Second Line Of Judiciary?

BY Dasu Krishnamoorty| IN Media Practice | 06/01/2003

Second Line Of Judiciary?



It would be in the interests of both the media and the judiciary if each respected the jurisdiction of the other.


Dasu Krishnamoorty




When a court of law convicts politicians, they threaten to go to the people’s court. From Jayalalitha to Laloo Prasad Yadav to Praveen Togadia, politicians seem to treat these courts as having greater legitimacy than courts set up under the Constitution. There is yet another alternative window of justice: the media. This is the conclusion I draw after leafing through just a week of newspapers.  The picture they yielded less than flattering to two of our most important social institutions, the judiciary and the media.


 The judiciary has recently hit the headlines with several scandals involving the judges. Even as Arundhati Roy’s case demonstrated the fragility of judicial restraint, Karnataka High Court’s cases against 14 media organizations and 56 persons indicate a more acute case of judicial intolerance. I agree with the Hindu editorial (8th December, 2002) describing the action of the high court as a pointer to the anachronistic state of the law. It is a travesty of justice as well as jurisprudence when a judge presides over the hearing of a case in which he is the complainant. The contempt law effectively insulates the judiciary against public scrutiny of its performance and represents the paradox of a judge trying a case in which he has a direct interest. It must go.


However, notwithstanding the cases where the judiciary initiates action against the media under the contempt law, neither side actually absolves itself of culpability. More often than not, the judiciary treats an apology from the media as admission of guilt and as penalty for the offence, treating the media on a different footing from others, a case of discrimination in favor of the media.


Even where it was conclusively proved that a newspaper published a scandal involving the sons of Supreme Court judges, the court satisfied itself with an apology. A Sunday paper carried some time ago a story alleging allotment of petrol outlets from the discretionary quota of the Petroleum and Natural Gas Ministry to two sons of a Supreme Court judge and two sons of the Chief Justice of India. Surprisingly, the apex court was satisfied with an apology and an acknowledgement by the newspaper that the story was false and incorrect.


The recent scandals involving judges in several states do not render the basic premise of judicial impartiality irrelevant. For the press to discuss a court trial even before the verdict is delivered is a departure from the tradition of media objectivity. I refer to two sets of articles that appeared recently in the press that give the impression of the press grabbing the ball while it is still in the court of the judiciary. There is Ram Jethmalani’s article in the Times of India on the Bofors case, a three-part article by Anjali Modi in the Hindu and a Zee TV telefilm,  all discussing the trial of the accused in the 13 December attack on Parliament.


Let us begin with the case against the broadcast of the telefilm. According to a special correspondent’s report in the Hindu (13 Dec. 2002), the Delhi High Court has stayed the broadcast of the Zee telefilm. Counsels for the accused in the 13 December attack argued that the film vitiated their clients’ right to a fair trial and that could prejudice the outcome of the case. According to the correspondent, the film was made in 16 days and based on the police chargesheet. The counsel said that the film based on one version of the events "amounts to a pronouncement of the accused’s guilt, which they have no right to do." A Zee representative says that his channel accepted the police version. In this article, I am making the same point that the counsel for the accused made before the High Court. It is wrong for Zee to say that they accepted the police version. It must wait for the court verdict and then accept it or contest it in a court of law again and not in the people’s court or media court.


The Times of India (10 December, 2002) carries an article by Ram Jethmalani, a former Union Law Minister and a very senior advocate of the Supreme Court, in defense of the Hindujas who have appointed him as their defense counsel. On 29 Nov. 2002, he made a motion in the Supreme Court asking for an early hearing of an appeal made by the state and for the stay of the case scheduled to start a few days later. On the same day, Jethmalani says, a scurrilous article had appeared in one of the newspapers. He does not name the newspaper nor does he say if it is about the case against the Hindujas. One has to assume that Jethmalani’s TOI article is a rejoinder to that article which he should have sent to the same anonymous newspaper. I do not understand TOI’s compulsion in accepting a rejoinder to an article it did not publish.


Then he goes on to show how one of the Hinduja companies, the McIntyre Corporation, made payments but not for the supply of Bofors guns.  The payments were made under a contractual agreement that existed from the 70s for business outside India. The Swiss, according to him, proceeded to file a charge sheet against the Hindujas ignoring their plea to wait for the arrival of the documents and evidence they had asked for. Here, Jethmalani brings the press into the picture, complaining that the charge sheet had been leaked to the press. The entire article is about how the delay in hearing the Hinduja case is a denial of justice. He makes some more points and says that the prosecution of the Hindujas is a miscarriage of justice.


Admitted that there has been a miscarriage of justice. Is the Times of India the proper forum to appeal against injustice in the courts? Or is he trying to elevate the Times of India to a parallel tribunal to hear appeals against the judiciary? He, as a veteran jurist, knows that a newspaper or any other non-judicial body has little power to expedite the trial. The obvious conclusion is that he wants with the help of the media to influence judicial inclinations. It is unethical by any standards that having submitted a case to the judiciary, one should discuss its pace outside that forum. Jethmalani could use his professional skills to impress upon the judges the need to expedite the case. He could even point out that delay itself is a negative form of judgement.


Let us forget about the contempt of court law or even the injunction against discussing matters sub judice. To me, it looks like Jethmalani is appealing to the Times of India because the court is not going the way he wanted it should. I am also at a loss to see the relevance of an article in ‘one of the newspapers’ he referred to at the beginning to his present article in TOI. It is again unethical for the Times to provide crutches to a person whose eminence is enough to weigh with the judiciary. It is the most injudicious use of space that legitimately belongs to that class whose views go unrepresented and unheard in influential forums including the media.


In several issues beginning with 9 December 2002, the Hindu donated space to a series of articles by Anjali Mody for discussing the case pending against the accused in the 13 December blast in Parliament. The last of the first series appeared on the day judgement was due to be delivered. According to her, the POTA court of S.N.Dhingra, examining the innocence or the guilt of the four accused, completed the trial in less than six months, including court recess, at a pace unprecedented in the history of the Indian judiciary.


This, in my opinion, is not a very subtle way of imputing motives to the judiciary. (Ironically, the Deccan Chronicle carried an editorial on December 20,2002 commending the designated judge for the very reason Mody condemns him. It says, "The prosecution is entitled to kudos for pursuing the case with remarkable speed and leading it to a successful conclusion in record time.")


 One of the accused is a woman who Mody says, is pregnant. The word pregnant is used as a means to evoke reader sympathy and as an alternative to argument, to show how inconsiderate the government is. She  forgets that scores of pregnant women are routinely arrested in the country for various offences. Is it wrong solely because the accused woman is JeM `commander’ Ghazi Babi? She mockingly tells us " it was an attack at the heart of Indian democracy, we are told." She complains that a disinterested media ignored the trial and  goes on to discuss the details of the prosecution case, protesting that the accused Afzal was presented before the media. Then she discusses the defense case, in the process erasing the line between defense observations and her own remarks.


Mody is right in protesting the presentation of the accused before the media. It raises several questions. There are norms about publishing names and pictures of victims of rape and juvenile delinquents. However, it is now a regular feature of TV and print media to not only show them but also interview them, sometimes doing the job of a defense counsel and sometimes a prosecutor. For the prosecution to present the accused before anyone but the judge is unpardonable. But can the police force the media to take notice of the accused? The latter need not have, if it was scrupulous.

Let us see Jethmalani’s reference to the leakage of the chargesheet to the press. Agreed that such leakage is unethical but why did the press publish the leak? While Mody complains that the trial was unprecedentedly hurried, Jethmalani makes out a case for speeding up the trial proceedings. These contradictions surface at a time when the country is discussing judicial delays and problems of clearing the mountains of pending cases. In the remaining parts of the article, Mody mixes her own remarks with those of the views of the defense. She finds loose links in the prosecution`s chain. She mentions some facts the prosecutor had disclosed to the press (leakage, again!) but not to the court. Here both the prosecutor and the press are to blame.


My objection is: why should anyone use the press to defend or prosecute persons whose cases a court is already seized with or why should the press allow itself to be used for this purpose. Mody’s series ending on the day the judgement was to be delivered clearly amounts to setting up a parallel court. In matters of justice, nobody has the right to be heard simultaneously by the courts and the press. All one wants to say could be said before the court takes up a case or after it delivers its verdict. This discipline applies to the common citizen as well as the press.   The press cannot encourage a breach of this discipline. It is still free to comment on a judgement or on a miscarriage of justice. I am as against the contempt of court law and its misuse as I am against the misuse of media space to duplicate the process of justice. 


Naunidhi Kaur (Frontline 6 December 2002) too makes the same points the defense counsels made in the case of Syed Abdul Rehman Geelani, professor at Delhi University and an accused in the 13 December 2001 attack. Here she makes the same point I have been laboring to make: media trial. "Although Geelani did not make any confession, reports in the media claimed that he had acquired Rs. 22 lakhs by helping in terrorist activities. The media trial that followed, feeding the material handed by the police, made matters worse," she says. True. The media have no business to publish the version of either the police or the defense. Naunidhi’s article clearly shows that certain newspapers took the side of the prosecution, which is as bad or as good as the other newspapers taking the side of the defense.


The media cherish their independence and must recognize that independence is as essential for the judiciary to deliver justice as it is for the media. Any running commentary on cases pending before a court is likely to prejudice the outcome of the trial. The victims in such an event sometimes could be the very same persons the media are trying to defend or prosecute. The editors are familiar with pressures from the public relations and advertising industry to smuggle viewpoints into the media. They must see that the judiciary is free from such pressures.








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