The last few weeks has seen much debate on the banning of the film”Indias Daughter”. What has marked this debate is that many of the positions articulated were purportedly based upon law. I argue here that this claim itself needs serious rethinking on four grounds, namely: Permanent Ban or Temporary Injunction; (ii) Concern of Fair Trial; (iii) Power to restrain and (iv) the Right of the Accused.

Permanent Ban or Temporary Injunction a peripheral issue

The legal debate has often been guilty of hairsplitting on issues and missing the fundamental questions of law involved. The first issue is whether there exists a ban or not. The Delhi Police on 03.03.2015 filed a First Information Report under several sections of the Indian Penal Code and Section 66A of the Information Technology Act asking the interview of the convicted person to be blocked from being published and shared on a public platform. The Metropolitan Magistrate took cognizance of the matter on the ground of possible law and order problems and passed an order restraining publication of the interview till further orders. This order passed was reaffirmed by the Chief Metropolitan Magistrate.

It is clear from the judicial orders that there exists a temporary order restraining publication of the documentary. That there is no permanent ban is not significant. Whether the restriction is for a day or a decade does not matter. What needs to be examined is whether the power to restrain has been correctly exercised. Is this form of censorship justified in view of the law laid down by the Honorable Supreme Court?

Concern of Fair trial

The Supreme Court recognizes the “Right to fair Trial” as an important dimension of personal liberty under Article 21 of the Constitution. The first issue is whether a right to fair trial is under threat in face of this interview?

The Restraining order uses the word “convict” and not “accused”, this is because two courts of law (Trial Court and the Delhi High Court) have found the person guilty as per law of the land. The stage of trial has ended and we are at a stage of appeal. What that means is well explained by the Supreme Court in the cases.

In the Vidya Dhar case, the Supreme Court was approached by a senior convicted IAS officer who prayed for an injunction on an episode of the popular national show “Crime Patrol Dastak”, on the ground that it depicted the convicted person to be part of a scam while the matter was pending in the Supreme Court and hence the right to fair trial would be violated. The Court held in unambiguous terms that no injunction would be issued and stated further that the petitioner had been convicted and arrested and hence there is no further possibility of bias at the stage of appeal. The contents of the trial and Judgments of two Courts were in the public domain.

The second issue was “reappreciation of evidence” at the stage of appeal. In Mangu Khan and Sheik Mehboob cases the Supreme Court stated that the Supreme Court can’t be persuaded to read and interpret the facts and evidence anew without stultifying the judicial system. The trial and the High Court have seen the process of examination and prosecution of witnesses in the raw and hence have a far better understanding of evidence obtained through the rigorous process of Trial as elaborately provided for in the Code of Criminal Procedure, 1973.

It is to be noted that even the High Court in first appeal has a very narrow ambit of interference regarding reappreciation of evidence. In the Priyadarshini Matoo case the Supreme Court even while upholding the view of the High Court to overturn the Trial court Judgment made it clear that in order to overturn on facts the findings of the trial court would have to be completely perverse. If two views were possible it would be the Trial Courts view that would have precedence.

Power to Restrain

Another significant issue relates to the power to restrain publication. The Supreme Court through Abbas vs Union of India and Sahara vs Sebi judgments has recognized “prior restraint” to be constitutionally permissible. Further in the Mirajkar Judgment the Court recognizes power to pass an injunction order under “inherent powers of Court”, under section 151 of the Civil Procedure Code, 1908. Even a Court other than the High Court or Supreme Court can pass a gag order. It may be examined whether the Documentary in question justifies a restraint order.

The Sahara vs SEBI case formulated a new “doctrine” of postponement (postponing publication). Two important principles are to be followed when exercising this power of “postponement doctrine”: (a) There be a real, imminent and substantial risk of prejudice to administration of justice and (b) Power must be exercised only when “change of venue” or “postponement of trial” is not possible.

The latter principle makes clear that the Supreme Court contemplates such a restriction on free speech very rarely and at the stage of trial rather than appeal. This also is in line with judgments in Mangu Khan and Sheikh Mohammad cases. It is important to note that even the controversial movie Black Friday based on the 1993 Bombay Bombings was released once the High Court delivered the judgment, even as the case was pending before the Supreme Court.

Other landmark cases where restraining orders have been passed were also never at the stage of appeal. For instance, The Mirajkar case contemplated restriction at the stage of trial, when passing orders on the non publication of testimony of a witness. Another landmark judgment is Reliance Petrochemicals where an article published in a national daily claimed legal infirmity in the public issue of debentures. An injunction was passed as there was no imminent danger to the financial health of the company. However subsequently in view of oversubscription of debentures, the Supreme Court immediately discontinued the injunction. The controversial god man Asharam Bapu a rape accused also approached the Supreme Court under Article 32 of the Constitution ( writ remedy for enforcement of fundamental rights in the Constitution) seeking an injunction order on the right to fair trial . Yet again the court rightly dismissed the Petition even as the Trial process is underway.

Interestingly in the RK Anand case a sting operation was conducted at the time of trial in the BMW hit and run case. In the Video not only was the defense council seen breaking every rule of the Advocates Act but a witness was seen discussing the case on national television bang in the middle of trial! The Supreme Court stated in clear terms that NDTV had not violated Fair trial rights in any way that no prior permission was needed for airing the sting and the operation was very well within the freedom of speech guaranteed under Article 19 (1) (a).

Right of accused

At this point it may be noted that in this case the convicted person gave free consent. The consent given was well thought out and conditional in nature. In fact there was an agreement that the documentary would be released after 9 months of the shooting so as to not interfere with the High Court proceedings. In this regard it may be worth noting that Supreme Court in the Prabhu Dutt case passed an order allowing two convicted persons to be interviewed even when the Court was not given any explicitly stated consent letter by the subjects of the interview. The consent was presumed by the Court as without mutual understanding an interview would not be possible.

Conclusion

Article 19 (1) (a) lays down the right to speech as a “fundamental right” and Article 19 (2) is only “reasonable restriction” to such a right. Therefore, the right will always be given precedence. In the face of the conviction order of the Trial Court and Delhi High Court and no proof of any threat to “public order “an injunction order on the publication of the interview rests on shaky grounds. Moreover the Apex Court has repeatedly held the threat of violence cannot beat liberty into submission, The State with all its might must protect the constitutional guarantee of free speech. The Government seems to have rushed in and filed a FIR in a knee jerk reaction. Social media opinions are short lived and fickle and most importantly accountable to none. The State can ill afford the same when dealing with Liberties promised by our constitution. Such an action goes against the very spirit of Democracy.

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