Abstract

With a recent increase in instances of ad interim gag orders being granted under Section 144 of the Code of Criminal Procedure, individuals facing allegations of criminal behaviour are turning to the courts more often for relief from damaging publications. Traditionally, gag orders have been viewed as a conflict between the ‘a priori’ enforcement of a defendant’s right to fair trial by prohibiting news outlets from reporting on the case and the public's right to know. However, since the pandemic’s inception, the two types of gag orders that have been frequently passed are either to curb dissent or impose prior restraints against defamation in criminal cases. The validity of the former has been in question, as they are often passed in tandem with Section 188 of the Indian Penal Code that deals with disobedience to order promulgated by a public servant, rendering all persons contravening it punishable by law. Various prominent Supreme Court and High Court lawyers have expressed contrary opinions regarding this subject, with some arguing that the response has been disproportionate and that public tranquillity has been used as a veil for intolerance, while others are arguing that the authorities were within their rights to do so. The latter has faced a huge outcry from social activists who have pointed to a string of sexual harassers that have managed to evade the public eye by quashing stories on media sites. They have also condemned it as an erasure of victim justice, especially when power wielded by the alleged offenders is considered. Lawyers have referred to these orders as reflective of the large-scale gender inequality and apathy in the country. As a result, this paper will use empirical evidence to test the above-mentioned problems in a two-pronged way. Firstly, it uses cases to whether gag orders overstep the boundaries of state responsibility. Secondly, to assess broader trends, it collates data on the gag orders passed between 2016 and 2021 to consider the likelihood of a court granting a gag order to a high-profile, privileged defendant compared to an average defendant with no connections to assess their accessibility of the orders. It finds that in 72.7% of the cases, privileged defendants are the ones most likely to get a gag order. It also analyses how many orders curb dissent against ruling governments and finds that this occurs in 54.5% of cases.

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