S.P.S. RATHORES counsel claimed before the trial court that media played a negative role in the case and published news items selectively in collusion with the complainant party. The judge, while convicting and sentencing Rathore, took note of his grievance that he felt mental stress because of the media trial. But the judge held that the court had concern only with the facts and circumstances available on record and not with what any other agency reported about the accused or the victim. He also made it clear that Rathores grievance could not be a ground for taking a liberal view on the quantum of sentence.
This is in line with the Supreme Courts judgment in the Zee News case (2003) that judges by their judicial training and the nature of the office they hold are not expected to be influenced by the broadcast of a film that an accused apprehended could prejudice the outcome of his trial.
There has been substantial coverage of the Rathore case in the national media, both electronic and print, since December 21, when the trial court delivered its judgment and sentenced Rathore to six months imprisonment and a fine of Rs.1,000. What the trial judge referred to in his judgment was the period before, during and after the trial, which lasted more than a decade.
Indeed, the national media were guilty of ignoring this case and its ramifications all these years. Obviously, whatever little coverage of the case was there in the local media had no impact on the judge. Still, the question raised by Rathore cannot be dismissed easily. The issues it raises need to be discussed objectively to examine whether the continued dissemination of news and analysis about the Rathore case in the media constitutes trial by media.
The term trial by media is not easy to define. It is a misnomer insofar as the media does not conduct a trial akin to the one conducted by courts. However, disproportionate publicity about a crime in the media may result in innocents being condemned, or the guilty not getting a fair trial or getting a higher sentence than what they perhaps deserved.
It is pointed out that if the media carry reports prejudicial to a person who has been arrested, it affects the right of that person to a fair trial.
There is genuine concern that any prejudicial publication or broadcast in the media about a person after his or her arrest may cause substantial prejudice in the criminal proceedings that must be taken to be imminent, irrespective of whether the person is released later. However, it is the medias steadfast investigation that brought to light several aspects of Rathores high-handedness, which had gone unreported earlier, let alone be investigated by the police and prosecuted in a court of law.
The question about the extent of media restraint in the case is important and needs to be answered in the light of the current legal position. In a situation where fresh FIRs have been filed against him and his arrest is imminent, it can be asked whether the media can continue to cover the cases against Rathore with a perceived prejudice against him. Section 3 (2) of the Contempt of Court Act, 1971, read with its explanation, excludes from criminal contempt all publications made before the filing of a charge sheet or challan in court or before the issue of summons or warrant, even if such publications interfere or tend to interfere with the course of justice. Although it is pointed out that imminent criminal proceedings following the arrest of a person should be the starting point of restraint by the media, the law as it stands today favours taking into account the filing of a charge sheet to consider when the media ought to restrain itself, in order not to restrict unduly the freedom of expression during the period from the filing of FIRs and arrest of a person to the filing of charge sheets.
The Law Commissions 200th Report (2006) on Trial by Media points out that in several countries, including the United Kingdom, Australia and New Zealand, any publication made in the print or broadcast on the electronic media after a persons arrest, stating that the person arrested has previous convictions or that he has confessed to the crime during investigation or that he is indeed guilty, and the publication of his photograph are treated as prejudicial and as violative of due process required for a suspect who has to face a criminal trial.
The Law Commission observed: If media exercises an unrestricted or rather unregulated freedom in publishing information about a criminal case and prejudices the mind of the public and those who are to adjudicate on the guilt of the accused and if it projects a suspect or an accused as if he has already been adjudged guilty well before the trial in court, there can be serious prejudice to the accused. In fact, even if ultimately the person is acquitted after the due process in courts, such an acquittal may not help the accused to rebuild his lost image in society.
The Law Commissions concerns are understandable, but the process of Indias criminal justice system is lengthy and its many flaws favour the accused rather than the victim. Therefore, there is a need to balance the rights of the accused to a fair trial with the rights of the media and the public to expose these flaws.
There is, however, one aspect on which the media has erred substantially while covering the Rathore case. They have, with a few exceptions, ignored Norm 14 of the Press Council of Indias guidelines, which says: While reporting crimes involving sexual offences and questions related to a womans privacy, the identity of the victim should not be disclosed.