For the first two decades of its existence the Supreme Court as an institution hardly figured on the radar of the press except for its judgments, and in even rarer cases, appointments.

Yet, a process begun with the dramatic supersession of three judges by the Indira Gandhi-led Government (as ‘punishment’ for the Kesavananda judgment), the shock and horror of the atrocious ADM Jabalpur judgment, and finally culminating in the penitentiary judgments loosening of locus standi requirements and expansion of fundamental rights, saw love finally blossom between the press and judiciary.

Courting the Court

The press, and by extension the public at large, became aware of the judiciary as something more than just an elite and aloof institution that played only a marginal role in the politics of the day and the age. The excesses of the Emergency and the keenness of the Supreme Court to perform suitable penance for its egregious dereliction of duty, saw the Supreme Court taking on a more aggressive role in protecting fundamental rights from state intrusion.

Eager to re-state its credentials as a credible defender of the Constitution, the Court (unconsciously or wilfully, we will never know) enlisted the support of the press in expanding its reach and role in the Indian polity. Press reports formed the basis of many a PIL that re-wrote the scope and reach of Part III of the Constitution. And reporting of the Supreme Court’s activities was rarely short of adulatory.

And thus, as they say in the books, a passionate romance was ignited.

On days where important (read: newsworthy) cases are listed in the Supreme Court, the visitors’ section in the courtroom is packed to bursting with journalists from print and television, furiously scribbling away at notepads to report on the day’s proceedings, afterwards tackling senior counsel and lawyers outside the courtroom for details they may have skipped.

Determined athleticism

The sporting ability of these dedicated press-men and women are to be much admired.

When yours truly attempted to catch a glimpse of the 2G scam proceedings in the small and packed Court No. 11, a solid wall of bodies blocked my way into the courtroom. Yet, one of the Supreme Court press corps, notebook and all, managed to navigate her way past this seemingly impenetrable barrier with the skill and ease of a trained gymnast.

As soon as the hearings in such cases are done, the senior counsel attempt to scuttle away in haste to another court, flanked by juniors and litigants. Yet they are inevitably tackled into immobility with deftness and grace by some member of the press corps (sometimes half their size) looking for a sound-bite or a clarification.

If the IOA really wants to improve India’s medal chances in the London Olympics in 2012, they know where to look.

Great looks, shame about the personality

So why should this romance be “complicated” and not just another Bollywood love story?

When one speaks of the “Supreme Court” one has this image of a cohesive, fairly monolithic institution that speaks with one voice and thinks with one mind.

That image could not be further from the truth.

At its full strength, the Supreme Court will be 31 judges strong, about the average size of a High Court in this country. With multiple retirements and appointments every year, the turnover tends to be high (this year alone there will be seven retirements and at least three appointments).

Unless they have spent considerable time on the bench judges rarely get to know each other, let alone understand where each one is coming from and where one stands. The collegiality that marked the first couple of decades of the Supreme Court’s existence, where judges were secure enough to be able to make friendly digs at each other in public fora is absolutely unimaginable now. (SR Das’ farewell speech was one such famous example)

Furthermore, each of the judges on the Supreme Court are men and women with distinguished legal careers on the bar and the bench, having served a few years at least as Chief Justices of a High Courts. In other words, they have massive egos.

The Supreme Court is therefore not unlike a 30-headed hydra, each head thinking and speaking on its own.

And as anyone who has been in such a relationship will tell you, dating an egotistical 30-headed hydra is not exactly the easiest thing in the world.

For a start, communication tends to be a problem when your partner speaks in about 30 different voices, not all of which are in entire agreement with each other. And communication, as we are continually told, is the key to a good relationship.

Theoretically, judges are not supposed to be speaking to the press in their individual capacity. Theoretically, judges do not speak at all except in oral argument and through their judgments.

Theoretically.

Furious flirtation, ends in tears

Oftentimes, attending the hearings during important matters in the Supreme Court, one cannot fail to get the impression that sometimes, remarks made from the bench are directed less towards counsel and more towards the huddled masses squeezed into the visitor’s sections. And the pearls of wisdom tossed by the Bench in that direction are dutifully caught and reproduced, sure enough, in big bold letters by sub-editors keen to get for a catchy headline that ends with “says Supreme Court”.

Sometimes, the enthusiasm to get a quotable quote into the headline and the copy overtakes the journalistic tendency to place the facts in context. And we get instances like this, this and most recently, this.

Perhaps that latest incident prompted the publication of the somewhat draconian and frankly arbitrary and ill-thought out “norms” for accreditation of journalists to the Supreme Court, which were apparently first created in 2007 but never became public. Any observant journalist would not have failed to draw the link between the last two instances, both involving the high profile, high stakes Vodafone tax case and the latest set of “norms”.

Conscientious keepers of the judicial conscience turn their noses up at this sometimes tempestuous love affair between the press and the judiciary. To them this carries a faint whiff of scandal - a reputable gentleman/lady hanging out with the riff-raff from the other side of the tracks.

Judges, as they see it, lay down the law, write elaborate judgments on important questions of law, and go into a quiet retirement.

Like the summer of ‘69

I can’t say I agree. I’m all for free love.

And greater judicial accountability.

It’s easy to deride the judiciary as an unrepresentative, unaccountable institution that caters to nothing more than its own constituency - judges and lawyers. In a democratic polity such as ours it is a fashionable exercise among the political class to take aim at the judiciary for being out of touch with society, unrepresentative, and therefore “undemocratic”. Irrespective of the validity of such charges it is a genuine concern that judges and the judiciary can ill afford to ignore. Laying down the law and doing justice in the fullest sense are not empty academic exercises carried out in the law reports. They are fundamental to the way in which the institutions of state and society function, and a fundamental disconnect is dangerous.

A vigorous and free press that keeps a keen eye on the judiciary and its pronouncements is a valuable ally in ensuring accountability. The process is reflexive. Judges don’t just make observations and smugly read about it the next day in the newspapers. The reactions to their pronouncements much as they might otherwise deny it, does inform and shape the way judges think and act while on the bench.

While this can sometimes breed a tendency in judges to try to be perceived as being “popular”, a complete disconnect is not the answer either. A healthy relationship between the judiciary and the press - as between two individuals - involves striking this balance between two extremes.

For, much as formalists may argue that the credibility of the institution rests on only its judicial pronouncements, the reality is, well… complicated.

Court Witness is an advocate of the Supreme Court of India and now tweets @courtwitness1.

Court Witness’ previous postcards:

• How advocates are countries, and the lost souls of litigation
• From Gopal to Rohinton - A tale of two SGs
• SH Kapadia mid-term appraisal: Crying Room Hercules cleans SC stables after dirty decades, only half-done
• Justice ‘Goldilocks’ Reddy should be sorely missed, not misrepresented

Photo by Zaqarbal