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Column: Judges are people too

Judges & other humans, inside
Judges & other humans, inside

A lot of the recent frictions between the judiciary and the media are little more than misunderstandings, argues Kian Ganz.

The Supreme Court of India, for the last two years under the stewardship of SH Kapadia (see profile), has enjoyed a public renaissance in its credibility and profile. But Kapadia’s tenure was also overshadowed by, what is fair to call, an uneasy relationship with the media.

In August 2011 the Supreme Court discussed restricting access to journalists to the court to only those with a law degree, potentially disqualifying a majority of current apex court journalists from doing their job. Although this was eventually relaxed after closed-door discussions between the fourth estate and the bench, it did create a stir.

Then there was the constitution bench, convened by Kapadia to look into the media’s reporting and misreporting of court cases and judges’ statements. Ultimately, despite much rhetoric the practical result of those hearings was limited, besides the court re-iterating rules on 11 September that in exceptional cases, trials may be made off-the-record and unreportable by the media where the administration of justice would be substantially prejudiced by press coverage.

Then, last week, the Pioneer and Indian Express newspapers were hauled up for contempt of court in their reports of remarks by a Supreme Court bench, and, according to the aggrieved judges, editorializing their comments into an alleged controversy about the appointment of a retiring judge to a tribunal.

As a journalist, it is easy to construe all this as an assault on our fundamental rights but sometimes one gets the feeling that this is perhaps all just a big misunderstanding.

Judges have very hard lives.

In the service of their country, they sacrifice a normal family life, often moving from one high court and city to another, or eventually to Delhi if accorded one of the highest judicial honors in the land. Their family may join them on their travels or they may stay behind at home.

Judges also often reduce their social activities to the most basic level – or in the words of Kapadia, judges must live like hermits and work like horses – and their interactions with practicing lawyers or civilians are usually at arms’ length.

And, as rockstars are often surrounded by yes men, judges too rarely get to speak to anyone freely, except maybe their immediate family and other judges: the deference differential between a judge and most ordinary mortals is simply too great.

Judges also forfeit any potential riches that they could have made in private practice as a lawyer – since 2009 Supreme Court judges earn Rs 90,000 a month and the Chief Justice of India (CJI) is on Rs 1 lakh per month, which was hiked in 2006 from Rs 30,000 and Rs 33,000 respectively.

To compensate, on retirement, some can start making considerable amounts of money by working as arbitrators, for example, where they can be in such high demand that they get paid even more than the top senior counsel.

Post-retirement appointments to tribunals or other bodies are also a possibility, leading some, such as Press Council of India (PCI) chairman Markandey Katju, to experience a rebirth in a more social guise. Katju, for example, is now famously active and opinionated in interviews, newspaper columns, on his own blogs, on Twitter and when he hosts parties.

But overall, on balance, most judges do not have lives as most of us would understand it and every ounce of respect they are accorded is therefore deserved. But that respect could also be a curse.

Take, for argument’s sake, a judge who makes a statement in court that is picked up eagerly by the press, quoted out of context and ends up as a juicy headline that can potentially embarrass that judge, maybe even causing serious frictions on a bench that could impair its efficient working and future judging.

While judges may be amongst the most powerful class of the Indian state, and as dignified and respected as they are, actually they have only little recourse to correct such errors as others might: a judge can’t really call a press conference or issue a press release to clarify the error and suing for defamation is rather complicated.

Contempt of court laws offer a weapon that judges can wield much more easily to defend their and their court’s integrity, though arguably, contempt actions against the press can seem like a sledgehammer pummelling a fly, with harsh prison penalties and few defences available (truth, for example, is not an excuse for contumacious behaviour).

Legal journalists reporting in the courts are therefore always acutely aware that contempt hangs somewhere in the room.

But a lot of the time, there may be more effective ways of settling misunderstandings between the media and the bench.

Imagine official press offices in high courts and the apex court that are staffed by experienced former legal journalists and/or knowledgeable lawyers, who could translate the judicial language, which to most laypersons and many journalists is often obtuse, into the common tongue. The flaks could similarly reprimand or explain errors in reporting, suggest required corrections or clarify misunderstandings. All of that could happen before contempt actions were started.

Full transcripts of all court proceedings and everything that is said would similarly greatly decrease the scope for misunderstandings in often crowded courtrooms with difficult acoustics.

And, journalists should remind themselves consciously that while judges may not quite be people like you and me, they are still people who are trying to do their job to the best of their ability.

Meanwhile, judges should understand that the same goes for most journalists.

In one of Katju’s recent blog posts, a “Chief Justice let loose a reign of terror in Wonderland” - a thinly veiled Alice in Wonderland allegory of the decapitation of Pakistan’s government by the most senior judge there.

There is definitely not any immediate prospect of this happening in India.

But as the Supreme Court of India wields increasing influence, it is important that at least one part of society can act as an uncowed check and balance on the courts because under the constitution, no one else really can right now.

And in the long run, this would strengthen the bench, and not weaken it.

A version of this column appeared in Mint last Friday.

Photo by Sue Clark

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