One of the fundamental principles of justice says: “justice must not only be done, it must also be seen to be done.” Thus, publicity of court cases serves an important public purpose. It enables people to appreciate the working of the court and the administration of justice. More importantly, there is curative value to the public in seeing criminal laws in operation, purging society of crimes. It informs the ordinary citizens about matters of public interest and is therefore an indispensible facilitator of the right to information.
Openness is a safeguard against judicial error and misconduct. It is also an effective deterrent against perjury by witnesses. The principle of open justice system applies to courts as well as to judicial and quasi judicial tribunals.
Media have a right to report court proceedings under Articles 35(3) and 39 of the Constitution of Bangladesh and also entitles the right to publish a faithful report of the proceedings witnessed and heard in courts or tribunals. Although in principle the media enjoy no higher status than that of the ordinary citizens, but in practice, they do.
Ordinary citizens do not have free access in the way the media do, for instance, they do not enjoy the privilege of sitting in the media bench as journalists do. All these privileges have given not for the reason that media have any special wisdom, interest, or status enjoyed by publishers, editors or journalists. It’s because the media are the eyes and ears of the masses. They act on behalf of the ordinary people.
In Attorney General v Guardian Newspapers Ltd, 1988, (3 All ER 595) it was held that: “media’s right to know and their right to publish is neither more nor less than that of the general people. The media enjoys privileges on account of the citizen’s right to be informed on matters of public importance. Indeed it is that of the general public for whom they are trustees.”
The Bombay High Court in Saroj Iyer v Maharashtra Medical Council of Indian Medicine, (AIR 2002, Bom 97) observed that, the journalist has a fundamental right to attend proceedings in court; and the right to publish a faithful report of the proceedings witnessed and heard in court. The court also observed that this right is extended to judicial and quasi judicial tribunals as well.
The right to report court proceedings and publicity of the same serves several important purposes. It stems from the necessity for transparency, to enhance public knowledge about the working of the law and the administration of justice. Seeing criminal trials reaching logical conclusions, brings in confidence among the people and assure them that no criminal goes unpunished.
The constitutional right of the media to report court proceedings, and publicity of the same is not an absolute right. Media enjoy this right subject to certain limitations. The open justice system must be done away with when there are higher considerations. For instances, the names and identifications of rape victims or riot victims must be protected. Such persons may be reluctant to complain if their identities are disclosed and trials publicised. It is not only necessary to protect such persons from public humiliation and embarrassment, but also necessary to ensure that the victim gives the best available evidences which she may not be able to provide if she is under public gaze. Similarly, family disputes demand privacy, particularly to protect children from unwarranted publicity. The court may restrict the publicity in the interest of justice.
A number of statutes empower, or require the court to restrict admission of media personnel to certain court proceedings and publication of such proceedings. For instance, The court has the inherent power under section 151 of the Civil Procedure Code, 1908 to order a trial to be held in camera, but this power must be exercised with great caution and only where the court is satisfied beyond doubt that the ends of justice would be defeated if the case were to be tried in open court.
Section 14(1) of the Nari-O-Sheshu Nirjaton Damon Ain, 2000 prohibits the publication of the name of a victim of sexual offence and Sub-Section 2 of Section 14 imposes a period of maximum two years imprisonment or fine not more than Tk200,000 or both for non compliance of section 14(1). Section 20(6) of this Act also facilitates the court to hold camera trial.
Moreover, Section 14 of the Official Secrets Act, 1923 empowers the courts to exclude the public from court proceedings while section 11 of the Family Law Ordinance, 1985 empowers the courts to restrict outsiders when the suit is matrimonial in nature. Along with the Section 27 of the Anti-Terrorism Act, 2009 read with Section 352 of the Code of Criminal Procedure, 1898 deal with the court’s power to hold trial outside the public gaze when required.
We live in an age of media and openness is a vital safeguard against any irregularity on the part of the judiciary. Having said that, there is a corresponding duty on the part of the media to report accurately, responsibly and to avoid unwarranted sensationalisation which would only hinder and trivialise the process of administration of justice.