ঋতবাক: প্রবন্ধ

Over more than a decade now, we have witnessed many instances of Indian news television overstepping into the privileges of the executive institutions and the judiciary. While news television’s quasi-executive functions can be investigation of crimes, sting operations, campaign for “development”, building and presenting public opinion, exhibition of patriotism, etc., the quasi-judicial ones involve ‘trial by media’ along with generation of public opinion through social media and audience poll.[i] The quasi-legislative functions relate more to the structure of news studio debate which, I have pointed out elsewhere, is informed by certain ‘modern’ structure of public deliberation as in the parliament. The communicative form of the courtroom or of an ‘official’ meeting may overlap into this structure. [ii]

Objections to media’s efforts to appropriate the functions of the government, the court and the legislative body take many forms: Government directives, amendments in law and court orders amounting to case laws. Trial by media, from sting operations and high-pitch judgmental talk to audience poll, seems to be the most crucial point of worry. The problem of the state with such appropriation seems to be media’s claim to represent the public more than any state institution. Politics indeed is a contested terrain defined by ‘who represents the public the most’. In this short thinkpiece I wish to understand the implications of such mediatic appropriation with particular reference to its influence on judiciary. The question is whether ‘public sentiment’ and ‘public interest’, impressions of which are constructed by private news television very intensely particularly from the beginning of this century, have become major determinant of judicial procedure including judgments. To what extent such influence of the mediated public is instrumental behind judiciary’s intervention into the executive and legislative functions, thus leading to destabilisation of ‘separation of powers’?

One of the much-debated cases of alleged influence of ‘trial by media’ on the judiciary is the case of Afzal Guru. So much was the pressure of public opinion evident in media’s coverage that the judgment by the Supreme Court (August 4, 2005) which found Mohammad Afzal Guru guilty and sentenced to death, referred to the way "the collective conscience of the society" was outraged due to the attack on parliament. NDTV aired Afzal’s video confession on October 20, 2006 without mentioning that this was by then a five year old footage discredited by the Supreme Court. Almost all of the SMS messages that poured into the programme, presented simultaneously, spat hatred against Pakistan and called for hanging of Afzal Guru. The death sentence was upheld by the Supreme Court on 12 January, 2007. That Afzal Guru’s death sentence and finally capital punishment in February 2013 were greatly influenced by public opinion has been argued by many. Supreme Court lawyer and civil rights activist Indira Jaising writes:

Judges may say they are brave hearts and not influenced by press reports, but these reports are intended to build up public opinion in a negative manner which by itself can influence the outcome of a case. An example of this is the SMS polls run by television channels on controversial issues. This is what happened in Afzal Guru’s case. All television channels ran polls on whether Afzal Guru should be given the death penalty, a first in Indian legal history, when an SMS poll could decide the penalty by influencing public opinion. That public opinion, in any case something not measurable by any means, did influence the outcome of the case is evident from the fact that the judges who decided the case said that the “collective conscience of society” was outraged by the attack on parliament![iii]

In the ‘Law Commission of India 200^th Report on Trial by Media’ (August, 2006), there is a section titled ‘Do publications in the media subconsciously affect the Judges?’. Comparing the assumptions of Indian jurisprudence with other national contexts, the report summarizes that the right to free speech in India is not “absolute” but is conditional and restricted by Article 19(2).[iv] Judges including the Chief Justice of India S.H. Kapadia repeatedly urged that the judiciary should be independent not just from politics but also from public sentiment, that judges should deliver justice as per law and not according to the opinion of the majority.[v] The Supreme Court of India formed a special constitutional bench called the ‘Media Bench’ to explore the possibility of framing guidelines for the media, but ended up declining to do so, possibly because it thought the guidelines would be tantamount to ‘judicial overreach’ or what legislators and politicians call “judicial activism”. The Bench however laid down the principle of “postponement” allowing courts to place a temporary restraint on the publication and broadcast of specific matters if the said publication affected a trial.[vi]

The worry about media activism can be the apprehension about a ubiquitous public that is provoked by the media to raise various demands. While generally such demands are for justice of some kind, the demands themselves can be unjust ‘in the eye of the law’. The judiciary is not only perturbed by the public’s demand (for capital punishment for instance), but also by the ‘campaigns’ the media resort to (A large part of Anna Hazare’s anti-corruption movement in 2011 was given positive coverage by the channel ‘Times Now’ with the tagline “A Times Now Campaign”) and the commitments governments or people in high offices make (Mamata Banerjee, the Chief Minister of West Bengal, said on camera that the accused persons in the Kamduni case would be hanged).

The scenario gets further interesting when a section of the judiciary acknowledges the need to address public opinion. A two-judge Supreme Court bench said on July 12, 2011, that the courts do not exceed their jurisdiction by hearing public interest litigations filed by NGOs and social activists on behalf of the poor and the illiterate. Rather, by doing so, the courts fulfil a mandate laid down in the Constitution’s chapter on Directive Principles of State Policy. “If the system can devote hours, days and months to hear the elitist class of eminent advocates engaged by those accused of evading payment of taxes... (or) heinous crimes... (then) some time can always be devoted for hearing the grievance of the vast majority of silent sufferers,” Justices G.S. Singhvi and A.K. Ganguly observed.[vii] The activist tenor is difficult to shun here as unwarranted; it in fact should be appreciated, since the drive is to tilt the balance of justice towards the “vast majority of silent sufferers”. But the apprehension about judicial overreach has increased so much in the era of a boom in privately owned satellite news channels that the Government thought of the ‘Judicial Standards and Accountability Bill’.

The Vodafone taxation case and the 2G spectrum allocation case were significant because they brought into the fore the tussle between the formal institutions of democracy over representing public interest. In the first case, the government tried to tax Vodafone for a deal involving an Indian company but made in a foreign land in 2007 and after its defeat at the court, tried to invert the court’s verdict by bringing in a law that would have retrospective effect. Notably, all the parties involved had to pitch their arguments flaunting how much they cared for the general public: While the government, as it does in case of tax-claim cases, urged to look into the ‘public interest’ involved, the court cautioned of the possibility of reduction in foreign investment in India if Vodafone was to be taxed on this occasion, affecting public welfare schemes in turn.

Most interesting however was the Supreme Court verdict in the 2G spectrum allocation case which ordered cancellation of 122 licenses granted earlier to private telecom operators in 2008 and institution of ‘auction’ instead of ‘first come-first served’ system. The two-judge bench cited “public interest” and larger public good to justify its intervention while conceding that the “Court should not ordinarily interfere with the policy decisions of the Government in financial matters”. The court said that “when it is clearly demonstrated before the Court that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest”.[viii] Somnath Chatterjee, former Lok Sabha Speaker and a lawyer, objected strongly: “Trying to appropriate executive powers can be very tempting. Well, the Supreme Court is supreme. But it cannot interfere with executive policies and decisions, even by justifying that larger public interest is involved.” (italics mine).[ix] What followed was a debate in the pages of The Telegraph in the month of February 2012 on how far the judiciary could go to serve public interest. Chatterjee, and Justice Asok Kumar Ganguly who was on the panel of judges passing the 2G order, wrote a number of articles defending their positions and the paper also published an editorial critiquing Justice Ganguly’s coming to public to defend his judgment.[x]

It is my argument that the media and particularly the private satellite news television, with its tremendous capability to make publics and their interests ubiquitously visible, are playing a significant role in redefining ‘separation of powers’, key to modern democracy. In post-Liberalisation India, the increasing claim of the media, private news channels particularly, to represent ‘public interest’ more than any state institution insecure the three pillars of democracy and push them towards constantly gauging the ‘mood of the public’ (a mediatic construction with many problems). While the three arms of democracy (executive, legislative, judicial) should classically clearly define jurisdictions, there have always been instances of such separation getting blurred and disputed. But it seems such disputes have intensified in the era of immense popularity of the privatized media, particularly satellite television news and the internet. What may have largely contributed to this are the new incarnation and certain image of the public that are primarily driven by the media but are also amply capable of representing themselves as relatively autonomous. The relevance of the ‘public’ has generally increased where any kind of movement, physical assembly or virtual mobilisation stands a greater chance of making its presence felt, not necessarily its demands met. Such mediated publicness cannot be romanticised as the realisation of the ideal of deliberative democracy as it is characterised by much silence about the misdeeds of the corporate sector including the private media and by the limiting concerns of the middle class. This is precisely the reason why we should constantly scrutinise the mediated image of the ‘public’ that the four (including Media) pillars of democracy claim to represent more than each other.

[i] Abhijit Roy, ‘Staging democracy: Indian news television and its publics’ in Indian Nationhood and Nationalism: Perspectives, Representations and Reflections eds. Parthapratim Sen and Arunima Raychowdhury. Rohini Nandan, Calcutta, January, 2014.

[ii] Abhijit Roy, ‘Performing Democracy: On the Communicative Structure of News Television’ in Culture and Politics in South Asia: Performative Communication edited by Dev Nath Pathak and Sasanka Perera, Routledge, New Delhi, July 2017

[iii] Indira Jaising, “Driven by sensationalism”, The Hindu, August 3, 2008 http://www.hindu.com/mag/2008/08/03/stories/2008080350020100.htm

[iv] Govt. of India, “Law Commission of India 200^th Report on Trial by Media: Free Speech and Fair Trial under Criminal Procedure Code, 1973”, August, 2006, 46-60. http://lawcommissionofindia.nic.in/reports/rep200.pdf

[v] “Judiciary must be free of politics, public opinion: CJI”, Hindustan Times, January 14, 2012, Mumbai edition. http://www.hindustantimes.com/India-news/Mumbai/Judiciary-must-be-free-of-politics-public-opinion-CJI/Article1-797319.aspx

[vi] “Media can be gagged to ensure fair trial, says SC”, The Hindu, September 11, 2012. http://www.thehindu.com/news/national/media-can-be-gagged-to-ensure-fair-trial-says-sc/article3884621.ece

[vii] “SC rebuts activism charge”, The Telegraph, July 15, 2011. http://www.telegraphindia.com/1110715/jsp/nation/story_14242345.jsp

[viii] See the relevant parts of the verdict in “‘Wholly arbitrary, capricious and contrary to public interest’”, The Hindu, February 3, 2012 http://www.thehindu.com/todays-paper/tp-opinion/wholly-arbitrary-capricious-and-contrary-to-public-interest/article2855371.ece

[ix] “Somnath on 2G: Can’t interfere with policy decisions”, The Telegraph, Kolkata, February 4, 2012.

[x] See the following articles in The Telegraph: “Somnath on 2G: Can’t interfere with policy decisions”, February 4, 2012; “Not to grab executive powers: 2G judge”, February 6, 2012; “Uneasy conscience …and all the best”, February 7, 2012; “Quiet in Court” (Editorial), February 9, 2012.