Right to open justice flows from a right to fair and open trial : Inherent jurisdiction to pass postponement orders lies only with ‘courts of record’

Bombay High Court: In the order passed by Revati Mohite Dere, J. addressed two criminal petitions filed challenging the jurisdiction of the City Civil and Sessions Court for passing an impugned order dated 29.11.17, in Session Cases Nos. 177of 2013, 178 of 2014, 577 of 2013 and 312 of 2014, banning the print, electronic and social media from publishing/posting or reporting any of the court proceedings.

The brief facts being that the Supreme Court had handed over the investigation to the CBI on January 2010, involving the alleged fake encounter of Sohrabuddin, his wife Kausar Bi and their close associate Tulsiram Prajapati. While referring to the case CBI v. Amitbhai Anil Chandra Shah(2012) 10 SCC 545, the Supreme Court had transferred the case from Gujarat to Mumbai under Transfer Petition (Cri.) No. 44 of 2011, where the respondent i.e. Rehman Abdul, being the original accused No. 7 had filed an application for the ban on print, electronic and social media from publishing/posting or reporting any of the court proceedings till the final judgment.

The counsel for the petitioners submitted, that the Supreme Court and High Courts can restrain the media from publication for a short duration, under 3 circumstances –

a) when there is a real and imminent danger to a fair trial;

b) when there is real and substantial risk of prejudice to the administration of justice or to the fairness of trial; and

c) where reporting by the press would shift the burden of innocence.

The Court taking into account the above submission observed that Section 327 indicates that the place where the Criminal Court is held for the purpose of inquiry and trial of any offence shall be deemed to be an open court and that an open trial is the rule and the exceptions are made only to secure the ends of justice, and hence Section 327 embodies the principle of public trial.

The Court further observed that media, by reporting court proceedings, is fulfilling the public’s right to information about the working of the courts and that the media not only exercises its own right to freedom of expression under Article 19(1)(a) but also serves a larger public purpose by being the carrier of information, which otherwise is not easily accessible to the public. Hence, the Press are the eyes and ears of the public, fulfilling the public’s right to know and thus, is the most powerful watchdog of public interest, in a democracy.

Furthermore, the Court observed that, the presence of Press and public in criminal trials encourages all participants to perform their duties diligently and conscientiously and averts misconduct and abuse of power by the prosecuting agency, prosecutors, judges and all other participants. It obviates decisions based on biasness and deters witnesses from committing perjury and therefore, the presence of Press and public protects the integrity of the trial; and public awareness of court proceedings helps maintain public confidence in the judicial system.

This Court while referring to the case Scott v. Scott, 1913 A.C. 417 stated that ‘publicity is the soul of justice and that the witness are the eyes and ears of justice’ as rightly said by Bentham and subsequently while allowing the present petitions quashed and set aside the impugned order dated 29.11.17 and held that subordinate courts have no inherent powers to pass such an order, and that it is only the ‘courts of record’  i.e. the Supreme Court and the High Courts that have the inherent jurisdiction to pass postponement orders. [Sunil Baghel v. State of Maharashtra, 2018 SCC OnLine Bom 161, decided on 24.01.2018]

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