THERE is no doubt that it is an uneasy relationship. But they — the press and the judiciary — badly need each other to fend off a power-hungry state. Both need each other whenever the executive abuses its power against either of them.
It was Lord David Pannick who wrote the excellent book Judges in 1987 in which he opined: “Criticism of judges by politicians produces the most extreme reaction from defenders of judicial sanctity.”
He continued: “By far the most vigorous champion in recent years of judicial immunity from criticism by politicians has been Lord Hailsham. This is, to say the least, somewhat surprising in the light of his own record of forthright criticism of judicial imperfections and his own willingness as Lord Chancellor to make public criticisms of errant judges in certain circumstances.
“... So powerful is the idea that judges must not be criticised that it has even led to the rebuke of a judge who had commented adversely on the decision of other judges.
A healthy democracy cannot afford to exempt judges from media criticism.
“In a 1971 case Mr Justice Lawson gave his reasons for doubting the correctness of an earlier decision of the Court of Appeal. Nevertheless, he concluded, ‘I am bound by the decision in [the earlier case], although I am compelled to say, again with the greatest respect, that I believe it to have been wrongly decided’. The Court of Appeal was very unhappy. Lord Justice Davies replied, ‘with the greatest respect to Lawson J.’, that he thought that ‘those observations were out of place. It is unusual and, I am bound to say, undesirable, in my opinion, for a judge sitting at first instance … to express the opinion, although accepting that he is bound by it, that a decision, and a fairly recent decision, of this court was wrong’.”
Why should those who stand up to defend the courts think that criticising the courts is wrong and dangerous?
Pannick makes the point that: “The benefits of freedom of expression are as strong in this context as in others. Criticism of the judges will not damage the rule of law. It may, by identifying defects in the legal system, promote the cause of justice. Where criticism is wrong or misguided, one should have confidence in the strength of the institution to demonstrate by its conduct that it serves a valuable function and does its job well.”
Indeed, just as the media raises its voice against what it sees as defects in other institutions, it must play its due role in checking judicial behaviour as well. As Lord Denning, the great British jurist, observed, newspaper reporters note all that goes on and write a fair and accurate account. After all, they are what he describes as “the watchdog of justice”. “The judge,” he said in his book The Road to Justice, “will be careful to see that the trial is fairly and properly conducted if he realises that any unfairness or impropriety will be noted by those in court and may be reported in the press. He will be more anxious to give a correct decision if he knows that his reasons must justify themselves at the bar of public opinion.”
Academic Shimon Shetreet has quoted Lord Denning in his work Judges on Trial, “Justice has no place in darkness and secrecy. When a judge sits on a case, he himself is on trial … If there is any misconduct on [his] part, any bias or prejudice, there is a reporter to keep an eye on him.” Golden words.
That the media’s role in checking judicial conduct is crucial in a democracy cannot be exaggerated. “It is to be noted,” wrote Shetreet, “that only the press constantly and publicly criticises judicial conduct. Parliament ... is restrained by self-imposed rules barring criticism of judges except upon a substantive motion; while these rules are sometimes ignored they are normally enforced and it takes a serious misbehaviour to induce MPs to table motions criticising a judge, let alone an address for his removal.”
According to him, the press is “the only mechanism of discipline which operates constantly and in the open ... [and] ... shares a considerable portion of the responsibility for acting as a check on the judges”.
He quotes from a report that “a large measure of responsibility rests upon the Press to keep a constant watch on the proceedings in the courts at all levels and to make such criticisms as appear necessary in the interests of justice”.
The role of the press vis-à-vis the judiciary is clear then — it must report, where warranted, judicial misbehaviour. However, the judiciary in many countries is seen as above reproach and there are several newspapers that are extra cautious when reporting on court cases and judges for fear of attracting judicial ire and the sword of contempt upon themselves. Such concerns do not bode well for honest and bold reporting.
The writer is an author and a lawyer based in Mumbai.
Published in Dawn, July 30th, 2022