Blind to what, Your Honour?

JUSTICEINDIRA JAISINGH IN THE TIMES OF INDIA

Of all the promises made in the Constitution, the most important are the promises of the ‘right to life’, the ‘right to dignity’, the ‘right to personal liberty’ and the ‘right to bodily integrity and health’. However these promises are yet to be redeemed for women. Rape and other forms of sexual assault,domestic violence,dowry death and honour killings — the most brazen violation of these rights — are a real and daily danger for most women.

The cry that has been reverberating in the streets of the capital — and across the country — from a new and younger generation of citizens is: “We want justice”. It is addressed to us judges and lawyers whose primary responsibility is to protect the rights of the people. The women of this country are no longer willing to tolerate the unconscionable delays in the delivery of justice. It is the sacred duty of judges to prevent violence against women in the home; at the work place and on the streets and hold the perpetrators accountable. What is it that stops courts from securing justice for women? Why has the law not been able to convict the accused when it comes to crime against women? The situation is best summed up by a famous Orwellian quote—’ to see what is in front of one’s nose needs a constant struggle’.

To see the lack of judicial will to get justice for victims of gender-based violence, as stemming from a deeply entrenched prejudice and misogyny in the justice delivery system, including the courts and their judges, is an exercise demanding a constant struggle. It is so much in front of our noses that we, women and men included, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements.

This is a part of the Indian reality; from the private sphere of the ‘home’ to the public space like places of work; from the open streets to the corridors of courts playing out in the theatres of justice. Today, the belief in equality is not sincerely held at all. On the contrary, the social system, including the judicial system, is built on a hierarchy along caste and gender lines.

It is no secret that violence against women stems from the deeply unequal relationship between the two sexes in private and public life. It is also no secret that this misogyny is deeply rooted in our society, including within the system of administration of justicefrom investigation to trial, to judgment. A high court judge in Orissa in his judgement once famously held, that it was not possible for a man, acting alone, to rape a woman in good health. There you have it, the distinction between “legitimate” rape and ” illegitimate” rape (to borrow from the infamous comment by Todd Akin) coming from a high court judge.

This is the same thing you hear so often from judges that “women are misusing the law.” They decide what is the legitimate use of the law for women, based on a deeply sexist view of how a woman should behave; what she should desire and how much violence she should tolerate. A casual glance at the kinds of questions a woman is asked in any prosecution of gender- based violence or a reading of judgments of the court will reaffirm this view. On one occasion when a woman lawyer asked for an adjournment, a district judge said, ” I know how you women lawyers make it”. He was rewarded by being appointed to the high court.

Sexual violence against women is unique as it begins in the home and moves out to public places. The problem begins with the assumed consent that women give to sexual intercourse within a marriage. Rape by a man of his wife without her consent is not an offence. Since this is a settled norm, it matters little whether forcible sexual intercourse is with the wife or a stranger on the street. With this accepted culture of rape within marriage standing tall, we have little hope of changing the culture of violence against women anywhere. The assumed consent of a woman to sexual intercourse becomes ingrained in the psyche of a man — as a husband, a son, a brother and this psyche continues into public spaces. Thus it is imperative to recognise that non-consensual sexual intercourse is unacceptable regardless of whether it is with a wife or a stranger, if we want sexual violence against women to stop. A legal culture that creates ‘legitimate and ‘illegitimate’ violence needs to change.

It is heartening to see for the first time, a large number of men on the streets protesting against sexual abuse of women. It is a new generation which brings hope that the tendency for violence against women is about to end as men of future generations will not tolerate such violence.

Lack of adequate number of judges or excessive workload is no longer an acceptable excuse to the women of this country for delaying judicial decisions. They know that it is the abuse of the process of law by vested interests and the utter indifference to women who have been sexually abused, that cause delays, not lack of infrastructure. An approximately 40% increase in the number of judges between 2005 and 2012, has not produced a corresponding decline in the pendency of cases. Justice does not reside in the brick and mortar courtrooms but in the heart and soul of judges and lawyers who represent victims of injustice. Any judge worth the name knows how to prevent delays and an abuse of the process of law by the rich and the famous.

The first duty of judges is to give cases of sexual assault priority and deal with them expeditiously with zero tolerance for delay. The demand for fast track courts is a metaphor for the intolerance of a dysfunctional legal system. While dedicated courts may go some way in dealing with the issue of delays, they will have to be accompanied by support structures, which enable a fair investigation and prosecution.

Women are conspicuous by their absence from the courts as lawyers and as judges. On the other hand, our law schools have at least 50% women students. Yet due to the patriarchy embedded in the judiciary and the legal system, the number of women lawyers and judges is negligible. Even those who manage to penetrate the highly patriarchal framework are discriminated against in terms of appointments, designation as seniors and promotions. Women are constantly under the microscope being pushed to prove themselves while male lawyers need pass no test of competence. The old boys network effectively keeps women out of the span of all zones of influence.

All talk of increasing the penalty for rapists to death is hollow. As the law stands today, a m a n fo u n d guilty of rape can be given a life sentence, And yet in my entire career as a lawyer spanning over 40 years, I have yet to see a single case in which a life sentence has been meted out to a rapist, what then to talk of the death penalty! This calls for urgent action plan by the Chief Justice of India and the chief justices of all high courts to raise as fast as possible the number of women judges in our courts. A few years ago, a woman who I represented in a classic case of sexual harassment, once asked me why her appeal was not being listed before a woman judge in the Supreme Court. My answer was simple, “because there is no woman judge in the Supreme Court.” At this she expressed her amazement and asked, if the Supreme Court could mandate that the chairperson of a sexual harassment committee which was to be set up by employers must be a woman, how come that law does not apply to the court itself ? I had no answer.

A critical mass of women in the judicial system and in the prosecution will inspire confidence in the system for women. The world over, this is known to happen. Women today have no stake in the judicial system and this is reflected in the cry “We want justice”.

A demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws. Accountability of the police must start with a complaints procedure within the police service itself where a complaint can be lodged for non-performance of duties. A clear command responsibility must be articulated within this mechanism so that in case of non-performance of duties by a junior, the senior officer is held liable. When a pattern of non-performance emerges, leading to a permanent sense of insecurity in which women live, the accountability must be that of the head of the police, and of the political establishment. Confidence in the administration can only be restored by measurable action against people in positions of power.

The judiciary has long been a selfregulating, self- appointing institution. We need a transparent method of appointment of judges where the antecedents of the proposed appointee can be publicly scrutinised. Accountability of the legal system must carry with it, accountability of judges. We need an official mechanism for monitoring the performance of the judiciary to check how content of their judgements meet the constitutional goals of equality. We need independent special rapporteurs drawn from civil society to report directly to Parliament on the performance of the legal system, the judicial system and the police system and violence against women.

It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. The language of the law must be sanitized of all its male chauvinist content. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgements or during the course of arguments in court. Accountability starts at the top with the Supreme Court, what a judge of the Supreme Court thinks and says today, will be said and done by the 17,000 subordinate court judges who deliver justice under the supervision of the high courts.

We need a protocol on how judges ought to behave with women in courts and how they should address women’s issues in their judgements. Gender sensitive language must reflect in judgements dealing with women. This is not a matter of form but of substance. Changing culture and mindsets often requires language to change and rules and regulations, which reflect the change and do not permit a fall from standards. This is the time when the Chief Justice of India must rise to the occasion and speak to the nation and inform us what will be done to restore the confidence of the people in the justice system. Besides his role as a judge, he has a role as the head of the judiciary responsible for the administration of the justice.

The single most important statement we would like to hear from him, is that discrimination against women by judges will not be tolerated; the judiciary will have to exhibit and demonstrate zero tolerance of violence against women in the home, and on the streets.

The goal of law is to sustain life not support its destruction. This is what the 23-year-old was trying to tell us, before she died. “I want to live,” she said, not die of shame. She changed the way society looks at rape — from blaming the victim to focusing on the rapist. All law reform must move in that direction, asking how we can build a new life-sustaining legal culture, a more equal culture, with justice for all. That is the question we must address — with or — without a special session of Parliament.

The writer is Additional Solicitor General of India

INDIRA JAISINGH IN THE TIMES OF INDIA

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The Leveson Inquiry – A Report into the Culture, Practices and Ethics of the Press

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Remarks by Lord Justice Leveson: Thursday 29 November 2012

For the seventh time in less than 70 years, there is a new report, commissioned by the Government, dealing with concerns about the press. It was sparked by public revulsion about a single act – the hacking of the mobile phone of a murdered teenager. From that beginning, it has expanded to cover the culture, practices and ethics of the press and its conduct in relation to the public, the police and politicians.

 This Inquiry has been the most concentrated look at the press this country has ever seen. In nearly nine months of oral hearings, 337 witnesses gave evidence in person and the statements of nearly 300 others were read into the record. I am grateful to all who have contributed. The Report will now be published on the Inquiry website which also carries the statements, exhibits and both transcripts and video coverage of the evidence.

 For over 40 years, as a barrister and a judge, I have watched the press in action, day after day, in the courts in which I have practised. I know how vital the press is – all of it – as guardian of the interests of the public, as a critical witness to events, as the standard bearer for those who have no-one else to speak up for them. Nothing in the evidence I have heard or read has changed that view. The press, operating freely and in the public interest, is one of the true safeguards of our democracy. As a result, it holds a privileged and powerful place in our society.

But this power and influence carries with it responsibilities to the public interest in whose name it exercises these privileges. Unfortunately, as the evidence has shown beyond doubt, on too many occasions, those responsibilities (along with the Editors’ Code which the press wrote and promoted) have simply been ignored. This has damaged the public interest, caused real hardship and, also on occasion, wreaked havoc in the lives of innocent people.

 What the press do and say is no ordinary exercise of free speech. It operates very differently from blogs on the internet and other social media such as Twitter. Its impact is uniquely powerful. A free press in a democracy holds power to account. But, with a few honourable exceptions, the UK press has not performed that vital role in the case of its own power.

None of this, however, is to conclude that press freedom in Britain, hard won over 300 years ago, should be jeopardised. On the contrary, it should not. I remain firmly of the belief that the British press – I repeat, all of it, – serves the country very well for the vast majority of the time. There are truly countless examples of great journalism, great investigations and great campaigns. Not that it is necessary or appropriate for the press always to be pursuing serious stories for it to be working in the public interest. Some of its most important functions are to inform, educate and entertain and, when doing so, to be irreverent, unruly and opinionated.

But none of that means that the press is beyond challenge. I know of no organised profession, industry or trade in which the serious failings of the few are overlooked or ignored because of the good done by the many. Were it so in any other case, the press would be the very first to expose such practices.

The purpose of this Inquiry has been two fold. First, it has been to do just that – to expose precisely what has been happening. Secondly, it is to make recommendations for change. As to change, almost everyone accepts that the Press Complaints Commission has failed in the task, if indeed it ever saw itself as having such a task, of keeping the press to its responsibilities to the public generally and to the individuals unfairly damaged.

There must be change. But let me say this very clearly. Not a single witness proposed that either Government or politicians all of whom the press hold to account, should be involved in the regulation of the press. Neither would I make any such proposal.

 Let me deal very briefly with the idea that this Inquiry might not have been necessary if the criminal law had simply operated more effectively. There were errors in aspects of the way the phone hacking investigation was managed in 2006 and in relation to the failure to undertake later reviews, and there are some problems that need to be fixed with the criminal and civil laws and also in relation to data protection. In particular, exemplary damages should be available for all media torts. In the end, however, law enforcement can never be the whole answer. As we have seen, that is because the law-breaking in this area is typically hidden, with the victims generally unaware of what has happened. Even if it were possible – and it is certainly not desirable – putting a policeman in every newsroom is no sort of answer.

In any event, the powers of law enforcement are significantly limited because of the privileges that the law provides to the press, including for the protection of its sources. That is specifically in order that it can perform its role in the public interest. What is needed therefore is a genuinely independent and effective system of selfregulation of standards, with obligations to the public interest. At the very start of the Inquiry and throughout I have encouraged the industry to work together to find a mechanism for independent self-regulation that would work for them and would work for the public.

Lord Hunt of Wirral and Lord Black of Brentwood stepped forward to lead the effort. They put forward the idea of a model based on contractual obligations among press organisations. On Monday afternoon of this week, with the Report being printed, I received two separate submissions from within the press telling me that most of the industry was now prepared to sign self-regulation contracts.

The first submission recognises the possibility of improvements to the model proposed so far. The second expresses confidence that the model proposed by Lord Black and Lord Hunt addresses the criticisms made at the Inquiry. Unfortunately, however, although this model is an improvement on the PCC, in my view, it does not come close to delivering, in the words of the submission itself, “regulation that is itself, genuinely, free and independent both of the industry it regulates and of political control”. Any model with editors on the main Board is simply not independent of the industry to anything approaching the degree required to warrant public confidence. It is still the industry marking its own homework. Nor is the model proposed stable or robust for the longer-term future.

The press needs to establish a new regulatory body which is truly independent of industry leaders and of Government and politicians. It must promote high standards of journalism, and protect both the public interest and the rights and liberties of individuals. It should set and enforce standards, hear individual complaints against its members and provide a fair, quick and inexpensive arbitration service to deal with civil law claims.

The Chair and the other members of the body must be independent and appointed by a fair and open process. It must comprise a majority of members who are independent of the press. It should not include any serving editor or politician. That can be readily achieved by an appointments panel which could itself include a current editor but with a substantial majority demonstrably independent of the press and of politicians. In the Report, I explain who might be involved.

Although I make some recommendations in this area, it is absolutely not my role to seek to establish a new press standards code or to decide how an independent selfregulatory, body would go about its business. As to a standards code, I recommend the involvement of an industry committee (which could involve serving editors).

That committee would advise the regulatory body and there should be a process of public consultation. In my report, I also address the need for incentives to be put in place to encourage all in the industry to sign up to this new regulatory system. Guaranteed independence, long-term stability, and genuine benefits for the industry, cannot be realised without legislation. So much misleading speculation and misinformation has been spread about the prospect of new legislation that I need to make a few things very clear. I am proposing it only for the narrow purpose of recognising a new independent self-regulatory system. It is important to be clear what this legislation would not do; it would not establish a body to regulate the press; that is for the press itself to do.

So what would this legislation achieve? Three things. It would enshrine, for the first time, a legal duty on the Government to protect the freedom of the press. Secondly, it would provide an independent process to recognise the new self-regulatory body and thereby reassure the public of its independence and efficacy. Thirdly, it would provide new and tangible benefits for the press. As members of the body, newspapers could show that they act in good faith and have sought to comply with  standards based on the public interest. Decisions of the new recognised regulator could create precedents which could, in turn, help a court in civil actions. In addition, the existence of a formally recognised, free arbitration system is likely to provide powerful arguments as to costs should a claimant decide not to use that free system or, conversely, if a newspaper is not a member. In my view, the benefits of membership should be obvious to all.

This is not, and cannot reasonably or fairly be characterised as, statutory regulation of the press. I am proposing independent regulation of the press organised by the press itself with a statutory process to support press freedom, provide stability and guarantee for the public that this new body is independent and effective. I firmly believe that these recommendations for self-regulation are in the best interests of the public and the press; they have not been influenced by any political or other agenda but solely by what I believe is fair and right for everyone. What is more, given the public interest role of which the press is rightly proud, I do not think that either the victims I have heard from, or the public in general, would accept anything less.

Turning to the police, the relationship between police and public is vital to the essential requirements of policing by consent and the press have a very important part to play in its promotion. Although there has been a limit on how far it has been possible for the Inquiry to go because of the need not to prejudice any ongoing investigations, whatever Operation Elveden (concerning corrupt payments to officials) might reveal, I have not seen any evidence to suggest that corruption by the press is a widespread problem in relation to the police. However, while broadly endorsing the approach of recent reviews into police governance, I have identified a number of issues that I recommend should be addressed.

As for the press and politicians, the overwhelming evidence is that relations on a day-to-day basis are in robust good health and performing the vital public interest functions of a free press in a vigorous democracy; everyday interactions between journalists and politicians cause no concern. But senior politicians across the spectrum have accepted that in a number of respects the relationship between politics and the press has been ‘too close’. I agree.

What I am concerned about is a particular kind of lobbying, conducted out of the public eye, through the relationships of policy makers and those in the media who stand to gain or lose from the policy being considered. That gives rise to the understandable perception that the power of the press to affect political fortunes may be used to influence that policy. This, in turn, undermines public trust and confidence in decisions on media matters being taken genuinely in the public interest. This is a long-standing issue, and one which, over the years and across the political spectrum, has repeatedly resulted in opportunities being missed to respond appropriately to legitimate public concern about press behaviour.

The press is, of course, entitled to lobby in its own interests, whether editorially or through the senior political access it enjoys. It is, however, the responsibility of the politicians to ensure that the decisions that are taken are seen to be based on the public interest as a whole. This means the extent to which they are lobbied by the press should be open and transparent; and that the public should therefore have a basic understanding of the process. In this limited area, I have recommended that consideration should be given to a number of steps to create greater transparency about these influential relationships at the top of politics and the media and so address the issue of public perception and hence trust and confidence. A good start would be for those steps towards greater transparency to be taken in relation to press lobbying about this Report.

Similar considerations apply to the role of Ministers when taking decisions about the public interest in relation to media ownership. I believe that democratically accountable Ministers are the right people to make these decisions. However, I have made recommendations as to how the process can be made much more transparent to ensure that in future there should be no risk even of the perception of bias. It is essential that the UK retains a plural media with a genuine diversity of ownership, approach and perspective. In my opinion, the competition authorities should have the means to keep levels of plurality under review and be equipped with a full range of remedies to deal with concerns.

I must now place on record my thanks to all those who participated in the Inquiry.These are the assessors who have advised in areas of their expertise and who were selected by the Government with the support of the Leader of the Opposition, in the Prime Minister’s words “for their complete independence from all interested parties”; Robert Jay and counsel, for collating and presenting such a massive volume of evidence so efficiently; everyone in the Inquiry team who has worked so hard to achieve so much in such limited time; the core participants and their lawyers; and, most of all, the public who have provided evidence, views and submissions.

As I said at the beginning, this is the seventh time in less than 70 years that these issues have been addressed. No-one can think it makes any sense to contemplate an eighth. I hope that my recommendations will be treated in exactly the same cross party spirit which led to the setting up of the Inquiry in the first place and will lead to a cross party response. I believe that the Report can and must speak for itself; to that end, I will be making no further comment. Nobody will be speaking for me about its contents either now or in the future. The ball moves back into the politicians’ court: they must now decide who guards the guardians.

The Report has been published at http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780.asp

The Executive Summary has been published at http://www.official-documents.gov.uk/document/hc1213/hc07/0779/0779.asp

A copy of Lord Justice Leveson’s statement has been published at Remarks by Lord Justice Leveson – 29 November 2012 (pdf, 36KB)

Wake up and smell the ink

Justice Markandey Katju  – ARTICLE PUBLISHED IN THE HINDU

The Leveson report on the British press should jolt the Indian media into acting against ills such as paid news, and focus on being an agent of progressive social change

After an inquiry lasting a year, Lord Justice Leveson has delivered a damning verdict on the decades of “outrageous” behaviour by the media. If anything, this verdict would apply in even greater force to a large section (not all) of the Indian media which has since long been shamelessly indulging in malpractices — paid news, the Radia tapes, and even blackmail and extortion. The Zee exposure is only the tip of an iceberg. Lord Justice Leveson in his report has said that malpractices in the media are not aberrations but common practices. This comment applies equally to a large section of the Indian media, though it must also be said that there are many upright and excellent journalists in India.

Lord Justice Leveson has said that: a section of the media acted as if its own ethical code simply did not exist; it “wreaked havoc with the lives of innocent people”; there has been “reckless disregard for accuracy.”

Paid news

Everyone knows that paid news is rampant in India, but when the two-member committee (of Paranjoy Guha Thakurta and K. Sreenivas Reddy) set up by the Press Council submitted a damning 72-page report, it was shamelessly sought to be suppressed at the instance of some members of the Press Council (before I became its Chairman). The first thing I did on becoming Chairman was to place the report on the Press Council’s website.

Madhu Kishwar, a senior journalist, said on Rajya Sabha TV that many media people can be bribed and manipulated. The huge salaries which many top media people get (some are said to get packages worth several crores annually, often linked with TRP ratings) enable such media people to lead fancy lifestyles with huge cars, houses and bank balances, thereby making many of them (not all) docile hirelings of their corporate masters.

Need for regulator

Lord Justice Leveson has called for the setting up of an independent statutory regulator of the media, which is precisely what I have been pleading for since long. However I have clarified that:

1. I want regulation, not control, of the media, the difference between the two being that whereas in control there is no freedom, in regulation there is freedom but subject to reasonable restrictions in the public interest.

2. This regulation should not be by the government or any individual but by an independent statutory authority (which can be called the Media Council) and

3. Most of the members of the proposed Media Council (which should have representatives from the broadcast media also on it) should be mediapersons, not appointed by the government but elected by media organisations.

This media council should have punitive powers including the power to suspend licences and impose fines, but such punishment should be given by the majority decision of the Media Council, and not by the chairman alone. This is really a form of self-regulation and judgment by one’s peers (as is done by the Bar Council).

Some mediapersons have quoted Jefferson who said that if he had to choose between a government without a free press or a free press without a government, he would choose the latter. While I have great respect for Jefferson, I regret I cannot accept this statement, for two reasons. First, if there is no government there would be anarchy, and a free press cannot exist in an anarchy.

Second, in a democracy, the media must help people in their struggle for a better life. Therefore, freedom of the media by itself has no value. It has value if it helps people secure better lives. If the media uses its freedom to perpetuate poverty and other social evils like casteism, communalism and superstitions by propagating backward ideas, should we permit such freedom? Certainly not. Therefore, freedom of the media is a good thing only if it helps to raise the standard of living of the masses, and this it can do by spreading rational and scientific ideas and combating backward and feudal ideas like casteism and communalism.

Voice of the future

Historically, the media arose in western Europe as an organ of the people against feudal oppression in the 17th and 18th centuries. At that time, all the organs of power were in the hands of feudal authorities (kings, aristocrats, etc). Hence the people had to create new organs which could represent their interests. The media (which was then only the print media) was a powerful organ created by the people. In Europe and America it represented the voice of the future, in contrast to the feudal organs which wanted to preserve the status quo. Everyone knows of the great role played by Voltaire, Rousseau, Thomas Paine, John Wilkes and Junius who fought against feudal oppression, and helped greatly in the transformation of feudal Europe to modern Europe.

In my opinion, the Indian media should also play such a role. Today the Indian people are suffering terribly from massive poverty, unemployment, skyrocketing prices, an absence of health care and good education for the masses. The Indian media should help our country abolish these great evils, the way the European media did. Only then will it win the respect of the people.

Some people have misunderstood me and thought that I wish to gag or muzzle the media at the behest of the government. The truth is that I have always been fighting for media freedom, as my track record shows. However, I have also been saying that the media must act responsibly, particularly in a poor country like India.

No freedom can be absolute. Man is a social being, as Aristotle said. Hence freedom cannot go to the extent of damaging society, because in turn, we will be damaging ourselves.

(Justice Markandey Katju is Chairman, Press Council of India.)

ARTICLE PUBLISHED IN THE HINDU