Media Ethics Debate – Justice Markandey Katju clarifies

JUSTICE MARKANDEY KATJU

JUSTICE MARKANDEY KATJU

PUBLISHED IN THE HINDU

Justice Markandey Katju, Chairman, Press Council of India, has issued the following clarification on his critical observations of the Indian media.

I have expressed my views relating to the media in several T.V. interviews I gave as well as in my articles in some newspapers.

However, many people, including many media people, wanted clarification and amplification of some of the issues I had raised. Many media people (including several T.V. channels) wanted interviews with me but I told them that I will not give interviews for some time, since it does not create a good impression if one keeps giving interviews frequently. However, since some controversy appears to have been raised about what I said a clarification is in order.

Today India is passing through a transitional period in our history, the transition being from feudal agricultural society to modern industrial society. This is a very painful and agonizing period in history. The old feudal society is being uprooted and torn apart, but the new modern industrial society has not been fully and firmly established. Old values are crumbling, but new modern values have not yet been put in place. Everything is in flux, in turmoil. What was regarded good yesterday, is regarded bad today, and what was regarded bad is regarded good. As Shakespeare said in Macbeth “Fair is foul and foul is fair”.

If one studies the history of Europe from the 16th to the 19th Centuries, when the transition from feudalism to modern society was taking place, one will know that this transitional period was full of turbulence, turmoil, wars, revolutions, chaos, social churning, and intellectual ferment. It was only after going through this fire that modern society emerged in Europe. India is presently going through that fire. We are going through a very painful period in our country’s history, which, I guess, will last another 15 to 20 years. I wish this transition would take place painlessly and immediately but unfortunately that is not how history functions.

In this transition period the role of ideas, and therefore of the media, becomes extremely important. At a particular historical juncture, ideas become a material force. For instance, the ideas of liberty, equality and fraternity, and of religious freedom (secularism) became powerful material forces during the Age of Enlightenment in Europe and particularly during the American and French Revolutions. In the age of transition in Europe, the media (which was only the print media at that time) played a great, historical role in the transformation of feudal Europe to modern Europe.

Historically, the print medium arose as an organ of the people against feudal oppression. At that time, the established organs of power were all in the hands of the feudal, despotic authorities (kings, aristocrats, etc.). Hence the people had to create new organs which could represent their interests. That is why the print medium became known as the Fourth Estate. In Europe and America it represented the voice of the future, as a contrast to the established feudal organs which wanted to preserve status quo.

Great writers like Voltaire, Rousseau, Thomas Paine, ‘Junius’ (whose real name we yet do not know) played an outstanding role in this connection (see Will Durant’s ‘The Age of Voltaire’ and ‘Rousseau and Revolution’). The Encyclopaedists like Voltaire, Diderot, Helvetius, Holbach etc. created the Age of Reason, which paved the way for a modern Europe. Diderot wrote that “Men will be free when the last king is strangled with the entrails of the last priest”. Voltaire, in his satirical novels ‘Candide’ and ‘Zadig’ lashed out at religious bigotry, superstitions, and irrationalism. Rousseau in his ‘Social Contract’ attacked feudal despotism by propounding the theory of the ‘general will’ (which broadly stands for popular sovereignty). Thomas Paine wrote about the Right of Man, and Junius attacked the corruption of the Ministers of the despotic George III. Dickens criticized the terrible social conditions in 19th Century England. These, and many others, were responsible for creating modern Europe.

In my opinion the Indian media too should play a progressive role similar to the one played by the European media. This it can do by attacking backward and feudal ideas and practices like casteism, communalism, superstitions, oppression of women, etc. and propagating modern rational and scientific ideas, secularism, and tolerance.

At one time a section of our media played a great role in our country. Raja Ram Mohan Roy courageously attacked backward customs like sati, child marriage, purda, etc in his newspapers ‘Miratul Akbhar’ and ‘Sambad Kaumudi’. Nikhil Chakravarty wrote about the horrors of the Bengal Famine of 1943. Munshi Premchand and Sharat Chandra Chattopadhyaya wrote against feudal practices and oppression of women. Saadat Hasan Manto wrote about the horrors of Partition.

When I criticized the Indian media, and particularly the electronic media for not playing such a progressive and socially responsible role, I was furiously attacked by a section of the media for my views. Some even launched a personal attack on me saying that I was an agent of the government.

I could have retaliated back in the same tone by saying that most media persons are agents of the corporates who have hired them, but I refrained from doing so as I did not want to stoop down to their level. When serious issues are raised about the functioning of the media it was expected that those issues would be addressed seriously instead of launching personal attacks on me, or simply dismissing me as ‘irresponsible’ (as one Exalted Person has done).

By criticizing the media I wanted to persuade the media to change its manner of functioning and not that I wanted to destroy it. The Indian media has a historical role to play in the age of transition, and I wanted to remind the media persons of their historical duty to the nation. Instead of taking my criticism in the correct spirit, a veritable diatribe was launched against me by a section of the media, which painted me as some kind of dictatorial monster.

The great Hindi poet Rahim has written:

“Nindak nearey raakhiye

Aangan kuti Chawaye”

The media should regard me as their well wisher. I criticized them because I wanted media persons to give up many of their defects (some of which I had mentioned in my T.V. interviews and articles) and follow the path of honour which the European media was following, and which will give them the respect of the Indian people.

I mentioned that 80% of our countrymen are living in horrible poverty, there is massive unemployment, skyrocketing prices, lack of medical care, education etc. and barbaric social practices like honour killing, dowry death, caste oppression, religious bigotry, etc. Instead of seriously addressing these issues 90% of the coverage of our media goes to entertainment, e.g., lives of film stars, fashion parades, pop music, disco dancing, cricket etc, or showing superstitions like astrology.

No doubt the media should provide some entertainment also to the people, but if 90% of its coverage is devoted to entertainment, and only 10% to all the socio-economic issues put together, then the sense of priorities of the media has gone haywire. The real issues before the people are the socio-economic issues, and the media is seeking to divert their attention to the non issues like film stars, fashion parades, disco, pop, cricket etc. Does a hungry or unemployed man require entertainment, or food and a job? It is because of this lack of a sense of priorities and for showing superstitions, that I criticized the media.

One should not be afraid of criticism, nor should one resent it. People can criticize me as much as they like, I will not resent it, and maybe I will benefit from it. But similarly the media too should not mind if I criticize them. My aim in doing so is to make them better media people. While criticizing, however, fairness requires that one should report the words of one’s opponent accurately, without twisting or distorting them. That was the method used by our philosophers. They would first state the views of their opponent, in what was called as the ‘purvapaksha’. This was done with such accuracy and intellectual honesty that if the opponent were present he could not have stated his views better. Thereafter it was sought to be refuted. In this connection one may read Madhavacharya’s ‘Sarva Darshan Sangrah’ (Madhavacharya was the founder of the Dvait school of Vedanta). The views of the Charvaks (Materialist thinkers), the Buddhists, Jains, etc are stated in the ‘purvapaksha’ with such accuracy that if they were present they could not have put them better.

Unfortunately, this practice is often not followed by our media, and my words were distorted by many, and then I was furiously attacked. To give only two examples: (1) In my interview to Mr. Karan Thapar, I stated that in my opinion the majority of media people are of a poor intellectual level. This statement of mine was twisted and distorted by several persons on T.V. channels who quoted me as saying that all media persons are ‘uneducated’ and ‘illiterate’. I telephoned the lady journalist who anchored one of such T.V. panel discussions and asked her why she had distorted my words. She had begun the panel discussion by saying “Katju called journalists uneducated”. She said she only interpreted what I said. I told her that first she should have quoted my exact words, and then only should she have interpreted them. I would like to clarify this further.

Firstly, I did not make a statement about all media people but only of the majority. There are many media people for whom I have great respect. I had mentioned the name of Mr. P. Sainath, whose name should be written in letters of gold in the history of India journalism (for highlighting farmer’s suicides and other farmers issues). I can name several others. Mr. Paranjoy Guha Thakurta and Mr. Shreenivas Reddy did a commendable job in exposing in detail the scandal of paid news. I also have high respect for Mr. Vinod Mehta, Mr. Vinod Sharma, Mr. N. Ram and many others.

I may also mention that before my interview with Mr. Karan Thanpar I sat for about 10 minutes in his office having a cup of coffee with him. At that time I mentioned the name of Emile Zola to him, and he immediately said ‘J’ Accuse’. That one word made him go up high in my esteem. I earlier did not have a very high opinion of him, but that single word completely changed my opinion, and I realized I was in the presence of a highly educated man.

So I wish to clarify have that I did not paint the entire media with the same brush, but my words were totally distorted. Secondly, I did not say that this majority was uneducated or illiterate. This again was a deliberate distortion of what I said. I never used the word ‘uneducated’. I said that the majority is of a poor intellectual level. A person may have passed B.A. or M.A. but yet may be of a poor intellectual level.

Thirdly, even if one did not agree with my view, he could have coolly and patiently disagreed in a civil tone and expressed his own views instead of shouting and raving on the TV screen and giving an ugly display of temper. And this by a person who belongs to a profession a large section of which is accused of the scandal of paid news, Radia tapes, etc. Really, the Lady doth protest too much! (Shakespeare: Hamlet).

(2) I have again and again said in my articles, speeches and TV interviews that I am not in favour of harsh measures against the media. In a democracy, issues are ordinarily resolved by discussion, persuasion, consultation, and dialogue, and that is the method I prefer, rather than using harsh measures. If a channel/newspaper has done something wrong I would prefer to call the persons responsible ad patiently explain to them that what they have done is not proper. I am sure that in 90% or more cases that would be sufficient. I strongly believe that 90% of people who are doing wrong things can be reformed and made good people.

It is only in extreme cases, which would only be about 5 to 10%, that harsh measures would be required, and that too after repeated use of the democratic method has failed and the person proves incorrigible.

This statement of mine was again distorted and a false impression created that I wanted to impose emergency in the country, cartoons were published in some newspapers showing me as some kind of dictator, etc., etc.

The truth is that I have always been a strong votary for liberty, and the proof of this is my judgments in the Supreme Court and the High Court in which I have consistently held that judges are guardians of the liberties of the citizens, and they will be failing in their duties if they do not uphold these liberties. However, liberty does not mean license to do anything one wishes. All freedoms are subject to reasonable restrictions in the public interest, and are coupled with responsibilities.

We may now discuss the question of self regulation.

Self regulation by electronic media

At present, there is no regulatory authority to cover the electronic media. The Press Council of India governs only the print media, and even in cases of violation of journalistic ethics by the latter the only punishment which can be given is admonition or censure.

I have written to the Prime Minister requesting him to initiate legislation to amend the Press Council Act by (1) bringing electronic media also under the ambit of the Press Council, and (2) giving more teeth to the Press Council.

The electronic media has strongly opposed bringing it under the Press Council. Their claim is of self regulation. But even Judges of the Supreme Court and High Courts do not have such an absolute right. They can be impeached by Parliament for misconduct. Lawyers are under the Bar Council, who can suspend or cancel their license for professional misconduct. Doctors come under the Medical Council who can suspend/cancel their license. Auditors are in the same position. Why then is the electronic media shy of coming under any regulatory authority? Why these double standards? If they do not wish to come under the Press Council (because the present Chairman is a wicked and/or undesirable person) then the N.B.A., and B.E.A. should indicate under which regulatory authority they wish to come. Are they willing to come under the proposed Lokpal? I have repeatedly raised this question in several newspapers, but my question has always been met either by stony silence on the part of the N.B.A., and B.E.A. or dismissing the very question as ‘irresponsible’.

T.V. news and shows have a large influence on a wide section of our public. Hence in my opinion T.V. channels must also be made accountable to the public.

If the electronic media insists on self regulation, then by the same logic politicians, bureaucrats, etc., must also be granted the right of self regulation, instead of being placed under the Lokpal. Or does the electronic media regard itself so holy, so ‘doodh ka dhula’ that nobody should regulate it except itself. In that case, what is paid news, Radia tapes, etc? Is that the work of saints?

In fact there is no such thing as self regulation, which is an oxymoron. Everybody is accountable to the people in a democracy, and so is the media.

Advertisements

JUSTICE KATJU- MEDIA ETHICS DEBATE ‘I am a votary of liberty; my criticism of the media is aimed at making them better’

JUSTICE MARKANDEY KATJU

JUSTICE MARKANDEY KATJU

OPED ARTICLE PUBLISHED IN THE HINDU – JUSTICE MARKANDEY KATJU

‘There is no such thing as self-regulation, every institution is accountable to the people.’ We publish here an edited excerpt from a clarification issued by Press Council chairman Markandey Katju. The full text of his clarification can be read at http://www.thehindu.com. ‘No doubt, the media should provide some entertainment also to the people. But if 90 per cent of their coverage is devoted to entertainment, and only 10 per cent to all the socio-economic issues put together, then the sense of priorities of the media has gone haywire.’

I have expressed my views relating to the media in several TV interviews I gave as well as in my articles in some newspapers. However, many people, including media people, wanted clarification and amplification of some of the issues I had raised. Since some controversy appears to have been raised about what I said, a clarification is in order.

Full Text

Today India is passing through a transitional period in our history, the transition being from feudal agricultural society to modern industrial society. This is a very painful and agonising period in history. The old feudal society is being uprooted and torn apart, but the new modern industrial society has not been fully and firmly established. Old values are crumbling, but new modern values have not yet been put in place. Everything is in flux, in turmoil. As Shakespeare said in Macbeth, “Fair is foul and foul is fair.”

If one studies the history of Europe from the 16th to the 19th centuries, when the transition from feudalism to modern society was taking place, one realises that this transitional period was full of turbulence, turmoil, wars, revolutions, chaos, social churning, and intellectual ferment. It was only after going through this fire that modern society emerged in Europe. India is presently going through that fire. We are going through a very painful period in our country’s history, which, I guess, will last another 15 to 20 years. I wish this transition would take place painlessly and immediately but unfortunately that is not how history functions.

In this transition period, the role of ideas, and therefore of the media, becomes extremely important. At a particular historical juncture, ideas become a material force. For instance, the ideas of liberty, equality and fraternity, and of religious freedom (secularism) became powerful material forces during the Age of Enlightenment in Europe, and particularly during the American and French Revolutions. In the age of transition in Europe, the media (which were only the print media at that time) played a great, historical role in the transformation of feudal Europe to modern Europe.

In my opinion, the Indian media too should play a progressive role similar to the one played by the European media [during that age of transition]. This it can do by attacking backward and feudal ideas and practices like casteism, communalism, superstitions, women’s oppression, etc. and propagating modern, rational and scientific ideas, secularism, and tolerance. At one time, a section of our media played a great role in our country.

Manner of functioning

When I criticised the Indian media, and particularly the broadcast media, for not playing such a progressive and socially responsible role, I was furiously attacked by a section of the media for my views. Some even launched a personal attack on me saying that I was an agent of the government. When serious issues are raised about the functioning of the media, it was expected that those issues would be addressed seriously.

By criticising the media, I wanted to persuade them to change their manner of functioning — not that I wanted to destroy them. The Indian media have a historical role to play in the age of transition, and I wanted to remind media persons of their historical duty to the nation. Instead of taking my criticism in the correct spirit, a veritable diatribe was launched against me by a section of the media, which painted me as some kind of dictatorial monster.

More focus on entertainment

The media should regard me as their well-wisher. I criticised them because I wanted media persons to give up many of their defects and follow the path of honour which the European press was following, and which will give them the respect of the Indian people.

I mentioned that 80 per cent of our countrymen are living in horrible poverty; there is massive unemployment, skyrocketing prices, lack of medical care, education, etc. and barbaric social practices like honour killings, dowry deaths, caste oppression, and religious bigotry. Instead of seriously addressing these issues, 90 per cent of the coverage of our media goes to entertainment, for example, the lives of film stars, fashion parades, pop music, disco dancing, cricket, etc, or showing superstitions like astrology.

No doubt, the media should provide some entertainment also to the people. But if 90 per cent of their coverage is devoted to entertainment, and only 10 per cent to all the socio-economic issues put together, then the sense of priorities of the media has gone haywire. The real issues before the people are socio-economic, and the media are seeking to divert their attention to the non-issues like film stars, fashion parades, disco, pop, cricket, and so on. It is for this lack of a sense of priorities, and for showing superstitions, that I criticised the media.

What I said

One should not be afraid of criticism, nor should one resent it. People can criticise me as much as they like, I will not resent it, and maybe I will benefit from it. But similarly the media should not mind if I criticise them. My aim in doing so is to make them better media people.

While criticising, however, fairness requires that one should report the words of one’s opponent accurately, without twisting or distorting them. That was the method used by our philosophers. They would first state the views of their opponent, in what was called as the ‘purvapaksha.’ This was done with such accuracy and intellectual honesty that if the opponent were present, he could not have stated his views better. Thereafter it was sought to be refuted.

Unfortunately, this practice is often not followed by our media.

First, I did not make a statement aboutallmedia people but only of the majority. There are many media people for whom I have great respect. So I wish to clarify here that I did not paint the entire media with the same brush. Second, I did not say that this majority was uneducated or illiterate. This again was a deliberate distortion of what I said. I never used the word ‘uneducated.’ I said that the majority is of a poor intellectual level. A person may have passed B.A. or M.A. but yet may be of a poor intellectual level.

I have again and again said in my articles, speeches, and TV interviews that I am not in favour of harsh measures against the media.

In a democracy, issues are ordinarily resolved by discussion, persuasion, consultation, and dialogue, and that is the method I prefer, rather than using harsh measures. If a channel or newspaper has done something wrong I would prefer to call the persons responsible and patiently explain to them that what they have done is not proper. I am sure that in 90 per cent or more cases that would be sufficient. I strongly believe that 90 per cent of people who are doing wrong things can be reformed and made good people.

It is only in extreme cases, which would only be about five to 10 per cent, that harsh measures would be required, and that too after repeated use of the democratic method has failed and the person proves incorrigible. This statement of mine was again distorted and a false impression created that I wanted to impose emergency in the country. Cartoons were published in some newspapers showing me as some kind of dictator.The truth is that I have always been a strong votary for liberty, and the proof of this is my judgments in the Supreme Court and the High Court in which I have consistently held that judges are guardians of the liberties of the citizens, and they will be failing in their duties if they do not uphold these liberties. However, liberty does not mean licence to do anything one wishes. All freedoms are subject to reasonable restrictions in the public interest, and are coupled with responsibilities.

We may now discuss the question of self-regulation.

Self-regulation by broadcast media

At present, there is no regulatory authority to cover the electronic media. The Press Council of India governs only the print media, and even in cases of violation of journalistic ethics by the latter, the only punishment that can be given is admonition or censure. I have written to the Prime Minister requesting him to initiate legislation to amend the Press Council Act by (1) bringing the electronic media also under the ambit of the Press Council, and (2) giving more teeth to the Press Council.

The electronic media have strongly opposed bringing them under the Press Council. Their claim is of self-regulation. But even Judges of the Supreme Court and High Courts do not have such an absolute right. They can be impeached by Parliament for misconduct. Lawyers are under the Bar Council of India, which can suspend or cancel their licence for professional misconduct. Doctors come under the Medical Council of India, which can suspend or cancel their licence. Auditors are in the same position. Why then are the electronic media shy of coming under any regulatory authority? Why these double standards? If they do not wish to come under the Press Council of India (because the present Chairman is a wicked and/or undesirable person) then the NBA (News Broadcasters Association), and BEA (Broadcast Editors Association) should indicate which regulatory authority they wish to come under. Are they willing to come under the proposed Lokpal? I have repeatedly raised this question in several newspapers, but my question has always been met either by stony silence on the part of the NBA and the BEA or by dismissing the very question as ‘irresponsible.’

TV news and shows have a large influence on a wide section of our public. Hence in my opinion, TV channels must also be made accountable to the public. If the broadcast media insist on self-regulation, then by the same logic, politicians, bureaucrats, and so on must also be granted the right of self-regulation, instead of being placed under the Lokpal. Or do the broadcast media regard themselves so holy that nobody should regulate them except themselves? In that case, what is paid news, the Radia tapes, etc? Is that the work of saints?

In fact there is no such thing as self-regulation, which is an oxymoron. Everybody is accountable to the people in a democracy — and so are the media

http://www.thehindu.com/opinion/op-ed/article2630600.ece

 

Freedom of the press and journalistic ethics

Justice Markandey Katju  IN THE HINDU

Freedom is important, so is responsibility. In countries like India, the media have a responsibility to fight backward ideas such as casteism and communalism, and help the people fight poverty and other social evils.

Freedom of the press and journalistic ethics is an important topic today in India — with the word ‘press’ encompassing the electronic media also. There should be a serious discussion on the topic. That discussion should include issues of the responsibilities of the press, since the media have become very prominent and very powerful.

In India, freedom of the press has been treated as part of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, vide Brij Bhushan and Another vs. The State of Delhi, AIR 1950 SC 129 and Sakal Papers (P) Ltd vs. Union of India, AIR 1962 SC 305, among others. However, as mentioned in Article 19(2), reasonable restrictions can be placed on this right, in the interest of the sovereignty and integrity of India, the security of the state, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Hence, freedom of the media is not an absolute freedom.

The importance of the freedom of the press lies in the fact that for most citizens the prospect of personal familiarity with newsworthy events is unrealistic. In seeking out news, the media therefore act for the public at large. It is the means by which people receive free flow of information and ideas, which is essential to intelligent self-governance, that is, democracy.

For a proper functioning of democracy it is essential that citizens are kept informed about news from various parts of the country and even abroad, because only then can they form rational opinions. A citizen surely cannot be expected personally to gather news to enable him or her to form such opinions. Hence, the media play an important role in a democracy and serve as an agency of the people to gather news for them. It is for this reason that freedom of the press has been emphasised in all democratic countries, while it was not permitted in feudal or totalitarian regimes.

In India, the media have played a historical role in providing information to the people about social and economic evils. The media have informed the people about the tremendous poverty in the country, the suicide of farmers in various States, the so-called honour killings in many places by Khap panchayats, corruption, and so on. For this, the media in India deserve kudos.

However, the media have a great responsibility also to see that the news they present is accurate and serve the interest of the people. If the media convey false news that may harm the reputation of a person or a section of society, it may do great damage since reputation is a valuable asset for a person. Even if the media subsequently correct a statement, the damage done may be irreparable. Hence, the media should take care to carefully investigate any news item before reporting it.

I know of a case where the photograph of a High Court judge, who was known to be upright, was shown on a TV channel along with that of a known criminal. The allegation against the judge was that he had acquired some land at a low price misusing his office. But my own inquiries (as part of which I met and asked questions to that judge and many others) revealed that he had acquired the land not in any discretionary quota but in the open market at the market price.

Also, sometimes the media present twisted or distorted news that may contain an element of truth but also an element of untruth. This, too, should be avoided because a half-truth can be more dangerous than a total lie. The media should avoid giving any slant to news, and avoid sensationalism and yellow journalism. Only then will they gain the respect of the people and fulfil their true role in a democracy.

Recently, reports were published of paid news — which involves someone paying a newspaper and getting something favourable to him published. If this is correct, it is most improper. Editors should curb this practice.

Media comments on pending cases, especially on criminal cases where the life or liberty of a citizen is involved, are a delicate issue and should be carefully considered. After all, judges are human beings too, and sometimes it may be difficult for them not to be influenced by such news. The British law is that when a case is sub judice, no comment can be made on it, whereas U.S. law permits such comment. In India we may have to take an intermediate view on this issue: while on the one hand we have a written Constitution that guarantees freedom of speech in Article 19(1)(a) — which the unwritten British Constitution does not — the life and liberty of a citizen is a fundamental right guaranteed by Article 21 and should not lightly be jeopardised. Hence, a balanced view has to be taken on this.

Also, often the media publish correct news but place too much emphasis on frivolous news such as those concerning the activities of film stars, models, cricketers and so on, while giving very little prominence to much more important issues that are basically socio-economic in nature.

What do we see on television these days? Some channels show film stars, pop music, disco-dancing and fashion parades (often with scantily clad young women), astrology, or cricket. Is it not a cruel irony and an affront to our poor people that so much time and resources are spent on such things? What have the Indian masses, who are facing terrible economic problems, to do with such things?

Historically, the media have been organs of the people against feudal oppression. In Europe, the media played a major role in transforming a feudal society into a modern one. The print media played a role in preparing for, and during, the British, American and French Revolutions. The print media were used by writers such as Rousseau, Voltaire, Thomas Paine, Junius and John Wilkes in the people’s fight against feudalism and despotism. Everyone knows of the great stir created by Thomas Paine’s pamphlet ‘Common Sense’ during the American Revolution, or of the letters of Junius during the reign of the despotic George III.

The media became powerful tools in the hands of the people then because they could not express themselves through the established organs of power: those organs were in the hands of feudal and despotic rulers. Hence, the people had to create new organs that would serve them. It is for this reason that that the print media became known as the Fourth Estate. In Europe and America, they represented the voice of the future, in contrast to the feudal or despotic organs that wanted to preserve the status quo in society. In the 20th century, other types of media emerged: radio, television and the Internet.

What should be the media’s role? This is a matter of great importance to India as it faces massive problems of poverty, unemployment, corruption, price rise and so on.

To my mind, in underdeveloped countries like India the media have a great responsibility to fight backward ideas such as casteism and communalism, and help the people in their struggle against poverty and other social evils. Since a large section of the people is backward and ignorant, it is all the more necessary that modern ideas are brought to them and their backwardness removed so that they become part of enlightened India. The media have a great responsibility in this respect.

(Markandey Katju is a Judge of the Supreme Court of India. The second part of this article will follow.)

http://www.hindu.com/2011/06/03/stories/2011060363621400.htm

Professional Ethics for Lawyers- SC

The supreme court of india. Taken about 170 m ...

Image via Wikipedia

A Bench of Justices Markandeya Katju and Gyan Sudha Mishra in an order deplored the growing tendency among bar associations across the country to pass resolutions against appearing for certain accused persons for some reason or the other.

“Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics.

The bench passed the order while quashing the counter criminal cases filed by policemen and lawyers of Coimbatore during an agitation in 2007.

In this case the Madras High Court had on the basis of the recommendations made by Justice(retd) K P Sivasubramaniam, Commission of Inquiry, ordered a compensation of Rs 50,000 to advocate A S Mohammed Rafi who was allegedly assaulted by policemen during a clash with them.

At that time both the lawyers and women police constables involved in the fracas lodged counter criminal cases. The Bar Association of Coimbatore had also passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them.

Rafi who was not satisfied with the quantum of compensation moved the apex court for a higher compensation.The apex court while enhancing the compensation to Rs 1.50 lakh as advised by amicus curiae and senior counsel Altaf Ahmed, however, minced no words in expressing displeasure at the manner in which the bar associations have been frequently passing resolutions asking advocates not to appear for certain persons.

We would like to comment upon a matter of great legal and constitutional importance which has caused us  deep distress in this case. It appears that the Bar Association of Coimbatore passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them in this case.

Several Bar Association all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they will not defend a particular person or persons in a particular criminal case. Sometimes there are clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.

 

In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.

We may give some historical examples in this connection.

When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepts the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today : “From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel”

Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the I.N.A.trials in the Red Fort at Delhi (November 1945 – May 1946).

However, disturbing news is coming now from several parts of the country where bar associations are refusing to defend certain accused persons.

The Sixth Amendment to the US Constitution states “In all criminal prosecutions the accused shall enjoy the right …….to have the assistance of counsel for his defence”.

In Powell vs. Alabama 287 US 45 1932 the facts were that nine illiterate young black men, aged 13 to 21, were charged with the rape of two white girls on a freight train passing through Tennessee and Alabama. Their trial was held in Scottsboro, Alabama, where community hostility to blacks was intense. The trial judge appointed all members of the local bar to serve as defense counsel. When the trial began, no attorney from the local bar appeared to represent the defendants. The judge, on the morning of the trial, appointed a local lawyer who undertook the task with reluctance. The defendants were convicted. They challenged their convictions, arguing that they were effectively denied aid of counsel because they did not have the opportunity to consult with their lawyer and prepare a defense. The U.S. Supreme Court agreed. Writing for the court, Mr. Justice George Sutherland explained :

“It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a8 fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid…..”

In the same decision Justice Sutherland observed:

“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”.

In this connection we may also refer to the legendry American lawyer Clarence Darrow (1857-1930) who was strongly of the view that every accused, no matter how wicked, loathsome, vile or repulsive he may be regarded by society has the right to be defended in court. Most lawyers in America refused to accept the briefs of such apparently wicked and loathsome persons, e.g. brutal killers, terrorists, etc. But Clarence Darrow would accept their briefs and defend them, because hewas firmly of the view that every persons has the right to be defended in court, and correspondingly it was the duty of the lawyer to defend. His defences in various trials of such vicious, repulsive and loathsome persons became historical, and made him known in America as the ‘Attorney for the Damned’, (because he took up the cases of persons who were regarded so vile, depraved and despicable by society that they had already been condemned by public opinion) and he became a legend in America (see his biography ‘Attorney for the Damned’).

In Re Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of the US Supreme Court in his dissenting judgment praised Darrow and said :

“Men like Lord Erskine, James Otis, Clarence Darrow, and a multitude of others have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.”

At the Nuremberg trials, the Nazi war criminals responsible for killing millions of people were yet defended by lawyers.

We may also refer to the fictional American lawyer Atticus Finch in Harper Lee’s famous novel ‘To Kill a Mocking Bird’. In this novel Atticus Finch courageously defended a black man who was falsely charged in the State of Alabama for raping a white woman, which was a capital offence in that State. Despite the threats of violence to him and his family by the racist white population in town, and despite social ostracism by the predominant while community, Atticus Finch bravely defended that black man (though he was ultimately convicted and hanged because the jury was racist and biased), since he believed that everyone has a right to be defended. This novel inspired many young Americans to take up law as a profession in America.

The following words of Atticus Finch will ring throughout in history :

“Courage is not a man with a gun in his hand. It is knowing you are licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.”

 

In our own country, Article 22(1) of the Constitution states :

“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”.

Chapter II of the Rules framed by the Bar Council of India states about ‘Standards of Professional Conduct and Etiquette’, as follows

“An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent  with his standing at the Bar and the nature of the case.Special circumstances may justify his refusal to accept a particular brief”.

Professional ethics requires that a lawyer cannot refuse a rief,provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in1 passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. Is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

The Registry of this Court will circulate copies of this judgment/order to all High Court Bar Associations and State Bar Councils in India. The High Court Bar Associations are requested to circulate the judgment/order to all the District Court Bar Associations in their States/Union territories.

…………………………….J. (Markandey Katju)

……………………………J.(Gyan Sudha Misra)

New Delhi; 6th December, 2010