Human beings across civilizations have always strove to strike a balance between working and resting, reporting and judging, befriending and avoiding, warmth and coldness, speech and expression, joy and frustration … and many intermingled aspects of daily and social life.
What is the right balance? It cannot be constant as it depends as much on the time and age as on a person’s temperament, attitude and disposition. No one has found it and nobody can claim that he or she did everything right in life without displeasing anyone.
In the era of 24×7 television and internet sweeping information across the world in a matter of milliseconds, the Supreme Court of India is attempting to strike a balance between the rights of the accused to a fair trial, protection of witnesses, public’s right to know and media’s right to freedom of speech and expression by exploring the possibility of laying down guidelines for reporting trials of criminal cases.
A five-judge constitution bench has already put the debate cauldron on the hearth. It intends to fill the legal vacuum with a studied and debated guideline to prevent media’s foray into the right to life domain of an accused, prejudicing him during the trial.
Will it be law-making or just finding the law to fill the vacuum? The Supreme Court in the epic ‘Keshavananda Bharati’ judgment [1973 (4) SCC 225] had said, “It is somewhat strange that judicial process which involves law-making should be called ‘finding of law’.”
In India, the Supreme Court alone can interpret the law. English clergyman Bishop Benjamin Hoadley’s 1717 sermon said, “Whoever has absolute power to interpret the law, it is he who is the law giver, not the one who originally wrote it.”
American jurist Benjamin N Cardozo had in his book ‘The Nature of Judicial Process’ said, “The law which is the resulting product is not made, but found. The process being legislative, (it) demands legislator’s wisdom.”
It reminds M R Cohen’s golden lines in the book ‘Law and the Social Order’ – “Some simple hearted people believe that the names we give to things do not matter. But though rose by any other name might smell as sweet, the history of civilization bears ample testimony to the momentous influence of names. At any rate, whether the process of judicial legislation should be called finding or making law is undoubtedly of great practical moment.”
Given the complexities of the judicial law-making process intended to fill the legal vacuum, the Supreme Court would surely lay emphasis on the crucial balancing aspect.
Mahabharat’s Yudhisthir, who set supreme standards in balancing his speech and action, had passed his surrogate father Dharmaraj’s two tough tests. On a hot day while in exile, the Pandavas were very thirsty. Sahadev, Nakul, Arjun and Bhim went in search of water one after the other. They found a lake but failed to answer lake-guard Yaksha‘s philosophical puzzles.
Defiantly, they drank water and fell dead. Yudhisthir answered the questions. The Yaksha promised life only to one of his brothers. Yudhisthir chose Nakula and justified that since one of Kunti’s son was alive, a son of Madri must live.
Yudhisthir faced the other test during the Pandavas bodily journey to heaven. After his brothers fell on the wayside, a dog joined Yudhisthir and kept pace with him till the gates of heaven. Indra came with a chariot to take Yudhisthir but told him to leave the dog behind. Yudhisthir said he would rather spurn heaven to stay with his companion.
In between these two incidents, Yudhisthir donned the role of a journalist when Kaurava general Drona was on a rampage on the 15th day of the Great War. The Pandavas killed an elephant named Ashwathama, which was also Drona’s son’s name. A rumour was floated that the enemy army chief’s son was dead. Drona confronted Yudhisthir, who reported aloud that Ashwathama was killed while muttering under his breath that he was not sure whether it was a man or an elephant.
It is difficult to explain why Yudhisthir, who perfected the art of balancing his speech and action, failed when it came to reporting correctly!
Coming to the Supreme Court’s guidelines exercise, a question arises – is it born out of over-sensitiveness? We hope it is not. For the court had in Rajesh Kumar Singh case [2007 (7) SCR 869] warned, “Of late, a perception that is slowly gaining ground among public is that sometimes, some judges are showing over-sensitiveness with a tendency to treat even technical violations or unintended acts as contempt.
“It is possible that it is done to uphold the majesty of the courts, and to command respect. But judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of ‘power’. Nearly two centuries ago, Justice John Marshall, the Chief Justice of American Supreme Court, warned that the power of judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in trust, confidence and faith of the common man.”