No gag without cause

When institutions meant for the public and the people start flexing their muscles, is it a reiteration of strength or is it a reflection of the lack of it?

Over sixty years the Indian Republic seems to have a huge wall between the masters and the servants and it is the servants who dictate.

The adage that you cannot fool all the people all the time has come to point out its relevance.

Slowly the common man has grown cynical of most institutions and the judiciary is not isolated.

In fact when the whispers of corruption grew it also saw the arrest of judges copying in examinations and then being part of a scam for bails.

The judge is also therefore a product of the system as anyone else and transparency is a good insurance against corruption.

In our earlier tours on determining the balance between the right of expression and the interests of the citizen the courts swung in favour of the later.

Perhaps the time has come to revisit the premise not so much on the structural difference between the constitutions of India and USA as much as the social similarities between the two.

In the last column we noticed certain aspects of the right in the context of a judge of a criminal court threatening a gag order.

The Apex Court in the Sahara Case surveyed the stance in various countries before embarking on its ruling in the context of India.

Read in context it would be abundantly clear that the criminal court judge was acting beyond his powers and surely in contradiction to the realm of limitations imposed by the Apex Court.

The court had said, “In essence, the freedom of expression embodies the right to know.” Very interestingly the court went on to add, “However, under our Constitution no right in Part III is absolute.

Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government.”

Surely what is true about fundamental rights is also true about institutional powers. There is no authority in the country clothed with power that has an aura of absolutism about it. Much less does it visit the whims of those in power.

It is therefore a worrying factor of our functioning when on a day to day basis those in authority arrogate to themselves power in some absolute form.

What else is it when a judge gives marching orders to a journalist on beat or a journalist sitting in the gallery of the court with his scribbling pad?

It is elementary Watson that the inhibitions to the freedom of speech contained in the constitution is that can be prevented by law in the interests of sovereignty,

integrity of the nation security of the State, public order, morality contempt of court defamation or incitement to an offence.

In this context the court dealing with pre censorship clearly pointed out to the theory of clear and present danger and said,

“The test formulated was that any preventive injunction against the press must be based on reasonable grounds for keeping the administration of justice unimpaired,” and that, “there must be reasonable ground to believe that the danger apprehended is real and imminent.”

While the power of the court to impose such a restriction is not in debate the manner of its exercise raises serious questions. Power is always coupled with responsibility.

Otherwise we would end up exorcising the ghost that does not exist. Your honour, power is exercised not because it exits but because it needs to be in the context. The action must stand the later scrutiny not the initial ticket.