Shashi Tharoor has been exonerated after torturous suffering of many years and so are many others likely to be after a free and fair trial in Indian courts which over-ambitious screen journalism has at every moment seized, diverted, and obstructed through their ‘TV-Khap Panchayat’ pre-trials. Many channels have learnt this quick selling art and craft in a market of TRPs as they transact on false perceptions of innocence and guilt nonetheless prejudicing the judges from the time of the NDTV telecast of R.K. Anand’s media trial in the famous BMW case of 2009. That case was the judiciary’s lost opportunity and most blatant jurisprudential slippage on the Indian Constitution’s Articles 14, 20, 21 and 22 which together provide fundamental guarantees against arbitrariness and ensure a free and fair trial to every citizen. Why is our learned judiciary not addressing this crime of whipping violence on screen, sunset defamation markets, irrepressible wrestling tournaments sustained through freebee reporters who operate through unethical stings or morally prurient and scurrilous contemporary investigative journalism? When former Justice P.B. Sawant’s photo was wrongfully flashed on a news channel for split 15 seconds, the judiciary had imposed a penalty of Rs 100 crore, are others so very ordinary to be even noticed? Ironically, the Delhi High Court itself pronounces in a 2017 case of Shashi Tharoor v. Arnab Goswami that, ‘any conviction resulting from the unfair trial is contrary to the concept of justice’ then why another standard for mortals outside judicial castles?
By telecasting trial by media, a feel of a hippodrome (akhara) of torso twisters is electronically created as crowds cheer and lynch mobs collect fuel. The victim is declared an accused even before a free and fair trial to which he is entitled to in a constitutional democracy has even begun. Prejudices seep into systems as undeniably, Judges are humans too and as the British judge Lord Dilhome stated in the Attorney General v. BBC that ‘judges and jurors could not claim to be superhuman and may be influenced subconsciously’. Consequently, learned judges never even attempted to harvest a jurisprudential opportunity that knocked their court as a BMW case. The Delhi High Court instituted contempt proceedings against the defence counsel, R.K. Anand, and the special public prosecutor, I.U. Khan, by prohibiting them from appearing before the High Court and subordinate courts for four months without even considering the question of NDTV’s responsibility and liability under the Act as well as under the 200th Report of the 17th Law Commission (2006) on ‘Trial by Media, Free Speech & Fair Trial under CrPC 1973’. In every crime a co-accused is also punished but our courts have been relatively soft in dealing with media publishers both online and offline. People have repeatedly scrutinised political and administrative leaders but carefully avoided looking into what goes inside our judicial minds. One may wait and watch the judiciary’s behavioural trajectory on return of 2009’s lost jurisprudential opportunity enabling judges to act suo moto against the venomous screen journalism being legitimised, ossified, and fortified in sunset defamation markets.Some channels definitely follow in full steam to locate a new victim every day, design a new e-ring of stone pelters over the day’s proclaimed offender who would then onwards be banished from any civilised society. The biases of judges could lead to a derailment of trust in judiciary as Per Bowen L.J. in Lesson v. General Council of Medical Education (1890) wrote, ‘The perception may be wrong about the judge’s bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Ceaser’s wife should be above suspicion’.
That ‘trial by media’ aborts justice is only one side of the story, the other side is its strong support coming from powerful interests. If channels are getting funds out of sunset defamation markets they obviously not mind inviting aggressive party spokespersons, viciously divisive religious heads or chest-beating Director Generals of Police to present their investigation reports supposedly in conformity to the Indian Evidence Act and the Criminal Procedure Code (CrPC) to create a presumption of guilt or innocence. Sunanda Pushkar is just not one case as most channels simply survive on one investigation after another. Many such khaps have been pronouncing verdicts on famous cases of Jessica Lal, Sheena Bohra, Nitish Katara, Arushi-Hemraj, or Sushant Singh Rajput murder cases. There is also some anxiety against judicial delays, deflection, and denial that encourages a market of instant justice delivery platforms which in turn are stimulated by a public memory where the case is still fresh.
The judiciary, despite many drawbacks, continues till today, the last and the only resort of justice dispensation. Many learned judges have adorned the courtrooms and delivered judgements that illuminate free and fair trial jurisprudence as a requirement of human rights. The best commentary which is potentially one of the most scholarly descriptions of a free and fair trial is found in the case of Zahira Habibullah Sheikh v. State Of Gujarat  popularly known as the Best Bakery Case. The learned judge Ajit Pasayat highlighted the undue influence of the state on trial proceedings. In his judgement was expressed the anguish , ‘When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice’. This kind of interference and influencing of court trials by outside interests are never in the interest of nation, democracy, or justice. The judgement gave five basics of a free and fair trial, i.e., impartial judge, fair prosecutor, atmosphere of judicial calm, no bias against accused, the victim or the cause of the case and lastly, witnesses should not be threatened, coerced or lured. A media trial capsizes the process by undoing all the above five requirements of a free and fair trial. The judge is anyone of the thundering channel anchors.
All this arbitrariness is allowed to flourish as big business despite the 17th Law Commission strongly recommending in its 200th Report that the Centre should enact a law to prevent from reporting anything prejudicial to the rights of the accused in criminal cases from the time of arrest, during investigations and through trial. Even under current circumstances the Court under Section 3(2) of the Contempt of Court Act can direct postponement of publication or telecast of a programme in sub-judice criminal cases. Most judges in courtrooms are fatigued by an overload of pendency of cases and would abstain from belling any cat.
In the end, it is worthwhile to recollect the two stanzas quoted from Manu Samhita by Justice Arijit Pasayat, in his opening para of judgement in Zahira Sheikh’s judgement, which reminds us that unless a judge is really sensitive about those who may suffer at his Court for want of justice, he may just do what comes out as a message and a warning in the two stanzas (14 and 18); stanza 14: “Jatrodharmohyadharmena Satyam Jatranrutenacha Hanyateprekshyamananam Hatastrata Sabhasadah” (Where in the presence of Judges “dharma” is overcome by “adharma” and “truth” by “unfounded falsehood” at that place they (the Judges) are destroyed by sin); stanza 18: “Padodharmasya Kartaram Padahsakshinomruchhati Padahsabhasadahsarbanpadorajanmruchhati” (In the adharma flowing from wrong decisions in a Court of law, one fourth each is attributed to the person committing the adharma, witness, the judges, and the ruler”)
Its time for the judiciary to rethink about their intellectual ammunition which the Constitution of India has entrusted to them. The trial by media is a social and an intellectual disease which Justice Cordozo in his ‘The Nature of Judicial Process’ condemn as ‘forces which enter into conclusion of judges’. The Centre should enact a law to prevent any more harm to those still being denied the right to a free and fair trial due to pre-trial by media.
The author is president, NDRG, and former Professor of Administrative Reforms and Emergency Governance at JNU. The views expressed are personal.
That ‘trial by media’ aborts justice is only one side of the story, the other side is its strong support coming from powerful interests. If channels are getting funds out of sunset defamation markets they obviously not mind inviting aggressive party spokespersons, viciously divisive religious heads or chest-beating Director Generals of Police to present their investigation reports supposedly in conformity to the Indian Evidence Act and the Criminal Procedure Code (CrPC) to create a presumption of guilt or innocence.