The broadest gag order yet? Madras High Court prohibits publication of its own order

A recent order passed by a Division Bench of the Madras High Court has added one more dimension to the often uneasy relationship between Indian courts and the media. On April 17, Justices Tamilvanan and CT Selvam set aside a single judge’s suo motu order that had stayed the ongoing interview process being conducted for the post of junior civil judge..The Division Bench held that it was the Chief Justice alone who could suo motu stay the operation of an administrative order passed by the Chief Justice. The Division Bench went on to hold that,.“…the Chief Justice is the master of the roster…when there is suo motu action taken in a Public Interest Litigation, the power shall be exercised by the Chief Justice or upon direction given by the Chief Justice…”.While the Division Bench set aside the single judge’s order, it also prohibited the publication of this very order “in any manner”. Or rather, the court directed the High Court’s Registry to,.“Communicate this order to press and media in such a manner that the press and media is restrained to publish the order of the learned Single Judge.”.Which is where one enters some rather murky territory..What the media can and cannot report has always been a source of great debate. Way back in 1969, in the Express Newspapers case, Justice Bhagwati questioned the practice of prior restraint on publication. It was held,.“…liberty of the press is an essential part of the right to freedom of speech and expression and…the liberty of the press consists in allowing no previous restraint upon publication…”.However, in Reliance Petrochemicals Ltd vs. Proprietors Of Indian Express, the Supreme Court held,.“…the Court can pass interim orders restraining the publication if the Court finds that there exists a real and imminent danger that the continuance of the publication would result in interference with the administration of justice.”.Krishan Mahajan, who was once the National Law Editor for The Indian Express, recounts how one needed both, writing skills and legal skills, to “transmit the information and yet escape contempt proceedings”..Some journalists have not been as lucky, or perhaps as skilled, as Mahajan. A few years ago, the Supreme Court initiated suo motu contempt proceedings against journalists from the Indian Express and the Daily Pioneer for publishing articles on the appointment of judges to the NGT that were “misleading” and “patently false”. A bench comprising Justices Singhvi and Mukhopadhaya held,.“…the distorted reporting of court proceedings…brought the entire institution of the Judiciary to ridicule in the eyes of the public…”.Under the watch of Chief Justice Kapadia, the Supreme Court did try and frame some sort of guidelines for the reporting of court proceedings. In September of 2012, CJI Kapadia did, in fact, say that the reporting of court proceedings can be delayed in cases where excessive publicity will interfere with the administration of justice..There have also been occasions where the courts have given specific directions on what can be reported. For instance, the Delhi High Court, while hearing a defamation suit filed by Justice Swatanter Kumar, directed that all media reporting on the issue be taken down and prohibited news channels from further publishing anything on the topic..Incidentally, a transfer petition in that matter has been languishing with the Supreme Court since May 2014, lending some credence to the belief that judges have been reluctant to proceed against one of their own..What further complicates things are the laws relating to contempt of court. Kerala High Court’s Senior Advocate K Ramakumar was convicted for contempt after he wrote an article in the Kerala Law Times on the functioning of the state’s high court. In an interview with Bar & Bench, he said,.“I believe that our contempt provisions definitely need to be reviewed. Only disobedience of court orders or scurrilous personal attacks on judges should come under contempt…According to me, attacking the system should not qualify as contempt of court.”.Lawyers are not the only one to hold such an opinion. Former Supreme Court judge, and one of the 11 tweeters every lawyer should follow, Markandey Katju J. wrote,. “In a democracy, the purpose of the contempt power can only be to enable the court to function. The power is not to prevent the master (the people) from criticising the servant (the judge) if the latter does not function properly or commits misconduct.”.When it comes to the Madras High Court order though, what needs to be pointed out is that the court has prohibited the publication of an order passed by the High Court itself. The debate is no longer about court proceedings but rather about a public decision made by the court itself..The Madras High Court’s decision is extremely difficult to justify, be it on constitutional grounds or otherwise. Surely, courts cannot be allowed to choose which of their own decisions are available to the public and which are not. In fact, if unchallenged, the Division Bench’s order would set an extremely dangerous precedent, one which could make the judicial machinery even more opaque.