“Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge first to find that which he might have heard in due time from the bar; or to show quickness of conceit in cutting off evidence or counsel too short, or to prevent information by questions, though pertinent.”
-Francis Bacon, Essays on Counsels Civil or Moral; Of Judicature.
Chief Justice of India Dipak Misra has been violating this wise counsel which has been quoted for centuries in admonition or advice. If it is improper to attack counsel’s arguments as “atrocious” behind their back days after the hearings are over, it is sheer abuse of the judicial office to deliver a tirade on the media as he did on March 15.
A judge is perfectly entitled to censure, for good reason, a party to a cause before him. Judicial licence permits him, on occasion, to make remarks of a more general nature. He has absolutely no right, authority or jurisdiction to deliver a sweeping censure behind the back of the affected party, without hearing it, and outside the record before him.
A Bench, comprising the Chief Justice and Justices A.M. Khanwilkar and D.Y. Chandrachud, was hearing a petition by a highly respected news portal The Wire . It challenged the Gujarat High Court’s refusal to quash the complaint of defamation filed against it by Jay Shah, the son of the Bharatiya Janata Party’s (BJP) president, Amit Shah. The Bench posted the petition for final disposal on April 12 and directed the magistrate not to hear the defamation case meanwhile. The Wire claims that it took the statistics from the public domain and found that the turnover of Jay Shah’s company had increased 16,000 times from Rs.15 lakh to Rs.80 crore shortly after Narendra Modi became the Prime Minister and Amit Shah, the BJP president. A plea of justification, if established, is a perfect defence in law. Courts have refused injunctions against publication once the defendant pleads justification.
In the circumstances, the short issue before the Bench was whether to quash Jay Shah’s complaint or allow the trial to proceed. It was not concerned with the merits of The Wire ’s allegations. That is for the trial court judge to decide.
Yet, this is what Chief Justice Misra said: “I don’t want to name any particular electronic media, but the way things have been vilified, it is not responsible journalism.” He did not name the offender but referred to it while hearing the petition.
The Chief Justice observed: “The electronic media and websites require to be extremely careful. However, question of gagging the media does not come at all. I have myself rebuffed all attempts to gag the media, but we do expect the media, especially electronic media, to become more responsible. They cannot publish anything only because they have some websites .
“It is not the culture of journalism to write anything and get away with it only because it is published on a website. Are they free to write anything? What they write sometimes is sheer contempt of court. You cannot reproduce anything that comes to your heart and mind. There has to be some basis” ( Asian Age , March 16; emphasis added, throughout).
That, surely, is for readers to judge. The courts come in only if the law is violated. The repeated mention of a “website” is most unfortunate. What effect will these observations have on the mind of the magistrate? Note in this context the Chief Justice’s denial (“I don’t want to name any particular electronic media”). His disclaimer that “his remarks were not in any way connected to the case being heard” makes matters worse still ( The Hindu and The Times of India , March 16). Why, then, did he embark on this gratuitous sermon at such length and of so sweeping a character with all the consequences of prejudice to The Wire ? What was the provocation? The judge’s seat is not a bully pulpit for a judge to embark on such an exercise at a critical stage of the proceedings while admitting its irrelevance to the case in hand. Is there any precedent in any apex court the world over for such a tirade by a judge and one admittedly unrelated to the case before him? Some have a wrong notion of the press; the failing affects judges, Ministers and politicians. It is not a poor country cousin to be scolded at whim. It is the Fourth Estate, equal to the other three— executive, legislature and the judiciary. The judiciary lays down the law; the executive enforces it. The legislature makes laws. The press has a right and a duty to keep a vigil on all three. Sermons to be “constructive” imply—overlook our destructive acts and politely suggest reform.
Edmund Burke said that “there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate, more important far than they all”. Decades later, Thomas Babington Macaulay wrote: “The gallery in which the reporters sit has become a fourth estate of the realm.” Shimon Shetreat’s Judges on Trial (1977) is an acclaimed classic. He wrote: “The press plays an important role in checking judicial behaviour, as vividly described by Lord Denning: ‘In every court in England you will, I believe, find a newspaper reporter ... He notes all that goes on and makes a fair and accurate report of it ... He is, I verily believe, the watchdog of justice... He [the judge] will be more anxious to give a correct decision if he knows that his reasons must justify themselves at the bar of public opinion.... If there is any misconduct on [his] part, any bias or prejudice, there is a reporter to keep an eye on him.’
“The importance of the press in the checking of judicial conduct cannot be exaggerated. It is to be noted that only the press constantly and publicly criticises judicial conduct” (page179). Legislators are restricted.
Surrogate for the public Judicial rulings recognise the press’ status and role. The United States Supreme Court accepted the role of the media as a surrogate of the public in the exercise of its right to be informed of current events—of its right to know.
A public TV station, KQED, which had exposed abuses in prisons in the San Francisco Bay area, demanded unfettered access to the Santa Rita jail but secured only a limited right of access. A fine balance was struck in the governing judgment of Justice Potter Stewart: “A person touring Santa Rita jail can grasp its reality with his own eyes and ears. But if a television reporter is to convey the jail’s sights and sounds to those who cannot personally visit the place, he must use camera and sound equipment. In short, terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public what the visitors see.”
In 1980, in the famous Richmond Newspapers case, a near-unanimous Supreme Court upheld the Stewart logic. Chief Justice Berger 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.” ( Richmond Newspapers Inc. vs Virginia ; 448; U.S. 555.)
In an article in Young India , on September 19, 1929, Mahatma Gandhi sharply censured the Chief Justice of the Patna High Court for “becoming the framer of a gratuitous indictment against lawyers and their clients”. In the Harijan of April 2, 1940, he censured two English judges of the Allahabad High Court for making a sweeping generalisation which was wholly unjustified. “What legal basis had these two judges for the sweeping statement made by them as to the character of a whole nation? The inference is that in other countries a higher value is placed upon truth. Now if this was a universally accepted proposition, perhaps the judges would have been justified in taking legal notice of it. There is, however, not only no such acceptance but experienced observers have testified that on the whole, greater value is put upon truth in India than elsewhere. But no judge should be influenced one way or the other by such observations as have no judicial value. I would go further and say that such observations ought not to be made by any responsible person, even on political platforms. They can never be proved. But when they are made by judges they vitiate their judgments and may lead to miscarriage of justice. Be it noted that the Allahabad judges have made use of their bias in coming to their decision and have thus proved their incapacity to hold responsible posts.”
Lord Woolf was a highly respected Lord Chief Justice. The Times wrote of him on March 10, 2004, in terms which some judges in India might find shocking: “Lord Woolf cannot quite make up his mind whether he is a liberal reformer or the shop steward for the only trade union in this country whose members wear wigs and not hard hats or cloth caps.”
James Dalrymple collected some nine cases of trial judges who made silly or offensive remarks and wrote of them in The Sunday Times in these scathing terms: “The theory is that beneath the ludicrous half-a-pound of permed horsehair there should lie a mind free of prejudice and capable of cool judgment. At best there should be old-fashioned common sense. Yet, again and again, we see glaring examples that this is not the case with some of the judges who control our courts.
“A few are guilty of jarring errors of judgment. Others, through comments of appalling crassness, seem to affront human reason. From the heights of buffoonery to the dark depths of gross prejudice, they blurt out their inanities. ... Corruption is almost unknown in the brotherhood of judges, but stupidity, crassness and blatant prejudice—especially against women—are not.”
Public confidence It is certainly not an offence in law for the Bar or the press or any person or organisation to ask a judge to retire. There was a campaign against even the great Lord Denning demanding his retirement by Afro-Asian barristers. The crucial test is public confidence. As Shetreet wrote: “Judges could not discharge their functions without complete public confidence. If a judge behaved in a way which seriously impaired public confidence in him, he would no longer be able to administer justice and therefore should leave the bench” (page 282). Lord Denning held that a judge whose conduct invited people to ask “who made thee a ruler and a judge over us?” should “not be tolerated on the bench” ( ibid ).
Lord Salmon approvingly quoted the famous Australian case R. vs Nicholls in which Chief Justice Griffiths said: “I am not prepared to accede to the proposition that an imputation of want of impartiality to a judge is necessarily a contempt of court. On the contrary, I think that if any judge of this court or of any other court were to make a public utterance of such character as to be likely to impair the confidence of the public ... in impartiality of the court. ... If it were a fair comment would, so far from being a contempt of court, be for the public benefit.” (12 CLB 280 at 282.) One of the truly great judges of the Supreme Court, Justice B.K. Mukherjea, held that if specific allegations were made that a judicial officer had taken bribes or behaved with impropriety, they could be aired. The judge ruled that “if the allegations were true, obviously it would be to the benefit of the public to bring these matters into light” ( Bathina Ramakrishna Reddy vs State of Madras [1952], SCR 425).
The bench and the press are not adversaries. But “ when a judge denounces persons who are not parties to the case before him, the press is the only means by which they can publicly vindicate themselves ... The importance of the press to the administration of justice has frequently been pointed out. In 1969, the Salmon Committee observed that the right to criticise judges ... may be one of the safeguards which helps to insure their high standard of performance, and also that the same meticulous care which has always been taken in appointing them in the past will continue to be taken in future.
“Recognising its importance, the judges have generally cooperated with press. As Lord Parker, C.J., once said, ‘Courts and press are not rival camps.’ In an address to magistrates, Lord Hailsham, L.C., gave this advice to the justices: ‘So long as you do not find your private home invaded or your personal privacy intruded upon do not treat the press as your enemy. What goes on in court is public property and it is not merely their right but their duty to report and it is their right and very often their duty to comment. Private justice is almost always a denial of justice’.” (Shetreet; pages 181-182.)
Like any other institution the press and the TV can be irresponsible. Many of our TV channels are. But as Chief Justice Warner Burger of the U.S. Supreme Court said in 1974: “A responsible press is an undoubtedly desirable goal but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated.” Still less, one might add, fostered by papal edicts by judges.
There is another side to it—the chilling effect on the freedom of the press by expressions of judicial wrath. In the course of a debate in the House of Lords on the law and the press, many Lords commented on the apparent impossibility of persuading the newspapers that they are free to comment on judges, judicial proceedings, judgments and sentences without fear of contempt and Lord Gardiner, L.C., observed that “unfortunately, the administration of justice in this country is insufficiently criticised”.
Shetreet has reservations on this. He asked some lawyers and journalists: “Is the press afraid to criticise judges?” The answers were generally in the affirmative (although surprisingly enough, one journalist suggested that the press was not afraid). Equally, the general view was that, though an improvement has been noticed in recent years, “the press should play a more active role in criticising judges” (ibid, pages 193-4).
Gerald Gardiner, who became Lord Chancellor, edited with A. Martin Law Reporter News (1963) which suggested that the press was afraid to criticise judges. In a debate in the House of Lords on May 25, 1966, Gardiner remarked: “Unfortunately, the administration of justice in this country is insufficiently criticised.” In the last half a century the fear has been dispelled.
India adopted the British judicial system and its parliamentary system, in both cases, shorn of the judicial and political culture. Neither the courts nor the media can afford to cling to the past. The time is come for both to be honest and fearless.
