It was once said by Lord Atkins that “Liberty does corrupt into license and is prone to be abused. Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become a license which would lead to disorder and anarchy[1].” The statement holds equally true even today. With the democracy expending its wings and citizen becoming more and more evolved and updated regarding the functioning of Government and its functionalities. The functioning of Courts is also getting public day by day. The trials are reported in media due to which debates start, people engage into discussions and the judgments are made public even before the actual copies are delivered to the parties to the lis. This poses as a big challenge for Judges as well as Lawyers as they have to answer the public debates and discussions as well; though not directly but at least indirect answer almost becomes duty. It may be true that the Judges are immune from directly answering these unending public debates; however on the other side the lawyers are becoming more and more common face over the media channels while they not only discuss the arguments, merits and demerits of the case but also the evidence which is part of a matter. In December 2012, India witnessed a huge spur with the incident of Damini Rape Case went into public. People came on road and the reaction of the public was so sharp that Government was forced to form a special committee for reforms of law on the violence against women which resulted in amendment of law and creation of new acts. It can be easily imagined that the mind of the trial court Judge must have been under huge mental pressure due to such widely publicized case. Even before the trial actually started and statements of witnesses were recorded, the man who was accompanying Damini was seen on news channels giving verbatim account of the incident. Such things come into air from various sources most important of them is Press i.e. media and now most recently from past 5-6 years a new kind of media is surfacing which is known as Social Media. It may be defined as a group of Internet-based applications that build on the ideological and technological foundations of [the worldwide web] which allows the creation and exchange of user-generated content[2]. Some of these popular virtual network tools are Facebook, Twitter, Instagram, Linkedin, Google+ and Pinterest. Most popular among them is Facebook. Social media include virtual magazines, private blogs, discussion communities and many such forms wherein people can come together and share their ideas, pictures etc. The usage and comments over the social media engine spark debate and sometimes criticized as well. So far as the culpability is concerned social media is more vulnerable as the content is not regularized and unchecked before it is published and posted online. This increases risk of wrong reporting and thereby resulting into wrong opinions based upon wrong facts. On the one hand the content of newspapers and electronic media is controlled to some extent and regularized; this is not the case when the turn of social media comes. No regulations are in force to censure, pre-censure the contents. It is a known fact that traditional media sources like print media, electronic media are some how aware about the matters sub-judice and also know the penal provisions of wrong reporting etc. which are contemplated in the Contempt Law. But this is not so in the case of social media which has far reaching boundaries and even the authenticity of the original person who posted such content on the social media is not known in some cases. A person can come over the social media; impersonate himself as some other person and post content over the same. A recent example of the murder of wife of a Union Minister surfaced wherein some one hacked the twitter handle of the minister and posted impersonating himself as the minister that he is having love affair with some lady of Pakistan. This resulted in nation wide spark and his wife was found dead in a Delhi five star hotel only a couple of days after it. The far reaching consequences of social media can be imagined from this single incident. Though Section 66A of the Information Technology Act empowers prosecution agencies to take action against the persons; but that is also not immune and its constitutionality has been challenged and the matter is sub-judice before the Hon’ble Supreme Court as on today. Although many professional journalists communicate via social media, especially Twitter, social media empowers anyone to be a publisher. The ability to publish is therefore readily available to people who do not have a professional background in respect of the matters about which they are communicating and whose thoughts and opinions are not fact-checked by anyone. In a professional media system, checking takes place at multiple levels, eg. sub-editors, production editors and lawyers are often involved. In contrast, ‘citizen journalists’ do not have their work checked and are less likely to understand the nature of the legal constraints imposed by sub judice contempt. Indeed, they may even be unaware of the very existence of the offence. This lack of appreciation of their vulnerability to a prosecution for contempt means that the law of sub judice contempt does not exert a chilling effect on their willingness to communicate about a pending case. Accordingly, there is a far greater probability that sub-judice contempt[3] will be committed via social media than via the traditional media[4]. Hence, an immediate attention is required on this method of communication which has expended itself beyond countries due to the world wide presence of internet and no tools to curb over expression.
Social Media and Administration of Justice
With its increasing role and penetration in the society, time has come when its impact over the administration of justice is assessed as studies over the same are rare to find. Whilst it has been emphasized that penetration of media is important to some extent in the administration of justice; the impact of social media has not been analysed. Over the importance of media it was once said by Jeremy Benthem “in the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”
It is interesting to note that maximum time the interest of public is more in to criminal matters and not in less scandalous and matters of private nature like civil disputes. India has witnessed many such matters wherein the opinion of public derived by media campaign pressurised judiciary and administration. Everyone has a right to be presumed innocent unless he is proven to be guilty by any competent court[5]. However, the situation completely changes when an accused is separately tried outside courts in media, on social media platforms. Though Constitution of India guarantees freedom of speech and expression[6], however such freedom is also not unrestricted. This fact is noticed and taken care by organized media. But, this is not true in the case of Social Media, which is neither organized nor monitored as it creates unreasonable breach in the right to privacy and freedom of speech and expression. Right to have fair trial has been repeatedly held to be one of the fundamental rights by the Hon’ble Supreme Court of India in a number of cases[7]. This right is as important as the freedom of speech and expression which is guaranteed by the Constitution of India and is held to be one of the most important and indefeasible rights as enshrined in the Part III of the Constitution[8]. Right to privacy is also one of the indefeasible rights as guaranteed under the Constitution of India and has been held to be invaluable right[9]. While holding trial and protecting all of the above rights; a judge is obvious victim of burden and criticism[10] in some cases. Keeping a balance of all these rights and also keeping the faith of citizen in the Judicial System is one such cumbersome task. It has been held by Hon’ble Supreme Court of India that right to fair trial includes right to have a hearing from an impartial hearing and also having a calm environment which is free from unnecessary disturbances and crowd[11].
On the other hand in a number of cases it has been held by the Hon’ble Supreme Court of India that media trial is interference into the administration of justice. In one such case it was observed as below:
“There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and he is to be guided strictly by rules of law[12].”
It is to be seen that the handling of social media is far more difficult than actually handling only traditional media. First and formost difficulty can be of the jurisdiction. A person sitting in Pakistan can tweet from his twitter handle regarding alleged unfair trial given by any of the Indian Courts. It can be very well imagined that the Court can not extend its jurisdiction beyond Country. Hence, these challenges are imminent and required to be cater with. Second problem may be that it is actually very tough to actually identify as to who is contemnor in a case of any post over social media. A message circulated on social messaging applications like ‘Whatsapp’ is spreaded within minutes to end number of users as more than 7000 Crore messages are transmitted on daily basis only from this particular app. It is a cumbersome task to indentify the origin of such a message or comment which can be said to be sub-judice contempt. There are many such things which are to be noticed while assessing the impact of social media over the judiciary and administration of justice. Even there may be interesting case where any article or post is made over a private blog or social network profile which is only intended for a particular section of users and outside persons or users have no access to the same. Hence, it can be safely said that social media is a threat to the administration of justice and immediate attention to the same is required.
Are Judges Influenced By Parallel Trials?
Trial by social media can not be separated from the broader term trial by media as social media is nothing but part of media. The object of media is to make public at large aware about happenings and same is being done through social media especially microblogging site like Twitter wherein the immediate inputs of the trial are even disclosed even from the court rooms where the trial is being conducted. It not only poses danger to the witnesses but can also hamper the undergoing investigation. The pressure to cope with all this has to be taken by the presiding officer who has to stand by the pressure of the trial which is built by the public at large through reporting from media and social media. It is to be seen as to whether a trial judge is some how influenced by such parallel trials. For that it is worth to quote by Justice Frankfurter from a celebrated judgement over the media trial by the U.S. Supreme Court[13]
“No Judge fit to be one is likely to be influenced consciously, except by what he sees or hears in Court and by what is judicially appropriate for his deliberations. However, Judges are also human and we know better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process … and since Judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print. The power to punish for contempt of court is a safeguard not for Judges as persons but for the functions which they exercise. It is a condition of that function – indispensable in a free society – that in a particular controversy pending before a court and awaiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the undertone of extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the right to influence Judges and Jurors.”
In another celebrated judgment on media trial Hon’ble Supreme Court quoted from Viscount Dilhorne[14]:
“It is sometimes asserted that no judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard or read outside the court and he will not knowingly let himself be influenced in any way by the media, nor in my view will any layman experienced in the discharge of judicial duties. Nevertheless it should, I think, be recognised that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. As Lord Denning M.R. said the stream of justice must be kept clean and pure. It is the law, and it remains the law until it is changed by Parliament that the publication of matter likely to prejudice the hearing of a case before a court of law will constitute a contempt of court punishable by fine or imprisonment or both.”
Hence, it is clear beyond doubt that the danger of judge being influenced by the media trial or outer opinions is even noticed and accepted by Hon’ble Supreme Court also which in another celebrated judgment[15] observed that:
“No occasion should arise for an impression that the publicity attached to these matters (the hawala transactions) has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial”
Cardozo, one of the greatest Judges of the American Supreme Court, in his ‘Nature of the Judicial Process[16] referring to the “forces which enter into the conclusions of Judges” observed that:
“Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex instincts and emotion and habits and convictions, which make the man, whether he be litigant or Judge … … … There has been a certain lack of candor in much of the discussions of the theme or rather perhaps in the refusal to discuss it, as if Judges must lose respect and confidence by the reminder that they are subject to human limitations.. …”
Cardozo then stated in a very famous quotation:
“None the less, if there is anything of reality in my analysis of the Judicial Process, they do not stand aloof on these chill and distant heights; … The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the Judges by[17]”.
At last it can be said that the influence of media upon the mind of a judge is a practical reality and it is necessary to cope from it in order to administer justice. The judiciary, as the upholder and protector of the right to freedom of speech and expression of the media and has zealously safeguarded this right against invasion by other branches of the government, whenever it has occurred[18]. However, since the social media is unorganized and uncontrolled, the danger from it is imminent and is much graver than the danger from other branches of Government and other pillars of democracy. These self proclaimed citizen journalists are posing imminent danger to the court proceedings by not only reporting day to day proceedings from inside the court rooms but also interpreting the observations of courts and evidence in their own language and interpretations. It is to be noted that they are neither expert on facts nor on interpretation. Hence, a moral code of conduct is a need of hour wherein reasonable and permitted restrictions may be imposed upon the usage of social media in court matters. This may be an impossible task due to the beyond jurisdictional reach of the social media. But, even then it is necessary.
Should Judiciary Engage Themselves and Use Social Media:
There has been a wider debate over this issue all over world and there are divergent views over the subject. Some experts say that this should not be done however, there are views on the contrary also which say that there is no harm in it. However, such usage should have certain restrictions which are necessary for administration of justice. An influenced judge can never administer impartial justice, hence, any extraneous influence should be avoided. The judicial conduct rules published for the Courts of England and Wales have prescribed that usage of social media and blogging is not prohibited, however they should use it in a careful manner as any view taken by them over such media can deter public confidence in the officer itself or the judiciary at a large[19]. However, there may be the case when the lawyer turned judge who was active on the social media. The question will be posed as to whether he should stop contacting with his ex-colleagues, seniors and lawyers once he becomes judge. An international study was undertaken by the International Bar Association wherein 60% participants said that it is not necessary to do so[20]. This can be said to be a positive sign as it is to be seen that no matter a judge is considered to be a super-human but at last he is a normal human and a human always need a social peer group. Hence, presence of a judge on social media should not create a problem for administration of justice, so far as reasonable precautions are taken over it like sharing of address, phone number, date of birth etc. Another very important matter which needs consideration is that there are instances wherein the judges have used social media during the court proceedings[21]. However, it is to be seen that such instances are not common and atleast this is true for the country like India, which is yet majorly dependent upon age old paper method and the use of high tech devices is not common. However, this may very well become a major challenge in the days to come. It has been reported by Thomson Reuters that over 90 verdicts were challenged between 1998-2010 in the United States of American only on the basis of jurors using internet based juror misconduct and in 28 cases new trial was ordered on this ground[22]. Hence it can be very well said that a judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety[23]. Courts can no longer blandly assume that the public understands their mission and the underlying rationale for trial procedures, and that trial outcomes will be inevitably accepted as valid judgments in the court of public opinion. Ultimately, courts will have to devise more persuasive arguments, and more effective strategies to promulgate those arguments, of the continued importance and validity of its core function in the justice system. Courts are institutionally reactive organizations that have been slow to adapt to the implications of new media on court operations generally and in the context of jury trials specifically. But just as new media is affecting changes in human cognitive processing, it is similarly affecting—in a dynamic and interactive way spurred by the use of new media—both public perceptions about the courts and courts’ own perceptions about themselves and their role in contemporary society[24].
To ensure that pressure caused by Social Media is controlled and appropriate facts are presented before the public at large which also protects the image of the judiciary as an institution amongst public; I suggest that the Courts should themselves come to the social media platforms officially and give proper updates of the matters and regarding the decisions which have created the interest of public in it. There are various Courts all around the globe which have started this and the important briefings, judgments and statements are being released on it. I suggest similar measure in India. I further suggest that a model code of conduct for usage of social media by the Judges as well as Lawyers when they are reporting the Court matters should be framed and made operational. Never-the-less the most important fact is the awareness of the society itself which should use self restraint while using social media against the judicial system as it creates havoc amongst the society and faith of public over judiciary is shattered.
[1] Express Newspapers Vs. U.O.I., (1997) 1 SCC 133. See also re:Harijai Singh and re:Vijayakumar, AIR 1997
SC 73 wherein the Supreme Court of India has observed that the freedom of press is regarded as “the mother
of all liberties in a democratic society”.
[2] Andreas M Kaplan and Michael Haenlein, ‘Users of the world, unite! The challenges and opportunities of social media’ (2010) 53(1) Business Horizons 61.
[3] The law of sub judice contempt is concerned to ensure that all the main players in a court case are not improperly influenced or interfered with while the case is pending, including judges, parties and witnesses.
[4] Pg 5, Juries and Social Media byAssociate Professor Jane Johnston, Professor Patrick Keyzer, Geoffry Holland, Professor Mark Pearson, Sharon Rodrick and Professor Anne Wallace
[5] Article 11(1) of the Universal Declaration of Human Rights: “Article 11 (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has all the guarantees necessary for his defence.”
[6] Article 19(1)(a) of the Constitution of India
[7] Zahira Habibullah Sheikh (5) v. State of Gujarat: 2006(2) R.C.R.(Criminal) 448, M.H. Hoskot v. State of Maharashtra: 1978(3) SCC 544, Mohd. Sukur Ali v. State of Assam, 2011(2) R.C.R.(Criminal) 121, Rafiq Ahmed @ Rafi v. State of U.P, 2011(8) SCC 300
[8] Life Insurance Corporation of India v.Manubhai D Shah (1992 (3) SCC 637), Indian Express Newspapers v. Union of India AIR 1986 SC 515, Romesh Thapar v. State of Madras : 1950 SCR 594
[9] Malak Singh etc. v. State of Punjab & Haryana & Ors., AIR 1981 Supreme Court 760; State of Maharashtra & Anr. v. Madhukar Narayan Mardikar, AIR 1991 Supreme Court 207; R. Rajagopal @ R.R. Gopal & Anr. v. State of Tamil Nadu & Ors., AIR 1995 Supreme Court 264; PUCL v. Union of India & Anr., AIR 1997 Supreme Court 568; Mr. ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296; Sharda v. Dharmpal, (2003) 4 SCC 493 ; People’s Union for Civil Liberties (PUCL) & Anr. v. Union of India & Anr., AIR 2003 Supreme Court 2363 ; District Registrar and Collector, Hyderabad & Anr. v. Canara Bank & Ors., (2005) 1 SCC 496 ; Bhavesh Jayanti Lakhani v. State of Maharashtra & Ors., (2009) 9 SCC 551; and Smt. Selvi & Ors. v. State of Karnataka, AIR 2010 Supreme Court 1974
[10] Media Efforts Flushed by Sunken Judiciary: Damini Case Juvenile Verdict, Dr. Shefali Tiwari and Prof. Ruchita Shandilya, published in Pacific Business Review International, Volume 6, Issue 5, November 2013
[11] Himanshu Singh Sabharwal v. State of M.P 2008(3) SCC 602
[12] State of Maharashtra v. Rajendra Jawanmal Gandhi : 1997 (8)SCC 386
[13] John D. Pennekamp v. State of Florida (1946) 328 US 331)
[14] Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P.) Ltd., 1988(4) SCC 592
[15] Anukul Chandra Pradhan vs. Union of India, 1996(6) SCC 354
[16]Lecture IV, Adherence to Precedent, The Subconscious Element in the Judicial Process,1921, Yale University Press
[17] As extracted from the 200th report of Law Commission of India, 2006
[18] The Fourth K.S. Rajamony Memorial Public Law Lecture on ‘The Constitution, the media and the Courts’ (Kochi – August 9, 2008) By Hon’ble Justice K.G. Balakrishnan, Ex. Chief Justice of India
[19] Guide to Judicial Conduct, March 2013, Judiciary of England and Wales
[20] Page 15, Online Social Networking Report, 2012 issued by International Bar Association, U.K.
[21] Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations, A Report to the Judicial Conference Committee on Court Administration and Case Management, Meghan Dunn, Federal Judicial Center, May 1, 2014
[22] Pg 4, Jurors 24/7: the Impact of New Media on Jurors, Public Perceptions of the Jury System, and the American Criminal Justice System by Nicole L. Waters, Senior Research Associate, National Center for State Courts & Paula Hannaford-Agor, Director, Center for Jury Studies, National Center for State Courts.
[23] Formal Opinion No. 462, American Bar Association, February 21, 2013
[24] Pg 11, Jurors 24/7: the Impact of New Media on Jurors, Public Perceptions of the Jury System, and the American Criminal Justice System by Nicole L. Waters, Senior Research Associate, National Center for State Courts & Paula Hannaford-Agor, Director, Center for Jury Studies, National Center for State Courts.
