Legal journalism versus legal reporting, writes (retired) Judge Satyaranjan C Dharmadhikari of Bombay HC

“A news item without any other proof of what really happened by witnesses has no value. This is second-hand secondary evidence at best. It is well known that journalists collect information and pass it on to the editor who edits the article and then publishes it. In this process, the truth could be perverted or distorted ”- CJI Hidayatullah in Samant NB v / s George Fernandez et al (1969) 3 SCC 238.

When something is reported irresponsibly and casually, especially in relation to legal proceedings, the solemnity is lost. Legal journalism means reporting anything that has to do with the law. This concept is different from the record of court proceedings. It is unfortunate but true that simple reporting does not require the possession of special skills. A degree in journalism and little experience is enough. The problem starts here. The broad term “legal journalism” would require the writer or journalist to know the law and have experience in court reporting procedures. The current generation of journalists does not believe in acquiring legal knowledge or gainful experience. Pressure on journalists to create news out of otherwise boring and bleak court proceedings is hurting the judiciary. Public outcry and extreme backlash is the end product of a misrepresentation in court proceedings. The faith and confidence of the people in the institution and its functioning is what keeps it going. Nothing needs to be done to erode it.

Now is the time to issue a warning. I came across an article written by Ms. Varsha Raghavan on October 24, 2017 titled “Why Legal Reporting Is So Poor in India”. She presented examples of how legal reporting has driven people away from the courts. She says most journalists come to court with little or no knowledge of the complexities of the justice system. His comment is: ‘Legal journalism has gotten lazy.’ Obtaining a law degree is not enough. Introspection by the media themselves is imperative.

My experience of over three decades as a lawyer and judge is that previously qualified and trained journalists in law followed and covered court cases. Legal proceedings arouse the curiosity of readers. All the more so when they concern renowned political, economic, sports and film personalities. The delay in settling court cases discourages journalists and reporters from covering a lonely case. Readers lose track of pending litigation because it takes decades for them to come to a conclusion. The current trend is to send journalists to higher courts on a daily basis, to cover public interest cases or criminal cases involving celebrities. Unfortunately, the substance is missed. Journalists are ill-equipped and ignore that what the judge or the presiding judge says orally is not a binding order for litigants. They do not know that an order of the court of first instance is only final when it is upheld or confirmed on appeal. If more than one appeal is not exercised, even then, the initial order in a particular case is binding only on the parties to that case. All final judgments from higher courts are binding on the parties and do not become declared law or precedent unless a complicated or complex legal issue is addressed.

In a heavy daily array of cases, the so-called interesting mingle with the routine and daily affairs. There is almost nothing to catch the attention of young reporters. They don’t even wait for a specific request or aspect of it to be addressed and eliminated. Something more fascinating awaits them in the courthouse next door. In these circumstances, the distinction between a suspect and an accused and an accused and a convict is forgotten. There is no time to learn basic legal principles. Journalists should know that in criminal cases the presumption is innocence, not guilt. The deposit is not an exemption and is anything but an acquittal. This is a provisional release but on conditions after satisfaction which despite a prima facie case against the accused who does not require his questioning in police custody. The court ensures that once found guilty, he can be detained for having served his sentence. It’s reality.

However, when bail applications are heard over several days and long orders are issued at the same time, reporters believe the contents of those orders need to be published so that the public can draw conclusions. Readers get the impression that bail means the accused is released. Likewise, when a charge is brought against a person, it is only an accusation and an allegation. This will need to be proven and established beyond a reasonable doubt. In a criminal case, the burden falls entirely on the prosecution. He has to bring the load home. In some offenses, the law imposes a negative burden; although the initial must be acquitted by the prosecution, when it moves, the accused will only have to raise a probable defense. The underlying presumption of innocence is not rebutted by a negative burden. Article 21 of the Constitution requires strict respect before the deprivation of human life and liberty.

In civil cases, the test is the “balance of probabilities” and not proof beyond a reasonable doubt. Just because a person goes to civil court and takes legal action, they will not necessarily be successful. A full possibility of defending the action and contesting it on the merits must necessarily be extended by the court to the opponent. Justice requires a balance of rights and equity and is delivered in accordance with the law. We have written laws and a judge is not free to go beyond or set them aside to decide a case. Civil and criminal courts are required to adhere to the Indian Evidence Act, 1872. Courts cannot presume anything on their own. It is well established that if a letter or a document is produced in court, its author will have to be questioned under oath but their version is not proven. They must appear for cross-examination of the opponent or the party challenging or questioning the document. Once this process is completed, only the document is read as evidence. So, justice is the search for truth.

The reputation and character of parties and litigants as well as institutional dignity are at stake. This must be protected. The rule of law and fairness require that no one other than the competent courts make judgments and decrees. Otherwise, justice would be a victim. No journalist, newspaper, press house is interested in the long and late course of a civil / criminal case. These entities rarely care about the sanctity of legal proceedings. I humbly believe that we have not fully understood the freedom of speech and expression guaranteed by the Constitution of India. It is the citizen’s right to freedom of speech and expression, not that of the press or the media. This is encompassed in the above right of the citizen. Likewise, it is the citizen’s right to information and to be informed. None should be a party to a media trial. I fear that this will not happen again if timely action is not taken.

(The writer is a retired lawyer and judge, Bombay High Court)

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Posted on: Tuesday January 11th, 2022 08:43 IST

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