“Long ago, Plato observed in his Laws that the citizen should attend and listen attentively to the trials. Hegel in his Philosophy of Right maintained that judicial proceedings must be public, since the aim of the Court is justice, which is a universal belonging to all. “
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The question came before the court in the case of ‘Naresh Shridhar Mirjakar v. State of Maharashtra (1966).
Facts of the Case
Facts of the case, are that,
- Mr. Krishnaraj M. D. Thackersey sued Mr. R. K. Karanjia and claimed Rs. 3 lakhs by way of damages for alleged malicious libel published in the Blitz on the 24th September, 1960, under the caption “Scandal Bigger Than Mundhra”.
- These allegations purported to be based on the papers filed in Suits Nos. 997 and 998 of 1951 which had been instituted by China Cotton Exporters against National Handloom Weaving Works, Rayon Handloom Industries, and one Bhaichand G. Goda.
- The said Bhaichand Goda had, in the course of insolvency proceedings which had been taken out in execution of the decrees passed against him, made an affidavit which seemed to support the main points of the allegations made by the Blitz in its article “Scandal Bigger Than Mundhra”.
- During the course of the trial, the said Bhaichand Goda was called as a defence witness by Mr. Karanjia. In the witness-box, Mr. Goda feigned complete ignorance of the said transactions; and under protection given to him by the learned Judge who was trying the action, he repudiated every one of the allegations he had made against Mr. Thackersey’s concern in the said affidavit.
- Thereupon, Mr. Karanjia applied for permission to cross-examine Mr. Goda and the said permission was granted by the learned Judge. Accordingly, Mr. Goda came to be cross-examined by Mr. Karanjia’s counsel.
- Later, during the course of further proceedings, it was dis- covered that Mr. Goda had made several statements before the Income-tax authorities in which he had reiterated some of the statements made by him in his affidavit on which he was cross-examined.
- As a result of the discovery of this material, an application was made by Mr. Karanjia before the learned Judge for permission to recall Mr. Goda and confront him with the statements which he had made before the Income-tax authorities. The learned Judge granted the said application.
- On Friday, the 23rd October, 1964, Mr. Goda stepped into the witness-box in pursuance of the order passed by the learned Judge that he should be recalled for further examination. On that occasion he moved the learned Judge that the latter should protect him against his evidence being reported in the press.
- He stated that the publication in the press of his earlier evidence had caused loss to him in business; and so, he desired that the evidence which he had been recalled to give should not be published in the papers. When this request was made by Mr. Goda, arguments were addressed before the learned Judge and he orally directed that the evidence of Mr. Goda should not be published.
- It was pointed out to the learned Judge that the daily press, viz., ‘The Times of India’ and ‘The Indian Express’ gave only brief accounts of the proceedings before the Court in that case, whereas the ‘Blitz’ gave a full report of the said proceedings.
The learned Judge then told Mr. Zaveri, Counsel for Mr. Karanjia that the petitioner who was one of the reporters of the ‘Blitz’ should be told not to publish reports of Mr. Goda’s evidence in the ‘Blitz’. The petitioner had all along been reporting the proceedings in the said suit in the columns of the ‘Blitz’.
- On Monday, the 26th October, 1964, Mr. Chari appeared for Mr. Karanjia and urged before the learned Judge that the fundamental principle in the administration of justice was that it must be open to the public and that exceptions to such public administration of justice were rare, such as that of a case where a child is a victim of a sexual offence, or of a case relating to matrimonial matters where sordid details of intimate relations between spouses are likely to come out, and proceedings in regard to official secrecy.
- Mr. Chari further contended that no witness could claim protection from publicity on the ground that if the evidence is published it might adversely affect his business. Mr. Chari, therefore, challenged the correctness of the said order and alternatively suggested to the learned Judge that he should pass a written order forbidding publication of Mr. Goda’s evidence.
- The learned Judge, however, rejected Mr. Chari’s contentions and stated that he had already made an oral order forbidding such publication, and that no written order was necessary. He added that he expected that his oral order would be obeyed.
Case in the High Court
The petitioner felt aggrieved by the said oral order passed by Mr. Justice Tarkunde and moved the Bombay High Court by a Writ Petition under Art. 226 of the Constitution. The said petition was, however, dismissed by a Division Bench of the said High Court on the 10th November, 1964 on the ground that the impugned order was a judicial order of the High Court and was not amenable to a writ under Art. 226.
Case in the Supreme Court
After dismissal of petition by Bombay High Court, The petitioner preferred the petition under Article 32 of the Constitution of India, to Supreme Court. Along with this petition, three other petitions were also filed by three journalists, challenging the order of the judge, to not publish evidence of witness.
Grounds for Challenge of Judge’s Order
- All the petitioners challenged the validity of the impugned order on several grounds. They urged that the fundamental rights of citizens guaranteed by Art. 19(1) are absolute,’ except to the extent that they are restricted by reasonable restrictions imposed by law within the limitations prescribed by clauses (2) to (6) of Art. 19.
- According to them, it is doubtful whether even the Indian Legislatures have the power to ban publication of faithful reports of proceedings in the Legislatures, much less can the courts have power to ban such publication.
- They also allege that a restriction imposed in the interests of the witness cannot be held to be justified under Art. 19(2), and that in passing the impugned order, the learned Judge had exceeded his jurisdiction.
- It is plain that the basic assumption on which the petitions are founded, is that the impugned order infringes their fundamental rights under Art. 19(1) and that it is not saved by any of the provisions contained in clauses (2) to (6).
Bench
9 Judges Bench of Supreme Court heard this matter-
- The Judgment of GAJFNDRAGADKAR C.J., WANCHOO, MUDHOLKAR, SIKRI and RAMASWAMI, JJ. was delivered by GAJENDRA-GADKAR C.J.
- SARKAR, SHAH and BACHAWAT JJ. delivered separate Opinions.
- HIDAYATULLAH, J. delivered a dissenting Opinion.
Questions before the Court
“Whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit, is amenable to be corrected by a writ of certiorari issued by this Court under Art. 32(2).”
This question has two broad facets;
-does the impugned order violate the fundamental rights of the petitioners under Art. 19(1)(a), (d) and (g); and,
-if it does, is it amenable to the writ jurisdiction of this Court under Art. 32(2)?
Analysis of the Court
We will present the analysis of the court as per the decision given by judges in their different judgments.
Justice Gajendragadkar
- “It is well-settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice.
Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.
- Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the court-room.
- It is necessary to consider whether this rule admits of any exceptions or not. Cases may occur where the requirement of the administration of justice itself may make it necessary for the court to hold a trial in camera. While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the Judiciary is to do justice between the parties who bring their causes before it.
If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? If the primary function of the court is to do justice in causes brought before it, then on principle, it is difficult to accede to the proposition that there can be no exception to the rule that all causes must be tried in open court.
- If the principle that all trials before courts must be held in public was treated as inflexible and universal and it is held that it admits of no exceptions whatever, cases may arise where by following the principle, justice itself may be defeated. That is why we feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course.
It is hardly necessary to emphasise that this inherent power must be exercised with great caution and it is only if the court is satisfied beyond a doubt that the ends of justice themselves would be defeated if a case is tried in open court that it can pass an order to hold the trial in camera; but to deny the existence of such inherent power to the court would be to ignore the primary object of adjudication itself.
- The principle underlying the insistence on hearing causes in open court is to protect and assist fair, impartial and objective administration of justice; but if the requirement of justice itself sometimes dictates the necessity of trying the case in camera, it cannot be said that the said requirement should be sacrificed because of the principle that every trial must be held in open court.
- It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between fair administrations of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice.”
Justice Sarkar
- “It seems to me that this case is covered by the judgment of this Court in Ujjam Bai v. State of Uttar Pradesh[1]. That was a case in which a petition had been moved under Art. 32 for quashing an order passed by an assessing officer acting judicially under a taxing statute, valid in all respects, assessing the petitioner to tax on a construction of the statute alleged to be erroneous and that petition was dismissed.
It was held that the validity of an order made by a judicial tribunal, acting within its jurisdiction, under an Act which was intra vires and good law in all respects was not liable to be questioned by a petition under Art. 32 even though the provisions of the Act had been misconstrued and that such an order could not violate any fundamental right and no question of this Court enforcing any violation of fundamental right thereby could arise.
- The principle accepted appears to be that a legally valid act cannot offend a fundamental right. I think the same principle applies to this case. The conditions of the applicability of the principle laid down in that case are that a judicial tribunal should have made an order which it had the jurisdiction to make by applying a law which is valid in all respects.
I think both these conditions are fulfilled in this case and it is irrelevant to enquire whether Tarkunde J. had made the order on an erroneous view of the law he was applying.
- An order passed by a court without jurisdiction in the sense that I have mentioned, is a nullity. It cannot be said of such an order that it is a legal act which cannot result in a wrong. On the other hand, an order passed with jurisdiction but wrongly, is a legal act for it is well known that a court has jurisdiction to decide rightly as well as wrongly.
This, I believe, is the principle on which the condition as to jurisdiction was formulated in Ujjam Bai’s.(supra) I find no difficulty, therefore, in holding that Tarkunde J. was acting within jurisdiction in making the order which he did, even if he had committed an error in applying the law under which he made it.
- Now that law is the inherent power of a High Court to prevent publication of the proceedings of a trial. The question is: Does this power offend the liberty of speech? It seems to me beyond dispute that the power to prevent publication of proceedings is a facet of the power to hold a trial in camera and stems from it. Both are intended to keep the proceedings secret.
- Suppose a court orders a trial in camera and assume it had a valid power to do so. In such a case the proceedings are not available to persons not present at the trial and cannot, for that reason at least, be published by them. Can any such person complain that his liberty of speech has been infringed?
I do not think so. He has no right to hear the proceedings. Indeed, there is no fundamental right to hear. If he has not, then it should follow that his liberty of speech has not been affected by the order directing a trial in camera.
- Liberty of speech is not available to do harm to others. Clearly a right cannot be based on a wrong. Therefore, I think that a law empowering a court to prohibit publication of its proceedings does not affect the fundamental right of speech. It cannot be said to be bad on the ground that it infringes any such right.
It also seems to me that the law empowering a court to prohibit publication of its proceedings is protected by cl. (2) of Art. 19. That clause says that a law may validly impose reasonable restrictions on the liberty of speech, if it is in relation to contempt of court.
- As I understood learned counsel for the petitioners, they conceded that the order was a good order in so far as it concerned the parties to the case heard by Tarkunde J. who could not, therefore, complain of any violation of their liberty of speech by it. But it was contended that the order was not a valid order in so far as it restrained persons like the petitioners who were not parties to the proceedings.
It is true that the petitioners were not parties, but I am unable to see that that makes any difference. The case will still be covered by the principle laid down in Ujjam Bai’s case It would still be a judicial order made within the jurisdiction of the Judge making it and based on a good law. It would still be a legal act. It cannot, therefore, violate anyone’s fundamental right whether he is a party to the proceedings or not.
- The jurisdiction of the Court does not depend on who the person affected by its order, is. Courts often have to pass orders which affect strangers to the proceedings before them.
Justice Hidayatullah
Justice Hidayatullah had given dissenting Judgment.
- “Questions of far-reaching importance to our system of administration of justice are involved in these petitions arid as I have reached the conclusion that these petitions should be allowed.
- The learned Judge by an order (which we have not seen and which parties could not produce because it was nowhere recorded) ordered that the deposition of Goda should not be published. Whether this order is to apply in perpetuity or for the duration of the trial, only the learned Judge can say.
- Even otherwise the order is indefensible. Having held the trial in open court, the learned Judge could not curtail the publication of the report of the trial and the reason which he accepted as sufficient, is one which the courts have not recognised and should not recognise. I know of no case to support the astounding proposition that a witness can seek protection because his truthful statement would harm his own business; nor has the industry of counsel discovered any such case. I do not think such a principle exists at all.
- If it did a witness might with as good or as bad reason claim that he would depose only under a veil of secrecy because his domestic relations or his friendships or the relations with his employer would otherwise suffer. I imagine that a cunning rogue might ask for such secrecy to harm and wound another with impunity or to save his face when contradicted by his many prevarications.
- I am of opinion that the order of Mr. Justice Tarkunde imposing suppression of the reporting of the deposition of Goda was illegal and without jurisdiction. It was not in his power to make such an order on the ground he was moved and further because the order either purports to impose a perpetual ban or leaves the matter in doubt, thus placing those concerned with the publication of the report under a virtual sword of Damocles, the order cannot be sustained.
- The impugned order was passed by a Court of competent jurisdiction under a valid law. Whether the High Court should have passed the order is another question. The propriety of the order cannot be challenged in a writ application under Art. 32. Until the order is set aside in appropriate proceedings, it conclusively negatives the right of the petitioners to publish reports of the deposition of Bhaichand Goda. The petitioners cannot, therefore, complain that their fundamental right under Art. 19 (1) (a) has been infringed.
- I must not be taken to say that I approve of the impugned order. A Court of justice is a public forum. It is through publicity that the citizens are convinced that the Court renders even-handed justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the Court proceedings.
The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the Court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation.
- Long ago, Plato observed in his Laws that the citizen should attend and listen attentively to the trials. Hegel in his Philosophy of Right maintained that judicial proceedings must be public, since the aim of the Court is justice, which is a universal belonging to all. Save in exceptional cases, the proceedings of a Court of justice should be open to the public. The petitions are not maintainable, and are dismissed.”
Reference
Naresh Shridhar Mirjakar v. State of Maharashtra (1966)
[1] [1963]1 S. C. R. 778.