"In so far as the contempt power is concerned, we are not using it that much in India", reflected Justice A. K. Sikri on Sunday at Lawasia's first Human Rights Conference in New Delhi.
Moderating a panel of lawyers and journalists, Indian and international, on the issue of the "Freedom of the Press in the Digital Age", the second senior-most judge of the Supreme Court noted that though it has been the opinion over the years that once a judgment is tendered, there exists the right of fair critique of the judgment, but now "slander and defamatory statements against judges" have become the order of the day.
"In the Maldives, the top court engages in not just initiating contempt but goes as far as suspending the licenses of the offending members of the bar...of course, now even before the Supreme Court here, a case has come and notice has been issued. Let's see what happens. I don't wish to say anything more on it...the matter is subjudice...", continued the judge.
Elaborating on how the advent of the digital age changes the paradigm of civil and human rights, the judge canvassed the consistently-rising trend of media trials- "even when an issue has been raised and a petition is filed, even before it is taken up by the court, whether it is the Supreme Court or a High Court or a trial court in some sensational case, people start discussing what should be the outcome of the case ('not what is going to be the outcome, but what should be the outcome', he added emphatically)"
Throwing light on the misuse of social media by the general public, which is indulging in defamation and hate-speech quite rampantly, Justice Sikri addressed a corollary of this phenomenon of media trials- "judging under stress".
He observed that though it is not so much a concern at the Supreme Court level, because the judges who are elevated to this court are mature enough to know how to decide as per the law, unfettered by the press, he discussed how even internationally this thrust of the opinion at the media stresses judges in the task of delivering verdicts. "This is an issue even internationally...I will be attending a conference at the Yale law school later this year on judging under stress, how it transpires across different jurisdictions"
The judge also brought to fore the threat of surveillance which this increased digitalisation poses, surveillance by the state instrumentality or even by private players (like Facebook, WhatsApp, he cited), as a challenge to human rights- "data can be mined and collated to reveal your choices, preferences and thinking...if the business houses use this information to know what they need to do to grow their businesses, it may be acceptable. But where it affects the privacy of people, it becomes a dangerous instrument. Then it raises issues of dignity. The Supreme Court has been deliberating on this in the last few years, with the right to privacy being declared a Fundamental Right"
Finally, Justice Sikri mentioned the risk of "paid and fake news", where stories are fabricated, which go viral within only a few hours' time.
The judge also pointed out that despite its cons, the enhanced freedom of press in the wake of this digitalisation has become more equipped as a tool of "social welfare", "a watchdog for the citizens to ensure that democracy endures"- "the media is deeply associated with social and economic issues, with moral development and even the upholding of constitutional values"
He added how it has become more effective as a vehicle for dissemination of thoughts, passions and aversion towards political issue or ideologies.
"Even as a consumer, if I want to buy something, I don't even need to surf the internet anymore- the Twitter updates on my cellphone tell me what are the various products available and on which platforms...so the digital age has definitely increased the reach and efficiency of media", he continued.
Justice Sikri conceded that the contours and the colours of free speech have undergone transformation in the digital age-
"with the popularisation of the World Wide Web and the internet-based services, enormous volumes of content are being constantly created and transmitted. There is a New space of publication with virtually no entry cost. Everybody can express their views, unlike earlier. The Social media is so powerful- Twitter, WhatsApp, etc- people express and share their opinion, which becomes viral and reaches millions of people within hours...This improved freedom of press is Leading the democratisation in the public realm"
"The Freedom of press is a form of freedom of speech, a human right, a Fundamental Right embodied in our Constitution...any number of judgments have been passed in this behalf in India as well as other jurisdictions...In a pluralistic governance, this Right is important for the fulfilment of other human rights. It is the fourth pillar of democracy..."
Quoting former US Supreme Court Justice Hugo Black, Justice Sikri recited that "the free press was to serve the governed, not the governors".
At the outset, the judge indicated an article by American futurist Alvin Toffler, where the writer-businessman spoke of the gradual development of the society from one based on agricultural (as it were some 1500-2000 years back), to the industrial era with the invention of the steam engine (about 350 ago), and eventually to the age of knowledge in the past 20-25 years which we also stand in today.
"He (Toffler) had stressed what we are infact witnessing today- that, unlike the earlier times, this knowledge-based society is changing everyday! Every 6 months, what we are seeing today becomes outdated and a new technology comes in. This has led to a creation of wealth, that is, more knowledge...the Top ten companies in the world today are knowledge-based companies- YouTube, Facebook, WhatsApp, Amazon, even Uber and Ola!"
Appreciating the views of the panelists, including ASG Madhavi Diwan and Madhu Trehan, Founding Editor, India Today, Justice Sikri acknowledged the travails of the digital age vis-a-vis the freedom of the press- "how data mining and surveillance by the government threatens a journalist and how their personal liberties are affected. These are the different aspects which need to be looked into...How anti-fake news legislations can be misused by politicans and persons may be prosecuted..."