On Media and the Law: Bell the Cat Now or It May Become a Stray Dog
There needs to be a confession. I am a wrongdoer. I tried to fight from within the system. I was wrong. This can’t be cured from within. It needs to be done by coming out of it. We have taken positive advantage of the reach of the media. That has triggered the cause and the causation. There is no doubt. But is the system alright with the media? I think not. There are good as well as bad elements in it. If one needs to propagate an idea and create a public opinion, one needs to reach out. The public has a fundamental right to know as well. Nobody can ever deny that right.
Many a times, one finds the news that comes published and propagated is distorted. The same becomes all the more worse when the news is against persons holding superior posts or statues in society. There have been publications, which have survived on schadenfreude (pleasure derived by someone from another person’s misfortune). That may be because of the further fact that society also derives a similar kind of pleasure.
Defense lawyers have always been pleading that the media has hijacked the rights of the accused. The TV channel discussions, on many occasions, have been one-sided. Thereby, creating an impression of who the culprit is, even before the trial starts. From the channel discussions etc., there has also been a tendency that even the witnesses are inclined to believe the story that comes in the discussions, rather than deposing the event which they have either witnessed or not witnessed. Thereby, creating stories according to the delusion created by the media.
The media has been influencing the judicial process as well. It is not untrue that as defense lawyers, at times, we are compelled to appear in the discussion at least to project the other side of the coin. Nobody wants to lose the battle. Every battle is being fought to win. There are quite a few occasions when the media tries to create a one-sided version and the defense lawyers quarrel with them and ultimately walk out of the interviews.
See for instance, the interview of Ram Jethmalani by Karan Thapar. Without even knowing the basics of Criminal Jurisprudence, the interview was sought to be carried out and Mr. Jethmalani went off after scolding the media celebrity.
It is good to enjoy the grapevine stories that appear come in the media. They may appear to be true as well. But, who are you to determine the truth or falsehood of it? It is the court’s job to do it. The media cannot interfere with the process of administration of justice by thrusting its opinion upon society and thus ultimately restricting the court from deciding the cases on its own merit. This definitely would amount to contempt of court. But are the courts brave enough to convict the media? It seems they are reluctant, since they don’t want get into the mess, by getting out of their comfort zone.
So what are the offences which are invited by malicious acts? Are there any at all in law?
Indian Penal Code, 1860, mandates the punishment of offenders in the event of defamation being caused to the victim. There are few exceptions as well to the offence of defamation. The media always takes refuge in the exceptions available to the Act, as provided under the Statute, and there would only be a few convictions under the penal code. Then, we have the Contempt of Courts Act, wherein criminal contempt is provided. On very few occasions are the contempt proceedings initiated by the Advocate General. And if at all the same is initiated, then also seldom only it leads to conviction. Very few exceptions are available, when the courts have hit the contemnor with a whip of punishment.
See for instance, cases like that of Arundhati Roy, M. Jayarajan, etc. These are all cases wherein there had been scandalous remarks. One interesting exception to the general tendency of letting go of the offence is an instance in which a lawyer-cum-editor was involved. The Jammu Kashmir High Court in Robkar Adalat vs. Aseem Kumar Sawhney And Anr 2002 Cri LJ 2382, punished a lawyer-cum-editor for contempt, for having published scandalous reports, thus, affecting the process of the court.
Now, the real issue would be to consider how far the courts have been vigilant in convicting the offenders, when affecting the process of the court, when the matter is pending consideration. Most of the time, the courts come up with guidelines as to how the media should behave in such matters, but the courts restrain themselves from going ahead to punish the contemnor. The media has a tendency to report cases that are pending investigation and trial. It has a huge crisis attached to it. It affects both the investigation and the process of administration of justice. Such practices being adopted by the media need to be restrained. Gag orders need to issued by the court.
There is yet another aspect to it. There are instances in which the reputation of the accused, who is ultimately acquitted after the trial, is affected by the intrusion of the media. Much of this is also caused by the fact that the journalists who report court proceedings are also not aware of the law. It needs to be made a point that the journalists who are being accredited to report court proceedings and legal issues need to be given training, with regard to the procedure and the law on the subject. The syllabus can be formatted by the High Court in consultation with the advocates’ associations. The training could be given by a committee and the committee can also supervise the reporting and the standards of the same. The defaulters could be punished by the cancellation of accreditation as well as with recommendation for culpable criminal contempt. This should be done as soon as possible. The system should also travel down to all courts in the States, with sub-committees etc., at the district level. The publisher should also be held liable for contempt, if in case such directives are violated. Actions need to be taken and the same should not be diluted as well.
Lawyers are fighters. They fight for justice on behalf of their clients and many a times, on behalf of society as well. The fight element can never be isolated or taken out of the lawyers, but they are here to fight legal battles rather than fight on the streets. The younger generation of the Bar needs to be brought back to the courts. They cannot be left to wander the streets. The forte of every lawyer has to be courts and law libraries. They need to be inspired to live a lawyer’s life. Everyone needs to inspire each other in this regard or else history would consider each and every one of us a failure.
Having taken the oath at the time of enrolment, we need to stand by it every time and in each moment. We can’t afford any more strikes or any physical assault. We can’t let even our human instincts overpower the lawyer instinct in us, because it is nobler than even humanity. We have invented inherent limitations by modulating the basic structure. We need to abide by it. The symptoms have popped up and they need to be cured as early as possible. The emotional outburst now committed is justifiable, but we cannot afford to continue this. We cannot afford any estate, whether it is the first three or the fourth, to eclipse society’s fundamental freedoms and access to justice. We need to conduct the surgery now.
Rectify the mistakes the media is committing and show the right path to the media. Guide it through. If it does not follow, kill its cancerous growth. Our fight needs to be legal rather than physical. Lawyers are to guide society as social engineers. Lawyers are those who need to guide the judges who lay down laws for generations to follow. We need to correct them, if they have gone wrong by being publicity crazy. An error we commit today, would ruin the life of generations. We need to bell the cat in us, or it may become a stray dog soon.
Renjith Marar is an advocate practicing in the Supreme Court of India.