s a balanced judgement that recognizes that imposing pre-publication/pre-telecast guidelines on the media would be inadvisable, but is also conscious that no freedom is absolute,” said Rajdeep Sardesai, editor-in-chief, IBN Network. “I think, to that extent, it reminds us in the media not just of our rights, but also of our responsibilities when we cover sensitive court cases.”

According to the judgement, the proceedings started after complaints by several counsel to Kapadia about erroneous press reports, including the TV broadcast of a letter leaked “without prejudice” between Sahara India Real Estate Corp. Ltd and the Securities and Exchange Board of India, which was a confidential settlement communication between the parties’ lawyers.

The bench did not decide on the merits of those complaints, but only considered whether to create guidelines for the media, whether the media should regulate itself with respect to court reporting, or whether the court should restate the existing law related to contempt of court. However, it held that “guidelines on reporting cannot be framed across the board” because what would constitute contempt of law would have to be decided on a case-by-case basis.

The “court was very fair. It has tried to balance the freedom of the press with individual right to personal liberty”, said Shailendra Swarup, the lawyer representing the Broadcast Editors Association. “It has said that reporting is allowed as long as you are reporting fact and not passing a judgement. However, it has also offered an opportunity to the aggrieved party to seek temporary postponement of reporting if it is seen as being prejudiced.”

Swarup said he was waiting for a copy of the judgement before he could make further comments.

Download the judgment

A version of this article first appeared in Mint. Legally India has an exclusive content partnership with Mint, which will feature the latest legal news and analysis every fortnight on Fridays in its print and web editions.