Courts and the media
By: A.G Noorani
THE relationship between the judiciary and the media is by no means an adversarial one, though it can become so, if either side exceeds its limits. In India that relationship has become tense in recent decades.
The Supreme Court stretched the limits of the law of contempt and exhibited touchiness. The media did not behave well when it undertook what is called “trial by the press”. In England the trend is the very opposite, a fact which the courts in India fail to notice though the law of contempt is based on English law.
For instance on March 10, 2004 The Times wrote of one of the most distinguished lords Chief Justice Lord Woolf that he could not “quite make up his mind whether he is a liberal reformer or shop steward for the only trade union in the country whose members wear wigs and not hard hats or cloth caps”. It was referring to his opposition to reform of the procedure for the appointment of judges.
Last month, a judgment delivered by a bench of five judges of the Supreme Court of India, gave an odd ruling on the media. The issue was simple. Is it open to the media to disclose the terms being negotiated between a statutory body, the Securities & Exchange Board of India (SEBI), and a private corporation to settle a litigation? The court approximated the negotiations to judicial proceedings and held the disclosure to be in contempt of court.
Counsel for the company had addressed a ‘personal’ letter to counsel for SEBI enclosing proposals. They were confirmed by the advocates on record instructing them. A day prior to the hearing before the Supreme Court, a TV channel flashed details of the proposals. All hell broke loose.
The company alleged that disclosure to the media was in breach of confidentiality, a charge which SEBI denied. In huge public corporations, as in government offices, the source of a leak is hard to detect. What if the media had reported, instead, secret proposals on say, Sir Creek or Siachen? Would the government have prosecuted the newspaper or TV channel for violation of the Official Secrets Act?
Indeed two decades ago a journal in Pakistan published whole texts of drafts on the Wullar Barrage dispute with perfect impunity. This was in the age-old tradition of the press.
But the Supreme Court passed this order. “Such incidents are increasing by the day. Such reporting not only affects the business sentiments but also interferes in the administration of justice. In the above circumstances, we have requested learned counsel on both sides to make written application to this court, so that appropriate orders could be passed by this court with regard to reporting of matters, which are sub-judice.”
The company asked the court that “appropriate guidelines be framed with regard to reporting (in the electronic and print media) of matters which are sub-judice in a court including public disclosure of documents forming part of court proceedings” and “appropriate directions be issued as to the manner and extent of publicity to be given by the print/electronic media of pleadings/documents filed in a proceeding in court which is pending and not yet adjudicated upon”.
There began a series of hearings before the court on the advisability of framing such ‘guidelines’. What emerged mercifully was a limited order. It expounded the law on “the constitutional limitations on free speech” but declined “to enumerate categories of publication amounting to contempt”. The court will examine “the content and context on case to case basis”.
Had this obvious course been adopted at the outset the court’s precious time, spent day after day listening to pleas on the guidelines, would have been saved.
The court said it was relying on an earlier ruling, which has been fully demonstrated by the late H.M. Seervai to be wrong. It was also criticised by M.C. Setalvad, India’s first and most highly respected attorney general.
A judge of the Bombay High Court had passed an oral order in a defamation case that the evidence of a witness should not be published, because it would affect his business. The Supreme Court upheld this in 1966 and followed it in 2012.
The court’s present ruling considered some American cases but overlooked a main one. It was in the Richmond Newspaper case in 1980 when the Supreme Court of the United States ruled: “Instead of acquiring information about trials by first-hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media.
In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard.”
The media, judicially recognised as “surrogates of people”, has every right to disclose negotiations between a private company and a state corporation on a matter of public interest. What if in a similar case there is a fear in the public and the media of proposals which harm the public interest?
It is well recognised that a publication which would affect fair trial by a jury of lay persons would have no such effect on judges trained in the law. Most of the rulings were delivered before the Internet technology was invented. To be realistic a very grey zone exists between the citizen’s right to a fair trial and the media — i.e. the citizen’s right to freedom of speech.
It is well settled that the right to justice triumphs in the event of a conflict between the two. The subject deserves a dispassionate debate.
What is not open to question is that the fourth estate is perfectly entitled to, and is indeed duty bound to, oversee and criticise the conduct of each of the other three, the executive, the legislature and the judiciary. Or its part the fourth estate, like the rest, must abide by its limits without betraying its true role in a democracy.
The writer is an author and a lawyer.