Introduction: The state of affairs for an accused facing the hardships of a trial in present day society is pathetic and the State has not just completely failed, but has actively neglected in discharging its constitutional obligation to protect the fundamental rights of the accused/ suspect persons by allowing the malpractice of ‘publishing the details of trial/ investigation and other similar proceedings against the accused, while he/she is still in the custody of the Court. Since the accused are in a Socially disadvantaged position while facing a trial, therefore Shouldn’t the Supreme Court or the High Courts, in order to protect and restore the fundamental right to Life and Personal Liberty, specially the right to fair trial & the Right to Dignity of the accused, pass guidelines thereby framing rules for postponing such publication (by appropriate postponement Orders) until conclusion of Trial of the accused.
Distinct Class of Citizenry: The accused persons form a distinct class of citizenry around which the whole criminal justice system of this country revolves and the State is constitutionally responsible for protecting the Fundamental Right to Fair Trial and Right to Dignity of the Accused guaranteed by Article 21 of the Constitution. The State instead, has turned a blind eye towards the Accused and neglected them by letting anyone publish any kind of details about them, as also the records of incomplete trial, which is of grave prejudice to the objectives of free and fair trial which they are entitled to, in addition to their dignity being robbed by letting the Society prejudge them. They lose their face in front of family, friends, office colleagues and anyone in society with whom they interact.
Gifting away Article 19 (2) to drains of Law: The State has destructively misconstrued Article 19 (2) to legislate Contempt of Courts Act, 1971 and Section 499, Indian Penal Code, 1860 in such a way that the Right to Freedom of Speech and Expression is engulfing Right to life and Personal Liberty of the Accused mercilessly. The restriction in Article 19 (2) has been narrowed at the cost of Right to Life & Liberty of the Accused.
Related Social Evils: Before moving ahead, We must recall the backdrop of the ills that have crept into society in recent times, such as;
a) Media Trial,
b) Paid News,
c) Attack on the accused ranging from throwing shoes to knife attack in Court Premises during broad daylight in active police protection,
d) Increase in social anger/ hatred towards the accused sometimes resulting in denial of proper legal representation, which includes some Bar Associations passing resolution to that effect
e) Media campaign to malign advocates representing the accused ;
Social Stigma & absence of ‘Procedure established by law’: The above-said ills tangibly point out the Social Stigma attached to the status of being an accused, who, interestingly, is otherwise presumed innocent by law but ostracized by public and loses his face in society, profession, business for the duration of trial. The acquittal may not be sufficient for him to regain his dignity/ honour he used to enjoy in the society. The stigma of being accused once and for a considerable amount of time (which is obvious and necessary as compliance to fair procedure) leaves a blot on his social life. Therefore there is a dire need to postpone the unnecessary and uncontrolled publication related to trial till its conclusion, as such publication not only falls foul of due process of law restricting right to life and personal liberty U/A 21 but completely lacks any procedure whatsoever for such publication and therefore cannot stand in way of Right to Dignity at all.
Psychology: Psychology suggests that people tend to stick to their earlier opinions, which they have formed. Social Stigma is attached to anyone who is accused of an offence. Therefore a premature publication is a dangerous input to the society, as the opinion of people in society does not restore the dignity as the law seeks to restore after acquittal, and the opinion continues even after acquittal/ discharge of accused, Which postulates a very sorry state of affairs- Once an accused, always an accused. (SOCIAL STIGMA: Émile Durkheim Erving Goffman Gerhard Falk)
Defamation: Whatever is said in court by prosecution or witnesses is largely immune from defamation, however the publishing of same has adverse effect on the Accused’s reputation and should not be immune as it is doing something prohibited otherwise, in a veiled way(in garb of free press).
Postponement Orders & ‘Reasonable Restrictions’: The postponement Orders are prevalent under UK Contempt of Court Act, 1981 in Scotland which were guided by the leading case of Hall v. Associated Newspaper, 1978 SLT 241, therefore upholding the Right to Life and Personal Liberty by the issuing Postponement orders for Publication of details of Accused and their ongoing trial is not an unreasonable restriction on right to Freedom of speech and expression as it only postpones the publication till the conclusion of trial and does not prohibits publication as such.
Section 327 (3) Cr.P.C. & Section 228A (3) IPC: Section 327 (3), Code of Criminal Procedure, 1973 prohibits publication of details of any matter related to any proceeding w.r.t. trial of offences u/s 376, 376A, 376B, 376C and 376D, Indian Penal Code, 1860 without previous permission of the Court. While Section 228A (3) IPC makes it punishable with simple imprisonment upto two years. Therefore, its aptly clear that the restriction on publication on any matter related to trial is not unreasonable if it is intended for the purposes of upholding Right of Life and Personal Liberty. Similar protection ought to be extended to the Accused because the rape victims have the same constitutional protection as the accused. Article 21 makes no difference. 327 Cr.P.C and 228A IPC acknowledges public trial can intrude on dignity/ privacy even if correctly reported.
Conflict between Article 19 (1) & Article 21: In event of conflict between Article 19 (1) and Article 21, Article 19 (1) should bow down as even during emergency (Article 359), right to approach Courts for Article 21 cannot be suspended whereas for Article 19 (1) it can be suspended. Besides, the presence of Article 19 (2) and absence of similar Article 21 (2) speaks volume about the supremacy of Article 21. Therefore Article 21 can’t be assailed by anything except following due process of law.
Temporary Restriction Permissible: In any case, postponement orders are’nt a complete restriction on Article 19 (1), but only a temporary suspension on publication on certain sensitive matter involving Right to Life & personal Liberty (Article 21) of an accused.
Misinformation assailing Article 21: It’s a fact that the certified copies of the documents in a trial are only accessible by the parties to the trial and not to media. Now, when media reports on secondary form of data, it is liable to be inaccurate (or acquired by unlawful means in most cases), and the publication based on such data is liable to prejudice the opinion of society on the Accused, who is supposed to be absolutely innocent until conclusion of trial, (some even afterwards, when acquitted/ Discharged) and who is already prima facie deprived of his Right to life and personal liberty at various stages of investigation and trial under the express rider of "procedure established by law", which of course cannot cover any kind of publication by media.
Irony of Law: It is an irony, as to how law restricts/ prevent the parties to a case to express and opine by publication on their own case, but at the same time allows the third party (media) to have those rights of publishing and even propagating opinions and assailing the Right to dignity/ privacy of accused.
An object of Loathing: The accused is subjected to hatred of society and partial social boycott if not total, the acquittal hardly washes away the social stigma attached to him, and he has to live with it for the whole of his life.
Law weaker than Media Barons: The media is gifted with abundant means and impossible to check by accused, who is already facing the heat of trial. While the accused is busy facing trial, he is losing the social battle, which he is not resourceful enough to check. The law of defamation in any case is non- cognizable. Hence the accused has nothing to his aid, as compared to all powerful media barons and the machinery of state at the same time.
Premature Reporting: The way a trial progresses, reporting/ publishing anything about it is premature as it is subject to the scrutiny of the Judge/ Magistrate with the aid of Indian Evidence Act, 1872. Hence, even accurate reporting of the case may be highly misleading.
Accused in Custody of the Court: When the accused is in custody of the court, it becomes the duty of the court to take care of him. Custody does not mean bullying the accused. It cannot be taken as a negative connotation for flaunting coercive powers of the court on the accused. Custody has to mean constructive care of the accused which may include restrictions whenever necessary, according to the procedure established by law. Since the accused must only face the sentence, if convicted. Any restriction Article 21 except what the procedure in a Criminal trial Provides for is unreasonable and unconstitutional.
Test Identification Parade: Publishing the identity of the accused affects his trial adversely, like rendering TIP a futile exercise.
Legal Representation: The accused’s right to be represented by Advocate of his choice is interfered by constant vilification of advocate by media and sometimes Bar association resolutions (A.S. Mohammed Rafi Vs. State of Tamil Nadu Rep. By Home Dept. (2011) 1 SCC 688])
Cumulative Effect of Successive Publications: A particular newspaper news channel may not violate any particular law, but the cumulative effect of publishing the same material in several newspapers and shown on several news channels have grave negative impact in relation to the accused and the society tends to believe in the accused’s guilt. Therefore it is not just a series of publication by one newspaper or channel, but the cumulative effect of the same report being published in different ways in various newspaper or channels, that impairs the accused of his right to dignity.
Any Citizen can be easily Gifted with the Status of an Accused: A carefully drafted FIR has the ability to bring any person to a trial and malign him. Even the charges could be easily framed and he would have to face the unnecessary trial and still be subject to criticism/ negative publicity by media and become a subject of social stigma for rest of his life.
Guarantee U/A 21: We must not forget that the Right to Dignity of the accused is Guaranteed U/A 21 and it can’t be restricted by anything which is not ‘procedure established by law’. The publication about accused or their trial is such an unauthorized restriction and must be suspended during the pendency of trial against him.
Conclusion: In light of the above numb arguments, the state must consider to extend the protection granted U/s 327 (3), Cr.P.C. to all the accused/ suspect persons and until such a law is in place, either the Supreme Court U/A 141 of the Constitution or the Hon’ble High Courts should pass guidelines U/A 226 and frame Rules U/A 227 (2) to the effect that no person shall publish any matter in relation to an accused/ suspect persons or his/ her trial without the prior consent of accused/ suspect and permission of the respective Judge/ Magistrate until the Trial has concluded,
A very informative read and thoughts have been put in a very organized manner. I so agree with this post.
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