Patricia Mukhim
“Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal. It is no grace to a judge first to find that which he might have heard in due time from the bar; or to show quickness of conceit in cutting off evidence or counsel too short, or to prevent information by questions, though pertinent.” – Francis Bacon, Essays on Counsels Civil or Moral; Of Judicature.
AG Noorani in his article, ‘Media and the Judiciary’ (Frontline, April 28, 2018) while commenting on the defamation case filed by Jay Shah against the web news portal “The Wire,” and the gratuitous comments passed by Chief Justice Dipak Mishra on the news portal said, “The judge’s seat is not a bully pulpit for a judge to embark on such an exercise at a critical stage of the proceedings while admitting its irrelevance to the case in hand. Is there any precedent in any apex court the world over for such a tirade by a judge and one admittedly unrelated to the case before him? Some have a wrong notion of the press; the failing affects judges, ministers and politicians. It is not a poor country cousin to be scolded at whim. It is the Fourth Estate, equal to the other three— executive, legislature and the judiciary. The judiciary lays down the law; the executive enforces it; the legislature makes laws. The press has a right and a duty to keep a vigil on all three.”
The media is not infallible in the same manner that judges and the judiciary too are prone to error. Judicial orders by lower courts are overturned by higher courts after all the facts have been placed in their correct perspective and after applying a higher degree of scrutiny. As part of media practice, if a person or institution is aggrieved by a particular news report (which is not prejudiced and based on facts as we are able to collate at the moment), the norm is for the person or institution to counter the report with a rejoinder. Only if the media fails to publish the rejoinder do people move court. One wonders then why the judiciary is so touchy about any criticism of its orders. If the Executive, the Legislature and the Press are critiqued relentlessly and also censured by the Judiciary, then why should their lordships be beyond criticism?
There are many who find the media offensive, intrusive and even impudent. Fortunately those are few compared to the large majority that need information to understand how institutions of democracy are functioning. Only those with vested interests and people who wield power don’t wish to be held accountable and resent media intrusion. But as someone rightly said, the media are the ‘ants in the pants’ of all those in the three other pillars that make the Indian democracy. So excuse us if we sometimes sting in the wrong places. But we are here to stay and so it’s best to accept the fact that we cannot be shouted at; not in an open court.
To help understand the role of media, one must read Edmund Burke the Irish statesman and political theorist who famously said, “There are Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sits a Fourth Estate, more important by far than they all.” Also let me add Thomas Babington Macaulay, the British historian who wrote: “The gallery in which the reporters sit has become a fourth estate of the realm.” And then there’s Lord Denning who says, “In every court in England you will, I believe, find a newspaper reporter … He notes all that goes on and makes a fair and accurate report of it … He is, I verily believe, the watchdog of justice… He [the judge] will be more anxious to give a correct decision if he knows that his reasons must justify themselves at the bar of public opinion…. If there is any misconduct on [his] part, any bias or prejudice, there is a reporter to keep an eye on him.’
Shimon Shetreat author of ‘Judges on Trial (1977) says, “The importance of the press in checking judicial conduct cannot be exaggerated. It is to be noted that only the press constantly and publicly criticises judicial conduct.”
While in India only jurists like Soli Sorajbee, Fali Nariman and AG Noorani who have transcended all judicial censure are able to write freely about the conduct of judges and to openly critique the Indian Judicial system; in other democracies the judiciary is regularly questioned. For instance, the Scottish jurist, James Dalrymple collected about nine cases of trial judges who made silly or offensive remarks and wrote of them in The Sunday Times with scathing remarks. He says, “The theory is that beneath the ludicrous half-a-pound of permed horsehair there should lie a mind free of prejudice and capable of cool judgment. At best there should be old-fashioned common sense. Yet, again and again, we see glaring examples that this is not the case with some of the judges who control our courts. A few are guilty of jarring errors of judgment. Others, through comments of appalling crassness, seem to affront human reason. From the heights of buffoonery to the dark depths of gross prejudice, they blurt out their inanities. … Corruption is almost unknown in the brotherhood of judges, but stupidity, crassness and blatant prejudice—especially against women—are not.”
The judiciary must inspire public confidence. If people present in a courtroom feel intimidated because of the conduct of a judge then the judiciary would have failed to serve its purpose. Noorani says it is not an offence in law for the Bar or the press or any person or organisation to ask a judge to retire. The crucial test is public confidence. Shetreat also maintains that if a judge behaved in a way which seriously impaired public confidence in him, he would no longer be able to administer justice and therefore should leave the bench.” But Lord Denning’s pithy observations are intuitive. He says, “A judge whose conduct invited people to ask ‘who made thee a ruler and a judge over us?’ should “not be tolerated on the bench.”
In his book Dilemma of Democracy: Diagnosis and Prescription, British barrister and Conservative politician, Lord Hailsham, gave this advice to the justices: ‘So long as you do not find your private home invaded or your personal privacy intruded upon do not treat the press as your enemy. What goes on in court is public property and it is not merely their right but their duty to report and it is their right and very often their duty to comment. Private justice is almost always a denial of justice.”
It is a pity indeed that while India adopted the British judicial system and parliamentary system, lock stock and barrel and the country has clung on to the vestiges of power that are ill-suited to a democracy when the Brits have given up many of the superfluous trappings of power because they are under constant scrutiny by the citizenry. Our courtrooms are designed in a manner that intimidates. The judge sits on a pedestal while those who appear before him/her have to be seated much below. So too the legal counsels. Isn’t everyone an equal citizen inside the courtroom with the judge being the first among equals? But Indians who are elected to rule this country have never ever wanted to let go off the trappings of power and the creature comforts that come with such power.
In conclusion, one must admit that the most important work of the judiciary is building trust in the justice system. It is in the judiciary that citizens expect to be treated equal irrespective of their stature in society. Hence along with super- intelligence to interpret the Constitution of this country the justices are also expected to carry themselves with dignity and to maintain the decorum of the courts. People come to the court to seek justice but if they are bullied and hauled over the coals even before any guilt against them is established then perhaps expecting justice from such a court would be a far cry. Some judges are in the habit of turning a hearing into a personal attack on the dignity and self esteem of those that appear before them. Why would a judge ask for the qualification of any person in order to establish the facts of the case before him? Does qualification or the lack of it render a person guilty or not guilty of what he/she is accused of? And as for journalism, the only qualification needed is (a) the passion to get a story out which is in the larger public interest (b) a deep sense of curiosity and therefore the attitude of questioning until one arrives at the best version of the truth (c) the ability to write well and to listen with empathy especially while doing stories with human interest stories (d) to give voice to the voiceless. And a degree in journalism may not necessarily equip a person with the above qualities.
The preamble of the Press Council of India says, “The fundamental objective of journalism is to serve the people with news, views, comments and information on matters of public interest in a fair, accurate, unbiased, sober and decent manner.” Period.