Encounter trial: gag order had to go

Encounter trial: gag order had to go

Batting for press freedom, the Bombay High Court has allowed the media to resume reporting on the Sohrabuddin fake encounter case and removed restrictions imposed by a Central Bureau of Investigation (CBI) court on the coverage of the trial.

Observing that the CBI special judge had overreached his powers by issuing the gag order because there was no provision in the Criminal Procedure Code for it, Justice Mohite-Dere has also addressed the constitutional issue at stake. "The rights of the press are intrinsic with the constitutional right that guarantees freedom of expression. In reporting from an open trial, the press not only makes use of its own right, but serves the larger purpose of making such information available to the general public," he asserted. The remarks are relevant as the Indian media is currently under tremendous pressure from organs of the State as well as vigilante groups.

The Sohrabuddin case trial has a chequered history. It started with the Supreme Court's order to the CBI to investigate 22 cases of extra-judicial 'encounter' killings in Gujarat between 2003 and 2006, of which Sohrabuddin's killing was one. It led to the resignation and arrest of the then Gujarat home minister Amit Shah, now president of the BJP. Coincidentally, the order removing the gag order comes at a time when the handling of a petition on the death of CBI judge B H Loya, who was the second judge in the case and died under suspicious circumstances while the trial was still on, has stirred a hornet's nest in the Supreme Court. Shah was discharged controversially by the third judge in the case in December 2014 and the CBI court conducting the trial prohibited the media from reporting the proceedings. The CBI's refusal to appeal against his discharge and its opposition to the PIL filed against the gag order had raised eyebrows.

The Bombay High Court's order opening the doors for reporting on the Sohrabuddin encounter trial has a special significance at this juncture. As the 18th century philosopher Jeremy Bentham, batting for an open justice system, observed, "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity." At a time when issues of transparency in the Indian judicial system are uppermost in the public mind, openness is necessary to maintain the independence and impartiality  of courts. It is integral to public confidence in the justice system. It is a principal component of the legitimacy of the judicial process, and the reason why litigants and the public at large abide by the decisions of the courts.

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