Court reporting: a difficult art

Sloppiness by journalists and misuse of contempt powers by judges results in poor reporting.
PRASHANT THIKKAVARAPU explains what’s wrong.

 The last issue of the Caravan on the media had an interesting piece by Saurav Datta on how the Indian media need to “take the lead in upholding standards of court reporting”. Although Datta complains of the lack of accuracy and comprehensiveness in reporting on the courts, one aspect of his own piece unfortunately suffers from the same problems.

He states: “The question of norms for court reporters arose again in 2012, in Sahara India Real Estate vs. SEBI, when Sahara complained to the Supreme Court that inaccurate reporting about the case had skewed public opinion against the company.” 

Those facts aren’t very accurate because Sahara’s main complaint was not about inaccurate reporting skewing public opinion but that the media had reported on a settlement offer which had been made in confidence to SEBI. 
Acting on the complaint, the Supreme Court noted “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 in the form of an I.A. so that appropriate orders could be passed by this Court with regard to reporting of matters, which are sub-judice.” 
The result was a judgment allowing the courts to impose “postponement orders” which prohibited reporting on a case which was sub-judice. 
This, however, is only a minor defect in Datta’s piece. The glaring blunder lies in his claim that “The rule hasn’t been invoked since, and the debate has once again died down—again, without the media closely analysing the question of what sort of standards should exist.” 
In fact, the “postponement rule” in the Sahara case has been invoked by the Delhi High Court to “postpone” the media reporting on the scandalous sexual harassment charges against Justice Swatanter Kumar. Its judgment on this point was rather confusing since the Court didn’t preclude fair reporting but “postponed” a certain kind of reporting.
As a result, most of the media stopped reporting on the case because nobody wanted to risk a contempt notice for not following the aforesaid confusing judgment. Given the lack of a media spotlight on the charges against Justice Swatanter Kumar, public pressure eased off and he continues to head the National Green Tribunal. 
The intern who accused Justice Kumar is now a defendant in the defamation suit filed by him and while he has received interim relief in his defamation suit, the intern is yet to receive justice in her complaint to the Supreme Court of India. 
This outcome is the nightmare scenario warned of by critics of the Supreme Court judgment in the Sahara case. This case should not be forgotten because it is a perfect case study of why we should have more, not less, media scrutiny of judicial proceedings. 
Returning to the main issues raised in Datta’s piece, I wholeheartedly agree with his overall analysis of the issue. To add to his analysis, I think the problems with court reporting needed to be put into two categories: the problem within the media itself and the problem with the judiciary. 
On the first, the lack of accuracy, clarity and comprehensiveness has a lot to do with poor editorial control and a blatant disregard for even the basic rules of journalism. Unfortunately, this problem is not limited to cub reporters, even veterans are guilty. 
One of the best examples of bad journalism involving reporting on judges is an article by Manoj Mitta: it reports on how a group of public health activists had publicly demanded that Justice Dalveer Bhandari recuse himself from hearing a high-profile patent case involving Novartis because he had participated in two international conferences organized by an international association of IP Owners, which included Novartis. 
This report was published on the morning of the hearing and led to Justice Bhandari recusing himself from the case in the afternoon, despite having heard several hours of arguments. While Mitta did give an accurate account of the complaint by the activists, there was no attempt to offer any objective view of the issue. A quote perhaps from a senior advocate or a law professor would have provided the reader with information on whether judges are required to recuse themselves in such cases. 
Mitta isn’t the only experienced journalist to take the basic rules of journalism casually. We’ve seen other veterans throw ethics to the wind during the anonymous reporting that scuttled Gopal Subramanian’s appointment to the Supreme Court as a judge. The Hoot published a piece on this affair here. Similarly, even editors tend to forget landmark judgments while running a front page story on how Amit Shah may be put through narco-analysis: The Hoot published a piece on this here.
While journalists are certainly at fault, I’m afraid the judiciary cannot escape their share of blame. There are two problems. The first is the abuse of contempt powers by the judiciary.  Indian judges are extremely unpredictable when it comes to the issue of contempt (the Hoot has a piece on the contempt issue here). The abuse of contempt powers cause editors to self-censor.
The second problem is the lack of verbatim transcripts of judicial proceedings and the lack of access to pleadings. In other countries, verbatim transcripts are maintained of judicial proceedings and pleadings are comparatively easy to access. Access to verbatim transcripts and pleadings will make it much easier for reporters to get the whole picture and report more accurately.There is no sign of either of these problems easing off in the near future. 
Until then we just have to hope that editors tighten the screws on their reporters. 
The writer is a Delhi-based lawyer.
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The new term for self censorship is voluntary censorship, as proposed by companies like Netflix and Hotstar. ET reports that streaming video service Amazon Prime is opposing a move by its peers to adopt a voluntary censorship code in anticipation of the Indian government coming up with its own rules. Amazon is resisting because it fears that it may alienate paying subscribers.                   

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