On 13th day of September 2020, in remembrance of one of the most learned councils and Member of Parliament Advocate Mr. Ram Jethmalani Ji, a media trial was hosted virtually by NewsX on the topic ‘pros and cons of media trial’ as a part of Mr. Jethmalani’s Memorial lecture. Being a part of which some learned senior councils like Mr. Abhishek Manu Singhvi, C Aryama Sundaram, Harish Salve, and Kapil Sibal presented their views on the topic.
The discussion started with taking the notes and comments of senior lawyers in the context of coverage of the death of Bollywood actor Sushant Singh Rajput, which gained criticism from almost half of public character assassination of the accused and holding a parallel investigation.
On this, the first speaker of the show AOR Mr. Kapil Sibal put across his point and said, “Media can make a hero turn into a villain n not much time”. Starting on this note Mr. Sibal showed his concern on how the media is laying the role of the ‘public court’ and pronouncing the verdict accidentally before the completion of formal investigation and trial in accordance with the law.
He further said that for the sake of earning the TRP, to gain more audience the media looks upon the discovery of facts. Adding on this, he said that the media wrench facts to sensationalize events. By concluding his points, he pronounced that the media is playing a crucial role in turning the hero into a villain in no time at all.
He said, today the media has transformed itself into a public court. They do not just make suggestive innuendos but direct allegations. And some of them even start instigating the violence. All norms laid down for ethical practices of Journalism are being set aside and being violated by media on a day to day basis while reporting on crime and investigation.
He further suggested that the media should work as a stand-alone business. By following the example of Ram Nath Goenka with respect to the Indian Express group which according to him, will ensure that media will function in pursuance of their true journalistic duties, without any conflict of interest or vested interests.
Thereafted, by presenting his views, Mr. Salve said that “The Problem starts when media becomes a parallel system of rule of noise and the rule of noise starts displacing the rule of law”, salve said. He further commented that the Indian judicial system in high profile cases has become a “circus” and the media does not believe in anything called the law of evidence. And “Trial by a court of law has been replaced by trial by embarrassment”
In contrast to India, media in countries like the UK and the USA exercise restraint while reporting on crime. But in India, before even an investigation is afoot, there is a clamor for arrest. And when the clamor becomes deafening, the arrest is made, and guilt is pronounced by media, he added.
By siting the example of Sunil Mittal, who was an accused in the 2G scam case, he stated that the Court threw out the CBI evidence; but by that time, enough trauma had been caused to Mittal and his family. “Sunil Mittal’s family had to undergo severe trauma, spending sleepless nights Reputation was tarnished” he said, and commented that the unbridled functioning of social media was a threat.
He also said “Now there is a dangerous cocktail of electronic media and social media. Social media has put the power of publication in the hands of everybody who has an opinion and who has a bias. Anything written in Whatsapp is now a day taken as gospel truth without concern about its relevancy. This gets picked up the electronic media.”
He expressed his views that this atmosphere was the biggest impediment to India’s progress. Foreign investors are suspicious before investing in India because of the fear of harassment, he said. “Despite the Bhopal tragedy, Warren Anderson was not arrested. Can that be imagined today? Someone recently filed a complaint in Bihar against the Chairman of Samsung for losing dealership of mobiles and the court issued a summons. Why? Because media made them convict by saying ‘rich vs. poor”.
On the coverage of the Sushant Singh Case, Salve said that he won’t say much except that “it would scare anybody who has practiced law and is familiar with the criminal justice system”.
Coming to the means to fix this problem, Salve ruled out government control and said “Anything worse than a reckless media is a government tamed media. I don’t believe that the ministry of Information and Broadcasting has any business in interfering with the content”. He said that the control should come from the Courts, laying down the Lakshman-Rekha which the media should not cross.
In this regard, he said that he had made a proposal to the Law Ministry earlier to set up special tribunals to try civil defamation cases, which will deliver judgments in six months.
“By concluding the UK, he said civil defamation cases are fast-tracked in their courts. And if we have a tribunal in India, presided over by a retired judge, which can have simpler laws, not the CPC, which will deliver judgment in 6 months. It will tame the media. I don’t believe in arresting journalists and throwing them to jail. That is not the way to do it”. Here Civil defamation cases drag on. There has also to be a system within the police force to check media leaks, he ended on this note.
After which, presentating his views on the topic Dr. A.M. Singhvi said, that the media has done some “sterling work” in the investigation and newsgathering and media are now getting bigger and bigger.
He said that, “Indian media has plummeted in the wrong direction in the equation between sense and sensationalism, chaos and civility and a balance and extremism” and time may not invent new offenses of “verbal terrorism”, “visual extremism”, and “content fundamentalism”.
He said he can derive all three from showing actual clips of the media. This has a lot to do with the toxic triangle of “viewership, ratings, and revenue. If you add to this triangle the doses of political, glamour, insidious govt control, and motivated stance, ambitious anchors and public baying for blood- it becomes a heavy cocktail which would make the manufacturers of whiskey, vodka blush”. He said several anchors and journalists have mortgaged their calling and conscience for the temporary lure of wealth and power.
In the end, coming back to the topic in issue, he stated that he cannot think of any ‘pros’ for the media trial. The object of media trial is to create a perception of reality. The merits and the outcome become immaterial. No second thought is given about taking a side and pronouncing the verdict of guilty by playing the roles of prosecutor, jury, and executor”.
He further mentioned that the press council of India is worse than a paperless tiger, he said. The News Broadcasting Association (NBSA) is also “woefully inadequate” in dealing with the woefully inadequate” in dealing with the problem.
By further advocating the strong role for these self-regulatory bodies, he said “it is time to ‘name and shame your peers. Because these bad apples will take you down as well. It is not enough that you remain a good apple”, he warned. For which he further suggested that the NBSA guidelines should be adopted by the Ministry of Information and Broadcasting so that they can have a statutory character so as to bind the non-members.
By further calling the media an independent rating agency, he said “There is an urgent need for an independent rating agency. The king of media is ‘TRP’. We have 44,000 measuring meters in this country is a country of 130 crores. This is the sample that drives the media. This, with a sleight of the hand algorithm, decides what the country should watch”.
Lastly, he mentioned that the conflict of interest of media houses should be addressed. In this regard, he referred to the Broadcasting Bill. And in the conclusion to his statement, he said “We need Chinese walls between these kinds of Conflicts of Interests.
Talking on the topic in issue Senior Advocate C Aryama Sundaram said that he wished to play the devil’s advocate by striking a note different from previous speakers. He said, ‘If you had the 1st, 2nd, and 3rd estate behaving properly, the 4th estate (media) will not be able to convert public opinion”.
He said there is an institutional failure in India. How is the media so involved in the investigation progress? Because people have lost faith in the police. People believe the police are corrupt. The public perception is that the rich can buy himself out. The media has been given the opportunity to channelize the thinking of the public.
“Whether we like it or not, media has become a public court and has made itself a court of public opinion. The media is doing that because the public has lost faith in looking anywhere else. Public opinion is listening to the fourth estate because of the failure of other estates”. He reminded that while the right to freedom of speech and expression is a fundamental right, the right to a free and fair trial is a basic human right, which is absolute and cannot be taken away at all.
In the conclusion to his statement, he said “The media is a watchdog of public opinion and interest- that is wonderful. But let the media not become a guard dog for let the media not become a guard dog for the blind leading the public as if they are blind”.