Media on trial: Driven by sensationalism

INDIRA JAISINGH

While freedom of the press is vital to retain accountability in the judicial system, the thin line between reporting facts and expressing opinions on them is being increasingly crossed, as it happened recently in the Aarushi murder case. What about accountability to those whose reputations are being damaged in the process?

It spells disaster when the media tries to take on for itself the role of the justice delivery system.

The law has always had an ambivalent relationship with the media. On the one hand, the requirement of open trials would demand unrestricted access to the press. One of the non-negotiable issues of the justice delivery system is that justice must not only be done, but be seen to be done. I have believed that the time has long come for court proceedings to be televised so that the nation can judge our judges in the same way that they now judge our MPs. The sunlight of the press is in and of itself a mechanism of accountability much needed in the judiciary. It is in the public interest therefore that the press is given pride of place in reporting on judicial proceedings.

There are however, very vital restrictions on this rule, which are as much in the public interest as the need for open justice. The press cannot be allowed to sit in judgment over matters of life and death for those facing a trial. It is for this reason that the law allows reporting of judicial proceedings but without comment while the case is being tried. This rule balances the interest of the public in knowing the truth about pending cases and the interests of an accused in safeguarding his or her reputation. Problems begin when the press does not stop at reporting but goes on to build theories of guilt, all this when a trial is pending and the accused is presumed innocent until proved guilty. There is a clear and well defined line between reporting facts and expressing opinions on them. This line has often been breached by the press. The rule therefore must be strictly observed in order to prevent any pre-judging of the issue. Indeed, so sacred is the right to a fair trial, that in the U.S. for example, where trial is by jury, in significant cases, jury members are not allowed to read the press or leave the court until the case is decided.

Thankfully, in India, we do not have jury trials, but judges are exposed to daily media coverage of pending cases in which the press has crossed the limits of its legitimate right to report. Judges may say they are brave hearts and not influenced by press reports, but these reports are intended to build up public opinion in a negative manner which by itself can influence the outcome of a case. An example of this is the SMS polls run by television channels on controversial issues. This is what happened in Afzal Guru’s case. All television channels ran polls on whether Afzal Guru should be given the death penalty, a first in Indian legal history, when an SMS poll could decide the penalty by influencing public opinion. That public opinion, in any case something not measurable by any means, did influence the outcome of the case is evident from the fact that the judges who decided the case said that the “collective conscience of society” was outraged by the attack on parliament! In a manner of speaking the judiciary itself has lowered the bar for itself by relying on what it calls the “collective conscience” of society.