Curbs On Court Reporting

Source: The Hitavada      Date: 09 Apr 2018 11:30:39











AN inter-professional gathering of lawyers and Media professionals was held in Cochin on March 31to discuss the topic - “Media, courts and fair trial guarantee” under the joint auspices of the Kerala Bar Council and M.K. Nambiar Academy for Continuing Legal Education Programme under the leadership of Dr. N.R. Madhava Menon in association with a Law publication house.The legal fraternity is raising the demand for regulating reporting of court proceedings on the ground that these reports are most often inaccurate, distorted and sensationalised. In criminal proceedings, it amounts to a virtual trial by media, infringing right to fair trial. However, attempts to make such regulations are resisted by media stating that it amounts to infringing press freedom under Article 19(1)(a) of the Constitution of India. The Kerala High Court has framed norms recently for accreditation of legal correspondents, which mandate law degree and minimum legal practice for granting accreditation. These norms were challenged before the HC by media houses as unconstitutional and the matter is pending. Meanwhile, a Full Bench of the Kerala HC has reserved orders on a petition seeking framing of guidelines for reporting court proceedings, including oral observations made by judges during arguments.

It was in this backdrop, this discussion was organised. It was attended by a galaxy of speakers from both the fields of Law and Journalism.
The inaugural session was presided over by the retired Kerala HC Judge, R. Basant, who is now a Senior Advocate at the Supreme Court. He said that Press, as the fourth estate, was the conscience keeper of democracy. But at the same time, he reminded that in order to properly discharge its function in court reporting, the Press should understand the nuances of legal process and dialogue between the Bar and Bench. Although the media has right to report, it cannot be selective in reporting.Sashi Kumar, the founder of Asianet TV Channel and present Chairman of Media Development Foundation, stated that the primary function of the Press was to be adversarial to the State. Press is not just a market product as it stands for higher values of democracy. If it fails to do that, then it cannot claim the status of a fourth estate.

The Kerala HC Judge Justice D. Sheshadri Naidu, delivering the keynote address, spoke about the changed nature of media in the ‘post-truth’ World, where different spins to facts are given to suit agendas. He also mentioned about the circumstances in which courts are constrained to pass ‘super-injunctions’, ‘john doe orders’ and ‘gag orders’ to contain the spread of misinformation in social media.
The inaugural session was followed by a discussion on the sub-topic ‘Constitutional and statutory framework governing media freedom in relation to court proceedings’. Manoj K. Das, the TOI resident editor of Kochi edition and Suhrit Parthasarathy, Advocate from Madras HC delivered the keynote presentations regarding the topic.
Das elaborated on the basic function of the media, which was to act as a mirror to the society to reflect its untidiness. The dislike towards media and tendency of those in power to stifle it are natural, since media blares out uncomfortable truths; but instead of feeling annoyance, society should introspect and do some cleaning up. Parthasarathy stated that prior restraints on news publication, even in respect of court proceedings, are not constitutionally valid. According to him, publicity is the soul of justice and idea of open courts is the foundational rock of democracy. Press freedom cannot be curtailed through Judge-made laws, as they do not fall within the ambit of reasonable restrictions under Article 19(2).

The critical view to the above was offered by Renjith Marar, Advocate, Supreme Court, and Mohan Idicula Abraham and Mohammad Shah, Advocates of Kerala HC. They offered the viewpoints of legal practitioners confronting concrete hardships created by unfair and inaccurate reporting. The framing of guidelines for court reporting was the need of the hour. Courts have the power to do it in the interests of administration of justice. It cannot be characterised as judicial lawmaking. Rather, rule-making power for administration of justice is specifically provided in constitutional and statutory provisions like Article 227(2) of the Constitution of India, section 477 Cr. P. C. etc.The problems caused by reporting of oral observations by judges during the course of hearing were also highlighted, as such reports confuse and mislead the readers. Often, the observations are taken out of context and given a sensational spin, causing a distorted impression about judiciary in public mind. Misreporting in media often tends to interfere with the administration of justice and scandalise the judiciary, and many such instances are fit cases for initiating contempt action.

The topic of the next session was ‘Balancing media freedom with fair trial and independence of judiciary’. Justice Muhammad Mushtaque, Kerala HC Judge offering introductory remarks, stated that the Press was discharging a public function. Therefore, Press had to act with the responsibility and restraints attached to a public functionary.Gouridasan Nair, resident editor of The Hindu, remarked that it was wrong to depict media and judiciary as antagonistic to each other. They are both performing vital roles for sustaining a vibrant democracy. He also stated that there was need for media to introspect about its wrongs and failings.Elizabeth Seshadri, Madras HC Advocate, stated that judiciary and media are similar to each other in basic characteristics - both are unelected, exist on the basis of moral authority and public confidence, can afford to be non-populist and will cease to function under external regulation. Both the judiciary and the media are in common goal of pursuit of truth.

Judiciary, generally has been lenient towards media transgressions. But when media started becoming more intrusive and pervasive in the new competitive age, judiciary started to shed its tolerance to media excesses. She also stated that it was wrong to put blame on media always for the collective failings of the judicial system. There was need to have ‘synergy’ rather than mere ‘balance ‘ between both the institutions.Chief Justice of Kerala HC, Antony Dominic, in his concluding address added that Press should be reporting in public interest and not all that interests the public. Summing up the conclusions reached in the discussion, Dr. Madhav Menon stated that the main points culled out from this discussion will be compiled and submitted to the State HC for reference.