ವಾರದ ಬರಹ : writeup of the week

Media on trial

Driven by sensationalism

INDIRA JAISINGH, Supreme Court lawyer and a civil rights activist

While freedom of the press is vital to retain accountability in the judicial system, the thin line between reporting facts and expressing opinions on them is being increasingly crossed, as it happened recently in the Aarushi murder case. What about accountability to those whose reputations are being damaged in the process?

It spells disaster when the media tries to take on for itself the role of the justice delivery system. The law has always had an ambivalent relationship with the media. On the one hand, the requirement of open trials would demand unrestricted access to the press. One of the non-negotiable issues of the justice delivery system is that justice must not only be done, but be seen to be done. I have believed that the time has long come for court proceedings to be televised so that the nation can judge our judges in the same way that they now judge our MPs. The sunlight of the press is in and of itself a mechanism of accountability much needed in the judiciary. It is in the public interest therefore that the press is given pride of place in reporting on judicial proceedings.
There are however, very vital restrictions on this rule, which are as much in the public interest as the need for open justice. The press cannot be allowed to sit in judgment over matters of life and death for those facing a trial. It is for this reason that the law allows reporting of judicial proceedings but without comment while the case is being tried. This rule balances the interest of the public in knowing the truth about pending cases and the interests of an accused in safeguarding his or her reputation. Problems begin when the press does not stop at reporting but goes on to build theories of guilt, all this when a trial is pending and the accused is presumed innocent until proved guilty. There is a clear and well defined line between reporting facts and expressing opinions on them. This line has often been breached by the press. The rule therefore must be strictly observed in order to prevent any pre-judging of the issue. Indeed, so sacred is the right to a fair trial, that in the U.S. for example, where trial is by jury, in significant cases, jury members are not allowed to read the press or leave the court until the case is decided.
Thankfully, in India, we do not have jury trials, but judges are exposed to daily media coverage of pending cases in which the press has crossed the limits of its legitimate right to report. Judges may say they are brave hearts and not influenced by press reports, but these reports are intended to build up public opinion in a negative manner which by itself can influence the outcome of a case. An example of this is the SMS polls run by television channels on controversial issues. This is what happened in Afzal Guru’s case. All television channels ran polls on whether Afzal Guru should be given the death penalty, a first in Indian legal history, when an SMS poll could decide the penalty by influencing public opinion. That public opinion, in any case something not measurable by any means, did influence the outcome of the case is evident from the fact that the judges who decided the case said that the “collective conscience of society” was outraged by the attack on parliament! In a manner of speaking the judiciary itself has lowered the bar for itself by relying on what it calls the “collective conscience” of society.Right to privacy
While not minimising the role of the press as an instrument of accountability for the legal system, especially when other channels do not exist, it is also important to remember that there is an equally great public interest in protecting the privacy, dignity and reputation of individuals facing the law. The press needs to remember that there are laws governing it functioning and it is accountable to the law too and to those whose reputations are at stake. The harm done by the press to reputation is irreparable and it needs to adopt preventive measures before the damage is done.
A case in point is the obscene manner in which the Aarushi murder was covered by the press. There were channels which went to the extent of recreating what they imagined to be the case, a sexual encounter between Arushi and the domestic servant under the blankets. Email exchanged between Aarushi and her friends which came into the possession of the Police were released to the press and displayed over and over again to convey the impression that she was of loose character, forgetting that she was no more than 13 years of age. There was nothing short of a media trial taking place here. And while some may voluntarily submit to media trials, this was a case where there was an on going police investigation and the matter was sub judice and should not have been reported in the manner it was. There is all over an unholy nexus between the police and the press. Much of what passes off as investigative journalism is nothing but press hand outs. The police release premature opinions to come out looking good in investigating crime and the press laps it up as an “exclusive” story. Both are happy. The law needs to step in here and hold the police responsible for damaging reputations and prevent them from sharing investigation reports with the press. Violation of ethics
Apart from violating the fundamental rights of citizens, the press also here violated its own journalistic ethics. The Press Council of India in its norms forbids the press from publishing private details of individuals unless relevant to public interest. The norm forbids the press from divulging details about any person in a manner which raises doubts about the chastity and privacy of a woman. All these norms were violated in the Aarushi case.
That apart, even a dead person cannot be criminally defamed and Aarushi was quite clearly defamed by a substantial section of the media.
Yet another law, the Indecent Representation of Women Act, was also violated. So under-used is this law that the press is probably unaware of its existence. It is one law which requires the press to report on women in a responsible manner that does not violate their dignity. This law is all too often used only to seize pornographic material, though it is meant for all manner of reporting in news and advertising. Need for code of conduct
By far the most important lapse is that of the Information and Broadcasting Ministry in failing to enact a binding code of conduct on reporting in a manner that does not violate laws of defamation, contempt of court and the Indecent Representation of Women Act. There is an urgent need to bring print and television media under scrutiny for the manner in which they report. The only reason why the press is not sued for compensation in this country is because of the enormous court fees that a person would have to pay to bring a suit. At the end of the day, weak law enforcement encourages defiance of the law. We need also to deal with the declining ability of the judiciary to deliver timely justice, if we wish to avoid being tried by the press. The battle at the end of the day is for the re establishment of the rule of law, so that all can live in dignity and peace.
While the press is often credited with having brought issues like the failure of justice in the Jessica Lal case to public notice, we cannot forget that the real heroes are the family members of those who lost their lives. Without a Neelam Katra, who continues to fight a valiant battle for the rights of victims in the criminal justice system, there would be nothing to report.

The centrality of the issue is often lost in media hype. No matter how significant a role the media can play in exposing the failure of justice, it cannot replace the justice delivery system. For, to allow that to happen would be to succumb to the lynch mob mentality. The press has as much of a stake in the maintenance of the rule of law as do individual victims of crime.