Judging the media

The tensions between the judiciary and the media are palpable as the rift widens

Former attorney-general of India Soli Sorabjee, in a high profile workshop, aptly called judiciary-media relations “a classic case of tension between two values.” Some of the jurists who spoke on the occasion avoided the term ‘media bashing’, some others
expressed their annoyance at the media reporting, and called such occurrences  ‘parallel trials’ by the media. Increasing tensions between the judiciary and the media, particularly in a democracy of our size and complications, can be understood only in a larger context.

Today when the legislature and political executive have almost become one, an independent judiciary is especially crucial to safeguard the rights of the people. The judiciary has emerged as the final dispenser of justice, and its members are expected to interpret and reinterpret established law in accordance with the new needs of society and in the light of new thinking. That these days our judiciary is more guided by the spirit rather than the letter of the law is a welcome sign. It is taking up issues of vital public importance, at times inducing the legislature to amend the Constitution to meet new requirements. In an atmosphere where politics is all about appropriating public wealth, the public looks to the media to highlight its woes and to the judiciary for redressal of its grievances.

In this sense both the judiciary and the media are protectors of the rights of the public. Despite this common pursuit, conflicts between them are on the increase. It starts with the media asserting that, on behalf of people, it has all the powers to examine and expose, as and when necessary, the deeds of the law-makers, the law implementers and also the law interpreters, by raising awkward questions. Conflict is almost in-built between the media that wants to know everything and the judiciary that has serious doubts about the media’s bona fide intentions. Is this conflict due to the difference in the nature of their functioning? The judiciary is always cautious, and rarely acts in a suo moto manner, although of late it too has shown signs of change, and by and large it functions on applications and appeals. The media, on the contrary, reacts instantly and almost radically. 

The most important difference between the two, is, except for the service rules of promotions and transfers, the judiciary is independent and is free to interpret the law made by the Parliament, whereas the so-called independence of the media is restricted and like other freedoms is subject to well-known exceptions enumerated in Articles 19 and 19(a) of the Constitution. This so-called editorial freedom is in fact residual freedom as there are numerous pressure groups that constantly work on the media. 

Just as the judiciary can protest against the ‘trials by the media’, the media can grumble about the pressures from various groups such as politicians, advertisers and even readers. If and when that residual freedom of the media also is sought to be curtailed by the Parliament or the judiciary, the media revolts or sulks as the case may be. Just as the judiciary is sensitive about its dignity, the media is fiercely protective of its freedom. It is as a result of this that some of the most celebrated court cases in our Constitutional history have been concerning the limits of expression, that is, the freedom of the media.
It is a euphemism to call the media the “Fourth Estate” in a democracy. Its freedom is restricted and it does not have the defence mechanisms of the other three Estates. Elected representatives have privilege, bureaucrats are a part of the ‘steel-frame’ that knows how to stay beyond the pale of media enquiry, while the judiciary has its sanctity.  The editors of responsible newspapers in India are increasingly feeling the need to reconsider the effects of these two ‘shields’ which more often than not are used as ‘weapons’ on account of the absolute immunity they give. The growing intolerance of the judiciary towards the media coupled with this immunity is further curtailing the already restricted freedom of the Press. 

For instance, if an “incorrect map” of India is published in a newspaper in, say, an advertisement, prosecution can be started against the editor and the ‘crime’ is punishable with an imprisonment for a term which may extend to three years or with a fine or both.

If the media is to be an effective ally of the judiciary in our onward march towards social justice, the judiciary should not suspect the bona fides of the media and should tend to ignore the little excesses it can be guilty of, taking into consideration the peculiar nature of media functioning. A judge handles one case at a time, whereas producing a newspaper or journal can be a daily, weekly or monthly enterprise, with the editor being legally, morally and technically
responsible for the whole.
The writer is former editor of Loksatta.