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Trial By Media: A Legal Dilemma Resolved With Reference To Jessica Lal

Written by: Himanshu Raman Singh - IVth Year Student of NALSAR, Hyderabad. Having a brilliant academic record
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Media is regarded as one of the pillars of democracy. Media has wide ranging roles in the society. Media plays a vital role in moulding the opinion of the society and it is capable of changing the whole viewpoint through which people perceive various events. The media can be commended for starting a trend where the media plays an active role in bringing the accused to hook.

Freedom of media is the freedom of people as they should be informed of public matters.[1] It is thus needless to emphasis that a free and a healthy press is indispensable to the functioning of democracy. In a democratic set up there has to be active participation of people in all affairs of their community and the state. It is their right to be kept informed about the current political social , economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider to form broad opinion in which they are being managed, tackled and administered by the government and their functionaries. To achieve this objective people need a clear and truthful account of events, so that they may form their own opinion and offer their own comments and viewpoints on such matters and issues and select their future course of action. The right to freedom of speech and expression in contained in article 19 of the constitution. However the freedom is not absolute as it is bound by the sub clause (2) of the same article. However the right it freedom and speech and expression does not embrace the freedom to commit contempt of court.[2]

The media has again come in focus in its role in the trial of Jessica lal murder case. The concept of media trial is not a new concept. The role of media was debated in the Priyadarshini Mattoo case and likewise many other high profile cases. There have been numerous instances in which media has been accused of conducting the trial of the accused and passing the ‘verdict’ even before the court passes its judgment. Trial is essentially a process to be carried out by the courts. The trial by media is definitely an undue interference in the process of justice delivery. Before delving into the issue of justifiability of media trial it would be pertinent to first try to define what actually the ‘trial by media’ means. Trial is a word which is associated with the process of justice. It is the essential component on any judicial system that the accused should receive a fair trial.

Trial By Media In The Jessica Lal Case: An Analysis

The newspapers and the other media channels have quite been rejoicing over their ‘success’ in bringing Jessica lal to justice. The trial court had acquitted Manu Sharma of all the charges depending upon the obvious lacunae in the prosecution case. The High Court however reversed the trial court judgment.

The High Court has interpreted the evidence given by the witnesses differently as clear from the following sentence:
“The trial court grossly erred in the manner of appreciation of testimonies of the said witnesses by reading into the said testimony what was not there. The key witnesses’ evidence which did not exist, for instance, while dealing with PW-20, the trial court arrived at a factually wrong finding, not borne out from the evidence on record, to the effect that she thought that he had fired a shot at Jessica Lal and that she was not an eye witness.”

Basically what the high court did was do so just undo what the trial court had done.

“The testimony of PW-6, Malini Ramani, has been discarded by the trial court being of little importance. since she was not an eye witness.However, she is certainly a witness to identifying Sidhartha Vashisht @ Manu Sharma along with four or five persons present at the Tamarind Court as also having asked her for whisky and later misbehaving with her. We find it quite strange that at one stage the trial court has returned a categorical finding that four accused were present inside Tamarind Cafe and that finding has been given only on the evidence of PWs 1, 6, 20 and 24, yet their evidence has been doubted and that too without even making real analysis of their evidence.”

The High Court held Beena Ramani’s testimony to be clinching evidence against the accused. Then the court proceeded to view the testimony given by the other witnesses in the light of in its own interpretation placed upon the statement of Beena Ramani.

“This witness was cross-examined by counsel for Sidhartha Vashishta @ Manu Sharma, but to no meaningful end. In other words, her testimony remained unchallenged. The trial court while dealing with this witness has held that this witness does not further the case of the Prosecution as the witness was not an eye witness to the occurrence but a witness to the presence of Sidhartha Vashishta @ Manu Sharma, Amardeep Singh Gill,Alok Khanna and Vikas Yadav at the Qutub Colonnade. The trial court also held that the deposition of this witness was vague since she thought that Manu Sharma was carrying a gun and also felt that he may have shot Jessica Lal. The Court also held that mere feelings were not enough and did not mean that Sidhartha Vashisht @ Manu Sharma had actually fired a shot at Jessica Lal. The trial court further went totally wrong in holding that PW-20 had admitted not seeing Sidhartha Vashisht firing a shot at Jessica Lal, but it was only her feeling. With great respect to the learned Judge, we find this is 'a complete misreading of evidence'. There is no suggestion let alone an admission on the part of PW-20, Beena Ramani, that she had not seen the accused Sidhartha Vashisht firing a shot at Jessica Lal.”

The court found the testimony of Beena Ramani alone enough for convicting Manu Sharma for the murder of Jessica Lal. If we try to see through the judgment of the High Court we can see that the high court is proceeding with the assumption that Manu Sharman is guilty. The high court links all the evidence together and does not take into account the various lacunae in the prosecution case. The court has clearly been influenced by the popular opinion and the media publicity of the case.

If we look at the various comments in the newspapers after the trial of the judgment the whole thing becomes crystal clear. Even before the trial started the media started naming Manu Sharma as an accused in the Jessica lal murder case. His photographs were flashed across the media and created practical difficulties in the test identification parade of the accused persons. This point has also been pondered over by the high court in its judgment.

The question that arises at this moment is that why was Manu Sharma acquitted by the court and then again convicted by the High Court on the basis of same facts. First we shall deal with as to why the trial court had to acquit Manu Sharma. If we look at the evidence the whole thing becomes clear. The car he came in to reach the restaurant was not recovered on the spot: the court does not know how he got there. The weapon he used was never recovered: the court cannot equate the fatal bullets with the gun he owns. Actually, the court does not even know if one gun or two guns were used in the shooting. The court has no site plan to help it understand where the shooter stood, where the empty cartridges were found or where Jessica fell. The restaurant floor was washed clean: the court does not know if there ever was a pool of blood. Indeed, there was no hard evidence of any celebration or party at the place: the booze bottles were gone, so why would Manu Sharma kill another guest?

The post mortem report is way short on cause of death details. There are no eyewitnesses: no one saw the shooter. The man recording the first information report says he does not understand his own report because he is not particularly good with written Hindi (though we know he can speak well enough). Evidence-collection in the case has been seriously botched; the holes would take some filling. We don't have a chain of circumstances to connect Manu Sharma to the killing. Are we going to send a man to the gallows just because the police arrested the man? Evidence-collection in the case has been seriously botched; the holes would take some filling. The evidence isn't going to now appear just because the High Court has the power to introduce additional evidence.

The Judge possibly believed that if said facts were inconsistent and did not offer conclusive proof of the guilt of the accused, he was bound to give the benefit of the doubt to the accused. Prima facie, such a strictly judicial perception seems unexceptionable.

However, persons well versed with the Cr.P.C. would know that Section 311 invests in the Judge the prerogative to summon suo moto more material witnesses in addition to those produced by the prosecution. This can be done at any stage of the trial. The Judge has also the authority to recall and re-examine any person already examined.

Section 311 is a potent weapon in the hands of a Judge who is confronted with a number of witnesses reneging on their previous statements to the police. Public interest demanded that the trial Judge strain every nerve of the law to arrive at the truth. All reports indicate that Judge Bhayana did not appreciate the significance of the grave crime that had taken place and his own moral responsibility to arrive at the truth. Viewed in this light, the failure is not only that of the police but of the trial Judge as well.[3]

The reasons cited by the judge behind decision[4] are:
Three key witnesses — model-turned actor Shayan Munshi, one Karan Rajput and electrician Shiv Dass had turned hostile. They re-tracted their initial statement given to the Delhi Police. The weapon of murder was never recovered from the place of the crime. The CFSL[5], which examined the bullets —one recovered from the spot and the other lodged in Jessica’s body — found they were not fired from the same weapon.

The above reasons basically compelled the judge to let go of the accused and once again put forth the loopholes in our legal justice system. It showed the inefficiency and lack pf credibility in our Police force and also how easy it is for the ‘high class’ people to buy their freedom.

It is now quite clear that there was not adequate evidence to nail Manu Sharma in this case. Even in the lack of evidence in this case Manu Sharma was held guilty by the Delhi High Court. There is a clear influence of media as will become clear from some examples of Media Coverage given below. The coverage of the media is noteworthy in this case. Sify reported the incident as “Jessica Lall: Murder in jungle of Indian justice.”[6] Tehelka[7]: reported that: The trial court gave Manu the benefit of doubt on his version that the Tata Safari was recovered from Karnal.

The police says the ‘court grossly erred’ because the seizure memo records a Noida recovery “Is there any hope Jessica will get justice? Many do hope — and groups are promising to keep the campaign for justice alive — that both the police and the courts will ensure what every outraged voice is demanding: justice for Jessica, and thereby a change in the criminal justice system.” The Delhi Police has finally gone in appeal against a trial court judgement that outraged the nation. But will the law continue pushing for justice once public focus shifts from the case?” “Justice for Jessica[8] Is it realistic to expect convictions in this high-profile murder case?” Jessica Lal Case: Justice not served. [9]

Trial By Media Is Contempt of Court And Needs To Be Punished

The Contempt of Court Act defines contempt by identifying it as civil[10] and criminal[11]. Criminal contempt has further been divided into three types:
# Scandalizing
# Prejudicing trial, and
# Hindering the administration of justice.

Prejudice or interference with the judicial process:
This provision owes its origin to the principle of natural justice; ‘every accused has a right to a fair trial’ clubbed with the principle that ‘Justice may not only be done it must also seem to be done’. There are multiple ways in which attempts are made to prejudice trial. If such cases are allowed to be successful will be that the persons will be convicted of offences which they have not committed. Contempt of court has been introduced in order to prevent such unjust and unfair trials. No publication, which is calculated to poison the minds of jurors, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible, amounts to contempt.[12] Commenting on the pending cases or abuse of party may amount to contempt only when a case is triable by a judge. [13] No editor has the right to assume the role of an investigator to try to prejudice the court against any person. [14]

The law as to interference with the due course of justice has been well stated by the chief justice Gopal Rao Ekkbote of Andhra Pradesh High Court in the case of Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr.[15], where in it was observed by the learned judge that:
“ …… When litigation is pending before a Court, no one shall comment on it in such a way there is a real and substantial danger of prejudice to the trial of the action, as for instance by influence on the Judge, the witnesses or by prejudicing mankind in general against a party to the cause. Even if the person making the comment honestly believes it to be true, still it is a contempt of Court if he prejudices the truth before it is as-certained in the proceedings. To this general rule of fair trial one may add a further rule and that is that none shall, by misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a cause so as to force him to drop his complaint or defence. It is always regarded as of the first importance that the law which we have just stated should be maintained in its full integrity. But in so stating the law we must bear in mind that there must appear to be 'a real and substantial danger of prejudice'.”

Fair trial
Parties have a constitutional right to have a fait trial in the court of law, by an impartial tribunal, uninfluenced by newspaper dictation or popular clamour. [16] What would happen to this right if the press may use such a language as to influence and control the judicial process? It is to be borne in mind that the democracy demands fairplay and transparency, if these are curtailed on flimsiest of grounds then the very concept of democracy is at stake.
The concept of ‘denial of a fair trial’ has been coined by authoritative judicial pronouncements as a safeguard in a criminal trial.

But what does the concept ‘denial of fair trial’ actually mean:

The conclusions of the judicial decisions can be summed as follows:
The obstruction or interference in the administration of justice Vis a Vis a person facing trial.
The prejudicial publication affecting public which in term affect the accused amount to denial of fair trial.
Prejudicial publication affecting the mind of the judge and
Suggesting the court as to in what manner the case should be preceded.

The publisher of an offending article cannot take shelter behind the plea that the trial to which the article relates to isn’t then in progress nor immediately to be begun but it has to occur at a future time.[17] Our law of contempt however does not prevent comments before the litigation is started nor after it has ended. In re P.C.Sen[18] Justice shah who spoke for the court succinctly put the law as follows:

“The law relating to contempt of Court is well settled. Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Court: R. v. Gray, [1900] 2 Q.B.D. 36 at p. 40. Contempt by speech or writing may be by scandalising the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard.

It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of justice. The question is not so much of the intention of the contemner as whether it is calculated to interfere with the administration of justice.”[19]

In Sushil Sharma v. The State (Delhi Administration) and Ors[20] it was held by the Delhi High Court that:
“Conviction, if any, would be based not on media's report but what facts are placed on record. Judge dealing .with the case is supposed to be neutral. Now if what petitioner contends regarding denial of fair trial because of these news items is accepted it would cause aspiration on the Judge being not neutral. Press report or no reports, the charge to be framed has to be based on the basis of the material available on record.

The charge cannot be framed on extraneous circumstances or facts dehors the material available on record. While framing the charge the Court will from prima facie view on the basis of the material available on record. To my mind, the apprehension of the petitioner that he would not get fair trial is perfunctory and without foundation. None of the news items, if read in the proper prospective as a whole, lead to the conclusion that there is any interference in the administration of justice or in any way has lowered the authority of the Court. The Trial Court has rightly observed that after the charge sheet has been filed, if the Press, revealed the contents of the chargesheet it by itself by no stretch of imagination amounts to interference in the administration of justice.”

Even in highly sensitive cases , the session trial has been conducted by the courts of Sessions without fear or favour for example to count few cases which are commonly known as ‘Billa Ranga case’, ‘Baba Nirankar” , “Sudha Gupta” and of “Shalini Malhotra”. One cannot gag the press.

The Indian courts have emerged as the most powerful courts in the world with virtually no accountability. But every institution even the courts can go wrong. Every institution including the judiciary has its share of black sheep and corrupt judges. The judiciary are peopled by judges who are human, and being human they are occasionally motivated by considerations other than an objective view of law and justice. It would be foolhardy to contend that none of them, at least some of them, at least some times are motivated by considerations of their own personal ideology, affiliations, predilections, biases and indeed even by nepotistic and corrupt considerations.

In stifling all criticism by the threatened exercise of the power of contempt, the issue in a democratic society is ultimately one of the accountability of the judiciary itself. In order to stifle free speech and comments on the court, even an occasional exercise of this power is enough to deter most persons form saying anything that might annoy their Lordships. Perhaps the most important reason for the lack of reforms in the judiciary is the reluctance of the Press to write about and discuss the state of affairs within it for fear of contempt.

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr[21]. It was held by the Supreme Court that:
“No doubt it would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of that investigation. This is because trial by newspapers, when a trial by one of the regular tribunals of the country is going on, must be prevented. The basis for this view is that such action on the part of a newspaper tends to interfere with the course of justice whether the investigation tends to prejudice the accused or the prosecution. There is no comparison between a trial by a newspaper and what has happened in this case.”

The Ins And Outs of Media Trial- English View

High-profile civil litigation is not just decided in the courts; it also is decided in the court of public opinion. Courts and legal commentators are increasingly recognizing that the media, through the way it covers litigation, has a very real impact on the resolution of individual lawsuits. Common sense dictates that it is within a lawyer's role, therefore, to work with reporters on their stories to ensure accurate reporting. Many defence attorneys in high-profile cases, though, flinch at the idea of saying anything to reporters out of concern that such conversations could be misconstrued as an attempt to affect the jury pool or persuade a judge or jury. For this reason, rules and beliefs have developed as to how lawyers may appropriately engage the media to mitigate its impact on their clients.[22]

Pro-Plaintiff Media Bias

Litigation involving well-known companies or individuals always has grabbed the attention of the news media, especially when it involves sensational charges. The magnitude of the coverage and the filter through which the media reports on litigation can create a “clear plaintiff bias in civil cases.” While small companies can find themselves under the media spotlight in a particularly novel or “bet the company” suit, the media tends to focus on allegations against established and respected corporate defendants. These larger companies tend to have household names, and allegations against them can make good “copy” - even if the allegations are seemingly spurious, commonplace or unproven. The same is true for litigation involving celebrity defendants.[23]

In covering litigation, particularly corporate litigation, the media has an inherent bias that favours plaintiffs. When charges are made public, the media automatically reverts to the basic elements of story telling and casts the lawsuit in traditional protagonist-antagonist terms. The defendant, simply by being on the wrong side of the “v,” becomes the "villain" to the plaintiff's “victim,” whether or not the actual charges have any factual basis or legal merit. Reports frequently lead with the plaintiff's injury or allegations and only include the corporate position as a response. These stories rarely are counterbalanced by positive stories about the defending company. Because companies would rather not draw attention to any litigation, they usually do not seek publicity for their victories. Even if they did, reporters often do not see corporate litigation victories as particularly newsworthy. Goliath is supposed to beat David; that is not news.[24]

The Nature of Bias in High-Publicity Cases

A larger issue is the complex nature of juror bias and how that bias predisposes a juror toward one side in a case. It is no secret that we all have biases. The difficulty comes from understanding how those biases may ultimately affect the viewing of evidence and the deliberations in a case. Because the ramifications and remedies of this issue are far-reaching, the courts have elected to take the “I instruct you not to be biased” approach. As a result, the court can attempt to rehabilitate any juror who expresses bias by appealing to his or her fear or by appealing to the juror's inherent sense of fairness (“Don't you think you could set aside those initial impressions and only consider evidence from the witness stand?”). Rare is the juror who would not be intimidated by an admonishment from the court or who does not think of himself or herself as a fair and unbiased person. In fact, most jurors struggle mightily against their initial impressions.

Several issues make it more difficult for jurors in high-publicity cases:
• Jurors want to appear fair and unbiased in front of the court and the press.
• Jurors want to sit on sensational trials.
• Jurors have a hard time distinguishing between impressions formed by pre-trial publicity and impressions formed in court.
• Jurors mostly do not understand or acknowledge their own biases.
• Jurors themselves sometimes do not know the strength of their impressions and opinions.
• When in a high-conflict situation, such as juror deliberations, jurors revert to their initial impressions, experiences, and opinions.
• The courts make it relatively easy to conceal or not reveal a conscious or unconscious bias.

These issues were highlighted in Mr. Simpson's civil trial. Despite having stated numerous times in their questionnaires that they believed him to have been guilty at various times during the presentation of the criminal trial, more than 30% of these jurors were not excused for cause because they stated that they were willing to put their opinions and impressions aside in the civil case.

The Additional Pressure on Judges in High-Publicity Trials

The media create a series of unconscious pressures on a juror in a high-profile trial. Jurors know that they are being watched by the world. They are not only making a decision for themselves, but they are making a statement for their family, co-workers, community, and society as a whole. This elevates their verdict to a level beyond the evidence. In interviewing jurors after the trial of Hollywood madam Heidi Fleiss, many jurors expressed how they hoped that the police would use their resources more wisely than to prosecute victimless crimes. When talking about the testimony of Dr. Irwin Golden, who was the coroner in the Simpson case, juror Marsha Rubin-Jackson said:
But it comes to the point in this particular case where Dr. Golden has made thirty errors. Now, you can't tell me this man has not made errors on previous autopsies... But this just happened to be a case that came to the court as a 'high-profile' case and the problems were brought to everyone's attention. [25]

From the above account it becomes clear that the media had a more negative influence rather than a positive effect (except for a few exceptions here and there). The media has to be properly regulated by the courts. The media cannot be granted a free hand in the court proceedings as they are not some sporting event. The law commission also has come up with a report on ‘Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)’ [Report number 200 prepared in 2006]. The report is still pending in the Parliament as such the researcher could not get a copy of the report. It will be available to the public once it is presented in the Parliament.

The most suitable way to regulate the media will be to exercise the contempt jurisdiction of the court to punish those who violate the basic code of conduct. The use of contempt powers against the media channels and newspapers by courts have been approved by the Supreme Court in a number of cases as has been pointed out earlier. The media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial itself.

What lessons does the Jessica Lal fiasco teach us? There is definitely a case for intensifying efforts to upgrade the quality of policing. There is at the same time a need to improve judicial performance. For instance, the Jessica trial took nearly seven years to get completed. Hardly anyone has commented on this. Will it be unreasonable to demand that this should be taken up by the Delhi High Court as a kind of case study to find out why there was such delay? The public would like to satisfy themselves that the failure was not because of judicial lethargy, but rather because of several extraneous factors such as police indifference and wanton delaying tactics on the part of the defence. The current popular perception is that judicial accountability is an unrealisable dream. It is for the judiciary to prove this perception wrong.

The above analysis reveals us the gravity of the situation as it persists in India. An ideal proposal will be that the Indian press and the Indian people are not at present democratic enough to allow the press to intrude in the judicial process. What will an ideal proposition is to not allowing the media trial at this moment. It’s definitely an ideal proposition to allow controlled media reporting of the cases once the media is supposed to come out of the profit and sensational considerations. The media has to play the role of a facilitator rather than tilting the scales in favour of one or the other party.

[1] Kapil Sibal, The Hindustan Times, New Delhi, May 4 2001.
[2] The State of Bombay v.: P., AIR1959Bom182.
[3] FRONTLINE.Volume 23 - Issue 05 :: Mar. 11 - 24, 2006.
[4] The trial court judgment was passed on 21st February 2006(S.L. BHAYANA) Addl. Sessions Judge, New Delhi .
[5] Central Forensic Science Laboratory.
[6] Sify news website.
[7] Mar 25 , 2006,
[9] Anil Dharker, An abortion of justice, Sunday, March 05, 2006,
[10] Section 2(b)
[11] Section 2 (a)
[12] AIR 1943 lah 329(FB).
[13] Subhash Chandra v. S. M . Agarwal, 1984 Cri LJ 481(Del).
[14] Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137.
[15] AIR1975 AP 30.
[16] Cooper v. People (1889) 6 Lawyers Report Annotated 430(B).
[17] Leo Roy Frey Vs. R. Prasad and Ors , AIR 1958 P&H 377.
[18] AIR 1970 SC 1821.
[19] Para 8.
[20] 1996 CriLJ 3944.
[21] AIR 1961 SC 633.
[22] Steven B. Hantler, et al., Extending The Privilege To Litigation Communications Specialists In The Age Of Trial By Media, 13 CommLaw Conspectus 7 CommLaw Conspectus 2004.
[23] See, e.g., Paul Pringle, Hush-Hush High-Profile Cases: Dome of Silence Caps Celebrity Cases; Authorities: It's in Defendants' Best Interests, L.A. TIMES, Mar. 22, 2004, at A1 (citing a lawyer as saying, “There seems to be an insatiable appetite for these trials.”).
[24] As just one example, a Westlaw search shows that when a jury returned a verdict for $58.5 million dollars against Chrysler in Debbs v. Chrysler Corp. in 1999, many of the nation's daily newspapers covered the verdict and the allegations. When a Pennsylvania appellate court overturned that verdict in October 2002, the decision received scant coverage, which was mostly contained to legal trade publications. 810 A.2d 137 (Pa. Super. Ct. 2002).
[25] Armanda Cooley et al., Madam Foreman: A Rush to Judgment? 162 (Dove Books 1995).

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