By Sanjay Pinto
A top cop in Tamilnadu recently confided in me that he has stopped
watching news channels, because he sees Television as ‘chewing gum for
the eyes’! The antipathy for the medium usually stems from accusations of
sensationalism and what has become almost a cliché – ‘trial by the media’. Both
these charges are not without merit but are not the exclusive preserve of the
electronic media; newspapers, magazines and their online cousins can all be
looped in as co-accused!
As a journalist with a legal academic background and experience in
covering hundreds of cases – sensational and others, throughout my career, I do
believe the charge calls for serious introspection in our newsrooms.
Free speech, that the media enjoys and extends to readers and viewers
may be a fundamental right. So is the right to a fair trial; and the right to
privacy, flowing as they do from the broader Right To Life under Article 21 of
the Constitution. The apex court has repeatedly held that personal liberty is
an essential ingredient of the Right To Life. How do we dovetail the Right To
Freedom Of Speech and Expression with The Right To Life in this context?
And the principle of jurisprudence that conviction can only be by procedure
established by law? Not by contemporaneous reporting. Not by a media campaign.
Not based on versions and perceptions of political correctness. Remember that
brilliant comment of former US Supreme Court Justice Oliver Wendell
Holmes Jr : “ The right to swing my fist ends where the other man’s nose
begins.” That logic often eludes Editors and Reporters today as they grapple
for scoops and headlines.
Quite like the modern day unwritten ‘rule of the road’ (Not the
A.G.Gardiner masterpiece!) that the bigger vehicle is always the offender in an
accident, there is an almost frenzied presumption and even premature pronouncement
of guilt of an accused by sections of the media to project themselves as
crusaders against injustice of their definition. Take the case of the Aarushi
murder. Sections of the media conducted their own investigation, trial and came
up with their own verdict! A sped arrow that made many of them eat humble pie.
Or the case of a school teacher in North India who was erroneously and
recklessly implicated by some channels as an accused in a sex racket. For
a journalist, there is always the protective veneer of privilege when it
comes to a truthful and balanced reporting of court proceedings. For an
aggrieved party, the Press Council can admonish and pull up an errant reporter
and even direct the publication of an apology or clarification. But more often than
not, the clarification does not get the same prominence as the offending
article but is tucked away in a corner like a statutory warning on a
cigarette pack! Even the Indian Law Commission had taken note of this
trend in its Report No.200 in 2006.
And if you thought celebrities had to only watch out for the paparazzi,
you are off the mark! I have observed a sort of lynch mentality, mob psychology
at play, when it comes to reporting on the rich and famous. So a BMW
owner/driver who runs over road workers sleeping on a pavement makes it to the
headlines and provides grist for a sustained ‘campaign’ and studio discussions
on why the police should register a case under Section 304 of the Indian Penal
Code for culpable homicide not amounting to murder . However, the same
hue and cry is not raised when a State Transport Bus driver mows
down ten pedestrians citing brake failure and is booked for a mere rash
and negligent act under Section 304 A of the Indian Penal Code. If this
is not double standards, what is? I most certainly agree with the dictum – ‘Be
You Ever So High, The Law Is Above You’. What I am opposed to is the hysteria
in jumping to conclusions of guilt just because an accused person is affluent
and influential. It is precisely this mindset that probably prompted
eminent lawyer Ram Jethmalani to remark in an interview to a colleague that “
some judges are playing to the gallery”. This was in relation to the repeated
denial of bail to high profile persons accused in the 2G case. Jethmalani’s opinion
may be debatable but there is no denying the fact that the atmosphere is
sometimes vitiated before or during the hearing of sensational cases, with a
section of the media perhaps unwittingly playing a role. Why else would cases
have to be transferred out of States to facilitate a free and fair trial?
Our Honourable judges may be made of sterner stuff. They may well be
able to insulate themselves from all the din and prattle emanating from OB vans
and studio discussions; newspaper reports and online surveys. Even recently
some of them said in open court that they are not affected or influenced by
what appears in the media. But surely, there needs to be an atmosphere of
judicial calm – something that the apex court had referred to in the Zahira Sheikh
vs State Of Gujarat case, without any force gnawing at the guaranteed right to
a fair trial.
That said, we must also understand what actually triggers a ‘media
trial’. It is shocking but true that there are Reporters who are
overnight assigned the Court Beat (often because the regular court scribe
is on leave) or those who troop to court halls whenever a
sensational case comes up (don’t forget television seldom affords the luxury of
beats. So a tv reporter ends up as a jack of all stories with little leeway for
specialisation, although there are honourable exceptions) who don’t quite
comprehend the distinction between a charge sheet and framing of charges,
between an interim injunction and a final order, between a conviction and
sentence and even between the CB CID and the CBI! How can you expect these
twenty somethings (and television channels are full of such byte
collectors!) to appreciate the finer aspects of Constitutional
guarantees? Or the balance of power in a democratic set up? Or the rights
of an accused? I can never forget an incident in Tiruchirapalli in Tamilnadu,
several years ago, where a battery of lensmen removed the cap of a
juvenile delinquent that he was using to cover his face. The school boy was
accused of performing a caesarean operation egged on by his over zealous doctor
father. Obviously, those who sought to reveal his identity had no clue about
the provisions of the Juvenile Justice Act that protect the identity of a child
in conflict with law.
The final word on what is sub judice and in what scenario it operates is still not out. Former Havard law school professor and former Law Minister Dr. Subramanian Swamy in a recent television interview made an interesting point. Sub judice, he says, applies only to countries that have the jury system. Not in India which does not have it. Also, the mob mentality is shared by media critics as well! Regular reporting of a sensational case can is construed as a media trial. It is not. The media has a right and a duty to enter a court hall and truthfully report the proceedings. Public confidence in the rule of law is necessary . That public confidence comes from what is viewed or read in the media. And if justice should not only be done but also seen to be done, journalists do have a locus standi!
It is no secret that the average citizen is quite disenchanted with ‘the
system’ – the judiciary included. When a case takes years to be decided, faith
in the law is shaken. In our country, anyone who does his duty or runs the
extra kilometre is branded an activist. When judges started taking suo moto
action on media reports and treating even postcards and inland letters
addressed to them by ordinary citizens as public interest litigations, society
was all praise. And the term ‘judicial activism’ was coined. I would like
to pose a question. What is the difference between media trial, as
it is loosely used, and media activism? When a responsible tv
channel – NDTV took up the Jessica Lal, Priyadarshini Mattoo, Nitish Katara
cases as a campaign, was that a media trial or media activism? Or quite
plainly, a media duty? Was that a pervasive influence of the media
detrimental to an impartial judicial making process? Did it prejudice the
truth before it was ascertained? Or did that facilitate the dispensation of
justice? Is public angst or hysteria a product of the media or does it exist
independently? Should the media steer clear of the popular clamour for
justice?
Yes, there is always the danger of the ‘caught on camera’ syndrome
being riddled with manipulation and incapable of withstanding forensic
and judicial scrutiny. Yes, there is the risk of an identification parade
bristling with practical difficulties, when the images of an accused person are
flashed ad nauseum. Yes, good old Prof. Henting was right – that it is better
to let ten men go scot free than punish one who is innocent. But the media must
be allowed to live up to its role – of being a voice for the voiceless, of
championing the cause of the underdog, of taking on the powers that be; and
sometimes even institutions. In the process, there is bound to be the
occasional crossing of the Constitional LOC! But editors must always remember
that their job is to tell the story not usurp the role of judges.
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