Public interest validates media trial

BY Madabhushi Sridhar| IN Media Practice | 01/08/2009
The apex court has respectfully distanced itself from interfering with the free expression of the media by rejecting the plea to lay down guidelines for sting operations.
MADABHUSHI SRIDHAR reviews the Supreme Court’s observations relating to the sting operation in the BMW case. Pix: R K Anand, photo courtesy, The Indian Express.

The recent judgment of the Supreme Court (on 29th July 2009 in RK Anand vs. Registrar of Delhi High Court) upheld the sting operation exposing the criminal-prosecution nexus and involvement of senior advocates in the destruction of justice. For the first time in the history of media and judiciary, an analytical judicial pronouncement has been made supporting the genuine, transparent and public interest media ¿trial¿. Respect for ¿justice¿ is resurrected with this significant judgment of the apex court in the BMW hit and run case. The drunken driving of Sanjeev Nanda, son of an arms dealer, crushed six lives in Delhi a decade ago, and the rich and high profile accused also attempted to crush justice, which was brought to light by a sting operation of NDTV. The ¿media trial¿ judgment came as morale booster to constructive sting operations, of course with some cautions and limitations.  While appreciating the TV channel¿s exposure of a renowned criminal lawyer¿s crime of bribing a witness, the apex court declined to ¿regulate¿ media in the interest of an autonomous judiciary and a free media.  The 100 page judgment by Justices Agrawal, G S Singhvi and Aftab Ali is an essay on trial by media analyzing both good and bad of sting operations.


The delayed and complex trial of this high profile crime tempted the  media to use the hidden camera. Explaining the backdrop of NDTV sting and role of media in BMW trial, the Supreme Court said that the trial was meandering endlessly even after eight years and not satisfactorily. The status of the main accused coupled with the flip flop of the prosecution witnesses evoked considerable media attention and public interest. To the people who watch TV and read newspapers it was yet another case that was destined to end up in a fiasco. NDTV has telecast a program on May 30, 2007 showing Sunil Kulkarni (key witness to BMW crushing crime) with IU Khan, (Special Public Prosecutor) and RK Anand,  (Senior Defence lawyer) negotiating for his sell out in favour of the defence for a very high price. Earlier Kulkarni was dropped by the prosecution but summoned after the telecast. TV channel claimed before court that telecast was based on a clandestine operation by concealed camera with Kulkarni acting as the mole.


The court said: "What appeared in the telecast was outrageous and tended to confirm the cynical but widely held belief that in this country the rich and the mighty enjoyed some kind of corrupt and extra-constitutional immunity that put them beyond the reach of the criminal justice system." (emphasis mine.)The Apex court termed this ¿sting¿ as opening of another chapter in trial. NDTV has sufficiently documented the entire episode, which is essential to nail criminals. Their half-an-hour program on delays in the trial inspired witness Kulkarni to work with TV channel to expose prosecution-defence nexus.


Reporter Pooja Agarwal used him as decoy. Before sending to talk to lawyers Kulkarni was wired with hidden camera. First microchip was formatted after taking back up copy. This created a legal problem as formatted or edited copy loses its ¿originality¿ status and also value as evidence. In all media channel had four rounds of sting confirming the ¿nexus¿. Poonam took care that decoy was in her sight and she was out of their sight.  Channel used four (out of five) microchips unaltered. After the operation, another program was telecast where Kulkarni explained how they recorded criminal-prosecution ¿nexus¿.


Though Kulkarni withdrew his consent for telecast, the channel obtained legal opinion and went ahead with exposure. Program included comments from tainted lawyers Anand and Khan. The trial court judge saw the program and officially collected from the Managing Director of TV channel the entire unedited original record of the sting operation with names of staff involved. Furious over exposure, lawyer Anand sent a legal notice threatening to sue for Rs. 50 crore for defamation if further telecasts were not stopped. After a strong reply from NDTV the criminal lawyer was silent.  Thus the record of ¿media trial¿ reached the ¿judicial trial¿. On court¿s direction the channel and reporter Poonam filed detailed affidavits. It was stated that channel facilitated what Kulkarni conceived and executed. Then counsels of two accused lawyers pleaded that TV channel was guilty of interference in court¿s process. Rejecting it, court charged the lawyers for contempt of court saying: "…we are, prima facie, satisfied that advocates R.K. Anand, I. U. Khan, Sri Bhagwan, Advocate and Mr. Lovely have willfully and deliberately tried to interfere with the due course of judicial proceedings and administration of justice by the courts. Prima facie their acts and conduct were intended to subvert the administration of justice in the pending trial and in particular influence the outcome of the pending judicial proceedings".


There was yet another telecast in December 2007 by NDTV showing nexus between witness Kulkarni and lawyer Anand as past friends and exposed criminal record of Kulkarni. When the proceedings reached Delhi High Court, Anand defending himself in person asked that the court control the mass media in reporting court matters, especially live cases pending adjudication before the court. He raised the age-old argument against media trial that media reports would mould public opinion and tend to goad the court to take a certain view that may not be correct. He wanted the court to lay down the law and guidelines in respect of stings or undercover operations by media. The court rejected all these arguments and saw five microchips before convicting the advocates for contempt.


The media sting reached the second stage of trial, i.e, appeal in Delhi High Court. It was a real triumph for media trial at this stage also, perhaps for the first time in the  history of freedom of the press in India. Never before has the media¿s trial reached the  trial court, High Court and also the apex court as happened in the  BMW case. The Supreme Court framed an issue on role of NDTV along with issue of ¿declining standards of legal profession¿, the subject matter of sting. It considered the directionless trial of BMW case as root cause of all this fiasco. The SC examined entire conversation between Anand and Kulkarni. Though Anand raised technical questions objecting to the genuineness of the microchip recordings, the Supreme Court specifically pointed out that Anand never denied the genuineness of sting. It went into details of conversation and found corroborations in their subsequent statements. Another lawyer Khan questioned formatting of one microchip, which raised doubts on credibility of content. Though the court agreed that there were noticeable lapses which Channel should have avoided, it found that only first chip was formatted and that too did not refer to significant change in position.  


The counsel for prosecutor Khan questioned the propriety of the stings and the repeat telecast of the sting program concerning a pending trial involving a court witness. He suggested that before taking up the sting operations, fraught with highly sinister implications, the TV channel should have informed the trial court and obtained its permission. He also said that in our system there was no place for trial by media as that was sub-judice (under consideration of judiciary).


The apex court has respectfully distanced itself from interfering with the expression autonomy of media by rejecting the plea to lay down guidelines for sting operation. The Supreme Court did not agree with the contention that media could not proceed with sting without prior permission from the court. It rightly said: "Such a course would not be an exercise in journalism but in that case the media would be acting as some sort of special vigilance agency for the court. On little consideration the idea appears to be quite repugnant both from the points of view of the court and the media. It would be a sad day for the court to employ the media for setting its own house in order; and media too would certainly not relish the role of being the snoopers for the court. Moreover, to insist that a report concerning a pending trial may be published or a sting operation concerning a trial may be done only subject to the prior consent and permission of the court would tantamount to precensorship of reporting of court proceedings. And this would be plainly an infraction of the media¿s right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution. This is, however, not to say that media is free to publish any kind of report concerning a sub-judice matter or to do a sting on some matter concerning a pending trial in any manner they please. The legal parameter within which a report or comment on a sub-judice matter can be made is well defined and any action in breach of the legal bounds would invite consequences. Compared to normal reporting, a sting operation is an incalculably more risky and dangerous thing to do. A sting is based on deception and, therefore, it would attract the legal restrictions with far greater stringency and any infraction would invite more severe punishment." This is the heart of the judgment on ¿free press and fair trial¿.


Media trial should not be a ¿lynch mob¿

While answering the submissions of a senior lawyer who appeared as amicus, the Supreme Court attempted to explain what media trial was:  "the impact of television and newspaper coverage on a person¿s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny." Then the apex court said that NDTV¿s sting operation was not media trial because there was nothing in the program to suggest that the accused in the BMW case were guilty or innocent. The program was not about the accused but it was mainly about two lawyers representing the two sides and one of the witnesses in the case.


Public interest, the ¿essence¿

Upholding ¿public interest¿ in NDTV sting the court said: "Looking at the matter from a slightly different angle we ask the simple question, what would have been in greater public interest; to allow the attempt to suborn a witness, with the object to undermine a criminal trial, lie quietly behind the veil of secrecy or to bring out the mischief in full public gaze? To our mind the answer is obvious. The sting telecast by NDTV was indeed in larger public interest and it served an important public cause."


But the judgment of apex court comes with a caution. "If the ¿trial by media¿ or ¿sting¿ makes prejudicial pre-judgment as to guilt or otherwise of accused, it could definitely attract the provisions of Contempt of Court. Another major constraint on stings and trials by media is the public interest. If public interest is missing and self or manipulative interests surface, the media loses its ground and invites the wrath of the court". The court observed: "We have unequivocally upheld the basic legitimacy of the stings and the sting program telecast by NDTV. But at the same time we must also point out the deficiencies (or rather the excesses) in the telecast. Another amicus spoke about the ¿slant¿ in the telecast as ¿regrettable overreach¿. But we find many instances in the program that cannot be simply described as ¿slants¿." The court objected to certain comments in opening remarks by anchor, which later repeated, were either sans reason or not justified. Court found that some information that was spoken was not given in the script submitted to court. The court cited the fact that there was no sufficient material to hold Khan also guilty, while the channel judged him guilty. After questioning sensationalism, the court objected to stridency. It said the channel accommodated negative tendency, passionate comments and prejudicial remarks without containing any constructive suggestions to improve administration of justice. The court also discovered an element of threat in Pooja¿s sting preparation. Pointing out a loose end, the court said one sting talked about next meeting, which might have happened but was not reported or informed to court. Non-sharing of entire information, or sharing only with such information which would end in conviction was also objected to.


At the end, the court appreciated the sting: "…for all its faults the stings and the telecast of the sting program by NDTV rendered valuable service to the important public cause to protect and salvage the purity of the course of justice. We appreciate the professional initiative and courage shown by the young reporter Poonam Agarwal and we are impressed by the painstaking investigation undertaken by NDTV to uncover the Shimla connection between Kulkarni and RK Anand."


As rightly stated by the court, lapses and loose ends in ¿sting¿ listed in judgment would serve the TV channels as do¿s and don¿ts, in knowing the duty to avoid them and staunchly guard the public interest. The Supreme Court bench was conscious that Indian electronic media was just 18 to 20 year old and that "like almost every other sphere of human activity in the country the electronic news media had a very broad spectrum ranging from very good to unspeakably bad". Commercial considerations, conflict of interests and TRP trips should not dominate over the higher standards of professionalism, the court suggested the media.


When the ¿media trial¿ was being dubbed as a crime of interference with the administration of justice under the contempt of court law, the judgment came as a great relief to the media and as a morale booster to positive ¿media trial¿. The apex court held that the "sting program telecast by NDTV served an important public cause. Even if the program marginally tended to influence the proceedings in the BMW trial, it served larger public interest. Both Anand and Khan were purportedly shown as colluding to influence Kulkarni in the BMW hit-and-run case in the sting operation on May 30, 2007, by offering him money".


Those who recommended using of British colonial concept of ¿contempt of court¿ for jailing journalists for writing anything related to a crime under trial, should now understand what would have happened to victims such as Jessica Lal or Priyadarshini Mattoo, or dead victims of BMW crime, without the fourth estate stepping in to build a campaign.



Prof. Madabhushi Sridhar is Professor of Media Law at NALSAR University of Law, Hyderabad