When gag orders are issued, justice suffers

The recent revelation of forced mass burials of alleged murder and rape victims in Dharmasthala has shocked the nation. What is equally distressing is the lightning speed with which the Bengaluru City Civil Court temporarily curtailed the media’s right to broadcast the proceedings of the case. Within just 15 days of the FIR being filed, a gag order was passed, leading to the de-indexing of more than 8,800 online articles that had reported on the police complaints related to the case. 

Gag orders against the media in high-profile cases are increasingly becoming the norm today. Typically passed by district courts, these gag orders are intended to prevent reputational harm – plausible defamation – especially to individuals in positions of power. But such orders go far beyond protecting reputations. They violate the freedom of the press and, more worryingly, restrict public scrutiny. 

Need for public scrutiny

When gag orders are issued in favour of the powerful – whether political, religious or institutional – they serve to entrench existing hierarchies and shield those in power from accountability. This prevents public scrutiny.

The public has a fundamental interest in the attainment of truth. Institutions or people ostensibly working for public welfare must be subject to the scrutiny of the same public they claim to serve. Media reporting is a crucial means through which the public is informed. A gag order on such reporting would impede the public from forming an informed opinion and consequently impair public accountability. 

Furthermore, gag orders against media in effect operate as gag orders against victims in high-profile cases. The victims are usually at a disadvantage, as they typically lack the means to fight the individuals in positions of power. It is media reporting and public pressure which provides victims the support to seek justice against the powerful oppressor. Restraining the press from reporting therefore impedes this democratic process and prevents fair administration of justice. 

Role of courts

Moreover, district courts are increasingly issuing gag orders without paying heed to the legal standards required or whether they have the authority to do so. As clearly held by the Supreme Court of India, gag orders against media can be issued only if their reporting impedes the fair administration of justice. Yet gag orders are being issued based on the far lower threshold of plausible defamation to the claimant. This places the media in a precarious position where the curtailment of freedom of the press becomes easier. 

Furthermore, gag orders that restrict the freedom of the press should only be passed by constitutional courts. This is because temporary gag orders are practically postponement orders on the publication of certain content. These are issued solely to ensure that justice is administered fairly, a violation of which would constitute contempt of court. Since it is only high courts and the Supreme Court which have contempt of court powers, only such courts can restrain media. In practice, however, district courts have increasingly taken on this role with impunity.

The judiciary, especially at the district level, must recognise the weight of its gag orders. It must be cognisant of the nature of rights it seeks to curtail, especially if they are fundamental rights. It must refrain from issuing orders when it does not have the authority to do so. At the very least, district courts must apply the correct legal standard when issuing gag orders. 

In an age rife with disinformation and propaganda, the role of a free and fair press is more critical than ever. Media scrutiny fosters objective analysis, critical thinking, informed citizenship, and democratic accountability. Mere allegations of plausible defamation should not be used as grounds to suppress reporting, particularly when the matter concerns public interest.

The curtailment of freedom of the press, especially in cases where the aggrieved is pitted against individuals in positions of power, undermines the very foundations of our democracy. If such restrictions are to be imposed, they must be exercised by constitutional courts, not by district judiciary. 

Courts must place the fair administration of justice above the personal discomfort caused by alleged reputational damage. In doing so, they protect not only the rights
of victims but also the democratic ideals enshrined in the Constitution. 

(Harish is a senior
advocate, and Chaitra is a research associate at Harish’s chambers) 

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.