Why justice must be seen and heard

The judgment is probably more significant for what it does not say. The Court refrained from carving out any general guidelines,recognising that no one shoe fits all. That ought to bring relief. What does the judgment say? While recognising the presumption of open justice and the media’s right to report court proceedings,the Supreme Court held that there may arise exceptional cases where reporting may adversely impact the administration of justice. In such cases,reporting may be deferred for a limited duration by the Supreme Court or the high courts. An order of postponement must pass the tests of necessity and proportionality and be resorted to only where no alternative measures are available.

The Sahara judgment does not deviate from the law laid down in an earlier case. In the Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr case decided in 1967,the Supreme Court held that open justice is the rule and in-camera proceedings the exception. Borrowing from an old English judgment it said: “Where there is no publicity,there is no justice. Publicity is the very soul of justice. It is… the surest of all guards against improbity. It keeps the judge himself while trying,under trial”. The Court proceeded to hold,however,that open justice is not an absolute rule and the court may,in exercise of its inherent powers,prohibit the publication of reports.

The Sahara judgment should not be seen as a dilution of the open justice principle. Such an interpretation would have dangerous implications not only for the media but for the larger public interest. With the ills that plague the justice system in India,we need more openness,not less. What is known as the “sunshine effect” of open justice ensures that the state machinery is not misused to unjustly condemn the innocent,that judges and public prosecutors conduct themselves with probity,that proceedings are not needlessly protracted and that justice is delivered fairly and efficiently. The glare of ongoing publicity and the fear of public censure keeps the entire system on its toes.

The underlying object of open access to the courts is that justice should be seen to be done and that citizens,as stakeholders in society,be acquainted with the working of the justice delivery system. In the old days in England,for instance,people would visit courts and witness trials just as a pastime. This is no longer the norm,which makes the media’s task all the more vital,as it is the only means by which the public has access to information about justice delivery.

Media reporting on cases has a vital societal function that transcends even the right of an undertrial to justice or of the public to information. When a shocking crime occurs,the public experiences a sense of outrage and seeks retribution. It is only when the public is able to see justice being done and the guilty brought to book that it experiences a catharsis that quells the outrage. In a famous American judgment Richmond Newspapers v. Virginia,the US Supreme Court held that the “crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is done in a corner or in any covert manner.”

If the guilty were to be let off the hook after a trial behind closed doors,they would lose faith in the system. This may lead people to take the law into their own hands. Open justice is intended to ensure public confidence in the justice system. It is on this edifice that rule of law prevails in civilised societies.

The inherent power of the court to prohibit or postpone reporting as recognised in the Sahara case must be exercised with extreme caution. In holding that orders of postponement must be subject to the tests of necessity and proportionality,the Court has narrowed,not widened the contours of the inherent power under which reporting could be prohibited under Mirajkar. These tests would have to be satisfied on the basis of real and practical considerations. While granting an injunction restricting reporting,the court cannot be oblivious to the futility of orders overtaken by technology. Once a news item has already entered the public domain by any means,whether through Twitter or YouTube,it is pointless ordering a newspaper not to publish a report. Further,news is a perishable commodity that loses significance with each passing day. Stale news is no news. The damage caused by barring contemporaneous publicity may be difficult to undo once a trial conducted behind closed doors,is concluded. These are factors that courts called upon to restrict reporting would be compelled to consider.

The world has never known so much transparency and openness as technology has made possible today. In several jurisdictions,there is live televised reporting of cases. We in India ought to be debating how technology can make the system cleaner and more accountable. The media must report more cases,not less. All jurisdictions recognise exceptions to open justice. But exceptions cannot displace the norm.

Divan is an advocate in the Supreme Court and the author of ‘Facets of Media Law’