Media requires adhering to ethical norms for fair trial

March 19, 2015 09:42 AM
Indira Jaising, a former additional solicitor general of India

By Indira Jaising*

India's Daughter comes in the way of a fair trial for Nirbhaya convicts

There is nothing new about crime fiction or, for that matter, recreating a crime on screen by interviewing a convict.When filmed this is nor mally done in the form of a `documentary'. In today's context, there is a flourishing market for these documentaries.However, such documentaries have normally been made after there has been a final closure to the case.

They are also made when a person suspected of a crime is not charged and the filmmaker provides evidence which can lead to charges being brought. In an award driven world these documentaries often get prestigious awards but invariably also raise ethical issues. Some such thing seems to be happening in the case of The Jinx made by Andrew Jarecki, a serial aired by HBO, towards the end of which Robert Durst has been charged with the murder of his friend Susan Berman as recently as this month. Questions are being asked why HBO did not share the evidence they had more than two years ago with the police. 

The documentary India's Daughter falls into neither of the above categories. It interviews a convict when his appeal is still pending in court and there is no closure. The convict Mukesh Sharma admits on camera to being part of a criminal gang which raped and killed Nirbhaya, though he absolves himself of the crime and incriminates other gang members.

India's Daughter seems to be in contempt of court as it was aired during the pendency of the appeal in the Supreme Court.

Such a film raises serious questions of contempt of court where the appeal against the death penalty is still pending. Miscarriage of justice can take place through prejudice and bias operating during the trial and the appeal. History tells us that there are cases where innocent persons have been convicted on laughable evidence, due to hysteria built up in the media. There are also cases which have been reopened even after executions have taken place, and the convicted declared not guilty .

Perhaps the best justification for limiting free speech on the ground of contempt to court in Article 19(2) is the need for a fair trial. Section 2(c)(2) of the Contempt of Courts Act defines criminal contempt as the publication of any matter, which prejudices or interferes or tends to obstruct the administration of justice in any manner. In order to strike a balance between free speech and the absolute need for a fair trial, Section 4 states that fair and accurate reporting of judicial proceedings shall not constitute contempt. At the same time, the court has the power to hold trials in-camera in public interest. 

The Nirbhaya case was one such case in which trial was held in-camera, perhaps because of the violent, brutal and sexual nature of the crime involved. At that stage the order was challenged in the high court, which modified it and permitted the print media to report while keeping the electronic media out. It must be recorded that the print media reported on the case in a responsible manner and no complaint was made about the reporting.

India's Daughter seems to be in contempt of court as it was aired during the pendency of the appeal in the Supreme Court. To begin with, the documentary maker gets the convict to make admissions and confessions in relation to the offence, incriminating the other accused and exculpating himself. Already there is an online petition demanding the death penalty while the issue of crime and punishment is yet to be decided.

This brings me to the issue of the need for a functioning and sustainable legal justice delivery system. Do we have one in India? Questions have been raised about the pendency of the appeal for over a year. While such pendency may not be considered too long, it is a Arundyuti Das Basu notorious fact that even otherwise cases in this country remain pending beyond all conscionable time limits.At the time of writing, the high court has orally observed that the press appears to have overstepped its self-imposed limits during pendency of appeal but the issue that the film raises is far more serious, namely , is there an interference with the func tioning of the courts? Much as judges may claim they are not affected by the press, they have been known to pro nounce sentences based on society's `collective conscience'.

While this particular case may be portrayed as having been concluded in record time without compromising the quality of evidence, every case of sexual abuse is not dealt with in similar fashion. Litigation fatigue, witnesses turning hostile and so-called settle ments are outcomes of this dysfunc tional legal system.

Courts have always had a vexed relationship with the press on the issue of contempt and the legitimate limits of reporting. On the one hand courts resist live streaming or video recording of its own proceedings, while on the other they blissfully ignore the widespread circulation of India's Daughter.

A charitable explanation would be that there is a desire to preserve the freedom of press but if that was so, why resist video or live streaming of court proceedings? Surely that would save a lot of `breaking news' stories. It would also be the ultimate solution to the lack of judicial accountability in this country.

*The writer is a former additional solicitor general

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