INDIA: Judge, judge thyself 

The attempt by the Supreme Court of India to draw-up operative principles for the media outlining the contours of Article 19 (1) (a) of the constitution is an exercise that the Court should not venture into. In fact, the Court does not have a constitutional mandate to do so. It is within the realm of the country’s parliament. The Court is engaging in this exercise to purportedly ‘safeguard the dignity, reputation and fair trial guarantees of an accused’. Though there is substantial weight in the fact that on many occasions representatives of the country’s media have breached these fundamental rights, jurisprudential maturity warrants that the violation of such rights should be assessed and decided by the courts, on a case-by-case basis.

Attempting to create a pre-emptive architecture for the media affects an important fundamental right – the freedom of speech and expression covered in Article 19 (1) (a) – and threatens to create a pre-publication framework that could restrict this right considerably and without constitutional legitimacy. It would be a wide and condemnable departure from basic jurisprudence of the Romesh Thapar case, that had already been diluted and restricted by the time the Court decided the Arundhati Roy case. If former guidelines issued by the Court may be used as an indicator – as to how far such new guidelines will be followed – the exercise itself could be termed a farce.

The attempt to prescribe operational guidelines for the media could be viewed as expanding the contempt of court jurisdiction. Freedom of speech and expression is fundamental to the rule of law. The proposition to set out guidelines to the enjoyment of such rights is a direct attack upon the foundation of democracy and certainly will have a chilling effect upon the foundations of the country’s treasured values underlined in the constitution. It is negates the binding international jurisprudence of the United Nations’ General Comment number 34 on Article 19 of the International Convention on Civil and Political Rights, a core human rights document to which India is a party.

The Asian Human Rights Commission (AHRC) is of the opinion that the riders attached to Article 19 (1) (a) themselves set a highly restrictive parameter to the enjoyment of this right. Terms like ‘friendly relations with foreign States’ and ‘decency or morality’ could be loosely interpreted at anytime, and, in fact, the Court is itself infamous for misusing its contempt of court powers. Additionally, the Court will most certainly have difficulty in defining the term ‘media’. By the time the ink in the future judgment dries, new forms of media and mediums of expression would have developed. Perhaps it is time for the Court to realise that with the rapid pace of development in technology, a role that the Court should increasingly play is to protect rights and not circumscribe them, all the more since it is certain that such an attempt is like fighting a pre-scripted war that the Court is destined to loose, shamefully.

Venturing into areas that the Court should steer clear from will only help further deteriorate public confidence in the country’s judiciary. If the Court is interested in upholding the dignity, reputation and fair trail guarantees of an accused, perhaps it must begin in-house, for instance by ending corruption in the judiciary. No judiciary worthy its legitimate mandate can afford to have a percentage scale attributed to the integrity of its judges. A judiciary is either corrupt or not corrupt.

The assumption that fair trial in India is hampered because of the media indicates a coloured vision of the judges and a propensity to avoid looking into mirrors.

Just as it is in any other democracy with a relatively free press, a trial by the media often results in cases involving high profile personalities. The news value that the Indian media ascribes to the plight of the ordinary people in the country is low. This is consistent with the feudal and insensitive mindset of those with power in India, but is also perhaps because the media today has more than what it can afford to publish – in terms of sheer space – concerning corruption at high offices in the country. High profile members of the central and state cabinets, the judiciary, the executive and amongst the media itself have exploited the inability of the country’s justice institutions to punish and prevent crime at high offices. Each day unfolds a new scam unearthed. It is natural and expected that the media give prominence to such news. And, it does hurt those who are accused and investigated for crimes they have committed while serving at high offices. The Court is attempting to prevent such embarrassment suffered by those in power. The best and only antidote to ‘trial by media’ is a functioning and non-corrupt judiciary that adjudicates swiftly, not pre-emptive circumscription of free speech.

Had the common person been the Court’s concern, the Court would have taken measures to end decades long delay in adjudicating cases. The Court should immediately end the practice of adjourning criminal cases without the accused being produced in courts. It must end corrupt prosecutions. That the Court has itself issued directions concerning arrest and detention, it should show courage and honesty. It should take contempt of court action against those that shamelessly violate its directions in the D.K. Basu case, which today stand as law.

It should have long ago pulled up state administrations, as the police under them are, throughout the length and breadth of the country, engaged in extra-judicial punishments, including torturing suspects and extra-judicial executions.

Should fair trial have been the real concern of the Court, it would have found and ruled draconian laws like the Armed Forces (Special Powers) Act, 1958 unconstitutional. Every entity that has examined this law has held it non-compatible with the concept of fair trail, but for the Government of India and the Supreme Court.

Anyone who has observed the proceedings in Tis Hazari and Patiala courts at the national capital for even a day would have no doubt that these courts have no understanding of the concept of a fair trial. The public perception that justice is a phantom limb of the country’s judicial architecture is of considerable reasoning. The rich, the politically powerful and the corrupt judges in the country would readily agree to this, as otherwise they would have been behind bars by now.

The Indian judiciary should not be the only agency that is to be blamed for this despicable state of affairs. Its responsibility for accelerating the deteriorating rule of law architecture in the country is important and substantial nonetheless. The demoralisation suffered by the judiciary since corruption amongst numerous judges, including several Chief Justices, became public knowledge, and the utter failure of the institution to address it, is perhaps where the judiciary should concentrate first in order to reinstate fair trial guarantees in India.

For such an institution to circumscribe limits on freedom of expression and opinion at the behest of protecting the rights of the common person so that no one may call the nude king nude, is a despicable effort. The judiciary has alienated and distanced the common person so much from its august benches that today it has no moral or legal right to speak for the common good of the ordinary people. What is required is introspection. And, for that, judge, judge thyself!

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About AHRC:
 The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.
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