Issue 1 – What violation of rights?

Whilst there is a hue and cry about infringement of rights of press, the point on ‘what fundamental rights the Supreme Court is ‘allegedly’ intending to protect’ has been conveniently given a miss by the media.

No exaggeration. Almost every single day, due to some reporting of pending cases in newspapers/electronic media, someone’s fundamental right is getting violated. Most of the times, unfortunately, unnoticed.

Few instances of reporting of cases (mostly criminal cases) amounting to violation of rights are:

  1. Right to fair trial is a basic fundamental right under Article 21 of the Constitution irrespective of nature of an offence ‘allegedly’ committed. Media trial, Media investigation, Media conviction.. Numerous options for a press to violate this fundamental right. With media sensationalizing every issue, credible or not, right to fair trial hardly has any meaning these days.
  2. One of the basic principles of criminal laws is ‘Presumption of innocence’, i.e. “Every accused is innocent unless he is proven guilty”. Sounds funny, given the circumstances.
  3. Under Section 25 of the Indian Evidence Act, 1872 and Section 162 of the Criminal Procedure Code, 1973, an accused has the invaluable right of his confession made to the police not being used against him in a Court of law. A simple search in YouTube would show many instances of Television channels broadcasting confession made by an accused in police custody. Not only the sanctity of the aforesaid provisions is at stake but also the fundamental right of an accused to have fair trial.
  4. Article 20 (3) of the constitution guarantees a person his fundamental right to silence, which would certainly include a person’s right not to give any interview to a press. There are numerous occasions when press showed no respect whatsoever to such right and inferred guilty from a person exercising his fundamental right to remain silence.
  5. Often, press publishes photographs of suspected accused even before the Identification parade. At some circumstances, it even affects the case of prosecution because of accused challenging sanctity of such identification parade on this ground alone.
  6. The interviews with the witnesses, most of the times, are in direct contradiction with Sec. 162 Cr.PC which mandates that no use can be made of a prior statement in the trial.
  7. As per Section 27 of the Indian Evidence Act, if the police produces an article through a statement of an accused which is having an evidentiary value in a crime, it would be considered as ‘relevant fact’, only if knowledge about such article is given by the accused. If the police have prior knowledge about the article or its knowledge is available from the press before the accused discloses it, then it can’t be linked to the accused. Such a situation arose in a recent murder case, where press identified some articles even before accused confessing about it to the police.
  8. One cannot certainly overrule the ‘subconscious mind’ of a Judge, deciding bail or anticipatory bail, getting affected by hyped media publicity in a particular case. The English courts have accepted the doctrine of subconscious influence of reporting of cases on the courts and the public. 200th Law Commission Report also discusses on this particular point. Australian courts adjourn a particular matter if it is convinced that media hype would affect the fair trial of that case. Interestingly, if the media hype is not settling down in such case and the court is convinced that the same would affect the fair trial of that case, the courts are even empowered to acquit the accused on that ground alone.

As per the 200th Law Commission Report, dated 31st August, 2006 by Justice Jagannadha Rao (pgs 195 – 220), the following publications amount to interference in the due course of administration of justice and are recognized as prejudicial to accused/suspects:

  • Publications concerning the character of accused or previous conclusions (convictions)
  • Publication of confessions
  • Publications which comment or reflect upon the merits of the case
  • Photographs
  • Police activities
  • Imputation of innocence
  • Creating of atmosphere of prejudice
  • Criticism of witnesses
  • Premature publication of evidence
  • Publication of interviews with witnesses
  • Premature publication of evidence

Certainly, it is not the case that, there cannot be any reporting whatsoever on cases by the Media. The least expected is, media recognizing and respecting rights of an individual who is involved in a case.

The bitter truth is, there is a lack of awareness about these issues. And, those media concerns who knows about them, gives a damn. Obvious commercial reasons.

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