Senior advocate in conversation with Kailashnath Adhikari, MD, Governance Now
GN Bureau | September 28, 2021
There is a danger in media doing trials of ongoing cases and this must be stopped, says senior advocate Aryama Sundaram.
He castigated media trials and said nowadays in media while a case is going on you have debates where people are discussing what is right and what is wrong, which way the court should decide which way it should not.
“This is the danger. In the doctrine of sub-judice … when the matter is sub-judice it ought not to be commented upon. You can comment on it, reporting what has taken place. You cannot give opinion on result or proceedings… technically this should not be correct at all and has to be put a stop to… once the matter goes to court and in the course of hearing giving an opinion on its likely outcome is certainly wrong, the media should not encourage it at all.”
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Sundaram was in conversation with Kailashnath Adhikari, MD, Governance Now, in a webcast as part of Visionary Talk series held by the public policy and governance analysis platform.
Responding to a question if celebrities when caught in legal soup are more vulnerable to harsh judgments vis-à-vis a common man, the lawyer said it is a misnomer that celebrities get the wrong end of the stick. The fact of the matter is that celebrities also get tremendous lauding and society give them tremendous advantages. The downside of it is that if you go wrong anywhere, then the brickbats are much higher as compared to someone who is unknown.
“If it is a celebrity, media attention is on the case. The court has then the duty to show that law will be subserved. In many ways it is also faith in the judiciary which demands the judiciary to lay down the law with an iron hand in such cases.”
He said a celebrity who is taking all the privileges should be ready when he does something wrong to take the punishment which comes in. “You cannot claim the privilege of not being punished for any transgression on your part.”
On the question of the human resource crunch in the judiciary impacting justice delivery and how the infrastructure can be stepped up in Indian courts, he responded by saying that in India various appellate forums that have been given statutory tenancy to have elaborately long arguments in interlocutory matters in existing cases are taking far too long to complete, so there is the question of touching the backlog of cases.
Sundaram said that even if shortage of judges has been removed in the country and even if all the courts were in full complement, he does not see the courts clearing the backlog. “It is not something that is practically possible, especially because cases that have more immediate relevance today here and now are coming up repeatedly and courts are forced to deal with those cases on a day-to-day basis.”
Giving the example of cases that came up during Covid which could not have been pushed back or put in the queue, he said there are too many cases that require here-and-now attention of superior courts. “Because of that the backlog of the supreme court and the high courts, even with full complement, it is most likely to keep occurring and I don’t see how we can get rid of that backlog even if we run with full complement,” he said.
Sundaram also said the time taken in arguments by lawyers for the purpose of any case or matter has to be cut short completely. He also said that the government must learn how much to appeal. The government sets up all the tribunals which are manned by the government and selected between the judiciary and the executive. About 50%-70% pending appeals in India against tribunal orders are by the government. “The government should learn not to become just another litigant. If you keep doing that, how do you ever expect not to have a backlog, leave alone hearing the matter? The government has to look at it very strictly and courts too have to strictly look at the time they will give a counsel to argue,” he said.
While speaking on ethics and the independence between the judiciary and the executive, he said, “We have to rest assured and believe in the integrity of the judges. Merely because after they retire they may head some tribunal or the other ought not to be ground to make them deal with cases in any other manner than absolutely independently.”
Asked if judicial activism exists because of inability of the executive to take right decisions, he said there is a doctrine of separation of powers. “Because there are too many public interest litigations (PILs) filed which are more personal interest than public interest and impinge on policy issues, there is an accusation of judicial activism.” Law, he said, is very clear that the judiciary will not involve in policy issues unless it is a rarest of rare cases and the policy violates a fundamental right. “The Lakshman Rekha must be maintained.”
Asked if e-courts are able to facilitate deliver justice effectively or if physical appearance is more effective, Sundaram said e-courts are more than able to deliver functions assigned to them even when the nuances of physical presence are more effective and the litigant himself is not fully satisfied and would rather prefer a physical court to actually see what is going on in court. However, he said, e-courts are a great start. “This time virtual hearing is absolutely excellent to the extent that senior counsels are being accused of liking it as they can appear in a number of cases in a number of courts all over. So long as the superior judiciary are themselves prepared to do the case before the case is taken up, I think virtual hearing is more than sufficient to dispense justice,” he said.
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