The trite phrase 'media trial' is often used when news channels start exposing criminals linked to powerful politicians who control the police. Like the drug cartels which may be controlling Bollywood, Tollywood (Bengali/Telugu) and Kollywood (Tamil) in Mumbai, Kolkata, Hyderabad and Chennai. The right to life guaranteed by Article 21 includes the right to get high on cocaine and hashish at Bollywood rave parties in exchange for bit roles in films—or so they would have us believe.
The Sudarshan TV case of its programme 'Bindas Bol', targeting a minority community for being coached to enter the civil services by the Zakat Foundation, accused of being funded by traitors, adds to the din about press freedom in the Supreme Court. This debate in India is as old as our Republic and will go on forever.
The first issue about press freedom is whether the media can interrogate suspects like Rhea Chakraborty in the Sushant Singh Rajput case by camping 24 x 7 outside her building and the second issue is whether the media can camouflage hate speech against minorities under the guise of press freedom and free speech—which is what Sudarshan TV has been accused of doing.
A trial starts only when charges are framed against an accused in a criminal complaint or when issues (assertions and denials) are framed by the civil court. Before that, the media is free to interrogate suspects who may refuse to reply. But moles in the police and agencies leak facts to select channels. Unlike the USA, where Congress can make no law curtailing free speech, in India free speech is curtailed under eight imprecise heads, which gives rise to a plethora of laws.
In the USA, the government must justify any restrictions on free speech against an individual. But in India, it is the exact opposite, with the vague eight heads of Article 19 (2) reducing free speech in Article 19 (1) (a) to a moth-eaten chimera. India ranks 142nd out of 180 countries in the World Press Freedom Index, whereas the USA ranks 45th , with Norway and Finland topping the list. In these three countries, free speech is really free speech.
Be that as it may, the eight ex-IPS officers who asked the Bombay high court to prevent news channels from defaming Mumbai Police will not reveal that the Bollywood actors-drug cartels-politicians nexus would never have been exposed, had it not been for these news channels. Most A-listers in Bollywood consume drugs as easily as we drink water –and Mumbai Police would have diluted this probe to save the government crores of rupees in taxes.
So, the curbs thought of by the Bombay high court, comprising Chief Justice Dipankar Datta and Justice Girish Godbole, during the IPS officers’ PIL to make the state regulate news channels was something never envisaged by our founding fathers -- like the collegium system to appoint judges. Different judges’ ideologies and life experience ensure the Constitution says different things at different times. Justice Gautam Patel has declared he will never prevent the media from publishing what they want through leaks and disclosures when he laid down: “No sealed covers in my court.”
When told information would leak to the media, Justice Gautam Patel said the media was doing its job, just as he was doing his. But urbane judges like Patel and Dhananjay Chandrachud are an exception. The so-called media pressure which prevents courts from ensuring a fair trial to the accused is a myth because the judiciary is trained to admit only primary evidence such as witnesses’ statements or blood tests into the court record to convict an accused, who is often acquitted anyway. Conversely, the media goes by hearsay to get at the truth which gets obfuscated by acquittals, like those of Salman Khan.
So, quite often, big fish like the late Prime Minister P V Narasimha Rao or actors like Salman Khan are acquitted because the police are under pressure to dilute a case. According to the National Crime Records Bureau (NCRB), convictions in only 4,708 rape cases out of 1,56,327 rape trials in 2018 were obtained. So, we must allow news channels like Republic TV or India Today to do their job. Or live in a world of make-believe.
Were it not for a so-called media trial in the Sushant Singh Rajput case, the long list of Bollywood actors summoned by the NCB for allegedly consuming drugs, like Deepika Padukone, Sara Ali Khan, Shraddha Kapoor, Sanam Johar and Abigail Pande would not make us realise that reel life is the opposite of real life. And it took the death of Sushant Singh Rajput to make us realise that.
But a free press does not give licence to channels like Sudarshan TV to allegedly spread Islamophobia under the guise of free speech. The Supreme Court bench of Justices D Y Chandrachud, Indu Malhotra and K M Joseph asked the lawyer for Sudarshan TV why it had dragged in NDTV by claiming it had shown a Hindu saint in 2008 with Hindu symbols such as tilak, chillum and trishul while airing a programme on 'saffron terror'. Sudarshan TV did this to justify its alleged Islamophobia and tirade against the Zakat Foundation.
Justice Chandrachud rightly pointed out, the bench was reluctant to grant an injunction against Sudarshan TV which could set a bad precedent for some of the 1,079 high court judges in India. The Delhi high court had prevented the media from reporting on charges of sexual harassment against retired Supreme Court judge Swatanter Kumar in 2014 while gag orders were issued during the last four years in several high profile cases, such as the Tarun Tejpal rape trial in Goa, the Sohrabuddin Sheikh murder trial in Mumbai, the Yogi Adityanath communal hate speech before the Allahabad High Court and the Pachauri defamation suit before a Delhi trial court.
The rights of such high-profile accused in these trials override the people’s right to know, so that justice is a lovely rainbow in the sky which is what judges like Markandey Katju, Ajit Shah and lawyers like Dushyant Dave and Prashant Bhushan have been claiming.
Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.