BNS Provision, Punjab & Haryana HC's "Gag" Order Restricting Publication Of Judgments Relating To Sexual Offences, Other Cases Challenged

A Public Interest Litigation (PIL) has been filed before the Punjab & Haryana High Court challenging the High Court's executive committee order restricting uploading of orders, judgments or case details of sensitive matters like cases relating crime against woman, Juvenile Justice Act, matrimonial disputes on the High Court websites, including the e-court platform.

In Punjab & Haryana High Court the orders from the above restricted category are not made available on the website even after hiding the identity of the victim or the parties. Although there is a separate section only for the lawyers appearing in the matter to download the same.

The PIL also challenges Section 73 of the Bharatiya Nyaya Sanhita (BNS) and Section 366(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which prohibits publication of proceedings relating to cases involving sexual offences pending in trial court, without court's permission.

The petition is listed tomorrow (August 09) for hearing before a division bench of Chief Justice Sheel Nagu and Justice Anil Kshetarpal.

The plea filed by, Rohit Mehta, lawyer by profession highlights that, "That Executive Orders passed by the High Court are uniform Gag Orders, implementing the principle of complete Privacy/ Secrecy, without any regards to the Legislative Intent and without distinguishing the various provision of different statues, and in total disregard of the concept of Open Court."

Mehta also challenged Section 73 of BNS, which states that printing or publishing any matter in relation to any proceeding before a Court with respect to offence relating to rape, sexual intercourse by husband upon his wife during separation, sexual intercourse by person in authority, Sexual intercourse by employing deceitful means, etc, gang rape, without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

It is also clarified in explanation that the printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.

Section 366(3) of BNSS  which also under challenge in the present plea, states that it would be unlawful to print or publish any matter in relation to any such proceedings except with the previous permission of the Court.

The plea adds that although the legislature provided certain exceptions to the principal of Open Courts, but still the Legislature in its wisdom, did not completely remove or delete this right of access to open courts system. For example, in some cases, only identity of the victim is not to be disclosed, in some cases judgments are not to be uploaded, in some cases, proceedings are to be held in camera but there is no restriction on uploading/ publishing the said proceedings and finally in some cases, documents and records are to be kept hidden and destroyed after certain time.

"But the Punjab and Haryana High Court, while passing Executive orders, ignoring all these different aspects of the legislative intent, has passed blanked Gag Orders, whereby in all such cases, parties names have been hidden and uploading of daily orders and judgments have been prohibited, without any specific legislative backing," submitted the petitioner.

Mehta further argues in the petition that the legislative aim of protecting the identity of victims and protecting the witnesses could have been achieved by simply following the rules of Anonymity, and hence there was no need to implement a complete gag order.

The plea also claims that as the case statuses and daily orders are not publicly available, it is a "breeding ground for corruption at District Judiciary level."

"In their favorite and preferred case, the Ld. Trial Courts do pass special kind of orders, the kind of orders which are totally missing in cases of general public. Whereas the unfortunate situation is that all these facts cannot be brought to the public scrutiny as there is no access to these public records. Hence due to lack of public scrutiny, there is no check on the Trial Court judges to stop them from being biased and instead these orders mandating secrecy in court proceedings is in-fact promoting corruption and favoritism, it added.

The Criminal Law amendment Act introduced the concept of Right to Anonymity, but the Punjab and Haryana High Court passed administrative orders implementing the total Secrecy/Privacy, whereas although there is a difference between Right to Privacy and Right to anonymity, as these are two entirely different things, as was interpreted and explained by the  Supreme Court in case of K Justice K.S.Puttaswamy (Retd) and another v. Union of India and Others, 2017,  the plea submits.

Advocates Kshitiz Goel, Krishan Kanha and Nirmal Sharma are representing the petitioner.

Title: Rohit Mehta v. Punjab and Haryana High Court through its Registrar & Ors.