Monday, October 20, 2008

Trial by the media

The students and the faculty of the Campus Law Centre, University of Delhi, invited me today to talk on the issues thrown by the trial by the media in the context of some of the recent high-profile cases. Of all these cases, the arrests in the aftermath of the Batla House encounter following the serial blasts in Delhi on September 13 and the media trial of the suspects dominated our discussion. (Read here India Today’s interviews with the suspects now under police custody, which has raised a controversy regarding journalistic ethics and legality of the media trial) I have had to read for this purpose, the Law Commission’s 200th report on trial by the media – a report which the Commission prepared suo motu, and submitted to the Government in 2006 by the then Chairman, M.Jagannadha Rao. The report itself was cursorily covered in the media, which was unfortunate.

The major recommendations of the Commission in this report are worth repeating, for they throw considerable light on how the recent events could have been ideally handled. Section 3(2) of the Contempt of Courts Act and the Explanation below Section 3 as of now, treat a criminal proceeding as pending only if a chargesheet or challan is filed or if summons or warrant is issued at the time of ‘arrest’. The report wants this to be rectified by adding a clause ‘arrest’ in the Explanation below section 3 as being the starting point to reckon ‘pendency’ of a criminal proceeding as in the U.K.Act of 1981 and as proposed by other Law Reform Commission proposals in other countries. Once this amendment is made, only those which are prejudicial publications or broadcasts would not be permitted. In addition, publications or broadcasts made without knowledge of arrest, or filing challan or without knowledge of summons or warrant would remain protected.

The Commission proposed the above amendment as to 'arrest’ as being starting point by using the word ‘active’ criminal proceeding in section 3 rather than pending criminal proceeding. Another recommendation pertains to empowering the High Court to direct the media concerned to postpone the publication or broadcast if there is a real risk of serious prejudice to the trial, which could be imminent.

The Commission has relied on the Supreme Court’s judgment in A.K.Gopalan v. Noordeen (1969). In this case, the editor of Deshabhimani was convicted for contempt for publishing A.K.Gopalan’s prejudicial statement, because it was published after the arrest of the accused (before chargesheet could be filed) in a murder case. The accused had allegedly killed a CPI(M) activist during a state-sponsored bandh. Gopalan, in his statement, had identified the accused. Since Gopalan made the statement after FIR but before arrest, the Supreme Court exonerated him. This was the majority opinion (S.M.Sikri and Jagan Mohan Reddy). In his dissent, Justice G.K.Mitter, was unconvinced and said Gopalan knew that the arrest was imminent, and therefore, was guilty of contempt.

The Commission notes that in 1978, the Supreme court in Maneka Gandhi v. Union of India, has altered the law as it stood before 1978 to say that so far as liberty referred to in Art.21 is concerned, ‘procedure established by law’ in Art.21 must be a fair, just and reasonable procedure.

The Commission also traces the provision in the CCA 1971 as to the starting point of pendency of a criminal proceeding. A Joint committee of Parliament (The Bhargava committee) (1969-70), whose recommendations resulted in the 1971 Act, had omitted all references to ‘imminent’ proceedings or to ‘arrest’ as the starting point of pendency of a criminal proceeding. The Commission suggests that after the Maneka Gandhi judgment, this provision is not constitutionally valid. But this proposition of the Commission has not yet been legally tested in any Court, which is surprising if we consider the fact that the instances of the media breaching this legal requirement are numerous.

My question is this: Are not the prosecution and the media weakening their own case, if a Court were to strictly follow what the Law Commission has hinted, that the law as it exists, makes it mandatory to treat ‘arrest’ as the starting point of pendency of a criminal proceeding? What if a Court were to set aside the conviction on the ground that the accused could not get a fair trial, due to trial by the media? Indeed, this is what the U.S.Supreme Court did in the case of Sheppard v. Maxwell (1966).

UPDATE:: Delhi High Court raps Delhi Police during the hearing on Dec.15, 2008.
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