LAW RESOURCE INDIA

Supreme but not infallible

Posted in CONSTITUTION, MEDIA ETHICS, MEDIA ISSUES, MEDIA LAW by NNLRJ INDIA on April 14, 2012

Supreme Court of India

NIKHIL KANEKAL IN THE MINT

Constitutional battles are usually delicious if you’re a geeky spectator of parliamentarians, policy wonks and jurists. It’s not fun to be one of the embattled sides in an unfair fight.

Journalists like to believe…that all constitutional rights depend on the right to know and the right to know depends on a free press”—Benjamin C. Bradlee, editor of The Washington Post, 2 June 1974. Constitutional battles are usually delicious if you’re a geeky spectator of parliamentarians, policy wonks and jurists. It’s not fun to be one of the embattled sides in an unfair fight.

The battle is unfair because the media is being forced to fight against the judiciary on the latter’s turf. A constitutional bench of five judges in the Supreme Court of India has set out to create a framework for the press to report on the judiciary and its proceedings. The press, unlike Parliament or the executive, has no further remedy once it gets tied down by the Supreme Court. Through Indian constitutional history, the court has been the custodian of free speech and, indirectly, of an uncurtailed and robust press. As it stands, the protector is threatening to limit our rights. Given that the court’s verdict is bound to affect the way people like me carry out our trade, I’m not pleased about the scenario in the least, especially since so much that needs to be said on our behalf is not even coming before the bench.

Yes, journalists are being represented in the case—Rajeev Dhavan has argued for the Editors’ Guild of India and the Forum for Media Professionals, Anil Divan represented The Hindu and Prashant Bhushan argued for Siddharth Varadarajan, editor of The Hindu. Other bodies such as the self-regulatory body for 46 television channels, News Broadcasters Association, the Indian Newspapers Society and the Press Council of India are being heard by the court.

I don’t blame the judges for not understanding the nuances involving journalistic craft. They are judges, not journalists. If it were so easy to understand how reporters, editors and newsrooms worked, there would be no such confrontation between the two sides. And the same is true of the media—few people in newsrooms really understand how the judiciary works.

The language of both the professions also causes mutual tension. To a journalist sitting on a newsdesk, the words “suit” and “petition” are interchangeable, and a headline writer is more likely to use the former because it fits in a smaller space. To lawyers and judges, the gulf between a judge’s quote in a news story suffixed with “said the judge” and “observed the court” is massive. The former might well be an order or directive, while the latter could merely form part of the debate between the bar and the bench. After all, judges must throw searching questions at lawyers in order to properly excavate the points of dispute. The line of questioning, while it is a good indication, doesn’t necessarily mean that the court will eventually rule in that direction.

If you read multiple newspaper reports of the same court case and compare them, they might seem like accounts from different hearings. This is because daily hearings go on for hours, more so in appellate courts. A journalist will have only a few hundred words, or a few minutes of airtime, to tell a story. Obviously the newsiest details must make it to the top—the inverted pyramid rule. And this is not usually the most crucial legal argument being propounded in a case.

Eventually, lawyers think court reporters have done a bad job. The challenge is to succinctly summarize the proceedings. Different newspapers and television channels have varying styles of presenting news.

To most journalists, especially those who don’t normally report court-related news, when a lawyer opens his mouth, all that comes out is legalese.

To be sure, the judges may decide after the hearings are completed not to do anything that may be seen to be muzzling press freedom. The Supreme Court has also clarified that the ongoing constitutional bench hearings dealing with media coverage of sub judice cases will be restricted to questions of law related only to this aspect.

But we must ask the questions since it is germane to the arguments before the court: Is the Supreme Court’s constitutional bench the right forum to resolve bad journalism that emanates from our courts? Do the judges and lawyers appearing before them have the necessary expertise to deal with the myriad issues at hand, especially if they are not of a litigious nature? Does the court have the power to tell the media how it might report judicial proceedings?

What’s happening isn’t new. There have been similar breakdowns between the courts and the press elsewhere.

In March 1975, the top jurists, lawyers, editors, reporters, government officials and other stakeholders in the US came together in what has come to be known as the Washington Conference. Both sides “tested the high ground of principle against the erosive force of real world legal and journalistic practice, agreed to disagree, sometimes even agreed, and learned more about each other than was previously known,” reads a brief preview to the discussions at the conference. Jurists and journalists sat together and while mutually devising solutions, respected each other’s domain.

In 2009, a committee of judges and journalists in the UK decided how reportage would be conducted in the criminal courts.

Dhavan has already submitted to the Indian Supreme Court that a similar joint committee of members from the press and the judiciary would be the best way out of the woods we now find ourselves in. After all, there is no defending bad journalism.

Respond to this column at nikhil.k@livemint.com

NIKHIL KANEKAL IN THE MINT

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