Free to report, don't play judge

There is of late the constant alarm raised that there is 'trial by media', particularly on television channels. On the other hand, the rebuttal we get from the media practitioners is that this is tantamount to shooting the messenger. I think the truth lies somewhere in between. Crying wolf about 'trial by media', in my opinion, can be a problem in terms of having a chilling effect on the freedom of press. As it is, in India, the press is working in a very restrictive atmosphere. We already have many laws in force which are regulatory, which are constrictive of the freedom of the press. For example, the law of contempt of court, the law of legislative privilege, the sedition act and the threat of criminal defamation.

It has been a long standing demand of journalists particularly that defamation must be decriminalised for a free press. Apart from this, we have had overt acts, many open acts by the state to control and regulate and rein in the press from the Emergency days to subsequent attempts to raise draconian laws against the freedom of the press. So in that kind of atmosphere to talk about 'trial by media' can become, in an operative sense, another constraint, another restriction on the freedom of the press. For a free democracy, a truly free press is very essential, very imperative. Therefore, any attempt to rein in the media must be resisted, not just by the journalists but by the people at large in the interests of their true democratic rights.

On the other hand, it does appear that what we technically mean by 'trial by media' is that what ought to be decided in a court of law is being decided in a television studio. I stress television media because I don't think the print is guilty on this issue. This normally applies to television channels, both English and regional channels, as we are seeing, for instance, in the case of Dileep in Kerala. Repeatedly some people have raised the objection that is this is 'trial by media' because the news studios are taking on the role of a courtroom and the anchor is becoming both the prosecutor and the judge delivering the verdict. In which case you are pre-empting the due process of the law, and it is also probably influencing the public mind, and one might also argue that judges are seeing all this in the public realm. Of course they will not be swayed by anything other than the evidence on the table, but there is the fear that this kind of pressure can derail the due process of law, which is based purely on evidence and fact.

In that sense, perhaps it is important for the media to take note of this and be a little more responsible when it comes to matters which are already in court or whose outcomes are likely to be decided in court. In such cases to jump the gun and to decide who is the guilty would be to overstep the media's mandate. We are also very loose in the terms we use. We often call the accused person guilty; the accused is only an accused, he becomes guilty only when the conviction has happened. But in many of these television debates, although they may not call the person guilty of the crime, it is assumed that the person is already guilty of the crime. It is only a question of when, not if, before this person is convicted.

The media should also have the decency and the sensitivity to respect the rights of the individual by not encroaching on a person's right to be judged fairly in a court of law. So I think the media has to self-regulate itself. My worry is if such so-called 'trial by media' continues without self-regulation, the courts could ban or prevent the reporting of certain events. For instance, when Justice Karnan case was debated in the Supreme Court and the arraigned judge went on defying every order of the court, at some point the Court had to ask the media not to report anything related to the judge.

Because they thought that there was free play given to whatever he was saying and in the public mind a false impression was being created about his innocence. Many journalists decried that because, according to them, it was an encroachment into the freedom of the press. But the court had to resort to such an action because it felt that the fair course of justice itself was being derailed by media reporting, with which I don't particularly agree. But the point is more such cases can happen if the media indiscriminately starts talking about, discussing, passing opinions and passing judgments about people involved in cases that have come within the ambit of the courts.

So it is in the best of interests of journalism itself for journalists to apply such restraint. Otherwise 'trial by media' will become an excuse, shall we say, for either the state or for those who tend to work in terms of restricting the freedom of press to bring in external regulatory mechanisms to operate on the press, which will not be in the long-term or middle-term interests of the freedom of the press, and therefore of true democracy in our country. Another bogey that has come into the public sphere of late is to confuse the reasonable restraints that are mentioned in the fundamental rights chapter, particularly Article 19 (A) and 19 (G), which are the derivate rights on which the freedom of the press operates. Many people keep reminding us that these rights are subject to reasonable restraints. Of course, we know they are.

But the point is, there are many eminent persons, including unfortunately the former chairman of Press Council of India, Justice Markandey Katju, who foreground reasonable restraints and make them appear as if they are superior to the basic rights themselves and therefore make the case for external regulation of the press. This I think is very dangerous, because a reasonable restriction is just a corollary, a qualifier. If the qualifier is given predominance, you are putting the whole clause on its head, making a mockery of that provision in the Fundamental Rights. Now, to be emboldened by the rights and to come up with independent evidence related to a case in court is to tread a very thin line. On the one hand, there cannot be a situation where a media house refuses to discuss an issue merely because it is sub judice. I don't think even the judges are suggesting it.

I think it is our fair right to look at the case, its merits and the context in which the case has evolved. We may not be judging the case itself, but the context and what has happened around it. It is important to keep the public informed of every stage or part of a developing story. At the same time we should stop short of pre-empting or pre-judging a case before the justices - with their wealth of experience and knowledge and their wisdom and all the evidence that they have before them that a television studio or a journalist do not have - come out with their verdict. We should not judge something without full knowledge of what is happening; we have no right to do that especially if the issue is sub judice. There is a general wrong impression that just because something is sub judice we should not say a word about it.

Good journalism is one of clever brinksmanship. It is about pushing the frontiers as much as you can. If you can push the frontiers right up to the Judge's table, good. But while doing so you must be aware of the risk of contempt of court. The overall principle is, the fourth pillar of democracy, like the other three, also plays an important role in the checks and balances function. Therefore, when this fourth pillar pushes its luck a bit it has to be in the larger public interest. So the governing principle has to be, should something we are putting out there is in the larger public interest. If so, we should be prepared to put our foot forward, even if there is an element of risk.

Even if you are bordering on contempt, without actually crossing the limit, often judges warn the person saying you are in danger of contempt here, be careful. Then, you should stop. That would be my principle. If you shy away from all these things, you are not performing the public interest function the people had entrusted with you. Public interest is the litmus test. If news is played up to score a point over rival channels, for TRP ratings or for better advertisements, it would be unconscionable.

(The author is a journalist, media personality, film director and actor)