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Stifling democratic discussion

National discussion and debate on so crucial a matter of public concern as the entry of the decommissioned French aircraft carrier Clemenceau into Alang for dismantling have been sought to be stilled by a Supreme Court gag order of far-reaching consequences that has few precedents. The apex court bench, which is hearing a public interest case on the entry of the ship into India, has prohibited demonstrations and articles expressing a "pro or against or a middle line" opinion on the ground they would constitute prima facie contempt of court. This order is not restricted to parties before the court; nor is it confined to a discussion of the legal issues. Traditionally, courts have frowned upon a public discussion of the issues before them for the reason that this may pressure the judge or the parties to act in a particular way, and also that it may, by pre-judging the case, sway the public one way or the other, undermining their confidence in the court's decision when it comes later. Neither of these reasons applies to the present case. Judges, particularly in the higher courts, are by practice and disposition insulated against outside influences. They are trained to decide on the basis of the material before the court and the arguments made. As for the public, it is far-fetched to claim that an open debate will influence them one way or the other in advance and erode their faith in a final judicial verdict.

The Supreme Court's order runs counter to the tendency of courts the world over to allow greater latitude for the discussion of matters of wide public interest and concern. The European Human Rights Commission, for instance, ruled that the effects of the drug thalidomide were of such crucial concern to so many victims that the publication of an article by The Sunday Times could not be banned on the ground it might prejudice a pending case. In the Clemenceau affair, the debates extend far beyond the merely legal. Issues of health and safety of workers, good business ethics, political morality, and international relations have transformed the episode into a matter of widespread public concern. What is involved is not just the right of the newspapers to publish information and opinion but of the public to receive them as well. To consider a discussion of such issues contempt of court because of the pending litigation and to resort to prior restraint on any publication would do incalculable harm to the democratic fabric. At a time when issues of public policy are increasingly being brought before courts, such a stand would open the door to stifling discussion by taking an issue to court. The Supreme Court over a period has emerged as a staunch defender of the democratic rights of citizens against the excesses of the executive and the legislature. It would be unfortunate if it were to be seen as not showing the same degree of sensitivity to democratic rights where its own functioning is involved. It is ironic that even as the imposed silence reigned in India, the campaign continued to gather momentum in France, with the highest court ruling against the transfer of the ship, leading to its recall.

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