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The legal journalism sphere is an emerging niche space and whether reportage of court proceedings, legal documents and orders is carried out objectively is generally an ongoing topic of contention.
More often than not, under the garb of fair reportage and adherence to constitutional morality, ideologies and narratives are pushed through legal news and that begs the question, how can it not? This is where an in-depth understanding of the fact that a person cannot be devoid of bias comes into play.
When a certain court proceeding or a court order is reported in such a way that it appeals to a particular narrative, a citizen who is consuming such news is obviously getting a scoop, not a news report. The question which is of paramount importance here is whether there is a way out of this.
The Bar Speaks:
Senior Advocate Aman Lekhi points out every person has a perspective, which is in turn shaped by ideology, which in turn gets encoded in an article, manifesting itself in "Clickbait" - where sensationalism excites curiosity, leading to distortion.
"In the online world, it is called clickbait, where a perspective is sensationalised to excite curiosity either to put forth the organisational interest or to push the ideological tilt of the person reporting it. What happens in this process is distortion, the casualty to which is diversion of truth," said Lekhi.
Senior Advocate Arvind Kamath says that legal journalism has extended its reach beyond the fraternity of legal professionals and due to technological developments and spread of usage of social media, it is a space which is making now making deeper inroads.
On the issue of whether legal reportage is carried out with ideological slants, Kamath says he is a regular consumer of legal journalism and that he can say with certainty that several leading agencies in India are no exception to ideological alignment, "much like the mainstream media".
"The manner in which the headlines are drafted and views are presented shows a definite bias in reporting. Court proceedings ought to be reported in a manner that presents the decisions of Courts in their truest sense," the Senior Lawyer adds.
Senior Advocate and Additional Solicitor General of India, Madhavi Goradia Divan who has also authored "Facets of Media Law - A mini encyclopaedia covering multi-dimensions of media law" points out that "fact" and "opinion" are both important facets of journalism, but it is necessary to separate fact from opinion.
"The lines between fact and perception are often blurred and this can lead to misinformation. This is particularly necessary in legal journalism because this is an are where the public may not have a deep understanding, either of the law or the manner in which the system works. So, in such areas, the responsibility cast on a journalist is more serious," Divan says
Senior Advocate Birendra Saraf says that the fundamental foundation of any Legal journalism must be “an unbiased communication of events as they transpire in court”. While thrusting upon context, the Senior Lawyer says that active efforts must be made, to carefully divulge the entire background before delving into specifics.
"Often, individual statements and even observations by Judges are reported in isolation - disconnected from the context in which they are made. Nothing can be more dangerous than this, due to its automatic effect of prejudicing an unaware reader," says Senior Lawyer Birendra Saraf
Saraf also thinks that Legal journalism must be clearly understood distinctly from other fields -
“Live updates” of cases of public importance require all the more care. Information is rapidly uploaded and can lead to further mistakes in the course of communication and unfortunate though unintended situations. A combination of flair without compromising responsibility and fairness must be employed by all journalists keen to cover legal issues."
Advocate Swarupama Chaturvedi points out that the slant in reporting with ideological bias is unethical and it often gets criticised.
"This industry [of Legal Journalism], being new, has created a revolution, but it does have its own challenges and if it's not checked, it could act as a "double edged sword" which will not only affect trust of the people in the institution due to wrong reporting, but may also take away the right to be informed, for which legal news portals are actually performing magically well," Chaturvedi says
Advocate Aankhi Ghosh thinks that journalists deserve to have opinions too. She adds that irrespective of what may sound theoretically correct, one cannot detach their ideas from their writing.
She points out that though the niche space of exclusive legal journalism portals is at least a decade old, it is worth pondering upon as to why these questions are emerging only now, considering there are now new competing voices in this niche sector.
Advocate Nikhil Mehra says that though legal journalism is not new or novel in any way, the reportage of in-court proceedings by online portals in real time basis, leaves publishing space in the sector without much editorial intervention.
"They are generally attempting to report every sentence that is spoken in court. So they are publishing rapidly without much editorial intervention. Or at least that is the promise they hold out to the observer, i.e., one assumes there is no editorialization. Hence, it is a breach of the duty of the reporter to both the court and the consumer if reportage is slanted," Mehra adds
[Editor's note: There have been enough instances where lawyers have been "uncomfortable" with reportage by media agencies in the legal space. Recently, Lawbeat was under scanner for reporting on contents of the chargesheet filed by the prosecution in the Delhi Riots 2020 cases. One of the lawyers for the accused pointed out court proceedings during the virtual hearing were tweeted out contemptuously . The reporting was contested as contemptuous & a plea was put forth that the reportage be taken down. The Judge refused to do so and did not go into the specifics of the case, adding that reporting on a chargesheet and its contents, along with the contents of the supplementary chargesheet was open to media personnel]
With older players in the legal journalism space, many judges and lawyers have been consistently pointing out that there is one-sided reportage of an ongoing case.
Advocate Ashish Goel says that it becomes a "serious problem" when certain sections of the media seek to paint court proceedings in colours that they would like others to see. He states that the problem this creates is that "scales of justice do not remain even" as a result as news and views must always be respected to facilitate a secure and healthy environment for administration of justice and to eventually protect the rights of litigants.
In this ongoing tug of war, caution is what the reader must exercise, Senior Lawyer Lekhi points out.
"All of us in the legal profession as well as otherwise generally are aware of the slant that the media often tends to take and we are cautious when we sift through news items, so as to extract the facts from the opinions in the reports," he said, adding that ideology sometimes substitutes the news and as a result, caution must be exercised as a reader.
It is important to also point out that emerging social media spaces and a boom in the technological front so far as dissemination of news is concerned, a fastidious need may be felt to regulate court reportage.
"The surest check which a person can have in pursuit of what a person thinks is right is one's conscience and as long as the conscience is flexible, codes will not in any way help. Code's come into place when you judge something or roll out punishments. Problem is not punishing a person, problem is presentation. No matter how many code's you come up with, the tendency to stretch one's idea to accommodate one's views which are in some way presented as news, no amount of code's will help. I'm not in favour of codes. Whoever is in working in this space , the requirement of objectivity is a given. Those who can't see it on their own won't be assisted in any manner by the Courts," says Senior Advocate Aman Lekhi.
Advocate Swarupama Chaturvedi says that she believes in freedom to express & right to know and live streaming of Court rooms are the best way forward. This, she says will to stop the "misreporting" and that there is a need to have a code to regulate Court proceedings reporting, especially when we don’t have live streaming at the moment across the board.
[Voluntary Editor's note: Another issue which has been a topic of ongoing debate is whether someone who is a practicing lawyer should be reporting from courts, especially if they are responsible for drafting a petition on the subject they are reporting on. The issue that arises here is of outright "conflict of interest" and whether this is an ethical practice. Recently, various stalwarts on social media had pointed out that a person who was responsible for drafting a petition was also reporting on the subject matter. The concerned tweets and reports by the media house were later taken down]
Lawbeat asked members of the bar whether they think lawyers involved in sub judice (ongoing) cases in any capacity should be report on the subject matter & whether this would amount to "conflict of interest"
Senior Advocate Madhavi Goradia Divan says that an issue of conflict of interest and duty arises where a lawyer argues a case and actively courts the media or tweets out his perception of the case during its pendency in court. She adds, "this is problematic", for an activist lawyer, with a public following can whip up public sentiment in a slanted way, and if the case is decided differently, the public begins to attribute motives.
"This is a matter which the legal fraternity needs to deliberate on, as it is a serious issue of professional ethics. This is particularly true for a medium like Twitter where the number of characters is limited and therefore, the perfection created on a legal matter can be both superficial and skewed" - ASG Madhavi G Divan
Senior Advocate Arvind Kamath says that Advocates who appear in any matter, which is subject matter of reporting, may express their fair views on such matter, of course, bearing in mind status of the proceedings.
On the aspect of whether an Advocate should engage in reporting a matter in which he/she appeared would definitely lead to conflict of interest.
"The edifice of legal journalism should be built on the foundation of independence of judiciary," Kamath adds.
Advocate Aankhi Ghosh thinks that the Advocate's Act regulates lawyers for purposes of "ethics" & "morality". She points out that Advocates should be permitted to write/ report on any matter once it has attained judicial finality.
Advocate Ashish Goel says that though he is of the view that lawyers must refrain from commenting or writing about sub juice matters they may be involved with any capacity, there needs to be a thrust on the need for the bare minimum of full disclosure in such case.
"At the very minimum, such comment or writing must necessarily be accompanied by a disclaimer to this effect not because the disclaimer insulates the lawyer from the risks and consequences of spreading misinformation or propaganda, but to make the reader aware that she might have to take what has been written with few buckets of salt," Goel adds.
"The problem becomes even more serious when lawyers who are involved in drafting of court petitions are also writing media reports on those very matters. Please correct me on facts but I do not know any media house anywhere in the world that has full-time reporters who are also full-time lawyers. This is something that the Bar Council of India needs to look into," Advocate Ashish Goel points out.
When asked if is there conflict of interest involved if a lawyer practicing in a court of law & involved in the drafting process is reporting as a Journalist on that issue, Advocate Nikhil Mehra says "Absolutely" and that there cannot be any debate on the point.
Full disclosure on whether there is any conflict of interest is of paramount importance, Mehra says, adding that when Counsel are required to do the same before a court, Reporters should be no different. To fail to do so, would be breach of duty to the consumer of such news.
"In any event, if one is a counsel in a case – in whatever capacity – whether for briefing, drafting or arguing then one ought to refrain from commenting on the case in the public domain beyond detailing events as they occurred in court. To step beyond this remit is to create a media trial which is unfair to the concerned parties and to the judges," says Advocate Nikhil Mehra
Advocate Swarupama Chaturvedi thinks that there is conflict of interest if a lawyer practicing in a court of law & involved in the drafting process is reporting as a Journalist on that issue.
"Its human to have a convincing views/bias towards the side for which the lawyer is involved in the litigation. Advocates Act doesn’t allow practising lawyers to jobs & I feel the news reporting, which is journalism should fall in the job category & therefore the legal news reporter might not be same person/ professional who is involved in the litigation but if there is certain overlapping then the professional should self restraint like doctors don’t do surgery for their own family members," she adds.
Senior Advocate Birendra Saraf is also of the opinion that the aspect of opinions and criticism should be reserved for separate pieces in the form of columns and articles where judgments and event that transpired in court can be analysed.
Conclusion:
With no respite from the fast-paced environments, where news and technology meet & "breaking news" changes by the minute, it is extremely important to introspect - what is it that will further strengthen the idea of correct and factual information, from the legal world reaching the public?
Another aspect is that of self-regulation and checks on "bias" and unconscious bias. What would also make for some food for thought is if mandatory trainings for recognising biases and unconscious biases can be pushed for legal journalists. This will also initiate the much required discourse in the niche and rather closed space. Perhaps, full and complete disclosure of views and inclinations which are often expressed on social media are a "double-edged sword" but veiling them & parading with lopsided insinuations and motives is a sharper one.
As far as reporting on cases is concerned, a person who appears in a particular court or is involved in the drafting of any case, should ideally never be reporting on that subject matter or from the court they often appear. Checks and balances in this regard must be put in place.
[Views expressed (if any) are that of the Editor in her individual capacity. The Bar's opinions are their own and personal. Lawbeat neither endorses, agrees nor disagrees with any opinion(s) or viewpoints]
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