Whoever controls either the media or the judiciary controls the mind. But when the judiciary restricts the media from resorting to leaks while reporting public trials such as corruption within the CBI, it is a sad day for democracy. This is because the judiciary and the media supplement and complement each other in championing the rights of the people.
But while the qualifications, privileges and duties of the judiciary are clearly spelt out in the Constitution, the media has no such privilege. Not many may know it, but the media enjoys the same freedom which any Indian citizen enjoys — which is nothing at all because occasionally the judiciary may force the media to reveal its sources.
Chief Justice of India (CJI) Ranjan Gogoi was reportedly peeved that “The Wire” had published details of CBI director Alok Verma’s reply to the Chief Vigilance Commissioner’s (CVC) top-secret report on corruption charges against him. The CJI was hearing a petition by Verma challenging the government’s decision to divest him of his powers and send him on leave. “The Wire” clarified that its exclusive article on November 17 was based on the responses given by Verma to the CVC’s questions and not in any top secret document which was leaked to them.
The Wire has the right to keep secret its sources. The furore erupted when the CJI handed over a printout in open court to senior advocate Fali S Nariman on Monday and told him: “This is just for you. We are not giving this to you as a Counsel for the CBI director. What do you say? Would you like to help us ?” To this, Nariman, whose son is the first Supreme Court judge to be a Harvard University alumnus, said he had read about the “leak” in the morning newspapers and was upset. “The press has to be free as well as responsible. I would respectfully request your Lordships to summon editor and ask him about this (leak). How can this happen,” he said.
The first point here is that the media is a hotch-potch of different news channels and newspapers with varying ideologies and budgets. There is always internecine competition between them with each newspaper or news channel seeking to “scoop” the other. In the process, those who want to leak news to the media, while the matter is being adjudicated before the judiciary, are free to do so.
The second point is that judges are trained to analyse the evidence before them without being influenced by what the media or the public opine. Media reports and television news is not admissible as evidence in courts unless the reporter who wrote the report or presented it on television deposes before the court that it is authentic and based on eye-witness accounts.
So lecturing to the media is futile because sants and saints do not make good journalists. In any case, only if there is a deliberate attempt to obstruct the court from doing justice, the judge can issue a notice for committing contempt of court to the errant newspaper or television channel. The same judge or another judge can then hear what the reporter has to say before pronouncing sentence which cannot exceed six months in gross cases of contempt.
CJI Gogoi was the first to break protocol when he addressed the national media in Delhi on January 12, 2018 with his colleagues, Jasti Chelameswar, Kurien Joseph and Madan Lokur when they felt that “democracy was in danger”. This breaking of protocol itself proves the sincerity and honesty of all four judges. More so, when CJI Gogoi confirmed that the PIL about the mysterious death of Judge Anup Loya from Nagpur was selectively assigned to a particular bench.
In a democracy, both the judiciary and the media must remain free to make mistakes and correct them immediately. The people are eager to read about what takes place within the CBI. If there is a breach of propriety and confidentiality which prevents the Supreme Court from doing justice, the remedy is to issue a contempt notice to the errant newspaper or direct that the Press Council of India probe the matter and submit its report to the court.
CJI Ranjan Gogoi had declared at the third Ramnath Goenka memorial lecture in Delhi, six months after his historic January 12 press conference that the need of the hour was “independent journalists and sometimes noisy judges” to save democracy. He said this at a time when lawyers were all agog as to whether he would be sworn in as the next CJI for doing what was unthinkable for a judge: to address the media during court working hours.
But sometimes, journalists can be noisy and conservative judges, who are hearing sensitive cases, may not take kindly to leaks and disclosures of top secret news. Journalists use ploys to extract secret information which may not be legally correct or admissible as evidence in courts. But they, too,
try to get at the truth which quite often gets obfuscated when top CBI officers accuse each other of being corrupt. For CBI officers like deputy inspector general Manish Prasad Sinha, who was probing corruption charges against CBI special director Rakesh Asthana, may have been transferred to Nagpur to stymie hidden rot within the highest echelons of the Narendra Modi government. When the hearing on Monday was deferred to November 29, Sinha’s lawyer asked for an urgent hearing as he had “shocking information”.
When refused this urgent hearing, the “shocking information” which was again leaked to the public was that National Security Advisor Ajit Doval had interfered in the probe against Asthana and a Union cabinet minister had taken bribes.
But nothing shocked the judges. For in a democracy like India, nothing shocks anyone any longer.
Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.
