Former Supreme Court judge Justice Abhay Oka has called upon the Bar Council of India (BCI) to take action against lawyers who speak to the media about their arguments in ongoing cases, observing that such conduct could amount to self-promotion and attract restrictions on advertising and solicitation under the BCI Rules.
Speaking at a “Discourse on Ethics in Criminal Litigation, Trial by Media & Admissibility of Statements” organised by the Centre for Discourses on Criminal and Constitutional Jurisprudence, Justice Oka questioned the practice of lawyers approaching the media after sensitive hearings to discuss submissions made before the court.
Justice Oka asked if the practice of disclosing about the submissions made in the court to the media is a fair practice or not.
Justice Oka said he had also come across instances of lawyers hosting podcasts after court proceedings and discussing arguments advanced during the hearing as well as questions posed by judges. He noted that some lawyers even suggest that questions asked by judges indicate that their clients are likely to succeed.
He was also of the view that the lawyers are the officers of the court an should be able to assist the courts with fair arguments.
Referring to Rule 5 of the BCI Rules, which prohibits advocates from advertising or soliciting work, Justice Oka noted that the provision also restricts promotion through interviews, newspaper comments and photographs published in connection with cases.
He said the provision could apply where lawyers appearing in ongoing cases give media interviews, seek publication of their photographs or publicly discuss matters pending before the court. He noted that when an attorney in an active case, interviews with the media to get their photo in broadcast or online coverage, it violates the rule against self-promotion, as it amounts to soliciting work and advertising their skills.
Justice Oka stated that the Bar Council of India must exercise its legal duties, humorously noting his scepticism regarding whether such action would materialize. However, he emphasized that because the BCI holds statutory authority, the responsibility ultimately rests with them.
Justice Oka’s remarks came in the broader context of media trials and reporting of ongoing judicial proceedings.
He said he was a strong supporter of open court hearings and believed that the media and citizens have a right to know what happens in courts. He also supported live-streaming of proceedings before the Supreme Court and High Courts.
However, he cautioned that discussions based on live-streamed proceedings could create a misleading impression when questions posed by judges are treated as indications of their final views.
Judges, he explained, may ask questions to seek clarification, test a submission or indicate a prima facie view so that counsel can address the issue effectively. A prima facie view, he stressed, does not necessarily represent the court’s final conclusion.
He pointed out that there have been cases where judges expressed a prima facie view during arguments but ultimately delivered judgments taking a different view. Justice Oka also opposed courts issuing gag orders against the media.
Referring to the Supreme Court’s judgment in Wikimedia Foundation v. ANI Media, he said courts cannot dictate to the media what should be reported or direct it to remove portions of a report. Emphasising the principle of open justice, he said courts should remain open to public observation, debate and criticism, and that constructive criticism of the judiciary should be welcomed.
If a person commits contempt, the court can take action under the Contempt of Courts Act, he said. However, this is different from directing the media not to report something or to report it in a particular manner. Justice Oka warned that issuing gag orders against the media would backfire and only worsen the situation.
He said such orders raise concerns under Article 19(1)(a) of the Constitution and could sometimes create an impression that the court had something to hide or conceal.
Justice Oka also criticised investigating officers and senior police officials for holding press conferences during ongoing investigations and disclosing details such as witness statements, identification of accused persons and the direction of the investigation.
Such disclosures, he said, could prejudice an investigation by revealing its course and could also enable evidence to be destroyed or manipulated.
He further cautioned against police officials telling the media that an accused had confessed while in custody. The media, he said, should explain that such a confession ordinarily cannot be proved against the accused and is not admissible in evidence.
Justice Oka also criticised political statements during investigations declaring that an accused would be hanged or punished. Whether an accused is guilty and what sentence should be imposed are matters for the court, he said, with sentencing being the exclusive province of the judiciary.
He also referred to instances where public prosecutors speak to the media before a trial and disclose that they were personally asked by a Chief Minister or Home Minister to appear in a case. Such statements, he said, can send the wrong signals about the justice delivery system.
On the issue of media trials, Justice Oka said there may not always be a “trial by media” in the strict sense. However, police officers, politicians, prosecutors and lawyers can provide information to the media, which may then influence public opinion while a case is pending.
He clarified that media reporting of judicial proceedings is welcome when it is objective and accurate, but stressed the need for restraint among all stakeholders.
He concluded that the true remedy lies in self-restraint and educating all stakeholders involved.
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