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Monday, June 25, 2012

MEDIATRIAL OR FAIR TRIAL IN MEDIA?

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Syed Shabbar Raza Rizvi 

Condemning the accused

“When your case is weak, take it to the media, instead of the court,” says Thomas Sowell. Laura Alber says, “If O J Simpsom was guilty, the media was responsible for his acquittal.” Both could be true. We are all witnesses to what is shown on the television every day when persons under arrest are brought to the court or are taken back to prison. A host of photographers and videographers gather and do not allow the accused and the police to even move. The suspects under arrest are depicted as if they are already declared guilty. Press freedom is a cherishable fundamental right but it is not absolute. It is subject to restriction and limitations mentioned under Article 19 of the Constitution.

It is time to sit back and ponder over the reasonable trends of the media; whether the media is contributing in holding fair trials or rendering them unfair and may be illegal? The individual who becomes the subject of press or television ‘items’ usually has his or her personality, reputation or career dashed to the ground almost forever, after the media exposures. When, years later, the court proceedings end in a clean acquittal or acquittal for lack of evidence beyond reasonable doubt, the affected person can resurrect his or her lost position. In the above context, few questions arise. Does the media in such cases permit the law to take its own natural course? Is pre-trial condemnation part of the law or fair trial? Can any body say who is guilty or innocent until the courts give their final verdict? The fate of victims and witnesses appears to be no better; the publicity they are subject to makes it impossible for the identity of victims of crimes and protection of witnesses. They are made vulnerable to pressures and intimidation by the offenders.

For the above facts, the subject of trial by media has, therefore, assumed extraordinary importance. There is need to educate journalists and media managers and to make them understand and respect the rights of their victims. They must be told not to intrude with the fundamental right to a fair trial of an accused. They also must understand and respect the boundaries of the freedom of press and at what point they cross those limits. Even the courts come under pressure or sometimes get influenced by media blitz. No one is fit to be who is likely to be influenced except by what he sees or hears in court and by what is judicially appropriate for his deliberations. However, judges are also human.

According to the Indian Supreme Court: “It would be mischievous for a newspaper to conduct an independent investigation of its own for a crime for which a man has been arrested and to publish the result of such investigation while the trial is in progress. A trial by newspapers, when trial by a competent court is going on, must be prevented. Such investigation on part of a newspaper would amount to interference with the courts of justice.” (AIR 1961 SC 633). During the investigation or trial no one is allowed under the constitution and law, consciously or unconsciously, to make a public opinion against any of the parties.

For the same reason, under law and even under the code of conduct, judges are not expected to speak or make unnecessary comments publicly, take such comments seriously and make up their minds. There are consistent grievances from some quarters that nowadays judges speak through words of their mouth instead of their judgments during the midst of proceedings. This is particularly happening in the cases of political nature, wherein, one way or the other, political controversies are also involved. There is a growing view that judges make, prima facie, unnecessary but deliberate comments knowing that they would be aired and published by the media to form public opinion towards a particular direction.

Sometimes, the comments by judges also give impression that undue publicity is being sought which also seriously affects the rights of the parties appearing before the court. It would be pertinent to quote the Code of Conduct for superior judiciary; Article 4 of the Code reads: “Functioning as he does in full view of the public, a judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law.” Last but not least, I may also state that the impact of pre-trial exposure by the media is infringing upon the fundamental rights of those facing criminal trials before the courts such as the rights to ‘life and liberty’ guaranteed under Article 9; fundamental rights of protection of equal treatment, person and reputation under Article 4, and political rights under Article 17 of the Constitution.

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