17 Oct 2022 4:29 AM GMT
CONTENTS Table of citations i to vi Sl.No I N N E R T I T L E S Para. Nos Page. Nos A Introduction 1 1 B The "fourth estate" and the need, if any, for its empowerment 2 1 C ...
Table of citations
i to vi
I N N E R T I T L E S
The "fourth estate" and the need, if any, for its empowerment
What is Trial by Media ?
A few media excesses
The ISRO espionage case
Mariam Rasheeda/K. Chandrasekhar v. State of Kerala AIR 1998 SC 2001 - M. K. Mukherjee, S. S. Mohammed Quadri – JJ.
The Land Grab Case allegedly involving the office of the Chief Minister of Kerala
The need for a vibrant and fearless media
Section 327 Cr.P.C.
The media has no right over and above that of a citizen
Limitations on the freedom of the media
Limitations on the Freedom of speech and expression –
a) the right to reputation
b) the right to privacy (decency and morality)
C) the law of contempt of court etc.
Exceptions to the "open justice rule"
Statutory provisions discouraging publication of certain Court proceedings.
The difficulties of the media victim
The passion for publicity
The concept of fair trial before a judicial forum
Restrictions on reporting issues which are "sub judice"
The code of journalistic ethics
Some personal observations
The Kerala solar case
What is the probative value of the Report of a Commission of Inquiry ?
Modesty of a Malayalam cine actress outraged
Media engaged in snatching investigation details
The mighty and all pervading media
Sting operation against a saintly soul
"Audi alteram partem frequently breached by the media
Judges are not semi-permeable inanimate membranes
a) Media participation of Advocates
"The blameworthy conduct of an officer of the Court"
c) Role of the High Courts to avert damage by the media to matters which are sub judice.
Unpardonable ignorance of Law
The impropriety of reporting oral observations and dialogues in Court
Personal humiliation of Judges and Judicial officers
No duty to answer the media
The so-called public curiosity
Autopsy of court verdicts
A few notable judicial pronouncements deprecating trial by media
State of Kerala v. Aboobacker 2006 KHC 1026
Sivarajan v. State ILR 1959 Ker. 319 (FB).
State of Maharashtra v. Rajendra Jawanmal Gandhi AIR 1997 SC 3986
M. P. Lohia v. State of W. B. (2005) 2 SCC 686
Unwholesome conduct of police officers leaking out investigation details
Murukeshan v. State of Kerala 2007 (1) KLT 194
Kartongen Kemi Och Forvaltning AB v. CBI 2004 CCR 285 (Delhi)
Media V/s Bar – The Kerala Misadventure
A serious lapse committed by news channels
The Soumya "rape and murder" case from Kerala
The desirability of the media covering Court proceedings
The alleged betrayal and sexual exploitation of the female penitents by some Christian Priests
Kudos To Media
The reason behind the direction by the Supreme Court of India and various High Courts to the effect that the investigating agency should not leak out investigation details to anybody else including the media during the crime stage
What is improper or illegal is not the media embarking upon a parallel investigation with a view to unearth the truth, but in instantly publishing those details
The proper course for the media to do in such situations
How to control or regulate the objectionable social media adventurism
By way of conclusion
Table of citations
C I T A T I O N
Ambika Prasad v. State (Delhi Administration AIR 2000 SC 718 – M. B. Shah – J.
Anukul Chandra Pradhan v. Union of India 1996 (6) SCC 354 - J. S. Verma, B. N. Kirpal – JJ.
Ashish Batham v. State of M.P (2002) 7 SCC 317 = AIR 2002 SC 3206 – Doraiswamy Raju – J.
Attorney General of Nova Scotia v. MacIntyre (1982) 1 SCR 175 at 185 (Can) - Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer – JJ.
Attorney General v. Guardian Newspapers Ltd. (No: 2) 1988 (3) All ER 545 - Die Jovis.
Babu Singh v. State of Punjab 1964 (1) Cri.L.J 566 (SC) – P. B. Gagendragadkar – J.
Balakrishna Pillai v. State of Kerala 1988 (2) KLT 1039 = AIR 1989 Kerala 99 (FB.) – 3 Judges – Malimath – CJ, Paripoornan, Bhaskaran Nambiar – JJ.
Baliram Waman Hiray (Dr.) v. Justice B. Lentin (1988) 4 SCC 419 = AIR 1988 SC 2267 – Sen – J.
Bhuvan Mohan Patnaik v. State of A.P. AIR 1974 SC 2092 - H R.Khanna, Y.V.Chandrachud, P.K.Goswami – J.
Bridges v. California 314 US 252 (1941) – Justice Hugo L. Black; Attorney General v. Times Newspapers Ltd. (1973) 3 All.ER. 54 (HL) - Lord Phillips MR,Tuckey & Longmore L –JJ.
C.G. Janardhanan v. T.K.G. Nair 1960 KLT 792 – P. Govinda Menon – J.
Channing Arnold v. King Emperor AIR 1914 PC 116 – Shaw – J.
Craig v. Harney 331 US 367 (1947) - Douglas – J.
Dara Singh v. Republic of India (2011) 2 SCC 490 – P. Sathasivam – J.
Dileep v. State of Kerala 2022 (1) KHC 737 – Gopinath P. – J.
Gangadhar Behera v. State of Orissa AIR 2002 SC 3633 – Arijit Pasayat – J.
Gannette Co. Inc. v. DePasquale 443 US 368 (1979) – Stewart – J.
Government Pleader v. Mathayi Manjooran 1959 KLT 102 – C. A. Vaidialingam – J.
In Re M.V. Jayarajan 2011 (2) KLD 767 - V. Ramkumar – J.
In Re S. (A Child) (2004) 4 All.ER. 683 – Lord Steyn.
Iqbal Moosa Patel v. State of Gujarat (2011) 2 SCC 198 = 2011 Cri.L.J. 1142 – T. S. Thakur – J.
Kailash Gour v. State of Assam (2012) 2 SCC 34 = AIR 2012 SC 786 – 3 Judges - Dalveer Bhandari, T. S. Thakur, Dipak Misra – JJ.
Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808 = AIR 1973 SC 2773 - 3 Judges - H. R. Khanna, A. Alagiriswami, R. S. Sarkaria – J.
Kartongen Kemi Och Forvaltning AB and Ors v. State Through CBI 2004 CCR 285=2004 (72) DRJ 693 - J. D. Kapoor – J.
Kehar Singh v. State (Delhi Admn.) AIR 1988 SC 1883 - 3 Judges - G. L. Oza, B. C. Ray, K. Jagannatha Shetty – JJ.
Kochu Moideen V. Nambeesan and Others 1969 KLT 513 -P. Narayana Pillai – J.
Krishnan v. Krishnaveni AIR 1997 SC 987 – 3 Judges - K. Ramaswamy, S. Saghir Ahmad, G. B. Pattanai – JJ.
M. P. Lohia v. State of W. B. (2005) 2 SCC 686 – N. Sathosh Hegde, S. B. Sinha – J
M. S. Sheriff v. State of Madras AIR 1954 SC 397 = 1954 Cri.L.J. 1019 - 5 Judges - Mehr Chand Mahajan – CJI, B. K. Mukherjea, S. R. Das, Vivian Bose, Ghulam Hasan – JJ.
Maharashtra v. Rajendra Jawanmal Gandhi , (1997) 8 SCC 386 = AIR 1997 SC 3986 - M. K. Mukherjee, D. P. Wadhwa – JJ.
Miller v. Minister of Pensions 1947 (2) All. ER. 272 – Lord Denning.
Mohammed Haneefa v. State of Kerala 1988 (2) KLT 919 - T. L. Viswanatha Iyer – J.
Murukeshan v. State of Kerala 2011 (1) KLT 194 – V. Ramkumar – J.
Musheer Khan v. State of M.P (2010) 2 SCC 748 - Asok Kumar Ganguly – J.
Narendra Singh v. State of M.P. (2004) 10 SCC 699 – S. B. Sinha – J.
Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1 – 9 Judges - P. B. Gajendragadkar – CJI, A. K. Sarkar, K. N. Wanchoo, M.Hidayatullah, J. C. Shah, J. R. Mudholkar, S. M. Sikri, R. S. Bachawat, V. Ramaswam - JJ.
Nisar Ali v. State of U.P. AIR 1957 SC 366 = 1957 Cri.L.J. 550 – Kapur – JJ.
Noor Agha v. State of Punjab (2008) 16 SCC 417 – S. B. Sinha – J.
Pennekamp v. Florida 328 US 331 (1946) - Frankfurter – J.
Prem Kumar Gulati v. State of Haryana (2014) 14 SCC 646 –M .Y. Eqbal– J.
R. K. Anand v. Delhi High Court (2009) 8 SCC 106 - B. N. Agrawal, G. S. Singhvi, Aftab Alam – JJ.
Rajendran Chingaravelu v. R. K. Mishra, Additional Commissioner of Income Tax (2010) 1 SCC 457 - R. V. Raveendran – J.
Sahara India Real Estate Corporation Ltd. v. SEBI AIR 2012 SC 3829 – 5 Judges - S. H. Kapadia – CJI, D. K. Jain, S. S. Nijjar, Ranjana Prakash Desai, J. S. Khehar – JJ.
Saibal Kumar Gupta v. B. K. Sen AIR 1961 SC 633 – 3 Judges – S. J. Imam, K. Subba Rao, Raghubar Dayal - JJ.
Scott v. Scott (1911 – 13) All.ER 1 (HL) - Viscount Haldaen L C.
Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288 = AIR 1987 SC 877 - 5 Judges - P. N. Bhagwati – CJI, E. S. Venkataramiah, V. Khalid, G. L. Oza, S. Natarajan- JJ.
Shivaji Sahebrao Bobade v. State of Maharashtra AIR 1988 SC 1998 – K. Jagannatha Shetty – J.
Shreya Singhal v. Union of India (2015) 5 SCC 1 = AIR 2015 SC 1523 - Rohinton F. Nariman – J.
Sivarajan v. State ILR 1959 Ker. 319 – 3 Judges – K. T. Koshi – CJ, K. Sankaran, P. T. Raman Nayar – J.
State Bank of India through General Manager v. National Housing Bank & Others AIR 2013 SC 3478 3 Judges -R. M. Lodha, J. Chelameswar, Madan B. Lokur - JJ.
State of Kerala v. Aboo Backer ILR 2006 (3) Ker. 672 – V. Ramkumar – J.
State of Kerala v. Narayanan Bhaskaran 1991 (2) KLT 217 = 1991 Cri.L.J 1238 - Sankaran Nair – J.
State of Maharashtra v Rajendra Jawanmal Gandhi, AIR 1997 SC 3986 – D. P. Wadhwa – J.
Sunil Batra v. Delhi Administration (1978) 4 SCC 494 = AIR 1978 SC 1675 – 5 Judges - Y. V. Chandrachud - CJI , V. R. Krishna Iyer, S. Murtaza Fazl Ali, P. N. Shinghal; D. A. Desai – JJ.
Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 - Dr. B. S. Chauhan – J.
Suraj v. State of Kerala 2022 (3) KHC 243 – Mohammed Nias – J.
T.H. Hussain v. M.P. Modkakar AIR 1958 SC 376 – P. B. Gajendragadkar – J.
T.T Antony v. State of Kerala AIR 2001 SC 2637 - Syed Shah Mohammed Quadri – J.
Willi (William) Slaney v. State of M.P AIR 1956 SC 116 – 5 Judges - S. R. Das – Ag. CJ, Vivian Bose, B. Jagannadhadas, S. J. Imam, N. Chandrasekhara Aiyar – JJ.
A. I N T R O D U C T I O N
This article was originally penned by me on 30-09-2013 for the theme presentation of "Trial by Media" during the inaugural session of a National Workshop on "Empowering the Fourth Estate" organized by the National University of Advanced Legal Studies (NUALS) on 03-10-2013. The article was initially confined to the objectionable parallel trial by the media, of a case which may be the imminent or current subject-matter of a trial before a Court of justice. Although the above objective has, by and large, been adhered to, certain supervening incidents persuaded the author to marginally digress from the bad effects which a trial by the media can cause to the administration of justice.
B. THE FOURTH ESTATE AND THE NEED, IF ANY, FOR ITS EMPOWERMENT
2. The term "fourth estate" comes from the Reporter's gallery in the House of Commons of the British Parliament. The said expression is currently used to mean the journalistic profession and the news media. The origin of the term "fourth estate" is attributed to Mr. Edmund Burke, a British orator, writer and statesman born in Ireland in the year 1729. Mr. Burke is said to have used the term "fourth estate" in a parliamentary debate in 1787 on the opening of the press reporting of the House of Commons of Great Britain. The other three traditional estates of the British Parliament are the Lords Spiritual, the Lord Temporal and the Commons. The corresponding three estates of French States-General are the Church, the nobility and the townsmen (the commons).
C. WHAT IS TRIAL BY MEDIA ?
3. The expression "trial by media" itself is a misnomer. The word "trial" has not been defined either by the Code of Civil Procedure, 1908("C.P.C." for short) or the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) which are the basic statues governing the trial of civil and criminal cases by the respective courts in India. Black's Law Dictionary (9th Edition) gives the word "trial" the following meaning:-
"a formal judicial examination of evidence and determination of legal claims in an adversary proceeding".
4. Sec. 2(7) of the Bankers' Books Evidence Act, 1891 defines the word "trial" as under:
"trial means any hearing before the Court at which evidence is taken".
5. Thus, "trial" ordinarily means a proceeding before a Court of justice. If so, there cannot be a trial by the media. But these words are often used to denote an exercise undertaken by the media virtually taking up the role of a judicial forum for which such exercise has been earmarked by the laws of the land. The Supreme Court of India has had occasion to note the consequence of "trial by media" in the following words:-
"The impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial impossible but means that regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny". (Vide para 293 of R.K. Anand v. Delhi High Court -(2009) 8 SCC 106 - 3 Judges - B. N. Agrawal, G. S. Singhvi, Aftab Alam – JJ).
6. In State of Maharashtra v. Rajendra Jawanmal Gandhi , (1997) 8 SCC 386 = AIR 1997 SC 3986 - M. K. Mukherjee, D. P. Wadhwa – JJ, the Apex Court observed as follows:
"A trial by press, electronic media or public agitation is very antithesis of the rule of law. It can well lead to miscarriage of justice".
7. But when a sensational criminal case comes up for investigation before the police or for adjudication in a subsequent trial before the Court, the usual question asked is "Is the media expected to be a silent spectator and insensitive to the happenings around and failing to quench the public curiosity about the case ?". Certainly not. But the question is how far the media can go. This will be answered later in the course of this Article.
D. A FEW MEDIA EXCESSES
i) The ISRO espionage case
8. We see newspapers and news channels competing with each other and giving their own version of the facts of a given case. We are not unfamiliar with accusations from the parties concerned or their friends and relatives or from the members of the society at large that the media itself has been responsible for unduly sensationalizing a case which is otherwise a bland and unimportant case. We have seen the media highlights of a couple of Maladivian citizens of the fair sex in the "ISRO espionage case" and the final outcome of that case. Were the two ladies who were characterized in some quarters as "sex bombs" avenged for the loss of the reputation which they suffered ? Has the renowned scientist of the prestigious Space Research Organization been adequately compensated for the mental agony and slur on his credentials ? Even a public apology by those responsible for spreading the spicy story cannot efface the blot on the reputation of such personalities. This is because there will always be a lingering doubt in the public mind whether the subsequent extrication of the person is really true. The social ostracism faced by the reputed scientist on account of the adverse media coverage will be almost irreversible notwithstanding the acquittal by the Court. Who is responsible for the creation of such prejudiced public opinion about these individuals in whom the law presumes innocence and good reputation and what, if any, is the accountability of those agencies for the creation of such negative bias ? Even if it could be said that the thirst for sensational news is a natural human desire, can investigative journalism quench that thirst without any risk or cost or without adequate verification of the truth of certain allegations ?
ii) The Land Grab Case allegedly involving the office of the Chief Minister of Kerala
9. A Writ Petition filed before the High Court of Kerala requested the Court to handover the investigation to the CBI of a land grab case involving the gunman (subsequently suspended) of the then Chief Minister of Kerala. The said request was allowed by a learned Single Judge who in his judgment (of avoidable prolixity running into 132 pages) inter alia, observed that when the allegation was against a member of the personal staff of the Chief Minister and when there were complaints against the State Police that they were shielding the culprits, it is a fit case for entrusting the investigation to the CBI. Accordingly, the Writ Petition was so ordered. As soon as the judgment was delivered, various television channels came out with "breaking news" to the effect that the High Court had made scathing strictures against the Chief Minister. Taking the cue from the media reports the opposition repeatedly used their broach against the Chief Minister alleging that he was shamelessly clinging on to the Chief Minister's chair. The "news bomb" thus exploded by the media had its own devastating effect on the body politic. Parliament elections were round the corner. While the political rivals of the ruling party took full advantage of the "breaking news", those in the ruling congress party started a vituperative tirade against the learned Judge by even attributing partisanship to him. Occasions when the Judge and certain leaders of the opposition were together in some public or social functions or on a boat ride etc. in the distant past were cited out of context to allude that the Judge was hand-in-glove with the opposition in the invective ventures against the Chief Minister. A sitting MLA even went to the extent of sending an open letter to the Chief Justice of India indicating that the alleged misconduct on the part of the Judge was grave enough to impeach him. The situation became serious enough to force the Advocate General of the State to file an appeal before the Division Bench for expunging the alleged strictures in paragraph 71 of the judgment and the Division Bench stayed two sentences in that paragraph. Out of sheer curiosity I got down a copy of the condemned Judgment. It was shocking to note that except referring to various allegations levelled against the office of the Chief Minister by the Writ Petitioners and except alluding to the findings recorded by various Governmental agencies, there was no adverse or disparaging remarks personally made by the Judge against the Chief Minister. Even the references made were only to say that the matter called for an impartial investigation by the CBI. But the impact which the "media bomb" had already created and the consequent reaction by the politicians and other vested interests were such that the Advocate General presumably had no option except to move the Division Bench which in turn stayed two innocuous sentences (which if read along with the preceding and succeeding paragraphs do not have the attributed effect at all). One thing is very clear. It was without even reading the judgment that the "breaking news" was shot at the unsuspecting public in the most irresponsible manner. Kerala State soon witnessed the unprecedented scene of the wounded Judge making a public statement refuting the personal allegations made against him in the print and electronic media. When legally challenged personnel are at the helm of news reporting, what the viewing and reading public get is distorted, garbled, truncated and misleading versions. The injured do not sue those who are guilty of spreading slanders, libels and canards either because they have no time to do so or because they are not rich enough to fight the mighty media. But the trend is certainly pernicious, counter-productive and self-destructive. Inquisitive busy bodies shouldn't forget that they too have their own secrets frailties, vulnerabilities and weaknesses which they loath if made public. The cruel pleasure of excoriating others will vanish when it comes to one's own turn to be on the receiving end. Howsoever high or low he may be, every person has his reputation which another including the media is not entitled to invade on the basis of unconfirmed or misinformed rumours. Judges who do not repudiate or contradict the personal denunciation levelled against them are very often the soft targets of their condemners. Unlike the politicians, Judges do not repudiate any wanton and contemptuous allegations made personally against them, besides the fact that they have no forum to controvert baseless insinuations levelled against them.
E. THE NEED FOR A VIBRANT AND FEARLESS MEDIA
10. People are the only censors of their own representatives who rule them and, therefore, people should be given complete information of the affairs of the representatives through the channels of public domain. It was with great appreciation and adoration that I watched a recent Malayalam movie titled "ONE" in which Mammootty the accomplished cine star played the role of the Chief Minister Advocating a right in the electorate to recall their leader. In any democracy "people" are the supreme. A free, independent and fearless Press is the sine qua non of a vibrant democratic society in a free country where there is no dictatorship or throttling of dissemination of news. It is the right of the public to know current information which is served by the print and electronic media. R. K. Anand's case (Supra - (2009) 8 SCC 106) and Manu Sharma – Jessica Lal murder case (Supra – (2010) 6 SCC 1) etc. were positive instances of media activism. The most fundamental principle of justice is that justice should not only be done but should also appear to have been done. Openness and publicity are the sine qua non of the right to fair trial and this right emanates from Article 21 of the Constitution of India. Every person standing trial before a Court is entitled to open, speedy and fair trial. Under the Rule of open justice, the primary beneficiary of openness and publicity is the person who is being tried. All concerned should ensure that he gets fair justice according to law.
11. Public access to trials has been held to serve an important sunshine function. Openness is also a safeguard against judicial error and misconduct. It is an effective deterrent against perjury. Lord Halsbury in the celebrated constitutional case of Scott v. Scott (1911 – 13) All.ER 1 (HL) - Viscount Haldaen L C, declared that "Every Court in the land is open to every subject of the King." At page 373 in Chapter 23 of Volume III the "Commentaries on the Laws of England" (1768), the importance of the concept of "open justice" has been stated thus –
"This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk…………"
12. In the United Kingdome, after the advent of the Human Rights Act, 1998, the House of Lords In Re S. (A Child) (2004) 4 All.ER. 683 – Lord Steyn, emphasized that the freedom of expression exercised by the media applies with equal force to the freedom of the press to report criminal trials in progress and after verdict.
13. The position in the United States of America also has not been different. In Pennekamp v. Florida 328 US 331 (1946) - Frankfurter – J remarked,
"Of course trials must be public and the public have a deep interest in trials."
14. In Craig v. Harney 331 US 367 (1947) - Douglas – J observed,
"A trial is a public event. What transpires in the Court room is public property"
15. The same principle was recognized by the U.S. Supreme Court in Gannette Co. Inc. v. DePasquale 443 US 368 (1979) – Stewart – J, observing as follows:-
"As early as 1685, Sir John Hawles commented that open proceedings were necessary so that "truth may be discovered in civil as well as criminal matters".
16. The House of Lords speaking through Lord Donaldson in Attorney General v. Guardian Newspapers Ltd. (No: 2) 1988 (3) All ER 545 - Die Jovis, observed as follows :-
"It is not because of any special wisdom, interest or status enjoyed by proprietors, editors or journalists. It is because the media are the eyes and ears of the general public. Their right to know and their right to publish is neither more nor less than that of the general public. Indeed, it is that of the general public for whom they are trustees."
17. In a Canadian case namely, Attorney General of Nova Scotia v. MacIntyre (1982) 1 SCR 175 at 185 (Can) - Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer - JJ, it was observed in the verdict of Dickson as follows:-
"Many times it has been urged that the "privacy" of litigants requires that the public be excluded from Court proceedings. It is now well established, however, that covertness is the exception and openness is the rule. Public confidence in the integrit of the Court system and understanding the administration of justice are thereby fostered. As a general rule, the sensibilities of the individual involved are no basis for exclusion of the public from judicial proceedings."
18. Thus, the general advantage to the public in having the proceedings reported more than counter balances the inconveniences to the individuals concern.
19. Quoting from Attornery General v. Guardian Newspapers Ltd. (No:2) 1988 (3) All ER 545 – Die Jovis, the High Court of Kerala In Re M.V. Jayarajan 2011 (2) KLD 767 - V. Ramkumar – J, observed thus:-
"The existence of a free press is an inevitable necessity in maintaining parliamentary democracy. The Press occupies an unenviable position because the media are the eyes and ears of the general public. They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public for whom they are trustees".
20. The above case was one in which the media was both appreciated as well as criticized – appreciated for the salutary role in bringing the issue of contempt of court to the public domain, criticized for its role in holding a parallel discussion and public debate of the issues which were sub judice.
21. In Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1 – 9 Judges - P. B. Gajendragadkar – CJI, A. K. Sarkar, K. N. Wanchoo, M.Hidayatullah, J. C. Shah, J. R. Mudholkar, S. M. Sikri, R. S. Bachawat, V. Ramaswam - JJ, the Supreme Court held that the Court has the inherent power under Section 151 of the Code of Civil Procedure, 1908 (CPC) to order a trial to be held in camera, but this power must be exercised with great caution and only where the Court is satisfied beyond doubt that the ends of justice would be defeated, if the case were to be tried in open Court.
22. In Sahara India Real Estate Corporation Ltd. v. SEBI AIR 2012 SC 3829 – 5 Judges - S. H. Kapadia – CJI, D. K. Jain, S. S. Nijjar, Ranjana Prakash Desai, J. S. Khehar - JJ, another Constitution Bench of the Supreme Court held that while there was a presumption in favour of open justice and the media's right to report cases, the Bench hastened to add that in exceptional cases, the Superior Courts had the power to postpone the reporting for a limited duration in the interest of justice and that orders for such postponement would be subject to the necessity and proportionality.
23.In India, the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) recognizes the "Open Justice Rule" through Section 327 which reads as follows:-
"327: Court to be open- (1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room building used by the Court.
(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB or Section 376E of the Indian Penal Code shall be conducted in camera:
Provided that the Presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court:
Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.
(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court:
Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties."
F. THE MEDIA HAS NO RIGHT OVER AND ABOVE THAT OF A CITIZEN
24. In Channing Arnold v. King Emperor AIR 1914 PC 116 – Shaw – J, observed as follows:-
"The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever lengths the subject in general may go, so also may the journalist, apart from the statute law, his privilege is no other and no higher….no privileges attaches to his position".
25. Freedom of the Press is thus a derivative of the citizen's fundamental right to "freedom of speech and expression" as enshrined in Article 19 (1) (a) of the Constitution of India. This means that the media does not enjoy any power larger than that of the general public whom they represent. In other words, the media is subject to all the restrictions which every member of the general public is subject to. In fact, the journalist is saddled with more responsibility than a member of the public since what he says or writes is likely to influence the public mind to a greater degree than what an ordinary citizen says or writes.
G. LIMITATIONS ON THE FREEDOM OF THE MEDIA
26. A free Press does not necessarily connote a licence without any restriction whatsoever. While reaching the information to the general public the media has a duty to ensure that such information is accurate and does not impinge upon the rights of others. Those who treasure the "freedom of speech and expression" should recall that the said liberty is constitutionally hedged in by the limits laid down in Article 19 (2) of the Constitution of India. Those limits flow, inter alia, from –
a) the right to reputation
b) the right to privacy (decency and morality)
c) the law of contempt of Court etc.
27. Thus, if any person (including the Press) while criticizing another, indulges in libel or slander, he will be answerable in law for such offence both under the civil as well criminal law. Likewise, under the guise of freedom of speech and expression, no agency is entitled to pry into the privacy of individuals and publish the same. There may be sex hungry individuals peeping through the ventilator into the bedroom of others to derive some sort of perverted pleasure. But if they were to transfer into a camera whatever they have perceived and publish the same, the law is above them ready to make them answerable for the same. Similar is the case with journalistic adventures calculated to derail the on-going trial before a court of law. Such exploits may be counter-productive and those who indulge in such parallel trials will have to be accountable to the law of contempt of courts.
28. Press reporting can generate unwarranted publicity and sensationalism. The journalist's understanding of the system of administration of Justice can be shallow and reporting of Court proceedings by incompetent or legally challenged reporters can result in garbled, distorted and misguided reports. Such report, far from doing any service to the administration of justice by ensuring the required publicity, can have counterproductive impact and may even cause subverting of justice. A Judge should be able to decide the merits of a case objectively and in an atmosphere free from the cloud of profusion of public opinion. A parallel trial by the press and the electronic media can also influence the minds of those who may later figure as witnesses in the case.
29. When a trial before one of the regular tribunals is in progress, trial by newspapers or the media must be prevented. The basis for this view is that such a parallel trial by the media tends to interfere with the course of justice. (Vide Bridges v. California 314 US 252 (1941) – Justice Hugo L. Black; Attorney General v. Times Newspapers Ltd. (1973) 3 All.ER. 54 (HL) - Lord Phillips MR,Tuckey & Longmore L –JJ.
30. In Saibal Kumar Gupta v. B. K. Sen AIR 1961 SC 633 – 3 Judges – S. J. Imam, K. Subba Rao, Raghubar Dayal - JJ, the majority speaking through Justice S. J. Imam held that the Special Committee set up by the Calcutta Corporation to discover malpractices on the part of the corporation's servants, was not holding a parallel inquiry on a matter pending decision before the Court of Law and therefore the inquiry by the Special Committee did not amount to interference with the course of Justice. Justice Subba Rao, however, disagreed with the majority. In the course of the Judgment by S. J. Imam – J, it was observed in paragraph 14 as follows :-
"No doubt it would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of that investigation. This is because trial by newspapers, when a trial by one of the regular tribunals of the country is going on, must be prevented. The basis for this view is that such action on the part of a newspaper tends to interfere with the course of justice whether the investigation tends to prejudice the accused or the prosecution."
31. In para 7 of Anukul Chandra Pradhan v. Union of India 1996 (6) SCC 354 - J. S. Verma, B. N. Kirpal – JJ, the Apex Court expressed its concern as follows:-
"A note of caution may be appropriate. No occasion should arise for an impression that the publicity attaching to these matters has tended to dilute the emphasis on the essentials of a fair trial and the basis principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial. This requirement, undoubtedly has to be kept in view during the entire trial."
H. EXCEPTIONS TO THE "OPEN JUSTICE RULE"
32. There is a category of person who may be reluctant to complain if their identities are disclosed and the trial is publicized. The reason may be that they may be embarrassed or afraid or even threatened. Such persons should necessarily be protected. The Open Justice System should naturally give way when there are considerations of privacy. It may not be in the interests of the society at large to publish the names of rape victims, riot victims, victims of domestic abuse etc. Hence, publicity of proceedings of certain nature, cannot be considered as absolutely necessary. There are certain statutory provisions discouraging publicity of certain proceedings which, by their very nature, have to be conducted in closed doors. The following are some of the provisions.
I. THE DIFFICULTIES OF THE MEDIA VICTIM
33. Of course, our system is such that it does not, unless invoked, automatically swing into action and remedy the victim. Notwithstanding the tall claims about easy access to justice, everyone knows how expensive and unavoidably, time consuming it is to have a redressal of one's grievances through the adjudicatory forums. The observations by a Division Bench of the Delhi High Court in Suo Motu proceedings 2009 (1) KLD 133 decided on 21-08-2008 are apposite in this context. This is what the Delhi High Court said:-
"We do appreciate that in respect of some cases (largely criminal cases) the justice delivery system in our country progresses virtually at a snail's pace and often an innocent person has no real remedy available to him, if he in framed in a matter, or is subjected to a 'trial by media'. As a result, seldom does anyone approach a Court of law for relief either by way of an injunction or for damages in a case of 'trial by media'. Such being the reality, we are of the opinion that the Courts have a great responsibility and, therefore, need to be far more vigilant and pro-active in protecting the rights and reputation of an individual from an unwarranted 'trial by media'. In a sense, the Courts have to energize the rule of law. While this may add to the burden of our criminal Courts, we are of the view that it is imperative for the Courts to protect a citizen from what may appear to be victimization. This is certainly the duty if not an obligation of Courts. This is all the more important in a pending matter. For example, if a person is arrested on the suspicion of having committed a crime, it is not the function of the media to 'declare' him (by implication) innocent or guilty. That is within the exclusive domain of the judiciary. But if the accused is subjected to a 'trial', either through the print or audio-visual medium, it may subconsciously affect the judgment of the Judge, and that may well be to the prejudice of the accused, who is, in our justice delivery system, presumed innocent until proven guilty. In such a situation, the Judge must be pro-active by restraining the media from carrying out a parallel trial. Otherwise our criminal justice delivery system will be completely subverted. Failure to do so would result in an unfortunate situation arising in some cases as will be evident from what we discuss herein below".
J. THE PASSION FOR PUBLICITY
34. Who does not like publicity and media coverage? Basically it is the patent or latent yearning for exposure or to catch attention and appreciation which induces man to come out of the shell of introversion, if any, and show himself off, whether it be a public speech or a poetic flourish or a literary composition or a painting or a sculpture or music or dramatic performance or acting or mimicry (the art of aping others including animals by imitating the style, gait, voice, mannerisms etc.). No doubt, there could be mercenary motives as well, behind such exhibits. The truth is that ordinarily no one chooses to remain anonymous unless it be to indulge in an act of vilification. The creativity in him is bound to surface. It is this weakness or thirst for publicity which is exploited by the sharper stuff including the media to their advantage both for legitimate or illegitimate ends. In the unhealthy competition to sensationalise individuals, matters and events, truth and reputation of fellow human beings are the usual casualties. The choice of the target and the degree of aggressiveness (all under the guise of independence and fearlessness of the Press) have reached such alarming proportions that the forbidden frontiers are very often forgotten or conveniently ignored or breached.
K. THE CONCEPT OF FAIR TRIAL BEFORE A JUDICIAL FORUM
35. Criminal law has a purpose to serve. Its object is to suppress criminal enterprise and punish the guilty. (Vide State of Kerala v. Narayanan Bhaskaran 1991 (2) KLT 217 = 1991 Cri.L.J 1238 - Sankaran Nair - J. It is through the medium of the criminal court and governed by the procedure laid down in the Cr.P.C. that the trial of persons charged with criminal offences, is being held. The law, flowing primarily from Article 21 of the Constitution of India, guarantees "fair trial". A fair trial has two objects in view. It must be fair not only to the accused but also to the prosecution. The trial must be judged from this duel point of view. (See T.H. Hussain v. M.P. Modkakar AIR 1958 SC 376 – P. B. Gajendragadkar - J). It is, therefore, necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform (See Krishnan v. Krishnaveni AIR 1997 SC 987 – 3 Judges - K. Ramaswamy, S. Saghir Ahmad, G. B. Pattanai - JJ). A miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. If unmerited acquittals become the general rule they tend to lead to a cynical disregard of the law (Vide Shivaji Sahebrao Bobade v. State of Maharashtra AIR 1988 SC 1998 – K. Jagannatha Shetty - J; Gangadhar Behera v. State of Orissa AIR 2002 SC 3633 – Arijit Pasayat - J). A criminal trial is meant for doing justice to three entities, namely, the "victim", the "accused" and the "society at large". See Ambika Prasad v. State (Delhi Administration AIR 2000 SC 718 – M. B. Shah - J)
36. Public interest demands that criminal justice is swift and sure, that the guilty is punished and the innocent is absolved in a fair and impartial trial while events are still fresh in the public mind (See M. S. Sheriff v. State of Madras AIR 1954 SC 397 = 1954 Cri.L.J. 1019 - 5 Judges - Mehr Chand Mahajan – CJI, B. K. Mukherjea, S. R. Das, Vivian Bose, Ghulam Hasan - JJ). One of the cardinal principles which should always be kept in mind in our system of administration of justice in criminal cases is that a person arraigned as an accused is presumed to be innocent until proved guilty by the competent criminal court. Another golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence in the case—one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused is to be accepted. (See Nisar Ali v. State of U.P. AIR 1957 SC 366 = 1957 Cri.L.J. 550 – Kapur – JJ, Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808 = AIR 1973 SC 2773 - 3 Judges - H. R. Khanna, A. Alagiriswami, R. S. Sarkaria – J; Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288 = AIR 1987 SC 877 – 5 Judges - P. N. Bhagwati – CJI, E. S. Venkataramiah, V. Khalid, G. L. Oza, S. Natarajan - JJ ). The above proposition is founded on the principle that the benefit of doubt should always be extended to the accused and not to the prosecution. That is why in cases where Court has no concrete evidence before it to record a conviction against the accused and the Court only entertains a suspicion that the accused may be the culprit, the Court will not convict the accused but would give him the benefit of doubt. In such a case, it could also be said that the prosecution was not able to prove the guilt of the accused beyond reasonable doubt. The unreasonably rigid test of "proof beyond the shadow of reasonable doubt" had been disapproved by Judges. (Vide Lord Denning in Miller v. Minister of Pensions 1947 (2) All. ER. 272 – Lord Denning and paras 13 and 14 of Iqbal Moosa Patel v. State of Gujarat (2011) 2 SCC 198 = 2011 Cri.L.J. 1142 – T. S. Thakur – J.) In a criminal trial the burden to prove the case alleged against the accused, (except where there is a departure made in a given statute by way of a reverse burden) is always on the prosecution and the judicially settled yardstick to discharge the said burden is by proof beyond reasonable doubt. But these are not the criteria adopted by the media. For the journalist, mere suspicion or hearsay evidence or alleged confession by the so called accused to the police (which is inadmissible in evidence except in cases covered by sub-section (2) of Section 162 Cr.P.C.) are more than sufficient materials to bolster up a 'scoop' and serve it to the unsuspecting public as a "breaking news". Such a stuff will not stand the scrutiny before a criminal Court.
L. RESTRICTIONS ON REPORTING ISSUES WHICH ARE "SUB JUDICE"
37. It is in this area that the media comes in conflict with the judiciary. A free Press is indispensable for the smooth functioning of the democracy. Courts are open to the public and, therefore, the administration of justice also should be open to public scrutiny which includes the freedom of the media to report court proceedings. But, such reporting can be made only subject to the restrictions imposed by the legal system. This will help the smooth functioning of the democracy and can thereby balance the power vested in each organs of the State and also the fourth estate in ensuring and upholding the rule of law. Where a judicial proceeding (including a trial) is imminent or pending before a court of justice, there is generally a prohibition against publication and discussion of the subject matter which is sub judice.
38. The expression "Sub judice" is a Latin expression which means "under a Judge" or "under judicial consideration". The settled view in this connection as propounded in Government Pleader v. Mathayi Manjooran 1959 KLT 102 – C. A. Vaidialingam - J; C.G. Janardhanan v. T.K.G. Nair 1960 KLT 792 – P. Govinda Menon - J; Kochu Moideen v. Nambissan and Others 1969 KLT 513 – P. Narayan Pillai – J, and other cases, has been that in criminal cases in order that a matter becomes "sub judice", it is sufficient if a crime case (FIR) has been registered, investigation started and proceedings in Court are imminent. If so, editing, printing or publishing of news in such manner as to cause prejudice affecting a fair trial amounts to contempt of court. That has been the consistent judicial interpretation under the since repealed Contempt of Courts Act, 1952. But, some ambiguity has been introduced in sub-clause (B) to clause (b) of the Explanation to Sec. 3 (3) of the Contempt of Courts Act, 1971 with regard to the stage at which a matter can be considered to be "pending". The said Explanation would state that in criminal proceedings under the Code of Criminal Procedure, 1899 or any other law in force (necessarily laws in force at the commencement of the Contempt of Courts Act, 1971) a criminal proceeding can be said to be pending only when the charge sheet is filed or when the Court issues summons or warrant or takes cognizance of the matter wherever applicable. This aspect has been discussed in the 200th Report of the Law Commission. The then Chief Justice of India Mr. Justice K.G. Balakrishnan in an Article on this subject and reported at page 1 of the Journal Section of (2010) 6 SCC has opined that some clarification may be necessary as to what the expression "pending" means. In my humble view the earlier position remains unaffected by the said Explanation. In the first place, taking a hyper-technical view, it could be argued that the word "investigation" under the Contempt of Courts Act, 1971, can only be "investigation" under the Code of Criminal Procedure, 1899 and not under the Code of Criminal Procedure, 1973. Secondly, the concept of "fair trial" is not confined to actual trial before the Court. Fair trial encompasses the stage of "investigation" as well and includes fair and speedy investigation. Any different interpretation so as to mean that whatever said and published about a case during the stage of investigation cannot amount to a statement made when the case was "sub judice", can lead to disastrous consequences. Supposing a case is still in the crime stage (i.e. under investigation). Will it then be open to the media to take shelter under the Explanation referred to above and escape an action for contempt of court on the ground that there was no case "pending" before Court when the offending report was made and, therefore, the impugned report (which is otherwise derogatory to the parties and the concept of fair trial and which has a tendency to interfere with the due course of justice causing prejudice in public mind) does not constitute contempt of Court ? In my opinion, it will be no defence for the maker and the publisher of an offending report to contend that whatever they did was at the investigation stage and not at a stage when the case was actually pending before Court. To my limited knowledge, this aspect of the matter has not yet come up for resolution on the judicial side of the Apex Court. On the contrary, even after the commencement of the Contempt of Courts Act, 1971, we find the settled principle of sub judice held against the media in the following among other cases :-
M. THE CODE OF JOURNALISTIC ETHICS
39. After taking into consideration the various draft codes prepared by the All-India Newspaper Editors' Conference (A.I.N.E.C.) and the Indian Federation of Working Journalists, as also the code formulated by the United Nations Sub-committee on Freedom of Information and of the Press, the Press Commission of India in its report of 1954 presented the following code of journalistic ethics:
1. As the press is a primary instrument in the creation of public opinion journalists should regard their calling as a trust and be ready and willing to serve and guard the public interest.
2. In the discharge of their duties, journalists shall attach due value to fundamental, human and social rights and shall hold good faith and fair play in news reports and comments as essential professional obligations.
3. Freedom in the honest collection and publication of news and facts and the right of fair comment and criticism are principles which every journalist should always defend.
4. Journalists shall observe due restraint in reports and comments which are likely to aggravate tensions likely to lead to violence.
5. Journalists shall endeavour to ensure that information is factually accurate. No fact shall be distorted and no essential facts shall be suppressed. No information known to be false or not believed to be true shall be published.
6. Responsibility shall be assumed for all information and comment published; if responsibility is disclaimed, this shall be explicitly stated beforehand.
7. Unconfirmed news shall be identified and treated as such.
8. Confidence shall always be respected and professional secrecy preserved but it shall not be regarded as a breach of the Code if the source of information is disclosed in matters coming up before the Press Council or courts of law.
9. Journalist shall not allow personal interest to influence professional conduct.
10. Any report found to be inaccurate and any comment based on inaccurate reports shall be voluntarily rectified. It shall be obligatory to give fair publicity to a correction or contradiction when a report published is false or inaccurate in material particulars.
11. All persons engaged in the gathering, transmission and dissemination of news and comments thereon shall seek to maintain public confidence in the integrity and dignity of their profession. They shall assign and accept only such tasks as are compatible with this integrity and dignity; and they shall guard against exploitation of their status.
12. There is nothing so unworthy as the acceptance or demand of a bribe or inducement for the exercise by a journalist of his power to give or deny publicity to news or comment.
13. The carrying on of personal controversies in the press, where no public issue is involved, is unjournalistic and derogatory to the dignity of the profession.
14. It is unprofessional to give currency in the press to rumour or gossip affecting the private life of individuals. Even verifiable news affecting individual shall not be published unless public interests demand its publication.
15. Calumny and unfounded accusations are serious professional offences.
16. Plagiarism is also a serious professional offence.
17. In obtaining news or pictures, reporters and press photographers shall do nothing that will cause pain or humiliation to innocent, bereaved or otherwise distressed persons.
40. These are undoubtedly guidelines which can safely be borne in mind by journalists before embarking on their reporting expeditions. Newspapers and news channels taking sides in an approaching case either for or against a party are sure to embarrass the trial or land the trial in jeopardy and exert undue pressure on the Courts. A journalist has to be circumspect on what he says or writes in respect of a case "before", "during" and "after" the trial. Apart from tending to bias or poison the public mind about the merits of the case, the journalistic adventurism may even tend to prevent litigants or the accused from obtaining a fair verdict from the adjudicatory forums. Prevention is always better than curative measures, if any, taken after the damage has been done. There is no meaning in having an in-house or self-regulatory mechanism, if the same is ineffective as a preventive measure.
N. SOME PERSONAL OBSERVATIONS
i) The Kerala solar case
41. People, particularly the Malayalam speaking population the world over had been watching the media highlights of a Kerala case popularly called the "Solar Case". The contents of documents and other evidence were discussed in public knowing fully well that a trial before the criminal court involving those material was imminent. Witnesses either for or against in proof or disproof of certain issues in that case were appearing in the media and questions were freely asked. Dubbing the suspects in that case as the real culprits and indulging in ridiculing, mocking at or caricaturing them as persons without character or reputation, were also resorted to forgetting that they enjoy the presumption of good reputation and of innocence until found guilty by a competent court and that too, after a full-fledged trial. Their photographs were recklessly taken and published. Persons accused of offences also enjoy all the fundamental rights including right to privacy. Even convicted prisoners are not denuded of the fundamental rights which they otherwise possess. (Vide Bhuvan Mohan Patnaik v. State of A.P. AIR 1974 SC 2092 - H. R. Khanna; Y. V. Chandrachud; P. K. Goswami - J; Sunil Batra v. Delhi Administration (1978) 4 SCC 494 = AIR 1978 SC 1675 – 5 Judges - Y. V. Chandrachud - CJI , V. R. Krishna Iyer, S. Murtaza Fazl Ali, P. N. Shinghal; D. A. Desai - JJ). When the statements made by witnesses before the Solar Scam Commission of Inquiry and even the report of the Commission cannot be made use of in the trial before the criminal Court in view of the interpretation given to Section 6 of the Commission of Inquiry Act, 1951, the media has been indulging in holding interviews with the witnesses who testified before the Commission and the contents of their alleged testimony before the Commission were freely published and the mind of the public had been polluted even to the extent of influencing their right to vote in the Assembly elections which were in the offing. Less said, the better as to the findings of the Inquiry Commission and the follow-up measures taken pursuant to the same.
ii) What is the probative value of the Report of a Commission of Inquiry ?
42. Here I would digress for a while to highlight the forensic worthlessness of the Report of a Commission of Inquiry functioning under the Commissions of Inquiry Act, 1952.
43. A Commission of Inquiry is only a fact-finding body having no adjudicatory functions. The Government is not bound to accept its recommendations nor act upon its findings. The purpose of appointing a Commission by the appropriate Government is only to instruct the mind of the Government. (Vide Baliram Waman Hiray (Dr.) v. Justice B. Lentin (1988) 4 SCC 419 = AIR 1988 SC 2267 – Sen – J, Balakrishna Pillai v. State of Kerala 1988 (2) KLT 1039 = AIR 1989 Kerala 99 (FB.) – 3 Judges – Malimath – CJ, Paripoornan, Bhaskaran Nambiar - JJ; Mohammed Haneefa v. State of Kerala 1988 (2) KLT 919 - T. L. Viswanatha Iyer - J). The statements made by witnesses before the Commission cannot be used against them or put to them in any civil or criminal proceeding except to prosecute them for giving false evidence. Consequently, copies of such statements cannot be supplied to the accused. (Vide Baliram Waman Hiray (Dr.) v. Justice B. Lentin AIR 1988 SC 2267 – Sen - J; T.T Antony v. State of Kerala AIR 2001 SC 2637 - Syed Shah Mohammed Quadri - J). A Commission does not decide any dispute. There are no parties before the Commission. There is no lis before the Commission. The Commission is not a Court except for a limited purpose. Its procedure is inquisitorial rather than accusatorial. The report of the Commission cannot be summoned by any Court since it has no evidentiary value in the trial of a case. (Vide Kehar Singh v. State (Delhi Admn.) AIR 1988 SC 1883 - 3 Judges - G. L. Oza, B. C. Ray, K. Jagannatha Shetty – JJ ).
44. The statements made before the Commission cannot be used as evidence before any civil or criminal Court. It logically follows that even the conclusions of the Commission based on such statements also cannot be used as evidence in any Court. (Vide State Bank of India through General Manager v. National Housing Bank & Others AIR 2013 SC 3478 – 3 Judges - R. M. Lodha, J. Chelameswar, Madan B. Lokur - JJ.) Merely because the procedure adopted by the Commission is of a legal character and it has power to administer oath, that will not impart to it the status of a Court. The least that is required of a Court is the capacity to deliver a definitive judgment. (Vide Baliram Waman Hiray (Dr.) v. Justice B. Lentin AIR 1988 SC 2267 – Sen - J).
iii) Modesty of a Malayalam cine actress outraged
45. The year 2017 witnessed a very outrageous episode in which a popular Malayalam film actress while on her way from the shooting site, was waylaid and sexually assaulted. Instead of suffering in silence the molestation and instead of hiding the same, she displayed rare courage to report the same to the police. The police charge sheeted the randy offender for the erotic assault. The police also charge sheeted another popular cine star for allegedly engineering the "operation molestation". The motive alleged was that the victim actress had played a dominant role in the alleged extra-marital affair of the abettor actor resulting in the rupture of the marital bond between the accused actor and his former actress wife. The case is still pending trial. The above episode leading to the arrest of the prime offender by the police from the precincts of a criminal Court, the suspension of the other accused (movie star) from the membership of the cine artists' organization called "AMMA" were all published with spice by the print and electronic media. Consequent on the change in the office bearers at the helm of affairs of AMMA, the cine star who was suspended from the organization has been re-inducted into the same. The publication by the media of the factum of re-induction has caused a flutter among the body politic including media persons, movie celebrities, politicians and other members of the public, most of them openly denouncing the re-induction. The top film stars who are presently at the helm of affairs of AMMA, also have not been spared. It was interesting to watch legally qualified but legally challenged, personnel airing their displeasure at the re-induction of the film star who has been charge sheeted for allegedly engineering the "operation molestation".
46. All those critics seem to be blissfully ignorant about the fact that in our country every person accused of an offence should be presumed to be innocent until proved guilty by a criminal Court of competent jurisdiction. (Vide Ashish Batham v. State of M.P (2002) 7 SCC 317 = AIR 2002 SC 3206 – Doraiswamy Raju - J; Prem Kumar Gulati v. State of Haryana (2014) 14 SCC 646 – M. Y. Eqbal - J; Kailash Gour v. State of Assam (2012) 2 SCC 34 = AIR 2012 SC 786 – 3 Judges - Dalveer Bhandari, T. S. Thakur, Dipak Misra - JJ; Dara Singh v. Republic of India (2011) 2 SCC 490 – P. Sathasivam - J; Willi (William) Slaney v. State of M.P AIR 1956 SC 116 – 5 Judges - S. R. Das – Ag. CJ, Vivian Bose, B. Jagannadhadas, S. J. Imam, N. Chandrasekhara Aiyar - JJ; Kali Ram v. State of H.P AIR 1973 SC 2773 - H. R. Khanna, A. Alagiriswami, R. S. Sarkaria - JJ; Babu Singh v. State of Punjab 1964 (1) Cri.L.J 566 (SC) – P. B. Gagendragadkar - J; Musheer Khan v. State of M.P (2010) 2 SCC 748 - Asok Kumar Ganguly - J). The Supreme Court of India has even gone to the extent of holding that the presumption of innocence is a human right. (Vide Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 - Dr. B. S. Chauhan - J; Noor Agha v. State of Punjab (2008) 16 SCC 417 – S. B. Sinha - J; Narendra Singh v. State of M.P. (2004) 10 SCC 699 – S. B. Sinha - J).
47. It may be true that the allegedly delinquent film star who is insulated by the presumption of innocence until proved guilty, was reportedly suspended from their association called "AMMA". If so, it was a mistake. Instead of perpetrating the mistake AMMA took an exemplary step in re-inducting him. I do not blame the masses particularly the fair sex in taking an antagonistic attitude towards AMMA for the re-induction of the actor. Who is responsible for breeding hatred against the actor ? It is the media and media alone which is responsible for corrupting the public mind by tarnishing the image of persons who are presumed to be innocent in the eye of law. Depending on their hidden agenda they make and break celebrities transforming heroes into villains and vice versa. There cannot be any doubt that if ultimately the cine star is found guilty by the Court he should receive condign punishment. But, before that let us not pre-judge the issue and allow our mind to be influenced by the media and preposterously hold them guilty and punish them beforehand.
iv) Media engaged in snatching investigation details
48. Instances of inducing, tempting, bribing or blackmailing investigating police officers or other officers (in-charge of investigation of offences) or members of their team, with a view to elicit, steal or extract the materials collected during investigation and discussing the same in public after giving the same the appropriate colour to suit the reporter or his boss and sell a one-sided story, are allegations which are frequently levelled against media persons. There are judicial verdicts to be referred to at a later stage forbading such investigating officers and their team members from leaking out information regarding the investigation of a case during the crime stage. Those prohibitions are more honoured in their breach than observance by some police officers for considerations which are certainly not genuine. In para 13 of Rajendran Chingaravelu v. R. K. Mishra, Additional Commissioner of Income Tax (2010) 1 SCC 457 - R. V. Raveendran - J, the Apex Court observed as follows:-
"There is a growing tendency among investigating officers (either police or other department) to inform the media even before the completion of investigation, 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 is carrying, media is informed that huge cash which was not declared was discovered by their vigilant investigations and thorough checking. Premature disclosures or leakage to the media in a pending investigation will not only jeopardize and impede further investigation, but many a time, will also allow the real culprit to escape from law."
49. In Murukeshan v. State of Kerala 2011 (1) KLT 194 – V. Ramkumar – J, held that no police officer has the right to leak out any information regarding the outcome of an investigation until the final report was filed in Court.
50. It was in this very same case that Justice P. Gopinath of the Kerala High Court in Dileep v. State of Kerala 2022 (1) KHC 737 – Gopinath P. – J, made, inter alia, the following observations:-
"This case has generated a lot of media attention. Mainstream television media and social media have commented upon the way this Court went upon its business in handling this case. Observations made in Court during the course of hearing have been dissected and made the subject-matter of intense discussion. The existence of a vibrant, independent and free press is no doubt essential to democracy. The Constitutional Courts in this country have been zealous to protect the freedom of speech and expression. But, this cannot be a license for persons armed with half baked facts with little or no knowledge of how the judiciary functions and little or no Knowledge of the fundamental and legal principles and govern it, abuse the justice delivery system. Lord Mansfield said at the trial of radical John Wilkes (in 1770)
"I will not do that which my conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands or the daily praise of all the papers which come from the press; I will not avoid doing what I think is right; though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow."
Centuries later, in 1998 Judge Hiller B. Zobel at the trial of the Nanny Louise Woodward said:-
"Elected officials may consider popular urging and sway to public opinion polls, Judges must follow their oaths and do their duty, he heedless of editorials, letters, telegrams, picketers, threats, petitions, panelists and talk shows. In this country, we do not administer justice by plebiscite."
In another off-shoot of the very same case of Dileep, deprecating the unwholesome conduct of police officers of the investigating team leaking out information to the electronic media publishing unconfirmed sensation, Justice C. P. Mohammed Nias of the Kerala High Court in Suraj v. State of Kerala 2022 (3) KHC 243 - Mohammed Nias – J, issued gag order against an online news portal named "Reporter" and there television channel named "Reporter T V" to prevent scandalous publications in future in the "actress assault case" and in the subsequently registered case of alleged attempt to murder the investigating officers of the case. In the order the learned Judge took note of the following Norms of journalistic conducts published by the Press Council of India :-
" The media reports should not induce the general public to believe in the complicity of the person indicted as such kind of action brings undue pressure on the course of fair investigation by the police.
It is not always advisable to vigorously report crime related issues on a day to day basis nor to comment on supposed evidence of the crime without ascertaining the factual matrix.
Victim, witnesses, suspects and accused should not be given excessive publicity as it is amount to invasion of their privacy rights.
The media is not expected to conduct its own parallel trial or foretell the decision putting undue pressure on the judge, the jury or the witnesses or prejudice a party to the proceedings."
The role of the media and the extent to which it can go on reporting of a case while investigation is pending, the impermissibility of the media to speculate on the outcome of an ongoing investigation or proceedings including the trial before the criminal court, impermissibility of the investigating agencies to leak out details collected by them to the media, how a parallel trial by the media can impact the prospective trial before the criminal Court etc. have been highlighted in the above order."
v) The mighty and all pervading media
51. The media now-a-days have such wider range, wider sweep and wider coverage that a wrong, misleading or false report about a person or institution can cause incalculable harm to the aggrieved. It is no solace to declare that the wronged will be compensated by money and a corrigendum expressing apology for the wrong news will be issued. The person or institution whose image is tarnished may not be in a position to fight the mighty media and get adequate recompense even assuming that the same will put him or it back in the former position. This is equally applicable to courts and other adjudicatory bodies as well. No person can be condemned unheard. Before making disparaging remarks about the conduct of a witness or a functionary in the administration of justice, the Forum is bound to hear him and elicit his explanation for such conduct. When all other democratic institutions are bound by the rules of natural justice, the media cannot claim any immunity from such rules.
vi) Sting operation against a saintly soul
52. A renowned Judge of the High Court of Kerala, soon after his retirement was treacherously and unknowingly trapped into a sting operation by a private channel which got him engaged in a personal talk regarding an alleged gang rape case disposed of by a Division Bench to which he was also a party. Without knowing the presence of hidden camera and microphone the former Judge opened up by substantially revealing the contents of the judgment of acquittal in the very same rape case and which was rendered in the year 2005. Some loose observations not meant for any formal discussion or publication but made in the purely private talk and expressly so understood, were, however, telecast by the channel resulting in a furore and the watching public rising in revolt against the former Judge. What was the public interest sought to be achieved by telecasting the private conversation ? What was the code of journalistic ethics observed by the Reporter ? One can understand a sting operation carried out to expose a public wrong such as corruption, waging war against the Government, smuggling arms and ammunitions into the country and allied terrorists acts. The former Judge, knowing him as I do, is certainly not going to prosecute the channel or institute a suit for damages. But absolutely no public interest was served by such a sting operation. It is pertinent to note that no other news channel deprecated the said operation which was carried out in blatant violation of the promise of secrecy. Of course, it was not an espionage which was being laid bare. There cannot be a worse case in which the code of journalistic ethics were either breached or conveniently ignored what ethical, virtuous or righteous morals these media persons could boast of ?
vii) "Audi alteram partem" frequently breached by the media
53. Whether it is the media or any other person criticizing another, behind his back, for an act or conduct should realize that there is always another view for the alleged act or conduct. Whatever sensation is made through publishing the one-sided story without adequate and serious enquiry, will be short lived. These are instances of misreporting or irresponsible reporting.
viii) Judges are not semi-permeable, inanimate membranes
54. Defending media excess in holding parallel trials it is very often argued that even if there is a trial by media, Judges should be made of such sterner stuff as not to allow their power of reasoning and evaluation of evidence to be influenced by such extraneous media trials. It is easier to put forward such argument. As observed in In Re M.V.Jayarajan (supra), however, stalwarts they may be, Judges are also human beings. Frankfurter–J of the US Supreme Court also had noted in Penne Kamp v. Florida 328 US 331 (1946) -Frankfurter – J, about the frailties of Judges as human beings. It requires intense and protracted training of the mind for a Judge to remain uninfluenced by such media exploits, particularly when it is the habit of every literate citizen to read the newspapers and watch the news channels and Judges are no exception. They cannot shut their eyes or mind to the spicy media trial and thereafter approach the case with total detachment and perfect equanimity. Way back in the year 1969 a Division Bench of the Kerala High Court in Kochu Moideen V. Nambeesan and Others 1969 KLT 513 - P. Narayana Pillai – J, observed as follows:-
"It is true that Judges are trained men and, therefore, they may not be influenced by reports, but it cannot be forgotten that they are human beings and it is only proper that they are not told matters which they would not and should not hear ."
a) Media participation of Advocates
55. Participation of Advocates in television channels and other public platforms has been frowned upon by the Apex Court in R. K. Anand's Case to which advertence shall be made. Legal opinion by a lawyer is not something which can be given from the streets or market or from the veranda of a shop. Instances of advocates appearing in news channels and freely giving their opinion without adequate research regarding nascent court verdicts, are legion. In my view, every opinion should be given after an in-depth study of the subject and knowing fully well the legal implications of such opinion and carefully avoiding adverse comments or fully realizing its implication on matters which are sub judice or which may imminently be sub judice. The reprehensible conduct of an advocate participating in the discussion in a news telecast on a pending proceeding was commented upon thus:-
"The blameworthy conduct of an officer of the Court"
It was without actually watching the Court proceedings which lasted for several days and it was without having the proper grip of the case under trial before this Court that the Advocate participant in the above programme was airing his views on the propriety of the Court asking questions to a witness. This Advocate (who according to Mr. Sreekumar is a CPI (M) co-passenger) was also seen defending the respondent. There is the unfortunate emergence of a trend among people to become more and more clannish when a member of their own fold commits a mistake. Instead of admitting the mistake and correcting him and imposing adequate punishment including expulsion from the association if the degree of delinquency is grave enough, other members with a trade-union zeal defend such erring persons tooth and nail. This is a pernicious trend. It is not known as to whether the Advocate was consulted as a political personality or a 'jurist'. Such opinionated critics with perfunctory grasp of pending proceedings pose real threat to the administration of justice. The Judges here do not require any unsolicited advice from such persons on the "dos and don'ts" in justicing. There are better stuff, both in the legal profession and in the larger fraternity of law to be consulted, if need be, for Judges who are in doubt or distress. If the media participation by the Advocate is a veiled threat to Courts trying cases involving persons belonging to a particular political party, let him and likeminded persons bear in mind that they have no business either to offer their comments on matters which are sub judice or professedly lay down any code of conduct for Judges while engaged in the solemn duty of dispensing justice. The laws, including the statute and interpreted laws, of this country are adequately vibrant to take care of such situations in Court. We Judges do concede that we are not infallible. But, if we Judges of the High Court go wrong there is the Supreme Court to correct us.
The conduct on the part of those who took part in the interview on the television channel was most reprehensible. They were really encroaching into the right to fair trial available to the parties in this contempt case.
More than displeasure, it is a feeling of pain for us to note that mischievous half-truths, brazen untruths and virulent publicity by partisan media, political organs and spokesmen for vested interests play havoc in inflicting incalculable harm to the course of Justice. While dissemination of news is the functional prerogative of the media, every care should be taken to ensure that an irresponsible print or a visual cast does not render the delicate task of administering justice unduly difficult for the Judges. However stalwarts they may be, Judges are also human beings". (Vide In Re M.V.Jayarajan (supra).
Evidently, the Advocate was blissfully ignorant of the powers of a Court under Section 165 of the Indian Evidence Act, 1872.
56. In the above case Sri. M. V. Jayarajan, a politician belonging to the Marxist Communist Party was found guilty of contempt of Court by the High Court which, however, refused to exercise the discretion under Section 19(3) of the Contempt of Courts Act, 1971 to suspend the execution of the sentence of imprisonment passed against Sri. M.V. Jayarajan. He had, therefore, preferred an appeal before the Supreme Court challenging the conviction recorded and sentence passed against him. A senior Advocate of the Kerala High Court appearing in a television channel found fault with the High Court in not invoking the mandatory provision under Section 389 (3) Cr.P.C. and suspending the execution of sentence automatically. A casual examination of the provisions of the Contempt of Courts Act would have revealed that in view of Section 19 (3) of that Act, Sec. 389 (3) Cr.P.C. has no application. Similarly, the very same Senior Advocate criticised the High court for engaging a lawyer for the High Court in the appeal preferred by Sri.M.V. Jayarajan and remarked that in a case in which the High Court was not even a party, it was highly improper for the High Court to have engaged a counsel. The above criticism was also made without verifying whether the High Court was a respondent in the appeal preferred by Sri. M.V. Jayarajan. As a matter of fact, in the appeal preferred by Sri. M.V. Jayarajan before the Supreme Court, the High Court of Kerala was the sole respondent and it was on the submission made by the counsel engaged by the High Court that the State of Kerala was impleaded as an additional respondent in the appeal.
b) The role expected of a lawyer and the duties of the Bar Councils
57. The propriety of media participation by Advocates and the duties cast on the Bar Councils were succinctly stated by the Supreme Court in R. K. Anand v. Delhi High Court (2009) 8 SCC 106 - B. N. Agrawal, G. S. Singhvi, Aftab Alam - JJ.
"331. The other important issue thrown up by this case and that causes us both grave concern and dismay is the decline of ethical and professional standards among lawyers. The conduct of the two appellants (one convicted of committing criminal contempt of court and the other found guilty of misconduct as Special Public Prosecutor), both of them lawyers of long standing, and designated Senior Advocates, should not be seen in isolation. The bitter truth is that the facts of the case are manifestation of the general erosion of the professional values among lawyers at all levels. We find today lawyers indulging in practices that would have appalled their predecessors in the profession barely two or three decades ago. Leaving aside the many kinds of unethical practices indulged in by a section of lawyers we find that even some highly successful lawyers seem to live by their own rules of conduct.
332. 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". He at least was not bereft of professional values.
When a young and enthusiastic journalist invited him to a drink of Dom Perignon, vastly superior and far more expensive than his usual "plonk", "Château Fleet Street", he joined him with alacrity but when in the course of the drink the journalist offered him a large sum of money for giving him a story on the case; "why he was defending the most hated woman in England", Rumpole ended the meeting simply saying "In the circumstance I think it is best if I pay for the Dom Perignon."
333. We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for the administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a Bar that enjoys the unqualified trust and confidence of the people, that shares the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people.
334. We are glad to note that Mr Gopal Subramanium, the amicus fully shared our concern and realised the gravity of the issue. In course of his submissions he eloquently addressed us on the elevated position enjoyed by a lawyer in our system of justice and the responsibilities cast upon him in consequence. His written submissions begin with this issue and he quotes extensively from the address of Shri M.C. Setalvad at the Diamond Jubilee Celebrations of the Bangalore Bar Association, 1961, and from the decisions of this Court in Pritam Pal v. High Court of M.P.(observations of Ratnavel Pandian, J.) and Sanjiv Datta, In Re (1995) 3 SCC619 (observations of Sawant, J. at pp. 634-35, para 20). We respectfully endorse the views and sentiments expressed by Mr M.C. Setalvad, Pandian, J. and Sawant, J.
335. Here we must also observe that the Bar Council of India and the Bar Councils of the different States cannot escape their responsibility in this regard. Indeed the Bar Council(s) have very positively taken up a number of important issues concerning the administration of justice in the country. It has consistently fought to safeguard the interests of lawyers and it has done a lot of good work for their welfare. But on the issue of maintaining high professional standards and enforcing discipline among lawyers its performance hardly matches its achievements in other areas. It has not shown much concern even to see that lawyers should observe the statutory norms prescribed by the Council itself. We hope and trust that the Council will at least now sit up and pay proper attention to the restoration of the high professional standards among lawyers worthy of their position in the judicial system and in the society".
c) Role of the High Courts to avert damage by the media to matters which are sub judice
58. Anand's Case (supra) has also issued directions to the High Courts to ensure that trials before Courts are not derailed by media intervention. This is what the Apex Court observed :-
"336. This takes us to the last leg of this matter. The larger issue: BMW trial getting out of hand .
337. Before laying down the records of the case we must also advert to another issue of great importance that causes grave concern to this Court. At the root of this odious affair is the way the BMW trial was allowed to be constantly interfered with till it almost became directionless.
338. We have noted Kulkarni's conduct in course of investigation and at the commencement of the trial; the fight that broke out in the court premises between some policemen and a section of lawyers over his control and custody; the manner in which Hari Shankar Yadav, a key prosecution witness turned hostile in court; the curious way in which Manoj Malik, another key witness for the prosecution appeared before the court and overriding the prosecution's protest, was allowed to depose only to resile from his earlier statement. All this and several other similar developments calculated to derail the trial would not have escaped the notice of the Chief Justice or the Judges of the Court. But there is nothing to show that the High Court, as an institution, as a body took any step to thwart the nefarious activities aimed at undermining the trial and to ensure that it proceeded on the proper course. As a result, everyone seemed to feel free to try to subvert the trial in any way they pleased.
339. We must add here that this indifferent and passive attitude is not confined to the BMW trial or to the Delhi High Court alone. It is shared in greater or lesser degrees by many other High Courts. From experience in Bihar, the author of these lines can say that every now and then one would come across reports of investigation deliberately botched up or of the trial being hijacked by some powerful and influential accused, either by buying over or intimidating witnesses or by creating insurmountable impediments for the trial court and not allowing the trial to proceed. But unfortunately the reports would seldom, if ever, be taken note of by the collective consciousness of the Court. The High Court would continue to carry on its business as if everything under it was proceeding normally and smoothly. The trial would fail because it was not protected from external interferences.
340. Every trial that fails due to external interference is a tragedy for the victim(s) of the crime. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people.
341. Every failed trial is also, in a manner of speaking, a negative comment on the State's High Court that is entrusted with the responsibility of superintendence, supervision and control of the lower courts. It is, therefore, high time for the High Courts to assume a more proactive role in such matters. A step in time by the High Court can save a criminal case from going astray. An enquiry from the High Court Registry to the quarters concerned would send the message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences. In very few cases where more positive intervention is called for, if the matter is at the stage of investigation the High Court may call for status report and progress reports from police headquarter or the Superintendent of Police concerned. That alone would provide sufficient stimulation and pressure for a fair investigation of the case.
342. In rare cases if the High Court is not satisfied by the status/progress reports it may even consider taking up the matter on the judicial side. Once the case reaches the stage of trial the High Court obviously has far wider powers. It can assign the trial to some judicial officer who has made a reputation for independence and integrity. It may fix the venue of the trial at a proper place where the scope for any external interference may be eliminated or minimised. It can give effective directions for protection of witnesses and victims and their families. It can ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a day-to-day basis.
343. The High Court has got ample powers for all this both on the judicial and administrative sides. Article 227 of the Constitution of India that gives the High Court the authority of superintendence over the subordinate courts has great dynamism and now is the time to add to it another dimension for monitoring and protection of criminal trials. Similarly, Article 235 of the Constitution that vests the High Court with the power of control over subordinate courts should also include a positive element. It should not be confined only to posting, transfer and promotion of the officers of the subordinate judiciary. The power of control should also be exercised to protect them from external interference that may sometimes appear overpowering to them and to support them to discharge their duties fearlessly".
X) Unpardonable ignorance of law
1) 59. A news item in a vernacular T.V channel in Kerala, announcing that the Delhi High Court which had finally heard the matter in the confirmation proceedings pertaining to the Delhi gang rape case, read as follows :-
"The Delhi High Court will today confirm the death sentence of the convicts in the gang rape case"
That news was given in blissful ignorance of the scope and amplitude of proceedings under Section 366 Cr.P.C. After pronouncing death sentence the Session Judge has to submit the proceedings to the High Court and such sentence shall become executable only when it is confirmed by the High Court. The only option available to the High Court is not merely to confirm the death sentence. It can either modify the conviction or the sentence and can even acquit the accused.
2) 60. An unnecessary controversy was raised by the media regarding the change of roster concerning a couple of Judges in the High Court of Kerala. This author himself has been a victim to mid-term change of roster. The Chief Justice of the High Court is the Master of the roster and he or she has the prerogative or unquestionable authority to change the roster. In the Kerala High Court the Roster is usually changed after every quarter. It was improper to attribute motives behind the change of roster. Those at the helm of affairs in the media should have realised that such a criticism even on the administrative side of the High Court can attract proceedings for contempt of Court.
xi) The impropriety of reporting oral observations and oral dialogues in Court
61. Instances are not rare when some oral observations or queries by Judges or some oral submissions made by lawyers in a lighter vein are reported and unnecessary controversies are generated over such oral observations or queries or submissions. Very often, in the surcharged or monotonous Court proceedings tension is relieved or eased by an Advocate cracking a joke or the Judge making a comment. These are not happenings to be reported by the media out of context or for any bigot or self-proclaimed jurist to criticise the Judge or the Advocate. There could even be expression of tentative opinion by the Judge who may in the course of argument change his opinion as well. It usually happens that when the counsel for one side argues his case the Judge may, with a view to generate full discussion or unravel the minute niceties of law, intervene and highlight certain points which may apparently be favourable to the opposite side. Such intervention or expression of opinion cannot be and should not be misinterpreted as orders of the Court. There are some lawyers who will spring into forensic precision and focus only when jocularly heckled or snubbed from the Bench. Such judicial interjections should not be taken as hostile fulminations from the Bench. Reporting of such transient events happening in courts will certainly bring the judicial institutions into disrepute. The philosophy and psychology of the curial mechanics cannot be imbibed by a deviant Press Reporter whose cruel passion may be to forge a sensation out of everything to please his masters. It is pertinent to remember that the only functionary in a proceedings before Court who can ask even irrelevant questions is the presiding Judge and he has the statutory freedom to do so under Section 165 of the Indian Evidence Act, 1872. But it is mischievous to report every such oral dialogue in Court and spark off avoidable controversies therefrom for the vested interests including some unethical politicians to take advantage of the situation. Since it is neither desirable nor legal for a Judge to pass oral orders or issue oral directions, it is pernicious for the media to come out with misleading reports that a particular Judge who made an oral observation in court is a prejudiced Judge or has pre-judged the issue. Otherwise, a Judge who frames a charge against the accused or who declines bail to the accused or who refuses interim injunction to the plaintiff or the defendant, will have to be branded as a biased Judge and disqualified to proceed with the trial of the case. The right (if not otherwise restricted) of the media to report the Court proceedings can arise only after the Presiding Judge passes an order and that too, after the arguments on both sides have been heard. It has already been seen that the media cannot claim any right (either Constitutional or statutory) to report their versions of the oral dialogues that take place during the course of arguments even if they resort to honest reporting. Experienced Judges very often ask an arguing counsel questions which are against the contentions raised. That does not mean that the Judge is siding the opposite party. But truncated media reports attributing partisanship on the Judge even during the course of arguments, are not uncommon these days. The point which I wish to emphasis is that the Media, under the garb of disseminating knowledge to the public, cannot claim any right larger than that of the legal practitioners in relation to the proceedings in Court. It is only after the lawyer argues the case and the Judge pronounces the verdict that the question of reporting can arise. This author has witnessed media persons eliciting half- baked information from junior Advocates from outside the precincts of the Court room (even in the Supreme Court) so as to gather what exactly transpired inside the Court hall and then transmitting the same to their masters and the version undergoing different hue and flavor before the final product is either telecast or published. The raging controversy between the media and the bar is something which could have been avoided.
62. Advocates participating in media discussions are sometimes seen to take up the mantle of media persons forgetting the fact that they are also officers of the Court owing statutory responsibilities not only to the Court but also to their clients and the society at large.
63. It is not desirable for Judges also to entertain media persons in their Chamber even if they be friends or relatives. Renewal of friendship and strengthening of cordiality are ideally to be had in the bosom of one's family rather than in the functional sphere of the Judge.
xii) Personal humiliation of Judges and Judicial officers
64. Fairness demands that yet another aspect is also mentioned in this context. Certain Judges of the Higher Courts and presiding officers of the subordinate judiciary were in the past picked up, or rather singled out, by the vested interests for adverse comments and condemnation of the worst kind such as usage of contemptuous epithets, burning of effigies, conducting funeral cortege, banishment etc. Those behind such vagaries were certain opinionated politicians and / or like-minded or obliging media persons. What impelled them to turn against the judiciary was the misplaced anguish that certain verdicts were not in consonance with their ideologies. Nobody then took cudgels or start any agitation to vindicate the targeted Judges who suffered in silence the ignominy. This is because of the lack of reciprocity between the Bench and the Bar for noble causes.
xiii) No duty to answer the media
65. The way some of the media channels take the liberty of directly calling personalities holding responsible positions in the society, both past and present, and seeking their explanation for the alleged acts or omissions, shows the undesirable, if not pernicious tendency of encroaching into the right to silence of an individual who is answerable only to persons in authority. Under the guise of dissipating information to the viewers, such channels cannot arrogate to themselves the role of persons in authority. Questions are asked by media persons as if in a trial before an adjudicating forum and the answers or reticence commented upon characterizing the person "interrogated" either as a liar or an undependable person. Such character assassination is nothing but veiled slander. Friends, Indians, countrymen (who include the President of India, Governors, Ministers, Judges, Advocates, Bureaucrats, Politicians, Policemen, Public men and the Common man), you have no obligation to answer questions from the media unless you are itching for publicity and thereby you unwittingly want to play into their hands. Such media interventions are as good as, or as bad as, any busy-body prying into your privacy. If you start responding to their questions and make statements, then it may eventually become your responsibility to answer a volley of further questions with the inherent risk of the likelihood of your statements being misquoted, misinterpreted, distorted or even misused. The danger of your statement (made on the spur of the moment without any serious thought) being taken advantage of in any subsequent judicial proceedings, also cannot be ruled out. While the media has undoubtedly the right to bring to public focus crimes, atrocities etc, their role should end there. There are authorities and forums to go into the "how and why" and "who" behind such social evils. If truth is suspected to be a casualty before such authorities, well, the ever expanding "locus standi" jurisdiction enables the media also to give evidence before such authorities to ensure that justice is done. This aspect of the matter will be elaborated in my addendum to this Article. But the media cannot arrogate to itself the role of the adjudicator and de-rail a fair trial before the Courts.
xiv) The so - called public curiosity
66. The public is, by and large, unconcerned about any general issue beyond a point. It is only a few inquisitive elements who, through a continuous campaign, generate public interest. Under the ostensible excuse of quenching the public curiosity a particular event is blown out of proportion and cast on the public domain. The desired opinion is selectively focused and propagated and the public mind is corrupted.
xv) Autopsy of court verdicts by the media
67. It has become a passion for certain media channels to select a few nascent Court verdicts for discussion under the garb of public interest. The panelists including Advocates are selectively chosen to match with the ideology or proprietary interests of the media. Court verdicts are then subjected to a "post-mortem" examination in the course of which the political concern or the bias of the vested interests are allowed to be given vent to. In this process partisanship is very often attributed to the Judges whose verdicts are assailed. It is a matter of shame that certain members of the legal profession, without adequate study or research, take this as an opportunity to settle their scores with the Judges or the litigating parties or even their professional brethren. The unfortunate net result is that half-baked, misleading and garbled versions are slapped on the unsuspecting public (the viewers) engendering a negative bias against one party or the other. Very often the Government or its agencies are the targets of these media exploits.
68. What is usually debated in panel discussions is not the forensic nuances of the legal issues involved in judicial verdicts, but relatively insignificant issues like the propriety of the judges who pronounced those verdicts, the timing of handing down the judgments and a political evaluation of the assumed antecedents of the Judges. We have witnessed legally challenged panelists accusing Senior Advocates who conducted cases before the Supreme Court to say that a particular legal aspect was not argued in the proper perspective, least realising that it is after an in-depth research on every possible aspect of a matter that a case is finally argued before the Apex Court. It is such panelists who politicize the issues and finally project a picture for the viewer to assimilate. Instances are not rare when in the course of such panel discussions the participants freely airing their comments in respect of a judicial verdict even before the text of the verdict is made available. Are they doing a service to the society at large ? Of course, not.
O. A FEW NOTABLE JUDICIAL PRONOUNCEMENTS DEPRECATING TRIAL BY MEDIA.
69. The following are a few court verdicts deprecating "media trial" and giving weighty reasons in support of the views taken:
a) A Division Bench of the Kerala High Court in State of Kerala v. Aboobacker ILR 2006 (3) Kerala 672 = 2006 KHC 1026 - V. Ramkumar – J, observed as follows:-
"25. Rape and murder are undoubtedly brutal and diabolic sins constituting the worst forms of criminal incursions on the human body. The perpetrators of such crimes are indeed so despicable that, in appropriate cases, the award of the extreme penalty of death alone may be the most condign punishment for them. But a criminal court can do so only on proof before it according to law. Until such proof, the whole case remains in the realm of allegations and accusations. Judges cannot act on such allegations or on the spicy versions supplied by the print or visual media. The temptation which a judge in his hermit like existence should consciously resist is the populist media publicity for his deeds as a Judge. In the divine function of a Judge, there is no place for popularity. A judge who falls a prey to this weakness is sure to be guided by the heart rather than the head. A judge cannot be living in a world of fantasy while marshalling the evidence before him in the process of dispensation of justice in order to reconstruct a story different from the one propounded by the prosecution. The wealth of judicial experience gained by him should make him more and more informed, detached and objective rather than publicity oriented.
26 . Yet another disturbing feature which has come to our notice is the undue media publicity with regard to the occurrence. Exts. D1 to D7 are reports in a Malayalam daily giving their own stories about the disappearance of the girl and the tardy investigation of the case by the police. Sustenance is even seen drawn from sources within the police in order to boost those garbled versions. Reliance was placed on them by the accused as well for certain purposes. Way back in the year 1959 a Full Bench of this Court speaking thorough Justice P. T. Raman Nair gave expression to its displeasure as follows:
"The Trial Court as also the learned Judges of the Division Bench have animadverted upon the apathy or indifference which the police showed with respect to this case. I am sure the authorities will take appropriate action in the matter. In that connection I may also state that several exhibits filed in the case from the side of the defence showed that the investigating officers have been freely giving out the progress made in the investigation from day to day to the Press. Exts. D1, D14, D21, D22, D23, D24, D25 D26, D27 and D28 showed that some newspapers were taking rather undue or unhealthy interest about the case. It is unfortunate that information gathered by the police during the course of the investigation should have been made available to the Press. It is not the first time such an instance comes to the notice of this Court and learned Judges have had occasion to state that the practice was highly objectionable. It is hoped that the authorities will take notice of this matter also and see that their officers as also the Press are not allowed to ride rough-shod over the provisions of the Criminal Procedure Code or the Evidence Act. Information obtained during the course of the police investigation has to be kept confidential and police officers are not entitled to give out the contents of confessional statements of accused persons or the contents of statements made by witnesses interviewed by them for the benefit of the public or the Press."
[Vide para 29 -- Sivarajan v. State, ILR 1959 Ker.319 – 3 Judges – K. T. Koshi – CJ, K. Sankaran, P. T. Raman Nayar - J]
70. The apex court was also not in a different vein when it observed as follows:
"We agree with the High Court that a great harm had been caused to the girl by unnecessary publicity and taking out morcha by the public. Even the case had to be transferred from Kohlapur to Satara under the orders of this Court. There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A Judge has to guard himself against any such pressure and he is to be guided strictly by rules of law." [Vide para 37 -- State of Maharashtra v Rajendra Jawanmal Gandhi, AIR 1997 SC 3986 – D. P. Wadhwa - J]
71. Again in M. P. Lohia v. State of West Bengal, 2005 (2) SCC 686 – N. Santosh Hegde, S. B. Sinha – JJ, the Apex Court has deprecated the unwholesome practice of the trial by media in respect of a matter which is sub judice. The following observations are most appropriate:
"10. Having gone through the records, we find one disturbing factor which we feel is necessary to comment upon in the interest of justice. The death of Chandni took place on 28/10/2003 and the complaint in this regard was registered and the investigation was in progress. The application for grant of anticipatory bail was disposed of by the High Court of Calcutta on 13/02/2004 and special leave petition was pending before this Court. Even then an article has appeared in a magazine called 'Saga' titled 'Doomed by Dowry' written by one Kakoli Poddar based on her interview of the family of the deceased, giving version of the tragedy and extensively quoting the father of the deceased as to his version of the case. The facts narrated therein are all materials that may be used in the forthcoming trial in this case and we have no hesitation that these type of articles appearing in the media would certainly interfere with the administration of justice. We deprecate this practice and caution the publisher, editor and the journalist who were responsible for the said article against indulging in such trial by media when the issue is sub judice. However, to prevent any further issue being raised in this regard, we treat this matter as closed and hope that the others concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice."
72. It appears that notwithstanding the fact that a Full Bench of this Court more than four decades ago, had deprecated the reprehensible tendency of police officials going to the Press with details of investigation of cases, we unfortunately find that the tendency continues with increased vigour. Officers in the higher echelons of the police force appearing in the print and electronic media giving interviews and narrating stories unravelled through investigation, are not, infrequent sights these days. When superior police officers indulge in freely passing on such information to the public, they not only breach the conduct rules but also put unnecessary pressure on the subordinate officers who are in de facto investigation of the cases. It is well known that many of the materials collected by the police during investigation are comprised of hearsay or inadmissible stuff and at times extracted from the alleged accused persons themselves by employing third degree methods. Such material will not stand the scrutiny of a court of justice. The Fourth Estate also does not seem to realise the irreparable damage inflicted on the victims of crimes and the alleged culprits and those close to them through the sensationalized journalistic adventures. Truth is very often suppressed, exaggerated or distorted to add flavour and spice to the stories. Trial by the media can do more harm than good to the society at large. Instances are not rare when test identification parades are reduced to mere farce due to the injudicious publicity given to the alleged assailants by publishing their photographs. Every such act of adventurism exert unnecessary pressure on the courts which are to eventually try the alleged offenders. The fickle minded public which has been conditioned to believe a particular version through a calculated process of media indoctrination will be loath to accept a different conclusion. Hence, if the court which finally tries the alleged culprit were to ultimately record an order of acquittal for want of legal evidence before it, it may not be out of place for the public at large to conclude that the verdict of the court is wrong. They may even attribute motives in the Presiding Judge. No disciplined society which believes in the rule of law can afford such state of affairs to come to stay. We wish to express our strong displeasure at the increasing trend of investigation lapses and trial by media in respect of matters which are sub judice. After the case under investigation is in the seizin of the court it is not open to the investigating agency or other busy bodies to give their own versions about a crime and influence the mind of the public without realising the worth or otherwise of what has been collected during investigation and placed before the court concerned. Lapses in this regard will be viewed very seriously and the erring police officers and media persons will be proceeded against appropriately.
The Registry shall forward an extract of this judgment to the Director General of Police and the Director General of Prosecutions for suitable prophylactic measures to ensure that recurrence of such lapses does not take place".
b) The unwholesome conduct of police officers leaking out information regarding the outcome of investigation during the crime stage was again deprecated in Sivarajan v. State ILR 1959 Ker. 319 – 3 Judges – K. T. Koshi – CJ, K. Sankaran, P. T. Raman Nayar - J; Para 26 of State of Kerala v. Aboo Backer ILR 2006 (3) Ker. 672 – V. Ramkumar - J; Murukeshan v. State of Kerala 2007 (1) KLT 194 – V. Ramkumar - J; Para 27 of State of Maharashtra v. V. Rajendra Jawanmal Gandhi AIR 1997 SC 3986 - D. P. Wadhwa - J; Para 20 of Suraj v. State of Kerala 2022 (3) KHC 243 – Mohammed Nias - J.
C) In Kartongen Kemi Och Forvaltning AB and Ors v. State Through CBI 2004 CCR 285=2004 (72) DRJ 693 - J. D. Kapoor - J, the Delhi High Court observed as follows:-
"7. This is a nefarious example which manifestly demonstrates how the trial and justice by media can cause irreparable, irreversible and incalculable harm to the reputation of a person and shunning of his family, relatives and friends by the society. He is ostracised, humiliated and convicted without trial. All this puts at grave risk due administration of justice.
8. It is common knowledge that such trials and investigative journalism and publicity of mature, half baked or even presumptive facets of investigation either by the media itself or at the instance of Investigating Agency has almost become a daily occurrence whether by electronic media, radio or press. They chase some wrong doer, publish material about him little realizing the peril it may cause as it involves substantial risk to the fairness of the trial.
Unfortunately we are getting used to it.
9. Latest trend of police or CBI or investigating Agency encouraging publicity by holding press conference and accompanying journalists and television crew during investigation of a crime needs to be stopped as it creates risk of prejudice to the accused. After hogging publicity and holding the person guilty in the eyes of public, police and CBI go into soporific slumber and take years in filing the charge sheet and thereafter several years are taken in the trial.
10. It is said and to great extent correctly that through media publicity those who know about the incident may come forward with information, it prevents perjury by placing witnesses under public gaze and it reduces crime through the public expression of disapproval for crime and last but not the least it promotes the public discussion of important issues. All this is done in the interest of freedom of communication and right of information little realizing that right to a fair trial is equally valuable. Such a right has been emphatically recognized by the European court of Human Rights.
"Again it cannot be excluded that the public becoming accustomed to the regular spectacle of pseudo trials in the news media might in the long run have nefarious consequences for the acceptance of the courts as the proper forum for the settlement of legal disputes"
11. There is nothing more incumbent upon courts of justice than to preserve their proceedings from being misrepresented than to prejudice the minds of the public against persons concerned before the cause is finally heard. The streams of justice have to be kept clear and pure. The parties have to proceed with safety both to themselves and their character.
12. The fairness of trial is of paramount importance as without such protection there would be trial by media which no civilised society can and should tolerate. The functions of the court in the civilised society cannot be usurped by any other authority. I feel tempted to quote the words of wisdom of Chief Justice Lord Taylor as to the impact upon the victim of press campaign.
"We would like to stress that, whilst the press are the guardians of the public interest, to pursue a campaign of vilification of someone who has been before the court, in a way which causes hate mail to be sent, which causes his family to be under the need to move house, which causes his children to be shunned by other children in the neighbourhood, is doing no public service. Furthermore, if it is intended to bring pressure to bear on the courts, then it is wholly misguided".
[Attorney General's reference (1995) 16 Cr.App. R. (5) 785]
13. This is one of such cases where public servants who are no more have met somewhat similar fate being victim of trial by media. They have already been condemned and convicted in the eyes of public. Recent instance of such a trial is of Daler Mehandi whose discharge is being sought few days after his humiliation and pseudo trial through media as they have not been able to find the evidence sufficient even for filing the charge sheet. Does such trials amount to public service is a question to be introspected by the media itself".
P. MEDIA V/s BAR - THE KERALA MISADVENTURE
73. A breaking news of ("national importance"!) appeared in the news channels that a senior Government Pleader of the Kerala High Court had committed some erotic impropriety on a lady on the street far outside the High Court compound. On the allegation that the media channels were giving undue publicity to the said story claimed to be not reliably confirmed, the Advocate community staged a protest followed by a verbal and physical assault on the media persons both from within and outside the High Court compound. This incident soared high and went out of proportions and control on both sides necessitating intervention by the police. While the media channels were projecting visuals of the black-robed brethren attacking the media persons, the Advocates maintained their grievance that those visuals were garbled and suitably edited versions taking care to avoid scenes of assault by the media persons and the policemen on the practitioners of law. This was followed by the unethical boycott of the High Court and other Courts by the Advocates in protest (against whom?). A room in the High Court building which had been allotted in the past to the media persons also became the target of aggression resulting in the High Court being compelled to lock it up, hopefully for the good. The Government finally appointed Mr. Justice P. A. Muhammed, former Judge of the Kerala High Court under the Commission of Inquiry Act, 1952. It is understood that even before the long awaited report of that commission was given, the learned Former Judge passed away.
(Incidentally, in my opinion, the allotment of a room for the media persons inside the High Court building was an ill advised desideratum. I am given to understand that even in the Government Secretariat which is the frequent target of the media, no room is allotted to them and the entry of media persons into the Secretariat compound is restricted. Why should the media persons be allotted a room in an institution which is frequently covered by them ? At this rate, they will have to be allotted rooms in every establishment such as the office of the Director General of Police, Vigilance Directorate, Public Service Commission, the Raj Bhavan etc forming the frequent targets of their coverage).
In Courts of Justice including the High Court and other adjudicating Tribunals frequented by Advocates, the media cannot claim any right higher than that of the Advocates. After all, the role of the media is only to report the proceedings and to execute that function there is no need to provide any premises to the media inside the compound of any such public utility undertakings.
Q. A SERIOUS LAPSE COMMITTED BY NEWS CHANNELS
74. A common impropriety committed by certain news channels while making allusion to persons and occurrences, is that earlier pictures of very same persons or similar occurrences in the past are taken from the file and projected misleadingly without disclosing the file source or the occasion. Such a practice can have a perplexing effect on the viewers.
R. THE SOUMYA RAPE AND MURDER CASE FROM KERALA
75. Yet another instance of misreporting was in the Soumya murder case. There, even though the Supreme Court had dislodged the concurrent finding that the accused had committed murder of Soumya and had also consequently set aside the sentence of death on that score, the Apex Court had maintained the sentence of imprisonment for life for the rape committed on Soumya. But, some of the vernacular news channels even without caring to study the text of the judgment of the Apex Court, reported that the Supreme Court had dislodged the sentence of life imprisonment awarded to the accused and that there was every chance for the accused coming out of the prison soon. When the text of the Judgment was made available, the above news item turned out to be false. What was the necessity for publishing the verdict of the Apex Court even without reading the same. In the unhealthy competition to come to the forefront in quick reporting, the news channels are vying with each other even at the risk of truth and accuracy. This is a pernicious trend.
S. THE DESIRABILITY OF THE MEDIA COVERING COURT PROCEEDINGS
76. The principle of "open Justice" and its limitations as highlighted in paras 31, 32 and 34 of the Constitution Bench ruling in Sahara India Real Estate Corporation Ltd. (Supra – AIR 2012 SC 3829), may eventually gain momentum with less emphasis on the limitations to open justice. There is the current controversy as to whether the media or any member of the public can videograph the proceedings in Courts and Tribunals. I am personally in favour of live streaming of judicial proceedings except those which are held "in camera" or which are prohibited by the Court or by the Forum concerned from being covered. Live streaming of Court proceedings has several advantages such as –
i) reducing instances of misreporting by the media since the public gets first-hand information as to the happenings in Court.
ii) increased access to Courts and Tribunals.
iii) promoting of transparency and accountability.
iv) reducing opportunities for the Judges and lawyers to while away the precious time of the Court by indulging in irrelevancies. They will be conscious of the fact that they are being watched.
v) providing opportunities to the litigants and the general public as to how a particular Judge or Public Prosecutor or Advocate performed in Court, etc.
77. But then, who is going to videograph or cover even sensational cases right from the start to the finish ? Even if the reporter of a particular media channel were to do it, certainly no establishment is going to allow slots for telecasting the entire Court proceedings. Hence, once again the viewer will be left to watch only a truncated excerpt or a version of the Court proceedings coupled with an appropriate audio report to suit the reporter's version of the Court proceedings. What guarantee will be there to vouch for the real purport of the Court proceedings and at what cost ? These are, in my view, some of the important aspects to be borne in mind before sanctifying media coverage of Court proceedings. If the State can afford, it may provide for live display of the entire Court proceedings on the digital media at some place safely outside the Court room concerned to satisfy the interests of all concerned.
T. THE ALLEGED BETRAYAL AND SEXUAL EXPLOITATION OF THE FEMALE PENITENTS BY SOME CHRISTIAN PRIESTS
78. Recently, the State of Kerala witnessed the Police registering cases against certain Christian presbyters for allegedly betraying certain female penitents and others and for allegedly indulging in their sexual exploitation by taking advantage of their fiduciary position. Each member of the Christian faith, of both sexes, after he or she has attained the age of discretion, is to confess individually (solus) all his or her sins at least once a year. Penance in the form of confession to a Priest is a sacramental rite involving contrition followed by absolutism (the act of forgiving) leading to indulgence which is a remission before God of temporal and purgatorial punishment for the sins already forgiven. Priesthood is among the three noble professions, the other two being law and medicine. Taking auricular or sacramental confession from penitents is one of the liturgical services of an ordained clergyman.
79. The factum of the police registering crimes against certain Priests was celebrated by the print and electronic media by publishing news reports with photographs of the accused Priests. It has already been seen at pre-paragraphs 19 and 20 about the applicability of the doctrine of presumption of innocence in our country. Even the media is bound by the said doctrine and they cannot take shelter under the jaundiced alibi that such doctrines are not applicable to them. But the media, by publishing the wild allegations against Priests, has done unpardonable harm to those Priests who are insulated by the presumption of innocence. Of course, the police are equally guilty in disseminating investigation details to the media. Irrespective of the final outcome of the trial of those Priests, the media responsible for publishing their names and photographs and reports characterizing them as culprits of grave crimes, and the police officers responsible for leaking out investigation details, should be mulcted with heavy compensation by whichever Court that is approached by the Priests at the pre-trial stage. No other evidence, except the published material would be necessary to prove the case against the media.
U. KUDOS TO THE MEDIA
80. The print and electronic media in this country were at their best during the unprecedented and tragic deluge in the State of Kerala in the year 2018. It was unprecedented floods in our lifetime. The unkind rains and the waters released from the dams played havoc in this small State. The splendid service rendered by the media included locating the miserably marooned population, helping the task forces to bring succour like providing food, medicines, clothing and other necessaries in life to those trapped in their houses and also rescuing them to safer areas where they could find some relief from the vagaries of nature (or was it a man-made disaster?) which has been very cruel towards this part of the globe known as the "God's Own Country". Had it not been for the media, the whole world would not have come to know of the ravages of the devastating floods, details of the death toll not only of the precious human life but also of the wild and domestic birds and animals and the flora and fauna of this small State. The total or partial loss of buildings and other structures, two-wheelers, four-wheelers, plants and machineries which were all under the inundated areas, is almost incalculable. The media coverage has definitely helped and continues to aid the rehabilitation of those who have been rendered homeless by the nature's fury. The media has also played a vital role in highlighting the failures and deficiencies of the system and also in uniting the people regardless of their religion, caste or creed. Nobody can ignore or underestimate this commendable role played by the media.
V. THE REASON BEHIND THE DIRECTIONS BY THE SUPREME COURT OF INDIA AND THE VARIOUS HIGH COURTS TO THE EFFECT THAT THE INVESTIGATING AGENCY SHOULD NOT LEAK OUT THE INVESTIGATION DETAILS TO ANYBODY ELSE INCLUDING THE MEDIA DURING THE CRIME STAGE.
81. If the details of investigation are made public as and when they are collected during the stage of investigation, the following possibilities are bound to happen :-
82. It is to prevent such undesirable consequences that the investigating agency is prohibited from leaking out the result of investigation to the police during the crime stage. If so, the same principle should apply to the media as well. What is objectionable is not the media conducting a parallel investigation but the media publishing as "breaking news" whatever material collected by them and this has a profound and indelible impression on the lakhs and crores of viewers both across and outside the country.
W. WHAT IS IMPROPER OR ILLEGAL IS NOT IN THE MEDIA EMBARKING UPON A PARALLEL INVESTIGATION WITH A VIEW TO UNEARTH THE TRUTH, BUT IN INSTANTLY PUBLISHING THOSE DETAILS
83. Honest journalistic ventures actuated by genuine desire to bring out the truth are always welcome these days especially since the police are very often accused of taking partisan attitudes or yielding to political pressure. What is objectionable is the publication of the result of such media investigation, as and when it is unearthed, and gradually brainwashing the public to adopt the view propounded by the media, whether such view is right or wrong. The damage it does, when published much before the trial of the case is yet to begin in the Court empowered to conduct the same, is incalculable besides putting undue pressure on the Court. When the media publishes, during the crime stage of a case, whatever information they have collected, they are throwing to the winds the settled principles of "presumption of innocence" and "benefit of doubt" which the accused is entitled to plead on the materials collected, whoever be the investigating agency. As in the case of the police, the media also may be collecting materials some of which may not be admissible as per the rules of the Indian Evidence Act. While the police are prohibited from leaking out the investigation details during the crime stage, the media does not consider itself bound by those prohibitions and the result is whatever collected by the media is published with its all – pervading reach and the fickle-minded public believes it to be true. A criminal Court can take into account only materials which are admissible as per the rules of evidence. If, in a given case, the criminal Court were to acquit the accused (who is already publically convicted and condemned by the media) for want of sufficient legal evidence, even corrupt or ulterior motives will be attributed to the Judge.
X. THE PROPER COURSE FOR THE MEDIA TO DO IN SUCH SITUATIONS
84. They can collect every information in private and if necessary, videograph the same. After collecting all the incriminating material, if any, against the culprits, the media has the following options :-
85. If the above aspects are borne in mind by all concerned, there should not be any room for any grievance from any quarters. But, what we come across almost every day is the media channels vying with each other to claim who first reported or unearthed a particular incident and then serving a garbled or exaggerated version of the same to the gullible viewers who are very often carried away by the media exploits. In my opinion, instead of poisoning the public mind with exaggerated media reports about a crime even at the stage of investigation, the media can honorably perform the role of a co-operating participant in the process of investigation and reveal its findings either to the Police or to the Court at the appropriate stage.
Y. HOW TO CONTROL OR REGULATE THE OBJECTIONABLE SOCIAL MEDIA ADVENTURISMS
86. Section 66 A of the Information Technology Act, 2000 which was enacted as a measure for punishment for sending offensive messages through communication service, was struck down by the Supreme Court of India in Shreya Singhal v. Union of India (2015) 5 SCC 1 = AIR 2015 SC 1523 - Rohinton F. Nariman - J. The said Section was held to be arbitrarily, excessively and disproportionately invading the right of free speech thereby upsetting the balance between such right and the reasonable restrictions that could be imposed on such right. Notwithstanding the finding of the Apex Court that the said Section suffers from unguided and arbitrary power, no attempt has been made for re-enacting the Section with adequate guidelines. Hence the remedy for the menace lies with the Parliament and rather than with the Executive or the Judiciary.
Z. BY WAY OF CONCLUSION
87. So long as the duty of conducting trials in various jurisdictions (including civil, criminal and writ jurisdictions) and resolution of disputes, stands exclusively earmarked for the judiciary in this country, it may not be desirable, in a democratic set up, for any other agency to arrogate to itself the role of the Courts and breed confusion and lawlessness in the mind of the unsuspecting public to the detriment of the judicial institutions, the curial processes followed therein and to the society at large. The individuals including the members of the judiciary who are subjected to calumny by the print and electronic media, have virtually no remedy since they cannot afford to fight the mighty media. Far from empowering the fourth estate to engage itself in such inquisitive ventures, the real need of the hour is to educate and enlighten the media with regard to the limitations on the freedom of speech and expression. Subject to the Constitutional and other statutory limitations, as far as possible, every agency should be able to operate in its own field without encroaching into the dominion earmarked for other agencies. With regard to the State of Kerala, I can unhesitatingly say that the media is transgressing all limits and may invite avoidable actions for damages founded on defamation in addition to criminal prosecutions and actions for contempt of Court. While it may be open to disgruntled elements to make wild and reckless allegations against Judges and Advocates, the media cannot hold the brief of such disgruntled daredevils and publish any trash bringing such judicial personage to ridicule even before any of the in-house Constitutional or other established mechanisms enquiring into the matter and indicting such Judges or Advocates who may ultimately be found to have erred. In the unhealthy competition inter-se between the media channels and media persons, every care should be taken to know their limits avoiding transgression into forbidden fields. Practitioners of law also should realize that they belong to a noble profession and whatever be the provocation, instead of being harbingers of justice, they cannot take the law into their hands and become instruments of lawlessness. This is not say that there cannot be any parallel journalistic ventures to unearth the real truth in a given case the trial of which may be either imminent or remote. In a Court of law it is only evidence which is admissible according to the provisions of the Indian Evidence Act, 1872, can be allowed to be adduced during trial. But the material which the media persons may unearth and publish need not necessarily be admissible in evidence. By publishing such material in a case, there is the possibility of the gullible and fickle-minded public being carried away by such material and unfoundedly suspecting the investigating and judicial personage. If an investigating police officer has no right to leak out the investigation details to anybody including the media during the stage of investigation, on what higher right can the media claim to conduct a parallel investigation in public and indoctrinate the mind of the public for or against the person who is to face trial before a court of competent jurisdiction. The appropriate course for the media may be to conduct a parallel investigation without any publicity and either aid the empowered investigating agency or even the trial Judge, leaving it to the curial process to decide, preferably after notice to all the stakeholders, as to whether a particular material should be admitted in evidence and relied on or not. In situations where the investigating agency is not above board, such investigation by the media can serve as a check on the lack of probity of the empowered agencies in charge of investigation and prosecution.
The author is Former Judge, High Court of Kerala.