~By Inderjit Badhwar

The Supreme Court took a welcome, forward-looking step last week by allowing journalists to carry mobile phones—in silent mode—inside the court rooms. Earlier, only accredited mediapersons were accorded this concession. The new ruling comes with certain conditions such as the requirement that this concession would be made available to those with six-month passes issued by the Court Registry. But it is nonetheless another move in the direction of what are known as “sunshine laws”— requiring agencies of the government to give as much public access as is desirable or possible to the government and courts.

Implicit in sunshine laws is the ability to record a meeting either through audio or visual devices. While the Supreme Court circular is silent on the specific issues of audio and video recordings—it is, perhaps, still, testing the waters—there is little doubt that it is acknowledging India’s move into the age of digital journalism where tweeting court proceedings may soon become the rule rather than the exception that it now is, and the monopoly of a fistful of privileged “senior” journos will be opened to competition.

The move is also a manifestation of the Court’s continuing recognition of the concept of open, accountable and responsive governance. The apex body has already issued a call favouring live streaming—as in Parliament—of judicial proceedings. It has also decided on making Collegium proceedings more transparent along with publication by the Registry of its decisions. It has introduced transparency into the roster system and assignment of cases. It has moved rapidly in the direction of computerising the Cause List and digitizing records. It has restrained itself from arbitrarily invoking contempt proceedings against attorneys who come perilously close to insulting them with bellicosity and insinuation.

And that is how it should be. Restraint of power along with openness actually strengthens institutions because they are the magic ingredients of credibility. The irony has not gone unnoticed that even as the Executive branch of government is becoming obsessively secretive, diluting the Right to Information Act, virtually cutting off access of journalists to official and ministerial sources and holding no press conferences, the Judiciary is opening up. There can be no sharper contrast than between the refusal of ministers to take press questions and answer direct queries, and the unprecedented interaction between the four senior judges of the Collegium and the press during which they were sharply critical of their own institution.

When systems transform themselves to accommodate changing times, social trends and new technologies, it is a sign of flexibility. But responsiveness also demands more responsibility, and in this case, from the journalists who convey news from the courtrooms to the world outside. Media editors have the onerous duty of ensuring that only the most disinterested reporters and correspondents—preferably those with specialised knowledge of the law—cover court proceedings and trials.

This is necessary in today’s world of fake news and sensational tabloid reporting in the ever-expanding galaxies of the social media. Giving untrammeled leeway to a cell-phone-wielding ideologue inside a court-room could, critics aver, be akin to handing a loaded revolver to a psychopath. God knows what havoc instant tweets and Facebook messages from inside a courtroom by design, default, or ignorance, could wreak on the rights of a litigant or even the reputation of an honest judge, what to speak of bias creeping into the appeals process. We already have examples of public confusion caused by live, often confusing tweets from the Judge Loya and Karnataka hung assembly cases.

This is not to argue against a more open system or to discourage the use of cell phones for reporting court proceedings. The key element is balance. “Free-Press-Fair-Trial” is its most critical element. The term is commonly used to refer to the delicate balance between the news media’s right to gather and disseminate information to the public and a defendant’s  right to a public trial by an impartial judge or jury. Article 19 of the Indian Constitution “Right to Freedom” protects the freedom of speech and expression, assembly, and movement subject to reasonable restrictions.

Articles 20 and 21 protect our right to a fair trial. This includes an adversarial trial system, presumption of innocence, independent judges, and knowledge of the accusation, trial and evidence in the presence of the accused and adequate legal representation to respond to the charges. The Supreme Court (Zahira Habibullah Sheikh & Anr vs State Of Gujarat) held that “the principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices…. fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated”. Most of these safeguards to ensure a fair trial are contained in Code of Criminal Procedure, 1973 which contains and defines the procedure which has to be followed in criminal cases.

Both these fundamental rights have their origin in the American Constitution which mightily influenced India’s founding fathers. America’s First Amendment states explicitly: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Criminal cases have been tried in an open, public court as long as the English legal system has been in existence. Despite historical exceptions (such as the Star Chamber of Henry VIII), public trials were usually seen as:

“… giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants,  or decisions based on secret bias or partiality…” (Chief Justice Warren Burger in Richmond Newspapers v. Virginia, 1980).

In a published article on “Media Law and Ethics”, a noted American legal website observes: “Yet this right to a public trial may also present a serious conflict with a defendant’s Sixth Amendment right to a fair trial. For example, most experienced journalists have known district attorneys (or Commonwealth attorneys) who built their political careers on high conviction rates as prosecutors. One of their major tactics to ensure that  high rate can be  leaks to the press that create an adverse climate before a trial, with the idea that potential jurors would already have formed some basic ideas about the guilt of the accused.

“Leaks about evidence in upcoming trials are generally acknowledged to be somewhat unethical, although some argue that they are highly unethical. In any event, leaks are not unusual. The pressures on journalists under those circumstances are directly contrary to the presumption of innocence. And since the defense is not likely to divulge its strategy, or sometimes not sophisticated enough to understand the publicity game, there are frequent miscarriages of justice.”

Ethics, then becomes an overriding concern as we open up the Indian courts to increased cell-phone reportage. Journalists and law enforcement personnel need to understand the case law and also the ethics of news coverage in this area. As of now, as an article published by The Hoot noted, there are no clear and objective standards as to how reporting by the Press may affect a person’s right to a fair trial : “There is no legislation which provides guidance on this. The only law with respect to this is contained under the Contempt of Courts Act, 1971 where contempt proceedings may be initiated against reporting which interferes in the administration of justice.”

A commitment to a high editorial standard of ethics and self-regulation are possibly the obvious path to deal with these issues. In America, joint commissions of the press and bar associations have issued voluntary guidelines for ethical behaviour by members of the media and legal professions when pre-trial publicity issues come up. Washington state, for example, has a bench-bar press committee, to examine ethical dimensions to press coverage of trials.

The News Media Handbook on Virginia Law and Courts, published by the Virginia Bar Association, the Virginia Press Association, and the Virginia Association of Broadcasters has this to say about Free Press Fair Trial issues:

• We respect the co-equal rights of a free press and fair trial.
• The public is entitled to as much information as possible about the administration of justice to the extent that such information does not impair the ends of justice or the rights of citizens as individuals.
• Accused persons are entitled to be judged in an atmosphere free from passion, prejudice and sensationalism.
• The responsibility for assuring a fair trial rests primarily with the judge who has the power to preserve order in the court and the duty to use all means available to see that justice is done. All news media are equally responsible for objectivity and accuracy.
• Decisions about handling the news rest with editors and news directors, but in the exercise of news judgments based on the public’s interest, the editor or news director should remember that: An accused person is presumed innocent until found guilty; readers, listeners and viewers are potential jurors; no person’s reputation should be injured needlessly.
• No lawyer should exploit any medium of public information to enhance his side of a pending case, but this should not be construed as limiting the public prosecutor’s obligation to make available information to which the public is entitled.
• The  media, the bar, and law enforcement agencies should cooperate in assuring a free flow of information but should exercise responsibility and discretion when it appears probable that public disclosure of information in prosecutions might prevent a fair trial or jeopardize justice, especially just before a trial.
• When a trial has begun, the news media may report anything done or said in open court. The news media should consider very carefully, however, publication of any matter or statements excluded from evidence because this type of information is highly prejudicial and, if it reaches the jury, could result in a mistrial.

Most constitutional democracies functioning under the Rule of Law will probably come to similar solutions. As reported earlier in The Hoot India’s Law Commission had some valuable recommendations which the judiciary and press grapple with the Supreme Court’s opening to the realities of digital communication:

Its 200th Report titled “Trial by Media: Free Speech and Fair Trial under the Code of Criminal Procedure, 1973” has stated various forms of conduct by the press which constitute interference in the due course of administration of justice. These include: (1)Publications concerning the character of accused or previous conclusions; (2) Publication of Confessions; (3) Publications which comment or reflect upon the merits of the case; (4) Photographs related to the case which may interfere with the identification of the accused; (5) Direct imputations of the accused’s innocence; (6) Creating an atmosphere of prejudice; (7) Criticism of witnesses; (8) Premature publication of evidence; (9) Publication of interviews with witnesses. It is pertinent to mention that most of these ingredients have been culled out from Borrie and Lowe’s commentary on contempt law and are not reflected either in statute or judicial pronouncements in India. Even though the Law Commission states: “There are also a large number of decisions of the Indian Courts falling under these very headings.”