Lines of control
Concerned about instances of reporting that breached confidentiality and threatened to hurt litigants, the Supreme Court has been, for a while, contemplating the way to regulate the journalistic coverage of ongoing cases. While the court has done well to refuse to lay down any overarching rule for all sub-judice cases, it did make a significant and troubling change by allowing a case-by-case appeal for postponing media coverage. Essentially, it laid down a constitutional principle to allow aggrieved parties to move the courts to temporarily debar media coverage if it is seen to prejudice a trial or interfere with the administration of justice. This "doctrine of postponement" of reporting is meant to be a preventive measure, rather than a punitive one, and is intended to balance the right of free speech with the right to a fair trial. The courts, the SC said, will evaluate each appeal carefully, guided by considerations of necessity and proportionality. However, the very outlining of the principle, in effect, leaves journalism at the mercy of the high court, rather than being internally regulated with better editorial gatekeeping.
Around the world, exceptions can be carved out in special cases where there is a compelling chance of media exposure clouding the outcome. But to indicate that these restraints can be routinely sought and given has chilling implications. India has an open justice system, which rests on the premise that a vigilant, watching public and operational transparency in judicial proceedings has a role in keeping the trial fair. What's more, India's media culture is relatively restrained, compared to the live drama in countries like the US. Should mere misgivings about its influence lead to a system where sensitive legal proceedings could be off-limits? The other question, of course, is about what kind of publicity can be restrained. These are digitally networked times when anyone can be a journalist, publisher and broadcaster, where citizens can break a piece of news, and comment is free. How will the trial be sealed off from all public attention?
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