For over three months now [at the time of writing this] there is no news from the courts in Kerala. There is no official ban, but media persons fear to enter the court premises and even when they do venture, they are threatened and even thrashed. It seems as if this predicament is set to continue.
This could be repeated in any other state and even in the national capital. And, as the media in Kerala now realise, the newest and most disturbing threat to the fundamental right to freedom of opinion has come from the corridors of the judiciary, the third pillar of democracy, which had till date upheld the freedom of the press as nothing less than the constitutional right to freedom of expression.
It all started as a dispute between advocates and legal reporters in the compound of the High Court of Kerala in Ernakulam on 19 July. A government public prosecutor was implicated in a molestation case and the lawyers and the bar association came to his defence and rescue. Angry about a not-so-sympathetic report in an English newspaper, lawyers manhandled the reporter. The journalists protested outside the court compound and an advocate was reported to have been beaten up in a minor brawl.
From the next day onwards, there were unprovoked attacks on media persons in the high court compound and in the district courts of Thiruvananthapuram, Kollam, Alappuzha and Kozhikode. The media room in the high court was locked up after forcefully evicting reporters. Reporters were not even allowed to use the lift to go upstairs to meet the court officials or judges. A dozen of them, including a couple of women, were abused and threatened. They had to seek police protection to get out of the court compound. The media room remains closed till date. Violent advocates closed the media room of the Thiruvananthapuram court complex also, after attacking and injuring half a dozen reporters. They put up a board saying, “No Entry for Fourth Gender,” intended as an abusive reference to the fourth estate.
No More an Open Court
The general public might have taken the issue as an ego war or one-upmanship between the so-called third estate and fourth estate, in which they had no interest. But, greater issues are involved, pointed out the spokespersons of media organisations and political leaders. About half a dozen advocates, known to the public as independent observers, boldly stepped out to warn them about the consequences of the media ban in the courts. Sebastian Paul, a former member of Parliament, previously a member of the Press Council of India as well as an advocate in the high court, did not hesitate to reprimand the bar associations for taking an undemocratic stand in the case.
Advocate Kaleeswaram Raj, another prominent lawyer and commentator on legal and public issues, too argued against the authoritarian approach of the advocates’ associations. “The present attempt by a section of advocates, aided by some judges, is an attempt to cover up all nepotism, corruption and anti-people tendencies that are prevailing in the judiciary now,” he accused in an article published in the Mathrubhumi (Raj 2016).
The most disturbing reality is that not many in the high court or lower courts are worried about open courts functioning as closed courts. In a meeting called by the new Chief Justice Mohan Mallikarjunagouda Shantanagoudar, who took office on 22 September 2016, a senior judge went to the extent of commenting that everything runs smoothly in the court now as the media is kept out. “All autocrats believe so” was the quick retort from a senior journalist present at the meeting. The chief justice and other judges realised the unwelcome implication in the comment of the judge and quickly maintained that it should be taken in a jocular spirit.
These cannot be taken as isolated, unthought-of passing comments. Right from the beginning of the tussle, there were attempts on the part of the organisations of advocates to convince others that they should not be taken for granted and that they must be treated as the real authority in the court. This marks the rise of a very dangerous extra-constitutional power centre. Judges, in the beginning, had maintained a neutral position, but soon advocate unions succeeded in creating the impression that media persons were questioning the rights and privileges of the advocates and claiming equal rights in the court.
Dos and Don’ts for Media
Glowing in the reflected glory of the powerful judges and respected legal luminaries, a good number of juniors with not much legal standing believe that they can browbeat all other branches of the democratic system. All issues that cropped up in the initial days were either settled or have become irrelevant; still they refuse to come to an agreement. Advocates’ associations went on raising new demands, virtually prescribing a list of dos and don’ts for the media persons to obey. In all the meetings called by the advocate general and chief justice, media persons had only one request—reporters be allowed to continue using the facilities in the high court to do their job. But, the association leaders raised new demands, most of which were unrelated to the dispute that arose in July. And, almost all demands went to the extent of dictating what to report, how to report, and even who should report news in the court.
In the first reconciliation meeting called by the advocate general in the first week of August, a bar association leader referred to a newspaper carrying a cartoon. What they wanted was an assurance from the media owners that such cartoons and other satirical content that ridicules advocates would be disallowed!
In a letter published in a prominent weekly, a bar association office-bearer wanted a system to “screen” all news about and from judicial institutions. Whether it was to be judicial censorship, nobody knows. Yet another ridiculous demand was that the court be allowed to choose journalists who would report court news.
It is to the credit of the Indian judiciary that it has always upheld the freedom and rights of the press throughout the six decades since independence. There were persons who tried to snub the media saying that the Constitution is silent on the freedom of the press. The concept that freedom of the press is freedom of expression of the citizen as laid down in Article 19(1) of the Constitution had really strengthened the legal and constitutional standing of the press. But, now it is shocking that sections of the judiciary are raising demands that blatantly question the basic concept of a free media.
A nine-member bench of the Supreme Court, led by the legendary Chief Justice P B Gajendragadkar, in the judgment in the Mirajkar case on 3 March 1966, had elucidated the concept of the open court. It said,
A court of justice is a public forum. It is through publicity that the citizens are convinced that the court renders evenhanded justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the court proceedings. The publicity generates public confidence in the administration of justice. (Naresh Shridhar Mirajkar and Ors v State of Maharashtra and Anr (1966); emphasis added)
What more needs to be said?
It is obvious that entry of the media to the open court to report its proceedings is a constitutional right, not a special favour of the judges or advocates. Court proceedings and wider functioning of the judiciary are subjects that the public have every right to scrutinise. The media being the eyes and ears of the people, the very act of preventing their entry into the courts is illegal, unconstitutional, and hence, punishable. Bar association activists behave as if there is no rule of law in the court compound, and they are the lawmakers there.
Supreme Court on Media Freedom
The fundamental issues of media freedom were debated in May 2012, when it was proposed by the Supreme Court that guidelines be given to the media on how
to report cases. The media disagreed. Organisations like the Editors Guild, National Broadcasting Association, and Indian Newspaper Society opposed suggestions of the highest court of the country. Senior counsel Rajeev Dhavan opposed the very idea of enforcing guidelines and said it would lead to infringement of the right to free speech and would amount to “pre-censorship.” A five-judge constitutional bench headed by Chief Justice
S H Kapadia heard all sides and finally dropped the suggestion as it was convinced that no law empowers the Court to create and enforce guidelines for media reporting. And, now, here in Kerala, bar associations are trying to enforce dos and don’ts for media reporting with judges looking the other way!
Overcrowded bars and their increasing muscle power have come to threaten the smooth functioning of the courts. Hundreds of law graduates join the bars every year and they are a force to reckon with. Inside many of the courts, especially inside high court compounds, there seems to be no authority to maintain peace and ensure the rule of law. What is apparently prevailing is simple muscle power. Police posts are there, but they never even try to discipline the organised, but often unruly, crowds of the young advocates, which most judges fear. The organisational might of the advocates’ associations is such that not a single advocate, except Sebastian Paul, who had to pay a price for his sense of professional ethics, turned up to defend the case of the journalists. But, 101 advocates were
paraded by the bar association to defend the case of a police officer suspended for obstructing and ill-treating the journalists inside the Kozhikode court.
Fence Eating the Crop
It was only recently that another phase of advocates’ agitation erupted in the Madras High Court compound. Organised advocates have been exerting their power to ensure that their writ runs in the judicial realms. There too they were trying to protect their petty group interests. Several hundred lawyers picketed the court campus to pressurise the court to withdraw a notification that empowered the chief justice to debar erring lawyers. And, the court was forced to succumb to the numerical and physical strength of the advocates, and shelve
its plan.
What professional ethics demands from lawyers is a high level of decency and decorum. As per provisions of the Bar Council of India,
advocates have the dual responsibility of upholding the interests of the client fearlessly while conducting themselves as officers of the court. Accordingly, they are expected to adhere to the highest standards of probity and honour. An advocate’s conduct should reflect their privileged position in society which derives from the nobility of this profession. In a nut shell, if you are an advocate your service to the common man should be compassionate, moral and lawful.1
The Kerala Union of Working Journalists has taken up the media ban matter with the Supreme Court and also with the Press Council of India. The question is: even if the highest forums assure media persons their freedom of profession, will the organised “trade unions of advocates” care to obey orders? They have not obeyed the chief justice of the Kerala High Court. Is there any apparatus in the judicial system to make them obey?
These are all issues that resemble the proverbial “fence eating the crop.” There are debates and demands on regulating the press, be it self-regulation or otherwise. While this definitely needs to be urgently addressed, new developments point to the urgency of debating whether the media should continue to treat the judiciary as a holy cow, about which nothing is questioned and nothing is investigated, and only eulogies of judges and lawyers are reported. Are courts above the law of the land? “No one should be a judge in his own case” is much more than a judicial principle. But, unfortunately, it seems that it is not applicable to the judiciary.
NOTE
1 The Bar Council of India, available at http://www.barcouncilofindia.org/about/professional-standards/.
References
Naresh Shridhar, Mirajkar and Ors vs State of Maharashtra and Anr (1966): SCR, SC, 3, p 744, 3 March.
Raj, Kaleeswaram (2016): “Venam Kotathikalilum Swathandrya Samaram” (Freedom Struggle Needed in Judicial Courts also), Mathrubhumi, 30 July.
