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The disruption caused by the COVID-19 pandemic is the first knock signalling the emergence of a new world order.
Change is the only constant and navigating change to add resilience and value to our enduring institutions, like the judiciary, is the need of the hour.
Social media has transformed the way society communicates. Its vast technological outreach is a great educational forum to garner knowledge, update skills, and open the mind and heart to the wonders of the world.
Twitter, Facebook, WhatsApp, Instagram etc. have revolutionised the way we share information, communicate and make decisions. India recorded 34.4 million Twitter users in 2019, and 460 million active internet users. The opportunity for constant participation in national conversations has impacted almost every sphere of life, and the judicial and legal professions are by no means exempt from these developments.
There is no denying that the reach of social media presents unprecedented opportunities for judges and lawyers to stay connected with the community they serve. But there are risks and challenges inherent in the use of social media by the judiciary which highlight issues of integrity and ethics. Judges have to be extra vigilant and exercise selective restraint to perform the solemn duty in the ‘Temple of Justice’.
Support of judicial use of social media is made apparent in the words of Union Law Minister Ravi Shankar Prasad;
“I am a great supporter of social media and freedom. I know it is empowering. but (there) is a dangerous trend. Judges must be left completely independent to give judgement as what they think is the correct mode in accordance of the rule of law.”
This comment refers to the growing tendency among Senior Advocates to write articles in national newspapers, which are subsequently shared and commented on via social media, raising doubts about the Supreme Court’s efficacy to deal with a particular case. Coincidentally, these articles are published the day the Supreme Court is scheduled to hear a particular case, presented to them by the very author of the article.
Exposure to the public’s remarks and sentiment towards a case before trial can have an effect on judges. They are human, after all. Judges need to be aware that it is not just their active use of social media that requires careful consideration, they also need to be conscious of what information they receive and by whom.
During the recent controversy over Justice Arun Mishra hearing an appeal of his own judgment, he publicly condemned articles he believed to be sponsored by lobby groups.
Judges also need to be careful about how they are perceived on social media. The oft-repeated maxim – ‘Justice should not only be done but also appear to be done’, clearly puts the onus on the judges, on their demeanour, overall communication, social etiquette and conduct. A solemn denial of social media is not feasible but a selective, well-intentioned approach is the need of the hour.
In 2011, the International Bar Association Legal Policy & Research Unit (IBA LPRU), formerly known as the IBA Legal Projects Team, carried out a global survey to consider the impact of Online Social Networking (OSN) on the legal profession.
61 Bar Associations - including the Bar Council of India (BCI) - from 47 jurisdictions responded. The survey revealed that judges’ use of social media raised specific concerns. While only 15% of respondents felt lawyers’ use of OSN negatively affected the public image of the profession, 40% responded that judges’ use of OSN negatively affected public confidence and undermined judicial independence. A balance must be struck between the greater accessibility to justice social media provides and the damaging effects widespread criticism from ill-informed commentators can have on public confidence in the judicial process.
In Andre Paul v AG Trinidad, Lord Atkin astutely noted that “Justice is not a cloistered virtue; she must be allowed to suffer in the scrutiny and respectful, even though outspoken, comments of ordinary men.”
While this speaks volumes to the power social media has to give citizens the platform to scrutinise the judiciary, judges must be cautious about ‘taking the bait.’ Twitter’s 280 character limit makes it difficult to explain nuanced points of law or complex moral decision making. Judges seeking to use social media to explain their judicial process should be confident that their doing so will have an overall positive impact. For controversial matters, the short-lived nature of social media means it may not be the appropriate forum.
In these challenging times, when social distancing is a strategy of self-protection, it is equally relevant to enforce social media distancing as a potent approach to preserve the sanctity of sacrosanct institutions like courts of law.
Judges who decide to enter a public discussion on social media must be conscious that they open themselves up to harassment. The Chief Justice of India Justice Sharad Arvind Bobde has spoken openly about judicial harassment online, astutely noting that “criticising the judge and not the judgment is defamation.” Judges' reputations are getting torn apart under the guise of ‘freedom of speech.’ This kind of judicial condemnation is a new feature of the social media world, and Justice Bobde himself has admitted the difficulty in addressing this problem.
So in light of the Chief Justice of India’s confession that “we don’t know what steps to take”, what is the best way to proceed? The United Nations Office on Drugs and Crime (UNODC) Guidelines on the Use of Social Media by Judges 2019 is a good place to start.
These guidelines illustrate the pros and cons of the use of social media and provide guidance and training frameworks which are consistent with international and regional standards of judicial conduct and ethics. A broad range of topics are covered; risks and opportunities in judges' awareness of social media, judges’ identification on social media, content and behaviour on social media, friendships and online relationships, privacy and security policies and training.
For an Indian perspective, it is worth drawing attention to the BCI’s responses to the IBA’s 2011 survey. The BCI held the view that it was unacceptable for lawyers to post comments or opinions about judges before whom they are appearing, their clients, cases and/or opposing counsel on online social networking sites. The BCI also responded that it was not proper for judges to post comments or opinions about lawyers and parties appearing before them, or while cases were pending.
This would be one way to combat the perceived risk of judicial influence before trial, and may also take the sting out of the harassment judges receive online for controversial hearings. The IBA’s International Principles on Social Media Conduct for the Legal Profession can be found here. Given how quickly technology develops, the IBA is planning to update these principles to ensure that they accurately reflect modern society.
Social media is a great connector, however, if it overwhelms all other aspects of propriety and duty, it can become disintegrative and overflow with unnecessary impressions that threaten wholesome and fair understanding of judgements.
The IBA Principles and UNODC Guidelines address the need for the judiciary to have a framework to regulate and guide social media engagement. Nevertheless, effective implementation by different judiciaries requires training and regular updates to keep up with ever-changing technologies. The IBA is creating modules for training for all members of the legal profession that can be delivered through interactive workshops with social media experts.
It is in the interest of all stakeholders that judges conduct be always above board and balanced. Unspoken, ethical conduct with sufficient indicators that define social etiquette will ensure dignity for judges and judgments.
Anurag Bana is a Senior Legal Advisor, Legal Policy & Research Unit, International Bar Association, London; Collette Allen is a Legal Intern, Legal Policy & Research Unit, International Bar Association, London.
The views, opinions and observations expressed in the article are those of the authors and do not reflect those of the International Bar Association or any other organisation.