Trial by Media

Trial by Media


I have watched recent media trials, in particular, that of Rhea Chakraborty in the Sushant Singh Rajput death case, with growing disbelief. While media houses are known to take liberties in commenting on matters sub judice, what we are currently witnessing is quite unprecedented. Certain media houses have begun conducting a parallel trial, “testifying” witnesses on camera, bringing in the public domain statements of witnesses, confessions, details of forensic reports, evidence which would ordinarily be a matter of trial and would form part of the investigation report to be dealt with by the court. Guilt has been pronounced even before the courtroom trial has begun. They justify it on ground of failure of the criminal justice system.

If you won’t do your job, I will do it for you.

But that’s not the answer.

Following this case, eminent legal luminaries of India gathered together to discuss the “Pros and Cons of Trial by Media.” The topic itself is barely credible. Are we really debating whether an accused person deserves to be tried by trained judges instead of an over-enthusiastic media?

Below are 5 reasons why Trial by Media is not the answer to India’s ailing criminal justice system-

1. It’s illegal –

Trial by Media amounts to criminal contempt of court. In 1969, the Supreme Court (A.K. Gopalan v. Noordeen 1969 (2) SCC 734) settled the law by stating that a publication made after ‘arrest’ of a person could be contempt if it was prejudicial to the suspect or accused. This continues to be the law as of today but for sec. 3(2) of the Contempt of Courts Act, 1971 under which prejudicial publications amount to contempt of court if a criminal proceeding is pending- i.e. if charge-sheet or challan is filed or summons or warrant are issued by the Court. It is well established that publications that prejudice a trial are prohibited during pendency of proceedings. The only question is what should be the starting point of such pendency- an FIR, an arrest or submission of a charge-sheet?

2. It’s not fair, just or equitable –

While the current Contempt of Courts Act grants immunity to publications (even if they prejudicially interfere with the course of justice in a criminal case) until a chargesheet or challan is filed or until summons or warrant are issued, the fact that it is legal to comment at the start of criminal proceedings, does not make it just, fair or equitable. Aarushi murder case is a glaring example of media’s unfair overreach. In such instances, general public is induced to believe in the complicity of the person indicted by the media which puts undue pressure on police investigation. The fact that every accused is entitled to a fair procedure and is presumed to be innocent till proved guilty, is ignored by the media when it presents facts which are often distorted, unverified and based on hearsay. Irreparable harm can be caused to a person’s reputation by prematurely judging him or her guilty. In 2006, the 200th Law Commission Report raised the concern whether it is fair, just and equitable that publications obstructing the course of justice have been given immunity under Section 3(2) of the Contempt of Courts Act only because the publication was made before the filing of a chargesheet. Taking into account the law in most countries around the world which says that as soon as criminal proceedings are imminent, media coverage should stop, the Law Commission recommended ‘arrest’ as the starting point of the media ban. The Report is still pending before the Parliament. Not surprisingly, the prejudicial media coverage in Sushant Singh Rajput case has led to the filing of several petitions seeking a reading down of section 3(2) of the Contempt of Courts Act to deem that a matter be considered sub judice as soon as an FIR is registered against a person.

3. It can prejudice a trial and obstruct administration of justice –

Publications which refer to character, confessions, hearsay, photographs that may hinder proper identification in an identification parade, comments judging the guilt or innocence of the accused or discrediting witnesses and the recent astonishing phenomenon of media interviewing potential witnesses are examples of publications that have a prejudicial impact on the not only on the suspects, the accused, witnesses, but also Judges and interfere in the overall the administration of justice.

4. It’s irresponsible journalism –

Often media exposures have made the mighty and powerful personalities stand before the law. Public awareness created by the media has often ensured just and fair treatment to seekers of justice who perhaps could not have been heard without support from the media. In the Jessica Lall case, media activism led to speedier progress of the trial. However, if a criminal trial moves from court rooms to news rooms and news becomes an instrument of entertainment rather than information running real life crime thrillers for the entertainment of the general public, we must worry. The Press Council of India, a body that defines ethical standards of journalism, has declared that journalistic norms have been violated in the Sushant Singh Rajput case and that many media outlets are in contravention of the norms of journalistic conduct framed by the PCI.

Abhishek Manu Singhvi has recently stated that “Indian news has plummeted in the wrong direction of the equation between sense and sensationalism, news and noise, between civility and chaos and between balance and extremism.

5. Media trials cannot repair an ailing criminal justice system –

Senior advocate C. Aryama Sundaram recently stated that media has started portraying itself as a court of public opinion and has made itself to be a decision-maker of what public opinion ought to be. “The media is doing that because the public has lost faith in looking anywhere else.” However, loss of faith in the criminal justice system does not mean that criminal trials move from courtrooms to newsrooms. If we want to give voice to public opinion in some way, media trials are not the answer. Eminent jurist Fali Nariman asks whether it is time that India considers re-introducing the jury system in criminal trials which was abolished by the 1973 Code of Criminal Procedure. He said, “perhaps we were too brash in abolishing the jury system. Because it is the jury which represents the people in a criminal trial… We have to seriously think about whether we should have a panel – not a jury perhaps – (but a) a panel who are disinterested and who would give their verdict. Because you can’t prevent the public from forming an opinion.

So what do you think?

Should India have a jury system?

Should media coverage stop at the time an FIR is registered? Or when an arrest is made? Or (as the law stands today) when a charge-sheet is filed?

About the Author : Surabhi Agarwal, the founding partner of Parikh & Parikh, Agarwal & Associates, is a former General Counsel and has several years of experience working with blue-chip fortune 500 MNCs and Indian companies which included reputed media house Indian Express Newspapers.

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