The judiciary

For greater scrutiny

Print edition : November 27, 2015
When most legal issues are essentially political issues, judges no longer perform their conventional duties. Hence, the media need to critique the judiciary in cultural, political and jurisprudential terms.

EVERY happening in the institution of the judiciary is a public affair. Therefore, the media need to transcend the obvious to fulfil their democratic task. Stenography journalism, as it is loosely called, cannot initiate meaningful discussions about how courts work or do not work. Issues like the real methods of judicial appointments in a system that is notoriously opaque are seldom investigated. Judicial behaviour on and off the bench is not a subject matter for media discourse. The questions relating to internal democracy in the courts are seldom addressed. The functioning of the courts is often analysed only in terms of the judgments pronounced. The Bar-bench equations or the power relations within the system remain alien to media scan. The “litigation industry” in the country is yet to have its democratic critics.

Therefore, deliberations on judicial reforms need to be delinked from conventional and oratorical topics. No doubt, problems relating to delay, uncertainty, judge-case ratio, docket management, and so on, are not insignificant. Those are, however, not issues which are devoid of practical solutions. The critique of the judiciary in a working democracy needs to be cultural, jurisprudential and political. It also needs to be thoroughly realistic and unconventional, if not revolutionary.

The reason is simple—judges in India, as in many other parts of the world, no longer perform their conventional duties. They are political actors in a scenario where almost all the legal issues are essentially political—whether it is the reservation policy, the liquor policy, or the height of the dam on the Narmada or the Mullaperiyar. The ubiquity of the judiciary encompasses all facets of private and public life. Judicial activism has always had a political content. However, to understand it, the inner dynamism of the courts needs to be at the centre of the discourse.

A new brand of journalism has emerged, at least in a few constitutional democracies, which is capable of exposing the judiciary as an effective branch of the modern state, in contrast with what Alexander Hamilton perceived. For Hamilton, the judiciary is the “least dangerous” limb of the government. Max Boot, the former Associate Editor of The Wall Street Journal, who developed a passion for critical analysis of the legal system, authored a classic work that exposed the deteriorating levels of the much-politicised judiciary in the United States. The title of the book said it all: Out of Order: Arrogance, Corruption and Incompetence on the Bench (Basic Books, 1998). A “confessional” foreword written by Robert H. Bork, a former Federal Appeals Court judge, passionately defended the author: “Our courts are behaving badly and the public, to the degree it can be brought to understand that, will exert force for reform, a reform that must be structural as well as intellectual and moral.” He added that “judicial independence was never intended to make courts what they have become, unaccountable and uncheckable partisan in our cultural wars”. These lines, in turn, substantiate Max Boot’s own theory in the book: “Anyone who wants decent democratic government ought to be concerned about judges who misbehave or exceed their authority or issue unjust decision.”

Media-court relation

The media’s oppositional radicalism is, however, not an easy job. The Supreme Court Press Accreditation Panel recently interdicted journalists from moving close to the dais (“Press must maintain distance in courtrooms”; The Hindu, September 2, 2015). In the overcrowded courtrooms, judges are often not audible. The panel’s gesture, however, has an emblematic connotation. The Supreme Court is described as an establishment too far away from the common man, in a thoroughly researched cover story in Frontline (“A court adrift”, May 3, 2013).

In another development, the Kerala High Court is considering the question of “framing guidelines” for court-reporting in a writ petition which has already been admitted (Writ petition civil.No.21108/2014). In 2007, there was a similar move on the administrative side which, however, did not succeed. The very idea that the media’s role is to report only what is contained in the orders in writing, by ignoring the observations and oral discourse during the proceedings, mistakes a newspaper or a TV channel for a gazette publication. The fact that a section of the media has been dragged to a constitutional court on an apparently unfounded plea that lacks legal backing is embarrassing.

The global scenario is different. The European Network of Councils for the Judiciary (ENCJ) says in its 2005-06 report that the Spanish judiciary has established “media offices with experienced journalists”. In Sweden, a journalist can talk directly to judges. The report further refers to the case of the Netherlands where there are “press judges” who exclusively speak to the press.

In India, according to Section 4 of the Contempt of Courts Act, 1971, a fair and accurate reporting of court proceedings is permissible. A fair criticism of a judgment is legally allowed according to Section 5. In the 1960s, in Naresh Shridhar, the Supreme Court endorsed Jeremy Bentham, who was quoted in the classic case of Scott vs Scott: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying, under trial” (AIR 1967 Supreme Court page 1).

Publicity in the modern media context means transparency and visibility. In the United Kingdom, famous constitutional cases are telecast live. This is in contrast with the situation in the U.S. where, in the words of John Leo, “the court remains invisible to most of the Americans”. Viewed thus, U.S. courts are not only obsolete but essentially undemocratic. The South African court, created by a relatively recent Constitution, has adopted an open interview system as a scientific method of selection to the higher judiciary to which the media have access. In the U. K., there is a strong plea to follow suit. A symbiotic and dialogic relation between the press and the judiciary is no doubt the emerging global practice, which neither the court nor the press in India can afford to ignore.

Internal democracy

Internal democracy in courts is a preceding condition for democracy outside. Dr B.R. Ambedkar rightly emphasised the need for institutional fairness and efficacy in the context of social justice. Even though, as noted by James E. Moliterno, “the lawyer’s role is a poor fit with that of the public official”, for they are “partisans”, they continue to have a determinative function in social change, thanks to the constitutional courts armed with the power of judicial review.

The Supreme Court Bar Association has demanded “fair treatment of lawyers” by the benches “irrespective of their standing and seniority”. It has also protested against the “hurried and selected manner” in which some benches in the Supreme Court hear cases ( The Hindu, March 3, 2015). Though a resolution to this effect was not moved, the issues remain alive. In another recent episode, the association has questioned the manner in which senior lawyers are designated without clear yardsticks or open procedures.

Here again, there are illustrative instances from other jurisdictions. The guidelines issued by the New South Wales Bar Association and New Zealand’s Lawyers and Conveyancers Act (2006) and subsequent regulations are classic examples of rigorous and objective standards in choosing the leaders of the Bar. Indira Jaising, herself a senior lawyer, has questioned the present state of affairs by way of a Social Action Litigation before the Supreme Court. She said in a press note on July 7, 2015, that “the system of two classes of advocates” clearly “offended the rule of equality under Article 14” and “the notions of diversity under Article 15 of the Constitution”. She added that “in the last 15 years… only one Dalit has been designated by the Supreme Court and only two from the Muslim community”.

But the question is not of designation or its denial. Nor is the issue related to individual dissatisfaction. The arbitrary negation of the conventionally perceived equality among bar members has damaged the institutional equity to a drastic level. This, in turn, has created a legal elite within the Bar in the context of corporatism in litigation. Marc Galanter and Nick Robinson, in a research work on the legal profession in India (2013), observed that although a few “grant advocates” in India “enjoy incomes that rival the most highly remunerated lawyers anywhere in the world”, they remain “notoriously inaccessible”. The litigation industry in the Supreme Court, a luxurious affair, has clearly fenced the common man out. This judicial reality needs to be a prime concern for legal journalism in the country, for the courts, after all, are meant not only for lawyers and judges, but for the public in the republic.

Therefore, the press has to be “closer to the court”. It needs to evolve a forensic methodology in institutional evaluation. As Albert Camus rightly said: “The only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion.”

Kaleeswaram Raj is a lawyer in the Supreme Court of India and the Kerala High Court. He is the author of The Spirit of Law (2012). Email: kaleeswaramraj@gmail.com.

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