"Pros and Cons of Media Trial": Senior Advocates weigh in during Ram Jethmalani Memorial Lecture

"Pros and Cons of Media Trial": Senior Advocates weigh in during Ram Jethmalani Memorial Lecture

Talks on the theme of media trial and the state of Indian media today were given by Senior Advocates Kapil Sibal, Harish Salve, Abhishek Manu Singhvi and C Aryama Sundaram.

Meera Emmanuel

A virtual discussion on Media Trial as part of the Ram Jethmalani Memorial Lecture Series hosted by NewsX on Saturday saw senior lawyers of the Bar make interesting comments on the state of the media in India today.

"All communications medium have potential that is beneficial and liable to misuse… but the contours of that use must be defined.. there is always a Lakshman Rekha to be drawn", Senior Advocate Kapil Sibal observed.

While the media has been an indispensable tool in several aspects of the criminal justice system and while it has done a yeomen's service in many cases, Sibal opined that the prioritisation of TRPs by the media has affected its credibility. He remarked,

"The problem is now that the media looks at the discovery of facts to gain TRPs... They care less about credibility of source. They instead try to sensationalise the event even if it takes (the form of) distortion of facts."

"The fact of the matter is that the media can make a hero turn into a villain."
Kapil Sibal

Senior Advocate Harish Salve also echoed similar concerns regarding the contemporary state of the media, observing that,

"Reputations in India don't matter. Privacy is a virtue we scorn. We jump into people's personal lives, we call people names, all in the name of transparency...This system has to be contained if India has to become a serious republic. See the measured response in other countries. See how the BBC covers important cases... In India, no one is willing to have a hard look at the system."

Referring to the manner in which there is a "clamour" for the arrest of a person once accused in sensational cases, Salve added,

"What happened to Justice Krishna Iyer's saying of 'first bail not jail'?"

Notably, he voiced strong criticism over the the practical implications of court-monitored investigations in the backdrop of media frenzies in sensational cases. He said,

"If you want to add a further element which distorts and completely damaged the rule of law in India, it is Court-monitored investigations. When Court orders an investigation today, the investigation agencies think it is their moral duty to find that a crime has been committed and that the person against whom the media has made allegations is the criminal. If they don't do that they (think) they have failed."
Harish Salve

Salve went on to speak of how the rise of social media has added to the issue, given that "Social media has put the power of publication in the hands of everybody who has an opinion and who has a bias."

He added,

"People say whatever they want to whomever they want about, which then gets picked up on electronic media - anything written on WhatsApp is presumed to be gospel unless proved to be false. Anything heard on TV is again proved to be gospel unless proved to be false... This atmosphere today is not conducive to the Rule of Law, it is the single biggest impediment in India's growth story."

A reference was also made to the media reportage on the death of Sushant Singh Rajput, although Salve refrained from naming the case, instead referring to it as the latest investigation in Mumbai. Salve said,

"It would scare anybody who has practised law, who is familiar with how criminal justice was and who is concerned about how the criminal justice system should be."

He emphasised, however, that he is not in favour of the Government fixing the problems noticed in the media, commenting that,

"Only thing worse than a reckless media is a Government-tamed media... I don't believe that the Ministry of Information and Broadcasting has any business interfering in content."

If Government is allowed to control the media, Salve opined that we would be laying "the edifice of a worse tyranny than an uncontrolled media."

The media has to be controlled by the courts, which must lay down the Lakshman Rekha which must not be transgressed, Salve said.

Before concluding, Salve also registered his concern over media channels running "opinons" on matters pending before Courts, observing that

"Today, if somebody is granted bail or refused bail/ convicted/acquitted and we have public movement.. lawyers know what kind of hydraulic pressure this would have on the judge conducting the trial."

Senior Advocate Abhishek Manu Singhvi noted that while the media has done fantastic work, there are aberrations.

These aberrations, however, still remain an exception, Singhvi said, although

"Indian news has plummeted in the wrong direction of the equation between sense and sensationalism, news and noise, between civility and chaos and between balance and extremism."

He went on to opine that a time may come when verbal terrorism may be recognised as an offence.

"Terrorism is a global scourge. But the time may not be far off when we may need to invent a new offence of verbal terrorism, visual extremism and content fundamentalism. I can derive all three from showing actual clips of the media."
AM Singhvi

Referring to the "toxic triangle" of "viewership, ratings and revenue" that the media encounters, Singhvi remarked,

"If you add to this, liberal and spicy doses of politics, glamour, insidious government control, premeditated and motivated stance, ambitious anchors and a public baying for blood - it becomes a heavy cocktail which would make the manufacturers of whiskey, vodka and rum blush - even Ram blush."

Senior Advocate C Aryama Sundaram pointed out that the blame for the state of the media today cannot be squarely placed on the fourth estate/ the media alone.

"There is an institutional failure in India", Sundaram observed, explaining further that, "How is the media so involved in the investigative progress? Why? Because people have lost faith in the police. People believe the police is corrupt. The public perception is that the rich can buy himself out..."

There is a public perception that corruption has come into the judicial system, Sundaram pointed out. He noted,

"There is no doubt that there are extreme delays in justice or that people who are brought to book will take about 20 years to be convicted...This is why instead of bail being the exception, it has become the rule. In many cases the only punishment is being jailed in the first instance...The media has been given the opportunity to channelise the thinking (of the public) because the citizen doesn't have anywhere else to look."

"Whether we accept it or not, the media has become a public court. It is a fact that the media has started portraying itself as a court of public opinion. It is also a fact that the media has made itself to be a decision-maker of what public opinion ought to be. The media is doing that because the public has lost faith in looking anywhere else."
C Aryama Sundaram

As his talk came to a close, Sundaram spoke on how media reforms will have to be rooted in the reform of the State and its institutions.

"Improve the faith among the people (in other institutions), so that the people would be in the best position to turn around and say 'What is this channel saying? What non-sense? How can they say this? The police have done their job'", Sundaram said.

As the discussion came to a close, Senior Advocate Fali Nariman also weighed in, querying whether it is time that India consider re-introducing the jury system for criminal trials. He said,

"... perhaps we were too brash in abolishing the jury system. Because it is the jury which represents the people in a criminal trial... We have to seriously think about whether we should have a panel - not a jury perhaps - (but a) a panel who are disinterested and who would give their verdict. Because you can't prevent the public from forming an opinion."
Fali S Nariman

He added,

"I don't think we are in a position to prevent the media from expressing their opinion either. So we have to have some sort of an intellectual panel which will form a considered and thought-provoking opinion."

The lecture came to and end after Solicitor General of India, Tushar Mehta was asked if he would like to have a "quick last word" on the topic.

"No, Mr Nariman must always have a last word", Mehta responded.

The event also saw the presence of Supreme Court Judge, Justice NV Ramana, former Attorney General Soli Sorabjee, incumbent Attorney General of India KK Venugopal, and Union Minister of Law and Justice, Ravi Shankar Prasad.

All the speakers made addresses in fond remembrance of the late Senior Advocate Ram Jethmalani. The discussion was moderated by Senior Advocate Mahesh Jethmalani, son of Ram Jethmalani.

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