Fair Trial
1. What constitutes a fair trial?
Answer: There are various aspects of the right to a fair trial. These include an adversarial trial system, presumption of innocence, independent judges, and knowledge of the accusation, trail and evidence in the presence of the accused, adequate legal representation to respond to the charges. The right to fair trial has been interpreted to be one of the implicit rights contained within the Right to life under Article 21 of the Constitution of India.
Reasoning: There are various facets to the right to a fair trial. The Hon’ble Supreme Court in the case of Zahira Habibullah Sheikh & Anr vs State Of Gujarat ((2004) 4 SCC 158) has held that, “ the principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices.... fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.” Most of these safeguards to ensure a fair trial are contained under the Code of Criminal Procedure, 1973 which contains and defines the procedure which has to be followed in criminal cases.
Effect: The concept of a fair trial cannot be limited to a statute and the Courts have gradually expanded it to include various aspects of criminal procedure. For instance the Supreme Court has also in the past transferred cases from one state to another when it is reasonably anticipated that the accused will not be afforded a fair trial or the court process may be interfered with by extraneous considerations.
- How does my reporting affect a person’s right to a fair trial?
Answer: At present there are no clear and objective standards as to how reporting by the Press may affect a person’s right to a fair trial. There is no legislation which provides guidance on this. The only law with respect to this is contained under the Contempt of Courts Act, 1971 where contempt proceedings may be initiated against reporting which interferes in the administration of justice.
Reasoning: The Contempt of Courts Act, 1971 under Section 2(c) states that a person commits criminal contempt when through a publication, whether by words spoken or written prejudices or interferes or tends to interfere with the due course of any judicial proceeding or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner. At the same time the Contempt of Courts Act, 1971 states under Sec. 4 that a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding.
The Law Commission of India, in Chapter IX of its 200th Report titled as, “Trial by Media : Free Speech and Fair Trial under the Code of Criminal Procedure, 1973” has stated various forms of conduct by the press which constitute interference in the due course of administration of justice. These include, (1) Publications concerning the character of accused or previous conclusions; (2) Publication of Confessions :(3) Publications which comment or reflect upon the merits of the case; (4) Photographs related to the case which may interfere with the identification of the accused; (5) direct imputations of the accused’s innocence; (6) Creating an atmosphere of prejudice; (7) Criticism of witnesses: (8) Premature publication of evidence: (9) Publication of interviews with witnesses. It is pertinent to mention that most of these ingredients have been culled out from Borrie and Lowe’s commentary on Contempt law and are not reflected either in statue or judicial pronouncements in India. Even though the Law Commission states, “There are also a large number of decisions of the Indian Courts falling under these very headings.”
Effect: In the absence of any definitive legal prescriptions limiting the right of the press to report on an accused or a trial there have often been accusations of the press interfering with the administration of justice. However, legal sanctions for such reporting under the Contempt of Courts Act, 1971 have not been usually applied.
- Does the right of a person to a fair trial per se supersede the press’ right to free speech?
Answer: No, the right to a fair trial does not per se supersede the press’ right to free speech. The right to fair trial though read under Article 21 of the Constitution of India is more concerned with the conduct of the State in affording a fair trial to the accused rather than a private publisher or a journalist.
Reasoning: The issue is yet to be decided by the courts - ultimately any such conflict is likely to come down to a determination of where the greater public interest is deemed to lie in the particular facts of the matter. A fair trial is one of the tenets of a jurisprudential system based on the rule of law and when in conflict with the freedom of speech, it is likely that the former will prevail unless adequate grounds can be shown that justify the expression or the need for the same. t is pertinent to mention that, the right of the press as explained in Question No. 2 is drawn from the right to speech and expression which is limited by the reasonable restrictions as enumerated under Article 19(2). Article 19(2), expressly contains, “contempt of court” as a ground under which the Contempt of Courts Act, 1971 falls. This law limits expressly limits the right of the Press to free speech as explained in Question No. 5. This reasoning has even been adopted by the Law Commission of India, in its 200th Report titled as, “Trial by Media : Free Speech and Fair Trial under the Code of Criminal Procedure, 1973”.
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