Media reporting of criminal investigation and prosecution in the last 15 years has changed manifold. In case the suspect is arrested for terrorist activity and the police have started their investigation, the matter reaches the highest level of sensationalism. This was the case with Wasif Haider of Kanpur, who was arrested in many cases and was prosecuted for various criminal activities including as a suspected terrorist. He was detained in eight cases between 2001 to 2008, ultimately he was acquitted of the charges.

When Wasif was acquitted, he complained that the media had reported him using the moniker “Wasif Atanki” (Wasif Terrorist) while he was under trial. In 2011, he filed a criminal proceeding against the owners of such media houses for criminal defamation. The issue was whether the media decrying him as an “atanki”, or a declared terrorist, would attract criminal defamation or not. According to Wasif, this was one such case of criminal defamation.

One cannot deny that this seriously prejudices ignorant consumers of such reporting. When a matter is sub judice before a competent court, nobody should be at liberty to project the issue in such a manner that prejudices the interest of any of the parties in the litigation, neither against the investigating agencies nor against the accused who is facing trial.

Basic neutrality is expected from the media. An accused should always be reported as an accused and nothing more. The moment that boundary is crossed, the very concept of “fair trial” is negated. After all, the right to a fair trial is the most fundamental in criminal jurisprudence. Media is capable of molding the opinion of the general public. A reporter cannot allow emotional bias in the reporting of such cases or start presuming what that the ultimate outcome of trial would be.

In the most celebrated Media Guideline case of 2012, the opinion of the Supreme Court was that excessive prejudicial publicity leading to usurpation of functions of the court interferes with administration of justice which is sought to be protected under the Constitution of India.Even the Law Commission, in its 200th report had recommended a law to debar the media from reporting anything prejudicial to the right of accused in criminal cases from the time of arrest till the conclusion of the trial. The Commission stated that the police come forward with a story that they have nabbed a suspect and that he has confessed.

The ‘Breaking News’ items start and few in the media appear to know that under law, confession to police is not admissible in a criminal trial. Once the ‘confession’ is made public by both the police and the media, the suspect&’s future is finished. When he retracts from the confession before a magistrate, the public imagine that the person is a liar. Due process thus gets distorted and confused.

The Supreme Court in, the Ajmal Kasab case in 2012, had opined that “by covering live the terrorists’ attack on Mumbai in the way it was done, the Indian TV channels were not serving any national interest or social cause. On the contrary they were acting in their own commercial interests putting the national security in jeopardy”.

Even in a case where the allegation was of sexual harassment by a former Judge of the Supreme Court, the Delhi High Court directed that the reporting may result in creating an atmosphere in the form of public opinion wherein a person may not be able to put forward his defence properly and his likelihood of getting fair trial would be seriously jeopardised.

In the case of Wasif (and three others), and after his acquittal, he approached the court of the Chief Judicial Magistrate, Kanpur against publishing news items referring to him as “atanki”. The court, while rejecting the complaint, opined that publication of news in regard to secret activities conducted by police and investigation agencies, in order to prevent commission of crime for security and safety of the country, do not come in the category of defamation. Since the matter related to national security, such publication should not become reason for defamation of a particular person.

Thereafter, Wasif appealed in the Allahabad High Court. The High Court again rejected his plea adding that Wasif did not examine any person outside his family who could clarify that it was publication of certain news items relating to his reputation that had adversely affected him in the society. The High Court also noted the fact that only Wasif&’s name was mentioned without his parentage and address and hence that could not harm his reputation. In my opinion, the High Court&’s view is erroneous. Now Wasif has approached the Supreme Court where the matter is pending.

The larger issue is whether the presumption of innocence and the fundamental principle of a fair trial can be given a go by, merely because the accused faces a trial wherein the crime relates to national security and safety. Converse could be the situation where media is allowed to discredit the investigating agency to cause substantial prejudice in society against the investigators. Either way the role of media could become dangerous for fair criminal prosecution.

The Broadcasting Code, adopted by the Fourth Asian Broadcasting Conference in 1962, mandated to treat controversial public issues in an impartial and dispassionate manner and respect human rights and dignity. How many reporters and editors would bother to do this when their commercial interest is in jeopardy and the issue is of national safety and security?

Many of the media houses are run on instructions of a body or persons affiliated to a particular cause or interest. As a result, many serious types of violence – against women, oppressed class of people, religious and ethnic minorities – do not get reasonable coverage and trivial issues become the subject matter of reports.

Such victims of criminal defamation, after having suffered the hate of society, should take those responsible to court to face admittedly lesser criminal charges. To fix responsibility, to make the media more responsible, such litigation will have to be treated differently.

 

The writer is Advocate-on-Record, Supreme Court of India