Media should perform the acts of journalism and not as a special agency for the Court – Supreme Court of India, in Sidharth Vasisht v. NCT of Delhi (2010) 6 SCC 1, while chastising media for biased reporting of the pending trial.
The quality of newsroom discussions hit a new low when Times Now held a horrendous debate on the CCTV footage in the rape case involving Tarun Tejpal, by brazenly defying the court order and statutory provisions. The debate aired on May 28, was preceded by a dramatic build-up in social media, with the hashtag “ #TejpalTapes”.
Tarun Tejpal, journalist and chief editor of Tehelka, is accused of committing rape on his junior colleague inside an elevator in a hotel in Goa during November 2013. The “never seen before videotapes” shown by Times Now depicted two persons ( who the channel claims to be Tejpal & the complainant) entering and exiting an elevator in a hotel lobby.
The debate carried out in two sessions, one anchored by Editor-in-Chief Rahul Shivshankar and another by Managing Editor Navika Kumar, was attended by several panelists, including lawyers. The CCTV footages were repeatedly shown, and the anchors baited the panelists with their own subjective interpretations based on the body language of the persons shown in the footage. The panelists took their turn in either attacking Tejpal or discrediting the complainant-woman, based on their surmises from the footages having a duration of few seconds. The discussion was shrill, lacking in nuance, and without any regard for the rights of the accused and the privacy of the complainant. When the debate inched towards victim-shaming, it was clear with whom the channel’s sympathy was. Anyhow, the attempt of this column is not to analyze the journalistic merits of the channel show, but to point out the glaring legal violations in it.
Court order violated by airing videotapes.
The trial court in Goa which is seized of the matter has passed an order in June 2017 restraining the publication of court proceedings. The Court held that the proceedings will be held “in-camera”, meaning that the proceedings will not be open for the general public to watch. The order was passed by the Court to preserve the dignity, respect and privacy of both prosecutrix and the accused. The video footage is an evidence in the case, upon which reliance is placed by both the prosecution and defence to support their respective versions. Regarding the violation committed by channel, Supreme Court criminal lawyer Rebecca Mammen John has commented as follows:-
Section 327 (2) and (3) of The Code of Criminal Procedure makes it clear that Rape trials shall be conducted in camera. It further states that “ it shall not be lawful for any person to print or publish any matter in relation to such proceedings, except with the previous permission of the court .” The footage that was aired yesterday is an exhibited document in the trial.In an ongoing trial, you cannot play any footage on your night show without the permission of the court. The court had not granted any such permission. On the contrary, it has prohibited public viewing of the footage. Dear anchors: Got that?
The video footage could not have been accessed by Times Now through means known to law. When the footage is part of court evidence, accessing it through other surreptitious means is blatantly illegal and improper.
Interference with criminal trial
The video footage lasting for a few seconds is only one of the several pieces of evidence in the trial. The video footage does not pertain to the alleged happenings inside the elevator. Therefore, to draw inferences of guilt or innocence based on the body language of the persons shown in the footage is too much of a guesswork, having no standing on its own independent of other evidence on record. To hold a highly judgemental debate on the basis of this singular piece of evidence without reference to other evidences is grossly improper.
Discrediting of a witness is done on the basis of evidence and statements tendered in court, after putting the witness through cross-examination. As per information gathered, the cross-examination of the victim is yet to take place. Before that stage, it is not incumbent upon a channel to present views discrediting the victim, especially so when the entire set of evidence is not available in public domain.
In this regard, it is pertinent to refer to Norms of Journalistic Conduct formulated by the Press Council of India, under Section 13 of the Press Council Act, 1978. In paragraphs 12(a), 12(b) and 41(A) in Part A thereof under the heading “Caution in criticising judicial act”, “Reporting News pertaining to Court proceedings” and “ Trial by Media”, it is stipulated as follows :-
All the above guidelines were violated by the show run by Times Now.
In what could be termed as an instance of running with the hare and hunting with the hound, the channel managed to create an air of hostility against the accused, and also to malign the dignity of the victim, with its over-the-top commentary and titillating tone of the debate.
The high-voltage debate accompanied by its mass propaganda through social media has the potential to sway the minds of unsuspecting viewers, who may not be well versed with court procedures. Even the judiciary cannot be completely insulated from the public pressure generated by media narratives. Justice Cardozo, one of the great Judges of American Supreme Court in his "Nature of the Judicial Process" observed that the judges are subconsciously influenced by several forces. The parallel trial held by the channel on the basis of piecemeal evidence has skewed public perception of the case, and this could act as an unwarranted external pressure to the judicial process.
Thus, this is a clear case of prejudicing judicial process and interfering with the administration of justice, which are grounds for initiating criminal contempt action under the Contempt of Courts Act 1971.
Need to draw lines.
Acknowledging that even non-state actors like media can infringe the right to privacy, the High Court of Kerala observed :- “The newly recognized fundamental right to privacy, which takes within its fold the right to protect ones reputation as well, would merit classification as a fundamental right that protects an individual, not against the arbitrary State action, but also from the actions of other private citizens, such as the press or media”. This observation was mmade inthe solar scam case against former Kerala CM Oommen Chandy, where the Court had initially gagged the media from publishing contents of the Solar Commission Report. The observations were based on the Supreme Court decision in Justice Puttuswamy v. Union of India, which declared right to privacy a fundamental right.
The parallel trial by channel carried out without regard to fairness, and without the opportunity to the affected persons, has infringed the right to privacy of both the accused and the victim. The panelists were speaking without any authority to represent the affected persons, and they have inflicted irreversible damage with their unabashed mudslinging. On this, Advocate Rebecca Mamen John commented in Facebook as :-
Not a single lawyer who appeared on the Times Now channel last night discussing the merits of a footage from an ongoing rape trial spoke out against the gross illegality of playing and replaying it. There is a court order prohibiting viewing of the footage. Many of the participants discredited the victim and made outrageous claims. Shame on all of you.
This also provides occasion for the media to introspect about the boundaries to be maintained while discussing pending criminal trials. Media intervention in cases like Jessica Lall case, BMW hit and run case etc are often projected to support “media trial”. But those cases had some glaring instances of investigative lapses and attempts to subvert trial, which would not have got corrected but for media activism. But here in “Tejpal Tapes”, there was no such redeeming element of overriding public interest. The debate did not achieve any worthy purpose except providing sadistic pleasure to some. Apart from that, there was no journalistic relevance too, as there was no occasion for making such an untimely debate at this juncture on an ongoing trial. From the timing of the debate, one cannot help wondering whether it was a ploy to deflect attention from the questions raised on the credibility of the channel in view of the Cobrapost expose.
(The online video links of the debate has been since taken down from the official website of Times Now and its YouTube channel, presumably fearing legal sanctions)
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]