CJI Misra delivered the presidential address at an International Law Association event in New Delhi Wednesday. Here’s the full text of his speech.
My esteemed peers, professor N.R. Madhava Menon, the chief speaker of today, Pravin H. Parekh, organising secretary, International Law Association, Regional Branch, India, Ravindra Shrivastava, senior advocate, learned members of the Bar, young friends from the Bar, friends from the electronic and print media, ladies and gentlemen.
The Indian judiciary which comprises of the union judiciary, the high courts in the states and the subordinate judiciary owe their existence to Article 124 to Article 147 and to Article 214 to Article 237 of the Constitution, respectively. These provisions of the Constitution have provided for a systematic judicial administration in our country. Various judicial and quasi-judicial bodies have also been established to resolve the matters between the citizens; citizens and the state; and various governmental departments and agencies also.
Today, the Indian judiciary is one of the strongest in the world and this sense of strength can be attributed to the faith and confidence that the people of India repose in the judiciary. Judiciary is perceived as the protector of rights. The court expanded the right of access to justice by lifting this right spot the pedestal of a Constitutional right. The horizon of Constitutional rights has grown touching the very particle of human being. The main emphasis has been on making basic economic, social and cultural rights a meaningful for the large populace who are living a life of poverty and destitution.
Coming to the topic of today’s lecture it needs to be understood that it is the compound and collaborative duty of both the courts as well as that of the media to guarantee and ensure a fair trial. The right to a fair trial is an inseparable and integral facet of personal liberty which is protected under Article 21 of the Constitution. ‘Fair trial’ as a concept requires an independent judiciary, free atmosphere, pro-justice prosecutor and fair investigation. Fair trial requires that the court should act as the guardian of law which begins its proceedings on the presumption that the accused is innocent.
Fair trial is the very core of a just and equitable society and aids in furthering the tenets of justice, equality and fairness. Any adjudication devoid of impartiality, unbiasness, equal opportunity of hearing, procedural regularities hits the very root of the adjudication. It is very fundamental to sanctity of rule of law and purity of democracy.
International instruments such as Universal Declaration of Human Rights (Articles 10& 11); International Covenant on Civil and Political Rights (Articles 14 &16); Convention on Rights of Child (Article 40 (2)) and other human rights instruments make it a mandatory for the state parties to ensure fair trial. Even in the time of armed conflict, fair trial is guaranteed in pursuance of Geneva Conventions.
The concept of fair trial is something which is required as a basic ingredient to uphold the majesty of law. The principle of fair trial is also well incorporated in our civil and criminal law legislations along with the administrative law principles. The salient features of fair trial include (i) presumption of innocence (ii) prohibition on double jeopardy and (iii) right to free legal aid. Other principles of fair trial include but are not limited to speedy trial, protection against illegal arrest, proceedings in the presence of the accused, right to bail, right against self-incrimination, opportunity to cross examine and right to file appeal to name a few.
Fair trial is not limited in terms of fairness to the accused alone but also to the prosecution agencies in criminal cases and in civil cases the concept of fair trial demands fairness for both parties involved. Elaborating the same the Supreme Court in State of Haryana vs Ram Mehar and others said, “the concept of the fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. It is not rigid and there cannot be any straitjacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other… Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systematic order of conducting a trial in accordance with Code of Criminal Procedure or other enactments get mortgaged to the whims and fancies of the defence or the prosecution.
“The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority, the courts have significantly an eminent role. A plea of fairness cannot be utilized to build Castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to user in the nemesis of the concept of trial as such.”
Let us now also allude to the role of the media as the fourth estate in contributing towards ensuring fair trial and equitable distribution of justice. Freedom of press in a democratic society is the mother of all liberties. There is no doubt if freedom of expression is one of the most cherished and valuable rights guaranteed under the Indian Constitution. It includes both the right to receive and disseminate information, that is the right to know, and the right to inform.
The freedom of speech performs a pivotal role in the generation of public opinion on matters of national significance encompassing the social, political and economic affairs dominating a country. Alternatively stating, freedom of speech is crucial for the creation of an informed citizenry, capable of contributing to both, political and non-political issues, vital for the development of any knowledge based society. Human rights law imposes duties on states to ensure enabling environments for freedom of expression and to protect its exercise. The duty to ensure freedom of expression obligates states to promote, inter alia, media diversity and independence and access to information. Additionally, international and regional bodies have urged states to promote universal internet access. States also have a duty to ensure that private entities do not interfere with the freedoms of opinion and expression.
Media has mammoth task of passing on information to the public at large, information regarding the events of the world, nation, government and instrumentalities of government and anything relating to the affairs of the state and governance. Media has a responsibility of maintaining objectivity while reporting especially in cases which can stir the emotions of the citizens. Paramount consideration should be given to the ethics and professional morality.
In the recent times there are some challenges that need to be tackled with respect to media houses along with social media. But these challenges should not be used as an alibi to scuttle the freedom of press and individuals. However, the protection should not frustrate the valued principle of presumption of innocence which is the fulcrum of criminal jurisprudence in our country. True it is, there are certain statutory presumptions against the accused but that does not demolish the value of fair trial. Needles to remind that in recent times, in order to sensationalize the reporting and to increase its commercial value, the media starts naming and blaming the suspect or accused. The subjudice doctrine has to be respected. The culture pre-judging by formation of opinion should be avoided. It is necessary to make a balance between the constitutional guarantee of free media on one hand and the individual right to fair trial on the other.
Though our judicial system relies on the competence, impartiality and fearlessness of the trial judge but unrestrained media coverage has the tendency to sway the public opinion and indirectly influence the trial.
In the article titled Courtroom Closure and the Rights of the Free Press, the author Linda J. Douglas writes:
“The Supreme Court has recognised that a responsible press is “handmaiden of effective judicial administration.” Zealous reporting enlightens the general public on the law and the functioning of the judicial system. Reporting also may be the only effective check on the defendant’s right to a fair trial. The press guards against the miscarriage of justice by subjecting the judiciary to intensive public scrutiny and criticism. Freedom of the press thus serves a dual function: Protection of the public’s right to know and the defendant’s right to a fair trial.”
What needs to be understood is that the freedom of expression guaranteed to the media and the right to fair trial as an innate facet of Article 21 of the Constitution are not competing or opposing rights. Rather, they are supplementary rights aimed to create an egalitarian social order. It is only with this idea in mind that we can achieve a workable balance.
There is recent surge in the mob lynching based on the viral texts on social media and this leads to mobocracy and loss of individual life in certain cases. This blatant reliance on social media needs to be checked by the citizens themselves to ensure peace and order in the society. The Indian media houses must introspect and develop a sense of responsibility and maturity. Also, the citizens of the country need to be more responsible and filter the information as per their judgement before relying and acting on the same thereby, paving a way to ensure fair trial with greater sense of responsibility. The proceedings are to be reported scrupulously. The members from the media should be sensitive to the fact when they enjoy their freedom of expression, their responsibility should constantly remind them the liberty of the other is at stake. Self-realisation is the best acceptable principle in such a sphere. While saying so, I must state that reminding the media about their sensitive role does not mean gagging the press. The striking of balance is necessary so that jurisprudence behind the fair trial can sing the song of true liberty.
The motto that has to be followed is report but do not sensationalise. Comment but do not deliberately create an atmosphere of bias and express freely but do not render a judgement, for all these are the impediments on the fair trial.
Let the resplendence of liberty shine equally on both sides.