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Reporting justice
A.G. Noorani
Journalists are “wretched”, “professors are worse” and “civil liberties organisations serve no purpose”.
There is, surely, a clear public interest in mentioning the identity of the judge who made such remarks
from the Bench. They were made by Justice Yogeshwar Dayal, then of the Delhi High Court, on February
6, 1985, apropos the PUCL-PUDR report on the Delhi riots of 1984. He was elevated to the Supreme
Court.
If the practice, prescribed recently by a former Chief Justice of India, was in force, the press could not
have mentioned the judge’s name. News agencies and court reporters are required, instead, to attribute
comments made during the hearing to ‘the Bench’.
One finds this farce — “the Bench said” — perpetrated regularly. This is a falsification of the record. For,
“the Bench” speaks only through its judgments, be they unanimous, concurrent or dissenting. But during
the hearing of a case, judges speak individually, not in unison, and the public has an incontestable right
to know who said what. It was exercised freely in the first 45 years of the Supreme Court’s existence, not
least during the hotly contested case of political significance. No other court in the entire democratic
world imposes such curbs.
On December 20, 1984, Chief Justice Y.V. Chandrachud, presiding over a Constitution Bench, denounced
the petitioner’s “kind of journalism” as “anti-Indian”. He took no offence when the remarks were
reported and he was criticised.
The judiciary and the press are not adversaries. Both exercise vigil on exercise of power. The press have
received protection from the courts. It has rushed to the defence of judges when politicians vilify them.
Both are, however, bound by the Constitution — the fundamental right to free speech within it
guarantees and are subject to the duty of transparency towards the citizen. Suppression of the names of
judges who make observations during the hearings is a practice as unique as it is pernicious. It must end.
It has no legal force in any case.
Once in a while, one comes across a strange court ruling on press reportage. On August 2, for instance,
while hearing a plea for the extension of custody of Arvind Johari, director of Cyberspace Infosys Ltd., in
the UTI scam case, Special CBI Judge S.R. Mehra directed that reporters could “watch the proceedings
and report only from the certified court order”. They were asked not to take notes of the proceedings like
“college students in a coaching class”.
One hopes the Supreme Court will overrule its judgment on this aspect which it gave in a different
climate 35 years ago. It was sharply criticised by two of the country’s ablest constitutional lawyers, M.C.
Setalvad and H.M. Seervai. The facts were simple. Hearing a libel case by a noted industrialist, Krishnaraj
M.D. Thackersey, against Blitz, Justice V.M. Tarkunde orally directed the press not to report deposition
by a witness who claimed that reports of earlier deposition had caused him loss in business.
The tabloid’s correspondent, N.S.Mirajkar, and three other journalists moved the Supreme Court for
enforcement of their fundamental rights to freedom of speech and expression and to practise their
profession (Articles 19[1][a] and [g] respectively).
With a solitary dissent, the court’s nine-member Bench held that an order of a judge cannot violate a
citizen’s fundamental rights, a ruling which the court all but overruled in 1988 in A.R. Antulay’s case. On
the issue of the court’s power to forbid publication of its public proceedings, the majority construed the
order as one which prohibited publication during the trial of the case and not permanently.
But Justice Hidayatullah rightly pointed out in his dissent that as the intention was to save the witness’s
business from harm, it was reasonable to believe that it was meant to be a permanent ban and this is how
the press regarded it.
The majority considered the law as to when proceedings can be held in camera and ruled that since a
court can bar the public from the courtroom in certain cases, that power “must include the power… to
prohibit excessive publication of a part of the proceedings at such trial”, even if held in public. This was
an unfounded claim based on an unwarranted inference.
Chief Justice P.B. Gajendragadkar said that the order was necessary “in order to obtain the evidence in
the case with a view to do justice between the parties”, and “if incidentally as a result of this order, the
petitioners were not able to report what they heard in court, that cannot be said to make the impugned
order invalid under Article 19(1)(a)” (freedom of speech).
He overlooked the fact that the violation of the rights of the press was not “incidental” but direct and
substantial. Underlying his reasoning was the assumption that the pressperson has no right, as such, to
be in court to observe and report to the public. Justice Sarkar said as much in his concurring judgment:
“He has no right to hear the proceedings. Indeed, there is no fundamental right to hear. If he has not, then
it should follow that his liberty of speech has not been affected” by the order directing a trial in camera.
This reflected an archaic outlook. It is now accepted that the press has every right to witness a judicial
proceeding. The press reporter in asserting this right does so, both as a citizen himself and as a surrogate
of the public to whom he owes a professional duty.
Justice Hidayatullah correctly stated the rule about reporting of cases in court. “What takes place in court
is public and the publication of the proceedings merely enlarges the area of the court and gives to the trial
that added publicity which is favoured by the rule that the trial should be open and public.”
In Seervai’s view, Justice Tarkunde’s order “contained a perpetual injunction against publication of the
evidence and the order was beyond the jurisdiction of Tarkunde... it was an order that could be dissolved
with impunity”, a view which the privy council had taken in such a case.
A ruling of the US Supreme Court in the Richmond Newspapers Case in 1980 not only supports
Hidayatullah’s dissent but opens new vistas for press freedom. Three trials in a murder case having come
to a naught, in the fourth the court closed the trial to the public on a plea by the defence, which neither
the prosecutor nor the press opposed. Later in the day, Richmond Newspapers applied for its reversal,
unsuccessfully.
Over the solitary dissent of Justice Rehnquist, the Supreme Court held the order to be violative of the
First Amendment (the right to free speech). Chief Justice Warren Burger said: “Instead of acquiring
information about trials by first-hand observation or by word of mouth from those who attended, people
now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of
functioning as surrogates for the public.
“While media representatives enjoy the same right of access as the public, they often are provided special
seating and priority of entry so that they may report what people in attendance have seen and heard... the
Constitution affords protection against exclusion of the public from criminal trials” and “free speech
carries with it some freedom to listen.”
This case shows that both — the Mirajkar ruling and the practice of attributing a judge’s observations to
“the Bench” — to be wholly wrong. Both deserve speedy reversal.