Watching the Justices

On September 11, 2012, the Chief Justice of India S.H. Kapadia pronounced the decision in Sahara India Real Estate Corp. Ltd. & Ors. v. Securities and Exchange Board of India, writing on behalf of a five-member constitution bench of the Supreme Court of India. This bench had previously heard substantive submissions to consider the possibility of framing guidelines for regulating the reporting of court proceedings in the press. The origins of this case lie in a dispute where a particular investment scheme floated by the Sahara India Real Estate Corp. Ltd. was under the scanner of the securities regulator and the consequent litigation had reached the apex court. This firm voiced concerns about damage to its business reputation after a television channel had disclosed the contents of a letter that it had sent to the regulator. The correspondence disclosed in the press included the contents of a proposal for complying with the court’s interim orders in the pending dispute. The grievance was that such publication had not only hurt the firm’s reputation but had also interfered with the adjudication of a pending case. The premise being that unchecked reporting or commentary on a sub judice matter is likely to distort the decision-making process. This grievance proved to be an entry point for a roving inquiry. Given the fact that a battery of lawyers had appeared in the arguments on merits that were spread across seventeen working days (between March 27 and May 3, 2012), one would have expected a rigorous discussion on the relationship between the courts and the press. However, the decision does not go as far as some had anticipated during the hearings, both in terms of its reasoning as well as the outcome.

Framed as an attempt to draw a balance between press freedoms and the integrity of judicial proceedings, the judgment recognises a new remedy wherein litigants can seek postponement of the publication of news-reports about cases in which they are involved. It is clear that such orders can be sought in respect of all forms of media, be it of the print, electronic or digital kind. While explicitly acknowledging this as an act of judicial-lawmaking, it was prescribed that litigants who apprehend a ‘substantial risk of prejudice’ in ongoing trials can approach higher courts by way of filing writ petitions to seek such a postponement. The specifics of such a postponement would then be decided by the higher court, effectively allowing litigants in lower courts to seek temporary ‘gag orders’ when they apprehend prejudicial reporting. The creation of this new remedy rests 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 derived from the open-textured protection for life and liberty enumerated in Article 21 of the Constitution. Given that the apex court was dealing with the internal tensions among two distinct fundamental rights, one would have expected some more substantiation in support of its ruling.

The relationship between the judicial process and public opinion is a complex one. At one level, one can argue that the verdicts rendered in cases that attract a lot of publicity do have a bearing on public confidence in the judicial system. In this vein, there might be something to say in favour of an approach where judges are attentive to the currents of public opinion, as expressed in the press and elsewhere. There is also an expressive value in deciding cases in a manner that can be readily understood by the layperson so as to mitigate the perception that the judicial process is elitist and disconnected from widely held beliefs. However, the requirements of ‘open justice’ do not extend to blind reliance on the transient positions of the numerical majority. Adjudication in the common-law tradition principally relies on an adversarial form of litigation, where judicial discretion is constrained by elements such as the presentation of evidence and arguments in the courtroom, the principles upheld in past decisions and in some cases higher values enshrined in sources such as a Constitution. The judicial process is consciously designed to filter out emotive and impulsive factors that often shape public opinion. Furthermore, courts in liberal democracies are expected to discharge a countermajoritarian role, wherein they are often required to go against the grain of collective interests in order to safeguard the rights guaranteed to individuals and minority groups. A judge who is excessively concerned about public approval is very likely to arrive at a decision that compromises these features. While there may be some happy coincidences where the decision arrived at inside the courtroom may be in sync with public opinion, the latter cannot be held up as a factor that shapes the outcome in the first place.

In most common law jurisdictions, such issues are unlikely to be addressed through the judicial route. The judgment can readily be criticized as an exercise in judicial overreach, especially since 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. In fact the court was advised by several senior lawyers who had appeared in the case that the task of regulating the reporting of court proceedings merits a legislative intervention. However, the conceptual division between adjudicative and legislative functions has been frequently breached by our courts in the past and the same is often portrayed as a credible strategy to counter-act the inertia of the political branches.

If one goes by the coverage of the arguments in this case (where no gag orders were issued), the Justices’ questions touched on generic problems such as inaccurate reporting and undue sensationalisation, both of which can perhaps be seen as detrimental to the interests of litigants and contributing to the erosion of public confidence in the justice-delivery system. In light of the facts that triggered this case, one should also read in a concern about the disclosure of private correspondence between litigants, the act of publication ostensibly interfering with adjudication. However, the judgment does not explain how disclosures of this kind are likely to cause prejudice to parties in a broader sample of comparable disputes. Furthermore, there is no attempt to explain why litigants deserve confidentially in all categories of litigation, especially when publicity is also a desired value in conducting legal proceedings. The evident assumption in the judgment is that uncontrolled reporting of court proceedings in status quo is frequently causing prejudice to the interests of litigants, thereby warranting the use of the law of contempt against the press. In that sense, the new remedy of seeking postponement is described as a preventive measure that would help reporters in avoiding such harsher sanctions. This line of reasoning is not just baffling but also appears to be circular. The judgment makes the leap towards providing a preventive remedy even though the perceived cause of the harm that is sought to be avoided, namely prejudicial reporting, has not been sufficiently demonstrated. Has Chief Justice Kapadia assumed that the publication of correspondence exchanged between the litigants is going to necessarily distort the judicial process? Stated in more general terms, is there an assumption that trial judges will necessarily make bad decisions if there is intrusive, excessive or inaccurate reporting about the cases that they are hearing? Since there are no credible empirical studies to confirm or deny the presumed correlation between intrusive reporting and decision-making patterns, it might be tenable to suggest that the apex court was responding to the felt need of preventing prejudicial reporting, rather than a demonstrated one. This suggestion can of course lead us to a much broader discussion on how the personal predilections of the incumbent CJI can have a noticeable impact on decisions about the allocation of time and resources for hearing cases.

The text of the judgment even has an ornamental reference to a much-cited essay by Ronald Dworkin (‘Taking Rights Seriously’, 1977) but does not really explain why press freedoms should not be taken seriously in this context. A more persuasive line of reasoning would have framed the issue as that of a direct conflict between press freedoms and the privacy of litigants. Perhaps the court had considered this and opted not to pursue it since the precedents recognising fair trial guarantees are cast in far more determinate terms than those dealing with expectations of privacy. In a recent speech, the CJI has favoured a method of constitutional interpretation that emphasizes the underlying principles embedded in the text rather than a formalist reading. This presumably Dworkinian search for principles is not a freewheeling inquiry but one that requires a coherent reading of text, political history, precedents and publicly articulated values. If CJI Kapadia is indeed an eager follower of Dworkin, then he might have missed a trick by choosing to ignore the numerous precedents that have expanded and consolidated press freedoms in post-independence India.

Nevertheless, since the court was considering general prescriptions, we can surmise that special attention was reserved for those suspected or accused of having committed violent crimes, since their identification in the press and the publication of stories recounting the details of the alleged crimes are more likely to militate against the ‘presumption of innocence’. The need to counter-act the risk of a ‘trial by media’ playing on the minds of a judge is perhaps on a higher footing than comparable possibilities in civil cases, since the liberty of the accused is at stake. However, the newly created remedy of seeking postponement as a preventive measure is unlikely to address that problem. Attempts to regulate the reporting of what happens in criminal proceedings can 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 stigmatization of the accused. Though described as a ‘neutralizing device’, the postponement of the publication of reports about judicial proceedings will not yield any noticeable gains. It is difficult to buy the claim that this newly announced remedy will serve interests that are not being already accounted for by existing statutory provisions. For instance, in some specified classes of litigation, the trial judge has powers to order in camera proceedings so as to protect the privacy of litigants, especially in cases involving matrimonial disputes and criminal cases involving sexual offences. As suggested earlier, if the litigants’ need for confidentiality must prevail over the value of open justice in some exceptional circumstances, it is better to wait for legislative prescriptions. A foreseeable consequence of the availability of this new remedy is that it will encourage a larger number of litigants to seek protection from the higher courts, thereby exacerbating delays in the trial stage and at the same time increasing the workload of judges in the respective High Courts.

Though the scope of the judgment is confined to the problem of news-reporting or commentary that can cause prejudice to the litigants in sub judice matters, one can also reflect on a neighbouring issue, namely that of statements made by lawyers and judges being misrepresented or quoted out of context in the news-media. In some cases, inaccuracies in reporting either feed into or escalate into unsubstantiated criticisms directed against judges and their orders. 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 often ends up portraying the judicial process in poor light. In such circumstances, the proper response is not the impulsive use of contempt powers but institutional measures designed to reduce the likelihood of inaccuracy and misrepresentations in journalistic content. This begs the question of whether courts should be insisting on some entry-level qualifications for legal correspondents. The Supreme Court of India, acting in its administrative capacity, has already prescribed a bachelor’s degree in law coupled with seven years of previous experience in covering lower courts as a prerequisite for recognising correspondents. Many of the High Courts are gradually following suit but similar requirements are not feasible at the level of the subordinate judiciary. One can readily anticipate the objection that journalism does not necessarily require expertise in the subject-matter that is being reported or commented upon. An incremental solution is to improve information-dissemination practices in the courts so as to both avoid and respond to errors as well as mischaracterization in reporting what goes on inside the courtroom.

As far as substantive criticism of orders and judgments is concerned, there ought to be no restraints on commentary, whether in the news-media or elsewhere. Judicial decisions become a matter of public record and all citizens should be free to comment on them, irrespective of their proximity to legal practice. Should there be errors in reporting, pointed clarifications can be issued. In the face of trenchant criticism, judges worth their salt will take it in their stride. However, there is a tricky terrain when it comes to personal criticisms of judges, especially in cases of allegations about bribery, improper conduct and conflicts of interest. In such circumstances, there are remedies available to judges such as defamation suits. However, the disproportionate use of the same has provoked another debate. In any case, regulating the reporting of court proceedings is unlikely to prevent such ad hominem criticisms. In fact, even temporary ‘gag orders’ might raise further apprehensions about judicial misconduct even when there might be none. Coming to the bogey of contempt powers, it is unfortunate that a climate of fear has evolved around their very mention. Even though they have been irresponsibly used in response to personal criticism and satire directed against judges in a few instances, they are intended to be used only as a measure of last resort if there is a direct obstruction in the conduct of judicial proceedings or a refusal on part of interested parties to comply with orders. In fact the threat of contempt proceedings has often compelled governmental authorities to comply with progressive orders.

The Court’s decision to admit this case for a hearing on merits appears to have more to do with how the Justices view themselves rather than problems that have been credibly demonstrated. Perhaps their perception of inaccurate reporting has been amplified by the fact that they are shown news-coverage on the legal system on a daily basis and the same entails exposure to errors and inconsistencies in large numbers. The Justices of the Supreme Court (and to some extent the High Courts) lead fairly privileged and insulated lives. Though they do not earn as much as the leaders of the bar, they are entitled to government bungalows and a retinue of personal assistants for secretarial work and domestic help. They are treated with ceremonial respect both at the courts and at social gatherings. They wield great power as long as they are serving on the bench. In a gradually democratizing society they are among the last bastions of a privileged elite among public officials. Such a setting can easily lead one to assume a paternalistic and self-righteous stance, all the while fuelled by the failures of the elected branches. In such a scenario, there is a dichotomy at play. On one hand, the higher judiciary plays an expressive role in interpreting the rights and guarantees in the constitutional text (free speech being amongst them), while on the other hand their immediate routine betrays a meaningless adherence to hierarchy. Given their elevated position inside the courtroom, it is quite conceivable that the scores of journalists (often a generation younger than the Justices) are likened to trouble-making children who need to be monitored. In acting on their urge to mind these children, the Justices might be revealing a lot more about themselves than what is ordinarily visible to court-watchers.