Opinion Open,free,fair

Never has there been such a forthright and much-needed judicial criticism of the legal profession. The court has not merely preached sonorous sermons. It has pungently reminded lawyers that they are not simply traders,such as those in Chandni Chowk operating on the law of demand and supply,but they belong to a noble profession — and the solution for professional decline must come from the lawyers themselves.

The judgment also regrets that the Bar Council has not shown much concern about maintaining standards and enforcing discipline among lawyers and hopes “that the Bar Council will now pay proper attention to the restoration of high professional standards”. If past experience is any guide this is a fond hope. I hope I am proved wrong.

The court then deals with the vexed question of media’s role when a case is sub-judice. Trial by media is a frequently-levelled charge. What does it signify? It is settled law that any and every comment on pending proceedings irrespective of their nature does not amount to contempt. A matter of national importance may be the subject matter of a pending legal proceeding. Public discussion of that matter cannot be stifled under the threat of contempt because,as pointed out by the Delhi high court speaking through Justice H.R. Khanna,that would place a blanket ban on public discussion of matters of national importance which would be impermissible in a free democratic society.

The present judgment explains that trial by media takes place where the impact of television or newspaper coverage on a person’s reputation creates a widespread perception of guilt regardless of any verdict in a court of law. In such cases the media has tried and found the person guilty and thus adjudicated upon the very issue pending before the court and this makes a fair trial virtually impossible regardless of the its result.

It was argued that NDTV’s sting telecasts constituted trial by media and amounted to contempt because the same tended to interfere with the proceedings of the BMW trial. This argument was rejected because in the opinion of the court the programme showed some people trying to subvert the BMW trial,and thus the administration of justice in the country. There was nothing in the programme to suggest that the accused in the BMW case were guilty or innocent. The court ruled that despite the faults and weaknesses of the programme noticed by it in the judgment the sting programme telecast cannot be described as trial by media. Indeed it served an important public cause: to prevent an attempt to obstruct the due course of justice.

A curious argument was advanced before the court by counsel for one of the contemnors,that NDTV should have carried out the stings only after obtaining the permission of the trial court or the chief justice of the Delhi high court,and should have submitted the sting materials to the court before its telecast. This plea was rightly rejected because,in the felicitous words of Justice Aftab Alam,“it would be a sad day for the court to employ the media for setting its own house in order; and media too would certainly not relish the role of being the snoopers for the court.” More importantly,the court held that requiring prior permission of the court would tantamount to pre-censorship of reporting of court proceedings and this would be plainly an infraction of the media’s fundamental right of freedom of speech and expression. This is the most heartening part of the judgment. It sends the right signal to those infected with the itch to ban free speech. Pre-censorship is repugnant,except in dire compelling circumstances,irrespective of whether it is imposed by the executive or the judiciary.

It should be remembered that this judgment does not give a carte blanche to media for indiscriminate sting operations. The court has warned that the media is not free to publish any kind of report concerning a sub-judice matter or to do a sting on a pending matter in any manner they please. The court has pointed out that a sting operation “is an incalculably more risky and dangerous thing to do and it would attract legal restrictions with far greater stringency and any infraction would invite more severe punishment”.

The judgment is finely balanced. Its conclusions are based on cogent reasoning and material. The observations made and the principles laid down in this landmark judgment are far-reaching. They provide salutary guiding principles and sage advice for lawyers,Bar Councils,the media and the judiciary.

The writer was attorney general of India

express@expressindia.com