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Opinion » Columns » Siddharth Varadarajan

Updated: March 30, 2012 14:34 IST

The public needs both gavel and pen

Siddharth Varadarajan
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The Supreme Court's proposal to impose guidelines on how to report cases will be harmful to press freedom and democracy, the bedrock of which is an informed public.

The Judiciary is the third branch of government. As with the Executive and Legislature, the public has a right to see and know and understand the functioning of this branch. That is why India, like every other democracy, has embraced the concept of open court proceedings and trials, except in those situations where, for security or other compelling reasons, in camera hearings are required.

In the Mirajkar case (Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr on 3 March, 1966) a nine-judge Bench of the Supreme Court under its legendary Chief Justice, P.B. Gajendragadkar, held that “save in exceptional cases, the proceedings of a Court of justice should be open to the public”.

“A Court of justice is a public forum”, the 1966 judgment declares. “It is through publicity that the citizens are convinced that the Court renders evenhanded justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the Court proceedings. The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the Court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation.” (emphasis added)

Unrestricted openness

Once the objective of a public trial in open court is accepted, it is obvious that this openness cannot be restricted to those members of the public who have the facility and inclination to be present in a given court at a given time; rather, the reference is to the wider public, to the citizenry as a whole. The only way court proceedings, and the wider functioning of the judicial system, can be subject to public scrutiny is if the media — who are the people's eyes and ears — have the freedom to both be present in open court and to give an account of what transpires in open court.

It is thanks to contemporary newspaper reports of the day-to-day hearings in landmark cases like Kesavanada Bharati (1973) (certainly in The Hindu, and perhaps elsewhere too) that the public then — and legal scholars now — have an accurate picture of all the intricacies involved, including the oral arguments made and questions raised by the Bench. Many more such examples can be cited.

To be sure, covering the courts requires skill, competence and some domain knowledge of the law, in much the same way that coverage of foreign policy, defence, business and finance, and even politics requires reporters knowledgeable about those subjects. The Supreme Court has seen fit to specify that accredited correspondents must possess a law degree; it has also quantified the amount of reporting experience, at different levels of the judiciary, that these correspondents must have. No other branch of government or public or private institution — not the armed forces or Defence Ministry, not the Ministry of External Affairs, the Police, the Ministry of Agriculture or Health — has insisted on a degree or professional qualification as a condition for accreditation. Nor to my knowledge is a law degree a requirement to get accreditation as a correspondent to the Supreme Courts of the United States, Canada, the United Kingdom, South Africa, etc. I raise this point here not to challenge the Supreme Court of India's system of media accreditation, but merely to note that having raised the bar for entry, imposing further restrictions in the form of guidelines on these correspondents — all of whom have been allowed in precisely because of their knowledge of, and sensitivity towards, the functioning of the Court — seems especially superfluous.

No doubt the most experienced and knowledgeable reporter can make a mistake on a particular matter. These mistakes can be harmless, hurting only the reputation of the concerned journalist or media house. But there can be mistakes which have consequences for the reputations of the parties to a case and their counsel, or to the Bench and Court. If an error by a reporter has adverse consequences for the reputation or standing of the Court or plaintiffs, remedies exist under existing statute and court procedures and it is up to the Bench or the affected parties to invoke those remedies. If a factual mistake has been made, or wrong information conveyed, no media house can claim immunity, on the basis of press freedom, from the ordinary process of law. If the error is innocent, and the Court is convinced this is so, the matter might rest with a simple apology; if, on the other hand, mala fide is suspected, the Court is empowered to take punitive action.

Given these remedies, none of which are necessarily inconsistent with constitutionally guaranteed press freedoms, it would seem unnecessary to impose a regime of “prior restraint” or even “temporary postponement” via guidelines on what aspects of court proceedings may be reported. Indeed, such a regime would have a chilling effect on media coverage of the Supreme Court and, eventually, the entire judiciary, at great cost to the general interest of society.

It is true that the Law Commission has recommended ‘postponement' of reportage citing jurisdictions such as Australia and Canada, where jury trials are sought to be insulated from public opinion. But in India, there is no trial by jury; and surely the judicial independence of judges — and their vulnerability to what appears in the media — cannot be the same as that of the average citizen-juror.

Of course, it is a matter of concern that sections of the print and visual media sometimes report police accounts of crimes without the necessary qualifiers demonstrating that the truth of the matter is not known. Worse still, these accounts are often attributed not to named officers but to ‘anonymous' police sources. An individual may thus stand “convicted” in the eyes of the public without any recourse to corrective measures. The bald reporting of a petitioner's claims or accusations can also mislead the public if presented as fact. These are real problems that require remedying. However, a true reading of Article 19 of the Constitution requires that the press regulate itself in this regard and strive, as a collective, for the highest ethical standards. Given the public's growing disenchantment with the media in the wake of various scandals, it is also in the media's interest to heal itself. This is a subject journalists are pursuing at multiple levels within the print media and there is also the oversight of the Press Council of India, which, under the chairmanship of Justice Markandey Katju, has re-energised itself. Imposing further judicial restrictions on democratic access to information concerning Supreme Court proceedings would amount to overkill.

Undermines people's right

My apprehension is that if the Supreme Court, which sits at the apex of the third branch of government, were to insist that reporters covering it abide by guidelines that the Court itself lays down, this would open the door to the other branches of government — that too, at all levels — making similar demands on the media as a precondition to gaining access to Parliament and Legislatures, Ministries, public institutions, hospitals, universities, etc. The natural instinct of most politicians and bureaucrats is to hide or suppress information on one pretext or another. The adoption of media guidelines by the Supreme Court would embolden them, further undermining the public's right to be informed. Recently, for example, a Karnataka Assembly committee tasked with investigating the scandal involving Ministers caught on camera watching pornographic material sought to blame the media for recording what the Ministers were doing. Shouldn't you be focusing just on the official Assembly proceedings, journalists were asked.

Courts in open societies elsewhere, particularly in North America, may have had occasion to be upset with media coverage of cases but they have not sought to frame guidelines of the sort being envisaged by the Supreme Court of India. The only etiquette rules courts in the United States seem to focus on are the circumstances under which journalists may use recording devices and cameras. Today, the debate on this issue in the United States is focused on whether journalists should be allowed to carry mobile devices into the Supreme Court so that they can “tweet” live from inside without having to come outside the courtroom. The court forbids this. At issue, however, is not the right of the journalist to provide near-live coverage of a hearing, should she so desire but only whether she can use the communication technology on court premises.

Of course, journalists and editors should be honest in accepting that the reason the Supreme Court — and the government — want to step in is because the media act as if they are not accountable to anyone. Aggrieved citizens have no forum they can approach for an effective and swift remedy in the event of being injured by misreporting. Unless newspapers and television stations get serious about self-regulation, the pressure of external regulation will always remain.

Respected Sir,
You, i and various learned people know that media is the fourth pillar
of any state. and in India, judiciary watches over legislature,
legislature watches the executive and executive has a little bit of
control on the judiciary (Allocation, appointment, etc). So, why shouldn't the media be controlled by another pillar. and it is true
that just like executive, there is no remedy for any justice against
media house. Even defamation cases are not effective against Article
19.
I ask for how long media will hide under the garb of Article 19?
A fun fact: Just like red beacon cars, people these days flaunt the
'press' stickers on their car and bully law enforcement officials.

from:  vidhan vyas
Posted on: Jun 12, 2012 at 17:35 IST

To cite one example of undue delay in judiciary, this is what has been reported in a newspaer which is a fact regarding the status of dispropritionate assets case against the family of the ruling party in UP. The CBI filed another application on December 6, 2008, seeking permission to withdraw its October 26, 2007 plea. The logic behind the flip-flop - a grave error in the calculation of assets had led the agency to believe that the SP chief and his family members had amassed wealth disproportionate to their known sources of income. A bench of Justices Altamas Kabir and Cyriac Joseph reserved orders on the plea. After three years, the order is yet to come and Justice Joseph has retired. This would warrant a fresh hearing in the case and possible fresh trouble.

Will the Supreme Court explain? Should it not be reported and highlighted?

from:  vc sekar
Posted on: Mar 31, 2012 at 14:39 IST

Congratulations on writing a mature and responsible piece on a sensitive
issue.

from:  Dinesh Sinha
Posted on: Mar 31, 2012 at 14:08 IST

As his his strength, Siddharth Varadarajan has given a balanced picture on the issue of r5eorting on Court proceedings. One must remember that The Hindu has never proven guilty of such reporting. Its is the electronic media which try to pick a phrase or sentence and create a sensational headline. A veteran journalist like Mr B.G Verghese has commented once in a lecture that if the media do not adopt self regulation, than an external agency may become inevitable. Since the US has been quoted by the writer.
I had visited the US many decades ago as the guest of my friend who was the Press Counselor in our embassy, and he told me that in a conversation with senior members of the foreign dept, they admitted that the US press would have to get clearance before they printed anything on foreign issues as it may create problems between countries. It was a virtual censorship on such matters.
The recent 'leaks' to the Press may require us to exercise some restraint on national security matters.

from:  S.N.Iyer
Posted on: Mar 31, 2012 at 10:37 IST

It seems that the media is coming under attack from all quarters (the
judiciary; Mamata Banerjee in West Bengal), and although it would be
unfair to see these two isolated incidents as the beginning of a
trend, I am sure that if the media does not put its house in order
(read win back the people's confidence), it might not have the
public's support when the other three pillars of democracy do really
crack down on it. While the guarantees provided in the Constitution
might shield the media, a blind race for sensation over sense (based
solely on flawed and challenged TRP and print Readership systems) is
leading the Indian media down a dangerous path.

from:  Mrigank Dhaniwala
Posted on: Mar 31, 2012 at 00:42 IST

sir
why all important judgement s are given on the last day before retirement

from:  gullu
Posted on: Mar 30, 2012 at 23:29 IST

only people who have something to hide will want to gag the press

from:  vijay
Posted on: Mar 30, 2012 at 20:43 IST

Good reporting at right time. Supreme Court should immediately stop discussing the idea of restraining media and should devote time for other matter of public importance. A lot of people/litigaants are suffering because of perversity shown by judges including supreme court judges who throw the SLPs etc. even without hearing the councel. Moreover each and every case can not be discussed in media. Judges are making misuse of discretionary power and most of the wrong decisions are given on the basis of suspicion only discarding evidence on record and due to perversity decisions remained unchanged. Relief is provided on pick and choose basis. Aam adami can not pay fee of best advocates which is in lacs/crores. Each and every Aam admi even can not approach media. When there is acute shortage of good judges and advocates gagging media shows perversity on the part of Supreme Court.

from:  rk
Posted on: Mar 30, 2012 at 18:38 IST

It's for lawyers to look after law and for journalists to look after
reporting...Freedom of expression is the basic and foremost right,
curtailing it; is going against the fundamentals of Democracy. Advocate
of such a proposal should not forget that the power of media in a nation
like India is immense. The article rightly establishes and talks about
the power of Fourth Estate of the nation.

from:  Shanvi
Posted on: Mar 30, 2012 at 16:54 IST

Media has turned into a circus. Most TV media channels have become more like comedy channels which wrap a news in jokes and songs made make it so cheap and vulgar that the essence of the news is lost. There is no honour or integrity in media. In fact it is the most corrupt branch of democracy which is very bad since it can sway public opinion instantly and that too on a large scale. There are so many cases of media persons blackmailing politicians, police officers, bureaucrats, etc and extorting money. Of course, only few of these come to light and are just reported as small side columns. Media has failed its self-regulatory tasks. Be critical about the role of media in screwing up cases such as that of Arushi. Recent coal scam report was nothing short of irresponsible. For that matter, many articles in the editorials of The Hindu have been lopsided and I have commented the same on them. Regulation should be taken in right stride. If its unreasonable then we can fight it.

from:  Anoop
Posted on: Mar 30, 2012 at 16:32 IST

Framing guidelines to press is curbing it from liberty to present the ongoing case histories without any fear of protocols. Journalism considered as fourth pillar of government and only mode to supply information to common people in their understanding level to update themselves and develop perception on various aspects of legal institution. Long back debate is going on video proceedings of court cases to achieve highest accountability and transparency in delivering justice. But what happened it god only knows. In the knowledge society and more youths familiar with latest gadgets to access their regular updates government should consider camera kind of proceedings like how we gets visuals of parliamentary and legislature sessions proceedings. Hope apex court will not curb journalism liberty on grounds few bitter incidents (if it happened or perceived so).

from:  RAGHAVENDRA R PAWAR
Posted on: Mar 30, 2012 at 14:31 IST

When during Falklands incident, Margaret Thatcher had criticized BBC for
its reporting of the happenings of the battle. BBC Chief had, if my
memory serves right, asked her to concentrate on governing and leave the
reporting to BBC. I think it is appropriate also in Indian context of
today.

from:  mvrangaraajan
Posted on: Mar 30, 2012 at 13:10 IST

Sir, you mention how the media has been helpful in bringing the legal proceedings to the public and to be analysed, and help the public understand the judiciary better. But sir, the cases mentioned are old, it was a time when the most important asset for a media house was its integrity. You cannot cite cases of the last 10 years when the media has clarified all the doubts of a particular case, if anything, media has only complicated cases and nowadays it has become fashionable to indirectly give opinions of judgements rather than acting a medium to announce the judgement. Pick any news channel, so called debates are mere front to portray political agenda .... the defamation of Vinod rai, team Anna, now the general are all, acts directed by the media. There is no guarantee that it will not extend to the judiciary. The kind of integrity and freedom you are talking about does not exist in the media any more, especially TV. And court judgements are up for debates. They are to be reported.

from:  Vijay
Posted on: Mar 30, 2012 at 11:25 IST

Court should as a matter of grave concern should look within for the maladies of delayed justice. I fel that there is no accountability in judicial system and top of it court gets mollified for allegedly wrong reporting. As Siddarth says there is a mechanisim in place to address those maladies and may be court is aware of its own delivery system and wants regulations in reporting. The height of such demands is requisite qualification in reporting. Instead of rooting out the melaise the court is treating the symptoms. As rightly said by Siddarth it shall take no time to see the other institutions like Parliament, legislature and n number of departments to restrict media to report. The courts have become impatient of their own pendency of cases and also more number of PIL and hence have become finicky at the slightest misreporting. But that is far from done we have to prevent the falling of pillars of freedom of press. It is only quality India is so far, is ahead of all nations.

from:  K RAGHU
Posted on: Mar 30, 2012 at 11:17 IST

Like other organs of democracy in the country,now the judiciary is also determined to curb freedom of expression!It has now become facts that media except few are being controlled by executive,legislature through undeclared censorship,particularly in Bihar.Such elements are for curbing the freedom of expression and press.Exposure of bad judgements,mainly by the SC,have drawn attenion of the masses in the country.Recent judgement on Vodafone case has exposed the Supreme court in rejecting tax authorities plea to realise over Rs 12000 crore from Vodafone!(Detailed in Frontline fortnightly).Plea of business in tax haven countries like Mauritius must not be basis of delivering such judgement ignoring welfare ofmasses inIndia through tax revenue.Matter has come tosuch an extend thatthe son of the present CJ of SC is working as law consultantin a firm,which counselled the Vodafone for court cases (Frontline). Under such condition, judiciary also wants curb on media.-www.kksingh1.blogspot.com

from:  krishn kumar singh
Posted on: Mar 30, 2012 at 10:54 IST

Excellent article which gives a balanced view of the matter. The judiciary does seem to be taking an extreme step which sets a dangerous example and the media does need to control itself. The idea of self regulation of media hasn't really worked till now and it isn't as if the problem has come up only recently.

from:  Sambit
Posted on: Mar 30, 2012 at 10:47 IST

I am a media student and apart from following the news I am very much
interested in the words and the phrases the channels and the newspapers
use. I am completely baffled by the deliberate manufacturing of phrases
and verbiages by news channels especially private Hindi channels. Lets
move beyond The Hindu and BBC and DD. I don't know if dramatizing the news serve these channels any purpose other than gaining some TRP. One of my colleagues one day argued me DD, The Hindu and the BBC don't have emotions but private channels do have. I was quick to revert they (DD, The Hindu, BBC) have emotions but not sensation. Private channels resort to sensation to arouse the ill emotions.
Despite all these lacunae Indian media needs and must enjoy freedom of governing itself by it's own discernment rather than any SC guidelines. The bottom line is that Indian media needs to be self managed rather than regulated by third pillar of democracy.

from:  Ajeet Tiwari
Posted on: Mar 30, 2012 at 09:54 IST

Many thanks for an excellent article. I too feel that there is no need to issue guidelines of this nature and external regulation of the press reporting of court cases is not warranted. In fact, I feel this is a non-issue. Moreover, instances of the media showing wilful disrespect of the judiciary are extermely rare. The jundiciary should ,instead focus on how to expedite the judicial decision making process. Unwarranted delays in decision making are harming the cause of justice.

from:  Pramod Patil
Posted on: Mar 30, 2012 at 06:03 IST

There are lawyers with impressive degrees but sit out with no work as
they are unable to open correct windows for correct justice.I agree with
Siddharth that passion for a win-win justice should not get blocked by
dictates of a degree in law.

from:  Rakesh Manchanda
Posted on: Mar 30, 2012 at 01:39 IST
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