Discussion on Media And its Role in Governance and Accountability hosted by @daksh_india to commence shortly.

Panellists:

1. Justice Rajiv Shakdher, Delhi HC
2. Justice Gautam Patel, Bombay HC
3. Apurva Vishwanath, Asst Editor, The Indian Express
4. Harish Narasappa, DAKSH

The discussion will be live-streamed on YouTube:

Session begins. The discussion today is being moderated by Surya Prakash BS., Programme Director, DAKSH.

The discussion today will be focused on the law & justice system and the media.

#Media
@daksh_india

Justice Rajiv Shakdher starts discussion: Day in and day out we find that courts are confronted with a situation where we are required to balance the rights of a person between ... freedom of speech and expression as against the rights of many...to a free and unbiased trial...

Justice Shakdher: When these two rights collide, the courts are called to step in and protect the rights of the warring or opposing parties.

Justice Shakdher: The task is tough, not because the courts are not used to taking on these burdens but... I always have to bear in mind that everything we write, whenever we put pen to paper, the dissident forms a precedent.

Justice Shakdher: Courts all over the world have been facing dilemmas such as this.

Justice Shakdher refers to a 2012 report from the UK where a victim's phone was hacked, which led to the constitution of a committee which generated a report called the "Leveson Report."

Justice Shakdher: The report starts by saying that this is the 7th time in the past 70 years that such committees have been set up.

... It is not only we in India who face such situations, other countries in other courts face similar problems.

Justice Shakdher says the concern as a judge is to give the right prominence to the freedom of speech and expression and at the same time protect the right of an accused to obtain a free and fair trial which is unprejudiced.

Justice Shakdher: If it comes to the crunch, courts should, in a sense, give weight to the right of an accused to a fair trial which is unprejudiced to the minds of public at large...

Justice Shakdher: There are many instances where you start with a premise that the person accused of an offence is actually the culprit. But as you go through the trial and the court looks at the evidence, you may come to an entirely different conclusion.

Justice Shakdher recalls an incident where a lady was reported to have shown pornography to her students, but further investigation revealed nothing of the sort had happened. Following the report, huge numbers of people gathered ready to lynch her, he recalls.

Justice Shakdher: This news report being published had a very typical impact on most people and I experienced it, in a sense that ... (1/2)

Justice Shakdher: (2/2)... I had appeared (as a lawyer) for a banker in anticipatory bail that day ... the first question he (judge) asked me was "what is happening in the country where teachers are showing pornographic material to students."

Justice Shakdher: If trained judges can get impacted by newspaper reports, what would be the state of the common public?

Justice Shakdher: It is important that for the media to put in place checks and balances whereby reporting is such that it alludes to facts and does not draw inferences that is the job of the court. You are being unfair to the accused, you are being unfair to the entire system.

Justice Shakdher: In a case where journalists are put on trial, the principle that I have articulated becomes relevant. What journalists wish don't happen to themselves, they should ensure it doesn't happen to a common person who expects neutrality from the media...

Justice GS Patel: I want to begin by picking up on something Justice Shakdher said. It is an interesting choice of words when he says, rightly, that courts not only here, but all over the world, have been bedevilled by this problem.

Justice GS Patel: I certainly believe each of us has own role in any open, or truly open, democracy. The Courts do what they must and the press has ane equally important role.

Justice GS Patel: The difficulty is... when these two spheres collide or intersect and we have this peculiar problem or issue - not really a problem, or not necessarily a problem... of reportage from courts.

Justice GS Patel: All newspapers and all media channels have certain people who are designated court reporters. I have noticed this. I presume it's true of most mainstream media. What I mean is, they don't just pick up some stringer and say go to courts and see what is happening.

Justice GS Patel: If you look at the trajectory, historically, of court reporting, it has gone through some phases.

Justice GS Patel: Let us be clear about the visual part of it - we still don't have cameras and video cameras in court. That's not yet happened. We in India have what some courts overseas do where there is some artist who sits inc court and makes sketches... that's out of questn

Justice GS Patel: In the earlier days, journalists would report on the judgments as they were released and infrequently. On longer cases, on the daily events. We noticed this as we were students.

Justice GS Patel: I don't recall the kind of coverage - if I might use an omnibus term - that we have grown accustomed to seeing today... the change or evolution is not necessarily a bad thing.

Justice GS Patel: But it does raise one or two questions.

Justice GS Patel: There has been a general decline in the understanding of fundamentals of the legal process by those who are designated or deputed to report on it.

Justice GS Patel: This is particularly true of the criminal matters and the reportage of criminal matters, because, frankly, that is far more attractive to a reader than some boring commercial dispute...

Justice GS Patel: What I have noticed is that over a period of time, many of those - I am not saying all - have arrived in court without even troubling themselves to familiarise with the rudiments of what these somewhat arcane legal terms mean.

#Media

Justice GS Patel: This is a mixed back. I, for one, am a great devotee, propounder, evangelist for making our legal language less obscure and accessible, keeping it simpler, making it more user friendly. That is not a one-man job, it requires institutional change...

Justice GS Patel: There are some basics that anyone reporting from court must know.

Justice GS Patel: For eg, you have to understand the difference between bail and acquittal. The fact that an accused got bail does not ever mean that he is allowed to get away scot free.

Justice GS Patel: I have lost count of the number of times I have heard this on TV - not read it, because I think the print media tends to pull back a lot more - but TV media certainly lets fly. The impression seems to be "oh look, he is accused, why has he been let out of jail?"

Justice GS Patel: This is a fundamental misconception about the law on bail which says that "bail is the rule and jail is the exception." That is rooted in our Constitutional mandate ... to very jealously guard the right to individual liberty.

Justice GS Patel: Journalists.. dont need to be lawyers or have a law degree. And nobody does to understand the difference between concepts like this ("bail" and "acquittal")

Justice GS Patel: This lack of familiarity is often much more disruptive than one imagines. When you have an outcry over something that is perhaps as routine as bail...this tends to put pressure on judges

Justice GS Patel: Most judges do withstand (the pressure) but there are judges up and down the line, including in the initial courts or courts of first instance, and this pressure (of "what will the public think") is unfair.

Justice GS Patel: No judge should have to decide matters in circumstances like this. It is an absurd way to operate. And I don't see any reason why journalists should be allowed to gain public support.

Justice GS Patel: What is the reason why we don't have jury trials?... It was precisely this. It was the media frenzy and the public reportage in a single criminal trial, the Nanavati murder trial, that caused the law commission to advocate a major change in criminal procedure.

Justice GS Patel: (continuing with what happened in the Nanavati case) In the face of the starkest evidence, we wound up with a jury that was literally swayed by what it was reading and what the public was saying.

Justice GS Patel: That's a mob decision. That's not a republic. That's not a rule of law.

Justice GS Patel: Do Journalists need training? I'm not sure.. do they need an understanding of some core fundamentals? Certainly, and without doubt.

Justice GS Patel: We've got many cases... where this kind of media storm does precisely the wrong thing.

Justice GS Patel refers to "law blogs" which "perhaps uniquely, provide live instant law reportage, very fast - @LiveLawIndia and Bar & Bench".

Justice GS Patel: I think both are exceptional services. They are useful to many of us because we can quickly see and then we can follow up what judgment has come from where. We can;t possibly keep up with judgments that are coming from everywhere.

Justice GS Patel: They've also started another thing, which is the live-tweeting from courts... it is a new thing, and there's much to be said on both sides.

Justice GS Patel speaks on an instance where the press had misheard something said in court and blown it out of proportion.

"I cannot begin to tell you the effect that it had on the mind of this otherwise extremely fine, totally upright and gentle colleague on the bench."

Justice GS Patel: That's extremely unfair. Picking up isolated items like this and thinking "oh my god, how can this ever be." This is unacceptable. Journalists reporting must be aware these are all in a context.

Justice GS Patel: You cannot pluck them out of context, nor can you see them in isolation, and you have to understand that a statement here, an answer there, a question in trial does not determine it (the case).

Apurva Vishwanath says while Delhi High Court is among the more open courts: I am sorry to say that our Constitutional Courts are one of the most opaque public institutions that we come across in the country.

@apurva_hv

Apurva Vishwanath refers to the observations made regarding journalists plucking things out of context or in isolation.

She says that reporters have occasion to wonder whether they should report on certain incidents in the courtroom, that may not make it official records.

Apurva Vishwanath: Why shouldn't a casteist remark made by a Judge in court be reported, or a sexist remark? Or if a judge is dozing off in court during a death penalty hearing, should it be pointed out to the public?

@apurva_hv

Apurva Vishwanath: I am sure videoconferencing or live-telecasting of courts will bring a lot of these questions in the public domain. These will no longer be things that we will quietly wonder about in newsrooms but these will be public discourse.

Apurva Vishwanath:... but how far do we take this, where do we draw the line are all conversations that we need to have.

Apurva Vishwanath speaks on how it is difficult the gauge information from court records alone in long-standing important cases, citing the example of the TN Godavarman Thirumulpad case.

Apurva Vishwanath : It is important to the public to know what ... is driving the court's decision, how it is impacting other cases... (1/2)

Apurva Vishwanath: ... (2/2) but all of these mostly come in something that has been discussed over the last two years - these come in sealed envelopes, only to the judge, the public is not given access.

Apurva Vishwanath: And there is this infantilisation of the press that happens most of the time - that the judge will look into it, and not anyone else.

Apurva Vishwanath: This lack of informational symmetry makes you work with what you have. For eg. in 2017, the most interesting judicial proceedings I covered was something from the Kenyan Supreme Court, you had a YoutTube live...

Apurva Vishwanath: ... it was all of 17 mins and the Chief Justice read out the operational part of the judgement and said, within 21 days the full text of the judgment would be placed on record.

Apurva Vishwanath: Now there are judges who write judgments that are easy to understand... but increasingly, even when the judgment is read in open court, even the operational part, it is very difficult to understand what really is happening.

Apurva Vishwanath: In most cases - this is one of our pet peeves - there is a lack of microphones in court. No judge in the Supreme Court that I have seen in the last 6 years has ever used a microphone in court.

Apurva Vishwanath: It is a guess game. Somebody standing in the front will come and tell you - is this what it is - and then there is a cross verification.

Apurva Vishwanath: So there are a lot of instances where reporting has gone horribly wrong because there's just utter chaos on a Monday morning in courtroom and the press relegated to the gallery in the back cant hear what is happening...

Apurva Vishwanath: Another thing I wanted to talk about is of accreditation... Supreme Court has a process of vetting and giving accreditation to journalists and one of the criteria is that you have a law degree.

Apurva Vishwanath: Accreditation give you a set of privileges... but when it is judges who sign off on these things, it is but obvious that a journalist who has been around in those courts.. will watch his way on how reporting is happening...

Harish Narasappa on whether there should be live-reporting or live recording of court proceedings:

The Judiciary is an open system. It is not a system where decisions are taken in private.

Harish Narasappa says the judiciary should not compromise on its openness.

The judiciary needs to ensure that its openness is not compromised because of misguided reporting or improper reporting: Narasappa

Harish Narasappa adds: The judicial process, the impartiality and principles of natural justice, comes first, even before the need to share information.