The Delhi high court’s order, restricting media coverage of the sexual harassment allegations against Swatanter Kumar, should give the Supreme Court cause to consider its Sahara gag order decision, argues Chinamyi Arun, research director at the Centre for Communication Governance at NLU Delhi and fellow at the Centre for Internet and Society, Bangalore in [Making the powerful accountable - The Hindu].

Excerpts:

[Sahara India Real Estate Corp. Ltd v. SEBI] created an instrument — the “postponement order” — for litigants, such that they can have media reports of a pending case restricted. The manner in which this is used in the Swatanter Kumar judgment raises very worrying questions about how the judiciary views the boundaries of the right to freedom of expression, particularly in the context of reporting court proceedings. […]

For example, it is very difficult for some of us to understand why it was strictly necessary to restrict media coverage of sexual harassment proceedings in the Swatanter Kumar case. Justice Manmohan Singh on the other hand seems to argue that the adverse public opinion will affect the retired judge’s chance of getting a fair trial. However, his judgment also seems to indicate his concern that the sensational headlines will impact public confidence in the Supreme Court. […]

The Delhi High Court’s concerns about the effects of the newspaper coverage on the reputation of the judge did not need to translate into a prior restraint on media coverage. They may better have been addressed at a later stage by evaluating whether there was defamation once the facts were determined. His concerns about the reputation of the judiciary may also have been better addressed by transparency. If powerful public figures, especially those with as much influence as a former Supreme Court judge are not subjected to transparent court proceedings, the opacity in the face of such a critical issue is likely to undermine public faith in the judiciary. Such opacity undermines the purpose of open courts.

Since the Delhi High Court ruling, there has been little coverage of the sexual harassment case. The suppression of media coverage leaves the young woman comparatively isolated, without all the support that media coverage can bring. […]

If the Supreme Court was confident that the high courts in India would use their broad discretionary power under the Gag Order case sparingly and only in the interests of justice, the Swatanter Kumar case should offer it grounds to reconsider. Openness and freedom of expression are not meant to be diluted to protect the powerful — they exist precisely to ensure that even the powerful are held accountable by state systems that they might otherwise be able to sway.

Legally India last week received a legal notice from Kumar’s lawyers, claiming that the order stops publication of Kumar’s photographs in news reports on the order.