The first piece of advice that the news editor I worked with gave me was: “Never criticise the judge or suggest in any way that he, his judgment or his court is influenced by non-judicial considerations; otherwise, we will be had up for contempt.” I was setting off on my first assignment to cover the district courts, then in Delhi’s Kashmere Gate, before Independence.
The advice was drilled into me. Although sometimes, I heard whispers that the munsif would delay a hearing for Rs 5, or lose the case file for a higher sum, such evidence of corruption never appeared in my reports. The whispers were not limited to the munsif; the magistrate was rumoured to take much more for a favourable decision.
My fellow reporters followed the same line, though we outdid each other in the dingy reporters’ room exchanging stories of how venal certain magistrates were. Lawyers dropped in with even more titillating accounts of judgments being reversed for astronomical prices. The services of prostitutes were another bait. A reporter who’d covered the courts for years earned all the tea he could drink by regaling us with vivid descriptions of their attractions.
Many stories were exaggerated; others were based on rumours. Had they appeared in print, the reputation of the courts would have been ruined. Most magistrates were known to have impeccable reputations, but there was enough evidence that some were venal. Senior lawyers opined that if these were reported, it would create doubts in the public mind about the incorruptibility of the entire judiciary. That was the explanation for the stringent laws on contempt. Truth was no defence at the time.
The law of contempt did not change for years after the passage of the Constitution. But the need for some degree of transparency mounted with evidence of increasing judicial corruption. Specific cases were discussed in Parliament, where the law of contempt does not apply. The reputation of the entire judiciary suffered more than if a few carefully-investigated reports had, in fact, appeared in print. Finally, the law of contempt was amended. Reports that were demonstrably true, like a judge altering his verdict in response to an obvious personal favour, could appear without the reporter or the editor being held guilty of contempt.
But then, ‘truth’ and ‘favour’ are imprecise words. They vary in meaning and require the most stringent evidence to be accepted as conclusive; more so, if the reputation of a Supreme Court judge is involved. A reporter and editor has to be extra-careful unless he or she is absolutely certain that the evidence is watertight.
The question of what constitutes a bribe or favour is no less relevant. If a judge is caught on camera accepting a bundle of notes from someone known to have benefited from his judgment or ruling, there is little room for doubt. Alternatively, the story can be written in a manner suggesting that a particular judgment is incorrect and clearly benefits a third party, but without stating that he is guilty. An experienced legal reporter can indicate wrongdoing while steering clear of contempt.
The contempt case against Mid-day for publishing allegations of misconduct against former Chief Justice of India Y.K. Sabharwal reminds me of what I learnt in dealing with reports that could attract the law of contempt, even if truth has been made a defence. Thus, I declined to add my name to the list of those seeking to be impleaded in the case before the Supreme Court. The documentary evidence was strong, but did not seem conclusive. The anti-judiciary controversy it aroused went beyond the rights and wrongs of the case.
Attacks on the judiciary that go beyond criticising a particular judgment raise sensitive issues. In recent years, there has been a wave of conferences and newspaper articles and reports pointing to judicial malpractices from the lowest to the highest courts in the land. Most of the examples discussed deserved media-bashing. The generalised tone of the criticism amounted to a campaign against the entire judiciary. While there is no evidence that the majority of judges, particularly at the higher level, are guilty of misconduct, they all seem to be tarred with the same brush. The media exaggerate the issue if the Supreme Court is involved.
The many flaws in our legal system need to be addressed objectively and unemotionally. The charges against Justice Sabharwal may be found to be justified or otherwise. But converting it into a battering ram against the walls of the judiciary does not improve the system. It only creates headlines and improves circulations for papers and grabs eyeballs for TV channels.
This does not mean that the sentencing of the Mid-day team to four months’ imprisonment by the Delhi High Court is justified. If the judges were not satisfied with the evidence, they could have pointed to the defects and given time to the accused to produce more evidence. They did not consider the question of truth being a defence. Fortunately, the SC has provided bail and will pronounce its verdict after the controversy has died down.
Ajit Bhattacharjea is former Director, Press Institute of India.