By Dr Swati Jindal Garg
American politician and statesman J William Fulbright said: “When public men indulge themselves in abuse, when they deny others a fair trial, when they resort to innuendo and insinuation, to libel, scandal, and suspicion, then our democratic society is outraged, and democracy is baffled. It has no apparatus to deal with the boor, the liar, the lout, and the antidemocrat in general.”
Even though the above statement was given years back, not much has changed. Indian democracy prides itself on the checks and balances it has imposed in order to ensure justice to all. But the fact is that people make judgments about a case based on its reporting in the media before the facts are heard in courts.
Taking note of this fact, a three-judge bench presided by Chief Justice DY Chandrachud recently said: “Media trials are liable to result in a deflection of the course of justice by impacting upon the evidence which would be adduced and its assessment by the adjudicating authorities.” The Court also warned that police briefings to the media about the investigation of crimes “must not result in a media trial so as to allow for the pre-judging of the guilt of the accused”. It directed the home ministry to prepare within three months “a comprehensive manual on media briefings by police personnel”.
The Court was dealing with pleas which raised the issue of procedure to be followed by the police in investigating encounters and the propriety and procedure governing media briefings by police personnel where a criminal investigation is in progress.
Whatever disagreement there may be as to the scope of the phrase “due process of law”, there can be no doubt that it embraces the fundamental conception of fair trial, with the opportunity to be heard. It is imperative that both the guilty and innocent parties are entitled to due process of law, a fair trial and a counsel. Most of all, they are entitled to fair treatment from the police. The law enforcement officer has the same duty as the citizen—rather, he has a higher duty—to abide by the letter and spirit of the Constitution and laws. He must not only be careful to obey the letter of the law, but be intellectually honest in the enforcement of it.
The apex court took due note of the fact that existing guidelines on the subject were prepared by the home ministry “over a decade ago on April 1, 2010”. The bench, which also comprised of Justices PS Narasimha and Manoj Misra, said: “Since then, with the upsurge in reporting on crimes not only in the print media but in the electronic and social media, it becomes extremely important that there should be a standard operating procedure which balances out all the considerations….”
It added: “There can be no denying the fact that the disclosure of an official version of the investigation would ensure against speculation on crime reporting, which may be of disservice both to the public interest involved and the interest of the accused, witnesses, prospective witnesses as well as victims and survivors of crime. There is in that sense a need to have a uniform policy which can be adopted for notifying nodal officers who would be available to share the official version of the stage of the investigation consistent with the need to ensure that the disclosure itself does not derail the course of the investigation.”
Ensuring that all the stakeholders get an adequate opportunity for a fair representation, the bench asked DGPs of all states to communicate to the ministry within one month “their suggestions for the preparation of appropriate guidelines”, after which the ministry will prepare them. Another interested party is the National Human Rights Commission.
The Court also said: “The nature of the disclosure cannot be uniform since it must depend upon the nature of the crime and the participating stakeholders, including the victims, witnesses and accused themselves. The age and gender of the accused as well as of the victims would have a significant bearing on the nature of the disclosure to be made as well. The guidelines must duly factor in the need to ensure that the disclosure must not result in a media trial so as to allow for the pre-judging of the guilt of the accused.”
Criminal law in India has certain fundamentals. For a proper redressal and access to justice, it is imperative that all these fundamentals are adhered to. These include:
- A guilty mind and a guilty act together constitute a crime.
- A mistake of fact is a defense in crime, but not a mistake of law.
- The law does not permit ex-post facto laws, which means that no one can be punished for an offence that is no longer recognised as the offence.
- Everyone shall be presumed innocent until proven guilty beyond a reasonable doubt.
- An accomplice is treated the same as the accused and given equal punishment under the criminal law.
- The rights of the accused before, during, and after trial are protected. He has various rights like the right to a fair trial, the right to bail, the right to free legal aid and protection against self-incrimination and double jeopardy, which can never be infringed upon by the authorities.
Statements given by the police—that generally don’t take into account the rights of an accused person—play a role in influencing the public mind. The media trial that ensues changes the lives of these accused forever.
Section 21 of the Human Rights Act, 2004, says: “Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing with the exception of the press and public which may be excluded from all or part of a trial in order to protect the morals, public order or national security in a democratic society.”
This right however, is not confined only to criminal cases. Whether a person is a defendant in a criminal case or a party to civil proceedings, they both have the right to a fair trial before a competent, independent and impartial court or tribunal established by law. Section 21 of the Act further provides that judgments and hearings must be public unless other laws (for example, child protection) provide otherwise.
The Indian media has seen significant growth in the past few decades and the total claimed circulation of publications during 2021-22 was 39,17,12, 282, according to the Office of Registrar of Newspapers for India. The role of the media cannot be undermined because of its massive reach. Over the last few years, however, the media has stepped out its domain and invaded that of the judiciary by conducting trials parallel with courts. It has assumed the role of a public court which fails to recognise the concept of “innocent until proven guilty” and “guilty beyond reasonable doubt”.
Media trials usually commence even before the courts can try the matter and investigate the matter on their own, coming to a conclusion where the public forms an opinion against or for the accused. This has a prejudicial impact on the actual trial, leading to infringement of the right to fair trial of the accused. While the public praises the media for raising awareness on important social issues, it can also be obsessively intrusive when it involves public personalities.
The latest order of the Supreme Court will go a long way in combating the problem of media trials and take us closer to achieving a fair justice system.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi