Calling the Press a Powerful Watchdog, Bombay HC Quashes Gag Order on Sohrabuddin Case

Justice Revati Mohite-Dere ruled that the special CBI court had overreached its powers by issuing the gag order.

Mumbai: In a major victory for the media, the Bombay high court on Wednesday quashed the CBI court’s order barring journalists from reporting the proceedings in the Sohrabuddin Shaikh fake encounter trial. Calling the press “a most powerful watchdog of society”, Justice Revati Mohite-Dere ruled that the special CBI court had overreached its powers by issuing the gag order.

Justice Mohite-Dere was hearing two petitions filed by a group of nine journalists and another by the Brihanmumbai Union of Journalists against the CBI court’s November 29 order restraining the media from reporting anything from the court proceedings in the case.

While deciding the matter in favour of the press, the high court observed that the “press serves the larger purpose of making such information available to the general public” which is entitled to it.

She observed that such ban orders contravened the journalists’ constitutional right of freedom of expression. “The rights of the press are intrinsic with the constitutional right of freedom of expression. In reporting from an open trial, the press not only makes use of its own right, but serves the larger purpose of making such information available to general public.”

The judge also called the press a most powerful watchdog of the society.

On November 29 last year, special CBI judge S.J. Sharma had prohibited journalists from publishing the proceedings of the trial. Reporters, while being allowed to attend the proceedings, were barred from reporting about it. One of the accused, Rehman Abdul, through his lawyer Abdul Wahab Khan, sought a gag against the media claiming the case was sensitive and posed a direct threat to the lives of both the accused and the lawyers representing them. Abdul had claimed reporting on a matter which had senior police officials’ names as accused would lead to “sensationalism” and pose a threat to “national security”. Others among the accused had endorsed the complaint.

In the Bombay high court too, lawyers representing the accused made a similar argument against the media’s petition seeking restoration of their rights to report on the issue. The media was represented by advocate Abad Ponda, advocate Abhinav Chandrachud and senior advocate Mihir Desai.

All three, on Tuesday, had argued that the CBI trial court had issued the gag order even when there were no provisions in the statute. Ponda referred to the Code of Criminal Procedure, Code of Civil Procedure, Press and Registration of Books Act and Contempt of Courts Act. He also pointed out that special laws like the Terrorism and Disruptive Activities (Prevention) Act or the Maharashtra Control of Organised Crime Act, although stringent, don’t restrict the media from reporting any trial.

“The CrPC makes it clear that an open trial is a rule, and an exception can be made only on rare occasions. The words ‘open courts’ are important since they affirm that the public is entitled to know whether the justice delivery system is adequate or not,” Justice Mohite-Dere observed.

Accepting the petitioner’s contentions, the HC observed that such prohibitory orders can be issued only by higher courts and that too only in rare cases, which could only be for a stipulated period.

“It cannot be a blanket ban,” she observed. She also turned down the accused’s claims of the case being sensational and observed that media leading to the sensationalism of any proceedings can’t be a sufficient ground for banning its reporting.

The defence lawyers had also tried to invoke the issue of the mysterious death of CBI judge B.H. Loya to stop the media from reporting on the issue. The Bombay HC described these arguments as “bare words” and observed that the defence lawyers were unable to point out legal provisions that could support the trial court’s order.

In December last year, a group of nine journalists, including The Wire’s founding editor Sidharth Bhatia, had moved the Bombay high court against the restraining order by the CBI court. Other petitioners include editor of Scroll.in Naresh Fernandes, Sunilkumar Singh from NDTV, Sadaf Modak from The Indian Express, Mumbai Mirror’s Sunil Baghel, Sharmeen Hakim and Rebecca Samervel from The Times of India, Vidya Kumar from India Today and Neeta Kolhatkar from The Free Press Journal.

The CBI did not oppose the media petition and had agreed to go with the court’s decision on the gag order. Meanwhile, at the CBI trial court over 40 witnesses have already been examined against 23 persons accused in the case.

According to the CBI, Sohrabuddin Shaikh, an alleged gangster, was killed in an alleged fake encounter by the Gujarat and Rajasthan police. His wife Kauser Bi also mysteriously disappeared and was later suspected to be sexually assaulted and killed by the police. Shaikh’s close associate Tulsi Prajapati, an eyewitness to the encounter, was also killed in another alleged fake police encounter a while later.

In its chargesheet, filed under the supervision of the Supreme Court, the CBI had indicted several police officers as well as Amit Shah, who was Gujarat’s home minister at the time. Shah, who is now president of the BJP, was later discharged from the case along with four other IPS officers.