Towards the end of its judgment on trial by media on 18 January, the Bombay High Court has this to say about the way in which Republic TV and Times Now covered the death of actor Sushant Singh Rajput:
"“In the process, in an attempt to out-smart each other (for reasons which we need not discuss here), these two TV channels started a vicious campaign of masquerading as the crusaders of truth and justice and the saviours of the situation thereby exposing, what in their perception, Mumbai Police had suppressed, caring less for the rights of other stakeholders and throwing the commands of the Cr PC and all sense of propriety to the winds.”" -
The high court found that the kind of coverage that these channels did at the time, vilifying Rhea Chakraborty and insisting the Mumbai Police had failed by not arresting her, was prejudicial to the interests of Chakraborty as a potential accused, and could dent any attempt to have a fair trial in the future.
This in turn would “derail due administration of criminal justice”, which on the face of it, amounts to criminal contempt of court, the judges held.
The judges refrained from taking action against the two channels at this time, but did say that they hope and trust that they will act more responsibly in the future “and not create a situation for the court to take recourse to the provisions of Article 215 of the Constitution and the CoC Act to invoke its jurisdiction to punish for contempt.”
This will hopefully be a message not just for Republic and Times Now, but other news channels and the rest of the media, to be more careful with their reporting on criminal investigations, no matter how high-profile or gossip-worthy they are.
Here are some of the key takeaways from the judgment, and some of the things the media will have to watch out for when reporting on such matters in the future:
1. SHOT IN THE ARM FOR RHEA?
The court had some strong observations to make about the way in which Rhea Chakraborty was treated in the media’s coverage. Despite the fundamental rights to life, equal protection of laws and against self-incrimination, the media portrayed her as a villain who was guilty of orchestrating Sushant Singh Rajput’s murder.
The presumption of innocence, the cornerstone of the criminal justice system was stripped from her, in the deluge of reports, discussions and debates, which made accusations against her without any good faith.
In October 2020, Rhea’s lawyers had suggested that they would take legal action against those who had spread false information and defamed her in connection with Rajput’s death.
While the findings of the high court will not in themselves provide a basis for such a suit, the judgment does make a clear finding that the coverage regarding her was prejudicial, which will certainly assist any attempts to secure action against the channels.
The issues explored in the judgment will certainly be of use for her in demonstrating that this was not fact-based coverage in the public interest, and nor was it a comment in good faith (which would be the defences the channels could seek to use).
This will hopefully mean that these kind of news channels will think twice before starting the kind of witch-hunt they launched against the actress, in the future.
2. MEDIA WILL HAVE TO BE CAREFUL NOT TO BREAK THE LAW - BUT IS THIS CENSORSHIP?
The TV channels who appeared before the Bombay High Court sought to argue that their coverage of the Sushant Singh Rajput case was ‘investigative journalism’ and an exercise of the right to freedom of the press.
However, while acknowledging the right to freedom of the press, the high court noted that the fundamental right to freedom of speech is nonetheless subject to certain reasonable restrictions, including contempt of court.
This obviously raises the spectre of censorship, and with press freedom already in trouble in India, that’s something we have to be wary of. However, the court does appear to be aware of this danger and in fact notes the benefits of strong investigative journalism in ensuring justice in the Jessica Lal and Priyadarshini Mattoo cases, for instance.
It seeks therefore to tailor its focus to a specific problem: Trials by media that affect the administration of justice and thereby violates the law on criminal contempt.
The concept of criminal contempt of court under the Contempt of Courts Act 1971 has recently been in the news because it has come up in the Prashant Bhushan, Kunal Kamra and Rachita Taneja (Sanitary Panels) cases. Those cases dealt with an controversial aspect of criminal contempt: Scandalising the court or lowering its authority.
In the media trial case, however, the high court was looking at a different limb of criminal contempt: Interference with the administration of justice. Their analysis of the legal restrictions, which can exist against the press is therefore built around this issue. This is why the court says:
"“Since here we are majorly concerned with “administration of justice”, any report of the press/media, having the propensity of tilting the balance against fair and impartial “administration of justice”, could make a mockery of the justice delivery system rendering ‘truth’ a casualty."
Drawing on a number of previous judgments of the Supreme Court, the high court has sought to examine situations where the media’s coverage can affect criminal trials and investigations, and it is within this framework that the media will need to make sure it operates in the future.
Some of the issues to consider for the media are as follows:
Their coverage can tip off an actually guilty person about steps being taken by the investigation, which can then lead to destruction of evidence or the accused absconding.
Hounding an innocent person and projecting them along with other accused persons can destroy reputations built over years, which is irreparable even if they are eventually acquitted, even leading to the person attempting to take their life.
Exposing witnesses to a case can lead to them being won over, threatened or physically harmed to ensure they don’t turn up or turn hostile, potentially wrecking a prosecution case.
Haranguing an investigator in public and maligning them for not pursuing a particular line of investigation can cause them to switch tracks, which could either lead them to failing to solve the case or even going after the wrong person.
While trials are open court proceedings, investigations do not need to be made public. Hounding the investigator and accusing them of indulging in secrecy is not warranted and can in fact hamper a proper investigation.
The court argues that the failure to keep these considerations in mind has a direct impact on the right to life of the accused and the witnesses under Article 21 of the Constitution. When it comes to the accused, their right to life and personal liberty can only be affected through a just, fair and reasonable procedure.
Media trials and parallel investigations by the media, if not careful, end up putting these rights at risk and thereby the sanctity of the criminal justice system as a whole. As a result, they argue that the guidelines and regulation they propose – and the threat of contempt for failing to follow these – do not amount to censorship.
3. MORE THOUGHTFUL & SENSITIVE COVERAGE?
The guidelines eventually proposed by the court are not in the form of some straitjacket formula, and if understood and followed in spirit, could very well lead to more thoughtful and sensitive coverage.
Take for instance the guidelines on death by suicide. By saying that media houses should not depict the deceased as having a weak character or invade the privacy of the deceased, this does not stop the media from reporting on suicide cases.
However, it does suggest that before going wild and running stories about the deceased and how they were subjected to black magic or showing images of their corpse, TV channels and the press will need to introspect a little and ask why that particular ‘news item’ needs to be published.
The requirement to not refer to the character of the accused or the victim is again important, as we have seen how the failure to do so pushes regressive stereotypes, especially about women. This is an issue for media coverage of not just accused persons like Rhea, but also victims in many rape and sexual assault cases.
Another important point the court has raised is about publishing ‘confessions’ made to police officers by the accused and making this seem like evidence against them – even though this would be inadmissible in court under the Evidence Act. From Tahir Hussain to Umar Khalid, this kind of reporting is often used to build public narratives against accused in political cases, which affects their right to a fair trial and the right to life.
The threat of contempt action for failing to take these considerations into account is unlikely to stop any important reportage about a case, and instead will lead to a better quality of coverage.
4. I&B MINISTRY NEEDS TO PULL UP ITS SOCKS
Finally, the court has also rapped the Ministry of Information and Broadcasting for its failure to enforce the Programme Code under the Cable TV Rules 1994, which it has been given the power to do under the Cable TV Network Act of 1995.
According to the high court, there is a “robust statutory framework” to deal with violations of the Programme Code, but the Centre has “abdicated” its responsibility to act on such violations, even when complaints have been made to it, such as over the coverage of Sushant Singh Rajput’s death.
The court was baffled by the constant reference of matters to the National Broadcasters Association (NBA), a private body under the self-regulatory framework for TV channels, as the self-regulatory mechanisms of the NBA and its rival NBF have no legal sanctity, and do not affect the I&B Ministry’s powers.
This will mean that channels will now have to run the risk of getting sanctioned by the I&B Ministry for irresponsible coverage like media trials – even if the Ministry is reluctant to do so, directions can be obtained from the courts to get them to take action based on this precedent.
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