By
P.K. Ibrahim, Advocate, High Court Of Kerala.
Member, National Council, Peoples Union for Civil Liberties
advpkibrahim(at)yahoo(dot)co(dot)in
(Mob. 9447030386)
Media trial, both print and electronic, is an act designed to create a perception in the mind of the public, regarding the guilt of a person alleged to have committed a crime, which has the potentiality of influencing even the competent court adjudicating the matter in accordance with the procedure established by law. It is nothing but a pretrial by the media based on materials collected by it, without scrutinizing its evidentiary value required under law for its acceptance, and pronouncing judgment before the law takes its course. Such trials inflict irreparable injury not only to the person subjected to trial but also to the institution administering justice. One of the principles of natural justice is that the adjudicating authority must be impartial and must act without any kind of bias. The said rule has its origin from the maxim known as 'Debet Esse Judex in Propria Causa', which means that justice not only be done but should manifestly be seen to be done. This could be possible only when a Judge or an adjudicating authority decides the matter impartially and without any prejudice or bias about the case. In media trial, even the lawyers and judges get influenced and they approach the case with a preconceived notion thereby the principle that justice is not only be done but should manifestly be seen to have been done is observed in breach and the case is being tried in a hostile atmosphere.
Presumption of innocence is a human right. (See para-31, AIR 2004 SUPREME COURT 3249 "Narendra Singh v. State of M. P.”) In the media trial this human right find no place as it proceed to establish quilt determinedly. Right after the incident, the media begins its trial and the story is presented as if the accused is the real culprit. The news is celebrated and the price of the time slot for advertisement shoots up and media harvest money at the cost of one’s dignity, honour and right to life and liberty as guaranteed under Article 21 of the Constitution of India.
In our administration of criminal justice the primary burden is on the prosecution to prove accused guilty save when a statute displaces the presumption of innocence. An accused is presumed to be innocent unless the prosecution by producing evidence proves him guilty of the offence with which he is charged. Benefit of doubt belonged to the accused. Suspicion, howsoever grave may be, cannot take place of a proof. In "Valson v. State of Kerala", Supreme Court has held that a person has, therefore, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt( 2008 AIR SCW 5203 Para-33). Doubts must be actual and substantial .A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. Doubts would be called reasonable if they are free from a zest for abstract speculation. It must be free from an overemotional response. ("Valson v. State of Kerala" supra Para 34). In media trial, even the evidence not admissible in a court of law is given prominence, out of overemotional response to hold the accused quilty. There is thus travesty of justice in all fronts
“No person shall be deprived of his life and liberty except according to procedure prescribed by law” is a constitutional guarantee extended to all persons without any exception. The state prosecuting a person has therefore a constitutional obligation to ensure fair trial and make its procedure meaning full rather than reducing it as a mere mockery. This essentially means creation of an atmosphere that inspires confidence in the administering justice system. In the cases of media trial, the presumption innocence is overturned, and the person accused of an offence is made to stand for trial as convict. In such a state, what confidence it will inspire in the judicial system is a matter for any one to guess.
The role of the media in a democracy is to present facts or news and raise public issues to bring about public awareness to ensure good governance. Transparency and accountability is therefore applicable to all including the media which is said to be the fourth estate. The media being a watch dog of the society cannot afford to assume the role of an executioner. Unfortunately, whether deliberately or otherwise, in media trial, it is assuming the role of an executioner. The reason for such perception is its lack of sensitivity to the rights of the accused in reporting news about the crime and the accused, unmindful of its consequences in the administration of justice system.
The media plays significant role in the formation of public opinion. More credibility is given to printed and visual materials by the common man without realizing for a moment that the information supplied by the media is potential to cover up the true facts by misguiding and misleading them. In such traps even judicially trained people fell pray. On the face of a public opinion formed against an accused, it would be rather difficult to a judge to pronounce judgment, without staking the credibility of the institution.
Media trial at times have even resulted in denial of legal assistance to the accused. The public opinion generated by news coverage, have inhibited even lawyers to accept brief, much less a brief by way of legal aid, at the instance of the court. Thus an accused person is compelled to face trial without a competent lawyer of his choice to prove his innocence, thereby making the trial a farce and the finding of guilty in default thereof. Justice is made causality by non other than the media, which is supposed to stand for equity, justice and fair play.
Right to speech and expression, no doubt is a guaranteed fundamental right under Article 19(1) (a) of the Constitution of India but what is to be remembered is that that right is not absolute and unqualified. It is subject to reasonable restriction under Article 19 (2) of the Constitution. Contempt of Court Act is a legislation that imposes restriction upon the right to speech and expression. As per section 2 of the Contempt of Court Act, any act that interferes with administration of justice is a criminal contempt. Therefore, publications which interfere or tend to interfere with the administration of justice amount to criminal contempt under the contempt of court Act. But under section 3(2) of the Contempt of Court Act, 1971 read with explanation, a judicial proceeding is said to be pending only if charge sheet or challan is filed or summons or warrant are issued by the Court .Therefore publications made prior to the filing of charge sheet and or issue of summons by the court, cannot be called in question for contempt being a matter not sub-judice. The media making use of this loophole complete its trial simultaneously as the investigation progress and finally pronounce judgment on the day the prosecuting agency files its charge sheet. That is to say before the actual trial begins as contemplated in law, the media completes its trial leaving in real sense, to the court of law to pronounce the punishment. By any chance the court acquit the accused, the media will rise up in arms and exhort all to bombard the Institution for the “failure of justice”. Should this be allowed? If not what is the remedy?
It is not that the seriousness of the issue has not been brought to the notice of the Government. The government is well aware of the implications of media trial and its prejudicial impact on the suspects, accused, witnesses and even Judges and in general, on the administration of justice. In the 200th report of the Law Commission on Trial by Media, the Commission recommended to amend Explanation to sec. 3 prescribing the starting point of judicial proceeding in relation to the commission of an offence from the date of ‘arrest’ instead of the date of filing of charge sheet. This will do away with the media trial. But alas, like many other reports, this report of the law commission is also kept in cold storage. The apathy of the government indicates its insensitivity and lack of concern to the human right of the person unfortunately becoming victim to such high profiled cases of media coverage.
This inaction must be exposed and all human right activists and social groups having concern in the flow of pristine justice must collectively enforce the demand for an amendment to the Contempt of Court Act 1971 in the line proposed by the Law commission headed by Justice Jagannatha Rao.
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Presumption of innocence is a human right. (See para-31, AIR 2004 SUPREME COURT 3249 "Narendra Singh v. State of M. P.”) In the media trial this human right find no place as it proceed to establish quilt determinedly. Right after the incident, the media begins its trial and the story is presented as if the accused is the real culprit. The news is celebrated and the price of the time slot for advertisement shoots up and media harvest money at the cost of one’s dignity, honour and right to life and liberty as guaranteed under Article 21 of the Constitution of India.
In our administration of criminal justice the primary burden is on the prosecution to prove accused guilty save when a statute displaces the presumption of innocence. An accused is presumed to be innocent unless the prosecution by producing evidence proves him guilty of the offence with which he is charged. Benefit of doubt belonged to the accused. Suspicion, howsoever grave may be, cannot take place of a proof. In "Valson v. State of Kerala", Supreme Court has held that a person has, therefore, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt( 2008 AIR SCW 5203 Para-33). Doubts must be actual and substantial .A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. Doubts would be called reasonable if they are free from a zest for abstract speculation. It must be free from an overemotional response. ("Valson v. State of Kerala" supra Para 34). In media trial, even the evidence not admissible in a court of law is given prominence, out of overemotional response to hold the accused quilty. There is thus travesty of justice in all fronts
“No person shall be deprived of his life and liberty except according to procedure prescribed by law” is a constitutional guarantee extended to all persons without any exception. The state prosecuting a person has therefore a constitutional obligation to ensure fair trial and make its procedure meaning full rather than reducing it as a mere mockery. This essentially means creation of an atmosphere that inspires confidence in the administering justice system. In the cases of media trial, the presumption innocence is overturned, and the person accused of an offence is made to stand for trial as convict. In such a state, what confidence it will inspire in the judicial system is a matter for any one to guess.
The role of the media in a democracy is to present facts or news and raise public issues to bring about public awareness to ensure good governance. Transparency and accountability is therefore applicable to all including the media which is said to be the fourth estate. The media being a watch dog of the society cannot afford to assume the role of an executioner. Unfortunately, whether deliberately or otherwise, in media trial, it is assuming the role of an executioner. The reason for such perception is its lack of sensitivity to the rights of the accused in reporting news about the crime and the accused, unmindful of its consequences in the administration of justice system.
The media plays significant role in the formation of public opinion. More credibility is given to printed and visual materials by the common man without realizing for a moment that the information supplied by the media is potential to cover up the true facts by misguiding and misleading them. In such traps even judicially trained people fell pray. On the face of a public opinion formed against an accused, it would be rather difficult to a judge to pronounce judgment, without staking the credibility of the institution.
Media trial at times have even resulted in denial of legal assistance to the accused. The public opinion generated by news coverage, have inhibited even lawyers to accept brief, much less a brief by way of legal aid, at the instance of the court. Thus an accused person is compelled to face trial without a competent lawyer of his choice to prove his innocence, thereby making the trial a farce and the finding of guilty in default thereof. Justice is made causality by non other than the media, which is supposed to stand for equity, justice and fair play.
Right to speech and expression, no doubt is a guaranteed fundamental right under Article 19(1) (a) of the Constitution of India but what is to be remembered is that that right is not absolute and unqualified. It is subject to reasonable restriction under Article 19 (2) of the Constitution. Contempt of Court Act is a legislation that imposes restriction upon the right to speech and expression. As per section 2 of the Contempt of Court Act, any act that interferes with administration of justice is a criminal contempt. Therefore, publications which interfere or tend to interfere with the administration of justice amount to criminal contempt under the contempt of court Act. But under section 3(2) of the Contempt of Court Act, 1971 read with explanation, a judicial proceeding is said to be pending only if charge sheet or challan is filed or summons or warrant are issued by the Court .Therefore publications made prior to the filing of charge sheet and or issue of summons by the court, cannot be called in question for contempt being a matter not sub-judice. The media making use of this loophole complete its trial simultaneously as the investigation progress and finally pronounce judgment on the day the prosecuting agency files its charge sheet. That is to say before the actual trial begins as contemplated in law, the media completes its trial leaving in real sense, to the court of law to pronounce the punishment. By any chance the court acquit the accused, the media will rise up in arms and exhort all to bombard the Institution for the “failure of justice”. Should this be allowed? If not what is the remedy?
It is not that the seriousness of the issue has not been brought to the notice of the Government. The government is well aware of the implications of media trial and its prejudicial impact on the suspects, accused, witnesses and even Judges and in general, on the administration of justice. In the 200th report of the Law Commission on Trial by Media, the Commission recommended to amend Explanation to sec. 3 prescribing the starting point of judicial proceeding in relation to the commission of an offence from the date of ‘arrest’ instead of the date of filing of charge sheet. This will do away with the media trial. But alas, like many other reports, this report of the law commission is also kept in cold storage. The apathy of the government indicates its insensitivity and lack of concern to the human right of the person unfortunately becoming victim to such high profiled cases of media coverage.
This inaction must be exposed and all human right activists and social groups having concern in the flow of pristine justice must collectively enforce the demand for an amendment to the Contempt of Court Act 1971 in the line proposed by the Law commission headed by Justice Jagannatha Rao.
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