Trial by media: how journalists are used

BY REBECCA JOHN| IN Media Practice | 27/10/2014
The media must cross-check information put out by investigating agencies or else journalists could prejudice the rights of accused persons and influence trials,
says criminal lawyer REBECCA JOHN to PARANJOY GUHA THAKURTA and ANKIT AGRAWAL (Pix: Rebecca John; Photo Credit: Ankit Agrawal).

Rebecca Mammen John was designated senior advocate by the Delhi High Court in February 2013. After graduating in political science from Hindu College and obtaining a law degree from the University of Delhi, she worked under Dinesh Mathur, one of the country’s leading criminal lawyers before branching out on her own in 1995. She has handled several high-profile cases, including those of Rajesh and Nupur Talwar in the Aarushi-Hemraj murder case; MP K Kanimozhi and Unitech group boss Sanjay Chandra in the cases relating to the 2G telecom spectrum scam; the late stockbroker Harshad Mehta and his family; an accused in the Batla House encounter case; Maoist leader Kobad Ghandy, cricketer S. Sreesanth who was accused of spot-fixing in an India Premium League cricket match and the arrested workers of Maruti Udyog.

Excerpts from an exclusive interview to Paranjoy Guha Thakurta and Ankit Agrawal for The Hoot.

Paranjoy Guha Thakurta (PGT): The Law Commission in August 2006 put out a set of guidelines on trial by the mediaand the Supreme Court has organised workshops to sensitise and inform journalists on how to report matters that are sub-judice and on differentiating between observations and conclusions of judges in courts. You are of the view that the way in which media reports proceedings in court could lead to miscarriage of justice. What should be the rules or the guidelines for  reporting court proceedings in criminal cases?

Rebecca John (RJ): First, your question needs to be reframed. I don’t have a problem if observations made in court are reported. These can be of interest to the public. But when it  comes to reporting cases that are pending investigation, excessive media coverage can seriously prejudice the rights of the accused and sometimes, even the rights of the victims, and can lead to miscarriage of justice. I have a problem whenthe media allies or collaborates with investigating agencies which deliberately pass on information that may have ultimately no bearing on the merits of a case. The media ends up quoting such information verbatim without verifying whether it has any value as evidence or whether the claims made can be substantiated. Thus, prejudice sets in which can have a direct bearing on the outcome of a trial.

PGT: The two points you are making are both contentious. One, you are suggesting that investigating agencies use the media to plant information. Two, you are suggesting that this information could sometimes lack authenticity and credibility, and be tantamount to deliberate disinformation. In such instances, the media willy-nilly becomes a collaborator with elements within investigating agencies for various reasons... You are also suggesting that judges are amenable to be influenced by the tone, tenor and slant of media reports.

RJ: Let me clarify the last part first. Where is a charge-sheet filed? It is filed in the court of first jurisdiction which is a magistrate’s court -- the youngest member of the judiciary with the least experience. I am not suggesting that these judges are in anyway amenable to be influenced by pressures from the media. But their experience may be limited as they are young members of the judiciary, and when they take cognisance of an offence, this kind of pressure surrounding a case can affect their thought processes. The potential for miscarriage of justice is always there. When the potential is there, we have to deal with its fallout. This is not about determining the guilt or innocence of a particular accused person. It is about upholding Constitutionally enshrined principles of fair trial and fair investigation.

Investigative agencies may not have a case which is sustainable in a court of law, they may not have a case which is backed by solid evidence. However, they put out insinuations and make tall claims to the media which faithfully reports such claims. And therefore, everybody glosses over the  inadequacies of the case because they have created this atmosphere around the case wherein, on occasions, it becomes difficult to separate myth from fact.

PGT: In other words, what you are saying is that certain individuals in investigating agencies utilise the services of willing journalists who are either naive or lazy or both to plant selective bits and pieces of information in the media. In this way, the agencies cover up the inadequacies of a  particular investigation.

RJ: I will not use words like 'naive' which you are using. I am simply saying that when a crime is committed -- and some of these are very serious crimes -- there is pressure on investigative agencies to crack the case. There is media attention on them and those belonging to a particular investigating agency may want to inform the media that they have collected material evidence. This material is then put out without any verification.

PGT: You are very clear in what you are saying and I accept what you are saying. But you are also saying because journalists do not double-check facts and are in a hurry to put out information, it could lead to miscarriage of justice. Now the question arises as to who puts pressure on law enforcing agencies or investigating agencies to come up with quick results after a crime has been committed which is sensational in nature, and therefore, attracts the attention of the public and the media? Does this pressure come from politicians, from the public at large or from within the media?

RJ: If you are a victim of a crime, you will always want the matter to be investigated and the person or persons responsible for the commission of the crime be brought to justice speedily. I don't think anyone can quarrel with the fact that if a loved one has been killed, the victim's family wants the offence to be properly investigated and the culprit to be identified and brought to justice. Ultimately, investigators must act quickly, they must follow crime scene protocols and they must, as far as possible, solve the case within a reasonable time-frame because we do know that delays lead to loss of evidence which, in turn, makes it difficult to catch culprits.

A fair investigation needs to be conducted. Solid evidence that will stand the test of judicial scrutiny should be collected fast andthe culprits should be prosecuted with vigour.  But when the police begins to use the media as its backup team by selectively leaking sensational information, the media must ask the police tough questions and be doubly sure that the information given to journalists is correct. If that happens, then the investigative agencies would be careful about what they put out.

PGT: You don’t want to add anything about the guidelines that the media should follow while reporting cases which are pending?

RJ: Guidelines are only in the nature of guidelines, they are not enforceable. Ultimately, what is required is self-regulation. I think when there are so many television news channels and so many newspapers, everybody wants to be first to 'break' the news. Look at the incident that happened in the Karnataka High Court when Ms Jayalalithaa’s bail application was being heard. We were told, as breaking news, that she had been granted conditional bail and then, just ten minutes later, we were told bail had been refused by the court. Now this happens because everybody is rushing to put out that 'breaking' news item. All that had happened in this instance was that the prosecutors had conceded that they did not mind if Ms Jayalalithaa was granted conditional bail.

PGT: But the judge had something else to say...

RJ: Absolutely. The mistake could be corrected within a matter of minutes but it all reflected rather poorly on the media. Sometimes these mistakes don’t get corrected and this remains part of the narrative that is out there in the public space. If you are a poor person, no one is interested incorrecting any mistake.

PGT: Unlike the Jayalalithaas of the world...

RJ: Yes. Unlike the Jayalalithas of the world, poor people without means of legal representation, who are living in some interior village...they are really at the mercy of the police. The situation on the ground is very different from what is reported by the mainstream media. What do they do? Let me take the example of Soni Sori, who was accused of being a Maoist sympathiser. A theatrical arrest took place in Delhi and we were told that seven to eightcases were pending against her. Eventually, she was acquitted in all but one case and even in that case, the evidence against her is very flimsy. The Supreme Court intervened and granted her bail. There was this whole issue of torture while she was in the custody of the Chhattisgarh police. But for the most part, journalists acted as if they were spokespersons of the police.

PGT: What you are saying is that the social and economic background of individuals tends to condition the manner in which the media reports criminal cases and that journalists sometimes pay scant attention to facts. Individual biases and also the institutional biases of a particular publication or television channel tend to colour the manner in which what is supposed to be reportage is put out in the public domain. In the  process, the dividing line between reporting facts and expressing opinions gets blurred.

RJ: Can I just add one more thing here? If we were to go back eight years  and look at the Nithari case (where Surinder Koli, who worked in the house of businessman Moninder Singh Pandher, was convicted of one murder and sentenced to death)...

PGT: You mean the allegations of cannibalism...

RJ: Absolutely. If you recall, there was no sanctity to the scene of the crime. The police did not even cordon off the area and say,'please do not step into this territory'. Media-persons entered the scene of the crime, perhaps destroying important evidence, so that our ‘collective conscience’ -- and this has become a very interesting phrase nowadays -- could be satisfied. Visuals of the scene of the crime were on our television screens inside our drawing rooms.

Media-persons entered the scene of the crime, perhaps destroying important evidence, so that our ‘collective conscience’ and this has become a very interesting phrase nowadays – could be satisfied.

PGT: You can say that exactly the same thing happened during the terror attacks in Mumbai in November 2008 (which resulted in the deaths of at least 164 people, many of them in two fancy hotels)...

RJ: I was coming to that. I have never seen Indian investigators cordon off the scene where a crime has been committed. A ribbon is required to be placed around the area. It is simple to enforce the rules. Everyone, including those from the media, is then expected to follow the rules and enter the scene of crime.

PGT: You should blame the law enforcement agencies for this...

RJ: I blame poor law enforcement for this. But I also blame the media. You want to show the scene to everybody that night as 'breaking news'. So there is collateral damage which the media also indulges in.

Ankit Agrawal (AA) : After the Batla House incident, India Today magazine carried a cover story (in its issue dated 13 October 2008) titled ‘Inside the mind of the bombers’. (The alleged encounter between the police and suspected terrorists which took place on 19 September that year, resulted in the deaths of two alleged criminals, Atif Amin and Mohammed Sajid, and Delhi police inspector Mohan Chand Sharma.) The article did not use the word 'alleged' before describing an under-trial? Another article on the subject titled ‘Media Circus’on the website of Outlook magazine (that was published on the day of the incident asan eyewitness account by Yusuf Saeed) stated that local people were surprised by the speed at which the electronic media reached the spot in large numbers. It was written that 'apparently, the Delhi Police had already told a section of the press they were going for a raid in Batla House'. What are your views on the media coverage of this incident?

RJ: Let’s put the timeline in perspective. A bomb blast takes place in Delhi where many people are killed. The police stepped in, the special cells stepped in and put a whole lot of men in custody saying that they were responsible for the blast. Now at that stage, it is wrong for the police to provide a journalist access to the so-called confessional statements of those arrested. Such statements are, by the way, inadmissible as clinching evidence in a court of law because the confession has been made to a police officer and not to a magistrate. The point is simply that journalists should not be allowed by the police to interview the suspects or take their photographs while they are in custody, when their lawyers are not present and when no sanction has been taken from a court. Still, a cover story in a leading news magazine was published with the title ‘Inside the Mind of Bombers’.

The police was hesitant to put these men through a judicially-monitored test identification parade becausein all likelihood, the witnesses would not have been able to identify them correctly. But after a news story  is put out, the identification process is circumvented. Who is going to monitor this practice?  Eventually this article andthe photographs that were published alongside were used by the police as the only piece of evidence linking one of the accused with the crime. This is very dangerous. You actually see a very open kind of partnership here between the journalist and the police. And I think this should have never happened.

The point is simply that journalists should not be allowed by the police to interview the suspects or take their photographs while they are in custody, when their lawyers are not present and when no sanction has been taken from a court. Still, a cover story in a leading news magazine was published with the title ‘Inside the Mind of Bombers’.

AA: I remember reading that as far as inspector Mohan Chand Sharma was concerned, the public prosecutor argued that an accused person had managed to flee from the scene of the crime because a majority of the people of the locality belonged to his religion. The media reported this and the judge also accepted this argument in court. So do you again see the influence of the media in the reporting of this case?

RJ: It is part of the judicial order that members of the public who were witnesses did not come forward to assist in the investigation because they were members of the same community. This judgmentis under challenge in the high court.

PGT:Let’s talk about the December 2012 gang-rape of the young woman in Delhi who has remained unnamed.

RJ: Let her be unnamed.

PGT: It was a very unusual situation in her case where her father had no objection to her name being disclosed. You also had a peculiar situation where you had international publications and websites revealing her name, because they were not obliged to adhere to Indian laws. In this age of the internet, if the Mail of the UK puts out the name of this victim on its website, it is accessible to anybody here in India as well. What are your views on naming the victim in this instance?

RJ: The law actually protects the identity of a person, so long as that person wants her identity to be protected. In this case she didn’t survive, so the deceased victim’s family can waive off that protection if they so desire. The law permits that, right? So the father chose to speak about her by using her name,which is fine.

PGT: Does that mean that media can also report her name?

RJ: According to Section 228A of the Indian Penal Code, which deals with disclosure of the identity of a victim of certain offences, only if the victim has given an authorisation in writing giving her consent to use her name, you can do so.

PGT: For instance in the Kolkata Park Street rape case (where the victim Suzette Jordan agreed to be identified)...

RJ: Correct.

PGT: But in the Delhi rape case, the victim is no more...

RJ: Where the victim is dead or is a minor, the authorization must be in writing and must be obtained from the next of kin of the victim.

PGT: I have read in newspapers that her father had suggested that when the government was thinking of putting together the Nirbhaya Fund, it should be named after her. That was because Nirbhaya was not her real name but a name coined by the Times of India newspaper. But as far as I know nothing came out of it. So if I in The Hootwere to publish her name, what would you say?

RJ: I will say that you still require an authorization from the next of kin, in the manner stipulated in Section 228A of the IPC.

[Continued on page two.]

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