10 Aug 2020 11:10 AM GMT
Introductory The death of Bollywood actor Sushant Singh Rajput has given rise to a controversy which refuses to die; from the initial allegations of nepotism directed against Bollywood veterans to the declaration of the deceased actor's girlfriend Rhea Charaborty as the culprit, the case is now being used as a tool to consolidate votes for the upcoming Bihar Assembly Elections....
The death of Bollywood actor Sushant Singh Rajput has given rise to a controversy which refuses to die; from the initial allegations of nepotism directed against Bollywood veterans to the declaration of the deceased actor's girlfriend Rhea Charaborty as the culprit, the case is now being used as a tool to consolidate votes for the upcoming Bihar Assembly Elections. Quite unethically though, a large section of mainstream news media outlets have virtually declared Chakraborty as guilty – that she besides treating Rajput merely as her financer also abetted his suicide; some even stretched their conclusion to say that Rajput was in fact murdered by Chakraborty and her aides only for want of money – thereby themselves being guilty of what is quite un-popularly known as 'media trial'.
Interestingly, the sinister coverage given to the instant incident emboldened the trolls who did not hesitate one bit to qualify Bengali women as "gold-diggers", "manipulative", "dominating", "bish kanya", who "use their husbands for ATM", who know "how to call ghosts" and "ruin" men's careers. All of these while being reflective of unprincipled politics, misogyny and racism, also highlight the dangers of mob mentality that has been systematically cultivated over the years among the Indian people besides training the gullible masses to being judgmental.
Considering the aforesaid, it can safely be said that a section of the Indian media not only believes, but also wants the general populace to accept and adopt the standard that 'an accused person is guilty unless proven innocent'!
At this point in time it is essential to remind ourselves, lest we forget the inalienable principle of criminal law – the principle of presumption of innocence.
The Principle of Presumption of Innocence
Of the several principles upon which crime jurisprudence is premised, the presumption of innocence is one of the most endeared – Ei incumbit probation qui dicit, non qui negat (translated in English thus: 'Proof lies on him who asserts, not on him who denies'). The principle is attributed to the second and third century Roman jurist Julius Paulus Prudentissimus in the Digest of Justinian. With the passage of time, the principle became entrenched and found expression in the widest possible language – as the British barrister Sir William Garrow conceptualised during a 1971 trial, "presumed innocent until proven guilty." It later crystallised as a rhetoric by the renowned English jurist Sir William Blackstone in his seminal work, Commentaries on the Laws of England who put it thus: "... it is better that ten guilty persons escape than [...] one innocent suffer."
Simply put, the principle of presumption of innocence means that every person accused of any offence is presumed to be innocent and evidence must negative all reasonable doubts which support her innocence; nothing else will make a case which the defendant need meet. In other words, this presumption is a legal fiction which acts as an instrument of proof in favour of an accused whose innocence is accepted and recognised until sufficient evidence is introduced to overcome the presumption which the law has created. The burden of establishing the guilt of an accused rests strictly on the person who asserts it.
The principle of presumption of innocence has been accorded the status of an inalienable right in most countries, including both civil as well as common law countries. In addition, the principle is internationally recognised and finds mention in several international documents – Article 11 of the Universal Declaration of Human Rights, paragraph 2 of Article 14 of the International Covenant on Civil and Political Rights and Article 66 of the Rome Statute of the International Criminal Court – in addition to several regional-international and national legal documents.
As regards India, the presumption of innocence doctrine is a well entrenched criminal law principle.
The Basis of the Principle
In this and in other modern countries, the principal of presumption of innocence pervades the whole of the administration of criminal justice. Great emphasis has been placed on the rule prohibiting conviction in criminal cases unless the guilt is established with exceptional clarity – as we say nowadays, beyond reasonable doubt. Guilt cannot be presumed merely because the prosecutor or anybody else alleges it; the presumption must be in favour of innocence of the accused. The principle has assumed the status of policy. But what is the basis of the said presumption?
The following, which comprise the basis of such presumption, also highlight its inalienability:
The principle of presumption of innocence is both axiomatic and elementary, yet it is most often found to be on the backburner – the instant case of Rajput's death and the wholesale declaration of Charaborty's guilt, without trial, is a case in point. In fact, the stance of a large section of the media, hell bent on capitalising a tragedy by toying with another's life and career, has the simplicity of a third-rate fable which defies all boundaries of responsible journalism and journalistic standards; it is reflective of the fast depleting moral of what is supposed to be the fourth pillar of democracy!
Such irresponsible conduct of the media prejudices the entire administration of criminal justice. With the media opting to play the role it currently is in the instant case, the probability of the judge, who after all is a human being from amongst us, getting irreparably prejudiced increases sharply – the judgment rendered by the Hon'ble Supreme Court in the 2001 Parliament Attack Case bears eloquent testimony wherein their Lordships (as they were then) observed, at para 253, that "... the collective conscience of the country will only be satisfied if capital punishment is awarded to the offender," which was a perversion of yet another basic principle of administration of criminal justice that convictions and punishments follow strictly in accordance with the law and neither public opinion nor collective conscience have any bearing on them.
Another is a case from August 2015 wherein a Delhi woman Jasleen Kaur posted a photo of a man named Sarvjeet Singh with elaborate caption on Facebook and accused him of harassment. The post went viral when several news channels labelled him "Delhi Pervert" and shamed him publicly without verifying facts. Approximately five years later, Sarvjeet was acquitted of all charges. Be that as it may, the unrestrained and partial media coverage had by then inflicted much irreparable harm on Sarvjeet.
The aforementioned two cases, from amongst the so many, highlight the importance of the presumption of innocence doctrine and that the news media should follow the same both in letter and in spirit.
Views are personal only.
(Falakyar Askari is an Advocate at The High Court of Judicature at Patna , Zainab Khan is a Student of Law at KIIT Law School, Bhubaneshwar)