Finally, the Wikimedia Foundation has buckled to the demands of the Indian legal system. To secure a hearing, it has withdrawn global access to a page commenting on legal proceedings in a defamation suit filed by news agency ANI. It’s a terrible precedent, but big brands do crumble when they are threatened with withdrawal of access to the huge Indian market.
Even Blackberry buckled after the 2008 Mumbai attacks, which were coordinated using its secure messaging system. End-to-end encryption was the brand’s USP, which it surrendered under pressure from the Manmohan Singh government. The self-inflicted wound helped destroy its business. On the contrary, Apple refused to help the US break into a terrorist’s workplace iPhone in 2015-16, thus improving its standing with customers.
However, those precedents concerned serious incidents of terrorism. The ANI case in the Delhi High Court concerns the standing of a news agency, which Wikipedia suggested could have been biased. The perception is not unique: the same opinion has been widely shared for years on social media and the press. Besides, the issue is not of comparable scale, unless ANI is deemed to be an institution of national importance. Even PTI, as old as independent India, has never enjoyed that honour.
A lower court ordered Wikimedia to reveal the identities of editors who handled the apparently defamatory material. In high dudgeon, the high court made it clear that Wikimedia would not be heard unless it complied. And the defendant objected, quite rightly, that it would be a bad precedent.
The law of the press in India holds the executive editor, the resident editor and the reporter of a publication liable for defamation, but the nature of media has broadened. Wikipedia is not the same as a newspaper, whose content is vetted by a top-down chain of command. It is now the sum of human knowledge, and it owes its credibility to an impersonal, classless system of checks and balances, in which volunteer editors vet each other’s work anonymously.
Not foregrounding the public standing of editors brings a kind of egalitarian rigour to Wikipedia that even academic publishing does not have. To expose editors by court order would disturb a delicate balance. And when editors play safe, powerful interests get away with murder.
Further, the high court objected that by commenting on the credibility of the legal process, the offending page titled ‘Asian News International vs Wikimedia Foundation’ disturbed the principle of sub judice and influenced its own deliberations. The principle is never questioned, though it is both ineffective and problematic in an imperfect justice system.
The principle of res sub judice, which discourages public comment on cases in progress, derives from English common law and is peculiar to the Commonwealth nations. Significantly, the courts of many functioning democracies, like France and Germany, get along fine without explicitly imposing this rule.
The principle was adopted to assure fair trial by cutting out external influences like media coverage and focusing the attention of judges and juries exclusively on the evidence. In a perfect world, it would prevent trial by media and give the courts the exclusive right to adjudicate. But is it useful in an imperfect legal system? It may serve the courts well, but does it serve public interest?
The standout flaw of the Indian judiciary is justice delayed. It happens in serious public interest matters like the conspiracy cases concerning Bhima Koregaon, the Delhi riots and the Babri demolition, and in utterly insignificant cases too.
From personal experience in Delhi courts, I know of a criminal case in which a municipal gardener was accused of stealing a light bulb and found innocent decades later. Another case was fought by a senior citizen whose long-dead grandmother had filed the suit in her time, concerning the ownership of a coffin-sized space in her shop in Chandni Chowk, which she had been so rash as to sublet. That was when tramcars plied in old Delhi. The ownership of this tiny property remained undecided in the 21st century.
Legal delay has consequences that have been discussed to death but live on. The gigantic case backlog, which the judiciary bears with self-congratulatory stoicism, is a direct consequence. Another is the huge number of undertrials, approaching the population of Chennai.
Meanwhile, another demographic has been surging: the community of lawyers and advocates expert at seeking adjournments to delay verdicts adverse to their clients. They have no desire to win cases. They lose them after buying their clients time, even a decade or two. CJI Chandrachud has spoken of tightening norms to discourage the practice. His speeches are unimpeachable.
During the long pendency of cases, the principle of sub judice can be invoked at any time to protect courts from criticism. But ironically, it is not a reliable deterrent. In sensational cases, where public interest turns into sick fascination and judges themselves become actors in courtroom dramas, the principle of sub judice just falls by the wayside. That happened in the Arushi Talwar and Nithari murder cases, in which TV anchors became judges, jury members and executioners.
So, is the principle worth protecting at all? CJI Chandrachud has now revealed that the Ayodhya judgement was divine revelation. Had we known this at the time, the public could have been spared the trouble of harbouring unrealistic expectations from courts.
Court proceedings are being televised because transparency is intrinsically better. Indeed, cases like the Jain diary hawala scandal of the early 1990s, which involved the tallest politicians, would not have moved without pressure from an informed public. The same principle could bring down the smokescreen of the doctrine of sub judice.
(Views are personal)
Pratik Kanjilal
For years, the author has been speaking easy to a surprisingly tolerant public
(Tweets @pratik_k)