INDIA: SC notice to media a case of misplaced priorities

The Supreme Court accuses the media of damaging the reputation of murder suspect Rajesh Talwar

The Times of India
Thursday, August 21, 2008

By Manoj Mitta

NEW DELHI --- The Supreme Court was barking up the wrong tree when, glossing over the complicity of the police, it blamed the media for the damage done to Rajesh Talwar's reputation during his 50-day detention on the trumped-up charge of killing his daughter and servant.

For, the media got into the act only after inspector general of Uttar Pradesh police Gurdarshan Singh stunned the nation with his sleaze story that Talwar had committed the double murder after he had caught Aarushi and Hemraj in "an objectionable but not compromising position." Since Talwar was arrested a whole week after the murder and since a senior officer went into all those lurid details in front of TV cameras, the media could well claim to have acted in good faith when it took the police version at face value and presented the dentist in a poor light.

Though sections of the media did at times go overboard in carrying scurrilous reports attributed to unnamed sources, no attempt to gauge the nature and degree of media culpability in the Aarushi case can overlook the larger reality that the CBI had, in a dramatic turnaround after 50 days of detention, admitted that there was no evidence on record against Talwar from the very beginning. This raises serious questions about the legal safeguards for arrest and detention and the due process under which criminal courts in Ghaziabad repeatedly extended the remand in such a high profile case without examining the material on record.

The unprofessional conduct displayed by UP police underlines the need to implement the 2006 Supreme Court judgment on reforms meant to insulate uniformed personnel from political pressure.

Rather than addressing the systemic infirmities thrown up by the Aarushi case, the Supreme Court's decision on Monday to issue notices on a PIL focused on the role of the media seems to be a case of misplaced priorities. It is incongruous to accuse the media, as the PIL does, of prejudicing the investigation against Talwar when the police themselves were in most cases responsible for the canards spread against him.

The apex court would also have to bear in mind that in other sensational cases like Jessica Lall, Priyadarshini Mattoo and Nitish Katara, media activism is credited to have played a major role in securing justice to the victims. Nobody can quarrel with the proposition of striking a balance between the media's freedom of speech and expression and the accused person's right to fair trial. But is the apex court right in assuming that it could help ensure such a balance by laying down guidelines for the media?

It would be particularly hard to come up with media guidelines for the pre-trial stage when the investigating agency, as in the Aarushi case, may float all sorts of theories and point the finger of suspicion at persons who may turn out to be innocent. This is the reason why the media is rendered liable under the Contempt of Court Act only when the case is sub judice, meaning, after the investigation is over and the chargesheet is filed in the court. About 40 years ago, in A K Gopalan vs Noordeen, the Supreme Court tried in vain to fix this loophole in Section 3 of the Contempt of Court Act. Going beyond the limitation prescribed by the law, it ruled that even in the pre-trial stage, "publications made after the arrest of a person could be criminal contempt if such publications prejudice any trial later in a criminal case."

In a report submitted in 2006 on trial by media, however, the Law Commission acknowledged that the Supreme Court's activism in the 1969 Gopalan case to extend the contempt liability to the pre-trial stage has proved difficult to implement in practical terms.

This is not to suggest that the media can't be held accountable for contributing to the mess in the Aarushi case. In some extreme cases of misreporting, Talwar could well sue the errant media persons for defamation. But it would be wrong to bring guidelines that might have a chilling effect on the entire media to the detriment of public interest.

Date Posted: 8/21/2008