Judicial propriety in an age of scandal

 

Judicial propriety in an age of scandal

Judicial propriety in an age of scandal

ARGHYA SENGUPTA IN THE HINDU

Why Justice Dalveer Bhandari‘s election to the International Court of Justice while serving as a judge of the Supreme Court of India is an unhealthy development

Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari’s nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.

Judiciary & government

The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar’s wife, must be above suspicion.”

It is this test of judicial independence as a normative principle that Justice Bhandari’s actions fail to satisfy. From available records, Justice Bhandari’s candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).

Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs’ response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari’s courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.

Unheeded lessons from the past

It is not however the case that Justice Bhandari’s failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao’s acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak’s appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.

What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India’s first Attorney General, issued a statement to the press strongly condemning the Chief Justice’s decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak’s nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari’s nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.

Importance of propriety

In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.

For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.

The government’s decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari’s decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.

(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and the founder of the think-tank, The Pre-Legislative Briefing Service.)

Advertisements

Don’t lay guidelines, outline contours of press freedom: Salve

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: Former solicitor general Harish Salve on Wednesday said the Supreme Court should make the media aware of the boundaries within which it must operate while reporting court proceedings and suggested that the constitutional court must bring clarity to the contours of press freedom to prevent breach of a citizen’s right to fair trial and right to life with dignity, guaranteed under Article 21.

He agreed with most lawyers in telling a five-judge bench of Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, R P Desai and J S Khehar that it was not for the apex court to frame guidelines but disagreed with other senior advocates who had said that the court could have a case-to-case approach in scrutinizing media reports for transgression of right to life related sub-rights of an accused or a private citizen.

“The Supreme Court is not Press Council of India to tell the media what should not have been written. Media too cannot decide what should be the spread and extent of its right to report conferred on it to meet the people’s right to know. So, the Supreme Court is the only organ under the Constitution which can bring clarity by declaring the contours of right to free speech and expression under Article 19(1)(a) by balancing it against the crucial right to life,” Salve said.

“What the Supreme Court declares as the limits under Article 19(1)(a) will be abided by the responsible media, most of whom are very responsible. That is the surest way to safeguard citizen’s right to life which encompasses their right to privacy and right to live with dignity in a society,” said Salve, who appeared in an application moved by Vodafone months ago complaining about misreporting.

The senior advocate said continuous commentary on the merits of a case while it was being argued and targeting of individuals by media had a chilling effect on judges and lawyers, inhibiting free and frank discussion in a court room. “After all, judges and lawyers are human beings. The court should clarify if such reporting puts in peril such discussion during court proceedings,” he said.

Salve said government’s affidavits could be reported by the press even before it came up for court scrutiny. But if scurrilous allegations were made in any affidavit branding people as terrorists, murderers or money launderers, then the media has to wait till the court scrutinizes the contents of the affidavit in an open court hearing, he said.

The bench asked, “In our country the ground reality is that suit for damages or defamation is not an efficacious remedy against such errant reporting as it would take 20 years for conclusion of such proceedings. Will a high court or the Supreme Court be accused of violating Article 19(1)(a) if it entertained a petition from a person aggrieved by scurrilous allegations reported in the media and passed a temporary restraint order?”

Salve said constitutional courts would be well within their limits to entertain and pass appropriate orders on a writ petition from a private citizen complaining that his/her reputation was being destroyed by scurrilous allegations repeatedly reported by TV channels or print media.

If Salve cited Nupur Talwar case to point at spurious effects of brazen media coverage on a person and his right to fair trial, former law minister Ram Jethmalani cited the Jessica Lal murder case proceedings in Delhi High Court to highlight miscarriage of justice because of sustained media campaign.

Before concluding his arguments, Jethmalani said the courts have power to order repeat publication of material that hurt the right of the accused to fair trial or interference in the administration of justice. “Guidelines on media reporting will not solve the problem. On the contrary, it may create additional problems. The solution lies in enforcing Contempt of Court Act. Send one or two persons to jail under the contempt law and that will bring sanity in reporting,” Jethmalani said.

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Judiciary can’t regulate press freedom: Jethmalani

Ram Jethmalani (born September 10, 1923) is an...

Ram Jethmalani (born September 10, 1923) is an Indian politician and a famous and controversial criminal lawyer. (Photo credit: Wikipedia)

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: Former law minister, MP and senior advocate Ram Jethmalani on Tuesday told the Supreme Court that it would be unconstitutional to curtail or regulate press freedom through judicially evolved guidelines because Parliament alone was competent to undertake this exercise through legislative route.

Appearing for a media association before a five-judge constitution bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar, the octogenarian lawyer suggested that the best method to evolve guidelines for reporting subjudice matters without infringing the rights of the accused was to seek consensus through meetings between judges, lawyers and leaders of the media.

“The guideline evolved through this process could be recommended to Parliament for appropriate legislative action. I can assure you that Parliament would act on such a recommendation,” he said.

Though the bench had doubts about the efficacy of normative guidelines in protecting fair trial because of excessive reporting intruding into the domain of judges in certain cases, it said, “If we have to recommend, we will do so. There is no problem at all. But the limited question is what should the court do when a person approaches it complaining against media’s blatant breach of his right to presumption of innocence till pronounced guilty? Would the court be breaching Article 19 if it protects the right of the accused by ordering deferment of reporting for a short period.”

Jethmalani was unrelenting. He said, “A pre-publication ban is ultra vires. A guideline to this effect is unconstitutional. Even if the Supreme Court has some legislative power, when the issue involves Article 19, restrictions must come from a statute made by Parliament.”

However, he agreed that if a constitutional court was convinced that a newspaper report compromised the right of an accused and jeopardized fair trial or administration of justice, it could surely put a ban on subsequent publication of the matter.

Jethmalani said the malady of misreporting or biased reporting could be controlled if the judges shed their populist approach and sent a couple of errant journalists to jail under contempt of court law.

“Contempt of court law is not invoked as much as it should be to invoke the fear of god in journalists. The court will not have to worry about media guidelines if contempt jurisdiction is invoked and sent a message that press cannot get away with contemptuous reports,” he said.

Appearing for the Statesman newspaper, counsel Madhavi Goradia Divan argued against court-framed media guidelines saying mere reporting of trial proceedings would not vilify anyone as the public was aware of the cardinal principle ‘presumption of innocence till pronounced guilty’.

On the flip side, she said well-intentioned guidelines could be taken out of context and attempts would be made to achieve something which was completely different from what the court was intending to do. “The trial courts are well aware of the powers conferred on them to control reporting of proceedings in a criminal case,” she said.

The bench clarified, “Our effort is not to punish but to prevent. This exercise is an awareness process for everyone. We want to put in guidelines to avoid certain situations by deferring reporting for a limited period of time. We are not going into reporting of other wings of government but of a limited restraint on reporting as far as court proceedings are concerned.” The arguments will continue on Wednesday.

Judiciary can’t regulate press freedom: Jethmalani

Warding Off The Eye

MEDIA VS SUPREME COURT

MEDIA VS SUPREME COURT

The judiciary and Parliament seem to think they could do with less coverage
 The Problem Of Too Much Attention
  1. A PIL in Feb alleged that CJI Kapadia had a conflict of interest in the Vodafone tax case. It was dismissed; a penalty was imposed.
  2. Advocate Harish Salve says he was misquoted in the Vodafone matter. Eligibility criterion spelt out for court reporters.
  3. In Mar, CJI says reports on the disproportionate assets of ex-CJI K.G. Balakrishnan are upsetting
  4. SC hurt by reports of a judge listing her daughters in ‘liabilities’
  5. Advocate Fali Nariman says a confidential exchange between his client Sahara and SEBI was leaked on TV. CJI directs parties to make submission in the matter.
  6. Court expresses concern over how the media reported on events surrounding the murder of Arushi Talwar and on her personal life

***

Over the last couple of days, two pillars of democracy have decided that the media must be kept on a leash. First, the Lok Sabha secretariat declared that the media would not be allowed in the vicinity of parliamentary standing and joint committee meetings. Reporters usually hang about for informal briefings from MP acquaintances—it’s the life-breath of in-depth coverage of Parliament. Media professionals wonder if the unprecedented order is timed to prevent reporting on the three defence chiefs’ appearance before a parliamentary committee, slated for April 20. Second, the Allahabad High Court prohibited the media from writing or reporting further on the sensational news of troop movements towards Delhi on Jan 16-17. The Union i&b ministry followed up with an advisory seeking strict adherence to the court order. The two restrictions come even as the Supreme Court is mulling guidelines for law reporters covering it.

So, is this the system recoiling at all those big news stories of scams and criminal investigations that have come out recently? Media professionals feel these ‘guidelines’ would end up stifling them. The bigger fear is that, when institutions like the Supreme Court and the Lok Sabha start writing rulebooks for the media, they might prompt others—say the bureaucracy and the police—to do so too. The cascading effect could shrink the space of reporting in the same proportion as RTI added to it.

It was in the backdrop of an information explosion triggered by television channels, where opinions were sought and decisions arrived at swiftly, that the Law Commission finalised its 2006 report, ‘Trial by Media’, framing guidelines for reporting on criminal proceedings in court. The report makes a case for not covering a trial till it is concluded. It is learnt the Centre is in active consultation with the states on the commission’s report.

As the five-judge constitution bench under the Chief Justice of India, S.H. Kapadia, engages in a threadbare discussion on the media with advocates of freedom of the press and others, it is perhaps time to ask, as indeed the court is doing, whether guidelines regulating the media are required at all. In fact, is there any reason to suppose that media coverage has led to miscarriage of justice. And have existing guidelines failed? Linked to both questions is the public’s right to know and be informed.

Already, there are quite a few guidelines to begin with. There’s the Press Council Act of 1979, though its powers could be debated. Presided over by a retired judge and with journalists and newspapers’ representatives on the board, the council has the power to censure, warn and admonish the press if it fails to adhere to the guidelines. Its present head, Justice Markandeya Katju, has called the Allahabad High Court’s gag order “not correct” and said that “the media has a fundamental right to make such a publication, as it did not endanger national security”.

Then, there’s the News Broadcasting Authority of India (NBA), a self-regulatory body of broadcasters with academics, eminent persons and a former CJI on its rolls. It has a detailed programme code, advocates voluntary adherence and imposes penalties. After the 28/11 attack on Mumbai, it had drawn up rules for reportage by the electronic media.

In his capacity as chairperson of NBA, which is a party to the SC’s deliberations guidelines for the media, former CJI J.S. Verma says, “I feel that, as there are already guidelines drawn up by the channels themselves, the bench in my view could suggest modifications if it so wished. In fact, if the judiciary says compliance with existing guidelines is desirable, that itself will have the desired effect.” Verma—who is often openly critical of media reports—thinks peer pressure works better than imposed guidelines.

Other senior lawyers hold the view that the court has no power to make laws. Former SC judge Justice V.R. Krishna Iyer calls the SC’s attempt to regulate the media a case of judicial overreach. “It’s Parliament that has the right to legislate, not the court.”

Though the chief justice of India has repeatedly clarified that the aim is to regulate, not control, these recent exercises are seen as part of an overall process to control a media that is seen as increasingly critical and combative. The judiciary and the media, which appeared to be working in tandem at one point, now appear to have fallen out.

Does the public have a right to know about how justice is delivered? And if it does, how will that happen if reporters are not permitted to report? Such a move would also run against the open court proceedings our judiciary has adopted till now. There are many who suggest that instead of a broad arc of guidelines, what is required is a case-to-case examination. If an error takes place due to the media, there are adequate grievance redressal structures within the courts in the form of contempt and defamation laws. Moreover, journalists enjoys no special immunities or privileges by law.

Says Kumar Ketkar, editor of Divya Bhaskar, “I am quite critical of the media, but I feel the Supreme Court is overstepping its brief in wanting to frame guidelines for court reporting as the move creates an impression that the court alone is the upholder of integrity, sovereignty and the national interest. This is unfortunate. It would also appear that court and the media are in direct confrontation with each other.”

Adds Arnab Goswami, head of Time Now, “If everything now becomes a matter of litigation, there will be nothing to report on. What will we report on?”

ANURADHA RAMAN IN THE OUTLOOK

Gigantic challenge

V VENKATESAN IN THE FRONTLINE

Ranjit Kumar, the amicus curiae in the interlinking of rivers case, is a senior advocate in the Supreme Court and has been practising for nearly 32 years. He has been the amicus curiae in about 14 matters before the Supreme Court, including the ones on the cleaning of the Yamuna and the sealing of illegal commercial establishments in Delhi. In this interview to Frontline, he tries to clarify many of the concerns voiced by experts about the Supreme Court’s judgment in the interlinking of rivers case.

Critics of the judgment have pointed out that none of the 30 projects being planned has been approved or sanctioned and that none of them is ready for implementation. The delay has been attributed to the divergence of perspectives on the project between the National Democratic Alliance government and the United Progressive Alliance government which succeeded it.

I don’t want to get into the political realm of the matter. What had already been achieved was that the peninsular and the Himalayan links had been identified. There are 14 Himalayan links and 16 peninsular links. That apart, most of the rivers are inter-State rivers. After the drawing up of the pre-feasibility reports, which itself took time, there was a bar chart presented by the government as to how much time it would take. The government had given milestone timetables under which the implementation of the project would be completed by December 31, 2016.

The steps required were first, the feasibility study, then funding proposals, then the concurrence of the Chief Ministers of the States and then the completion of the detailed project reports (DPRs). And even in 2002, while the matter was going on in the court, the government informed that feasibility studies in respect of six river links had already been completed. So, I would not like to say that none of the projects is lying in limbo. The Standing Committee of Parliament for Water Resources, which has been noticed in paragraph 24 of the judgment, had asked why the project was at a nascent stage. The committee had strongly recommended going ahead with the project. That was why I sought the court’s intervention. Undoubtedly, the ILR [interlinking of rivers] programme is a gigantic challenge, and a momentous one before the Union government.

The report of the National Council for Applied Economic Research (NCAER) appears to be the only basis for the judgment. Does this report adequately assess the gains from ILR for drought prevention and flood control?

The Union of India in all its affidavits filed in the Supreme Court always supported the programme and the NWDA [the National Water Development Agency] continued to function under the aegis of the Secretary, Water Resources. Feasibility reports and DPRs were made, or have been made in the cases of some. Therefore, to say that the NCAER 2008 report is the only basis for the judgment is not correct. The court has definitely lifted from the report’s conclusions dealing with the economic aspect and social impact and the benefits arising from the project.

The two basic premises that determined the admission of PIL in this case were that the ILR would lead to drought proofing and flood control and that there was consensus among the States. These two premises have subsequently become vulnerable.

I do not agree that they are vulnerable. Because nobody can deny that there is flooding every year and droughts every year. How much money does the Prime Minister’s Relief Fund have to expend to mitigate the devastation caused by floods and droughts? For the last 60 years, can we say that the premises of flooding and drought are vulnerable?

Critics point out that courts cannot lay down the manner in which the right to water should be ensured.

It is not the right to water which is being ensured. What is being ensured is the beneficial aspects of having 40 million hectares irrigated. And when you can have waterways systems, the yearly misery of droughts and floods can be got rid of. Chapter 2 of the NCAER report amply bears this out. It explains the benefits of river valley projects, namely, the Indira Gandhi Canal project, the Tennessee Valley project, the Colorado River Canal system and the Three Gorges dam.

The relationship between the right to water and the ILR project has been described as tenuous.

The judgment itself doesn’t say that there is a link between the right to water and the project. The court is only saying that the project is in the national interest. In paragraphs 50, 52, and 63, the court says that these are matters of national interest and national problems should be viewed with greater objectivity, rationality and spirit of service to the nation.

Does the ILR project adequately address the concerns on biodiversity and impact on the environment?

That is why environmentalists are in the task force. They have a big say in the matter. I have attended a few meetings of the task force. Most of the objections pertain to rehabilitation programmes for those being displaced. Therefore, the aspect which relates to rehabilitation will be a part of the project itself as we have seen in other places such as Tehri, and Narmada dam. I don’t agree that the project ignores the concerns on the environment and biodiversity. Even if environmentalists say so, they have to give reasons, and the court will look into the reasons. If it is successful all over the world, and specifically in China, Brazil and Pakistan, then surely it cannot be said that it will not be successful here.

Some of the projects may involve international agreements, especially between India and Bangladesh. Has the judgment taken this into account?

There are issues with Nepal and Bangladesh, which will be sorted out. This will be part of the implementation process. Whatever will be required will be done.

Has the court considered the need for clearances under the Environment Protection and Forest Conservation Acts and the National Rehabilitation Policy, and from the Planning Commission and the Cabinet?

These are all in the implementation process. Reports have to be filed. The court will consider the grounds cited by these agencies if they conclude that the project is not feasible and will dwell on it. I can file a contempt, if nothing is happening, for default or for non-compliance of the directions by the Supreme Court as mentioned in Paragraph 64 (XVI) of the judgment.

Did the UPA government make its stand clear to the court on the ILR project despite its reservations?

The government has at no stage expressed any reservation about the project. A few States may have. The Centre has never taken the stand that it is not feasible. It went along, filed status reports about what has been happening and how the matter has progressed. It did not say that it is not feasible or that we should not do it. If the government were to come to such a conclusion that it is not feasible, then it will make a somersault of its earlier position. Nobody can deny the benefits accruing from these projects.

How do you react to the criticism that the ILR can lead to fresh inter-State river disputes and that it may not solve the existing ones?

I have informed the court that in view of the provisions of the River Boards Act, 1956, enacted by Parliament, there is a declaration under Section 2 that the Central government should take under its control the regulation of inter-State rivers and river valleys. Section 13 provides for optimum utilisation of water resources and for promotion and operation of schemes of flood control. Section 15 empowers preparation of schemes to develop inter-State river or river valleys. And this has been noted in Paragraph 58 of the judgment. Therefore, if there is an existence of regulatory framework by the declaration of Parliament, there need not be any inter-State river dispute. The tribunal is not necessary. The Central government can exercise that power. The Central government never applied its mind to this Act when disputes arose and tribunals were set up. When I brought this to the notice of the court, the judges found a way to deal with the matter.

It is pointed out that the Supreme Court has failed to consider the diversity of views on the reasons for India’s water crisis and that the ILR may not be the best possible answer.

This judgment does not deal with water crisis. This judgment deals with the benefits arising from interlinking and the malice or misery that is prevailing on account of droughts and floods. This judgment does not deal with the water crisis to the extent of drinking water. But it deals with an aspect that if interlinking takes place, how many million hectares of land will be irrigated.

V VENKATESAN IN THE FRONTLINE

Supreme Court seeks balance between fair trial and press freedom

Supreme Court of India

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

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.”

dhananjay.mahapatra@timesgroup.com

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

The public needs both gavel and pen

The public needs both gavel and pen

The public needs both gavel and pen

SIDARTH VARDRAJAN IN THE HINDU

The Supreme Court’s proposal to impose guidelines on how to report cases will be harmful to press freedom and democracy, the bedrock of which is an informed public.

The Judiciary is the third branch of government. As with the Executive and Legislature, the public has a right to see and know and understand the functioning of this branch. That is why India, like every other democracy, has embraced the concept of open court proceedings and trials, except in those situations where, for security or other compelling reasons, in camera hearings are required.

In the Mirajkar case (Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr on 3 March, 1966) a nine-judge Bench of the Supreme Court under its legendary Chief Justice, P.B. Gajendragadkar, held that “save in exceptional cases, the proceedings of a Court of justice should be open to the public”.

“A Court of justice is a public forum”, the 1966 judgment declares. “It is through publicity that the citizens are convinced that the Court renders evenhanded justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the Court proceedings. The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the Court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation.” (emphasis added)

Unrestricted openness

Once the objective of a public trial in open court is accepted, it is obvious that this openness cannot be restricted to those members of the public who have the facility and inclination to be present in a given court at a given time; rather, the reference is to the wider public, to the citizenry as a whole. The only way court proceedings, and the wider functioning of the judicial system, can be subject to public scrutiny is if the media — who are the people’s eyes and ears — have the freedom to both be present in open court and to give an account of what transpires in open court.

It is thanks to contemporary newspaper reports of the day-to-day hearings in landmark cases like Kesavanada Bharati (1973) (certainly in The Hindu, and perhaps elsewhere too) that the public then — and legal scholars now — have an accurate picture of all the intricacies involved, including the oral arguments made and questions raised by the Bench. Many more such examples can be cited.

To be sure, covering the courts requires skill, competence and some domain knowledge of the law, in much the same way that coverage of foreign policy, defence, business and finance, and even politics requires reporters knowledgeable about those subjects. The Supreme Court has seen fit to specify that accredited correspondents must possess a law degree; it has also quantified the amount of reporting experience, at different levels of the judiciary, that these correspondents must have. No other branch of government or public or private institution — not the armed forces or Defence Ministry, not the Ministry of External Affairs, the Police, the Ministry of Agriculture or Health — has insisted on a degree or professional qualification as a condition for accreditation. Nor to my knowledge is a law degree a requirement to get accreditation as a correspondent to the Supreme Courts of the United States, Canada, the United Kingdom, South Africa, etc. I raise this point here not to challenge the Supreme Court of India‘s system of media accreditation, but merely to note that having raised the bar for entry, imposing further restrictions in the form of guidelines on these correspondents — all of whom have been allowed in precisely because of their knowledge of, and sensitivity towards, the functioning of the Court — seems especially superfluous.

No doubt the most experienced and knowledgeable reporter can make a mistake on a particular matter. These mistakes can be harmless, hurting only the reputation of the concerned journalist or media house. But there can be mistakes which have consequences for the reputations of the parties to a case and their counsel, or to the Bench and Court. If an error by a reporter has adverse consequences for the reputation or standing of the Court or plaintiffs, remedies exist under existing statute and court procedures and it is up to the Bench or the affected parties to invoke those remedies. If a factual mistake has been made, or wrong information conveyed, no media house can claim immunity, on the basis of press freedom, from the ordinary process of law. If the error is innocent, and the Court is convinced this is so, the matter might rest with a simple apology; if, on the other hand, mala fide is suspected, the Court is empowered to take punitive action.

Given these remedies, none of which are necessarily inconsistent with constitutionally guaranteed press freedoms, it would seem unnecessary to impose a regime of “prior restraint” or even “temporary postponement” via guidelines on what aspects of court proceedings may be reported. Indeed, such a regime would have a chilling effect on media coverage of the Supreme Court and, eventually, the entire judiciary, at great cost to the general interest of society.

It is true that the Law Commission has recommended ‘postponement’ of reportage citing jurisdictions such as Australia and Canada, where jury trials are sought to be insulated from public opinion. But in India, there is no trial by jury; and surely the judicial independence of judges — and their vulnerability to what appears in the media — cannot be the same as that of the average citizen-juror.

Of course, it is a matter of concern that sections of the print and visual media sometimes report police accounts of crimes without the necessary qualifiers demonstrating that the truth of the matter is not known. Worse still, these accounts are often attributed not to named officers but to ‘anonymous’ police sources. An individual may thus stand “convicted” in the eyes of the public without any recourse to corrective measures. The bald reporting of a petitioner’s claims or accusations can also mislead the public if presented as fact. These are real problems that require remedying. However, a true reading of Article 19 of the Constitution requires that the press regulate itself in this regard and strive, as a collective, for the highest ethical standards. Given the public’s growing disenchantment with the media in the wake of various scandals, it is also in the media’s interest to heal itself. This is a subject journalists are pursuing at multiple levels within the print media and there is also the oversight of the Press Council of India, which, under the chairmanship of Justice Markandey Katju, has re-energised itself. Imposing further judicial restrictions on democratic access to information concerning Supreme Court proceedings would amount to overkill.

Undermines people’s right

My apprehension is that if the Supreme Court, which sits at the apex of the third branch of government, were to insist that reporters covering it abide by guidelines that the Court itself lays down, this would open the door to the other branches of government — that too, at all levels — making similar demands on the media as a precondition to gaining access to Parliament and Legislatures, Ministries, public institutions, hospitals, universities, etc. The natural instinct of most politicians and bureaucrats is to hide or suppress information on one pretext or another. The adoption of media guidelines by the Supreme Court would embolden them, further undermining the public’s right to be informed. Recently, for example, a Karnataka Assembly committee tasked with investigating the scandal involving Ministers caught on camera watching pornographic material sought to blame the media for recording what the Ministers were doing. Shouldn’t you be focusing just on the official Assembly proceedings, journalists were asked.

Courts in open societies elsewhere, particularly in North America, may have had occasion to be upset with media coverage of cases but they have not sought to frame guidelines of the sort being envisaged by the Supreme Court of India. The only etiquette rules courts in the United States seem to focus on are the circumstances under which journalists may use recording devices and cameras. Today, the debate on this issue in the United States is focused on whether journalists should be allowed to carry mobile devices into the Supreme Court so that they can “tweet” live from inside without having to come outside the courtroom. The court forbids this. At issue, however, is not the right of the journalist to provide near-live coverage of a hearing, should she so desire but only whether she can use the communication technology on court premises.

Of course, journalists and editors should be honest in accepting that the reason the Supreme Court — and the government — want to step in is because the media act as if they are not accountable to anyone. Aggrieved citizens have no forum they can approach for an effective and swift remedy in the event of being injured by misreporting. Unless newspapers and television stations get serious about self-regulation, the pressure of external regulation will always remain.