Almost three scores and eleven years ago, when 'we the people of India' adopted, enacted and gave ourselves the Constitution, 'we' had placed us at the core of the country's democratic aspirations. To give effect to the aspirations of the young nation, it was indispensable to design the pillars of democracy in ways that they can check and balance each other in furtherance of the interest...
Almost three scores and eleven years ago, when 'we the people of India' adopted, enacted and gave ourselves the Constitution, 'we' had placed us at the core of the country's democratic aspirations. To give effect to the aspirations of the young nation, it was indispensable to design the pillars of democracy in ways that they can check and balance each other in furtherance of the interest of the public at large. Though the fourth pillar (the Media) remained unrecognized at the outset of our nation's journey, it eventually earned its place in the democratic scheme.
The Media & the Judiciary – Promises of Reciprocal Obligations
The diabolical attempt of the Legislature and the Executive to gag the Media, since its inception, has been strongly reprimanded by the Judiciary.[1] By fulfilling its responsibility to uphold the right of free speech and expression of the Media under Article 19(1)(a) of the Constitution of India, judicial intervention attempts to preserve and nurture the independent Media.[2]
Public participation and citizen engagement is an integral part of democratic governance. In a diverse country like India, where such participation is marred by social, economic, regional and linguistic inequalities, the Judiciary along with the Media attempt to minimise disparity in public engagement. The Media with its extensive outreach has established a connection with the populace in a manner no other democratic institution has managed to achieve. With its easy accessibility, the Media acts as a link, between the public and the other pillars of democracy including the Judiciary. However, given its popularity, it is imperative that the Media while reporting, inter alia, court proceedings, ought to demonstrate impeccable standards of ethical conduct.[3]
Freedom of Expression of the Media and the People's Right to Know
The right to freedom of speech and expression was extended to the Media as a reflection of society's assertion of thoughts and ideas. Thus, any fetters on the Media impose restrictions not only on its right to speech and expression, but also on the people's constitutionally guaranteed right to information [4]. Effective public participation in governance demands availability of information. Such information, though in public domain, are innumerable and scattered, making it less conducive for effective public consumption. Therefore, it is the responsibility of the Media to gather, assimilate, collate and disseminate information to the public, opening up channels for deliberation.
Extent of Media Reporting in Judicial Proceedings – Testing the Coverage of Oral Observations of Judges
The Madrid Principles on the Relationship between the Media and Judicial Independence recognizes the media's right to 'gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence.[5] As per the standard of practice, the Media works in furtherance of the administration of justice and not against it. However, due to some instances of overstepping boundaries, the scope of the Media reporting in judicial proceedings has perpetually come under scrutiny.[6]
Recently, a plea of the Election Commission to preclude media from reporting on oral observations of the judges was dismissed by the Supreme Court for being too 'far-fetched'.[7] The Court held that the media should be able to report on everything transpiring in the courtroom, including oral observations, to effectuate accountability and as a public trust-building exercise.[8]
Our judicial system recognises the principle of stare decisis. Generally, it is only the ratio decidendi that has precedential value. However, the obiter dicta (expression of opinion) has its contribution in encouraging judicial debate and setting out the future course of development in the field of law.[9] The presence of the obiter in the judgment and occasional reliance on the same reflect that, the means to the ends are equally important in dispensing justice.[10] It is not enough that justice is done, it is also required that justice is manifestly seen to be done. To uphold the said principle, keeping a record of the entire court proceedings is not only desirable but also imperative. A similar line of thought was expressed by the Apex Court, when it encouraged the opening up of the courts to the public, by application of technologies, like, live streaming services.[11] The Court viewed public access as 'a safeguard against judicial arbitrariness and idiosyncracy'. The transparency in the functioning of the Judiciary instills confidence in the people and increases its accountability manifold.
In a country constrained by limitations such as poverty, illiteracy, distance, cost and lack of awareness, a large segment to the public are kept in the dark about court proceedings, so much so that even the litigants are entirely at the mercy of their lawyers to get a picture of what had transpired at the hearing. Anyone present in a courtroom would know that the daily orders do not encapsulate the deliberation that take place in the court, but only records verbatim what is dictated by the judge to their stenographer. It is this gap in communication between the Judiciary and the public that the Apex Court wanted to bridge by introducing live streaming. The Hon'ble Supreme Court is yet to start streaming of hearings, but in the interim it has launched a facility to share links of the virtual hearing with the media as an extension of the same intention.[12] In the midst of the pandemic, virtual hearing of Court proceedings has indeed emerged as a befitting medium to engage with the public at large. High Courts of Gujarat, Karnataka, Orissa, Madhya Pradesh have started live-streaming their court proceedings, while the High Court of Delhi, Allahabad, Kerala have placed the video-conferencing links of the hearings in the public domain to encourage further engagement.
We cannot lose sight of the fact that the Courts are engaged in the service of providing justice to litigants in particular, and in the larger context to society. Therefore, the public, who are at the centre of the process of dispensation of justice, ought to be able to engage in such a process and the Court is duty-bound to ensure the same. The perception of the judiciary in the society is important to establish its integrity and to preserve its sanctity. If the Court looses touch with the common person or if the common person considers the Court to reside in an ivory tower, the judicial process would face a huge setback.
In Swapnil Tripathi v. Supreme Court of India, the Apex Court had, indeed, acknowledged its role in public engagement, but the reality as of today is that the debate of accessibility to the higher judiciary, especially the Supreme Court, is still very much alive. The scope of reporting of court proceedings, when juxtaposed with such harsh realities only, encourages the coverage of oral observations with the same vigour as the ratio of the judicial pronouncements. It is a duty that the democratic institutions collectively owe to the people of the country. The only caveat being that, the oral observations of the Court are not to be sensationalized or taken out of context, otherwise, it would be counterproductive and anathema to responsible journalism.[13]
References
[1] Sakal Papers v. Union of India AIR 1962 SC 305 available at https://indiankanoon.org/doc/243002/;
Benette Coleman & Co. v. Union of India (1972) 2 SCC 788 available at https://main.sci.gov.in/judgment/judis/6674.pdf;
Indian Express Newspapers v. Union of India (1985) 1 SCC 641 available at https://indiankanoon.org/doc/223504/.
[2] The Madrid Principles on the Relationship between the Media and Judicial Independence, the Preamble available at https://www.icj.org/wp-content/uploads/2013/07/Madrid-Principles-Media-Judicial Independence-non-legal-submission-1994-eng.pdf.
[3] Media and Law, GN Ray available at https://www.presscouncil.nic.in/OldWebsite/speechpdf/speech6.htm#:~:text=It is the function and,violating the presumption of innocence;
Revised Norms for Accredition of the Legal Correspondents in the Supreme Court of India available at https://main.sci.gov.in/pdf/Guidelines/revised norms of accrediation.pdf;
News Broadcasters Association, Specific Guidelines for Reporting Court Proceedings, 2010 available at http://www.nbanewdelhi.com/assets/uploads/pdf/14_SPECIFIC_GUIDELINES_FOR_REPORTING_COURT_PROCEDDINGS_15_9_10.pdf;
Rule 6(b) Norms of Journalistic Conduct, Press Council of India available at https://presscouncil.nic.in/WriteReadData/Pdf/NORMSTWOZEROONEININE.pdf.
[4] State of U.P. v. Raj Narain (1975) 4 SCC 428 available at https://indiankanoon.org/doc/438670/
Reliance Petrochemical Ltd. v. Indian Express Newspapers Bombay (P) Ltd. (1988) 4 SCC 592, available at https://indiankanoon.org/doc/1351834/
[5] The Basic Principle No. 1, The Madrid Principles on the Relationship between the Media and Judicial Independence available at https://www.icj.org/wp-content/uploads/2013/07/Madrid-Principles-Media-Judicial-Independence-non-legal-submission-1994-eng.pdf.
[6] Supreme Court of India on Trial By Media, Debmalya Banerjee and Aman Singh available at https://www.mondaq.com/india/trials-appeals-compensation/1006762/supreme-court-of-india-on-trial-by-media.
[7] Oral Observations Important, Can't Stop Media from Reporting Them: SC to EC available at https://www.livelaw.in/top-stories/media-cannot-be-stopped-from-reporting-oral-remarks-of-judges-court-discussions-are-of-public-interest-supreme-court-173480
[8] Chief Election Commissioner of India v. M.R. Vijayabhaskar & Ors. 2021 SCC OnLine SC 364 available at https://main.sci.gov.in/supremecourt/2021/11474/11474_2021_35_1502_27915_Judgement_06-May-2021.pdf.
[9] Prematurity and Obiter Dictum in Indian Judicial Thought, William D. Popkin available at https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3583&context=facpub.
[10] Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 available at https://indiankanoon.org/doc/709776/.
[11] Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 639 available at https://main.sci.gov.in/supremecourt/2017/40426/40426_2017_Judgement_26-Sep-2018.pdf.
[12] Media Provided Virtual Access to the Supreme Court, Mihir R., https://www.scobserver.in/the-desk/media-provided-virtual-access-to-the-supreme-court.
[13] Union of India v. Association for Democratic Reforms (2002) 5 SCC 294 available at https://indiankanoon.org/doc/57050385/.