TRIAL BY MEDIA – THE JESSICA LAL CASE

TRIAL BY MEDIA – THE JESSICA LAL CASE Introduction: The evolution of „Trial by Media‟

in this situation that Barkha Dutt is asking on "We the People" on NDTV 24x7, "do you believe in the judiciary, or do you believe judiciary needs a push from the media?" Rajdeep Sardesai is haranguing his audience on "Verdict" on CNN-IBN: "Does it require public pressure for the wheels of justice to move?"3

Trial by media is a phrase made popular in the late 20th century and early 21st century to describe 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. In every democratic country there is a heated debate between those who support a free press which is largely uncensored and those who place a higher priority on an individual's right to privacy and fair trial. During high publicity court cases the media is often accused of provoking an atmosphere of public hysteria akin to a lynch mob1 which not only makes a fair trial nearly impossible but means that regardless of the result of the trial the accused will not be able to live the rest of their life without being hounded at every turn. The counterargument is that the mob mentality exists independently of the media which merely voices the opinions which the public already has. There are different reasons why the media attention is particularly intense surrounding a legal case: the first is that the crime itself is in some way sensational, by being horrific the second is that it involves a celebrity either as victim or accused. Although a recently coined phrase, the idea that popular media can have a strong influence on the legal process goes back certainly to the advent of the printing press and probably much further. This is not including the use of a state controlled press to criminalize political opponents, but in its commonly understood meaning covers all occasions where the reputation of a person has been drastically affected by ostensibly non-political publications2. Indian context seem to even more volatile with years of judicial backlog the Indians seem to rely on more instant justice than the reasoned verdict by law court. It is

Jessica Lal Case: Brief facts Trial by media is not an alien phrase to Indians. The passionate trial of Satnam Singh and co. in the Indira Gandhi murder case, the Mathura rape case all show the spontaneous outpouring of public angst. However this got a new lease of life with a slew of case where the public opined that judiciary has become the handmaiden of the rich and powerful. Jessica Lal was a struggling model who got shot in a bar on 29th April 1999 by Manu Sharma, the son of Venod Sharma, a powerful Congress politician and minister in Haryana. As usual, to the inept and corrupt investigating agency when the kin of a political leader is associated with crime, the matter was shoddily investigated and was thought to languish in the record room. In the trial court on August 1999 Manu Sharma was charged with murder and his friends charged of related crimes such as harboring criminal suspects. Four of the witnesses who had initially said they had seen the murder happen, eventually turned hostile. Shyan Munshi, a model and friend who was serving drinks beside Jessical Lal, changed his story completely; as for earlier testimony recorded with the police, he said that the writing was in Hindi, a language he was not familiar with, and it should be repudiated. It is widely speculated that he may be under threat and that the judicial system is unable to provide witnesses with adequate security. Karan Rajput and Shivdas Yadav also had not seen anything, while

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Giddens, „Introduction to Sociology‟ http://en.wikipedia.org/w/index.php?title=Trial _by_media&oldid=66125060 as on 13/12/06

http://www.thehoot.org/story.asp?storyid=Web 591771273Hoot115348%20AM2387&pn=1 on 12/12/06

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Page 1 Electronic copy available at: http://ssrn.com/abstract=1003644

TRIAL BY MEDIA – THE JESSICA LAL CASE Parikshit Sagar said he had left the place before the incident. Whatever faith the general public had deserted on February 21st 2006, the judgment day. Throughout his 179-page case verdict, Additional Sessions Judge (ASJ) S L Bhayana said that police sought to 'create' and 'introduce false evidence' against Sharma. The judgment repeatedly hints that the prosecution may have attempted, from the very beginning, to fabricate the evidence and present false witnesses, so as to render the case indefensible. In conclusion, he agrees with "the counsel for the accused that on April 30, 1999 the police had decided to frame the accused," read the judgment4. In the immense uproar that followed, hundreds of thousands of people e-mailed and SMS-ed their outrage on petitions forwarded by media channels and newspapers to the President and others seeking remedies for the alleged miscarriage of justice. A poll conducted by the newspaper Hindustan Times showed that on a scale of 1 to 10, the public's faith in law enforcement in India was about 2.7. Public pressure built up with newspapers splashing headlines such as "No one killed Jessica", and TV channels running SMS polls. Models, fashion designers, friends, relatives and others have held candle-light vigils at India Gate in New Delhi to protest the injustice of it all. Surender Sharma, the police inspector responsible for the investigation, was transferred from the plum Hauz Khas position to a bureaucratic post. The police have also launched an inquiry against the possibly deliberate ineptness of their own earlier investigation. Bowing to public opinion, the Delhi Police appealed against the acquittal at Delhi's High Court. As of November 29, 2006 the Delhi high court reserved its order and dismissed the

prosecution application for introducing additional evidence5. Quite similar trend has been followed by other cases in recent times which have evoked sympathy and outrage from the great Indian middle class. The Nitish Katara murder case, the rape cum murder of Priyadarshini Mattoo are pointers. Mattoo was raped and murdered by Santosh Kumar Singh, the son of a Police InspectorGeneral. The trial court acquitted the accused. Delivering the judgment in the trial court proceedings in 1999, the Additional Sessions Judge. J.P. Thareja said of Santosh, that though he knew that "he is the man who committed the crime," he was forced to acquit him, giving him the benefit of doubt‖6. The matter was handed over to CBI for investigation and a retrial was forced. The general public came to know about the trial when in the Jessica Lal aftermath the NGO‘s and the news channel wanted something else to catch the headlines and grab the attention with Priyadarshini's aged father Chaman Lal Matoo making frequent appearances on TV, bringing the judiciary under intense pressure.. Thus what was started as a market gimmick changed the law course and induced one of the landmark reversals in recent times. The High court in retrial convicted Santosh Singh under Sec 302 IPC for murder and Sec 376 IPC for rape and awarded him capital punishment. It was commented ―The trial judge acquitted the accused amazingly taking a perverse approach. It murdered justice and shocked judicial conscience.‖ Media Trial: Morality, ethics and fairness Recently addressing a seminar on ―Freedom of Expression and the Judiciary‖, Chief Justice of the Madras High Court A.P. Shah remarked ―A pliable press and subservient judiciary are the first step in the

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http://www.ndtv.com/template/template.asp?tem plate=jessicalall on 12/12/2006 6 http://www.ourpriyadarshini.org/ on 12/12/06

http://www.ibnlive.com/indepth/indepth_details. php?indepth_id=29 on 12/12/2006

Page 2 Electronic copy available at: http://ssrn.com/abstract=1003644

TRIAL BY MEDIA – THE JESSICA LAL CASE process of extinguishing democratic lights‖7. Only days earlier, Sabharwal had expressed his own concerns against sting operations, which he feared were being "commercialized" and needed to be "regulated"8. Which brings us more pointedly to the 'trial by media' argument being made in the Jessica and other similar cases. Those who make it fail to understand that the media's role is not just to influence public opinion but also to reflect it. If candlelight vigils are held at India Gate to demand justice for Jessica or Priyadarshini Mattoo, it isn't because a media-inspired SMS campaign has brought them there, but also because there is genuine belief among a vast number of right-thinking citizens that their sense of outrage must resonate in the face of a blatant abuse of the law. Sure, there is a danger of the media whipping up a lynch mob but that alone cannot be reason for the media not to play their role as watchdog against injustice. To push for a retrial in the Jessica case, to point out the flaws in the police investigation, to show how the witnesses have lied — why should these be seen as attempts to 'influence' the judiciary? They should be seen for what they are: the media exposing the rot within. The media, after all, are not concentrating simply on Manu Sharma, the individual, but on the systemic failures down the line in India's criminal justice system. This is neither 'mob justice' nor is this a media trial. In a way, this symbolizes the 'coming of age' of the Indian citizenry, and with it, the resurgence of the Indian media too. For much too long, a substantial section of the media has chosen to snuggle up to the establishment, thereby abandoning its inherently adversarial role. In its own small, and at times maddeningly competitive

way, the 24-hour news channel has brought back some of the energy and enterprise of news-gathering. Yes, the camera may seem an 'activist' weapon, it may appear 'interventionist', but it is also remarkably empowering in its ability to give a face and a voice to millions of anonymous Indians. However questions seem to rise also on the fairness of such trials by media, if history is to be analyzed the media can go horribly wrong at times one case popularized by the media between 1980 and 1982 was the murder trial of Lindy Chamberlain9 in Australia who was convicted of killing her baby, but later released in 1986 on new evidence showing that a dingo had in fact committed the act as was originally claimed by Chamberlain. In September, 2006 the Special TADA court judge in Mumbai trying the Bombay blasts case expressed his unhappiness at the media interviewing the accused, prosecution and defense lawyers within the court premises. The CJI had to come on record urging judges not to feel pressured by the "disturbing trend" of the media creating public perceptions while a case was pending before the court. They should go strictly by the law and the evidence without fear of becoming unpopular10. But he also said: "If this continues, there can't be any conviction. Judges are confused because the media has already given a verdict." One reason why the media arrogating to themselves the right to get the wheels of justice moving is problematic is because they treat the accused differently. Some are lovable, some are martyrs, and some are criminals. On the night of November 5, at 8.30 p.m. two different cases were being discussed on two channels. On CNN-IBN, Karan Thapar was being out of character in his handling of Sanjay Dutt,

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http://www.hindu.com/2006/04/23/stories/20060 42307740400.htm as on 13/12/2006 8 Rajdeep Sardesai, ‗First Information Reportage‘, HT Editorial, Kolkata Edition, November 10, 2006

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en.wikipedia.org/wiki/Lindy_Chamberlai n as on 12/12/06 10 www.thehoot.org/story.asp?storyid=Web 5917628163Hoot110328%20AM2377&pn=1 on 12/11/06

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TRIAL BY MEDIA – THE JESSICA LAL CASE who is waiting for the sentence in his case11. "You visited a lot of temples recently," he asked Mr. Dutt. "You have been photographed at them. Does that give you a sense of peace and a sense of calm?" Also, "God forbid it should go the other way, what will you do?" An anchor on a major news channel was declaring about Manu Sharma in the Jessica Lal case: "As far as we are concerned he is guilty." When there is a death sentence, the one for Afzal Guru leads to consternation, whereas the one for Santosh Singh is greeted with triumphant selfcongratulation. Another problem with the media's judicial activism is that it only campaigns for cases that appeal to its market and its imagination. Thus one has to tread carefully when one moves into domain of Free speech vs Fair trial.

sit up straight and use their legal acumen to skim the truth? The recent gags in form of the Broadcasting Services Regulation Bill 2006, 200th report of Law commission taking up suo moto the subject of trial by media recommending to government amendments to the Contempt of Court Act, 1971 seems to be manifestations of the fears being shown by the powers who want to stifle the freedom of press. Indeed it will be a sad day for any democracy when the press will be allowed to report only that what the Government will decide. Stopping a debate merely because the matter was pending before the court would harm democratic process. It is media outcry which gives voice to the silent majority who ask questions to those in public life who refuse to be subject to any form of accountability, the questions to politicians who unleash an orgy of communal violence and then blame news networks for 'inflaming passions', to parliamentarians who take cash for questions, and then claim to be 'people's representatives', to cricketers who fix matches, and then lecture on ethics., to doctors who take the Hippocratic oath only to cut the limbs of beggars for a price, to bureaucrats who accept bribes on tape and to police officers who let off criminals. No one can deny that cases should be tried in law courts with all democratic rights to the accused to defend himself, but the Fourth Estate has to rise when the other three fail to deliver.

Conclusion: Free Speech v Fair trial “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media regardless of frontiers”12 Notwithstanding the comments made by CJI and other eminent jurists on Media acting as mercenaries for economic gain, we have to admit that without media and storm raised by it criminals like Santosh Singh would have surely evaded the clutches of law. CJI had lamblasted media but what will he say when the HC of Delhi sentence the accused to death on the basis of same evidence adduced in the trial stage where the accused was released. Are the rich and famous afraid that the Judiciary with a blind attitude to the inept investigation will now

Bibliography Books Chagla, M.C., ‗Role of Judiciary in Parliamentary Democracy‟, 7th Ed, 1990 Creech , Keneth, ‗Electronic Media Law and Regulation‘, 4th Ed, 2003, Focal Press Giddens, Anthony, ‗Introduction to Sociology‟, 5th Ed, 2005, W. W. Norton & Company Iyer, Venkat, ‗Mass Media Laws and Regulations in India‟, 2003, India Research Press

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Sanjay Dutt has been convicted by the TADA court under Arms act and can face prison sentence upto 7 years however he has been released on bail and has been acquitted of charged under TADA. 12 Preface, Universal Declaration of Human Rights

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TRIAL BY MEDIA – THE JESSICA LAL CASE Justice J.P Singh, ‗Principles of Statutory Interpretation‟, 9th Ed, 2004, Wadhwa Manna, B, ‗Mass Media and Laws in India‘, 1998, Pilgrims Publishing Nicol, Andrew, ‗Media Law‟, 4th Ed, 2002, Penguin Books Ltd Price, Monroe, ‗Broadcasting Reform in India: Media Law from a Global Perspective‟, 2001, Oxford University Press Scheck, Barry, ‗The Trial, the Truth, and the Media‟, 1996, Open Court Publishing Articles ‗Trial by media may lead to miscarriage of justice‘ by AP Nathan in The Hindu Sunday, Internet Edition, Apr 23, 2006 ‗First Information Reportage‘ by Rajdeep Sardesai in the Hindustan Times, Kolkata Edition, November 10, 2006 Web sources www.globelaw.com/MediaLaw/ls82_1.htm visited on 12/12/2006 www.en.wikipedia.org/wiki/Trial_by_media visited on 13/12/2006 www.rediff.com/news/jessica.htm visited on 11/12/2006 Other Electronic Sources Encyclopædia Britannica 2006 Ultimate Reference Suite DVD

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