Not too long
ago Delhi High Court had passed an order barring the newspapers and the TV channels (all media
organizations) from reporting on a law intern’s complaint of sexual harassment
against a former Supreme Court judge, (Justice Swatanter Kumar). A day after
this order was passed, the Editors Guild of India in a statement said that the
order made a mockery of the rule of law and the open and fair justice system by
setting different and a very restrictive standards for the coverage of such
allegations against judges (than what is applicable to any other citizen) and
that this would mean an unwarranted intrusion on the media freedom.
Among the
arguments marshaled by the Guild one finds the contention that such
restrictions on the publication in a case such as this was uncalled for as this
did not pose a serious threat to
national security or would not lead to grave prejudice and miscarriage of
justice. Also the presumed damage to reputation of a judge or any other person
does not warrant prior restraint and would not pass the test of reasonableness
under Article 19 (2) of the Constitution. There was also no justification for
an assumption implied in this order that publication of mere allegations against
an individual judge would inordinately and unjustifiably damage the image of
the judiciary as a whole. The order for gag on the print and the electronic
media also may not achieve a complete blackout since through social media and internet so much material continue to be
disseminated in any case both
within the country and outside.
It is the job
of the media in a democracy to
report court proceedings including court filings. Of course the only reasonable
restriction should be that the reporting is accurate and fair. To
lay down how and what exactly they should or should not report, including the
type of headlines, whether or not the photographs of a public person should
appear, when his images have been widely available in the media, is an
avoidable intrusion into media freedom, the Guild said.
The Guild also emphasized the context of the current
national debate on protecting women against sexual harassment where cases of
this type raise important public issues of how to facilitate and deal with
complaints by harassed women who may feel otherwise intimidated even to lodge a
formal complaint with the police, who are apt to ignore them because the
alleged perpetrators are well known and powerful people.
According to the Guild, responsible media houses can and
should be trusted with conducting informed debate through complete and fair
professional coverage of the case without critical information being held back
from the public. On many similar instances, in the past, of alleged sexual
assault and harassment it is only through sustained media pressure by holding
open discussions with no prejudice to either the accused or to the judicial
process that police have been forced to act and register cases.
Readers and viewers are generally mature enough not to mistake
allegations for proof and would not assume that a person is guilty the moment a
charge is published, the Guild averred and added that a judge who is trained to
evaluate the evidence would be unlikely to be swayed by whatever is published.
On the face of it many of the arguments marshalled by the Guild is
unexceptionable. The cumulative effect of deficit in governance and in the
administration of justice in India has indeed made general public weary of the
so-called ‘due process of law’ where due to sloth and corruption months elapse
before police investigations are completed and charge sheets are produced.
Charges are often diluted due to witness tampering through threats or
inducements if the ‘accused’ happens to be an influential person. And then years
pass before trials are completed in lower courts where often due to shoddy
police investigation, witnesses turning hostile due to delay and/or
manipulation and weak prosecution case, the ‘victim’ may not get justice to
his/her satisfaction (if the case is not altogether dismissed). In case the
justice goes in favour of the victim, the final closure of the case is
indefinitely delayed due to challenges to such judicial orders in various
higher courts where verdicts are many times overturned. Everybody spouts the
statistics of the pending cases in the Indian courts. Only those fighting for
justice appreciate the enormity of the odds against their goal.
It is in this hopeless environment that the dictum ‘one is presumed
innocent till pronounced guilty by the courts’ (watch the plural which
is indicative of the due process) appears like a cruel joke to the victim,
his/her supporters and the public at large, who are becoming more and aware
about such cases through media. And it is in this context that the new activist
role that both the print and the electronic media in this country have started
playing over the last several years can be understood and analysed. For the
good it has done, and equally for its pretensions, motivations and the
irreparable damage it can cause in some cases. It is as if the media in this
country has found a way (which is also a commercially viable business model)
for the general public to vicariously satiate its thirst for justice by
providing a short cut through media trials conducted under its aegis. Editors
Guild and the media in general are loath to give up this freedom and hence are
protesting hard.
There can be no denying the fact that but for the wide dissemination in
the media, debates, open and critical discussions (often critical of the
judicial pronouncements) over the last several years the series of high profile
criminal and corruption cases, especially those involving people occupying
official and exalted positions, would not have the intense focus of public
attention that they secured. Partly as a result of such a media pressure the
government administration indirectly had to admit several lapses on their part,
took some steps, though admittedly far short of what would have been desirable
and in a fairly half-hearted manner. At least the need for ensuring
accountability and transparency of many public institutions, government
administration including police in particular, has gained currency.
By the same token, the process of justice and, in particular, judiciary
itself, could not remain immune from this strong current of public scrutiny.
Especially when individual members of this exalted institution have, time and
again, shown themselves as susceptible to moral turpitude in corruption or
sexual misdemeanour cases. The widely publicised case of Justice Soumitra Sen
some years ago which went as far as potential impeachment by the parliament may
be recalled.
Late last year, the allegation of sexually inappropriate behaviour
against the retired judge Justice A. K. Ganguly by another intern was widely
reported and discussed in the media, with pro- and contra-positions ranged in
no-holds barred debates. Justice Ganguly, at the time the Chairman of the West
Bengal Human Rights Commission, by and large maintained dignified silence
through out the ugly, practically one-sided publicly conducted hate campaign
(tendentious ‘leaks’ in the media about privileged documents to show him in
poor light, insinuation and character assassination) and finally resigned from
his position, which he said in his resignation letter that he was unable to do
justice to in then prevailing environment. With his resignation, everybody
including the media, having satiated the righteous indignation of a section of
the public, lost interest and has put the matter in the backburner. Media has
not informed us what progress, if any, has been made on the original case (like
filing a charge sheet in a court of law) of the sexual misdemeanour of the
judge.
Justice Ganguly did not resort to a defamation suit to remedy the loss
of reputation he had obviously suffered, though he could have. Many
participants in the media debates at the time even questioned his silence.
Probably they did not know or care to respect his fundamental right to
silence even as an accused of an alleged conduct.
In the light of the defamation case filed by Justice Swatanter Kumar at
the Delhi high court and the court’s order about the restriction of the
‘freedom of press’ which the Editors Guild vociferously protested as above,
certain issues about the freedom of expression in and by the media again come
into sharp focus. Despite Guild’s protestations about the sense of
responsibility or the sense of proportion of the media institutions about
maintaining fairness and balance in presentation, any independent observer of
the kind of media debates conducted these days on most issues of public
importance including ongoing criminal and or corruption investigations and
court cases will find it difficult to vouch for the media’s ability to fulfill
those responsibilities.
Media’s freedom of expression has to be valued. An independent media in
India have demonstrably strengthened our democracy by informing the lay public,
raising pertinent issues of governance
or the lack of it, have been bold enough (and in the process have emboldened
ordinary people) to question some of the privileges that those in high places
in our society and political-government establishment have been habituated to
exercise in an axiomatic manner. But this democratization process has,
unfortunately, generated an irreverence (a particularly cheap, sweeping and
strident form of the tendency) about all or most of our institutions for
governance and the constitutional procedures. For its claim to freedom of
expression to be respected the media has to eschew its current tendency to play
to the gallery, settle for the lowest common denominator. It should reform and
refine its own news generation and dissemination functions so as to maintain
the fine balance between public’s democratic right to know and an individual’s (even an accused)
equally right to silence if only as a part of his/her democratic right of
defence, including that of his/her reputation. There is a danger in media’s
playing a moral crusader, a vigilante role.
