Independent Judiciary, Responsible Media : Twin Pillars of Democracy

Tribute to a Judge. The HR Khanna lecture on freedom and justice.

By B G Verghese

H R Khanna Lecture, IIC, New Delhi, 4 July, 2012

It is a privilege to speak in remembrance of a great human being. When life, liberty and honour are at stake, if we have anything to turn to, besides prayer, it is justice. There was such a situation in the dark days of the Emergency when democracy was imperilled and freedom lost. Censorship had muzzled the media and all creative expression. Media builds community and, with that silenced, society seemed atomised and men and women feared to talk openly as there were tale-bearers and walls had grown ears. Parliament had virtually been set aside and the Constitution emasculated. But the idea of justice, one of the elemental verities that gives meaning to life, continued to emit a flicker of hope.

At that grim moment, when madness had seized the powers-that-be, the Attorney-General hideously argued that even custodial murder would be legal under Emergency law. A learned constitutional bench of otherwise eminent judges flinched from differing with that brazen pronouncement. But one lone voice spoke up, fearless and firm: that of Justice H.R. Khanna. By upholding habeas corpus, he defied dread and dishonour and reestablished the supremacy of the rule of law. Justice prevailed.

In paying tribute to the Judge this evening we remind ourselves that though India won Independence in 1947 it won freedom only 30 years later. Among the freedom fighters of 1977 was H.R. Khanna. We salute him.

An independent judiciary is the bulwark of a free society as is an independent media. Not without reason is the media designated the Fourth Estate, or the fourth branch of government in addition to the legislature, executive and judiciary. Edmund Burke had named it the fourth estate of the realm, in addition to the clergy, nobility and commoners. This was when the press for the first time took its place in the public gallery to report the proceedings of parliament. No more was the King imbued with the Divine Right to rule or misrule as he pleased. Both the judiciary and the media were now there to render him and all men accountable.

The press initially largely confined itself to expressing opinions but was soon turned to reporting the news, on which opinion was based, in a manner that was fair and impartial. Objectivity and background provided the essential backdrop. The media has since grown from pamphleteering to a huge organised business, whether corporate or privately owned. Yet, despite private ownership, it remains in its truest sense a public trust, prone to error as all human endeavour will be, but called upon to remain above manipulation or selfish motives. Like the judiciary, the media must have an ethical basis, exposing the many sides of the truth. Laws are made by men but Justice is a greater value, based on natural justice or God's truth.

It is no surprise that the Indian Constitution places freedom of expression at the head of all fundamental rights. All human rights, of which freedom of expression is one, are inherent in life and co-equal. But in many ways, freedom of expression is the mother of all rights as it breathes life and gives articulation to all other rights. No wonder that all military coups are invariably accompanied by the takeover of the media and that censorship was the prime engine of the Emergency in India. The Gujarat High Court was censored when it struck done the censorship guidelines in 1976 so that none should know that their lives continued to be governed by a gross illegality.

At the same time, the content and amplitude of "freedom of speech and expression" has been constantly expanded and protected by the Supreme Court. Thus the phrase has been interpreted to include freedom of the press and broadcasting and of all forms of creative expression. The celebrated 1995 Airwaves judgement liberated Indian broadcasting from an absolute State monopoly through total control of the electro-magnetic spectrum. It marked the beginning of private broadcasting in the country. The proximate cause of the suit was a ban on the up-linking of a cricket match from a foreign venue thus denying the Indian pubic the right to watch the game. This was seen to curb their freedom of expression. Mundane though this might appear, it gave substance to the concept of the people's right to know and to make their ideas and expressions known to others.

The media in turn has helped promote legal awareness and published the verdicts of courts that have in so many ways expanded people's rights and protected their interests, livelihoods, privacy, dignity and good name. Until the 1980s however, a person could only approach the court if he or she had locus standi, which implied being directly affected. Again, verdicts gave relief only to the plaintiff, none else. This underwent change with the introduction of Public Interest Litigation, (PIL) when locus standi was extended to public interest and rulings had the effect of class action. Thus, if a poor tribal or dalit in some remote region was denied his rights or subject to an atrocity, any and every citizen acquired the right to move the court in the public interest. And if a single tribal or dalit victim was given relief then that same relief would apply to all tribals and all dalits through the doctrine of class action. The media not merely spread the word but, by publicising wrongs and atrocities, enabled the court suo motu to take cognisance of such matters. The media gave justice a million eyes and ears.

The courts and the media have therefore worked hand in hand in expanding both justice and freedom.

However, this relationship has not been entirely without strain. Trial by the media has become a menace in certain instances, vitiating and pre-empting due process. Obiter dicta and other passing observations by their Lordships have sometimes been reported as judicial pronouncements, causing needless apprehension and misunderstanding. Over-sensitive courts too have on occasion used the power of contempt to ward off legitimate scrutiny of the judicial process. These, however, are exceptions or aberrations and not the rule. The judiciary too faces problems of accountability, backlogs and overreach. The judgement setting out the doctrine of an unamendable basic structure of the Constitution was an outcome of the Emergency. Prolixity has been a problem that has sometimes obscured the law in avoidable verbiage, leading to more litigation. Taking far too many cases on board only to dismiss the trivial has been a factor, along with allowing interminable arguments and adjournments, in delaying justice. Executive infirmity has sometimes encouraged judicial activism which, though often welcome, can upset the delicate constitutional balance. The Court's intervention in inter-state river water disputes, setting aside the verdict of tribunals - which can by legislation be constitutionally placed beyond judicial review, but has not been given such legislative protection - has opened up a can of worms. A supreme example of excessive judicial zeal was manifest in the direction given for executive action and periodic reporting of progress to the Supreme Court in the matter of Inter-Linking of Rivers in 2002 and again more recently. These rulings call for judicial introspection. But, everything said, the judiciary has been a sturdy shield and democratic bulwark.

The media scene has been transformed over the past few decades. The chip, computer, satellite and other technological innovations have led to a communications revolution and created an instant world. Events can now be portrayed in real time and morphed to create virtual reality. This has caused the Fourth Estate in some ways to become the First Estate, with governments and citizens, like courts, reacting to the first information reports filed by the media. These are often incomplete, perhaps garbled on account of immediacy or even doctored, lacking ‘mediation’ or context because of cut-throat competition to win ratings and resultant advertising. But distortion by design is not unknown with intent to mislead and influence hearts and minds through the power of disinformation as much as of information.

The nature of the media too has undergone change. 24x7 channels tend to be shallow and repetitive and demand instant commentary. Hence trivia and sensation boiled down to catchy sound-bytes are favoured and the old tabloid maxim of publish and be damned is once again in vogue. Debate and reflection are therefore often prone to start on a false note and by the time the fuller facts, context and background are out, events will have moved on to some new "breaking news", leaving behind a trail of possible misinformation, prejudice and damaged reputations.

This is not the norm but represents the ugly side of irresponsible journalism that has sadly been on the rise in India. Since the 24x7 channels and, now, the new social media steal the headlines, the print media too has often been reduced to practicing sound-byte journalism - short, snappy, opinionated takes and headlines calculated more to grab attention than inform the reader. This unfortunate trend has been reinforced by the high costs of modern media calling for sustained advertising underpinned by ever higher ratings. This has sometimes transformed the journalists' calling from mission to commerce. Managers have seized power from editors and in extreme cases the very post of the editor has been abolished. Analysis, issues of deep social concern and culture often receive short shrift while cricket, Bollywood, crime and political trivia have come to the fore. Gatekeepers, as they were once called, have been overwhelmed by gatecrashers.

This picture must not be overdrawn as there are proud exceptions and much excellent reportage and comment. But, as in Gresham's Law, where bad money drives out good, insinuation often crowds out fact and trivia prevails over mature commentary. Ethics and the element of acting as public trustees of information have receded from the minds of all too many publishers. The profit motive prevails.

Advertisers, even those supposedly imbued with high corporate social responsibility, are not altruistic. They seek favourable more than honest coverage and have been known to be vindictive when their interests are hurt. That the media is cultivated by and cosies up to powerful politicians and corporate houses is well known. The Radia tapes in India and the on-going News of the World scandal in the UK are contemporary examples.

New devices to mint money have come to the fore in recent times – some of these, alas, pioneered by leading, well-off media houses that had no reason to lower the bar. Paid news , advertorials, and "private treaties", by which company shares are sold against rosy future advertising – an underhand way of playing the market – have become commonplace, with electoral candidates being sold varied "packages" for positive coverage for themselves and negative coverage of their opponents. Sadly, in these matters conscientious editors and reporters have to face up to unscrupulous proprietors focussed on the bottom line as even the Press Council discovered last year.

The Government too is culpable.The extraordinary debility of India's official communication policy, after adopting "Satyameve Jayate" as the national motto, defies explanation. Official classification and cartographic policy are abominations that have greatly harmed the national interest. The culture of "official secrecy" still prevails though the Right to Information has now brought sunshine into the dark interstices of public information. This has worked wonders in ferreting out information, with whistle-blower protection. It has empowered the citizen and rendered the state and its agents accountable. India has moved from a culture of silence and resigned fatalism to one of protest and legal recourse.

This has brought revolutionary change. Yet things can go too far. Delicate and complex issues of governance cannot be carried out in the marketplace with every man and women on the street wanting to play the Lion too. Lines must be drawn. Article 19(2) prescribes reasonable restrictions. These limits may be questioned but cannot be overthrown in a democracy without inviting anarchy and chaos. Consultation must be genuine but bounded by considerations of time and cost so that decisions can be taken and the opportunity cost of delay avoided. Motivated leaks and plants cannot be allowed to drive public policy.

These are some of the many questions that confront India today as it ponders the role and responsibility of the media and the law. Given these trends, the judiciary, government and even society have begun to call for regulation of the media.

This may not be the occasion to dilate on restoring the centrality of the editor as the guardian of the media's trusteeship role, or measures to prevent cross media concentration, or the contours of media regulatory bodies like broadcast complaints commissions, or legal restraints. Self-regulation is important and can be useful as the example of the National Broadcasting Standards Authority, over which Justice J.S. Verma presides, well illustrates. But statutory regulation cannot be excluded, with the Courts and the legal community assisting in helping get the balance right. As in all things, balance is critical.

Perhaps what one needs, as India's media stands at the crossroads of a new societal and communications era, is a high-powered, non-governmental Blue Ribband Communications Commission consisting of some of the nation's best and brightest minds to look at the future of India's rapidly evolving social dynamics and set the framework of a new information order for the country over the next 30-40 years as it moves from its present condition to become a predominantly urban, egalitarian, middle income society and an emerging world power. The Hutchins Commission did this for the United States just after the Second World War and insisted that the "low-journalism" of the day give way to the social responsibility of the media in a democracy. UNESCO did so again globally in the late 1970s in its report "Many Voices, One World" that dealt primarily with so-called North-South problems.

Communication, as much as Justice, will forever remain central to freedom, governance, culture and community. Both must march together to make a better India.

As it is written in the Bible and in other great religious texts: "Ye shall know the Truth, And the Truth shall make thee Free".

back to the top

HOME | ABOUT THE AUTHOR | LIST OF ARTICLES | CONTACT | BOOKS