The Open Court Principle Section 366(1)

Section 366(1), BNSS 2023

The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

📖 Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 (nine Judges)

Facts: In the course of a trial, the High Court directed that the evidence of a witness should not be published, the witness having represented that publication would damage his business. The order was challenged as an infringement of the freedom of speech and expression and as contrary to the principle that justice must be administered in public.

Held: The Bench of nine Judges affirmed that the normal rule is that justice shall be administered in open court, and described it as a rule of the highest importance, resting on the view that publicity is the surest guarantee of the fair and proper conduct of judicial proceedings. But it held that the rule is not absolute. A court has an inherent power, incidental to its jurisdiction to try the case before it, to regulate its own proceedings in the interest of justice — including, where the circumstances require it, to hold the proceeding in camera or to prohibit or postpone the publication of evidence. The foundation of the power is that the primary object of a court is the administration of justice, and if that object would be defeated by an open hearing — for instance where a witness would be unable or unwilling to give evidence at all in public — the court may make such order as the case requires. The Court emphasised that the power is exceptional, must be exercised only where the interest of justice genuinely requires it, and must be no wider than necessary.

Ratio: Justice is normally administered in open court, publicity being the surest guarantee of its fair conduct. But a court has an inherent power to regulate its proceedings in the interest of justice, including to sit in camera or restrict publication, exercised exceptionally and no wider than necessary.

📖 Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India, (2012) 10 SCC 603 (five Judges)

Facts: The Court was asked to lay down guidelines governing the reporting of sub judice matters, and to reconcile the freedom of speech and expression and the public interest in open justice with the right of a litigant to a fair trial where contemporaneous publicity might prejudice it.

Held: The Constitution Bench held that open justice and freedom of the press are the rule, and that no blanket or advance restriction on reporting is permissible. But it recognised a narrow power of postponement: a court may, in an appropriate case, direct that publication of certain proceedings be postponed for a limited period, where it is satisfied that there is a real and substantial risk of prejudice to the fairness of the trial or to the proper administration of justice, and that the order is necessary to prevent that risk because no reasonable alternative measure would avoid it. The order must satisfy the tests of necessity and proportionality: it must be no wider and no longer than the risk requires, since it restricts a freedom the Constitution protects. The Court held that such an order is a neutralising device of last resort, that the affected party may apply to have it vacated, and that a postponement is to be preferred to a prohibition because it defers reporting rather than preventing it.

Ratio: Open justice and free reporting are the rule, and no blanket restriction is permissible. A court may postpone publication only where there is a real and substantial risk of prejudice, no alternative would avoid it, and the order is necessary and proportionate.

⚠ Applying the two decisions together

The question is always whether the administration of justice requires it. Both decisions locate the power in the court’s duty to administer justice, not in any discretion to avoid scrutiny.

Sitting in camera and restricting publication are separate orders, each needing its own justification. Excluding the public because a witness is frightened does not by itself justify a bar on reporting what he says.

Necessity and proportionality govern the second. The order must be the least restrictive that will avoid the risk, and a postponement is to be preferred to a prohibition.

And reasons must be recorded. An order excluding the public, or restricting reporting, is a judicial order affecting rights, and must show on its face why the interest of justice required it.

The position stated shortly

1. Section 366(1): the place in which a Criminal Court is held shall be deemed to be an open Court, to which the public generally may have access, so far as it can conveniently contain them.

2. The justification is that publicity is the surest guarantee of the fair and proper conduct of judicial proceedings. A court that is watched is disciplined by being watched.

3. The proviso permits the presiding Judge or Magistrate, if he thinks fit, to order at any stage in any particular case that the public generally or any particular person shall not have access to or remain in the court.

4. The power is judicial and case-specific. A general practice of sitting in private, or an administrative direction to that effect, is not what the proviso permits.

5. A court also has an inherent power to regulate its own proceedings in the interest of justice, including to sit in camera — exercised exceptionally and no wider than necessary: Naresh Mirajkar.

6. The proper grounds relate to the administration of justice: a witness who will not or cannot speak in public, danger to a witness, the dignity of a victim, a child giving evidence, intimidation, or disorder in court.

7. The improper grounds are the convenience of the Court, avoiding embarrassment, political sensitivity, or a general practice not addressed to the particular case.

8. Excluding the public and prohibiting publication are different orders. Each requires its own justification.

9. No blanket or advance restriction on reporting is permissible. A court may postpone publication only where there is a real and substantial risk of prejudice, no reasonable alternative would avoid it, and the order is necessary and proportionate: Sahara India.

10. Where a proceeding is held in camera under section 366(2), section 366(3) itself makes publication unlawful except with the previous permission of the Court.