Supreme Court has always favoured publicity of cases brings transparency
Last week, the Madurai bench of the Madras high court passed an interesting order. It directed the HC registrar (administration) to “instruct” the media not to publish or broadcast names of lawyers while reporting court cases. It felt such publication was an indirect advertisement of their professional capabilities. Probably, it was based on the Bar Council of India rules, which say, “An advocate shall not solicit work or advertise in any manner.
He shall not promote himself by circulars, advertisements, touts, personal communications, and interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.”
The court also asked the registrar to “request” journalists to avoid publishing names of judges who dealt with petitions or passed orders in a case unless it was vitally essential for the purpose of reporting. It said, “The reason being every judge of the high court is carrying on with his work sitting in a particular roster as assigned by the chief justice.”
Interestingly, a news item published the judges’ names — Justices Nooty Ramamohana Rao and S S Sundar — who had made the unusual request to journalists.
“The judges do perform their duties dispassionately and to the extent possible by not allowing their individual notions and philosophies to be a guiding factor in deciding the causes brought before them. Therefore, we feel that the names of the judges should not be published and on the other hand, the name of the high court alone should be published,” the judges had said.
In the past, many lawyers had privately suggested to journalists to omit the names of judges in news reports. They felt such a move would significantly curb judicial activism. Those very lawyers feel good when their names find mention in news reports about cases argued by them.
Publicity is a double-edged sword. It attempts to make the public aware about performers, achievers and those unsung heroes in every field of professional activity. Should the public not know the judges who have knowledge of law and draft brilliant orders or judgments.
The public must also know authors of average or substandard judgments. Merely saying that such and such court passed a “legally incongruent or palpably bad order” is akin to putting a cloak over the below average and helping them hide their inefficiency or incompetence.
Publicity and criticism are two sides of a coin which apply without discrimination to every field, judiciary and advocacy included. Had we been practising what the Madurai bench of Madras HC preached last week, then we would have missed some vital turning points in judicial history and would have beaten around the bush without knowing the actors responsible for it. Take for example the ADM Jabalpur case [1976 SCR 172]. A five-judge constitution bench of the Supreme Court by four to one majority attempted to murder fundamental rights.
The famous four – then Chief Justice A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagawati — agreed with the Indira Gandhi government and ruled that proclamation of Emergency suspended all fundamental rights including ‘right to life’ under Article 21. It was, still is and would always remain a blot in the judiciary’s track record. We always named the four judges, including Justices Chandrachud and Bhagwati, who in later years in the SC rendered fine judgments to champion the citizen’s fundamental rights and seriously attempted to atone for their skewed decision in the ADM Jabalpur case.
We also did not miss to pay glowing tributes to Justice H R Khanna, who gave the dissenting judgment in ADM Jabalpur. That dissent would probably outweigh the best of all judgments till that day taken together. He could have easily agreed with the four others and not put to risk his chance to become the Chief Justice of India. He did not become the CJI as the Indira Gandhi government wreaked vengeance and superseded him.
Does anyone remember the chief justices who were appointed after Justice Khanna was vindictively denied the post? But history will remember Justice Khanna forever as a bright judicial lamp which refused to blink in the face of a raging storm.
The names of Judges should come out in the open. So that public can see who are the Judges playing into the hands of rich, criminal and corrupt political leaderships.
Publicity is always good for judges, lawyers and the judicial system. Wish the Madurai bench of Madras HC had read the SC judgment in Mirajkar case [1966 SCR (3) 744]. The SC had said, “Now, the rule about reporting of cases in court is this: what takes place in court is public and the publication of the proceedings merely enlarges the area of the court and gives to the trial that added publicity which is favoured by the rule that the trial should be open and public.
“It is only when the public is excluded from audience that the privilege of publication also goes because the public outside then have no right to obtain at second hand what they cannot obtain in the court itself. If the matter is already published in open court, it cannot be prevented from being published outside the court room provided the report is a verbatim or a fair account. Accurate publication of reports is insisted upon so that the proceedings are not misrepresented.”