A year has passed since the kerala courts have become alien grounds to journalists- Of course the situation has changed a lot  for the better, but the problem remains unsolved. 

Reposting my article published in EPW web exclusive on 27.10.2016

‘Ban’ on Reporting From Kerala Courts

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.

1    The Bar Council of India, available at http://www.barcouncilofindia.org/about/professional-standards/.

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.