It was a bittersweet moment for the media recently when the Supreme Court upheld the Delhi High Court judgement and awarded life imprisonment to Manu Sharma in the Jessica Lal murder case. The case reached the Supreme Court and its logical conclusion only after the Delhi High Court fast-tracked it following uproar in the media. While pronouncing its verdict, though, the Supreme Court cautioned against trial by the media. “The freedom of speech protected under Article 19 (1) (a) of the Constitution has to be carefully and cautiously used, so as to avoid interference in the administration of justice and leading to undesirable results in matters sub judice,” Justice P Sathasivam said.

The Supreme Court Bench of Justices P Sathasivam and Swatanter Kumar, which delivered the 229-page judgement, further observed, “Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21.”

Coming as did in a case where the media hastened the wheels of justice, the Supreme Court’s observation raises the question: is the media really guilty of interference in justice? While the media can occasionally be faulted for its sense of the law, can it really be faulted on its sense of justice?

It can be argued with some justification that the media only served the cause of justice by reflecting the outrage of the society at large and by ensuring extensive coverage of cases such as those related to Priyadarshini Mattoo, Nitish Katara and Ruchika Girhotra, to name just a few. 

Retired Delhi High Court judge Justice R S Sodhi, who fast-tracked the Jessica Lal case and awarded life imprisonment to Manu Sharma, acknowledges the positive role played by the media in the case. Justice Sodhi, who headed the criminal division bench, handled several high-profile cases including the murders of Naina Sahni, Priyadarshini Mattoo and Shibu Soren’s private secretary Shashinath Jha. In an exclusive conversation with Ashish Sharma, Justice Sodhi spoke of the need for the media to keep up the good work and the need for an overhaul of the entire judicial system. Edited excerpts:
 
In this age of extensive media coverage, do you find some cause for concern?

The media has very positive rights of speech and freedom. These rights are essential and very, very basic for democracy to function. If you stifle the voice of the media, you will actually control the whole society’s voice and, as a result, you will give rise to dictatorial forces. Fascism will come up. You will be saying things which are not correct but are deemed to be correct. So anything that stifles the voice of the people, or a public opinion, or even a personal opinion, is frowned upon by the Constitution. But for every right there must be a hedge somewhere or the other. It can’t be an absolute right. This hedge is to the extent that it does not encroach upon another’s right. When there are two rights running parallel to each other, wherever one right tends to overlap the other is where the rub lies. So, the media, wherever it encroaches upon the right of the accused, must stop.

Let us say you began by reporting that  Jessica Lal has been shot at so and so place at such and such time. This is news. But when you say Manu Sharma shot Jessica Lal, it is not news. You have infringed upon Manu Sharma’s right to be considered innocent until proven guilty. You may say it appears Manu Sharma has shot Jessica Lal. You may say he is alleged to have committed the act, that he is suspected, but you cannot pronounce a judgement as if you are an eyewitness. That amounts to infringement. That is when you have overdone it. And this is a very loose example. There can be very fine examples as well, where it can become difficult to judge, so the best thing is to restrain yourself.

Since you cited the Jessica Lal case, do you think the media overstepped at times in its coverage?

In this case, the media was very, very good to the extent, as far as I was concerned, in bringing to our notice that here was a case that had been lying dormant in the registry of our court for so long. And it would have continued to languish over there for years, especially since it was an appeal against acquittal. An appeal against acquittal has the last priority. This case wouldn’t have seen the light of day for the next ten years. Or more. So, in that sense, the media played its role in this particular case and we brought it up on fast-track.

What really prompted you to do so?

I always wanted to finish off cases where both the parties agreed to start proceedings. Since that was my usual way of working, it didn’t matter to me whether the case was new or old. I always kept asking the lawyers if they were ready to start. In this particular case, there was a hue and cry, a general dissatisfaction among the public. So I decided to take it on board. The case had already been filed and had been lying in the registry. When we brought it on board, we asked the parties whether they were ready to argue their case. And they were only too happy to do so.  Thousands of cases are lying in the registry of Delhi High Court. But there is generally no hue and cry about them. But when that happened in this case, we decided to take it on board. It took the High Court just two months to decide the case. And now, the Supreme Court has also decided it. I am thankful to the media for having brought it to our notice. Although it took 11 years for the case to reach conclusion, once the High Court took notice and the Supreme Court took it up it didn’t take too long.

Yet, in the same case, the Supreme Court cautioned against trial by the media.

If there is trial by the media, it does amount to infringement. But as I told you, in this case there was no trial by the media. I think the media should have done its duty 11 years ago also. I don’t know why you people didn’t raise the issue so strongly earlier. It takes five or seven years for cases to come up to the High Court in the normal course. Nobody knows what is there next in the registry. If ten cases are decided, for example, the next ten will come up. I can be held guilty of fast-tracking this case while others are still pending. I can be faulted for that. That’s why I got the flak from Supreme Court.

How did you respond to that?

To that I only said that I could be accused only if I ever refused any other case where the lawyers of both the sides were ready. I always kept pleading with lawyers to bring up their cases.

This is by no means the first or the only high-profile case that you have handled. What has been your relationship with the media in general?

I have had no personal interaction with the media. My respect for the media has been only because I have always believed in  democracy. The media has often been very uncharitable to me, for example in the Bofors case or in the Shibu Soren case.

Did you ever feel that the adverse coverage was motivated by other considerations?
No, no, never. See, you have a right to criticise my judgements. And you must. If you criticise my judgement and if your criticism is logical, people will appreciate your criticism. But if your criticism is illogical, people will just brush it aside.
But you believe the media does have a right to comment.
Yes, absolute right. The media has the right. Everybody has a right to criticise a judgement. You can say whether it is right or wrong. But you can’t abuse a judge (laughs heartily).

What about the cases sub judice, though? Should the media cover such cases?
The media should report all the sub judice cases as well but, as I said earlier, refrain from adjudicating upon them yourself.
 
How did you react to the criticism that you faced during the Bofors case or the Shibu Soren case?
Criticism is a very healthy way of finding out whether you have actually committed a mistake or whether the critic hasn’t read the line before or the line after. I always took it in that spirit.

If the media were to take the Supreme Court’s observations on trial by media seriously and actually stop covering such cases extensively, do you believe the media would serve the cause of justice better?
If the Supreme Court says anything, you must take it seriously. But what I would again emphasise is that the Supreme Court must tell you where you have overstepped. It is not telling you that. It is pandering to both sides. If the media is hurting the rights of the accused, the Supreme Court must say so. The Supreme Court has left this grey. In criminal law, there is no such thing as grey. It is black or white. If it is grey, the accused has all the possibility in the world of getting away. In this case, the media can do what it wants and nobody can do a thing about it.

In your view, what should be the ideal relationship between the judiciary and the media?
The same relationship which the legislature has to the judiciary and the judiciary has to the executive. Each must stay within its sphere. Legislature can lay down a law which is irrational. The courts will have to follow that law unless it infringes on the Constitutional validities of it. That law will remain law. Once the court starts adjudicating and legislating, then the court has overstepped its powers. In fact, the Supreme Court has been blaming itself of having done so. Similarly, the media must know when it is adjudicating rather than informing. You just inform what is happening, don’t adjudicate.

What has been your most challenging case?

The most challenging one was the Bofors case.

Because the accused was...

Well, because everybody in the world said he’s a thief, he’s a thief, he’s a thief. But there was no evidence that he was a thief. So when it came before me and I asked for fundamental documents which were necessary to implicate the accused, the documents were not there. There were trunk-loads of documents, but of those thousands of documents there was probably just one document which they could rely upon. But the relevant documents were just not there.

So none of them led to the then prime minister?

Nothing led to the prime minister, nothing led to the Hindujas... it was a big joke.

And the media didn’t like it?

Nobody liked it. They wanted blood. And I was not ready to be the hangman. I didn’t want to be the executioner. I wanted to find out the facts first.

You didn’t find sufficient evidence?

I found nothing. On the contrary, I gave the CBI time after time. They said we will have to go to Switzerland. I said go to Switzerland, I will adjourn the case for four weeks. But they came back after four weeks and said they still didn’t have the document.

There is a view that the British jurisprudence that we have inherited is probably not relevant to our times. That the onus is too much on the prosecution to prove the guilt of the accused. Do you agree with this contention?

If we accept that, what will happen to our freedoms? What is this Constitution for? An accused is an accused because he made an aberration from your law. He didn’t ask for this law. He didn’t raise his hand and say he would live by it. He also struggles to live by the rules of your society. You haven’t given him everything. But that is the system we have adopted. And, actually, I don’t see how this jurisprudence has hurt Britain.

But do you think it is working fine in India?

Why do you want to throw thousands of people in jail? In any case, do you have a wonderful police or a wonderful investigating system? When you have a thoroughly corrupt system, you don’t even want to give the accused a chance? If the accused has done something wrong, he is at least facing the charge. What about those who have evaded the system? What about the prosecution? Is the prosecution always above board? And what is the suggestion? Throw every accused into jail because you don’t want to presume that every accused is innocent unless proven otherwise? I don’t agree with this contention one bit. Not unless the entire system is overhauled.

Do we need an overhaul of the judicial process in any case?

Yes, overhaul the entire judicial process but do bring in judges who know the criminal law. Today we have Jacks of all trades (masters of none). Supreme Court has many judges who have years of unparalleled experience in civil, tax or Constitutional matters but very few with a similar background in criminal law. This is hurting criminal jurisprudence. That is why there is so much uncertainty in law. That is also why there is so much talk that the criminal is being pampered in this country. The fact is that the criminal is not being pampered. But you need to know the law and how to apply it.

Are you implying, then, that there is an issue with the appointment of judges?

Of course, there is. The problem begins from there. You see any court; there will be just one or two division benches dealing with criminal law and ten benches dealing with other issues. But what can be more important than human rights? So our judicial system does need a change. 

So who should really appoint judges?

That I really don’t know. The earlier system when the government used to appoint judges was faulty and now we have the collegium. I have seen high court judges and chief justices, who are aspirants to higher appointments being demeaned by the collegiums. It is pathetic to see the way a chief justice of a high court is dealt with. The system does not allow the best to come up and hold the highest posts.

Do you believe we do have enough judges of substance who are not given a chance to come up?

Of course, there are lots and lots of them.

Can proper appointment of judges take care of the issue that you mentioned earlier, of most Supreme Court judges not having sufficient experience in criminal law?

That’s right. You see, some of them have not worked with criminal law. They may have done so as sessions judges but not as lawyers. For example, if 60 percent judges are appointed from the bar, as is the norm, very few of those 60 percent have done appeals and trials and gone on to criminal law work. We find that they are using CPC (Civil Procedure Code) to deal with CrPC (Criminal Procedure Code); they are using Evidence Act in different modes, and therefore being very unfair to the accused.

Given the situation, what would you suggest as the way out?

Given the situation, one should commit suicide (laughs). But we can also start analysing right from what we really need. First, we do not need a big chunk of our people in jail all the time. So we could start by looking at cases which most people are coming in with and then work at rectifying it. I am not saying we work in the direction of encouraging lawlessness. That is not the idea at all. I am just suggesting we should analyse whether there are too many thieves coming in, or too many petty criminals, or too many guilty of issuing cheques that bounced. So, start analysing. Then, start modifying your laws accordingly. Make them stricter or more lenient as per need. Or, if there are grey areas, codify your laws correctly. And, then, ensure your delivery system works. By delivery system, I mean the moment anybody has been apprehended, justice must be delivered swiftly. Bail must be the rule, jail an absolute exception, like the Supreme Court said but does not practice.

Do we also need an overhaul of laws?

Yes, and we do need to scrap hundreds of useless laws that nobody can rationalise. Then you say ignorance is no excuse. But who will tell people that these laws are there when they shouldn’t be.

Does the judiciary have too much on its hands?

Of course, it does. There is general distrust in the executive because it is not answerable any more. Because the executive is not able to implement the parliamentary wisdom people run to the courts. But in the courts you have the same number of judges dealing with a growing pile of cases. All this is because the executive is not performing its duty.

However, even the image of the judiciary has taken a knock.

Partly due to the growing pressure and the increasing backlog, the sensitivity of the judiciary has become just as that of an SHO (station house officer in a police station). Hence, a similar reaction.

Hasn’t this happened also, and perhaps even more, due to cases such as the one involving the chief justice of Karnataka high court PD Dinakaran?

Yes. That is why, in cases of such aberrations, there should be zero tolerance. Such cases should be dealt with firmly and quickly. Immediately. They should be nipped in the bud. Don’t seek too many explanations. Don’t hold one committee, second committee, third committee. This is not a case under the Prevention of Corruption Act. This is a constitutional post that the people have lost faith in. If people have lost faith in a constitutional authority, the constitutional authority must be made to vacate the post immediately.

Lastly, what would you advise the media?

As far as I am concerned, I am sure the moment the media crosses its limits, the court will give you a knocking on your knuckles. If that hasn’t happened, have a ball of a time. Why curb your own freedom?