Media and issues of responsibility

THE HINDU

The Indian media display certain defects. These should ideally be addressed and corrected in a democratic manner. But if the media prove incorrigible, harsh measures may be called for. The time has come when some introspection by the Indian media is required. Many people, not only those in authority but even ordinary people, have started saying that the media have become irresponsible and wayward, and need to be reined in.

Only a couple of days back I read in the newspapers that the Union government has issued some regulations regarding licences for news channels, to which there was a lot of reaction. Under the Constitution of India, freedom of the media is part of the freedom of speech guaranteed by Article 19 (1) (a). However, no freedom can be absolute, and reasonable restrictions can be placed on it. One of the basic tasks of the media is to provide truthful and objective information to the people that will enable them to form rational opinions, which is a sine qua non in a democracy. But are the Indian media performing this role properly?

I may only mention certain defects in the functioning of the India media today.

Twisting facts

One of the defects is that the media often twist facts. I would like to give an example.

One day, a leading English newspaper published on its front page a photograph of Justice Gyan Sudha Misra of the Supreme Court with the caption: “Supreme Court Judge says that her daughters are liabilities.” This was a distorted and fallacious item of news, published on the front page.

Supreme Court Judges have to disclose their assets and liabilities. Against the liabilities column, Justice Misra had written: “two daughters to be married.” Strictly speaking, it was not necessary to mention this because liabilities mean legal liabilities, for example, housing loan, car loan, and so on. Justice Misra’s intention was obviously to say that she would have to spend on her daughters’ future marriage. She has three daughters (no son), only one of whom has been married. Justice Misra never said, nor intended to say, that her daughters were liabilities. The news was false and defamatory, with the obvious intention of creating a sensation.

Paid news

A second defect concerns the issue of paid news that has become prominent of late. In the 2009 elections, it was a scandal. How this vicious practice could be stopped needs to be discussed. Incidentally, in compliance with an order of the Chief Information Commissioner dated September 19, 2011, we have placed the 71-page report of the Committee consisting of Paranjoy Guha Thakurta and Sreenivas Reddy on our website, http://www.presscouncil.nic.in with the disclaimer that the Press Council had rejected this report at its meeting held on April 26, 2010.

Non-issues as real issues

A third defect is that the media often portray non-issues as real issues, while the real issues are sidelined. The real issues in India are economic, that is, the terrible economic conditions in which 80 per cent of our people are living, the poverty, unemployment, lack of housing and medical care and so on. Instead of addressing these real issues, the media often try to divert the attention of people to non-issues. Such as that the wife of a film actor has become pregnant, whether she will give birth to a single child or to twins, and so on. Are these the real issues facing the nation?

At a Lakme India Fashion Week event, there were 512 accredited journalists covering the event in which models were displaying cotton garments, while the men and women who grew that cotton were killing themselves at a distance of an hour’s flight from Nagpur, in the Vidharbha region. Nobody told that story, except one or two journalists, locally.

Is this a responsible way for the Indian media to function? Should the media turn a Nelson’s eye to the harsh economic realities facing over 75 per cent of our people, and concentrate on some ‘Potemkin villages‘ where all is glamour and show biz? Are not the Indian media behaving much like Queen Marie Antoinette, who said that if the people had no bread, they should eat cake?

No doubt, sometimes the media mention farmers’ suicides, the rise in the price of essential commodities, and so on, but such coverage is at most 5 per cent to 10 per cent of the total. The bulk of the coverage goes to showing the life of film stars, pop music, fashion parades, cricket and astrology.

Tendency to brand

Here is a fourth defect. Bomb blasts have taken place near the Delhi High Court, in Mumbai, Bangalore and so on. Within a few hours of such a bomb blast, many TV channels started showing news items that said that the Indian Mujahideen or the Jaish-e-Mohammed or the Harkatul-Jihad-e-Islam had sent e-mails or text messages claiming responsibility. The names of such alleged organisations will always be Muslim ones. Now, an e-mail can be sent by any mischievous person, but by showing this on TV channels and the next day in the newspapers, the tendency is to brand all Muslims as terrorists and bomb-throwers.

The truth is that 99 per cent of the people of all communities, whether Hindu, Muslim, Christian or Sikh, and of whatever caste or region, are good. But the manner in which such news is shown on TV screens and published in newspapers tends to create the impression that all Muslims are terrorists, and evil — which is totally false. The person who sends such e-mails or text messages obviously wants to create hatred between Hindus and Muslims, which is the old British divide-and-rule policy continuing even today. Should the media, wittingly or unwittingly, become part of this policy of divide-and-rule?

No doubt there are defects not only in the media but in other institutions also, for example, the judiciary, the bureaucracy, and so on.

There are two ways to remove these defects in the media. One is the democratic way, that is, through discussions, consultations and persuasion — which is the method I prefer. The other way is by using harsh measures against the media, for example, by imposing heavy fines on defaulters, stopping government advertisements to them, suspending their licences, and so on.

In a democracy we should first try the first method to rectify the defects through the democratic method. For this purpose, I have decided to have regular get-togethers with the media, including the electronic media, so that we can all introspect and ourselves find out ways and means to rectify the defects in the media, rather than this being done by some government authority or external agency.

I propose to have such get-togethers once every two or three months, at which we will discuss issues relating to the media and try to think of how we can improve the performance of the media so that it may win the respect and confidence of the people.

If the media prove incorrigible, harsh measures may be required. But in my opinion, that should be done only as a last resort and in extreme situations. Ordinarily, we should first try to resolve issues through discussion, consultation and self-regulation. That is the approach which should be first tried in a democracy. I, therefore, request the Union government to defer the implementation of its recent decision regarding news channel licences, so that we can ourselves discuss the issue thoroughly, and ourselves take corrective measures.

Till now the function of the Press Council was only adjudication. I intend to make the Press Council an instrument of mediation in addition, which is in my opinion the democratic approach. For this purpose, I need help, cooperation and advice from the media.

India is passing through a transitional period in its history, from a feudal agricultural society to a modern industrial society. This is a very painful and agonising period. The media must help society in going through this transitional period as quickly as possible, and by reducing the pain involved. This they can do by attacking feudal ideas, for example, casteism and communalism, and promoting modern scientific ideas.

(This is the edited text of a speech delivered by Justice (retired) Markandey Katju, the new Chairman of the Press Council of India, on October 10 at a get-together with mediapersons at his residence in New Delhi. The full text is available at www.thehindu.com)

SOURCE: http://www.thehindu.com/opinion/lead/article2559712.ece

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Appointing Chief Justices: The way out

FROM THE TRIBUNE CHANDIGARH – DEBATE “APPOINTING CHIEF JUSTICES”

The article, “Remedy worse than the malady”, penned by a former Supreme Court Judge and five retired Chief Justices of High Courts on September 9, 2010, regarding the policy of appointing a Chief Justice of a High Court from outside the state has stirred an intense debate among the legal fraternity. Two eminent jurists give their view.

by Fali S. Nariman

The article “Remedy worse than the Malady” in The Tribune (September 9) by a former Supreme Court Judge and five former High Court Chief Justices was impressive. But, from the other side of the fence, my experience does not wholly coincide with the suggestions made. There is another angle to the subject that helps illustrate a different point of view.

The Calcutta Bar often recalls that one of their most notable Chief Justices in recent times was the late Justice P.D. Desai (1988-1991). He was a stranger to the Bengal Bench and Bar, having been transferred there from another place (Shimla) where he was also a stranger, and yet most popular. On transfer to Kolkata, P.D. Desai quickly found his feet in the court where Sir Elijah Impey (first Chief Justice of Bengal) sat; and the Bar took to him instantly.

Ditto was the case with Chief Justice Chittatosh Mookerjee of the Bombay High Court (1987 to 1991), transferred from Calcutta. Grandson of one of India’s first Chief Justices (Ashutosh Mookerjee) and son of another Chief Justice, Chittatosh had “good-judging” in his veins. In Bombay, he did what no indigenous Chief Justice had done before. When 200 members of the Bar went to him with a signed petition complaining about the errant behaviour of four sitting Judges of the Bombay High Court, he did not turn them away, nor did he accept at first blush all that they had to say.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

He took his time, made his own investigations, found that the allegations were largely true, and immediately stopped giving work to the four named Judges. This created a furore – both among the four, as well as in Delhi. The then Chief Justice of India (Ranganath Misra) came down to Bombay and upbraided the Bombay Bar for having taken “the law into their own hands”. Chittatosh turned a deaf ear to the CJI. And he told the complaining judges that they were free to file writ petitions against his administrative order under Article 226 of the Constitution.

However, till the Court on the judicial side said he was wrong, the no-work order would remain. No one — not one of the four errant judges — had sufficient confidence in their own integrity to do what the Chief Justice said.

The experiment of disciplining them, by not giving them work, actually worked. It has since become known as the Bombay Experiment — it toned up the Bombay High Court.

There is however, much truth in the following passage (in The Tribune article): “experience has shown that the usual tenure of a Chief Justice coming from another High Court is rarely, if ever, of a long enough period for such Chief Justice, to really get to know the State, its people, their customs and traditions or even his colleagues, the subordinate judiciary, and the members of the Bar…”

May I respectfully add: And do you know why? It is because the ‘outsider’ Chief Justice is constantly looking over his shoulder, expectantly waiting-in-the-wings to be pulled up! Generally (not always — there are notable exceptions) the outsider Chief Justice is not greatly interested in a High Court where he has never sat or practised, and whose customs and traditions are not familiar to him. He uses the Chief Justiceship of a High Court only as an intermediate stop — to reach the (hopefully) ultimate destination: New Delhi. When this doesn’t happen (which is often) the High Court suffers.

When it does happen, some other aspirant to the highest office takes his place — with like expectations. And the game of looking-over-one’s-shoulder goes on. All this is bad for judicial harmony, bad for the High Court, bad for the state: but the remedy for this lies not in revoking the policy of transfer but by levelling the retirement age of all Judges of the superior judiciary (High Courts and Supreme Court) to 65 years.

Today High Court Judges retire at 62, Supreme Court Justices at 65. If and when the retirement age is levelled at 65 for all, a Chief Justice — especially of a large High Court — would have to be persuaded to join as a Judge of the Supreme Court; and with levelling, members of the Collegium would not be troubled with 61-year-olds knocking at their doors for “elevation”!

The working life of a Judge of the Supreme Court is not a bed of roses: the job requires intense concentration, extraordinarily hard work and robust good health. All High Court Judges are simply not cut out for it: there has to be a credible process of close scrutiny and selection: whether by the Collegium or by some other body or group which may be “invented” for the future – whoever it is, whichever that body, it must have the time and sufficient data (including inputs from responsible members of the Bar) to assess the relative worth and calibre amongst High Court Chief Justices, and High Court Justices.

Regrettably, too often in my experience, able and prominent Chief Justices in High Courts have been overlooked in the past for reasons difficult to fathom — at least one of them is the co-author of the article under review!

The writer is an eminent jurist

by Justice A.R. Lakshmanan (retd)

In every forum, there is a long debate about introduction of judicial reforms. It is only being talked about and has not so far been implemented. The time has now come to give a serious thought to it.

The 18th Law Commission of India has already given various recommendations on the subject of reforms in the judiciary, which subject is very dear to my heart. In particular, the Law Commission has submitted that a detailed report to the Government of India to reconsider the Judges’ cases I, II and III by its Report Nos. 2 and 4 giving ample reasons as to why the three judgments should be reconsidered.

The word Collegium is nowhere present in the Constitution of India. It was first used by Justice P.N. Bhagwati in the majority judgment of S.P. Gupta vs. Union of India. The expression of Collegium and the Collegium of Judges has been freely used in Paragraphs 15 and 22 of the said judgment.

The Collegium is now to consist of the Chief Justice of India and four seniormost Judges of the court and in the appointment of a High Court Judge, the Supreme Court Judge acquainted with that particular High Court should also be consulted raising the number to six. There is no indication as to what happens if there is no consensus among the consultees or if the majority disagrees with the Chief Justice of India.

On a scrutiny of several constitutions of other countries, it may be seen that in all other constitutions, either the executive is the sole authority to appoint Judges or the executive appoints in consultation with the Chief Justice of the country. Our Constitution has followed the latter method.

The Indian Constitution provides a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment of Judges of the Supreme Court and High Courts where both the executive and the judiciary have been given a balanced role. This delicate balance has been upset by the Second Judges’ case and the opinion of the Supreme Court in the Presidential Reference. It is time the original balance of power was restored. The Parliamentary Standing Committee on Law and Justice has also recommended the scrapping of the present procedure for appointment and transfer by Supreme Court and High Court Judges.

In every High Court, the Chief Justice is from outside the state as per the Government of India’s policy. The seniormost judges who form the collegium are also from outside the state. Consequently, the Judges constituting the Collegium are not conversant with the names and antecedents of the candidates and, more often than not, appointments suffer from lack of adequate information.

Two alternatives are available to the Government. One is to seek a consideration of the aforesaid three judgments before the Supreme Court. Otherwise, a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments.

The 18th Law Commission has submitted a detailed report suggesting various reforms in the judiciary, including the selection and appointment of High Court Judges. The High Court Judge has importance under our Constitution and the incumbent is often supposed to be not only fair, impartial and independent, but also intelligent and diligent.

The general eligibility criteria is that a person should have put in 10 years of practice/service in the legal/judicial field. The post of Chief Justice should not be transferable. This practice was introduced in our country after the Emergency (1975-77) had been imposed. The Chief Justice who comes on transfer for a short period of six months, one or two years is a new man, alien to the place and passes his time somehow. He has to depend on others for policy decision in administrative matters.

If the Chief Justice is from the same High Court, he will be in a better position to not only control the lower judiciary but also assist the persons both from the Bench and the Bar for elevation to the High Court. This will also curtail the unnecessary delay in filling up the vacancies in the High Court.

If the functioning of the High Courts is to be improved, the policy of transferring the Chief Justice has to be given up forthwith. Now the time has come when this policy needs re-evaluation.

Likewise, the policy needs to be changed for enhancing the retirement age of the High Court Judges and Supreme Court Judges at least by three years. Similarly, there is no uniformity in the age of retirement of the Judges of the tribunals in the country. The 18th Law Commission has also submitted a report recommending uniformity in the age of retirement of the Chairmen and the Members of the different tribunals at the age of 70 and 65 respectively.

Considering the huge pendency of cases at all levels of judicial hierarchy, it has become necessary to increase the number of working days of the court. It has to be introduced at all levels of judicial hierarchy and it must start from the Supreme Court.

The recommendations for an urgent and immediate review of the present procedure for appointment of Judges are being fortified by various legal luminaries and many retired Judges of the Supreme Court. The time has now come to reconsider these suggestions.

The writer is a former Judge, Supreme Court of India and Chairman, Law Commission of India

http://www.tribuneindia.com/2010/20100914/debate.htm#2

Remedy worse than the malady

FROM THE TRIBUNE CHANDIGARH – DEBATE “APPOINTING CHIEF JUSTICES”

The exercise of having Chief Justices from other High Courts has not helped matters. The time has come to assess its impact upon the functioning of the judiciary. A former Supreme Court Judge and five former Chief Justices of High Courts call for a critical appraisal

Justice Kuldip Singh, Justice M.S. Gujral, Justice R.N. Aggarwal,
Justice S. S. Sodhi, Justice M.S. Liberhan and Justice S.S. Dewan (retd.)

NOT so long ago, whenever the post of Chief Justice of a High Court fell vacant, whether on retirement, resignation, death or otherwise, the Judge next in seniority would take over as the Chief Justice of that High Court. This long established convention has now become a thing of the past.

The Chief Justice of a High Court is today appointed not from amongst Judges of the same court but from those of some other High Court, keeping in view, of course, their seniority. What presumably impelled this change was to ensure objectivity in the role that a Chief Justice is expected to play.

Inherent in being the Chief Justice of a High Court is his position as leader of the court even though he is often described as being just the first amongst equals. Regardless of this, there are significant functions that lie exclusively within the Chief Justice’s domain which are only for him to perform. Included amongst them being to recommend persons for appointment as Judges of the High Court and to assign or list cases for hearing before particular Benches besides dealing with the administration of the High Court by virtue of being its head.

It has also been seen that even in the matter of control which vests in the High Court over the subordinate judiciary which includes the cadre of District and Sessions Judges, the Chief Justice exercises considerable influence.

FROM THE TRIBUNE CHANDIGARH – DEBATE “APPOINTING CHIEF JUSTICES”

FROM THE TRIBUNE CHANDIGARH – DEBATE “APPOINTING CHIEF JUSTICES”

The appointment of Chief Justices of High Courts from amongst Judges of other High Courts has been the norm now for almost three decades. The time has come to assess its impact upon the functioning of the judiciary. Has it fulfilled the objectives with which this policy was conceived and put into effect? These are issues that call for a critical appraisal.

Experience shows that when a senior High Court Judge becomes eligible for consideration for appointment as Chief Justice, there is no scope for knowing whether he will get a chance to be Chief Justice as instances are not unknown of occasions when no Judge of a particular High Court was holding the post of Chief Justice of any court while at the same time there being two or more Judges of some other High Court functioning as Chief Justices. In other words, no Judge knows if at all he will be appointed Chief Justice and, if so, when and of which High Court.

It is in such situations that the cult of sycophancy flourishes. Sycophancy, as is well known, can take various forms whether it is courtesy calls on those that matter, be they the Supreme Court Judges, the Union Law Minister or other influential persons or calling them to preside over functions like seminars, conferences or laying foundation stones and the like.

Further, experience has shown that the usual tenure of a Chief Justice coming from another High Court is rarely, if ever, of a long enough period for such Chief Justice, to really get to know the state, its people, their customs and traditions or even his colleagues, the subordinate judiciary, including District and Sessions Judges and the members of the Bar and yet it is with their aid and advice that justice in the state is to be administered.

No wonder, the Chief Justice has perforce to rely upon and follow the advice of some of his colleagues. How good or objective such advice is remains a variable factor. And yet, as pointed out earlier, his is the dominant voice in recommending persons for appointment as Judges of the High Court and also in allotting cases for hearing to particular Benches of the High Court.

As regards the High Court Judges’ appointment, it has to be borne in mind that those appointed will often be dealing with the lives, liberty and property of persons and, what is more, it is from amongst them that tomorrow’s Chief Justices will be appointed. Clearly, much care and discretion is required in the matter of appointment of Judges.

The Supreme Court in the Second Judges’ case (1993) has evolved the collegium system for appointment of High Court Judges. The Chief Justice of the High Court and two seniormost Judges constitute the collegium.The primary source for appointment of Judges is the High Court Bar Association. Almost 60 per cent of the total appointments are made from amongst the practicing lawyers in the High Court. It is thus of utmost importance that the most competent and legally sound lawyers with good practice and possessing unimpeachable integrity be considered for appointment.

A Chief Justice with a year’s tenure or little more in a High Court cannot possibly form his own independent and informed opinion in the matter of selection from amongst the members of the Bar. He cannot justifiably undertake this exercise. He has thus perforce to fall back upon the opinion of his other colleagues in the collegium. Thus, the very purpose of having a Chief Justice from another state is frustrated.

It makes us very sad to hear people referring to the collegium system as no more than a division of spoils implying that the way it works is “you take my man, I take yours” rather than selecting the most deserving.

Turning to the other side of the senior Judge of each High Court being appointed Chief Justice on his predecessor vacating that post, it eliminates attempts at jockeying for the post of Chief Justice as it is known who will become Chief Justice and when. The flaw in this lies in the incumbent lacking or perceived to be lacking objectivity in performing his duties and functions of the office. It cannot be denied that caste, religious and regional factors have, unfortunately, been known to play their role even in the administration of justice. Though not expressly so stated, this appears to have been the underlying idea behind the practice of having Chief Justices from amongst Judges of other High Courts.

Be that as it may, it would be fallacious to assume that all or most Chief Justices would be found suffering from such a malady. If a particular Judge is found to be functioning in an unbecoming manner, appropriate action, whether denial of elevation as Chief Justice, transfer to another High Court or something else could be considered but to resort to the wholesale exercise of having Chief Justices from other High Courts is clearly a remedy worse than the malady sought to be cured by it.

Justice Kuldip Singh is a former Judge of the Supreme Court. All other writers are former Chief  Justices of various High Courts

http://www.tribuneindia.com/2010/20100914/debate.htm#1