CJI and Coverage of Court Cases

The following was written quite sometime ago but could not be published earlier for unavoidable reasons.

The news was that the Supreme Court hadn’t framed any blanket guidelines for the media coverage of court cases. Most people felt relieved. However, much to the dismay of those who believe in open justice and free speech, the court had actually done worse.

It may be a personal victory for the outgoing Chief Justice of India S.H. Kapadia, but a reverse for the rule of law. The highest judicial officer of the country, a man widely believed to be a crusader against corruption, has perhaps unknowingly, given powerful defendants a route to black out the press from covering trials.
The verdict by the Supreme Court’s five-judge Bench has held that courts have the power to punish for contempt and postpone publication or broadcast of development in hearings. This means that any person accused in a civil or criminal case can file a petition to a High Court or the Supreme Court to allege that his or her rights have been affected by the media coverage.

The media is not interested in reporting cases where the accused are unknown and have committed what editors would term ‘routine crime’. Newsrooms are interested in reporting cases that involve famous or power people, someone who holds public office or cases in which public interest has possibly been hurt. And it is the accused in these very cases that are likely to take this fresh route created by Justice Kapadia.

If this judgment had come earlier, former Telecom Minister A. Raja would have cited it and moved an Appellate Court asking for the media to keep out of the 2G spectrum trial. In fact, all those who wrongfully received coal blocks from the government would be hoping that investigating agencies take the matter to the courts quickly, so that the media limelight could be taken off them by asking for a postpone-ment order.

During the hearing of the case, Justice Kapadia did not appreciate that news, if postponed, would cease to be news. He failed to adhere to all the assistance rendered to the Court by the finest legal brains, including Soli J. Sorabjee, Fali S. Nariman and Rajeev Dhavan, who warned that a very delicate balance would be disturbed if the Court went ahead with its plan. But Justice Kapadia had some other ideas.

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How the Court got to this point is interesting. Having observed Kapadia for nearly his entire term as the Chief Justice of India, it became evident to me that the allegations that surfaced after he delivered the judgment in the landmark Vodafone tax case hurt him deeply. A petition wanting to keep Justice Kapadia out of the case made its way to the Apex Court. As expected, it was dismissed by another bench, but it left a scar on Kapadia’s mind.

Justice Kapadia is known to be a voracious reader and consumer of media. The play the petition received in the press, particularly since it involved his son, Hoshnar, took a toll on him. Subsequently, another article alleged that since his son-in-law, Jahangir Press, worked for the Tata Group, Kapadia should not hear cases involving the corporate house. He transferred all Tata Group matters to other Benches. The media did not notice this at the time, but the move spoke volumes about how much his reputation meant to him. Justice Kapadia came from a modest background and once famously said integrity was the only asset he possessed.
The manner in which the media lapped up allegations against him, perhaps hurt Kapadia. The 11-13 complaints he received from senior counsels and letters he said he received from undertrials, claiming that the media had conde-mned them even before a court convicted them, was probably what made Kapadia constitute the five-judge Constitution Bench to deal with media excesses.

When courts choose to act on letters, reports or complaints, the documents are generally converted into petitions and placed on record. However, none of the letters received by Justice Kapadi from the undertrials was made part of the record. Some complaints by lawyers like Nariman, K.K. Venugopal and Harish Salve were used.

The hearing itself seemed to be a waste of time since nothing new was argued or discussed before the Court. The judges were asked not to upset the cardinal balance between the freedom of speech under Article 19 (1) (a), its restrictions under Article 19 (2), the right to life under Article 21, and the laws of contempt and defamation. All that the Court has done is to open the floodgates to petitions seeking postponement orders along with a temporary stay on trials that are likely to be of vital interest and importance to the public.

My feeling is that the judges might come to realise in time that the judgment was not necessary because the courts with contempt power have the authority to postpone news. Justice Kapadia cushioned the reasoning by saying the press would be protected from contempt laws. None of the lawyers who argued for the media asked for this protection. Journalists were never particularly fond of the sword of contempt hanging over their heads, but this sword will hurt the people’s right to know.

Hopefully, a review petition—the Editors’ Guild of India is contemplating one—will make its way in and the Court will consider it. The Court rarely reviews its decisions. But that is the simplest way. Otherwise, a nine-judge Bench might need to come together to overturn this decision. And that might never happen.

The episode reaffirms that the highest Court of the land is indeed supreme, but it is not infallible. On this occasion, ego has got mixed with authority. In a way, Justice Kapadia retires this month with the judgment that may adversely affect the media, something which he probably did not want.

The author is a veteran journalist renowned not only in this country but also in our neighbouring states of Pakistan and Bangladesh where his columns are widely read. His website is www.kuldipnayar.com