The onus is on media

separation of powers re-visited

On November 16, 2011, after spending five years in prison, seven of the nine accused in the Malegaon blast case of 2006 were released, thanks to the order of the MCOCA Court dated November 5, 2011.This was certainly a piece of ‘breaking news’ that resulted in an adrenalin rush among most journalists, particularly thosebelonging to the electronic media.

Nationwide, TV debates began on whether the investigative authorities had erred; had the minority community  been unfairly targeted; should the State apologise to the accused and are they entitled to compensation for loss of dignity, despite the matter being sub judice. The TV debates were structured so that the panellists included lawyers who defend the accused in court, representatives of the minority community, members affiliated to various political parties, former investigative officers, etc, each of whom diligently did their job of defending the interests of their clients, organisation or community.

The accused were present in some of the TV debates, expressing their angst against the system at large and they were given an opportunity of hurling allegations of very serious magnitude publicly against ATS officers involved in the investigations. During the whole trial by media, relevant facts and circumstances which the courts are currently looking into and will eventually adjudicate upon were a matter of thread bare public scrutiny, blatantly ignoring the fact that the court is still seized of the matter and the sensitivity of the case.  

Given the stringent provisions of MCOCA and the difficulty in getting bail under the Act, one can at times be led to a logical inference that the accused may be eventually acquitted. However, In the Malegaon case, the electronic media has reported with conviction that the investigative agencies have botched up the investigation, resulting in the loss of dignity of the accused and have created a belief in the minds of the general public that the investigative agencies were acting with prejudice against a particular community and hence should be compensated by the state. If presumption of innocence until proven guilty is the foundation of our criminal justice system, then there should also be a presumption of a fair investigation until otherwise proven by a competent court seized of the matter. The electronic media’s alacrity in arriving at a definitive conclusion while the matter continues to remain sub judice is surely a matter of concern.

The larger question

That brings us to the larger question at hand. In a democracy, can the mighty Fourth Estate be allowed to venture into areas that belong to the exclusive domain of the Judiciary or the Executive? Can we have a situation where a television channel carries on parallel proceedings, listening to arguments put forth many a time by the same lawyers who represent their clients’ interest in Court; providing an opportunities for an aggrieved person to share his/her view freely; and further creating an ideal platform for submission of legally untenable arguments due to the general politicisation and communalisation of these debates.

The Supreme Court and High Courts have been vested with powers under the provisions of the Contempt of Courts Act, 1971 to prevent irresponsible journalism. The courts have wide powers to punish contemnors, who are guilty of interfering, or tend to interfere in the due course of judicial proceedings, or interfere, obstruct or tend to interfere or obstruct the administration of justice, but seldom do so in the interest of democracy. As Justice G N Ray, former Chairman Press Council of India, observed: “The dignity of court is maintained more in restraint and forgiveness than in liberally punishing for contempt of court”.

The indulgent attitude, at times, by the courts in forgiving sporadic acts of irresponsibility by the media, could possibly stem from the belief of an eminent jurist that, “A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other, both are indispensable to a free society.”

Thus it is also only correct to believe that the judiciary discharges its duties independent of the observations and findings made in the course of a trial by media. However, what would continue to remain a matter of concern would be the general public impression created in the minds of the people in a case that is tried by the media in a parallel proceeding wherein strong conclusions are arrived at in a very subtle manner, even before the court that is seized of the matter arrives at a final decision.

 If the media continues to justify its acts of carrying on parallel proceedings on a regular basis in various cases, it would be hard to imagine that the above approach as envisaged by Justice Ray would be carried on for long. Does more needs to be done than mere self regulation by media houses or trade bodies such as the News ‘ Association to ensure there is visible separation of powers? The time has come for the legislative to think of a suitable answer beyond the Contempt of Courts Act in checking acts of over-enthusiasm by the electronic media in reporting matters that are sub judice, while ensuring that the restrictions imposed by law should be reconciled with competing claims of a free press as guaranteed under the Constitution.

(The author is a lawyer and the views expressed are his)

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