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Saturday, 19 May 2012

The Conversation - III


(On free speech, media trial & prejudice )


Avinash:  What you have to say about the whole spot fixing sting operation, SRK scuffle episode in the Wankhede Stadium and the Pomersbach case ?

Me: Well, I hope each will get what he deserves.

Avinash: Which is ?

Me:  How the hell do I know ?

Avinash: Have you been asleep this whole week or what ? Don't you watch prime time news or the news at all ?

Me: Yeah. I do. Why ?

Avinash: You speak as if you're ignorant about the whole affair?

Me : What do you mean ?

Avinash : Don't you know that the players of the IPL teams were clearly exposed fixing their performances in lieu of money. The sting operation exposed them like bacteria under a microscope. Its clear that they are guilty.

Me: How much jail time they are gonna serve ?

Avinash: What ?

Me: You said they are clearly guilty. So i want to know about the penalty or punishment  that has been inflicted on them.

Avinash: Hey, now don't get smarty with me, alright? You know there will be an inquiry and / or a court process before they are ultimately penalized.

Me: Really ? ! I thought they are going to the gallows already, because people like you have declared them guilty.

Avinash: Its not just me, its most of the country. You should' ve seen the debates on news channel regarding this issue. The facts are crystal clear. The alleged players are involved in spot fixing.

Me: Then why the delay in their punishment. Hang 'em.

Avinash: Hmm..don't you darn well know that there's a process of law before which nothing can be done with these people.

Me: Then why the heck are you screaming from  roof tops about their guilt, when you very well know that their innocence or guilt is to be determined only by the procedure established by law i.e. through an enquiry or trial.

Avinash: Come' on now. We live in a free world. India is the largest democracy and I don't need to remind you that under the Constitution of our free nation, I'm entitled to the freedom of speech and expression..

Me: True, but can that freedom be exercised to an undefined extent.

Avinash: My friend, why are being so darn skeptical. I'm just saying that from what has been played over news channels it is clearly evident that the players have entered into illegal spot fixing concerning their performance in IPL matches.

Me: That's precisely why I'm so skeptical. You cannot say that.

Avinash: Are you kidding me ? What is this ? Taliban ?

Me: It isn't. That's exactly why you can't say stuffs like that. Please give me a patient hearing and if you are the reasonable person I know you to be, then you'll surely understand what I'm trying to say. Ok ?

Avinash: (sighs). Yeah..Yeah, Go on.

Me: There's nothing more sanctimonious in any democracy than the freedom of speech and expression. But we must understand that like any other freedom, it too is not absolute and it is subject to reasonable regulations and restrictions. When liberty is accorded to subjects of a nation, it is never purported while so according, that the said liberty will be wildly asserted in disregard to other conflicting freedoms. I'll elucidate this by saying that if each pedestrian begins to claim that "since I've the liberty to walk, nothing can stop me", there will be an endless traffic jam. Similarly while exercising our right to freedom of expression and speech, we have to be aware, only ofcourse, if we are claiming to be law abiding citizens, whether such exercise does in any manner sabotage sacred principles of governance and rule of law. The news channels appear to be mostly forgetful of this caution. There is this non stop rant about matters which are gravely connected to under trial issues. It is high time to apprise everyone about the dangers of prejudice and an unwarranted barrage of speculations and opinions about a particular issue, especially those which are sub judice.... 

Avinash: Wait wait. What is sub judice issue ?

Me: sub judice issue is one which is currently in the process of adjudication in a Court of law, or which is the subject matter of a formally initiated inquiry.

Avinash: Ok, so you mean to say that it isn't advisable to discuss the merits of a court case outside the Court, especially in the media right ?

Me: I've very closely followed a lot of sensational issues that have received raving attention of the society at large. Ranging from the incident of the hit & run cases of celebrities to the recent commotion about Luke Pomersbach's alleged misbehavior with a lady at a Delhi Hotel during a post IPL match party or whatever. I dare not exclude, in retrospect, the sensational case of Manu Sharma who now lies incarcerated in prison for having murdered Jessica Lal or that of the Talwars in the Aarushi murder case. In all these instances, the screaming common factor is the overplayed role of the media in deliberating, discussing and garnering speculative opinion regarding the facts of those cases.

I understand that the media is duty bound to conduct a fair investigation into issues concerning national & social relevance. I'm also supportive of reasonably fair debate on a background issue (say for example in the Pomersbach's case the rising problem of female insecurity in public places or the high handedness of the so called rich & mighty) but how on the blessed earth can you have a debate purporting to unearth the truth behind the allegations that the suspect / the accused is facing. That's the grund function of the Courts.

Before I say anything else, let me first assure you that I'm neither in any way supporting Manu Sharma nor am I saying that either Pomersbach or Talwars are innocent. In fact, you can now talk as much as you want to about the dastardly act of Manu Sharma and curse him as much as you want, because it has been proved beyond all reasonable doubts that he indeed murdered Jessical Lal. But in the case of Pomersbach or Talwars, or of any other person who is due to have his day in Court I sincerely beseech you to guard your tongue against careless uttering. You have no idea about the dangers of prejudice to an accused. That's why, I'm infuriated at the mindless display of sensational oratory by media personnel over issues concerning the innocence or the guilt of the Talwars or Pomersbach and many others.

I agree that sometimes the nature of certain cases are such that there is overwhelming reaction from all sections of the society. And in such cases, more often than not, the popular opinion is against the person arraigned as the suspect or the accused. Here the media cannot sensationalize the issue to bank upon the growing public perception in an ambition to achieve its interests. Rather it is expected that the media will conduct a balanced debate on the topic, carefully guarding against, frequent conjecturing about the fate of the matter.

Avinash : My dear friend, let me remind you of the words of the great Pandit Nehru. He said

“I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.” 

Me: True. I'm aware of that philosophy too and I support the freedom of press. But unfortunately Pandit Nehru did not foresee the danger involved in the ‘administration of justice’ which is the very essence of the natural justice and the rule of law or rather he would not have expected the press to get involved into something which is beyond its limit and ethics too. I read a beautiful article on this topic the other day where the author has written on how the media has now reincarnated itself into a ‘public court’ (Janta Adalat), and thereby latently interfering with court proceedings. It completely overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. Now, what we observe is media trial where the media itself does a separate investigation, builds a public opinion against the accused even before the court takes cognizance of the case. By this way, it prejudices the public and sometimes even judges and as a result the accused, that should be assumed innocent, is presumed as a criminal leaving all his rights and liberty unredressed. If excessive publicity in the media about a suspect or an accused before trial prejudices a fair trial or or results in characterizing him as a person who had indeed committed the crime, it amounts to undue interference with the “administration of justice”, calling for proceedings for contempt of court against the media. Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent the encroachment of civil rights. What is even more outrageous is that sometimes news channels invite the lawyers who represent these accused persons and grill them on questions pertaining to their professional ethics as to how could they take up the case of such a  person, who according to the media is already guilty. They even induce an analysis of the evidence available against that accused, an act which is grossly unwarranted from the media.
                                             
Avinash : Ok

Me: Let us also not forget that the right to a fair trial is also an inviolable right granted to every accused under our Constitution. This right is bound to be deeply impaired when the media indulges itself in inducing public opinion about his guilt when his trial is either yet to commence or is already underway.

Avinash : Alright, alright.......What is your take on the Pomersbach episode ?

Me: Look. Pomersbach has already been produced in Court concerning allegations of trespassing, assault and molestation. The Court will decide what's the truth in these allegations basing on the evidence produced before it. Just wait and the truth will be out before you. But in the meantime we can pay allegiance to our constitutional ethics by refraining ourselves from entering into discussions concerning his guilt or innocence.

Do you have a pen & piece of paper ?

Avinash: Yeah, why ?

Me: Just note down this link (http://www.youtube.com/watch?v=SpQNfLdAyg8 ) and watch this video on Youtube. Its a bit old. Though I myself don't subscribe to a few things spoken here and there in the video, by and large this video will clarify further what I've tried to say. And the man speaking is an idol for many. Now there's one thing you must remember while watching the video. I'm not showing it to you because I support or oppose the outcome of any legal case or the conduct of any particular person mentioned in the video, but because I want to you to be informed about certain fundamental principles relating to the larger issues about which we just discussed.



                                                                  **********




13 comments:

  1. Good Anupam! One problem in India is that winning a slander or libel case against the media is near impossible cos the judicial system very seldom is helpful to an individual fighting a corporation.

    One additional point - Creating mass hysteria and prejudice against an accused may make it very difficult if not impossible for any individual who has evidence to offer in support of the accused person's innocence.

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    1. Thanks so much Suresh ji for reading my post and giving you valuable opinions. I agree with your point that creating mass hysteria against an accused makes it difficult to support his innocence.

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  2. A very interesting post once again ....i would have agreed with ALL of it if we could be sure of the honesty of judiciary....many a times public outrage through media does manage to enforce justice,where it was not seen as coming initially--take the case of Manu Sharma & now N.D.Tiwari too is being ordered to give his blood sample....do you think it would have been possible without so much of exposure in the media?

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    1. Thank you so much Indu, for reading my post and furnishing your thought provoking opinions about it.

      Just a small comparison. How many times we hear about corruption by judges vis - a -vis corruption by other officials in the country. May be there is corruption in judiciary, but undoubtedly its the least, because of very highly efficient checks and balances built into the system of functioning of Courts and judges. Let me assure you that I'm telling you this from first hand experience.

      As far as Manu Sharma's case is concerned, the judiciary had no motive to willfully disregard Jessica Lal's cause. It had nothing to gain by ignoring it. While the ordinary practice is that Courts do not look into matters until they are brought before it, still the Delhi High Court took suo motu (on its own) cognizance of Jessica Lal's case after Manu Sharma was acquitted by the Sessions Court. Nobody could have questioned the High Court if it would have decided not to do so, but still it did. I agree that media did play an important role in it, but one good act does not give one the license to commit two sins.. So you see, you can be somewhat sure of Judiciary's honesty, if not completely. Though I'm not personally aware of the ND Tiwari case. But let me tell you, it does not require so much hue and cry by the media. Hue and cry cannot induce a Judge to take up or not take up somebody's case. There's a very simple reason for it. Unlike MLAs / MPs, IAS officers etc, a Judge has nothing to gain by garnering mass support. For instance an MP can do a particular act in such circumstances since he'd be worried for votes, but a Judge isn't. His career is not determined by taking up popular causes. So you see, instead of raising commotion if one good journalist would have asked the lawyer of the other side to file a petition praying for DNA test of Tiwari, the Judge would have anyhow allowed it, on merits of his arguments in Court.

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  3. Hi Anupam

    That was a very interesting post. Media sometimes does help in bringing about justice but in advicing others not to cross the Lakshman Rekhas they sometimes forget their own Lakshman Rekhas....

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    1. Very true jaish.

      Thanx for your encouragement.

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  4. hii.. Nice Post

    Thanks for sharing

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  5. Freedom of speech is nothing if not absolute. I understand that press colors public opinion on sub judice matters, but with our impotent judiciary, one must admit, it's often the press that brings charges against powerful people. Muzzling them would lead to more injustice. The powers of government and rule of law often cater to people with influence–for the rest, the media might be the only recourse. Ram Jethmalani (in the youtube video) was yelling for no reason. I share his opinion–everyone deserves a defense–but the yelling was pointless.

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    1. My friend, nothing is absolute in any democracy. So isn't freedom of speech, else you could publicly call me a ******** and get away with it, without consequence. I'm, a little shocked that you missed this vital catch. Like you missed, the fact that the lady journo, in the video was asking the same kind of questions again and again. She was sitting in judgment over the guilt / innocence of the yelling man's client, who by the way happened at that time to be an accused in a murder case, and broadcasting it on national TV. She also called him indefensible. She was attempting repeatedly to discuss the merits of the evidence of that Court case, which, legally speaking, is a statutory offence ( under The Contempt of Courts Act) besides simply being morally wrong. Manu Sharma was guilty, but that's to be decided by Courts not by any journalist. Any reasoned law knowing man would have lost his cool over her attempts at ignoring established legal principles against causing prejudice to an accused.

      Not every man might' ve yelled at her blatant disregard for and ignorance of the legal / journalistic ethics, But Ram Jethmalani did, in the same way he's been yelling about the stashed away black money abroad.

      The best that media can do in such cases is that speak up only to an extent which alarms the investigative agency in such a manner that they do not destroy the case.

      As far as judiciary's potency is concerned, any country's judiciary is as potent as its witnesses and investigative agencies. It'd have sufficed for you, if before calling judiciary impotent, you first found out, in how many cases, sensational or ordinary, witnesses have gone on and spoken the truth fearlessly before the Courts and Police have not crushed the cases during investigations, before it reached the Courts.


      About the rest of what you've written, inlcuding your support for media activism, I humbly urge you to read Conversation - IV http://anupampatracontemplates.blogspot.in/2012/05/conversation-iv.html . May be you already know what I've stated, still give it a chance.. It sums up my replies to the opinion of few of my friends, now including yours, about my earlier post.

      Hope you read it.

      Regards,

      Anupam

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  6. :) I so love this work you have done.. its going to be mighty helpful to me.. even my sister, who is going to pursue law very soon was got all interested. Keep up the great work!

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    1. Thanx Rohini. I'm glad to know that your sister is interested in pursuing law as her career. I hope she excels in whatever arena she chooses to work in. Any assistance you need, just mail me.

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  7. Insightful observations, and even the comments and your take on those comments r pretty insightful. I ws reminded of one chapter in our social psychology textbook called 'social psychology in the courtroom'. Research in this area by the behaviour scientists amply supports that prejudice sort of affecting the verdict. I'll quote one classic study in this area to make things clearer:
    We are better at relative thinking than absolute thinking. We tend to base estimates and decisions on known ‘anchors’ or familiar positions, with an adjustment relative to this start point. This is called the anchoring and adjustment heuristic. Englich and colleagues found that even judges can be influenced by this. Some judges had to imagine a sentence being greater or less than one year, whilst others were asked whether the sentence would be more or less than three years. In later imaginary sentencing, the judges were clearly influenced by the earlier anchoring. Obviously, judicial sentencing decisions should be guided by facts, not by chance. The present research however demonstrates that the sentencing decisions of experienced legal professionals are influenced by irrelevant sentencing demands even if they are blatantly determined at random. Participating legal experts anchored their sentencing decisions on a given sentencing demand and assimilated toward it even if this demand came from an irrelevant source (Study 1), they were informed that this
    demand was randomly determined (Study 2), or they randomly determined this demand themselves by throwing dice (Study 3). Expertise and experience did not reduce this effect(Englich, Mussweiler, Strack, 2006).

    This post reminds me of M.F Hussain and his freedom of artistic expression. Would love to hear ur take on the issue. See if u could 'converse' on it someday with ur friend.

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    1. Thank You Sudha for reading my post. Your comments open up an whole new arena for discussion.

      Anyways, I'd only say that the worst kind of contempt that the media can commit is to prejudice the mind of the mankind against one person who is standing his trial in Court.

      As far as the case of M.F. Hussain is concerned you must know this.

      Nothing is absolute in a democracy, not even artistic expression, though without the requisite freedom, artistic expression is meaningless. But for every man who supports M.F. Hussain's expressions on canvas, there's a man who'll denounce it. Now the latter need not necessarily be a fanatic. Goddesses are worshiped. So to the worshipers, it was a matter of great outrage. Now I'm by no means supporting or objecting against either side. But the law is that anybody / anything which tends to excite tension among a certain community is to be avoided at all costs, unless it serves any greater public / national interest or tends to achieve the constitutional goals.

      Hussain failed to appear in Court even after summonses were issued against him. Now that's illegal per se. So non bailable warrant was issued against him, which by the way is the law.
      So far as certain persons filing criminal cases against him is concerned, they are legally free to do so. But you see the crux of the matter is that when you know that your actions are likely to induce anger and outrage among members of the society why do it. And even if you still do it, why publicly showcase and hail it ? I'm a great lover of arts, and I think you know that. I want to write about so many things, critical, enthralling and depict certain people in a certain way, which may be artistically satiating for me. But can that be allowed in a democracy, when that depiction is outrageous to that person, howsoever artistic genuineness it may display. So I write with a self imposed restraint, which may not mean free air for the artiste in me, but it certainly satisfies the conscience of a responsible citizen. I understand arts is divine, but that divinity cannot be sustained if it tends to hurt others.

      A lot of people called it unsecular to prosecute M.F. Hussain. They do not understand that secularism has nothing to do in this case. Secularism is the absence of favour or support to any particular religion. Now by reason of corollary responsibility, that can by no means allow any Govt. to ignore the sentiments of any particular community. But anyhow the Govt. wasn't prosecuting, it were people of the community, who claimed to have been offended by his paintings, that were prosecuting him.

      I agree that its a sad thing when an artiste does not have the requisite freedom to express himself. But that curtailment happens only when he is supposed to venture into such expressions which are likely to hurt well founded sentiments of any person. Like it or not that's the law of our land. If you ask me I'm all for the law, despite the fact that I'm tempted to have all kinds of freedom in expressing myself. Lest anybody can express obscenity, label it "aesthetic / liberal" and get away with it.

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