Press freedom: Justice may be blind, not deaf

The Bar Council of Kerala wants to restrain lawyers from speaking to the media about ongoing cases, while the advocate general, going a step further, has demanded a complete bar on reporting the bench's observations and even oral arguments.

Both actions have been prompted by a recent incident of a High Court judge expressing reservations about how certain sections of the media reported a particular observation he had made while hearing a PIL against the policy of admissions to medical colleges.

Undoubtedly, both these measures, if implemented, shall amount to a restriction on press freedom as guaranteed by the constitution. Indeed, a blanket restriction would fall foul of the law, because it would be excessive, and hence, unreasonable.

A farrago of counter arguments, not entirely without merit, shall be trotted out. That the media, even legal correspondents, quite often lunge for the low hanging fruit of sensationalising stray observations of the bench, taking a comment out of context, contorting it and spinning a story, and of course, the dreaded "trial by media", which, dependant more on theatrics than facts, stacked with vapid arguments and fervid speculation, holds the potential to derail justice.  

Recognising the importance of oral arguments in a case, and treating them with both the respect and scrutiny they deserve, could provide a possible way out of this stalemate.

When asked why he live tweeted the phone-hacking trial (in which the entire rank and file of Rupert Murdoch's now defunct tabloid News of the World staff indulged in gross journalistic malpractices, some of them, even crimes), BBC journalist Peter Jukes said that he wanted the public to know the truth as it was, because there was excessive editorialising in the British press.

This, he claimed, came in the way of the public knowing how the court arrived at its decision, which is equally critical, if not more important, than getting to know only what the court ruled. For at the end of the day, a trial, and even an appellate hearing, is a contest between competing narratives, and knowledge of only the victor's story suffers from evident deficiency.

Moreover, the discussions - exchanges, repartees, even scintillating verbal duels - between the bench and the bar, make for a splendid dynamic, which is essential to lawyers (for devising legal strategy), to legal correspondents (so that they can report on law in action) as well as the judges themselves (so that they can undertake a course correction before it is too late).

On January 12, 2012, a Delhi High Court judge, while hearing a case against social networking sites and search engines, thundered that if the government dragged its feet, the judiciary will impose Chinese censorship-style measures to scrub the Internet of "obscene and lascivious" content. That remark was reported in conscience and fairness, and it is reliably learnt that the proceedings are going on without flashes of despotism from the bench.

The argument - that journalists have a responsibility to ferret out the truth (and that access to oral arguments is indispensable to such an enterprise) takes a backseat if one considers how reporting on what transpired during proceedings can potentially swing the balance between life and death.

The fact that in today's frenetic news cycle, not every correspondent would be able to act on autodidactic impulses, sift through voluminous petitions, enhances the importance of this contention.

Consider Surendra Koli's case, which is due to come up for review before the Supreme Court on October 28th. Koli was convicted and sentenced to the gallows for the stomach-churning killings and brutalities at Nithari.

On February 15, 2011 the Supreme Court upheld both the conviction and sentence, noting that a serial killer like him deserved no mercy. The judgement ought to pique curiosity for two reasons.

One, how did the court arrive at the finding of "serial killer" when only the murder of one person had been proved (the remaining ones were still being investigated when the judgement was delivered)?

Two, the terse one-liner - that the court is satisfied about Koli's confession (which was the only evidence used to hold him guilty) was voluntary. Because, before the high court, his lawyer did contend that Koli was made to confess by custodial torture.

To a layperson, the text of the judgement or the media reports of that time provide no answers. The judges did not provide any reasons, and all papers went to town only about "justice to Nithari victims". The headlines and reports were only, and all about what the court decided, not how it did.

Four days from now, Koli's counsels shall be contending that he was deprived of his right to a fair trial because, among other grounds, his lawyers were incompetent since they did not present evidence and arguments as they ought to. Is it not fundamental to the administration of justice, and in public interest, that we get to know how his case was decided?

Incidentally, Koli will have another chance at justice because it was a constitution bench of the Supreme Court which on September 2nd, put an end to death penalty reviews being "decided" by judges themselves in their chambers. It is essential that all such cases must be decided in open court, and with oral arguments, the judges had ruled.

One can only hope that both the Kerala Bar and the bench will eschew the pursuit of "closed (in)justice".