Legality of gag orders passed by criminal trial courts

Legality of gag orders passed by criminal trial courts

The recent prayer by the lawyers of Mr Shashi Tharoor before Tis Hazari Courts to ensure that the material that was collected by Delhi police and which was taken cognizance by a Sessions Judge should not be open to the public is likely to open a Pandora’s Box. Surely, this will not be the first time if and when, the trial court passes gag orders and you can be sure this will not be the last time. Hence, it will be interesting to look at the gag orders vis a vis to have a public trial (which is an essential part of a fair trial), unless extraordinary circumstances compel the contrary.

Recently, the Honourable Supreme Court of India had said that all The Supreme Court proceedings will be live-streamed so that the litigants (where-ever they are), have a chance to watch, what the Supreme Court does in respect of their case. The Court has in effect upheld and increased the importance of transparency in the judicial process. Until J. Jasti Chelameswar demanded transparency in appointment of judges to the higher judiciary, the appointment of High Court judges has always been clouded in secrecy and mystery. Only an American professor like Professor George H Gadbois Jr can pursue a pain-staking research as to how each of the judges to the High court and Supreme court were appointed ever since the institution of independent Indian judiciary. Recently, Professor George H Gadbois Jr published a book Supreme Court of India: The Beginnings' review: A matter of interpretation edited by Mr Vikram Raghavan and Vasujith Ram, about the appointment of judges to the Indian higher courts (http://www.livelaw.in/talk-by-vikram-raghavan-on-george-gadbois-and-the-judges-of-the-supreme-court-of-india/). However, that’s a different issue altogether.

Coming back, Mr Shashi Tharoor is a very accomplished person in his own right a senior diplomat, a Member of Parliament and has a good chance of being part of the Indian government in the unlikely event of Indian Congress being voted back to power! Hence, a request for a gag order by the trial court, ostensibly on the ground that aggressive TV journalists (keen to increase their TRP rating) sensationalize the miseries of the middle class or celebrity persons, leading to a witch hunt by media trial. One can cite many such instances which only whip up emotional sentiments rather than improving the existing penal jurisprudence.

In the celebrity murder trial involving the former telecommunication minister Mr Pramod Mahajan, the learned trial judge during the course of the public trial, exercising his powers under Section 313 of CrPC, passed a gag order directing all members of the press to leave the court hall immediately. He further passed an order that whatever the accused has stated in the last 10 minutes of the court proceedings will remain confidential and should not be published by the press the next day. Surprisingly the media did not think it to be fit to challenge the orders of the judge of trial court while exercising the administrative powers of the judge to decide procedure namely in-camera trial that the judge adopted in deciding the case. Similarly, the Supreme Court in its orders arising from the sordid saga of Justice Mr Karnan (contempt of court case), ordered that no press in India should give any publicity to anything that J. Mr Karnan says about his contempt trial. On both the occasions the Indian press (in my opinion wrongly), failed to challenge it judicially, quasi-judicially or at least discuss it in seminars to find whether gag orders are correct under the criminal procedure which demands a public trial, except in compelling circumstances. Hence, we should objectively analyse whether compelling circumstances exist in this case.  

 Mr Praveen Mahajan

Why there must be a public trial?

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) the American Supreme Court made a distinction between a public person and a private individual. In case of public persons, the general public has a vested interest to know how public persons are performing and hence public persons should be more open to scrutiny. If an individual has no public status, then, he has a right to guard his privacy as ferociously as any other territorial mammal. Admittedly, Mr Shashi Tharoor is an international public person. Presently he is an elected Member of the Parliament of India. The victim, in this case, Ms Sunanda Pushkar is in many ways is as much an accomplished individual as Mr Shashi Tharoor. Both of them were part of the Indian upper-class glitterati.

Ms Sunanda Pushkar died in suspicious circumstances with injuries on her body that suggest the use of criminal force on her. Furthermore, a suspicious death occurs within 7 years of the solemnized marriage. Hence, Delhi police, under the law has the obligation to conduct the enquiry and in due course inform the public about the results of their investigation. They have lodged a Charge Sheet with the competent court, along with supporting material. The court has taken cognizance of the Charge Sheet and has granted him anticipatory bail. So far so good, nothing amiss. The process of law is duly working and Mr Shashi Tharoor will have an opportunity to ask for a discharge. At this point, Mr Shashi Tharoor wants an in-camera trial and not a public proceeding. Considering both parties the accused and the victim are public persons, in the normal course, there must be a public hearing in court “Hear Before Charge.”

Interestingly, preceding her death, Ms Sunanda Pushkar became an owner of an IPL cricket team by name Kochi Tuskers which signed some celebrity cricketers. Apparently, the team was to be co-owned by Mr Shashi Tharoor and was to be bankrolled by a Gulf-based Malayali businessman. Somewhere down the line, problems arose between team owners and IPL Administrators. The Kochi Tuskers franchise rights were cancelled and that became yet another contested arbitration. Much later after Sunanda’s death, the arbitrators awarded hefty compensation to the Kochi Tuskers owners.  During the investigation, there was sufficient indication, that the police were perusing the Kochi Tuskers connection to the suspicious death. Hence, there is sufficient public interest involving very important questions in the public domain. Hence, there must be an open trial.

Why should there be an in-camera trial and not a public proceeding?

Let us recall the case of Dr Nambi Narayanan, the unfortunate ISRO scientist, who got entangled in the notorious ISRO spy case involving a Maldivian woman. A prejudiced, dishonest and incompetent investigation, resulted in an accomplished scientist facing media trial, losing his job and family, but mercifully not his honour. The press coverage to the wholly cooked up charges nipped the professional ambitions of a cryogenic scientist because of biased media coverage. We must appreciate that Dr Nambi Narayanan is still fighting for compensation in the Supreme Court even after the CBI did not want prosecution and the judiciary had recommended compensation, it is correct that if Mr Shashi Tharoor feels the same will happen if there is a public trial.

Recently, the Supreme Court of India has held that the right to privacy is a part of article 21 of the Indian constitution. Sometimes even an accurate report of judicial proceedings can damage the professional and personal reputation of the persons charged of offences. Ultimately, even if these people are acquitted of these charges, the public perception of the accused’s guilt lingers in society for much longer. So, it might be legitimate for the accused to demand an in-camera trial until the Court finds the existence of a prima facie case. In other words, assuming there are gag orders they should not be for an indefinite amount of time, Gag orders should come to end either after framing of charges or till the pronouncement of final judgement, as may be decided by the trial court on a case to case basis.

 Mr Shashi Tharoor and Ms Sunanda Pushkar

Yet another compelling reason for an in-camera trial is that tabloid journalists like Arnab Goswami and political rival Mr Subramanian Swamy have taken upon themselves the job of informing the general public about the possibility of Mr Shashi Tharoor wanting to settle scores with Ms Sunanda as she was one of the co-owners of Kochi Tuskers. Mr Shashi Tharoor and Ms Sunanda had competing for business interests. The partnership breaks up could have compelled Ms Sunandha to end her life on her own or other victims of this failed partnership could have plotted the murder. Hence, this case has all the plots that a sensational TV channel would like to cover for increasing their circulation and profits. Whether, in future, the court should be wary of cases where the right of the public trial can become a tool of aggrandizement and unjust enrichment in the hands of the tabloid press, is an important issue.

One more reason as to why the trial should be In-Camera is to preserve the belief of the common man in the Indian judiciary. For most people of Tamil Nadu, 2G/3G trial has not yet faded from their memory. Newspapers and the national television channels reported that there has been a putative loss of revenue of staggering amounts. Kalaingar TV in Tamil Nadu received something around 210 crores as unsecured loans at nominal interest as a demand loan and paid back the money to the person who was allotted a lucrative telecom licence. This entity within very short time transferred the license to another entity at staggering prices and made windfall profits. Yet, the learned Sessions Judge of Delhi court regretfully recorded that he was waiting for evidence from investigating officers all through the trial but did not get any.

I’m sure the Honourable judges of the Court, who ordered acquittal knew his powers under section 311 CrPC. He thought it fit not to exercise his power under this section as he had been made to believe that he is the judge in adversatorial system of common law courts and “not civil law judge” who will also exercise “inquisitorial powers”. Incidentally, the loan was paid and the enforcement Director of the Union of India found that there is both Kalaingar TV and telecom licence awardees were liable to pay penalty. At the end of it the common man in Tamil Nadu will ask the following:

A) Whether the investigating agency, has produced all the evidence at its command at the time of lodging the Charge Sheet?

B) After having taken cognizance of the Charge Sheet and framing charge on the basis of the submitted evidence, was the court right in remanding the accused to judicial custody for a fairly long time?

C) Did the CBI in the case produce all evidence during the case, which they claimed was in their possession at the time of lodging CBI charge sheet?

D) Did the CBI diligently prosecute the accused or was there any lack of due diligence on the part of the CBI?

E) Why did the trial judge not exercise this power under section 311 of CrPC?

F) The people who claim that they received an honourable acquittal, were kept in jail for a long time. Who is responsible for the detention of the accused?

G) Should they get compensation if ultimately the High Court and Supreme Court upheld the order of acquittal passed by the trial judge?

I am aware that these are matters sub judices before the Delhi High Court in “Appeal Against Acquittal” and it will not be proper for a blogger to comment on these issues.

Thus, it may not be a bad idea to conduct all trials In Camera or at least give these rights to accused who demand it and publish proceedings only at the conclusion of trials. But there cannot be an indefinite ban on judicial proceedings.  

However, that will call for a legislative change. As of now, under CrPC the concept of fair trial mean only a public trial when public persons are involved. In this case, the general public has a right know as to whether a sitting Member of Parliament may have complicity in the suspicious death of an accomplished woman of substance. Unless there is a legislative change the case must be a public trial.

Now that I have stated something unpalatable to Congress MP’s let me record something which will be equally unpalatable to BJP leadership. The gag orders during trials are justified only to ensure that the right to fair trial is not adversely affected. Now that the trial is over and accused in Pramod Mahajan case had discharged his sentence by a biological act, there is no reason as to why Praveen Mahajan’s statement under 313 CrPC in the murder case should remain confidential.

Likewise, there might be several gag orders which survive because nobody has taken the trouble of challenging it. Everyone knows that challenging something in India is time-consuming, unpredictable and awfully expensive. Why can’t the tabloid media or rabblerousing journalists and legal politicians break the subsisting gag orders passed by courts on different occasions and let the general public know the truth.

                     SATYA MEVA JAYATE

                    TRUTH ALONE TRIUMPHS