Under Judgement

ON 31 OCTOBER, the Times of India published an article with the headline: “For child’s passport, unwed mother needs to declare if she was raped: Centre to HC.” According to the report, towards the end of a hearing on a matter related to the issuance of passports, a judge raised the tangential question of what procedure was to be followed in the case of children of unwed mothers. In response, the lawyer for the Ministry of External Affairs cited a rule from the passport manual, which became the basis of the Times headline.

The MEA’s official spokesperson, Syed Akbaruddin, soon found himself facing a deluge of opprobrium on news websites and social media. On the defensive, he tweeted an image of the affidavit form to be filled by any single parent applying for a passport for his or her child—it included a section that asked whether the applicant had been deserted by the child’s other parent, but Akbaruddin asserted that women could leave it blank. The next day, the Times News Network and other outlets reported a clarification, in which Akbaruddin said that the MEA lawyer’s statement to the court was “absolutely contrary to what the government of India or the ministry of external affairs stands for.”

The din soon subsided, but one question remained unanswered: had the MEA’s clarification settled the point that had been raised in court? In short, no. For such a clarification to have any legal standing, the government would have to file an affidavit confirming it before the bench hearing the case. But the media wasn’t interested in this technicality and the matter ended with Akbaruddin’s sound bite.

Some readers of the Times report might have remembered that the same regulations had earlier been questioned in another court. A 28 February 2011 report in the Indian Express cited “what is likely to be hailed as a progressive ruling,” in which a judge of the Delhi High Court held that passport authorities could not reject any child’s application on the grounds that the father’s name had not been provided. The report contained the facts of the case, but did not name either the rule in question or the case number. The absence of these details meant that anyone curious to know more would have had trouble finding the ruling in the court’s public database, not least because the “ruling” was actually an order, delivered on 21 February 2011, in the case of Ishman v. RPO. A ruling or judgement is the final verdict in a case, while an order pertains only to a specific issue under dispute. This distinction is important to report because the two things are located in different sections of a court’s database.

Court reportage in India has for many years been prone to such lapses in clarity, accuracy and comprehensiveness. From time to time, when one or another error occurs, critics—often the courts themselves—decry the lack of industry standards. The debate on this matter is usually sharply polarised, between those who demand that rules be put in place to govern court reportage, and those who hold that such rules would transgress media freedom. As a result, some subtle questions often go unasked—such as how we might guard against sensationalism, the misuse of legal terminology, and the erroneous interpretation of judicial pronouncements; and how readers can be assured of access to fair, complete and accurate information about the courts. Without such information—complemented by necessary context and careful analysis—court reportage can make the legal system more opaque and promote scepticism of the judiciary, insulating it from public scrutiny.

No special qualifications are needed to become a court reporter in India (or any other kind of reporter, for that matter). Over the years, detractors of the present state of legal reporting have argued that this should change. The Supreme Court took up the issue in 2011, after the senior advocate Harish Salve argued that a Press Trust of India reporter had misquoted him on the tax practices of one of his clients, Vodafone. Following this, the court issued a set of norms for court reporters, and suggested that such journalists should have a law degree and at least seven years of professional experience.

Most journalists and commentators criticised these recommendations emphatically. According to a report in Mint, the editor-in-chief of Times Now, Arnab Goswami, said, “Reporters need not have a law degree to report on the Supreme Court”; the then editor of The Hindu,Siddharth Varadarajan, called the norms “overly restrictive.” Perhaps partly as a result of the criticisms, the norms were not enforced. This is probably a good thing—the recommendations took a myopic view of competence by focusing on minimum qualifications, instead of articulating standards of quality—but the issue of how to ensure responsible court reporting is still unresolved, and the fundamental ways in which legal journalism differs from other reporting have not been sufficiently discussed. The media bears responsibility for this lack of examination—no publication made room for a substantial debate on what constitutes effective court reporting, and how the faults in the field in India could be corrected.

Court reporting is also impeded by the fact that the Indian judiciary is secretive, and that judges expect deference from the media and the public. Sitting judges rarely grant interviews, and when they do, they say very little of significance. Thus, court proceedings are often a kind of spectator sport, with reporters cherry-picking those quotes and observations that might grab readers’ attention, or draw more clicks and shares on the internet.

The question of norms for court reporters arose again in 2012, in Sahara India Real Estate v. SEBI, when Sahara complained to the Supreme Court that inaccurate reporting about the case had skewed public opinion against the company. The court refrained from laying down overarching rules, but held that litigants who felt that their right to a fair trial might be compromised by proceedings being reported could approach the court to “seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial.”

This time, some journalists spoke in support of the judgement; but many others were again stinging in their criticism. Mint quoted N Ram, the former editor-in-chief of The Hindu as saying that the judgement would add to the “chilling effect that the press and the other news media are already experiencing,” and Varadarajan as saying “there is a danger that the floodgates for gag orders may have been opened.” In The Hindu, the senior lawyer Dushyant Dave was quoted describing the judgement as “one of the worst that the Supreme Court has delivered on constitutional provisions.” The rule hasn’t been invoked since, and the debate has once again died down—again, without the media closely analysing the question of what sort of standards should exist.

Court reporting in the West suffers from its own problems. A good example comes from Myron Levin, the legal correspondent for the Los Angeles Times. In a 15 August 2005 article titled “Coverage of Big Awards for Plaintiffs Helps Distort View of Legal System,” Levin showed how the American media misinforms and misguides the public through its David-versus-Goliath portrayal of class-action lawsuits in which corporations are ordered to pay huge sums in compensation to people they have harmed. Very few papers care to go beyond the initial trial-court victories in such cases and report on developments in the appellate courts, where many of those mega-compensation rulings are overturned.

But the West also has some important exemplars. Journalists such as the New York Times’s Linda Greenhouse and Adam Liptak, NPR’s Nina Totenberg, The Atlantic’s Andrew Cohen and The Guardian’s Joshua Rozenberg, to name only a few, bring the law alive for the general reader, not just reporting news but also delving into the reasoning behind judgements, and offering their own analyses. In her July 2008 piece ‘2,691 Decisions,’ Greenhouse looked back on her long career as a Supreme Court reporter, and wrote of how she had gained “a real sense of the court as an active participant in the ceaseless American dialogue about constitutional values and priorities, not a remote oracle.” (As it happens, Greenhouse, who started out as a political reporter, underwent a year’s rigourous training at Yale Law School before she started covering the Supreme Court.) Greenhouse conveyed this deep sense of participation through her work.

In contrast, reportage in India often presents the courts as aloof, and judgements as—to borrow Greenhouse’s word—oracular pronouncements that are to be blindly obeyed rather than engaged with and analysed. Though the media protests vociferously when the issue of norms is raised, it has done very little to deepen the discussion, and to engage the public in the way Greenhouse sought to do when she wrote, “The court is in Americans’ collective hands.”