From Shakespeare to Sushant: The truth is often found in shades of grey.

Innocent until proven guilty, or guilty until proven innocent? 

As the Hon’ble Bombay High Court advised media to practice restraint while covering Sushant Singh Rajput’s Death Case, I began wondering: are we really living in the rule of law our forefathers envisioned? This form of media vigilantism, sensationalising the case and creating a public outcry, which in the process subverts, or at least undermines, the due processes of the legal system cannot be what the champions of freedom of speech fathom when they advocate for an unrestrained media. 

I am reminded of a scene from Shakespeare's Julius Caesar. The scene is one where Antony delivers his speech that is revered even today: “Friends, Romans, countrymen, lend me your ears; I come to bury Caesar, not to praise him…” After Antony’s speech, the blood-thirsty mob, which until now was clueless as to who killed Ceaser and why, takes matters into its own hands. That’s the typical mob. Once something happens, it needs to know why it happened and who was responsible. The mob does not have a mind of its own and its memory is short-lived. Isn’t this what we witness in all media trials?  

Source: https://www.teacherspayteachers.com/Product/The-Art-of-Persuasion-Rhetoric-in-Mark-Antonys-Speech-3203827

Though Antonio didn’t lie about the intentions of Ceaser’s brutal assassination, the mob, nevertheless, didn’t care for a verification. Any piece of information was enough to rile them up. It is these emotions that drive the public actions after every crime. They need to know who did it and they need to know it asap. They have no means to verify if the story being told to them is indeed representative of the whole picture or even, the true picture. Be it the Vikas Dubey encounter, or Telangana shooting of the alleged rapists, we often see little wisdom in the mob’s sentiment and yet it is this sentiment which gives media the direction for framing its narratives. And this is why we are no stranger to the sight of media persons demanding an entry into the accused’s premises and asserting it as if it were their right; or shoving their mics into their noses as they step out of the house, accessing personal chats between two persons and publishing them without knowledge of the original context, often leaving the viewer to read it in the context of the crime committed, and so on. The job of media is to provide information where it is due. Investigative-journalism is great as long as it does not turn into plainly ‘accusatory-journalism’.

So, isn’t it high time that the media be prohibited from ‘deciding’ the culpability in an ongoing investigation or trial? Though the party has the option to seek injunction, restraining all media outlets from tarnishing his/her image, should there not be a blanket regulation prohibiting such behaviour per se, and penalizing for its violation? Press is the fourth pillar of democracy, but wouldn’t stretching one pillar longer than the other make the whole building tumble, and eventually collapse? And this is not to discredit the fantastic job the media has done over the years, sometimes to even unearth the facts that would have otherwise been lost, but it should be called out when it exceeds its domain and indulges in a brazen mockery of the rule of law. 

Let us now look at some of the famous media-trials in the history of India, and see what the Hon’ble Courts observed:

1. KM Nanavati v/s State of Bombay: Responsible for ending the jury system in India, this sensational case has been the topic of various dramatic adaptations, and rightly so. This case is a classic example of how the media garnered sympathy for an accused whom the court eventually found guilty of murder, and the same wave of emotions impacted the jury. Though a judge is trained to be not swayed by such attempts to influence his conscience and better judgment, the jury could do a little to help itself. The story of a man, in love with his wife, who killed another man who dared bat an eye upon his wife and take advantage of his long absences spoke to the masses more than any rule of law, and the media had a pivotal role in it. The print media in those days highlighted as to how when a decorated naval officer was serving the nation, his friend was making acquaintance with his wife, and upon finding out about their affair, the officer killed the man to protect his honour, and to uphold the love he had for his wife. The jury’s eventual acquittal of Nanavati had more to do with the justifications Nanavati’s acts that the media was feeding them than on any legal ground. KM Nanavati was eventually convicted by the Court but obtained a pardon from the then President of India.
2. Dr. (Smt.) Nupur Talwar v/s State Of U.P. and Another (Arushi Murder Case): This should be fresh in all our memories as it isn’t as old as the Nanavati Case. The mystery of a girl, killed in her own room, with no signs of forced entry, and later on discovery of the dead body of the servant shook the nation, and it was this mystery and the need to solve it that the media banked upon and launched its own parallel investigation. We also saw the main accused in the media trial: the father of the girl being convicted and later being acquitted by the Hon’ble Allahabad High Court due to lack of evidence, something perceived as a major victory against the media trial that had ensued ever since that fateful night. In dismissing the trial court verdict, the Hon’ble High Court had given the following word of caution: “Pointer is that the trial Judge should evaluate evidence in its existing form, should not tinge it with his passionate reasoning so as to give a different construction than the one which is naturally reflected and forthcoming. Caution enjoins on the trial Judge that he should exercise self-restraint from deliberately twisting facts in arbitrary manner and should refrain from recording finding on strength of wrong premise by virulent and meandering reasoning. The entire judgment is on the whole creation of fanciful reasoning with pick and choose presuming facts with indomitable obstinancy and taking things for granted, thus, basing conclusion on unfounded evidence. The trial Judge is supposed to be fair and transparent and should act as a man of ordinary prudence and he should not stretch his imagination to infinity - rendering the whole exercise mockery of law.”
3. Court on Its Own Motion v/s State, on 14 December, 2007: Famously called the fake string operation case, this case is a glaring example of media desperation. Herein, Ms. Uma Khurana, a Delhi school teacher was caught on camera, set-up as a part of a sting operation upon her, purportedly forcing a girl student into prostitution. Subsequent to its telecast, a crowd gathered at the school gate and started raising slogans demanding handing over of Ms. Uma Khurana to them. In the commotion and mayhem that followed, some persons physically attacked her and even tore her clothes. She was later dismissed from her service. But after investigation it was found that the girl who had been shown as a student who was allegedly being forced into prostitution by Ms. Uma Khurana was neither a school girl nor a prostitute but, in the words of the Hon’ble Delhi High Court, “..a budding journalist eager to make a name in the media world’, and was staged on account of a rivalry.” The Hon’ble Court observed: “The duty of the press as the fourth pillar of democracy is immense. It has great power and with it comes increasing amounts of responsibility. No doubt the media is well within its rightful domain when it seeks to use tools of investigative journalism to bring us face to face with the ugly underbelly of the society. However, it is not permissible for the media to entice and try to actively induce an individual into committing an offence which otherwise he is not known and likely to commit. In such cases there is no predisposition. If one were to look into our mythology even a sage like Vishwamitra succumbed to the enchantment of "Maneka". It would be stating the obvious that the Media is not to test individuals by putting them through what one might call the "inducement test" and portray it as a scoop that has uncovered a hidden or concealed truth. In such cases the individual may as well claim that the person offering inducement is equally guilty and a party to the crime, that he/she is being accused of. This would infringe upon the individual's right to privacy.” The Hon’ble Court enlisted certain proposed guidelines and observed that proposed guidelines should be considered by the concerned Ministry and if they find favour, they may be incorporated in the enactment/guidelines, with modifications as deemed fit and proper.
4. Nuzhat Perween v/s State of U.P. and Another: Also known as Dr. Kafeel Khan Case. Dr. Khan was arrested and detained from Mumbai earlier this year, for allegedly giving a provocative speech at the Aligarh Muslim University, amidst the anti-CAA protests, and NSA was slapped on him. In the judgment passed earlier this week, The Hon’ble Allahabad High Court held that prima facie, the speech is not such that a reasonable man could have arrive at a conclusion as the inference drawn by the District Magistrate, Aligarh, who passed the detention order against Dr. Khan. The Court observed: “The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent.” Thus, in absence of any "causal link" between the Act and the detention order, the Court acquitted Dr. Khan. But this came after months of media trial and coverage, repeatedly playing only excerpts of his speech, and indicating that he’s guilty.
5. Zahira Habibullah Sheikh v/s State of Gujarat: The Gujrat Riots were again, highly covered in the media, and several books have been written upon it. This case is of Zahira, who turned into a hostile witness citing external threats to her. In this case, the Hon’ble Supreme Court, opining on a fair trial explained that a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.” This, needless to say, is in total contrast to what happens in a media trial. In Zahira’s case, she was sentenced for turning hostile, despite the media sentiment supporting her turning hostile due to external threats she cited.
6. Kartongen Kemi Och Forvaltning AB and Ors. v/s State through CBI: is a case dealing with the alleged Bofors Scam. This was highly publicized in the media and they suggested their own conclusions although they didn’t have any access to the actual official documents. Upon the media sensationalization of the case with active involvement of the CBI, the Hon’ble Court observed: “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.” The Hon’ble Court also discouraged the practice of the authorities aiding media trial and observed: “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 porific slumber and take years in filing the charge sheet and thereafter several years are taken in the trial.”
7. State of Maharashtra v/s Rajendra Jawanmal Gandhi: This case concerned the rape of a minor girl, and saw huge media coverage, public outcry, and demands of taking the accused person’s life. The Hon’ble Supreme Court observed: “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 is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law.” This judgment captures the very essence of the follies of a media trial where Hon’ble Justice HR Khanna says: “Certain aspects of a case are so much highlighted by the press that the publicity gives rise to strong public emotions. The inevitable effect of that is to prejudice the case of one party or the other for a fair trial. We must consider the question as to what extent are restraints necessary and have to be exercised by the press with a view to preserving the purity of judicial process. At the same time, we have to guard against another danger. A person cannot, as I said speaking for a Full Bench of the Delhi High Court in 1969, by starting some kind of judicial proceedings in respect of matter of vital public importance stifle all public discussions of that matter on pain of contempt of court. A line to balance the whole thing has to be drawn at some point. It also seems necessary in exercising the power of contempt of court or legislature vis-à-vis the press that no hyper-sensitivity is shown and due account is taken of the proper functioning of a free press in a democratic society. This is vital for ensuring the health of democracy. At the same time the press must also keep in view its responsibility and see that nothing is done as may bring the courts or the legislature into disrepute and make the people lose faith in these institutions.”

The idiot-box, which our parents told us to be weary of while growing up has, for good or bad taken various forms now. It now at times glares at you via your 6-inch screen that you carry with you on the bus, and into your beds. The information spreads like wildfire now, and so does mis-information. And, does anyone really know of an accused’s culpability before the trial?