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Reporting Court Proceedings

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Curator: Manish, Research Fellow, Centre for Communication Governance at National Law University, Delhi

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Primary Sources

Legislative Material

Article 143(4), Constitution of India, 1950

This Article provides that judgments of the Supreme Court of India shall be delivered only in open court.

Section 153B, Code of Civil Procedure, 1908

Section 327, Code of Criminal Procedure, 1973

These provisions state that proceedings of civil and criminal courts, respectively, shall normally be carried out in an open court to which the public shall have access, with exceptions in cases of trials for sexual offences (where and in other cases where the presiding judge deems fit.

Section 228A, Indian Penal Code

This section bars the publication of the identifiable details of a victim of sexual assault, and makes any such publication in respect of a pending trial, without the express permission of the Court, a punishable offence.

Section 44, Unlawful Activities (Prevention) Act, 1967

This section, ostensibly for the purpose of protecting witnesses, permits the court to hold proceedings in camera and take any other measures for keeping the identity and address of the witness secret, including passing an order that “all or any of the proceedings pending before such a court shallnot be published in any manner”. It also makes violation of such measures or orders a criminal offence.

Parliamentary Debates on the Criminal Law Amendment Act, 1983 (December 1983).

Revised Norms For Accreditation Of The Legal Correspondents In The Supreme Court Of India (January 2007)

These norms were issued by the Supreme Court of India in 2007, and set out the conditions to be satisfied for journalists to be accredited by the Court to cover its proceedings.

Press Council of India,Norms of Journalistic Conduct, Rule 12 (2010)

News Broadcasters Association, Specific Guidelines for Reporting Court Proceedings (September 2010)

Relevant Case Law

NareshMirajkar v. State of Maharashtra, AIR 1967 SC 1 (Supreme Court of India)[Open Access]

In this case, the Court affirmed the inherent powers of the High Court to direct the testimony of a witness in a particular case to be postponed from being reported. In particular, postponement of publication was expressly held not to violate the freedom of speech and expression as it was only theincidental effect of a judicial order. 

State of Punjab v. Gurmit Singh, AIR 1996 SC 1393(Supreme Court of India) [Open Access]

This case involved an appeal from a rape trial. The Court laid down guidelines for the protection of the victim’s privacy and directed that the provisions of s. 327(2) and (3) of the Code of Criminal Procedure, 1973, mandating in-camera trials for sexual offences, be observed scrupulously. The Court also directed that the names of rape victims be redacted from court orders to protect their privacy.

Sahara India v. SEBI, (2012) 10 SCC 603 (Supreme Court of India)[Open Access]

This case involved an interlocutory application that was filed by the respondents before the court seeking appropriate directions with regard to reporting of matters (in electronic and print media) which were sub judice. The Court, after hearing both parties as well as several interveners, passed a judgment laying down guidelines permitting postponement of reporting of proceedings.

Vijay Singhal v. NCT of Delhi (Delhi High Court)(2013) [Open Access]

The case involved a challenge to an order of a trial court invoking the provisions of s. 327(2) and (3), Cr.P.C. and directing that the trial of the case at hand (involving sexual assault)be held in-camera with a bar on media attending the proceedings. The High Court examined the circumstances in which the media could be permitted to report such proceedings, and the balance between the two competing rights of the public to know and have access to Court trials as against right of the victim’s family and that of the accused to confidentiality. The Court eventually permitted the media to report the proceedings, with some restrictions.

Theory

Indian material

K. G. Balakrishnan, Address at the Regional Workshop on ‘Reporting of Court proceedings by media and administration of justice’ (October 2008)

This is a speech by the then Chief Justice of India at one of a series of workshops which were organized in different parts of the country with the objective of “prompting a vigorous dialogue on the role of the mass media inrespect of the administration of justice”. It outlines a set of broad concerns arising out of the reporting of judicial proceedings and discusses the media’s role in the responsible reporting of judicial proceedings.

G. N. Ray, Address at the Media Workshop On Crime-Judicial Reporting (February 2009)

This is a speech by the Chairman of the Press Council of India at a workshop for journalists on reporting of criminal trials. It provides a broad overview of the law on the point and the conflict between the media and the judiciary, in the context of the right to freedom of speech and expression under Article 19(1)(a) of the Constitution.

Law Commission of India, 84th Report on Rape and Allied Offences, Chapter 5 (1980) [Open Access]

The report discusses the reform of laws relating to rape and other sexual offences. It covers, inter alia, the rights of victims and recommends steps to protect their privacy, in particular in-camera trials and a ban on publishing identifiable details. This Report led to the passing of the Criminal Law Amendment Act, 1983 which, inter alia, introduced sections 327(2) and (3) of the Cr.P.C. and section 228A of the IPC.

People’s Union for Civil Liberties, Rape, Society and State, p. 9 (1980) [Open Access]

This is a monograph discussing the problems of sexual violence against women and proposed legislative and social solutions. It critiques the Law Commission’s proposal for in-camera trials, suggesting that this will act as a gag on media reporting of rape and will harm the rights of victims of sexual violence instead of helping them.

Law Commission of India, 200th Report on Trial by Media (August 2006)[Open Access]

The Hoot, Press Laws Guide: Reporting Rape [Open Access]

Dr. Madabushi  Sridhar Acharyulu, Reporting Court Proceedings, Media Learning Academy [Open Access]

This article contains details about the basic laws relating to reporting of court proceedings. It contains guidelines for journalists that indicate how court proceedings must be reported and also explains the various situations where court proceedings may not be reported.

Commentary

Indian material

V. Venkatesan, What constitutes ‘Scandalising the court’, 18(10) Frontline (May 2001)[Open Access]

The article examines the exercise of contempt jurisdiction by courts to restrict publication of judicial proceedings, in the context of a 2001 order of the Delhi High Court barring reporting of proceedings of a particular case in the media.

SukumarMuralidharan, A Judicial Doctrine of Postponement and the Demands of Open Justice, 47(38) Economic and Political Weekly (September 2012) [Paywall]

This article is a critique of the Supreme Court’s judgment in Sahara v. SEBI. It suggests that the doctrine of “postponement” propounded by the Supreme Court is analogous to prior restraint and not immune to arbitrary interpretation. Indeed, it could well become an instrument in the hands of wealthy and influential litigants, to subvert the course of open justice.

Raghav Shankar, Supreme Court’s Decision on Reporting of Proceedings, 47(40) Economic and Political Weekly (October 2012) [Paywall]

This article is a comment on media perceptions of the Supreme Court’s judgment in Sahara v. SEBI. The author suggests that the media should not see the decision as an overreaction by the judiciary, but rather “build on the clarity that the Court has brought to the issue and cast itself as a participant in – rather than a victim of – orders aimed at striking a balance between the freedom of the press and the right ofa litigant to a fair trial”.

Apar Gupta, The Advent of the Gag Writ, The Hoot (September 2012) [Open Access]

This article is a critique of the Supreme Court’s judgment in the Sahara v. SEBI case, and suggests that the creation of such a special remedy without a clear legislative mandate is fraught with dangers of abuse.

P.A. Sebastian, Terrorist Act against Democratic Rights Activist, 20(49) Economic and Political Weekly 2148 (1985)

The article deals with civil rights concerns around the prosecution of a civil liberties activist under an anti-terror legislation, the Terrorist and Disruptive Activities (Prevention) Act [since repealed]. In particular, it mentions the trial at the designated court being in-camera, thereby raising serious concerns about the fairness of the proceedings.

International and comparative material

Clive Walker, Ian Cram and Debra Brogart, The Reporting of Crown Court Proceedings and the Contempt of Court Act 1981, The Modern Law Review, Vol. 55, No. 5 (Sep., 1992) [Paid Access]

The Contempt of Court Act 1981, has raised concerns about the use of orders under sections 4 and 11 of the Act to restrict the media’s ability to report court proceedings in accordance with the principle of open justice. However, the absence of any empirical survey of these orders has hampered a proper evaluation of their worth. This article elucidates the operation of reporting restrictions at Crown Court level by presenting and analysing the results of a survey of nine Crown Courts during the period 1982-89.

Judicial Studies Board, the Newspaper Society and the Society of Editors for the Times Newspapers, Reporting Restrictions in the Criminal Courts (October 2009) [Open Access]

The objective of this article was to ensure that those with a professional interest in the making of orders restricting reports of legal proceedings should have access to a modern, practical guide to the statutory and common law principles which should be applied.

Judicial Studies Board, Reporting Restrictions in the Crown Court (May 2000)[Open Access]

This document is an outline of reporting restrictions relating to criminal proceedings in the Crown Court of the United Kingdom, prepared through a jointinitiative between the Senior Presiding Judge, the Judicial Studies Board, the Lord Chancellor’s Departmentand media organisations. It is designed to help promote greater understanding of problems in balancing theadministration of justice and the need for openness in the courts to allow the media to inform the public.

Court Reporting, The Press Complaints Commission of the United Kingdom

This is an extract from the website of the Press Complaints Commission in the United Kingdom. It explains all the relevant laws relating to court reporting in the UK.

RJW & SJW v. The Guardian[Open Access]

This is a super-injunction order that resulted in the setting up of the Committee on Super-Injunctions in the United Kingdom (see below).

Federal Court Reporting Program, United States Courts website

This is an extract from the website of the United States Federal Courts. It explains all the relevant laws relating to court reporting in the United States of America.

The Canadian Justice System and the Media, Canadian Judicial Council (2007) [Open Access]

This is a report on the relevant laws pertaining to the media in Canada. It specifically addresses the issue of court reporting at various stages of a case such as trial, bail hearing, preliminary hearing and admissions. It also addresses the issue of confidentiality while reporting cases involving sexual violence.

Committee on Super-Injunctions,Super-Injunctions, Anonymised Injunctions and Open Justice (May 2011) [Open Access]

This is a report of the Committee that was set up in the light of the RJW & SJW v. Guardian order. It discusses the practice and procedure governing interim injunctions which restrict freedom of  speech, including super-injunctions and anonymised injunctions; the use of specialist judges to determine applications for super-injunctions; super-injunctions and the reporting of Parliamentary proceedings; and the collection of data about super-injunctions, and anonymised injunctions, and the communication of information concerning the same to Parliament and the public.

Daniel Stepniak, Technology and Public Access to Audio-Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions, 12(3) William and Mary Bill of Rights Journal 791 [Open Access]

In this article, the author sets out a number oflegal and policy implications of the utilisation of audio-visual broadcasting andinformation technology to broadcast and record judicial proceedings. He stresses on the importance of the public administration of justice, and examines whether the implementation of theprinciple of open justice needs to be reconsidered in light of contemporarytechniques of broadcasting and dissemination of public information.

Mark J. Geragos, TheThirteenth Juror: Media Coverage of Supersized Trials, 39 Loy. L.A. L. Rev. 1167 (2006)[Open Access]

This article explores the tension between excessive media coverage and a criminal defendant’s right to a fair trial and jury, under the First Amendment and the Sixth Amendmentof the U.S. Constitution respectively. It suggests that the American media has gone too far under a cloak of First Amendment protection,placing criminal defendants’ constitutional rights at risk throughirresponsible journalism. The article concludes that the tools traditionally employed by courts to balance the rights of free press and fair trial are no longer effective.

Tom Geogehan, Why Super-Injunctions don’t happen in the U.S., BBC News (May 2011) [Open Access]

This article provides a comparative perspective of American and British law and analyses why the phenomenon of super-injunctions is not prevalent in the American legal system.

Marilyn Krawitz, Stop the Presses, But Not the Tweets: Why Australian Judicial Officials Should Permit Journalists to Use Social Media in the Court room, 15 Flinders L.J. 1 (2013). [Paid Access]

This article analyses the benefits of permitting journalists to use social media in the courtroom. It also analyses the differing approaches taken by the Courts in Canada, United States, United Kingdom and Australia on the issue.It ultimately provides a draft policy relating to the use of social media in the courtroom while arguing for the standardisation of such policy in Australian courts.

Lord Chief Justice of England and Wales, Practice Guidance: The Use of Live Text-Based Forms of Communication (Including Twitter) From Court for the Purposes of Fair and Accurate Reporting, December 2011. [Open Access]

This Guidance by the Lord Chief Justice of England and Wales allows the use of live text-based communication in the courtroom. Interestingly, the Guidance also incorporates a Preamble and General Principles relating to communication from the courtroom.

Bibliography

D.D. Basu, Commentary on the Constitution of India, 8thedn., pp. 2592–2595 (Wadhwa Nagpur, 2007).

Eric Barendt, Freedom of Speech, 2ndedn., pp. 312 –351 (OUP, 2006).

MadhaviGoradia Divan, Facets of Media Law, 1stedn., pp. 230 – 236 (Eastern Book Company, 2006).

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