Inside the Court it is not the Media, but the Judge and the Advocate who are Supreme

1. I thought of penning this article before the news “value” of the “Bar and the Media” controversy, dies down. The purpose of this article is, however, not to breed any hatred between the Bar and the Press or to foment any distrust or discontentment between the two. My only concern is that, in the escalating process of the all-pervasive media penetrating into every sphere of human activity, the position of the Bar should never be underestimated at least in relation to the Courts of justice and other cognate institutions lawfully and rightfully frequented by Advocates.


2. 19^th July, 2016 witnessed almost all television news channels replete with “flash news” and “breaking news” that a senior Government pleader in the High Court of Kerala (and whose name was also disclosed) had attempted to molest a lady on a public street far outside the High Court campus. Those TV channels had telecast the news item with such prominence as to catch the attention of all viewers both in India and abroad, unmindful of the presumption of innocence which every person accused of an offence is insulated by.


3. In every organization these days the self–restraint, sobriety and moderation shown by the elder and experienced members cannot be expected from the hot blooded youngsters. The Bar is no exception. Seeing the media highlights that a member of their association was allegedly involved in an immoral impropriety, some belligerent members of the Bar are said to have mounted an attack on the media persons found inside (and outside?) the High Court campus presumably for the reason that undue publicity was given to the alleged moral lapse committed by their comrade. This conduct of physical assault, even if true, cannot be justified by any standards. Far from indulging in the cult of violence, the noble role of an Advocate is to aid the Court in ensuring that persons who indulge in violence, receive condign punishment. In this context, a very pertinent statement was made by the Chief Minister of Kerala that nobody need go to the Court to give beatings or to receive beatings. The Court is not the venue for either of those things. The lawyer community has a grievance that all the TV channels were showing only one-sided pictures of the Advocates hitting and abusing media persons but at the same time taking care to black out scenes of the media persons assaulting the Advocates. In protest (against whom), the Advocates called for a boycott of Courts and in implementation of the same they refrained from appearing in the High Court and sub-ordinates Courts for two days. This was illegal, unethical and may even amount to professional misconduct if committed volitionally or otherwise.


4. It is said that now-a-days criminal enterprises including sex ventures and other heroisms are the hottest news highlighted by the media, as if such enterprises constitute the primary bane of our democracy.

Is it because of the erosion in the standards of the reader, that news about crimes of different grades occupy prominent place in the print and electronic media ?

Or, is it that such a low culture has been slowly and gradually inculcated in the reader through organized indoctrination by the media ?.

In either case, it is undesirable. The time has come for cultivating a more sublime attitudinal change in the readers, lest the moral fabric of the body politic may further plummet to a level of irredeemable degeneration.

5. In the quest for capturing public attention and sensationalizing even trivial news bits, coupled with the aggressive competition between the inquisitive news agencies, we are stated to be passing through a difficult phase in which unconfirmed trash news, blown out of proportions, is served to the general public. It is said that in their struggle for survival, journalistic ethics are very often thrown to the winds by many. Our memories are still fresh when the two Maldivian ladies who were arrested by the Kerala Police on unfounded suspicion way back in the nineties were got remanded to judicial custody and sketched as “sex bombs” by the media and their modesty tarnished to unimaginable levels. Similarly, the slur on the reputation caused to the renowned scientist of our space research organization still remains indelible despite the succor brought to him through the verdict of the highest Court of the country.


6. During the formative years of my professional loitering as an ostensible practitioner of law, I had occasions to see legally challenged reporters from certain dailies haunting the back benches and corridors of the High Court and ignorantly and desperately looking for help from junior lawyers to grasp truly as to what transpired in the Court hall in the cases argued there. Years later, in my capacity as the then Law Secretary also I had witnessed similar scenes in the Supreme Court as well. Even if with the passage of time some dailies might have engaged practicing Advocates as their law reporters, very often the finished product which is served to the reader is something far from truth and the law.


7. It is not out of any pre-conceived prejudice against the media that I am constrained to make these observations. In my article on “TRIAL BY MEDIA” I had occasion to highlight many instances of media excesses, irresponsible reporting and the media persons engaging and encouraging ideologically biased persons to give vent to their warped views through the visual media.


8. Exploiting the recent melee between the media persons and the lawyer community, the all-pervasive media is allegedly inching ahead with a claim of precedence over the Advocates. This can never be ceded or entertained. Even though, (unless otherwise restricted) proceedings in Courts are open to public including the media, nobody can claim any upper hand over the Advocates with regard to proceedings in a Court room, save of course, the presiding Judge who is the sole repository of power to control the proceedings. In a Court hall (whether it be in a trial Court or appellate Court) the only business which takes place is either the conduct of the trial or the hearing of arguments. Except in those rare cases where the litigating party himself ventures to argue his own case personally, it is the Advocate who is entitled to argue the cases or conduct trials in a Court of justice. The right of any other person including the parties concerned and the media comes only thereafter. In other words, the question of reporting the outcome of the case arises only after the Judge passes the verdict either immediately after the conclusion of the arguments or after pronouncing the reserved judgment on a future date. The preferential right of the Advocates as against non-advocates to occupy the seats in the Court hall has been intelligently elucidated by Mr. Justice K. T. Thomas in Jose V. Nandakumar 1993 (2) KLT 342.


9. What is ideally proper for the media is to report the factum of instituting a case before a Court and then wait for reporting the verdict to be pronounced after the close of arguments. Reporting of the arguments and oral dialogues taking place in Court prior to the passing of the verdict on a matter which is sub judice is not only undesirable but may also exert unnecessary pressure on the Judges and in certain cases may even amount to contempt of Court. When a counsel argues a case, the Judge, with a view to evoke a fruitful discussion on a point, may ask questions which are against the counsel. To an onlooker, this may give rise to a feeling in his mind that the Judge is against the arguing counsel and is siding the opposite party. If such dialogues are reported by the media even honestly and if the Judge in his verdict finally accepts the contentions of the aforesaid counsel, the public at large would be tempted to attribute corrupt motives in the Judge. Such interim reporting of the dialogues can also exert pressure on the Judge curtailing his freedom to take a particular view. In criminal cases, no Judge worth his name would dare to acquit the accused in a media sensationalized case where the media has already brainwashed the viewers to believe that the accused is guilty. A Court can convict an accused person only if there is legally admissible evidence. In abstract theory, one may say that Judges are trained men made of sterner stuff and should not allow themselves to be swayed by the media exploits. But even in the sixties, a Division Bench of the Kerala High Court noticed the damage a media report can cause even to a trained Judge when the matter is sub-judice (vide- Kochumoideen V. Nabeesan 1969 KLT 513). The damage done to the system of administration of justice by the media in such situations would be incalculable. It would appear as though the presumption of innocence until proved guilty which every accused person enjoys in our criminal justice system is applicable only to the Courts and not to the media. This is the fundamental misconception under which the media operates. If anybody wants to witness the naked violations of the rights of accused persons, one need only watch the popular television channels reporting crime news after 10:30 in the night mostly on the weekdays. Police personnel giving (with impunity) details of the investigation to the media persons during the crime stage are frequent sights in our TV channels. Allegations in the FIRs and charge sheets and the statements in the so called confessions by the accused persons to the police are all taken as gospel truth and the viewers are thrilled and regaled through the gory details of the so called brutal crimes unmindful of the rights of the accused.


10. It is said that all those habitual Advocates (barring one or two) who participated in the media discussions touching the subject, had favored the media and not their own occupational tribe. If those Advocates were denouncing the allegedly warring factions of their own tribe, they cannot be blamed for that. But if they are out to confer rights in the media larger than those of the Advocates in relation to their access to the Courts and the so called right of the media to report the arguments and dialogues, I am afraid that they are wholly mistaken. No such right can be ceded to the media. The risk which an Advocate runs when he participates in live media discussions is that, consciously or otherwise, he may always choose to wear the mantle of a media person forgetting that he is also an officer of the Court shouldering varied responsibilities imposed on him by statutory prescriptions.


11. I fail to understand the anxiety of certain political personage and even in certain quarters of the judiciary to ensure that the position of the media is restored as before. What is it that requires to be restored? There is a remedy only if there is a right (Ubi jus ibi remedium) . Unless there is injury or harm to a legal right the loss, if any, is not actionable. (Damnum sine injuria). Under the pretext of disseminating information to the public, the media cannot enjoy any right larger than that of the legal practitioners so far as Court proceedings are concerned in view of the reasons already indicated. If the confabulations going around are to restore the room which was undeservingly allotted to the media, my personal view is that the said room in the High Court complex should not be made available to the media persons. The said room which was allotted to them in the past now stands locked up by the High Court as a result of the recent war between the media and the Bar. This is the proper occasion for the High Court to dislodge the media from the said room permanently. Just because the media covers many orders and judgments of the High Court there is absolutely no justification for allotting any room for the media in the High Court complex where there is acute dearth of space. If the criterion for allotting a room for the media in Courts is for the purpose of enabling the media to report Court orders, then on similar analogy, the media will have to be allotted rooms in other public institutions like the Government Secretariat, Collectorates, Office of the Director General of Police, Vigilance Directorate, Raj Bhavan, the Public Service Commission etc which are also under the frequent coverage of the media. Nothing of that sort has been done. My personal view is that the media should not be allowed to occupy any room in the High Court complex or any other Court premises. A news is stated to have been spread that the Chief Justice of the Supreme Court of India had directed the Kerala High Court to restore the said room to the media. Apart from the fact that it is reliably learnt that it was a false news, in my view, the Chief Justice of India will be the last person to interfere in the internal administration of the High Court by issuing any such direction.


12. One reason for the bold claims put forward by the media in relation to Court premises is on account of the support from within. It is said that there are Judges who entertain media persons in their chambers. A Judge’s chamber in a Court is not the place for the Judge to entertain or exchange pleasantries with strangers who have nothing to do with the proceedings in Court. Where is the time for a Judge (who has the stupendous task of liquidating the abysmally high pendency of cases before him), to allow friends and relatives into his chamber and renew his cordialities with them? Even in cases where the Judge has to explore the possibility of a settlement between the parties in dispute before him, either both parties are together called to the chamber or if one party alone is to be questioned in isolation, his or her counsel also will be allowed to accompany him or her. If during such interviews even the counsel is excluded, then, well-informed Judges will insist on the presence of at least a member of his Court staff, preferably the Court Officer, in his chamber during such interviews. Ideally, renewal of friendship or strengthening of cordiality with friends or relatives including media persons can be had by the Judge in the bosom of his own family or in the office room of his residence. But if a Judge wants publicity for himself or for his judicial output, he may have to cease to be an idealist and fall a prey to the weakness of publicity.


13. It is said that Judges and the Advocates are two sides of the same coin and one without the other spells a breakdown of justice. But in retrospect, one cannot help mentioning the unsavory experiences in the past of certain Judges and Presiding Officers of the subordinate judiciary. Some of them were, in the past, picked up, or rather singled out, for adverse comments and condemnation of the worst kind such as usage of contemptuous epithets, burning of effigies, conducting funeral cortege, banishment, sting operation etc. Those behind such vagaries were certain opinionated politicians and / or like-minded and obliging media persons. What impelled them to turn against the judiciary was the misplaced anguish that certain verdicts were not in consonance with their ideologies. Their remedy in such situations, was to prefer appeals or revisions and not to abuse the Judges or publicly expose them to ridicule. But, the painful facts relevant here is that nobody then took up the cudgels or start any agitation to vindicate the targeted Judges who suffered in silence the ignominy. This is because of the lack of reciprocity between the Bench and the Bar for noble causes. The role played by the media on such occasions was to revel at and broach the public disgrace which such judicial personage were subjected to.

I do not claim to be an infallible idealist or an epitome of all desirable virtues. I have come to know that pursuant to my article on this subject reported in a law journal, the media has started targeting me by deliberately distorting my words and attributing innuendoes to me. What comes to my mind in this context is the reply given to his critics more than three decades ago by the great Justice V. R. Krishna Iyyer in a speech delivered after his retirement from the Supreme Court:-

The fact that I have been guilty will not make you innocent.

Justice V.Ramkumar is a Former Judge, High Court of Kerala and  Chairman, Advisory Board, Kerala Anti-social Activities Prevention  Act.

The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same.