Trial and Error

The major culprits in this kind of subversion of justice are the TV media that show little respect for the rule of law. I've seen on the small screen both policemen and TV crew trying to rip off the masks that suspects were wearing so that their identities might be revealed for media cameras Recently Union Home Minister Sushil Kumar Shinde unwarily revealed in the Rajya Sabha the names of the victims of the Bhandara rape case. This information had to be expunged from the House record at the instance of the Leader of the Opposition Arun Jaitley. He had to remind the minister that according to the law the victims of rape, specially when they are minors, are not identified and named. There is a Supreme Court ruling to this effect. The Indian Penal Code punishes the public disclosure of a rape victim's name by a two-year prison sentence and a fine. Both the saner sections to the media and the State regard such disclosure as an attack on a person's right of privacy. We must remember that society considers rape as more personal, traumatic and stigmatising than other crimes. But unthinking media homage to the ubiquity of rape interferes with the course of law with consequences for both the prosecution and the defence. Neither admonition from the Supreme Court, or Press Council guidelines or media's own codes of ethics are able to check this malady. Last week a national daily published the picture of a suspect wanted for the murder of a businessman. The heading of the report accompanying the picture clearly referred to him as a suspect. Such pictures raise similar issues regarding the rights to privacy of a suspect. The newspaper published his picture obviously to help the readers know who he is. But it really doesn't help either the suspect or the police. On the other hand it interferes with the administration of justice. As Supreme Court judge KG Balakrishnan (before he became the Chief Justice) said at a Delhi seminar, publication of photographs of suspects tended to interfere with the test identification parade while details regarding the criminal background of the suspect hurt the positions of both the defence and the prosecution. Balakrishnan referred to instances where such interference helped the acquittal of the accused.

If the suspect's pictures are shown in the media, they would prejudice the identification parades of the accused conducted under Code of Civil Procedure. Under Contempt of Court Act, publications that interfere with the administration of justice amount to contempt. The rights of an accused are protected under Article 21 of the Constitution, which guarantees the right to fair trial. Both the police, who presumably supplied the picture to the Hindu reporter, and the media ought to have known that such an act interferes with the identification of suspects. As a senior editor of The Times of India at Mumbai said, "Media reporting often gives the impression that the accused has committed the crime or the media through its independent investigation wing has found a particular fact. When in fact, it has relied entirely on the information given by the police and failed to question or verify the facts by an independent source. The result is that most crime reporting is one-sided, because the information received from the police is rarely questioned." Last year Ratan Tata petitioned the Supreme Court complaining that the publication of his private conversations with Nira Radia was in violation of his right to privacy. However, he didn't challenge the action of the Directorate-General of Income Tax to record the private conversations for the purpose of investigations. Tata challenged the media publishing the private conversations between him and Nira Radia. The Tata episode showed the need for a law protecting the right to privacy in the country. The readers remember the Jessica Lal murder case, where the media trumpeted its role in getting Manu Sharma convicted. The media both print and TV whipped up public frenzy against the accused and convicted him even before the trial court had acquitted the accused. The media appropriated to itself the role of a prosecutor as well as a judge. It held candle light vigils and opinion polls on the case, raked up past history of the accused and published photographs of the accused in bars and pubs in the city after he was acquitted. A DNA editorial said at that time, 'Hyper media activism, of the kind that we are witnessing today and did in the Jessica Lal case, where journalists become players rather than observers, is an unhealthy trend; it interferes with the work of the courts, which are perfectly capable of doing their job on their own. Both the institutions, very important to a democracy, must remain separate. Manu Sharma's conviction should not be seen as a 'victory' and spur the media to more such activism.' The Supreme Court observed that if trial by media hampers fair investigation and prejudices the right of defence of the accused, it would amount to travesty of justice. The Court remarked that the media should not act as an agency of the court.The major culprits in this kind of subversion of justice are the TV media that show little respect for the rule of law. I've seen on the small screen both policemen and TV crew trying to rip off the masks that suspects were wearing so that their identities might be revealed for media cameras. It is common sense that suspects wear masks to hide their identities and assert their right to remain unrecognised until an identification parade sanctioned by law is held. Very frequently we see the police produce suspects before the media even before they are produced before a court of law, a good example of camaraderie between the police and the media. Regardless of the source of information and its veracity, the principal issue the national daily raises is the rights of a suspect, violated in this case and similar cases, regularly both by the police and the media. A suspect is not even an accused. Even if the suspect is an accused he has a right not to be identified outside the due process of law until his conviction. After figuring in the media as an accused for the prolonged duration of the trial, in the event of his acquittal society would still consider him an accused in a murder case. . An accused is not a criminal or convict. He is merely a suspect and a lot of things have to happen before he is convicted. He does not lose the right soon upon arrest. Yet, we see in the media, TV and print, suspects frantically dodging media glare. It looks as if that through unchallenged repetition; printing or telecasting questionable pictures has crystallised into a self-legitimatising tradition. But when you see an accused masking his face, it clearly means, though indirectly, that he is not prepared to surrender his right to privacy. Freedom of the press has to yield ground to the right to privacy, particularly when the suspect explicitly forbids the media person from taking his pictures. (The writer is a senior Indian journalist who now lives in the US krishnamoorty.dasu@gmail.com)