How the media helped scuttle Gopal Subramaniam's appointment

The truly astonishing aspect of this episode is the fact that the Central Government achieved its goal without having a single one of its ministers or bureaucrats speak on the record.
PRASHANT THIKKAVARAPU on the ethics of using anonymous sources to smear someone

The last couple of weeks have been witness to a rather distasteful episode, wherein the Central Government managed to kill the appointment of eminent lawyer, Gopal Subramaniam (GS) to the Supreme Court through a process of continuous, anonymous leaks in the media until they embarrassed him into withdrawing his candidature.

For many in the legal fraternity, it was quite obvious that a BJP-led government would not allow GS to become a judge because of his fearless conduct as the amicus curae in the Sohrabuddin case but it wasn’t quite clear as to how the Government would go about the task of objecting to his elevation without rubbing the Supreme Court on the wrong side. Ultimately, instead of having the courage to write down its objections on paper and exercise its legitimate prerogative in judicial appointments, the Central Government withheld his file and began the process of selective leaks to the media. The exercise had its desired effect with GS pulling out of the race before the Supreme Court had an opportunity to reconsider its decision.  

The truly astonishing aspect of this episode is the fact that the Central Government achieved its goal without having a single one of its ministers or bureaucrats speak on the record. Reporter after reporter was only too keen to quote un-named “senior law ministry officials” or “highly placed sources in the government” to attack GS on the basis of equally anonymous reports of the Intelligence Bureau (IB) and the Central Bureau of Investigation (CBI). While anonymous sources are not new to the Indian media, there is no denying the ethical issues of using anonymous sources who have their own agenda.

Let’s have a look at some of the excerpts from the main reporting by the major newspapers in the controversy involving GS:

Perhaps the first report was the one which appeared in the Economic Times on June 11 titled “Government to rethink on Gopal Subramaniam, former Solicitor General’s nomination as Supreme Court judge”. This report quoted an anonymous law ministry official saying "suitability” question has arisen in the case of Subramaniam, and it is being “discussed at the highest levels”.

A report published in the Times of India on June 12 was titled “Centre cites 2G probe, Radia links to oppose Gopal Subramaniam's appointment as SC judge”. This report quoted another anonymous source as saying, “The Centre decided against Subramaniam’s name on the sole consideration that no appointment should be made to the Supreme Court which would cloud the high image and trust it enjoys in the public eye. The government decided not to take that risk”. The same sources were quoted towards the end of the report stating “Most of the allegations against him in the public domain have been confirmed from authorities concerned before taking a decision on his name”.

A third example is a story in the Indian Express on June 19, titled “‘Negative’ CBI report on 2G, Radia ‘link’ behind govt rejection of Subramaniam’s elevation to SC”. The story began with this paragraph: “A “negative” report by the CBI was apparently behind the government’s rejection of former Solicitor General Gopal Subramaniam’s elevation as a judge of the Supreme Court.” Nowhere does the story identify the author of the CBI report or the persons in the Law Ministry and the Central Government responsible for taking a call on the alleged negative report. Thus, once again all sources were anonymous leaving the field wide open for plausible deniability.

A fourth example and this one is particularly surprising, is the story carried by the Hindu on June 27, titled “Govt. got ‘overwhelming evidence’ of Subramanium’s unsuitability”. The Hindu which is by most standards a conservative paper when it comes to reporting gossip is quite careful about casting aspersions on otherwise respectable people. In this report, however, the story relies entirely on anonymous sources who “claimed that the government rejected his candidature after it got “overwhelming evidence” that indicated his unsuitability as a judge for the country’s top court.” Not only was there no explanation on the criteria used to judge his unsuitability but the Hindu dropped no hint about the identity of the source who obviously used the reporters to cast an overwhelming suspicion on GS.

Unlike India, where the practice of using “anonymous sources” is almost never questioned, the issue of “anonymous sources” is considered to be an ethical minefield in the West with even cub reporters being taught the ethical issues involved in using such sources. Take for example the following excerpt from the NYU Journalism Handbook for Students on Ethics, Law and Good Practice: “Except in rare instances, a reporter should not publish an anonymous quote or statement from a source that is critical of another person. Generally speaking, if someone is unwilling to put his name to a critical statement about another person, the reporter shouldn't use it.”

The real world, outside the classroom is of course more complicated with even the venerable New York Times (NYT) being severely criticised for its repeated use of such sources, especially when the subject of the reporting is an individual and not the government or an institution.

In one such criticism by Margaret Sullivan, the Public Editor of the NYT, the editors and reporters of the newspaper were reminded that “The Times’s “Manual of Style and Usage” calls it “a last resort,” noting that anonymous sources are to be used sparingly, only when the information cannot be provided any other way, and certainly never to smear anyone.” (emphasis supplied) Another express prohibition was against direct quotations from anonymous sources. The manual states, “The vivid language of direct quotation confers an unfair advantage on a speaker or writer who hides behind the newspaper.”

In another column, Sullivan pointed out that most readers do not like anonymous sources and said, “But for many readers, anonymous sources are a scourge, a detriment to the straightforward, believable journalism they demand. With a greater-than-ever desire for transparency in journalism, readers see this practice as “stenography” — the kind of unquestioning reporting that takes at face value what government officials say” and concluding with “But readers are right to protest when they see anonymity granted gratuitously. That’s happening too often. It’s time, once again, to pull in the reins.”

Each and every news report on the GS affair, mentioned above, has failed the NYT test for ethical reporting on the basis of anonymous sources. Technically, none of these reporters are in breach of any of the norms laid down by the Press Council of India (PCI) because the PCI code does not cover the ethics of using anonymous sources apart, of course, from maintaining the confidentiality of such sources. But there is something intuitively wrong about charging a man with a crime without revealing the identity of the accuser or the key witnesses. The journalists who aided and abetted the Government in attacking and embarrassing GS into withdrawing his name, should remember that a free judiciary is necessary to protect a free press. An apology and admission of a failure of journalistic ethics may be a first step in regaining the credibility lost by these reporters in the eyes of the legal fraternity.

The writer is a Delhi based lawyer.

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