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Kerala Nirbhaya Murder: Do not poison the fountain of Justice before it begins to flow

Ashok KM
18 Jun 2016 5:35 AM GMT
Kerala Nirbhaya Murder: Do not poison the fountain of Justice before it begins to flow
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‘X Killer arrested’, was the headline in almost all newspapers in Kerala, when Kerala Police took an Assam native in to custody in connection with the murder of Perumbavoor Dalit Law Student [X]. Who told the Media that he is the Killer? Did the Police say so? The police arrested a person who they believe has committed this heinous crime and they might have their own theories and evidence to prove that. But these theories and evidence have little value unless they pass through a trial before the court. In numerous case laws, it has been held by the Apex Court that Fair trial is a fundamental right of an Accused.

While browsing through case laws, I came across these observations made in a report referred in a Judgment of House of Lords "It is sometimes asserted that no judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard of read outside the court and he will not knowingly let himself be influenced in any way by the media, nor in my view will any layman experienced in the discharge of judicial duties. Nevertheless it should, I think, be recognised that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it.”

We have a legislature which is empowered to legislate what is crime and what is not, an executive to prevent people from doing crime and to find out the persons who commit crime, a judiciary to really judge, after giving the person accused of committing a crime, a fair trial, whether he has committed the crime or not. Even after a Trial Court finds him guilty, he has the right to appeal before Superior courts.

Here the Police, after their investigation, comes out and say that they have found the person accused of brutally murdering a young girl. They disclose the evidence which led them to the accused. Media informs its viewers: “Here is the man who killed X”. Don’t these adversely affect a fair trial? Who and what authorized media to call him a Killer? If in future, a court of law acquits him, can the media compensate ‘the Killer’ for defaming him? Will not this campaign that he is a killer, affect fair trial and influence judges who preside over the trials?  We have a right to believe as truth what the Police tell us. But remember that our right to such a belief should not deprive someone a ‘fair trial’, which is his fundamental right.

The disclosure about the modus operandi in capturing the accused in a crime by the Police as well as media will also be fatal in criminal investigation in future crimes. Nowadays it is a practice that the Police arrange media conferences highlighting the ways and means as to how the accused was nabbed. These disclosures made publicly empower the criminals to obstruct criminal investigation methods of the Police. Widespread discussions about such disclosures help criminals in the society to avoid being nabbed easily by the Police. The Police as well as media should restrain themselves from such disclosures in public. They have a duty towards society and its security. It is commendable that the present DGP, Mr Loknath Behra refrained from calling a press conference relating to the arrest of the accused in X Murder Case. The message is loud and clear.

The media also violated the specific Direction from Kerala High Court against using the name of the Victim

It is very sad that media, which boasts itself as fourth pillar of democracy, is continuing to behave irresponsibly while reporting crimes. It is one thing to report the police version as it is, and another to label a person as ‘killer’ before he gets an opportunity to defend himself in a Trial. Self restraint by Media and Police is the need of the hour.

The following classic observation made by Justice UL Bhat three decades ago in Kannan vs State [1984KLT 412] is still relevant

“The press has, no doubt, the right and duty to inform the public about crimes and bare facts relating to investigation, arrest and the like. But excessive publicity with all lurid details, interview of witnesses, accused or investigating officers tend to prejudge issues which, in the final analysis, are within the jurisdiction of the court to decide. Courts, no doubt, are manned by Judges knowledgeable in law and trained to act impartially and free from bias or prejudice. But in the words of the Great Cardoza (see "Judicial Process"). "They (Judges) do not stand aloof on chill and distant heights. .. .......... The great tides and currents which engulf the rest of the men do not turn aside in their course and pass the Judges by". As Lord Denning observed in "Road to Justice'', 'The press plays a vigilant part in the administration of justice. It is the watch dog to see that every trial is conducted fairly, openly and above board. .... The watchdog may sometimes break loose and has to be punished for its behaviour".

 In relation to the present case and some other crime cases in the recent past, the mass media has been giving tremendous publicity. The crimes, in all their lurid details, full particulars correct or otherwise the various steps and stages of police investigation, freely embroidered with subjective comments and observations tending either to pronounce on the guilt of certain persons or on the motives of the investigators, are being splashed in the mass media. Sometimes, reports based on investigative journalism in relation to crime cases are also seen published. Introspection by the press with a view to fulfill its true role within the limitations set by law is called for, heeding the caution that otherwise it is possible to poison the fountain of justice before it begins to flow.

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