“Man is a social animal”. As Aristotle said, humans tend to live in groups and are interdependent. For these groups to exist and flourish communication is necessary. For effective and smooth communication, freedom of speech and expression is a must.
But the real world is not a Utopia, any right or law if taken in its absolute form, could lead to major problems. Therefore, it is necessary to draw boundaries as to how much a right should be conferred to a person. These restrictions become ever so important in today’s day and age where the social fabric of society is so strained. Article 19(1)(a) of the Indian Constitution states that all citizens shall have the right to freedom of speech and expression. [1] But these rights are neither absolute nor sacrosanct and are subject to restrictions.
One such restriction is a gag order. The word ‘gag’ means to thrust something into the mouth or throat to prevent speaking. But the word was first used in the legal sense in the 1620s and referred to “violent or authoritative repression of speech”. [2]
Gag orders can be issued by both private and public entities. Recently Bollywood celebrities Vicky Kaushal and Katrina Kaif tied the knot and the guests were made to sign a non-disclosure agreement (NDA), effectively gaging them from sharing any information. [3] Such NDAs are also commonly used in businesses to protect their trade secrets, business practices, or confidential information.
In the public domain, courts issue gag orders to order individuals involved in a case to refrain from disclosing certain information to the public or the media. Gag orders can be issued in both criminal and civil cases. Generally, the courts have the authority to impose gag orders to restrict any information from being made public. These gag orders are governed by Order 39 Rules 1 and 2, which talk about temporary and permanent injunctions, respectively. [4]
In 2017, the Supreme Court imposed restrictions on media coverage in the case of Justice Karnan. Justice C.S. Karnan became the first sitting judge to face proceedings for contempt of court. In the above instance, the Supreme Court imposed a gag order on the media and prevented them from reporting to avoid damaging the reputation of the judiciary’s integrity. [5]
This order was faced with a huge backlash and the media reported it as curtailing their fundamental right enshrined in Article 19 (1)(a). [6] In Arnab Ranjan Goswami v. Union of India, the Supreme Court observed that press freedom was an integral part of freedom of speech and expression, and journalists free from the fear of prosecution are the conduits to creating an informed society. [7] But restrictions can be imposed on media by the courts and it would not violate their fundamental rights if such an order was reasonable and necessary for the case.
In Naresh Shridhar Mirajkar vs the State of Maharashtra, the court stated the same and held that the judge has an inherent power to restrict the publication of any information to ensure justice and prevent harm to the witness’s dignity and privacy. [8]
A gag order can be crucial to protect privacy and dignity, especially in today’s time where media has become an essential part of our lives. Confidential information or even misinformation spreading has an overarching impact on the lives of people. One of the most prominent of such cases is the Noida Double Murder Case, here the media did more than just provide information. The media conducted its trials and convicted the parents even before the verdict was delivered by the Hon’ble court. But the most controversial part was the character assassination of£ the teenage girl and their parents. [9]
To avail gag orders against the media, the courts must be persuaded to believe that coverage by the media poses an imminent danger to the administration of justice. [10] In Asaram Bapu v. Union of India, the Supreme Court refused to impose gag orders on media as there was no ‘imminent danger’. [11]
But even the police and governments have the power to impose gag orders to maintain peace and harmony within the society. In 2020, the Mumbai Police passed a gag order under Section 144 of the CrPC [12} to prevent fake news and remarks ‘derogatory and discriminatory towards a particular community’. [13]
But gag orders have been an apple of discord for a long time. People who favor such sanctions argue that it safeguards the fairness of the judicial process. However, unlike the process, the judges delivering those verdicts can be influenced by the prevailing public sentiments. Therefore, the other side contends that these orders violate their fundamental right to speech and expression enshrined in Art. 19(1)(a) of the Indian Constitution. [14] However, even this press freedom can be curtailed if the courts believe that imposing such restrictions is reasonable to curb fake news.
In 2021, former Karnataka Chief Minister Sadanada Gowda obtained a gag order from the Banglore City Civil Court to restrain ‘fake’ and ‘baseless’ news against him. [15] But these orders are not without resistance, gag orders directly interfere with the fundamental right of speech and expression. Moreover, under the garb of these orders, many powerful as well as resourceful people avoid public scrutiny and even escape the radar of the judiciary.
One such case in recent times is the case of Prajwal Revanna, former Janta Dal(Secular) leader where videos of him sexually assaulting women were circulated on social media. Before this, he had obtained a gag order against 86 media outlets and 3 individuals to stop the spreading of fake and doctored videos. Such cases highlight the dual nature of gag orders. [16]
Conclusion
Gag orders a necessity or an infringement is a debatable topic. It is not possible to entirely segregate this rule as black or white. Nonetheless, it is essential to draw boundaries in case of media coverage to respect the privacy and dignity of concerned individuals. But it is also equally necessary to let the media be independent from any restriction. Media as previously mentioned is the conduit through which the masses consume current affairs, thus their freedom is pivotal in creating public opinions.
Therefore, a balanced approach should be employed and the courts and judges should pass such orders after meticulous evaluation.
Author(s) Name: Suraj Bohara (Jamia Millia Islamia University)
