In a horrific accident that happened in New Delhi late on Sunday night, a speeding BMW X5 driven by a 24-year old rear ended into a Maruti Suzuki Wagon R, instantly killing the driver of the hatchback.
The accident happened in south Delhi’s Munirka area, when Shoaib Kohli, the driver of the CH registered BMW, lost control of the luxury SUV and crashed into the Wagon R that was running as an Uber cab. Both cars were on their way from Kalkaji to Vasant Vihar when they collided near Munirka flyover.
According to the report, the impact was so severe that the Wagon R was flung into the air and then landed on the ground where it skid for at least 50 meters. Shoaib, who was allegedly under the influence of alcohol, abandoned his BMW and fled the spot after the accident, but was traced and arrested soon after.
The accused is a resident of Panchsheel Park and works as a food analyst at a multinational company in Gurgaon.
The Wagon R driver, Nazrul Islam, who hails from West Bengal, succumbed to his injuries on the spot. The BMW X5 is said to be registered in Shoaib’s mother’s name, while his retired father used to work in the administration department of a leading private hospital.
Source: Hindustan Times
MEDIA TRIAL vs. FAIR TRIAL
Trial by media has created a “problem” because it involves a tug of war between two conflicting principles — free press and free trial, in both of which the public are vitally interested. The freedom of the press stems from the right of the public in a democracy to be involved on the issues of the day, which affect them. This is the justification for investigative and campaign journalism.
At the same time, the “Right to Fair Trial,” i.e.: a trial uninfluenced by extraneous pressures is recognised as a basic tenet of justice in India. Provisions aimed at safeguarding this right are contained under the Contempt of Courts Act, 1971 and under Articles 129 and 215 (Contempt Jurisdiction-Power of Supreme Court and High Court to punish for Contempt of itself respectively) of the Constitution of India. Of particular concern to the media are restrictions which are imposed on the discussion or publication of matters relating to the merits of a case pending before a Court. A journalist may thus be liable for contempt of Court if he publishes anything which might prejudice a ‘fair trial’ or anything which impairs the impartiality of the Court to decide a cause on its merits, whether the proceedings before the Court be a criminal or civil proceeding.
The media exceeds its right by publications that are recognised as prejudicial to a suspect or accused like concerning the character of accused, publication of confessions, publications which comment or reflect upon the merits of the case, photographs, police activities, imputation of innocence, creating an atmosphere of prejudice, criticism of witnesses, the Indian criminal justice system. It encompasses several other rights including the right to be presumed innocent until proven guilty, the guilt is to be proved beyond reasonable doubt and the law is governed by senses and not by emotions the right not to be compelled to be a witness against oneself, the right to a public trial, the right to legal representation, the right to speedy trial, the right to be present during trial and examine witnesses, etc.
In ‘Zahira Habibullah Sheikh v State of Gujarat, the Supreme Court’ explained that a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.”
Right to a fair trial is absolute right of every individual within the territorial limits of India vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is more important as it is an absolute right which flows from Article 21 of the constitution to be read with Article 14. The right to freedom of speech and expression in contained in article 19 of the constitution. Article 19(1) (a) of the Constitution of India guarantees the fundamental right to freedom of speech and expression. In accordance with Article 19(2), this right can be restricted by law only in the “interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
INTERNATIONAL CONVENTIONS ON FAIR TRIAL:
In the International context, the UN Basic Principles on the Independence of the Judiciary, at Article 6, which states the judiciary is entitled and required “to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.”
The principles enunciated in this Article are also stated in similar language in the International Covenant on Civil and Political Rights (ICCPR), which provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal” in the determination of any criminal charge or in a suit at law.
The ICCPR acknowledges that the right to a public trial is not absolute and that certain limitations on public access are necessary.
Article 19 of ICCPR confirms that freedom of expression is also a fundamental part of a democratic society. It elaborates that freedom of expression includes the freedom of the press and states that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
Under Article 10 of the European Convention on Human Rights, to which the UK and its other signatories are morally committed, the freedom of the press is paramount. Exceptions to that freedom may be made only such as are “necessary in a democratic society,” permissible only to the extent that they correspond to “a pressing social need,” and are proportionate to the end to be achieved.
POSITION IN INDIA:
Similarly there have been a plethora of cases in India on the point. The observations of the Delhi High Court in ‘Bofors Case or Kartongen Kemi Och Forvaltning AB and Ors. v State’ through CBI are very much relevant, as the Court weighed in favour of the accused’s right of fair trial while calculating the role of media in streamlining the criminal justice system:
“It is said and to great extent correctly that through media publicity those who know about the incident may come forward with information, it prevents perjury by placing witnesses under public gaze and it reduces crime through the public expression of disapproval for crime and last but not the least it promotes the public discussion of important issues. All this is done in the interest of freedom of communication and right of information little realising that right to a fair trial is equally valuable.”
Such a right has been emphatically recognised by the European Court of Human Rights:
“Again it cannot be excluded that the public becoming accustomed to the regular spectacle of pseudo trials in the news media might in the long run have nefarious consequences for the acceptance of the courts as the proper forum for the settlement of legal disputes.”
The ever-increasing tendency to use media while the matter is sub-judice has been frowned down by the courts including the Supreme Court of India on the several occasions.
In ‘State of Maharashtra v. Rajendra Jawanmal Gandhi’, the Supreme Court observed:
“There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law.”
The position was most aptly summed up in the words of Justice H.R. Khanna:-
“Certain aspects of a case are so much highlighted by the press that the publicity gives rise to strong public emotions. The inevitable effect of that is to prejudice the case of one party or the other for a fair trial. We must consider the question as to what extent are restraints necessary and have to be exercised by the press with a view to preserving the purity of judicial process. At the same time, we have to guard against another danger. A person cannot, as I said speaking for a Full Bench of the Delhi High Court in 1969, by starting some kind of judicial proceedings in respect of matter of vital public importance stifle all public discussions of that matter on pain of contempt of court. A line to balance the whole thing has to be drawn at some point. It also seems necessary in exercising the power of contempt of court or legislature vis-à-vis the press that no hyper-sensitivity is shown and due account is taken of the proper functioning of a free press in a democratic society. This is vital for ensuring the health of democracy. At the same time the press must also keep in view its responsibility and see that nothing is done as may bring the courts or the legislature into disrepute and make the people lose faith in these institutions.”
The Hon’ble Supreme Court in the case of ‘Rajendra Sail v Madhya Pradesh High Court Bar Association and Others’, observed that for rule of law and orderly society, a free responsible press and an independent judiciary are both indispensable and both have to be, therefore, protected. The aim and duty of both is to bring out the truth. And it is well known that the truth is often found in shades of grey. Therefore the role of both cannot be but emphasised enough, especially in a “new India,” where the public is becoming more aware and sensitive to its surroundings than ever before. The only way of orderly functioning is to maintain the delicate balance between the two. The country cannot function without two of the pillars its people trust the most.