Judges, media and open society

I just read a copy written by our correspondent in Italy, Vaiju Naravane, who has gone to Argentina to cover the detention of Ottavio Quattrocchi, an accused in the Bofors payoff case. There she met the Judge who refused bail to Q, and obtained an exclusive interview on how she refused the bail, what factors she considered, and what was the law etc. The NDTV also mentioned in its report, that the CBI team currently in Argentina could meet the Judge who would hear the extradition case against Q, before the actual hearing takes place, even though the CBI team appeared reluctant, because it would send wrong signals back home – as it could be easily seen as an attempt to influence the Judge either way, as the CBI’s commitment to the extradition is largely in doubt to many observers. These two independent happenings have necessarily focussed attention on the Judges in India, and why they are reluctant to speak to the media (let alone the parties before them off the court) on the cases before them, or after they have given the judgments. In a previous post, Arun and I had debated the issue of incoming CJIs giving lengthy interviews to all journalists on all subjects under the sun – including that may potentially come before them as cases, which they may have to decide. Opening their minds on such issues which may be litigated later, would doubtless disqualify them (ethically, if not legally) from hearing such cases with an open mind – even though it could be argued that Judges, like other human beings, are free to revise their opinions, even if they were expressed earlier. But public perceptions in such contexts might do more harm than good and lower judiciary’s credibility.
But what the Argentinian experience shows is that it is possible for Judges to publicly talk about the cases before them, or after delivering the Judgments, without compromising with their essential objectivity. It is possible for instance, if the cases are yet to be decided, to talk in general about the issues involved, and listen and participate in discussions on such issues, just to understand the various points of view. The Supreme Court’s judgment on the Sardar Sarovar Project, for instance, carries a lot on the virtue of big dams, even though the petitioner, Narmada Bachao Andolan was denied the right to present arguments against big dams. Such a thing might not have happened, if this option of off-the-court interaction with Judges was available to them. Once the judgments are delivered, there is no reason why Judges should subject themselves to censorship. If they have time, they could try to answer the criticisms of judgment, and educate public opinion. Well, I can expect the Judges to say, ‘Our judgments are self-explanatory, there is no need to add or subtract, or interpret again what we have already said’. But we do find profound debates among lawyers and experts on what constitutes ratio of some complex judgments, and if the Judges who delivered the verdict, help to remove the haze over such verdicts, it should help. But there are certain exceptions to this convention: Justice Krishna Iyer, if I am not wrong, has spoken about his judgments many times. Justice J.S.Verma, has sought to clarify what he meant in an election case, where he famously said Hindutva is a way of life, and which invited quite a lot of criticism about his objectivity. Justice Verma, has also regretted his majority judgment in the Advocates-on-Record case in 1993, which led to primacy of Supreme Court collegium in appointment and transfer of Judges. Appointment of Judges is a disappointment is all he says now.
I remember reading elsewhere that an American Judge has written his memoirs detailing the discussions on the Bench before delivering Judgments. (Can Arun or Vikram help to get the exact reference). Why can’t Indian Judges do the same? It will not only help to understand the various influences on the Judges, but could contribute to public discourse significantly.

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  • I don’t altogether agree that judges encouraging media access would lead to judicial openness. Judicial silence, pre and post decision, is a salutary measure at a time when judicial propriety is in rapid decline anyway. Seervai trenchantly criticised, and in my opinion rightly so, Justice Gajendragadkar for publicly commenting (at a Bombay gathering)on Special Reference No. 1 of 1964.

    Justice Douglas of the US Supreme Court in his memoirs has extesnively discussed the deliberative process involved in decisions reached during his tenure. Books such as ‘The Brethren’ by Bob Woodward and ‘Super Chief’ by Bernard Schwartz also provide similar insight. Given the SC’s current attitude towards contempt law, any similar publication in India would likely place the author in peril.

  • Dear Mr.Rampal of the Bailey,
    Thanks very much for responding to my thoughts on the issue. The references you have cited in support of your view, must be very useful. I should especially go througth Seervai’s criticism of Justice Gagendragadkar, and its context.
    But would I be correct if I say that judicial silence, pre-and post-decision, has not at all arrested the decline of judicial propriety? In other words, these two may be entirely unrelated.
    Secondly, if Judges in the U.S.could write memoirs, and still not commit contempt, what prevents our Judges? I hope to lay may hands on the books which you suggested for more insight; but why should we assume that memoirs by Indian Judges -throwing light on the deliberative process of Judgments delivered – would necessarily constitute contempt of court?

  • I agree that the convention of judicial silence has not prevented the decline in judicial propriety. However, I fear that doing away with it altogether would give judges freer reign to make intemperate remarks in the vein of ‘hang them by the lamp posts’.

    A former judge wold probably escape contempt, but an outsider would not. The books referred to also contain details of the predilections and quirks of certain judges. I doubt the Indian judiciary would tolerate such a publication.