Saturday, April 16, 2011

FAIR TRIAL BY COURTS & MEDIA MUST GO ON

FAIR TRIAL BY COURTS & MEDIA MUST GO ON
Without active and positive participation of media, the mission of fair trial and justice cannot be achieved. Though one sided uncontrolled or unedited telecast or propagation of news including sex-scandals, scams and sting operations for the vested interests of big capital or corporate houses, may prove to be fatal for ‘freedom of speech and expression’ and result in miscarriage of justice.

The right to freedom of speech and expression can be restricted by law only in the “interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” Freedom of press cannot be suppressed by pleading the individual’s right to privacy and right to a ‘fair trial’. Fair trail means trial before an ‘impartial Judge’, a ‘fair prosecutor’ and peaceful judicial atmosphere without any bias or prejudice for or against the accused. Though, impartial judge, fair prosecutor and/or judicial atmosphere without any bias or prejudice are not available all the time.

But the question is what would have been the fate of Priyadarshini Mattoo, Jessica Lal, Nitish Katara, and Bijal Joshi case, if media remained silent spectator of injustice? Needless to underline that role and responsibilities of aggressive media, generating unwarranted controversies and clouds of confusions like an unruly horse also needs overhauling and reconsideration.

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Undoubtedly the Mass media has enormous power to reach to the world, which should be exercised with a great degree of care and responsibility because it is believed to be accurate by masses hence the professional limits must not be transgressed. Media has right and duty to raise issues of public concern and national interest and citizens also have right to know about investigation or delay in investigation or soft-Pedaling on investigations in matters of social concern and importance. In pending cases the media may report the proceedings fairly, truly, faithfully and accurately without any bias towards anyone with a fair comment to avoid action of defamation, injunction or contempt of court. Press must remember that public interest or the right to know cannot outweigh or shake the century old structural foundations of an impartial administration or justice delivery system.
Hon’ble Supreme Court observed that “the reach of the media is to every nook and corner of the world, particularly these days when we have 24-hour news channels and webcasts on the Internet. A large number of people tend to believe as correct that which appears in the print or electronic media. For these reasons alone, the mass media has to be circumspect while dealing with news.” (Rajendra Sail v. M.P. High Court Bar Association, (2005) 6 SCC 109) But “unfortunately, it is not realized that any item of news telecast in the channels would reach persons of all categories, irrespective of age, literacy, and their capacity to understand or withstand. The impact of such a telecast on the society is phenomenal.” (D.N. Prasad v. Principal Secretary, 2005 Cri LJ 1901)
The Hon’ble Full Bench of Delhi High Court symbolized the Press like ‘Nuclear power’ and observed that “the power of the Press is almost like nuclear power, it can create and it can destroy. Keeping this in mind, it is imperative for the media to exercise due care and caution before publication of a potentially damaging piece. It was said that such news reports are like a loaded gun and it may not be appropriate for the media to contend that it not know that the gun was loaded. (Surya Prakash Khatri Vs Smt. Madhu Trehan, 92 (2001) DLT 665 (FB)
Media may influence, disturb or confuse Judges
Cardozo, one of the great Judges of American Supreme Court in his "Nature of the Judicial Process" observed that the judges are subconsciously influenced by several forces. Supreme Court of India has also expressed a similar view in P.C. Sen In Re: AIR 1970 SC 1821 and Reliance Petrochemicals Ltd. v. Proprietors of Indian Express 1988 (4) SCC 592.
The Indian courts have deprecated the ‘yellow journalism’ and sting operations several times with a red caution and helplessness “curse the day, when a judicial functionary will have to render decisions with one eye on the headlines in the media next morning. Loathe the day when such opinion makers can even indirectly influence the decision who must be bound only to the law and his own conscience.” (Shaji V/s. State of Kerala, 2005 (4) KLT 995, Para 12)
It was seriously apprehended because “judges are also human beings and when hue and cry is made by the media it is possible that the equilibrium of a Judge is also disturbed.” (Indian Council of Legal Aid and Advice v. State, Delhi High Court in WP No. 17595/2006 decided on 27th November, 2006)
While speaking on media trail at Banglore in 2006, Ex-Chief Justice Y.K.Sabharwal confirmed that “these are matters which will have serious reflections on judiciary. We can’t ignore them. Think of the person to whom injustice is caused by this. If this continues, there can’t be any conviction. Judges are confused because the media has already given a verdict.”

Few years back While granting bail in Perveen Malhotra Vs State (Delhi Administration) Cr.M.(M) 161/90 popularly known as ‘whisky burning case’ Hon’ble Justice Y.K. Sabharwal of Delhi High Court said “It could be comprehended that cassette may be an important piece of evidence and may come up for consideration before a court of law. Doordarshan ought to have exercised restraint and not displayed it. At this stage I wish to say nothing more that let there be trial by court and not by media, be it Doordarshan or press.”
Apex Court also declared that “a trial by press, electronic media or public agitation is the very antithesis of the rule of law.” (State of Maharashtra Vs Rajendra Jawanmal Gandhi, (1997) 8 SCC 386)
Sensationalized journalistic adventures and courts displeasures

Hon’ble Justices of Apex Court expressed their ‘displeasure’ with a caution to note that these types of articles appearing in the media would certainly interfere with the administration of justice. We deprecate this practice and caution the publishers, editors and the journalists who were responsible for the said article against indulging in such trial by the media when the issue is sub-judice. However to prevent any further issue being raised in this regard, we treat this matter as closed and hope the other concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice.” (M.P. Lohia V/s. State of West Bengal, AIR 2005 S.C. 790)

But unfortunately the courts had to again express their serious and strong displeasure about investigation lapses by writing that “the Fourth Estate does not seem to realize the irreparable damage inflicted on the victim of crimes and the alleged culprits and those close to them through the sensationalized journalistic adventures. Truth is very often surpassed, exaggerated or distorted to add flavors and spice to the stories. Trial by the media can do more harm than good to the society at large. Instances are not rare when test parades are reduced to mere farce due to the injudicious publicity given to the alleged assailants by publishing their photographs. Every such act of adventurism exert unnecessary pressure on the courts which are to eventuality try the alleged offenders. The fickle minded pulse which has been conditioned to believe a particular version through a calculated process of media in doctrination will be loath to accept a different conclusion. Hence, if the court which finally tries the alleged culprit were to ultimately record an order of acquittal for want of legal evidence before it, it may not be only of place for the public at large to conclude that the verdict of the court is wrong. They may even attribute motives in the presiding Judge. No disciplined society which believes in the rule of law can afford such state of affairs to come to stay. We wish to express our strong displeasure at the increasing trend of investigation lapses and trial by media in respect of matters which are sub-judice. After the case under investigation is seized by the court, it is not open for the investigation agency or other busy bodies to given their own versions about a crime and influence the mind of the public without realizing the worth or otherwise of what has been collected during investigation and placed before the court concerned. Lapses in this regard will be viewed seriously and the erring police officers and media persons will be proceeded against appropriately.” (State of Kerala Vs Poothala Aboobacker, 2006 (2) KLD (Cri) 482.

Hon’ble Supreme Court clearly stated that it would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers for the Court. Media should perform the acts of journalism and not as a special agency for the Court. The impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt, regardless of any verdict in a Court of law. This will not be fair. (R.K. Anand v. Delhi High Court (2009) 8 SCC 106)

Conscious or unconscious press(ure)

It was once again explained about ‘over publicity’ that “judiciary can’t function properly if the press is calculated to disturb the judiciary in the performance of its duty and capacity to act solely on the evidence placed before it. …….. It is the duly of the courts to decide criminal cases; it is no part of the duty of newspapers to take up that function in the name of serving public cause. Free trial is an impartial and open trial conducted by an independent Judge free from prejudice and after considering all the available evidence which is properly submitted before him. Publicity to trial is, no doubt, one of the means of ensuring fair trial for, if publicity is present, the judge would be careful in acting free from bias, prejudice or illegality. But it is well recognized that over publicity of crime cases may prejudice the trial inducing feeling of hostility among members of the public and thereby consciously or unconsciously building up pressure on the court. This is so even in a country like ours where trial is not by jury bent by legally trained judges. Such over publicity may also deter witnessed from going to the court or sometimes from speaking the truth. It may affect a proper, just and truthful investigation. This is true of publicity at the pre-trial or investigation stage also. The press has, no doubt, the right and duty to inform the public about crimes and bare facts relating to investigation arrests and the like. But excessive publicity with all lucid details, interviews of witnesses, accused or investigating officers tend to prejudice issues which, in the final analysis are within the jurisdiction of the court to decide. In relation to the present case and some other crime cases in the recent past, the mass media has been giving tremendous publicity ………. Introspection by the press with a view to fulfill its true role with the limitations set by law is caused for, heeding the caution that otherwise it is possible to poison the fountain of justice before it begins to flow.” (Kannan V/s. State of Kerala, 1984 KLT 412)

Extend cooperation and ensure fair investigation
Justices P. Sathasivam and Swantanter Kumar in Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi) accepted that media reports on Jessica Lall trial did create “certain confusion” in the mind of public but did not prejudice the court and sought Media’s cooperation though with a caution by saying “we would certainly caution all modes of media to extend their cooperation to ensure fair investigation, trial, defence of accused and non interference in the administration of justice in matters sub-judice.”
Apex Court held “despite the significance of the print and electronic media in the present day, it is not only desirable but least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.”
Balancing the freedom of Press and individual’s rights the court propounded that “presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution [Anukul Chandra Pradhan v. Union of India & Ors. (1996) 6 SCC 354]”
Fair trial by courts & media must go on
It is true that dignity of Courts must be maintained, which is one of the cardinal principles of rule of law but in a democratic country the fair criticism or factual reporting on the administration of justice should not be suppressed under the double edge sword of contempt of court. Without Media’s positive role the investigation in 2G spectrum, Common wealth Games, Adarsh Housing Scam, illegal mining, Hawala rackets, rampant corruption, electoral reforms, innocent prisoners languishing in jails, and other matters of national significance cannot even be imagined. Let the Press expose the system, which is breeding institutional corruption and stinking like a henhouse.

Matters relating to judicial indiscipline, dishonesty, indirect corruption, undue favours to kith and kins, ‘misappropriation of provident funds’, ‘cash at door step’, misuse of powers and miscarriage of justice (social-economic-political) etc can never be out of focus of media lenses. Let there be ‘fair trial’ by courts as well as media in protecting the basic constitutional rights of the people of India at any cost, what so ever it may be.

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