Why it was not a media trial

BY Madabhushi Sridhar| IN Media Practice | 13/09/2013
It is high time people in responsible position reconcile to the role of watch-dog media and watch-dog civil society and not misuse the expression 'media trial' to save the guilty,

Even as the accused and the lawyers in the brutal rape and murder of Nirbhaya continue to lie with all impunity they blame the conviction on a 'media trial'. The nation is once again shocked to know that accused shouted 'I am innocent' when Additional Judge Yogesh Khanna was pronouncing them guilty on 11 counts for the ghastly act. People watched with dismay when the defence lawyer said that accused were implicated despite being were innocent if by any circumstances they committed any mistake, their lives should be spared because they were tried by media. 

The administration of justice needs a lawyer to defend accused in any criminal case and like public prosecutor he also will be considered as officer of the court, who is expected to assist the system in bringing the truth out and seek justice to see that accused will not be disproportionately punished even if proved guilty. Accused might plead not guilty, because it is part of their freedom. But after a competent court convicted the accused, the defence lawyer cannot reiterate his argument. Unless he has discovered some deficiencies, mistakes or wrongful appreciation of evidence, he cannot challenge the veracity of the judgment in such a loose language and with lack of reason. 

It is true that what media communicates is the available information about the incident, in bits and pieces, and legally speaking the information needs to be converted into valuable and admissible pieces of evidence, before subjected to strong cross examination. Once information has been transformed into evidence, what necessarily follows is the outcome. Leaving out this fact, it is unethical to present a baseless condemnation of judgment saying they were just implicated. Does it mean that whole exercise of judiciary was a drama? Are dying declarations of the victim, eye witness account of the friend of victim, forensic evidence, medical reports, corroborative pieces of evidence, DNA confirmations, established location of accused etc, just packs of lies or fabrications?  

It is the equivalent of street comment to say the accused are implicated and it was a case of media trial. Jurists and lawyers should understand that every trial was supposed to be an open trial, which is meant for accommodating free flow of information and critical watching even by unconnected people. Open trial also mean addressing the people. People have a right to be informed about such a ghastly crime, as one among them was the victim. They have to discuss it. When a lawyer can legally speak 'untruths' unreasonably even after conviction, why can people not discuss everything about such a shocking crime? Doing so does not make it a media trial.

It is high time people in responsible positions reconcile to the role of watch-dog media and watch-dog civil society and not to misuse the expression 'media trial' to save the guilty. It is the legal and constitutional duty of the media to bring forth the hidden facts and unreported failures of investigation, vested interests of lawyers, lapses in judiciary and every fact that hinders the administration of justice. A close scrutiny of provisions of Code of Criminal Procedure gives an understanding that a private citizen has every duty and authority to probe, report, arrest (the accused) and assist the crime detection or guilt establishment. A journalist being part of the civil society shares this responsibility and in addition, he communicates, which cannot be abused as media trial. 

Not checking of illegal trips by Road Transport Authority, failure in patroling, non-helping attitude of people passing by the semi-clad victims, refusal of or delay in treatment by doctors and hospitals to avoid medico -legal difficulties, negligence and delay etc are the factors which facilitated the ghastly crime or harmed the victim. All these factors have to be raised and media should make authorities and concerned answerable. Misconduct of advocates is no exception. 

It is again due to the continuous watch and scrutiny by the people that the victim in this case was given utmost care and treatment. If none questions, the powers that be would bury the justice and hurry acquital of guilty. One need not hesitate to say that money or corruption did not play any role in this crime, not only because the accused are not rich or powerful, but also because of close scrutiny by people and media.

More than TRP rating, the media was guided by shock and sensation that the crime created in the society. Mounting an attack on deficit in governance and delay in dispensation of justice forced the Delhi Government to constitute five fast track courts for sexual assault cases, not just for this gang-rape case alone. The Court also allowed the coverage of the trial proceedings with certain regulatory restrictions under section 327 of Code of Criminal Procedure, such as not allowing more than one person, holding trial in camera so that all details of depositions were not reported and privacy of the victim and accused was protected. 

Justice G. P. Mittal of Delhi High Court, on March 8, has allowed the plea of accused Ram Singh and his brother Mukesh and set aside the trial court's order by which they were not allowed to use and exhibit the CD of the interview given by witness to a TV Channel, which was telecasted on January 4, as evidence, perhaps, for the first time in India. Though trial court had said the CD was not an admissible piece of evidence, the High Court permitted the accused to have whatever leverage they could gain from it. 
Though there was an overwhelming demand for exemption of 'juvenile in conflict with law' (that is how the media should address the boy suspected; expression 'accused' is also bad in law) in this case from special favourable juvenile treatment, the law accorded it to him. The speedy trial of the case, which should happen to each and every crime in this country, was again because of the constant social outcry at the injustice, reflected in the media. 

When main accused Ram Singh was found hanging, a section of media questioned the negligence in securing the charged persons within the prison. Whether the media gave coverage to this incident or not, the facts of the crime were so established that it cannot be said that accused suffered any disadvantage or that the media supplied the judgment. For the first time dental marks were used as proofs of the crime with forensic skills. 

Because of the people and the vibrant media, the criminal law of rape has been reformed after this Delhi incident, thanks also to Justice JS Verma and people who represented to him. Fear of people' watch is expected to remove the slackness, lapses and corruption from any governance including a justice delivery mechanism. People are expected to watch such proceedings and question. The only requirement is that such a keen observation should not be confined to one or two sensational or high profile crimes but extend to every injustice any where, because injustice somewhere is threat to justice anywhere.  

Madabhushi Sridhar, Professor and Coordinator, Center for Media Law and Public Policy, NALSAR University, Hyderabad
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