Pre-Judging By Media In Criminal Cases Goes Against The Principles Of A Fair Trial; Senior Advocate Aspi Chinoy Tells Bombay HC In SSR Media Trial Matter

Aspi Chinoy was appearing physically before the division bench of Chief Justice Dipankar Datta and Justice GS Kulkarni in a batch of petitions raising concerns about the media trial taking place in the Sushant Singh Rajput death case.

Chinoy began his submissions in the matter and referred to the guidelines issued by the Press Council of India namely "Norms of Journalistic Conduct" which contained provisions related to investigative journalism as well.

We are concerned with a higher concept of administration of justice. I am not saying that the media should not report in any matter that is sub-judice or ongoing investigations. But the manner in which they report goes against these principles, Chinoy said.

He further submitted-

"Reporting in a criminal case cannot be about who should be held guilty and who should be arrested. If in reporting you pre-judge then you are crossing the line."

Citing the judgment in RK Anand Vs Registrar, Delhi High Court on media trials, Chinoy quoted from the paragraph defining 'trial by media'-

"The impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny"

You create a perception of guilt when it has not even been established and investigation is still going on. This pre-judging goes against the justice system. Campaigns were run by TV channels saying arrest hashtag so and so ... such things undermine the principles of a fair trial, Chinoy asserted.

It was also pointed out by the Senior Advocate that in countries like America and the United Kingdom, such kind of reporting by the media is considered a grave misadministration of justice.

At this juncture, News Broadcasting Standards Authority's counsel Advocate Nisha Bhambhani intervened and submitted that the NBSA also has guidelines on media trials and would like to file the same.

Advocate Chinoy then sought to continue his submissions but the bench intervened-

"What about NBSA's orders?"

Advocate Rajesh Inamdar who appears for another petitioner in the matter informed the Court that most of the news channels are not members of the NBSA.

Advocate Bhambhani then apprised the Court about NBSA's order today directing channels Aaj Tak, Zee News, News 24 and India TV to air an apology for insensitive reporting and sensationalizing the death of actor Sushant Singh Rajput. NBSA has also asked Aaj Tak to pay a fine of Rs.1 lakh.

Is an apology sufficient? Justice Kulkarni asked Advocate Bhambani.

Appearing on behalf of Republic TV, Advocate Malvika Trivedi interjected and said that there are many checks and balances already in place. She cited the Delhi High Court's order in the case of Tablighi Jamaat. Licenses can be cancelled but a gag order will have a chilling effect, Adv Trivedi contended.

But the Chief Justice did not take kindly to so many interruptions. He said-

That is not Mr. Chinoy's submission. The point is nobody should be held guilty, is it the duty of the media to advise the investigating agency who should be arrested? CJ Dipankar Datta questioned Adv Malvika Trivedi.

He further asked her to wait for her turn to argue and asked Sr Adv Aspi Chinoy to continue.

Naming anchors of Times Now, Navika Kumar and Rahul Shivshankar, Chinoy said that they are crossing the line in reporting the SSR matter and running hashtags which involve prejudging like #ArrestRhea.

Chinoy also pointed out the Law Commission's 200th report and submitted-

"There is a dearth of statutory provision in this (in context of media trials).It is not enough to say that Courts have repeatedly warned against media trials.We need specific guidelines for electronic media.When you make guidelines for PCI, why not make similar guidelines for broadcasting media on pre-judgments, etc. This matter should concern the court."

Chief Justice Datta then referred to a Supreme court judgment that mentions "lakshman rekha" for the media. Then, Court asked the Additional Solicitor General of India Anil Singh appearing for the Union of India through I&B Ministry, to respond to the submissions made by Sr Adv Chinoy.

ASG Singh pointed out that an affidavit has been filed by the Under-Secretary, but Chief Justice Dutta was not satisfied with the same and asked him to file another affidavit addressing points raised by the petitioner's advocates. He said-

"We don't have much time left, we will resume hearing on Monday. We shall proceed for final hearing, so file a detailed affidavit."

At this juncture, appearing on behalf of another petitioner, Advocate Rajesh Inamdar referred to the order passed by the High Court on September 3 urging the media to show restraint and not hamper the investigation in the death of actor Sushant Singh Rajput. He said although Court had not passed a gag order, media houses were asked to exercise restraint yet on the same day, two news channels ran a show with the #CantGagSSRCoverage.

Court did not address this statement and adjourned the hearing. The next date of hearing is October 12.