Judging Judges

Freedom of speech is a right that is gaining in value in India. At the same time, restraint in public discourse is confronting a high strung emotionally overblown hysterical form of self-expression

When it comes to a conflict between constituted judicial power and conflicting political ideology, the most poignant image yet is Arundhati Roy being convicted for contempt of court in 2002 because she did not agree with the Supreme Court on India’s developmental priorities. In speaking out for displaced persons during the construction of the Sardar Sarovar Dam, her language was barbed and scathing, exactly as we would expect from a writer as gifted as her writing on a subject as emotional as the rights of the dispossessed in any democratic society. Whatever side of that political divide you stood, you could be forgiven for thinking at that point that in post Y2K India, you can ridicule anyone’s views you please, but that privilege does not extend to ridiculing the judiciary’s views. You may ask, why?

The legal principle does not explicitly come from the idea that our judicial system stands on a pedestal equal in stature to our holy cow: it comes from our law on contempt of court, and that is about the objective administration of justice. Very briefly, there are two kind of contempt, civil and criminal. If you disobey a court order, or fail to honour an undertaking you have given to a court, you are guilty of civil contempt. On the other hand, if you publish something that does one of three things – scandalises or lowers the authority of any court, or prejudices the course of any judicial proceedings, or interferes or obstructs the administration of justice – you are guilty of criminal contempt. It is as serious as it sounds!

This does not mean that you can’t report on court proceedings: it does mean that you can’t candidly pass adverse judgments on judges or their judgments. For the sophisticated English language press run out of India’s biggest metros, this means you report facts but not your views. If you do need to run opinions, you find a lawyer to hold forth on his expert exposition of the issues. Now, if you have been reading this monthly column for the twelve years or so that I have been writing it, clearly, I am marching to the tune of quite another drummer. It’s not just me though.Check out Facebook, or Twitter, or a hundred other websites that take in comments. Going by the shrill standard you find on the websites of newspapers and TV channels, I am unworthy of notice!

Just so there is no misunderstanding, be perfectly aware that everything you post on Facebook, or Twitter or punch in as a comment on any website including mine, is ‘publication’. We are all authors and publishers now! Anything you say can and will be used against you. You have the right to an attorney, etc etc. Jail and your motor mouth are now closer than they have ever been at any time in human history.

But if that is so, you may wonder, then how come you and your Saturday night demagogues so exuberantly wrote whatever served your fancy in the anger-management-challenge-turned-anarchy upshot of the Nirbhaya Rape case? What about the rights of those bus borne desperadoes to a fair trial? Given the pressure ‘the public’ had generated on the police and the courts, did those guys ever have a ghost of a chance? Why didn’t the courts gag the public? What about the objective administration of justice then? It’s possible for you to take a cynical view. You could argue that the courts will detain a pamphleteer to protect the interests of big business but it will not detail the screaming public to protect the interest of an illiterate desperate halfwit from a slum with a severely inhibited moral yardstick.

Personally, I don’t think this is true. Early in September this year, CBI Director Ranjit Singh petitioned the Supreme Court to restrain the media from reporting on the contents of the visitors log book at his residence which purportedly showed that some 2G and Coalgate accused tramped up to his home rather too often. He said this was “a matter of his privacy” and publication would cause “irreparable damage to his reputation”. The current Chief Justice of India refused, observing that “We have no control over the press. We only have control over proceedings in the court. Everybody is expected to know what they should do and what they should not”.

What are we to make of this? Is the court slowly abdicating the judicial power it has always possessed to keep the public trap firmly shut? I don’t think so. The court has traditionally been very reluctant to exercise this power at all. The issue is both ideological and cultural. Freedom of speech is a right that is gaining in value in India even though this ideological conflict is far from over (as attested by Salman Rushdie’s tribulations).  At the same time, India is experiencing a cultural dialectic, where a neo-classical restraint in public discourse is confronting a high strung emotionally overblown hysterical form of self-expression. Amidst this social evolution sits the judiciary observing the antics not only of haemorrhaging TV celebrities but also retired members of its own community including but not being limited to our inimitable Chairman, Press Council of India. The result is an ever greater judicial self-restraint.

A long history bears the judiciary out. In 2009, NDTV broadcast a celebrity sting programme recording the attempt by a senior advocate to bribe a witness. Did this broadcast prejudice the accused during the upcoming judicial proceedings? In R.K. Anand v. Registrar High Court [(2009) 8 SCC 106], the Supreme Court held that the sting programme served an important public cause. Were we to understand that you are free to obstruct justice if it serves a public purpose? Was the court evolving a judicial principle? Generic judicial reluctance is probably a more accurate answer.

Speaking of celebrity cases, when actor Salman Khan sought to extract publicity mileage even from the tragic death of a pavement dweller in a hit and run case by creating a website which reported daily developments in the case, the court issued notice to determine if he was in contempt of court. In Salman Khan v. Hemant Patil, the court held that so long as he is not misleading the general public, there can be no contempt. That left open the question where the leading ended and the misleading began!

Then there was the case of Leo Roy Fray vs. R. Prasad [AIR 1958 P&H 377] where a newspaper sensationalised a customs case by using provocative expressions such as ‘smuggler’ and publishing photos of the car in which contraband was carried. Again, the court said that publishing extracts from a collector’s order while filling in background facts was not contemptuous.

Now, as opposed to these decisions, we have the case of M.P. Lohia v. State of West Bengal[2005(2) SCC 686] where an article titled “Doomed by Dowry” was published carrying the version of events narrated by the family of the deceased bride, especially the distraught father. Here, the Supreme Court took the view that “the facts narrated therein were all materials that may be used in the forthcoming trial in this case and we have no hesitation that this type of articles appearing in the media would certainly interfere with the administration of justice”. The court pointedly condemned the publisher, editor and the journalist “who were responsible for this trial by media when the issue (was) sub-judice”. Clearly, disclosure of facts to be used in a trial do prejudice a trial.

The Punjab and Haryana High Court followed the same logic in Court on its own Motion vs. Times of India [CWP 7160 of 2013, decided 4 April, 2013] in relation to a report regarding the auctioning of mines in the Aravallis by the Haryana Government one day before the case was listed for hearing in the court. The court asked for restraint in the manner of reporting but then chose not to proceed with contempt in order that “right to freedom of speech and expression (may) prevail without any hindrance”.

Clearly the court does not always speak in one voice, or with one mind, but this we already know.

Which brings up the opportunity presented by the leak of certain confidential information between Sahara and Sebi’s lawyers in the case of Sahara India Real Estate Corp. v. Securities Exchange Board of India [(2012) 10 SCC 603] to definitively decide this issue once and for all. Following this security breach, parties asked the Supreme Court to frame guidelines for the reporting of sub-judice cases. The Court declined to oblige, observing only that an aggrieved person could approach the High Court or the Supreme Court with a writ seeking postponement of a publication which could impact a trial.

What does this mean? Has the onus to “control” publishing content shifted from the publisher to the victim of a prejudiced trial? Is it for the accused to try and bolt the barn door after the horse has bolted?If I take this view at face value, I would consider myself completely free to express any opinion on any judicial decision this side of slander. Naturally, when a very respected journalist expressed reservation over my high pitched criticism of Mr Subramanium Swami’s attack on National Herald not least because it impacted my firm’s M&A business, I could do no better than draw attention to the violently hurtling comments on social media, to say nothing of the sarcasm, repartee and derisive laughter in Aap Ki Adalat. That said, given the complexity of the issue, I ask myself if the Supreme Court’s pronouncement in Sahara India is quite the last word on the subject. After all, given human nature, when any of us confronts a truly difficult issue to which we have no ready response, we trust in God and pray it will go away. It usually doesn’t and so, like an itch we can’t shake, this issue too will be back!

Originally Published on October 29, 2014 in Businessworld


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