Supreme Court and Postponement Orders

Acting Out of Turn

The recent judgment of the Supreme Court of India, creating a new remedy of postponement orders to balance the freedom of press and the right to a fair trial, has once again raised grave concerns about overreach by the judiciary. This article argues that the creation of such a remedy in this case was beyond the legitimacy and competence of the Court. Further, the conceptualisation of the postponement order as a means to balance the two rights is fl awed. Despite certain safeguards, it marks the beginning of a dangerous discourse to stifl e free speech and will prove ineffi cacious in securing the fair administration of justice.

The principled relationship bet­ween a free press and the administration of justice is a complementary one. Lord Hewart’s dictum that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”1 accepted widely as the cornerstone of any judicial system requires the press to freely report court proceedings. Not only does this ensure that the judiciary remains accountable for its functioning, but it is also necessary to secure public confidence in a fair and transparently functioning judicial system. Despite paying lip service to this fundamental complementarity, the judgment of the Constitution Bench of the Supreme Court of India in Sahara India Real Estate ­Corporation and Others vs Securities & ­Exchange Board of India and Another,2 f­ocuses disproportionately on those exceptional situations when there is a conflict between the freedom of the press and the requirement of fair admini­stration of justice. 

While indeed such conflicts may arise and require judicial resolution, this essay argues that neither was the Court directly confronted with such a situation in the present case nor was its resolution of this purported conflict prudent and workable. The argument will be developed specifically through two claims: first, the decision of the Court to lay down the constitutionally acceptable balance between free speech and administration of justice in this case is an illegitimate exercise of judicial power beyond the competence of the Court; second, the remedy of a postponement order while a laudable effort to balance the said rights is flawed in principle, problematic in practice and fashioned from an incomplete appreciation of the operation of such orders in the United Kingdom (UK). As a result, the Court’s decision to hold the media3 accountable for its purported excesses results in an unfortunate own goal, scar­cely protecting the administration of justice as proclaimed, pointing instead to its own position as a supremely powerful yet inadequately accountable institution.

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