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:
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 as to 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. 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 regulatory mechanism if the same is ineffective as a preventive measure.
Some Personal Observations
A. The recent solar case: 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 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 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.
B. Media engaged in snatching investigation details: 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.
C. The mighty and all pervading media:- The media now-a-day's 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 in the former position. This is equally applicable to courts and other adjudicatory bodies. 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.
D. Sting operation against a saintly soul:- A renowned Judge of the High Court of Kerala, soon after his retirement was treacherously and without his knowledge 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 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 but made in the purely private talk, were 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 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 and no other news channel deprecated the said operation. There cannot be a worse case in which the code of journalistic ethics were either breached or conveniently ignored.
E. Audi alteram partem : Whether it is the media or any other person criticising another, behind his back, for an act should realise that there is always another view for the alleged act and 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.
F. Judges are not semi-permeable inanimate membranes:-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 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. 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.
G. (1) Media participation of Advocates:- 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 advertance 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 many. 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 comments 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).
In the above case Sri.M.V. Jayarajan 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.
(2) The role expected of a lawyer and the duties of the Bar Councils:- 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.
“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”.
(3) Role of the High Courts to avert damage by the media to matters which are sub judice : 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”.
Ignorance of Law:
(1) A news item in a vernacular T.V channel recently stated thus:
“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) An unnecessary controversy was raised by the media regarding the change of roster concerning a couple of Judges in the High Court of Kerala. 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. 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.
Justice V Ramkumar is a retired Judge of the Kerala High Court. This is the second part of the series on Trial by Media.
You can read first part of the column here