Pressure Of Narrative Changes Course In Which Cases Can Go, Judges And Investigating Agencies Not Immune To Media Pressure: Justice Anup J. Bhambhani

Delhi High Court judge, Justice Anup Jairam Bhambhani, on Saturday said that investigating agencies and judges are not immune to media pressure and that the pressure of the narrative built around a case digresses and changes the course in which cases can go.

“We must always, as counsel as people otherwise engaged in the criminal justice system, we are all influenced subliminally by what we hear what we read, and that influences our thinking,” the judge said.

Justice Bhambhani was speaking on “Fair Trial- Fairy Tale, Narrative or More?” at the 1st Discourse organized by Centre for Discourses on Criminal and Constitutional Jurisprudence.

“You only have to pick up the newspaper or scroll through your social media feed to know how today's media and sometimes even just individual busy bodies, they jump into the fray and have a field day the moment they find that a person has been implicated in an offence. And the better placed you are in society or, you imagine you are better placed in society, the worse it is for you,” Justice Bhambhani said.

Justice Bhambhani’s speech focussed on three aspects i.e. the right to be presumed innocent and influence of media on trials; right to legal aid and its quality and effectiveness and right to disclosure of evidence and suppression of exculpatory evidence.

The judge said that the right to be presumed innocent “has a certain problem” as the penal provisions are “highly susceptible to misuse” particularly because even charging of a person with an offence can create a cloud over his persona.

“Though as theoreticians and as professionals we are taught the difference between an accused and a convict. And we are also taught that mere allegation is not proof of itself but in practice, the narrative is quite different,” he said.

Justice Bhambhani added that as thinking members of society, it is necessary to also control the narrative which prevails in the society by which a person who is merely charged with an offence is almost immediately shunned by the society.

“Arguably, this exclusion from society in itself vitiates the atmosphere that is required for a fair trial. What aggravates this is the inescapable fact that criminal trials especially in our jurisdictions take inordinately long and until a person is acquitted if that he continues to suffer the stigmatization for many, many years,” the judge said.

He added: “The simple fact of a person being charged with an offence today will inevitably result with his closest friends, even family members distancing themselves from him. If there is any evidence to be led through such people, if there is any statement to be recorded from a family member or a friend, the chances are people would distance themselves because they don't want to be roped in as it were….The society faces this is a real problem, but the consequences are borne by the accused.”

Justice Bhambhani also said that apart from media exercising self restraint, there is power available to the High Courts and the Supreme Court to pass “postponement orders”, in an appropriate case where there is demonstrable real risk of interference in the course of justice in fair trial, in exercise of their inherent jurisdictions.

Speaking on the right to legal aid and assistance to an accused, the judge said that the same is a crucial element of the right to a fair trial which is required at the stage of investigation and during the trial.

“Only two out of 10 litigants really help their own cause, if I may say so. That has been my experience because mostly they argue against themselves. They argue as if they are not in a court of law but standing before Jahangir or someone like that,” the judge said.

Justice Bhambhani also said that the provision of legal aid is now an “opt out option to be exercised by an accused” and that at the same time, we have to be conscious that legal aid for the poor should not be “poor legal aid.”

“Is everything hunky dory in our legal system? We, at least speaking for for the State of Delhi, we have a very robust system but is everything in order? I'm afraid not. There are certain aspects which I will presently allude to which need closer scrutiny and which need work. And before that, let me say this as a judge, I no longer think that it is the accused who needs legal aid. It is the justice system which needs legal aid,” the judge said.

Justice Bhambhani also said that it is the judges who find themselves totally at a loss if there is no effective representation.

“But I cannot stress enough the fact as to what difference it makes if you get good assistance from from counsel versus if you're left on your own to figure out and decide the case as you want,” he said.

On the right to disclosure of evidence, Justice Bhambhani highlighted how nowadays the investigating officers are raiding offices and seizing electronic devices in commercial and financial crimes.

“….especially now with a lot of with a lot of investigation happening in very complex commercial crimes and financial crimes, where the IOs raid offices. They pick up electronic records wholesale, they walk away with servers, they walk away with computer systems. They neither leave copies not make clones. And out of those 10,000 emails that they walk away with they will produce five emails and say look, this shows that the man is guilty. Now there has to be something that needs to be done about this,” the judge said.

Justice Bhambhani also flagged certain areas of concern in the legal aid system like lack of opportunity to choose a lawyer oneself, lack of training and commitment on part of legal aid lawyers, lack of rigorous professional involvement , adequate remuneration for lawyers and lack of confidence in the quality of services provided.

Speaking on the importance of a fair trial, Justice Bhambhani concluded by saying that there is a moral core to the prosecutorial function which must be preserved and safeguarded and that the prosecutors have to be have to be imbued with that sense.