As far as substantive criticism of decisions is concerned, there ought to be no restraints on commentary, whether in the news media or elsewhere. All citizens should be free to comment on them. By SIDHARTH CHAUHAN

WITH their presumptive eagerness to cast legalese into newsworthy material, journalists who report ongoing litigation are often seen as a cause of irritation and distrust by the primary participants in the legal system. Judges and lawyers are known to repeatedly chastise the press for problems such as undue sensationalism and inaccurate reporting in matters concerning the law. The decisions made in cases that attract a lot of visibility do have a bearing on public confidence in the judicial system. This flows from the expressive value of conducting litigious proceedings and arriving at decisions in a manner that can be readily understood by citizens at large. At the same time, it must be borne in mind that the requirements of “open justice” do not extend to blind reliance on the transient positions of the numerical majority. The judicial process is consciously designed to filter out emotive and impulsive considerations that often prevail in the metaphorical court of public opinion.

In spite of this, judges may unintentionally play to the gallery on account of increased sensitivity to issues that attract more discussion in news forums, be they in the print, broadcast or digital medium. This can be observed in numerous functions such as the amount of time spent by judges in preparing for oral hearings, time allowed for oral arguments, the quality of the questions posed to the lawyers, the depth of the deliberations amongst the judges in a Bench and, most tellingly, the manner in which orders and judgments are written. Such prioritisation is at least partly, if not significantly, shaped by what sitting judges see, hear and read in the news media, in relation to both the substance of a controversy and the description of their own involvement. In the context of the Supreme Court of India, an open acknowledgment of this symbiotic relationship with the press can provide a better understanding of why and how the justices often prioritise one case over another, especially given the limited time and resources at their disposal for handling a multitude of freshly instituted cases every week.

However, one can sense some discomfort with this realist view, especially in light of a judgment that was pronounced by a Constitution Bench of the apex court last year (see order in Sahara India Real Estate Corp. Ltd & Ors vs Securities and Exchange Board of India, pronounced on September 11, 2012, by the then Chief Justice of India S.H. Kapadia). The origins of the case lay in a dispute where a particular investment scheme floated by a private firm was under the scanner of the securities regulator. The firm alleged that its business reputation was seriously damaged after a news story carried on a television channel disclosed the contents of a letter that it had sent to the regulator. The grievance was that unchecked reporting or commentary on a sub judice matter (that is, a case pending for adjudication) was likely to cause prejudice in the minds of the adjudicators. This grievance was the point of entry into a much broader attempt to frame guidelines for the reporting of legal proceedings. Framed as a balancing act between press freedom and the integrity of judicial proceedings, the judgment crafted a new remedy wherein litigants can seek postponement of the publication of news coverage relating to their cases. While explicitly acknowledging this as an act of judicial lawmaking, it was prescribed that litigants who apprehended a “substantial risk of prejudice” in ongoing trials could approach the respective High Courts by way of filing writ petitions to seek such postponement. The duration and form of enforcing this postponement would then be decided by the High Court, effectively empowering litigants in lower courts to seek temporary “gag orders”.

The declaration of this remedy rested on the reasoning that the “freedom of speech and expression” enumerated in Article 19(1)(a) of the Constitution is not absolute and must yield to the rights of litigants to receive a fair trial, the latter being derived from the open-textured protection for life and liberty enumerated in Article 21. This judgment has been criticised as an exercise in judicial overreach, given that it imports a remedy that appears in the Contempt of Courts Act, 1981, of the United Kingdom and has no textual basis in Indian law.

The assumption in the judgment was that uncontrolled reporting of court proceedings frequently hurts the litigant’s expectation of fair adjudication, thereby warranting the use of the law of contempt against erring news providers. In that sense, the new remedy of allowing litigants to seek postponement orders was described as a preventive measure that would help reporters avoid such harsh measures. This line of reasoning is not just baffling; it also appears to be circular. The judgment made the leap towards a prophylactic measure even though the perceived cause of the harm that was sought to be avoided, namely prejudicial reporting, had not been sufficiently demonstrated. Stated in more general terms, should we make a blanket assumption that judges will necessarily make bad decisions if there is intrusive, excessive or inaccurate reporting about ongoing or pending matters? Given that the apex court was considering general prescriptions, we can surmise that special attention was reserved for those suspected or accused of having committed violent crimes, especially since their identification in the press and the publication of stories recounting the details of their alleged actions are more likely to vitiate the “presumption of innocence”. The need to prevent a “trial by the media” from playing on the mind of a trial judge is on a higher footing in criminal cases since the liberty of the accused is at stake.

However, attempts to regulate the reporting of what happens in criminal proceedings can also be easily undone since journalists can gather information from the investigators, witnesses and other interested parties outside the courtroom. Reports and commentaries can be framed so as to avoid direct discussions of courtroom proceedings and yet disclose information that might lead to assumptions of guilt and undeserved social stigmatisation of the accused. It is difficult to buy the claim that this newly announced remedy will generate marginal gains over and above the interests that have already been protected under existing statutory provisions. For example, trial judges can order in-camera proceedings to protect the privacy of litigants, especially in cases involving matrimonial disputes, sexual offences and the rights of minors. This power was prominently used in the ongoing trial of the accused in the Delhi gang-rape incident of December 16, 2012. The members of the press have by and large cooperated with the trial judge to respect the privacy of the deceased victim’s immediate family. The relocation of an ongoing proceeding is another device that is available to neutralise the effect of prejudicial reporting on the adjudicator and the risk of physical harm to unpopular defendants.

Apart from prejudicial reporting, there is also the problem of statements made by lawyers and judges being misrepresented or quoted out of context. In some cases, inaccuracies in reporting can either feed into or escalate into unsubstantiated criticisms directed against judges and their decisions. Very often, selective quotations of statements made or questions asked in an argumentative capacity inside the courtroom are conflated with the final disposition of the case. Undeniably, uninformed reporting of this kind can portray the judicial process in a poor light. This begs the question of whether courts should insist on some entry-level qualifications for legal correspondents. One can readily anticipate the objection that journalism does not necessarily require previous training or expertise in the subject matter that is being reported or commented upon.

The Supreme Court, acting in its administrative capacity, has already prescribed a bachelor’s degree in law coupled with seven years of experience in covering lower courts as requirements for accrediting correspondents. Those who are accredited are given the daily-cause lists in advance so as to help them keep track of the concurrent proceedings before the multiple Benches. Despite such filters, justices routinely make observations about how their own statements are either misunderstood or selectively quoted.

In respect of substantive judgments rendered after lengthy hearings, this problem has been curtailed to a large extent since the text of the decisions is made available on the Internet through the Judgment Information System (JUDIS). Furthermore, substantive judgments are published periodically by way of official and commercially run law reports. As suggested elsewhere, errors or inconsistencies in the reporting of substantive judgments can be minimised by publishing court-approved summaries that clarify the legal propositions for a general readership.

Lack of reliable records

However, oral arguments by lawyers and questions asked by justices during preliminary hearings in particular are prone to misquotation in the press, sometimes even by seasoned hands. Much of this gap in translation arises owing to the lack of reliable records of the entirety of the proceedings. On Mondays and Fridays, the various Benches of the Supreme Court hear preliminary arguments on whether the cases before them should be admitted for a substantive hearing on the merits of a case. Given the large number of cases processed by each Bench, these proceedings tend to be hurried and the exchanges between the Bench and the respective lawyers are usually quite short.

In most of these preliminary hearings, it is difficult for anyone else in the courtroom to even comprehend the facts of a case, let alone form an authoritative opinion on the merits of the same. As Nicholas Robinson’s study on the Supreme Court’s caseload has shown, a fairly large proportion of cases are either dismissed in limine (that is, without statement of reasons) or with short orders passed after the preliminary hearings. The official records compiled by the court staff are limited to the disposition of the case or short orders, thereby leaving only journalists with a keen sense of hearing and prompt note-taking abilities able to record the entirety of what is said inside the courtroom. The more resourceful reporters cultivate connections with lawyers so as to gather the relevant information from them outside the courtroom. This is at best a piecemeal solution since many lawyers are understandably reluctant to share the content of their pleadings before the final disposition of a case.

A far more effective means of preventing inaccurate reporting would be that of comprehensive and reliable record-keeping of the proceedings in court. This can be easily achieved through audio-visual recording of the proceedings or at least the recording of the oral utterances. While the suggestion for court-authorised recording may face the familiar obstacle of budgetary limitations, one can make a limited case to allow interested parties of all kinds, be they lawyers, litigants, journalists or even a casual visitor, to record the proceedings on their own.

However, this suggestion appears to be contentious if we take note of an instance that took place in the Delhi High Court on March 15 where a judge refused permission for a litigant who wanted to record proceedings inside the courtroom. In fact, a lower court had rejected a similar request from the litigant before he approached the High Court in appeal. The judge’s reluctance led to an unruly exchange in the courtroom and might have undermined the litigant’s credibility for future engagement with the same issue.

Nevertheless, the concern raised is valid. A comprehensive record of the oral utterances in courtrooms is likely to improve the quality of court reporting and the performance of the judges themselves. If authenticated recordings are made available to sitting judges, they can be useful for revisiting the oral arguments and thereby improving the quality of both the subsequent deliberations among the members of the Bench and the eventual writing of judicial opinions. Given that there is a strong emphasis on oral arguments in Indian courts when compared with their Western counterparts which place more importance on written briefs, the gains from recording the former will be considerable since written briefs frequently do not capture the nuances of a case with the same depth. In the alternative, permitting interested parties to record proceedings in their private capacity will also generate noticeable gains, principally that of improving public confidence in the courts.

As far as substantive criticism of decisions is concerned, there ought to be no restraints on commentary, whether in the news media or elsewhere. Judicial opinions become a matter of public record, and all citizens should be free to comment on them irrespective of their lack of training or proximity to legal practice. Should there be errors in reporting, pointed clarifications can be issued. As pointed out earlier, lawyers, litigants and other interested parties frequently use the press to draw attention to contentious issues and the merits of the case for their respective sides. Whether such attention forms part of a credible feedback loop for the judges is a subject of deep disagreement. It is still not too late for sitting justices to recognise the role of legal journalists as important contributors in our justice delivery system.

Sidharth Chauhan has previously clerked in the Supreme Court of India, New Delhi, and taught at the National Law School of India University, Bangalore.