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ASG Divan's address was interspersed with descriptions of case law and revolved primarily around the question of the fine line between responsible reportage and the right to a free and fair trial for an accused.
Additional Solicitor General of India and Senior Advocate Madhavi Divan on Friday spoke at a webinar organised by J Ravindran Advocates on the subject of ‘Trial by Media’.
Her address was interspersed with descriptions of case law and revolved primarily around the question of the fine line between responsible reportage and the right to a free and fair trial for an accused.
Divan observed that the lines between the two are blurred with the rise in the use of social media platforms. She spoke of how persons exercising their right to free speech and expression online cannot be expected to be fact-checkers, as opposed to journalists and reporters in media houses. The opinions expressed online could potentially be false, she pointed out.
Moving on to television media, she spoke of the TRP-driven nature of TV news, which served news with salacious details to their respective viewership, particularly news about murders and similar crimes.
Lamenting the ‘tabloidisation’ and ‘sensationalisation’ of news these days, she opined that news channels were doing a disservice to the citizenry in giving ‘disproportionate’ coverage to these cases, as opposed to other issues of national and international importance.
Speaking specifically about how the media reporting of facts could influence the trial of a case, she picked the outcome of the RK Anand decision, the Nitish Katara and Manu Sharma cases to highlight the necessity of good investigative journalism. On the other hand, the Nanavati murder and the Aarushi Talwar homicide cases were highlighted to underscore the implications of sensationalised media coverage on a fair trial.
Senior Advocate Divan also touched upon the news coverage on the recent death of Bollywood actor Sushant Singh Rajput which, she noted, sparked a wave of ‘hysteria’. Referring to this and similar cases, Divan remarked,
Divan described the opinions fostered in consequence to such hysteria as a "parallel expectation of justice that the case must have a certain outcome." She cautioned against such expectations being cultivated, pointing out that after examining hard evidence, a judge may find that the guilt points to a different direction.
This may lead to all sorts of insinuations and accusations being made. As such, it can become difficult for a judge to act in a completely unclouded manner, when such media reportage is relentless.
Senior Advocate Divan also spoke on the Contempt of Courts Act in the context on reporting on cases pending before courts. The Act does not restrict reporting on a case pending disposal, but the Supreme Court’s Guidelines in the Sahara case allow judges to restrain media reporting of certain sensitive cases, she noted.
Concluding her remarks, she shared her opinions on the proposal to live telecast court proceedings, which proponents say could guard against unbalanced reporting and allow open access to court proceedings without having to physically enter courts.
"Ultimately we must ensure that while the public gets access to open justice, it should not be degenerating into a publicity contest. That's also very important for the purity, integrity and efficiency of the justice delivery system", she said.
There was a short Q&A following her address during which Senior Advocate Divan fielded questions on investigative journalism and the propensity of a media trial to become contempt of court.
The session concluded after the Q&A session.