‘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…

Pain in The Neck

Oh! The murky-depressing nights,

creepy stillness, and,

the miserably rambling voices.

Be the witness,

of my weary patience;

the acute pulse

to the uneasy-calmness.

Remind me of these epochs,

the disquiet voices,

buzzing in my skin;

hissing and boos.

Afar horizons, when I laugh,

or, fly too-high.

Evocate, my teary eyes,

the drizzle of reflections,

and the sleepless nights.

Behold my bellyaches,

for the pleasing mornings,

and shining of the sun.

In fondling of melancholy,

make me to remember—

ecstasy is on its way.

Beneath that,

Every twinge shall decay.

And, pain in the neck,

shall go away...

Paradoxical Sentencing and Crime Against Women

http://risingkashmir.com/news/paradoxical-sentencing-and-crime-against-women-356558.html

In the year 2012, shocking ‘gang rape and murder’ of a girl takes place in Delhi. The incident sends chills down the spine of civil society. Protests, debates, discussions and censures take place. Eventually, a Criminal Amendment Act, 2013 is legislated, providing more stringent punishment for the crimes against women. Yet, in 2017, the ‘Unnao gang rape’ transpires. The perp is a ruling party politician. In 2018, another episode of similar nature happens. This time in J&K, and the victim being a minor. Hate, anguish and the rage— is what instantly explodes. Again the criminal law is intensified to inhibit the iterations. Twixt this, other instances of alike nature, keep on adding to the unfortunate list. Thereby, making us to think— what’re we off to? Have we reached a phase, where ‘deterrence and retribution’ fail in the entirety? Or, to ensure the safety over empathy, an uncommon bridge should be build.

Hitherto, the 19^th century jurists had a ubiquitous belief to hate the crime, but not a criminal. ‘He’s a sick, and needs a treatment’, said psychiatrists. The only viable tool is ‘reformation and rehabilitation’. But, then ‘Retributivists’ believe(d) ‘a convicted felon deserves penalty for the harm he has caused’. And, unlike ‘Deterrents’ none of the schools believe on the ‘preventive functionality’ of punishment. Thus, in the middle of this jurisprudential skirmish, who shall we pin our hopes to? Before, deciding that let’s first have an extra dig.

World over, and in India— ‘deterrence’ is a substance of sentencing. How far has it triumphed? How much effective it has been in controlling the crime? Whether taking the life of a convict is really an answer? These are some preliminary questions, which arise, every time some (horrific) crime takes place.

In the year, 2011, there were 2,28,650 reported incidents of crime against women, in India. Owing to the more deterrence oriented criminal law, such crime rate should have dipped in the prospective years. NCRB, however, in 2015 records over 3,00,000 cases. Subsequently, the data for the year 2017, published on Oct 28^th, 2019 records over 3,59,849 cases. That’s an increase of around 57%. As compared to 2016, there was an increase of 6% in the year 2017. A decade before, in 2009, the number was just 2,03, 804.

Previously Delhi; now it’s Utter Pradesh (56011 cases) topping the list. Having 31979/30002 documented incidents, Maharashtra and West Bengal, fall second. Though least, J&K by 1%, makes a contribution, too. Thereby, making India the most unsafe place for the women.

The rationale is to underscore the relevance of sentencing scheme. Criminal justice in India is applying a peculiar approach. Neither fully laced with deterrence. Nor purely reformative. Which makes it vulnerable. Had it been effective— we shouldn’t have witnessed the adversity.

Put simply. If numbers speak. The model of deterrence— private or general— hasn’t been successful. It will be so, if applied with ingenuity. Awarding death to one in a quarter million rape convicts won’t suffice. Let’s not create a paradox of reformation, and retribution. Make every perpetrator an example, or just focus on the correctional-only aspects. A simultaneous rub on both, has yielded, but a despicable crime rate.

Prosecution hunts down the beast of a rape victim. True it is. But, has it ever restored her dignity. Answer is no.

The ‘prevention of crime’ should be a focal point; then its aftermath. In so doing, morality can be helpful besides the law. The principles of morality may be related; not the objectivity. If we live by jurists, ‘morality and law are supplementary and complementary’. One might not violate the law every time he violates morality, but vice-versa does produce a tiff. Ethics, and imparting of ecclesiastical code has a great gratitude to our society. Although, prone to the tremors of exposition. It’s rich in cultural ethos.

There’s no dearth of legal framework. Deficiency, however, lies in its draft work. Sentencing has a philosophy. Either we can rehabilitate a criminal. Or, we have to deter him. A rape victim dies on the bestiality of rape. Weigh such convicts indiscriminately. Else, decades later— criminal law would be still— in the commotions of ‘deterrent reformation’.

(Author is Research Associate with Legal Aid Clinic, School of Legal Studies—CUK. Feedback: mashooq.law@gmail.com)

Reconsidering the Sentencing of Child Offenders

Also published here http://risingkashmir.com/article/child-offenders-and-weak-deterrent

‘Handover some hi-tech gadget to a five-year old kid, he’ll help you to explore— what you couldn’t.’ He’ll pick up— even before you begin. This intimates, modern children aren’t just acutely sharp, but sassy too.

Now, look up the crime statistics of the last decade. There’s an upsurge of 69% in the juvenile criminality (Ministry of Statistics and Program Implementation). In 2001, only 16509 such incidents were reported. But, in 2015, number escalated to 41385.

Don’t stop over here. Spot on— You will find, children driving vehicles. Go to the school(s)— teachers rarely reprimand the students. Walk down a lane, young boys are too occupied with smoking. Even they aren’t alien to drugs. Take a survey, you will find— they work too; earn for their family. A larger percentage of them supervise the households. They have taken up the responsibility, which’s far off their childhood.

Despite this, they’re still considered as minors. They cannot be punished— what otherwise is punishable. They may commit an(y) unlawful act. Law has to condone that. They are, however, yet to cross the threshold age of 18-years. So, the State’s law too doesn’t hold them criminally liable. They have to be given the lenient treatment.

The notion to espouse a ‘Lenient Approach’ for child offenders, is due to cognitive faculties. A child below 18-years, lacks the abilities including— imagination, consciousness, perception, thinking, and judgement. To punish him at this stage is amenable, neither in India nor in J&K.

There are countries wherein ‘Punitive Approach’ is adopted. Take an example of Saudi Arabia. In comparison to India, it has the least violent crime rate. It ranks higher, 25^th on Safety Index— 2018/2019. Whereas, India ranks lower, 57^th. And, it has the higher Crime Index, 43 points, than Saudi Arabia, 28 points.

In ‘Punitive Approach’ countries, the age of criminal liability is determined by ‘Natural Puberty’. No sooner a child reaches the age of 12-years; he’s held criminally responsible. He’s presumed to be a grown up on his biological growth. That, therefore, puts the cognitive growth out of relevance.

Point taken is— Should a child be penalised at such stage? Or, it’s better to wait for the cognitive faculties to develop? Well, to assert the imperative— let’s dig deeper.

Analytically, the cognitive growth takes place in two phases. First, from 6-12 years, with an ability to think concretely. And second, from 12-18 years of age, with the adolescence of complex thinking. It’s the later stage, in which child focuses on personal decision-making. He begins to question the societal norms. Drafts his own code of ethics. And, chooses his areas of interest. But, it’s a process-incessant, and may go beyond the age of 20. Besides, it’s based on the psychology of a person. There’s no guarantee of absolute maturity. That substantiates the fact— ‘it cannot be a conclusive test to determine the criminal liability’.

On the other side, ‘biological growth’ renders a person capable of doing more complex things. Let alone the ‘accentuate release of hormones’. There are factors like— aggression, intolerance, violence and many other things, which a child experiences in his puberty. Like, a hungry man is tempted to food; Same way a child holds his impulse to indulge in non-conformity. He may incline towards the deviant activities, ranging from rashness to the unruly desire of sexual profligacy. When such conducts are left uncorrected, the cognitive faculties get contaminated. Now, how should we prevent that? Let’s ascertain.

Whenever a person intends to do an act. Two elements shape the event. The ‘Internal, and External Control’. ‘Internal Control’ is a private affair. Something, which is intrinsic in nature. It can be infused by parenting as well as family environment. Religious, and ethical principles too influence it. Subsequently, ‘External Control’ is the public affair. It entails Law, peer groups, and Schooling. Law, however, is a prime factor. It needs to have a deterrent effect. It cannot afford to be vaguely lenient. Moreover, internal scrutiny is least reliable in this cosmopolitan. The outer control, thus, becomes fundamental.

Let it be noted. It’s a teacher’s strictness, which prompts the student’s seriousness in class. Once a child assumes there is leniency on some part, he behoves rough. Warn a child against fire— he stays away from it. Allow him to explore it, he not only brings trouble for others, but endangers himself too. No matter, how much delinquent a child is, parents defend him. This in turn worsens his conduct. Same is applicable to a state. Every time it drafts a legislation of ‘Special Treatment’. It weakens the ‘External Control’. And, an individual stops mending his conduct.

Off late, there is an epidemic surge in child criminality. Children are committing most depraving, and heinous crimes. The ‘Lenient Approach’ has become superfluous. A safe heaven too. I agree with the assertion that ‘reformative approach’, is meant to bend an individual’s life. But, the ‘deterrent approach’ has results. Examples are in front of us. Hold a person for the violation of traffic rules, others will institutionalise it. There are states like— USA, England, China, and Iran, where deterrence is part of the process. USA, the torch bearer of juvenile justice, has even retained death penalty for minors, of 17-years age.

Having said this. I think, J&K too should reconsider the sentencing frame for juveniles. If not the whole model, but some elements of deterrence can takeover. I say— childhood has already become an adulthood. Time is ripe to reset the age of criminal liability. ‘Puberty’ is more relevant than the ‘Cognitive Faculty’. It’s former which shapes the latter. The definition of a ‘Child delinquent’, hence, needs to be reconsidered for sentencing.

Who will Judge the Judges?

Also Published in http://risingkashmir.com/news/who-will-judge-the-judges-350504.html

Whether it’s a democracy, or a monarchy— judiciary is of a paramount importance. Thereby, a judge is always expected to be of an eminent integrity. However, Indian judiciary, recently has come into limelight for a several wrong reasons.

First, it was in January, 2018, when a presser was held by the four Supreme Court Justices against the then Chief Justice of India’s (CJI’s) ‘Master of Roaster’ power. Before that, it was the outbreak of ‘Prasad Education Trust Case’, which created a havoc in terms of ‘Corruption in Judiciary’. While, with the elevation of former CJ, Justice Depak Misra— to the post of CJ— the pandemic talks on political involvement did take place. Yet, the same remained individual centric-only.

In relation to the existing CJ, Justice Ranjan Gogoi— it was commonly said that his Lordships is a person of highest veracity. And, is apt for the Supreme Constitutional position. Since, the recent wave of sexual harassment accusations engulfed every small, or big institution. So, it was quite evident, it couldn’t have spared the judiciary too. But, should it have cropped-up at a time— when everybody was contented with the sitting CJ’s uprightness? And, that too against his Lordship’s own person? Nobody, to my understanding, would have anticipated.

It befell as a concern, not because of it being against the CJI. But, because CJ tried it himself. In so doing, contravened an axiom— ‘no one can be a judge in his own cause’. What added a fuel to the fire is, the inquiry by an ‘in-House Supreme Court Committee’ led by Jt. Bobde. Subsequent to which, critics became extremely cynical, contrary to the entire judiciary. Consequently, such people brazenly undermine the eccentricity of this issue. Reasons are—

·         Firstly, it’s not a methodical case of harassment. The victim is terminated from the services by the CJI. Moreover, there’s a separate affidavit filed by an advocate— alleging the ‘racket of fixers’ and a ‘conspiracy against CJ’. An element of reasonable doubt, hence, cannot be eclipsed.

·         Secondly, this issue has cropped up at a time, when every other institution is vilified by the party in rule. And, the Supreme Court is an only-institution remaining.

·         Thirdly, the allegations are against someone— who is already known for his bold-cum-strict attitude.

·         Fourthly, sitting CJ is one among the dissenting judges, who vented their resentment unambiguously to save the-only reliable institution in India.

·         Fifthly, though ‘a bad character’ isn’t relevant, but ‘a good character’ has to be given a weightage under Section 53 of the Evidence Act. Whereas, in the instant case, victim (the disgruntled employee) is labyrinthine in a few criminal cases.

True that CJ shouldn’t have turned into a judge in his own case. Hitherto, we cannot emasculate the eventuality girdling this case. Some critics say, “The matter should have been tried outside the court”. What they fail to understand is, an ‘in-House Committee’ is a court within a court. ‘If you don’t believe on its probe-fair. You cannot ‘accept as true’ the Parent-institution either’. By making this issue victim centric-only, is to tear apart the institution of judiciary.

Let’s consider, this sensitive matter shouldn’t have been handled by the ‘in-House Committee’. But, then who? Primetime debaters? Lawyers himself? Or, the so called feminists? Or for that matter, any other civilised forum? Choose among them. Remember however, if and if-only Judicial institution in India isn’t trustworthy. Then, no one else would be. For— it has the maximum standards of scrutiny. Vigilance. And, the susceptibility too. Thereby, you cannot put it on somebody’s mercy. Once you do that, you set a precedent to craft a dent(s) in its impartiality.

A former CJI, once in a conference said, “The ‘in-House Committees’ are as much necessary to the judiciary, as its independence. Once that’s given up. Independence sine-dies too”. Which, thus nullifies the notion of involving a third party therein & thereto. On the contrary, however, Justice Chandrachud believes, “Supreme Court should include a retired Judge in the panel. The victim should be allowed to have her lawyer. So that the credibility of judiciary will remain intact”. Though, it seems quite generous. But—

·         How far it would shake the credibility of ‘in-House Committee’ procedure of judiciary is a moot point; and,

·         The inclusion of a retired woman Judge would raise a doubt on the impartiality and proficiency of the twin designated women Justices.

Yes, the sexual harassment cases shall be dealt stringently. One needs not to be a feminist for that. But, if same is posed against the institution of highest importance. The solicitation of greater cautious befits the procedure. Thus, the apparatus need to be meticulous. And, the possible reasonability should be grasped. Since, ‘Justice Bobde Panel’ also included the two women Justices— Indu Malhotra and Indira Banerjee. Thus, the outcome shouldn’t be nullified on a mere belief that we didn’t approve it. Conversely, one shouldn’t allow the bias to prevail. When that’s so allowed, no human will remain there to judge another human. The adjudicatory mechanism has to stop somewhere, and an ‘in-House Inquiry Committee’ mechanism is there to serve.

Tailpiece— Women do have encountered the atrocities in the past. But, why should we compromise the legal principle— ‘innocent until proven guilty’? It’s under this paradoxical influence, we don’t allow the fair trial. Hence, the victimisation of justice.

Am I Among You?

People here, people there

Like they’re nowhere

Am I too, the part of this world?

I see myself, nowhere

Fake smiles, distressed heart

Cuddling people everywhere

Am I too, the part of it?

I see my ecstasy, nowhere

Challenging life, torn secrets

Imputing games everywhere

Am I too, the same genre?

I see my cynicism, nowhere

Turning backs, seductive traps

Exalting reality, nowhere

Am I too, the same sculpture?

I see my sincerity, nowhere

Insatiable relations, bogus concern

Malice perfections everywhere

Do I need to be part of this?

I see my conjurers, everywhere

Tragic episodes, tensed pulses

Accepting fates everywhere

Am I too, the same beetle?

I see my convictions, nowhere

Nurturing farce, transient dawns

Weary swings everywhere

Am I too, a part of pretence?

I see my resolves, nowhere  

People here, people there

I feel my soul is else somewhere

Am I too, a tear-some fibre?

I see my eyes disquiet, nowhere

People here, like— nowhere

I steer my exasperation everywhere

Am I too, a nuance together?

For, I see my altruism, nowhere….

The Quest

Though aloof of honour, the valour

Symphony

Between 'love and self-respect'

Is consequential;

Love and pride go together

Remember,

As 'a soul within the body'

Spirits up the living.

Let not you unhinge

This beautiful order,

It would

Lean you to the dying dignity

That being;

Put thru a disaster,

To an unending suffocation,

In quest of something,

What would otherwise

Be nothing

But the lively ordeal,

A humiliation,

Yelling in the iteration.

Though different of honour, the valour

Love is ancillary,

When shaped in cacophony...