‘Media trial’ as an Impediment to ‘Fair Trial’

Also published in http://www.risingkashmir.com/news/media-trial-as-an-impediment-to-fair-trail-360402.html

In the year 2015, American director Tom McCarthy’s film— ‘Spotlight’, received a global acclaim. In his film, he has skilfully illustrated— the enormity of ‘investigative journalism’. No matter, how hard, or imperceptible… Truth at the end, serves the public. Besides, its depiction of a brilliant anecdote. There are a few façades, which shall not go unnoticed.

a. Corporate media houses can go to any magnitude, to keep up their interest.

b. An aberration can reduce journalism to mere profiteering.

The rationale to touch-on this film is palpable. That’s the significance of media. With the help of technology, it has pull off a great boost. From reporting of a crime scene, to bring forth the societal outrage. Everything is being thrashed out on the ‘prime time’. More ghastly a crime, more passionately it is aired. The identity— of both— accused and victim, is sacrificed to a ‘breaking news’. Neither investigation, nor the evidence is scrutinized. Some random ‘anchor’, under an intense presentation shouts out his verdict. Of guilt, and innocence. Of conviction, and acquittal.

In this way— an open media trial, reaches to an end. In so doing ‘whether he cares more’? Answer is in negative. Because, he does that for a meagre TRP. And, unfortunately such ‘studio fantasy’ has gone rogue in the 21st century.

Now the question is, how far does this ‘theatre bashing’ help in evaluating the real guilt? How’re we influenced by it? How does a Judge, or an Investigating Officer receive it? Whether it causes any prejudice to a trial? Let’s explore.

A Circuit Judge, in America, in the year 1984 would schedule the proceedings of a criminal trial, at night. In order to justify his act. The respected Judge cited the telecast of a late night show, entailing a story identical to the trial. In order to prevent the Jurors from its influence. He would start the proceedings at the very show timing. Another American Judge, Joseph Tauro, wrote in 1969— none craves to shackle the press, through the contempt of court. We must but, admit the possibility of an unfair trial.

The strong public emotion triggered by press, cannot be relegated. In his apt words, Justice HR Khanna states, to ensure fair trial, court is compelled to guard itself against the ‘pre-trial publicity’ of a case. If it couldn’t, the inevitable effect is certain.

It is true that a Judge possesses a distinguished cognition. He’s duty-bound to adduce material on record. Nothing more, or less. However, if we go by the studies. Jurists in India, seem(s) to be believing that ‘Judges may get influenced, though not consciously, but subconsciously’.

In comparison to a formal trial, the concept ‘media trial’ is a mockery. In fact, it can be termed as absurd and vague. Courts, and only courts are empowered to conduct the trial. That however, doesn’t mean informal media trials don’t create a difference.

In his address to Judicial Officers, in 2017 at SKICC, Justice G. Raghuram referred to the study of ‘Neuroscientists’ about ‘Audio Visual Effects’ on human brain. He warned Judges against the captivity of ‘what’s being presented on TVs’. He said, “A person becomes captive, and starts believing it. It is the intuitive part of the brain, which gets prejudiced the most”. In the same conference, former CJ of India Deepak Mishra mentioned that ‘the pre-trial publicity’ of sub-judice matters has become an endangering trend. In its short term TRP objective, it has a tendency to develop bias in the Judicial Officers.

A free press is an utmost necessity. But, stretching it unnecessarily is perilous. The ‘proof beyond reasonable doubt’, and ‘innocent until proven guilty’; these are the basic doctrines of our ‘Criminal Justice Jurisprudence’. Without realising this line of difference, the noisy media trails— use parties of a case as ‘bait’ for their ‘intense journalism’. Instead of allowing courts to conduct a fair trial, they sell absurdity. Apart from suffering from the scar of crime, victims of crime, have to bear the brunt of media too.

To put an end to this smear campaigning by media, a former CJ, JS Khehar, in 2017 stated— even if an accused is acquitted. His reputation stands injured by the ruthless sell out of electronic media. Time has come to draw a line of difference, between what can be ‘fair and free’. In the year 2010, Supreme Court reiterated, informative media is a necessity. But presaged the trial by media. For, it is very antithesis to the ‘rule of law’, and can well lead to a ‘miscarriage of justice’.

The Law Commission of India, in its 200th report produced an extensive research on this subject. Commission warned the government on the ‘transgression of media’. Besides, it proposed a multipronged amendment. Firstly— The High Courts shall be empowered to prohibit the ‘pre-trail publications’, wherever necessary. Second— Such publications shall be considered from the ‘period of arrest’, instead of ‘filing of charge sheet’. Thirdly— the journalists must be trained in certain aspects of evidence law. Their curriculum, at school level, must include human rights, constitutional law, and the law on defamation. But, fifteen years, down the line of these substantive recommendations, nothing such has taken place. The Commission also had suggested, ‘freedom of press’ in terms of Article 19(1) (a) has become ‘a threat’ to judiciary. To avert that, a balance must be set, before it’ll crumble the whole institution.

In this intricate universe, we have come too far. What used be a news-only rendering body, has metamorphosed into a complex body. Media used to be an impartial, independent and reliable institution. It has now lost its balance. What should have been a ‘spotlight’, has become mere noise. From airing of doctored items, fake news to usurping of political ideologies. It has lost its entirety to communalism, and propaganda. Owing to which, it has grown more dreadful. A speaker once said, “The way TV anchors are shouting in news and debates. It seems they share the ‘ultimate mandamus’, of whatever is happening’’.

A judge takes years to reach to a verdict. But, an analyst on TV does that in an episode of ‘news hour’. Having said this. I think— time has come. When so called ‘media trails’ should be put to an end, forever. If not prohibited, or diluted, it’ll definitely result in adversity to courts. At least, the reporters shall be imparted a familiarity of ‘what shall be reported and what not’. So that a balance is drawn between, ‘free press and fair trial’. For, the whole gamut is of ‘faith of people’. Once media succeeds in attenuating that. Courts will turn into the museums…