Trial by media flouts principle of fair trial

The judicial system is weakened if the media are allowed to conduct trials of accused persons, and the principle of fair trial on the basis of evidence admissible in a court of law is undermined.

Rhea Chakraborty and her brother Showik after a round of questioning by the Enforcement Directorate in connection with a probe in a money laundering case linked to the death of the actor Sushant Singh Rajput, in Mumbai on August 10, 2020.

Rhea Chakraborty bore the ordeal of her trial by media with dignity. But soon after the din in the media on the Sushant Singh Rajput case subsided, another case of alleged murder committed in an alleged gruesome manner set the media on fire. It was the murder, also in Mumbai, of a 19-year-old college student during a New Year’s Eve party.

The city seems particularly prone to feast on the sensational. A hundred years ago, it was the Bawla murder case which forced the Maharaja of Indore to abdicate. Around half a century ago, Mumbai was rocked by the Nanavati murder case. There was no television then.

The temptation to censure any group must be avoided, be it the police, the media or lawyers. Criminals have escaped punishment because the judge declared that, having regard to the atmosphere produced by the media, a fair trial was not possible. There is a plethora of such cases. The complexities of diverse aspects of the problem preclude a dogmatic or an absolutist approach.

Gulshan Kumar murder case

Consider, for example the murder of Gulshan Kumar, film producer and founder of the T-series music label, on August 12, 1997. The music composer Nadeem Akhtar Saifi had entered the United Kingdom with his pregnant wife and child in July 1997. The Government of India moved the courts there for his extradition to India to stand trial for the murder of, and conspiracy to murder, Gulshan Kumar. The application was rejected by two courts. Nadeem applied for a writ of habeas corpus . The writ was issued. Nadeem was ordered to be produced before the court “and that he be discharged forthwith in relation to the offences in respect of which his return is sought by the Union of India”.

Lord Justice Rose delivered an instructive judgment, in which Justice Newman concurred, on December 21, 2000. The language is simple. Cases are cited to the point and briefly. One wishes that judges of our Supreme Court would emulate English judgments.

The following passage in the judgment is most instructive: “We find the following circumstances bear upon whether the accusation is made in good faith and in the interests of justice, and whether it would be unjust or oppressive to return him. There was no legally admissible material available to the Mumbai Police Commissioner to provide reasonable grounds for his statements that ‘witnesses quite clearly indicated that Nadeem (the applicant) hired Abu Salem gang’s services to eliminate Kumar’ .... ‘and we have ample evidence to prove Nadeem’s involvement .....’ This court is placed on inquiry as to what motive there could have been for such an unsubstantiated statement to be made at a press conference.

“Indeed, even if grounds existed for such a belief, the making of such a statement would raise questions about its underlying motive. The assertion of the Mumbai Deputy Chief Minister gives rise to like concern.

“Having regard to the vital importance to be attached to the circumstances surrounding the confession made by Ali Shaikh, the absence of any reference in the requests for his return to the pressure recorded by the Magistrate on 18th, 20th and 26th September, is remarkable. This non-disclosure on such a central feature of the case has not been explained. It is to be inferred that it was deliberate and calculated to leave those considering the case with the impression that it was stronger than the true facts merited.

“Equally, the failure to disclose Ali Shaikh’s retractions until part way through the committal proceedings causes this court astonishment. No explanation has been provided. It is to be inferred that it, too, was deliberate and calculated to leave the impression that the case against the applicant was stronger than the true facts merited. The above circumstances have to be considered in the light of the further evidence, since the committal, about the obtaining of Ali Shaikh’s confession, his literacy and the genesis of ABB10 (his confession). In our judgment a pattern of events emerges, which is consistent with (a) a pre-conceived desire to blame the applicant when no evidence existed; and (b) the use of improper pressure to obtain a statement from Ali Shaikh to make good the allegations. Whereas the evidence of Ali Shaikh’s lawyers may have provided some reassurance about the propriety of what happened, the evidence of Prison Officer Wankhede and Advocate Mokashi give added cause for anxiety. Further, we note, so far as these two witnesses are concerned, that the police plainly disregarded Mr. Garlick’s direction that no approach should be made to them before they gave evidence. We infer that the police have an improper interest in interfering with the evidence in this case.

“The expert evidence points to ABB10 (his confession) as having been signed by Ali Shaikh in blank. The language of the document shows that, unless he is more educated than anyone suggests, it could not be his own confession. We infer that this document could not have been created without interference from those responsible for holding Ali Shaikh. The evidence of Mr Vanzara supports the conclusion that Ali Shaikh is illiterate. His daughter’s evidence is consistent with the document being the construct of another, placed above his signature after this had been obtained from him on a blank sheet of paper. The inclusion of Javed Fawda’s name in Ali Shaikh’s deposition, at a late stage and where there are grounds to connect it with unlawful and unjustified action by the police requiring false justification, leads us to question the role of the police in relation to the appearance of Javed Fawda’s name.

“The cumulative effect of all these circumstances causes us to infer that the accusation of murder and conspiracy made against this applicant is not made in good faith and in the interests of justice. Having reached this conclusion we are also satisfied that it would not be fair and would be unjust to return the applicant, because of the appearance of misbehaviour by the police in pursuing their inquiries and the significant risk that the activities surrounding that misbehaviour have so tainted the evidence as to render a fair trial impossible.”

It would be wrong to infer that the police misstatement to the press alone resulted in the failure of India’s case. But it was a contributory cause. The importance of this ruling lies in the clear distinction between evidence which is admissible in a court of law under the Evidence Act and evidence which is not admissible. More often than not, it is such evidence—spicy, slanted and prejudicial—which is touted in the media. It is such evidence, to use an old legal expression, that “prejudices mankind”. It is such evidence that the police retail, more often than not, to the media. Confessions, “disclosure statements”, and the like, quite regardless of whether they will be admissible as evidence in a court of law.

Crude attempts to claim credit

There is a growing tendency among investigating officers (either police or other departments) to inform the media, even before the completion of investigations, that they have caught a criminal or an offender. Such crude attempts to claim credit for imaginary investigational breakthroughs should be curbed. Even where a suspect surrenders or a person required for questioning voluntarily appears, it is not uncommon for the investigating officers to represent to the media that the person was arrested with much effort after considerable investigation or a chase. Similarly, when someone voluntarily declares the money he is carrying, the media are informed that huge cash which was not declared was discovered by the police’s vigilant investigations and thorough checking. Premature disclosures or “leakage” to the media in a pending investigation will not only jeopardise and impede further investigation, but many a time allow the real culprit to escape from law.

The police are not the only offenders. Lawyers and court reporters also tend to commit such a wrong. The police have a duty to inform a restive people about the crime and its investigation. But, a line must be drawn. That is the task before society, and not in relation to the police alone, either. It must cover all, media and lawyers included.

Free speech or fair trial?

Geoffrey Robertson, Q.C., and Andrew Nicol, Q.C., summed up the law accurately in their excellent work Media Law : “When the principle of free speech collides with the principle of fair trial, however, the former must give way” (page107). This is fundamental and admits of no compromise. They proceed to point out: “Judges occasionally decide that a fair trial is impossible because of earlier press reporting: one notable example was the trial of West Midlands police officers charged with conspiracy to pervert the course of justice because of their role in the Birmingham six affair. Another example was the trial of Geoffrey Knights who was charged with injuring the driver of his partner, the EastEnders star, Gillian Taylforth.”

Professor A.T.H. Smith, Cambridge University, and a barrister, authored an instructive essay on “Free Press and Fair Trial: Challenges and Change”. He wrote: “In R v Cullen, McCann and Shanahan, convictions for conspiracy to murder, and the consequent twenty-five-year gaol sentences were quashed as a result of remarks by Lord Denning, and the Home Secretary, who had both made adverse remarks about the right to silence, even as it was being exercised by persons on trial. Newspaper coverage of the trial itself was held to be so prejudicial in Taylor and Taylor that convictions of murder were quashed because of the press coverage of the trial which led to such 13 headlines as ‘the Killer Mistress who was at Lover’s Wedding’, and ‘Love Crazy Mistress Butchered Rival Wife, Court Told’. Some of this was illustrated with a still from a video of the victim’s wedding, showing one of the defendants kissing the groom (her lover), a peck on the cheek being turned into a passionate kiss by creative editing.” ( Freedom of Expression and Freedom of Information edited by Jack Beatson and Yvonne Cripps, page 132.)

Lawyers are not blameless and have been censured by the Supreme Court of India in evocative prose. “We notice that there is a growing tendency among the media to make comments on the merits of the case pending before the courts, while reporting on pending proceedings. Talk shows are held even on the merits of interim orders passed by the courts. Conflicting views, even on interim orders, are broadcast and the anchor, in some cases, finally pronounce the verdict also. Such trial by media is sure to prejudice either the prosecution/ plaintiff/petitioner or the accused/defendant/respondent. Such programmes of the media have the effect of interfering with the administration of justice and therefore, will amount to criminal contempt. The theory of our system of justice is that ‘the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by outside influence, whether of private talk or public print’. Such programmes make a mockery of this theory against outside influence. ‘The right to sue and defend in courts is the alternative of force in an organised society. It is the right conservative of all other rights and lies at the foundation of orderly government.’ But, the said cardinal right is being infringed by such talk shows. To keep the viewers remain glued to their programme in the evening, the channels broadcast such talk shows. But, in that process, unknowingly, the system of administration of justice of our state is being weakened and distorted. Interference even with police investigation will amount to interference with the due course of justice. Influencing the investigation will amount to contempt of Court.” (Cited in Madhavi Goradia Divan’s excellent work, Facets of Media Law, page 470; the author is an Additional Solicitor General.)

Talk shows and lawyers

Professor Eric Barendt holds in his authoritative work Freedom of Speech that “no lawyer has a right to evade those restrictions [of the law of evidence] by introducing inadmissible evidence at a press conference outside the court” (page 337).

A lawyer who pleads in court performs the duty and function of an advocate. When he pleads for his client to the press, he acts as a public relations officer and debases himself. PROs of big corporations do such dirty work for them. A senior member of the Supreme Court Bar would instruct a selected journalist, in a high-profile case, and then have a public interest litigation petition filed on the basis of her report. A total ban is required on such interviews. In the United States, debate on the subject was triggered off by the famous case of Dr Samuel H. Sheppard in 1954. It was preceded by the case of a “wheeler-dealer” Billie Sol Estes. The American Bar Association’s Advisory Committee Report on Fair Trial and Free Press, known as the “Reardon Report”, is a classic. Do not expect such work from our Bar Associations. It is very tiring.

The media are not always to blame. They can expose lapses in police investigations and flaws in court rulings. Jessica Lal’s case is a good example. The Supreme Court remarked: “We have viewed with disbelief Senior Advocates freely taking part in TV debates or giving interviews to a TV reporter/anchor of the show on issues that are directly the subject matter of cases pending before the court and in which they are appearing for one of the sides or taking up the brief of one of the sides soon after the TV show. Such conduct reminds us of the fictional barrister, Rumpole, ‘the Old Hack of Bailey’ who self-deprecatingly described himself as an ‘old taxi plying for hire’.”

Jessica Lal case

As Madhavi Divan points out , the case arose out of the cold-blooded murder in 1999 of a young woman bartending at a high-profile restaurant in Delhi. The main accused was Manu Sharma, the son of a powerful politician. In 2006, the trial court in Delhi acquitted all the nine accused in the case. There was huge public dismay at the acquittal. The media soon launched a blitzkrieg on the manipulation of the trial through the political connections of some of the accused, on the manner in which witnesses turned hostile and the shoddiness with which the prosecution conducted the case. The media reported reactions from ordinary citizens at the farcical failure of justice. The result of this was that even without awaiting the State’s appeal against the acquittal, the Delhi High Court ordered a suo moto reinvestigation of the case. The re-trial, which took place largely because of the pressure mounted by the media, eventually led to the conviction of three of the accused, including Manu Sharma and Vikas Yadav, the latter also an accused in the infamous Nitish Katara murder case. One of the main arguments raised on behalf of Manu Sharma in the Supreme Court was that he was a victim of trial by the media which had proclaimed him guilty even after his acquittal by the trial court.

The Supreme Court upheld his conviction but observed:

“Despite the significance of the print and electronic media in the present day, it is not only desirable but the least that is expected of the persons at the helm of affairs in the field, is to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.

“Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending.”

A solution to the problem will be achieved only if a dogmatic approach is eschewed. Do not rely on the state or the ramshackle Press Council. A committee should be set up comprising representatives of the Bar, the media, print and electronic and the police. It should be assisted by a couple of researchers including some from the Police Journal , a first-rate magazine. It should work free from public glare. It should quietly consult all the stakeholders and produce a report containing in its conclusions rules for all to follow. Its credibility will be enormous.