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TheIndian EXPRESS

THE OP-ED PAGE

l THURSDAY l SEPTEMBER 20 l 2012

11

Why justice must be seen and heard

Open justice is the foundation for rule of law, and media coverage of the courts is more relevant than ever
MADHAVI GORADIA DIVAN
NO ONE quite knew what was in store when the Supreme Court pronounced its judgment in the media guidelines case. What was sparked off by the mysterious leak to the media of a confidential exchange between lawyers in the case, snowballed into an open-ended debate on media transgressions and the need to rein them in with guidelines. It did not help that in several recent cases, the Court had expressed its displeasure with media sensationalism. Still fresh in the public memory were the controversies surrounding the live telecast of 26/11 and the involvement of journalists in the Radia conversations. Here was an opportunity, it seemed, for the Court to show the media its place once and for all, to craft contours within which it could report the courts. There was reason for concern. The judgment is probably more significant for what it does not say. The Court refrained from carving out any general guidelines, recognising that no one shoe fits all. That ought to bring relief. What does the judgment say? While recognising the presumption of open justice and the medias right to report court proceedings, the Supreme Court held that there may arise exceptional cases where reporting may adversely impact the administration of justice. In such cases, reporting may be deferred for a limited duration by the Supreme Court or the high courts. An order of postponement must pass the tests of necessity and proportionality and be resorted to only where no alternative measures are available. The Sahara judgment does not deviate from the law laid down in an a corner or in any covert manner. If the guilty were to be let off the hook after a trial behind closed doors, they would lose faith in the system. This may lead people to take the law into their own hands. Open justice is intended to ensure public confidence in the justice system. It is on this edifice that rule of law prevails in civilised societies. The inherent power of the court to prohibit or postpone reporting as recognisedintheSaharacasemustbe exercised with extreme caution. In holding that orders of postponement must be subject to the tests of necessity and proportionality, the Court has narrowed, not widened the contours of the inherent power under which reporting could be prohibited under Mirajkar. These tests would have to be satisfied on the basis of real and practical considerations. While granting an injunction restricting reporting, the court cannot be oblivious to the futility of orders overtaken by technology. Once a news item has already entered the public domain by any means, whether through Twitter or YouTube, it is pointlessorderinganewspapernotto publish a report. Further, news is a perishable commodity that loses significance with each passing day. Stale news is no news. The damage caused by barring contemporaneous publicity may be difficult to undo once a trial conducted behind closed doors, is concluded. These are factors that courts called upon to restrict reporting would be compelled to consider. The world has never known so much transparency and openness as technology has made possible today. In several jurisdictions, there is live televised reporting of cases. We in India ought to be debating how technology can make the system cleaner and more accountable. The media must report more cases, not less. All jurisdictions recognise exceptions to open justice. But exceptions cannot displace the norm. Divan is an advocate in the Supreme Court and the author of Facets of Media Law the US has the political will to defend Japan against China. Beijing, on the other hand, is warning that US support to Japan would be a hostile act. For the moment, the US interest is in trying to prevent a further escalation of tensions between China and Japan rather than clarifying the implications of the US-Japan mutual defence treaty. Indias relations with all the three have been transformed over the last two decades. As their conflict escalates, both Beijing and Tokyo would want Indias understanding of their respective positions. In the 1930s and 1940s, the Indian national movement was deeply touched by the conflict between China and Japan. In the 1950s, independent India actively promoted peace in northeast Asia. India now needs to reclaim some of that spirit and contribute vigorously to the maintenance of peace and stability in east Asia. The writer is a distinguished fellow at the Observer Research Foundation, Delhi and a contributing editor for The Indian Express

Tele SCOPE
SHAILAJA BAJPAI

Mamata Di was in two minds over three options, talking heads scrambled to figure out who held the aces
THERE was Hitler Didi on Zee on Tuesday night and there was an irate Didi on the news channels. One was doing her duty by her family, the other by her poor people. One silently bore the injustice of supporting her loved ones, the other was flushed with the indignation of supporting an ungrateful ally. One would selflessly continue to shoulder the burden, the other had just shrugged. Sometimes, someone has to bell the cat, declared Mamata Banerjee, announcing the withdrawal of Trinamool Congress from UPA 2. The agony felt by TV anchor Karan Thapar (CNNIBN) and the TV audience for three hours while awaiting that decision finally ended at 8.18 pm (studio time). Or so we thought for the better part of Banerjees grandstanding speech that few of us understood, because she spoke mostly in Bengali, but comprehended perfectly from her angry tone and belligerent posture. It was Didis day out, in Rajdeep Sardesais words (CNN-IBN) as Mamata B or Di opened the UPA door and walked away. But hold on. At the end of her speech, she gave UPA 2 almost 72 hours to withdraw its reforms before her ministers resigned on Friday, just as she had given the UPA 72 hours to reconsider them last week. Now, either she TV news framed it as a Shakespearean dilemma: will she or wont she leave the government? For 72 hours and until she announced her departure, everyone on the air dithered between yes, no or maybe, but mostly maybe not. Nobody knew, because as Gurudas Dasgupta of the CPI said, maverick Mamata Banerjee is unpredictable. Nobody knew what went on inside her head, let alone behind the closed doors of the TMC meeting. This is a classic example of TV news filling in the blanks with shots in the dark: Kya ho raha hai yeh nahin malum (We dont know whats happening), admitted ABP, 40 minutes after the TMC meeting had ended on Tuesday. Since Zee News didnt know kya baat ho rahi hai (whats being discussed), it took a commercial break. A journalist on Aaj Tak said there was a gap between what was going on inside and outside. Headlines Today was far cleverer. While NDTV 24x7 directly asked, Mamata to ditch government?, HT played with words: Mamata decided on pull out, which could mean she was still in two minds over three options or that she had decided to leave. Zee News was perhaps inching closest to what would happen: Will Mamata rain on Manmohan Singhs parade? Has the chasm widened

Belling the cat

C R SASIKUMAR

earlier case. In the Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr case decided in 1967, the Supreme Court held that open justice is the rule and in-camera proceedings the exception. Borrowing from an old English judgment it said: Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is... the surest of all guards against improbity. It keeps the judge himself while trying, under trial. The Court proceeded to hold, however, that open justice is not an absolute rule and the court may, in exercise of its inherent powers, prohibit the publication of reports. The Sahara judgment should not be seen as a dilution of the open justice principle. Such an interpretation would have dangerous implications not only for the media but for the larger public interest. With the ills that plague the justice system in India, we need more openness, not less. What is known as the sun-

shine effect of open justice ensures that the state machinery is not misused to unjustly condemn the innocent, that judges and public prosecutors conduct themselves with probity, that proceedings are not needlessly protracted and that justice is delivered fairly and efficiently. The glare of ongoing publicity and the fear of public censure keeps the entire system on its toes. The underlying object of open access to the courts is that justice should be seen to be done and that citizens,asstakeholdersinsociety,be acquainted with the working of the

WE OUGHT to be debating how technology can make the system cleaner and more accountable. The media must report more cases, not less.
great power conflict since the end of the Cold War. The talk of a war in east Asia seemed laughable until recently, for good reasons. East Asia had enjoyed a prolonged peace that facilitated the rapid economic integration of the region and generated unprecedented levels of prosperity. Economic interdependence, it was widely held, would help dampen nationalism and move east Asia away from its many historic animosities. All these assumptions of the region are being questioned amidst the mounting maritime territorial tensions between China and Japan. Leaders from the region and beyond are no longer dismissing the possibility of an armed conflict between Beijing and Tokyo. US Defence Secretary Leon Panetta, who is in Tokyo and Beijing this week, has underlined the potential dangers. Provocations of one kind or another over these various islands, Panetta said, could lead to a misjudgment on one side or the other that could lead to violence. And that conflict would then have the potential of expanding, he added. That is probably an understatement. Even a limited conflict

justicedeliverysystem.Intheolddays in England, for instance, people would visit courts and witness trials justasapastime.Thisisnolonger the norm, which makes the medias task all the more vital, as it is the only means by which the public has access to information about justice delivery. Mediareportingoncaseshasavital societal function that transcends even the right of an undertrial to justice or of the public to information. When a shocking crime occurs, the public experiences a sense of outrage and seeks retribution. It is only when the public is able to see justice being done and the guilty brought to book that it experiences a catharsis that quells the outrage. In a famous American judgment Richmond Newspapers v. Virginia, the US Supreme Court held that the crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is done in between China and Japan could shake down the geopolitics of Asia and the world. The stock markets in east Asia have begun to react as Japanese businesses pull the shutters down in China and the regions cross-border production chains become vulnerable to political passions. China and Japan are the worlds second and third largest economies. They are each others biggest trading partners. Any conflict between them would draw in the worlds number one economy, the US.

AT THE end of her speech, Banerjee gave UPA 2 almost 72 hours to reconsider. Now, either she forgot to close the door firmly on the Congress, or she is someone who would never shut the door.
forgot to close the door firmly as she hurried to distance herself, as she said, from the blackened face of a coal-smeared Congress, or like Godfrey Gordon Gustavus Gore, she is someone who would never shut the door. So, theoretically, she could still return to UPA 2. This and the possibility of an early general election consumed the airwaves after Banerjee triumphantly flounced off. With a huff and a puff she had blown down the house of cards, aka UPA 2, and between them, the news anchors and their guests politicians, journalists scrambled to decide who held the aces. A quick survey of ABP, NDTV India, Aaj Tak, Zee News, IBN7, NDTV 24x7, Times Now, Headlines Today and CNN-IBN suggested that UPA 2 was the joker in the pack. That was not the story in the three days leading up to Tuesday. On the weekend, all the channels were adding up UPAs numbers with or without Banerjee. Then it was Mamata in two minds over three options (Times Now). within UPA? it asked, and reminded its viewers that she had gone with NDA previously. One question: why did Zee News display a Relaxo chappal ad alongside headlines of such national import? Was it a subtle way to suggest that Banerjee, like Nancy Sinatra, would walk all over Manmohan Singh? Speaking of the PM, when he did finally address the nation and tell us what he thinks about any and everything, he did it through a meeting at the Planning Commission. On Saturday, news channels ran lengthy extracts of his address where he explained why reforms were vital for the economy. He should have held a televised press conference or given an interview to DD News instead to explain Coalgate, his recent policy decisions and how FDI in retail would benefit the poor Banerjee spoke of. The Planning Commission speech sounded like too little too late. Especially to Mamata Di. shailaja.bajpai@ expressindia.com

ChineseTAKEAWAY
C. RAJA MOHAN

PATRIOTIC FIRES
THIS week marks the 81st anniversary of an incident in Manchuria that Japan used to launch its occupation of China. The anniversary has helped intensify the Chinese protests against the latest Japanese moves to purchase small islands that are claimed by both. The Japanese call them Senkaku and the Chinese, Diaoyu. These uninhabited islands lie along critical sea lines of communication in the Western Pacific. The contested waters around the islands are rich in fisheries and the seabed is believed to have significant energy resources. While Beijing has encouraged popular protests against Japan, it has also sought to carefully regulate them. The Chinese Communist Party is acutely conscious of the danger of the anti-Japanese rallies turning against the government in Beijing.

Official Chinese media is calling for restraint. Wisdom is needed in the expression of patriotism, the Xinhua news agency said in an editorial this week. When our territorial sovereignty is challenged, Xinhua said, Chinese people should and must show our clear-cut attitude. At the same time, it insists, the expression of patriotic feelings should not come at the cost of disrupting domestic social order. Beijing is not the only one having trouble controlling the rising nationalist sentiment at home. Tokyo, which has been defensive in dealing with China all these decades, is now under pressure from the nationalists to stand up against Beijings assertiveness.

THE nationalist resurgence in China and Japan has set the stage for what could be the first serious

ASIA BURNING

DELHI tends to view its relations with Beijing, Tokyo and Washington through the limiting prism of bilateralism. India must now begin to focus purposefully on the unfolding triangular dynamic between China, Japan and the US. Japan is a military ally of the US, while Beijing is an important partner for Washington. With neither China nor Japan backing off in their disputes, the US is under pressure to produce a fine balancing act. Tokyo would want to know if

ACTING EAST

CRITICAL JUDGMENT
TWO weeks after a special courts verdict convicting 32 persons, including BJP MLA Maya Kodnani, in the Naroda Patiya case, one of the Sangh Parivar weeklies, Organiser, continues to be sharply critical of the landmark judgment. In its latest issue, Organiser claims that Maya, many others [were] convicted on tutored, false and fabricated charges. Criticising the Indian secularists and pro-Islamic activists behind the stop Modi industry, the article praises Gujarat Chief Minister Narendra Modis government for its impartial, non-interfering approach

that ensured that every single riot case was investigated and arrests made, lamenting attempts at tarnishing the image of the state, manufacturing evidence and witnesses. The article seeks to question Judge Jyotsna Yagniks motivations, saying that she was once a junior lawyer of known Congress leader Manubhai Palkhiwala and that her monologue [the verdict]... ignored crucial evidence that could have exonerated Kodnani and the others. The article further faults the judgment for awarding separate jail terms, claiming that while it makes [for] good headlines, justice should be done convincingly, not arbitrarily.

View from the RIGHT

OUT OF FAVOUR
ORGANISERS editorial describes Arvind Kejriwal as a crass opportunist, signalling the Sangh Parivars disillusionment with the anti-corruption campaign. The editorial charges Kejriwal with acting in favour of the Congress. In an editorial that alleges that protests against the Koodankulam nuclear plant are being managed by Christian missionaries, Organiser describes Kejriwal as the latest headline monger to have come out in support of the agitation. It says that Kejriwal has started to co-opt several issues of interest... to the Congress in his eagerness to to grab attention as part of his scheme to jump on to the political bandwagon. Organiser has described the lead anti-Koodankulam agitator, S.P. Udaykumar, as only the Hindu Face projected by the church to debunk the accusation of its involvement. In addition, Organiser has also advanced the theory that the protests spring from

American interests as a strategy to scuttle projects like Koodankulam, being developed with Russian help, and Jaitapur, with French partnership.

for fear of failure. Organiser, too, reports that The Economist hits Rahul where it hurts most.

HAVING used the negative publicity received by the prime minister in foreign media to criticise the government, the Sangh Parivars Hindi weekly, Panchjanya, has another opportunity to criticise Rahul Gandhi in the wake of The Economists article on him. Panchjanyas editorial focuses on Rahul Gandhi and wonders whether the Gandhi family scion is avoiding taking responsibility within the government

RAHUL BASHING

THE latest issue of Panchjanya reports on a fringe groups plan to host a beef party at Jawaharlal Nehru University in the national capital. Though the party did not happen, Panchjanya wonders whether this is an attempt to convert JNU into Osmania University, alleging that students there managed to host a beef party. The article contends that these attempts try to create a wedge within society. Compiled by Ravish Tiwari

BEEFING UP