It is indisputable that in a conflict between fair trial and freedom of speech, fair trial has to necessarily prevail. It is because of the legal principle that any compromise of fair trial for an accused will cause immense harm and defeat the justice delivery system.
Since pre-trial publicity can derail a fair and speedy trial, the judiciary has to balance the competing fundamental rights. The right to a fair trial of the accused needs to be secured and guaranteed. Pre-trial publicity, as widely recognised, is injurious to the health of a fair trial.
The Delhi high court, on Monday, restrained the Delhi Police from issuing further communication naming any accused or any witness till the charges, if any, are framed and the trial is commenced in any of the cases concerning communal riots, which it termed as “undoubtedly sensitive cases”.
Justice Vibhu Bakhru, while disposing student activist Devangana Kalita’s petition, however, did not consider it apposite to restrain the police from issuing statements at the stage of the trial.
Justice Bakhru’s refusal to do so stems from the fact that it is in accordance with the guidelines issued by the Centre in 2010 for briefings by the police, to protect the rights of the accused. However, he clearly disapproved of the Delhi Police’s attempt to justify its “Brief Note”, issued on June 2, maligning Kalita’s innocence, before she was proved guilty. Ironically, he also declined to direct the Delhi Police to withdraw its allegations contained in the “Brief Note”.
In her petition, Kalita sought a writ of mandamus directing the Delhi Police to not leak any allegations pertaining to her to the media pending investigation, and thereafter during the trial. She also sought a writ of mandamus directing Delhi Police to forthwith withdraw all allegations contained in the “Brief Note”.
Kalita, a student at Jawaharlal Nehru University, is currently in judicial custody in one of the four cases registered against her in connection with her protests against Citizenship Amendment Act (CAA), and her alleged involvement in hatching a conspiracy to cause riots near Jafrabad Metro Station in February.
The June 2 note referred to the allegedly active role played by the ‘Pinjra Tod’ group, in which Kalita is an activist, in the conspiracy, and to the group’s links to a larger conspiracy connected to “India Against Hate” group and Umar Khalid.
The note also mentions that a WhatsApp message was found on the phone of an accused revealing the conspiracy and the extent of preparation for causing riots in Delhi. The content of the WhatsApp message suggests the actions that should be taken by household women in case of riots (Dang eke halat me ghar ki auratein kya haren).
Kalita contended that the Delhi Police selectively leaked information to the media with a view to spread false propaganda against her and prejudice public opinion. She claimed that several media outlets were relying on this note, to decry her as guilty for her alleged role in the violence that had broken out in North-East Delhi.
Kalita’s submission was that by circulating the note and selectively leaking the contents of the charge sheet, the Delhi Police had caused immense damage to her reputation and her fundamental right to a fair trial as it has weakened the presumption of her innocence.
The Delhi Police, in its response, claimed that it issued the note to answer the media campaign carried out by members of the Pinjra Tod group and their supporters to sway the public opinion against the Delhi Police. The campaign was designed to make the public believe that the Delhi Police was persecuting Kalita to muffle the voice of dissent and solely because she had participated in protests against the CAA.
The Delhi Police alleged that some of the messages circulated in social media also attributed religious bias to it. “Such a campaign would have the effect of adversely affecting the reputation of the Delhi Police and public faith in the authorities….in such circumstances, it was necessary for the Delhi Police to issue the impugned note to inform the public that the petitioner was not being persecuted but prosecuted on the basis of investigation and evidence that she was involved in commission of offences”, the Delhi Police said in its defence.
The Delhi Police then justified its action of naming her in the note because Kalita did not dissociate herself from the Pinjra Tod’s campaign.
What is clear from the Delhi Police stand before the high court is how it has mastered the art of media trial over the years. The press note, if the Delhi Police’s claim is to be interpreted rightly, has to be considered as the tip of the iceberg.
As its counsel, Additional Solicitor General, Aman Lekhi told the high court: “If it was the intention of the Delhi Police to run a media campaign against her and to prejudice fair trial, it would not have confined itself to issuing a singular note and that too after waiting till the stage of filing the charge-sheet”.
What was left to be inferred was that the Delhi Police has a history of running media campaigns against the accused in similar cases, if it wanted to and that it had the potential to do so in this case too; but it was not inclined.
When the high court asked the Delhi Police to confirm the source of the unsigned note issued on June 2 on its behalf, it filed an affidavit on July 6, which sought to declare Kalita as guilty of several offences. The high court found some contents of the affidavit as “not affirmations of truth but more a matter of opinion”.
The judge clearly disagreed with the Delhi Police’ justification for the note thus:
“This averment is based on an erroneous premise that merely because the sympathizers of the petitioner have issued messages in social media that she is being maliciously persecuted or demanded her release, it would entitle or justify the investigating agencies to proclaim that the petitioner is guilty of offences even at the stage, where the investigation is not complete. There is a cardinal difference in attempting to influence formation of an opinion that an accused is not guilty and the State attempting to influence an opinion to the contrary. An expression of an opinion that an accused is not guilty does not destroy the presumption of innocence that must be maintained till an accused is tried and found guilty of an offence. A media campaign to pronounce a person guilty would certainly destroy the presumption of innocence. The approach that it would be justified to fuel a media trial merely because the sympathizers of the accused are proclaiming his/her innocence, cannot be countenanced.”
Justice Bakhru even expressed his agreement with the dissenting judgment authored by Supreme Court Justice D.Y.Chandrachud in Romila Thapar v Union of India. Justice Chandrachud observed thus in that dissent:
“The use of the electronic media by the investigating arm of the State to influence public opinion during pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt.”
The police or any other agency cannot use media to influence public opinion to accept that the accused is guilty of an alleged offence while the matter is still being investigated, Justice Bakhru held.
But he added that the question whether the media reporting or disclosing of information by the investigation agency has the propensity to prejudicially affect fair trial would depend on the facts of each case. The relevant factors to be considered would include the nature of offence for which the accused is being tried; the stage of investigation/trial; the nature of information; the vulnerability of the persons involved (accused, witness, victim or in some cases even the investigators); and the intention and purpose of circulating information.
In Para 60, Justice Bakhru noted:
“The fact that the petitioner had been arrested in FIR No.50/2020 has been well publicised. Therefore, her being named in the impugned note cannot be considered to be prejudicial to a fair trial that may ensue. It is also pointed out that the petitioner’s name features in column No.12 of the charge sheet and the allegation that the petitioner was involved actively in hatching a conspiracy to cause riots is articulated in the charge sheet….It does appear that the said allegations have been faithfully lifted from the charge sheet as this Court is informed that the name of the group referred to in the impugned note is incorrectly mentioned as “India Against Hate” instead of “United Against Hate’”.
In Paragraph 62, Justice Bakhru said:
“Although, it is correct that the petitioner has been effectively declared to be guilty of the said conspiracy, however, the press release must be read in its context – a chargesheet containing the said allegation in being filed in Court. This is indicated in the opening paragraphs of the impugned note. The police authorities are not the adjudicators of guilt or innocence of any person… Thus, what is reported is their inference from the investigations, which is articulated in the report (the charge sheet) filed before the concerned court.”
After indicting the Delhi Police clearly for its lapse in issuing the note, Justice Bakhru concluded that it does not violate the fundamental rights of Kalita or provisions of any law. “The reasons that prompted the respondent to issue the impugned note are not subject to judicial review provided they are bonafide and do not violate the petitioner’s right”, he added. Clearly, it amounts to diluting his own indictment of the Delhi Police for the impugned note.
Justice Bakhru also accepted the clarification of the Delhi Police that the WhatsApp chat as disclosed in the impugned note was not recovered from her phone. He, therefore, went on to dismiss her plea for setting aside the impugned note, because it is for the trial court to determine whether the WhatsApp chat led to the inference of conspiracy.
Justice Bakhru agreed with the Delhi Police’ claim that the impugned note was issued at the time of filing of the chargesheet, and therefore, does not violate any guidelines. The Office Memorandum, issued by the Centre on April 1, 2010, stipulates that briefing by the police should normally be done only on four stages of the case – registration, arrest, chargesheeting and the final outcome.
Ironically, the very Office Memorandum issued by the Centre in 2010 which Justice Bakhru relies on, has been found to be outdated by the Supreme Court in the case of People’s Union of Civil Liberties v State of Maharashtra [Criminal Appeal No.1255/1999].
On March 29, 2017, a bench of the then Chief Justice of India, J.S.Khehar, and Justices D.Y.Chandrachud and Sanjay Kishan Kaul held in this case thus:
“We are of the view, that the Office Memorandum of the Government of India, dated 01.04.2010, requires to be appropriately updated. We, therefore, hereby direct, the Government of India, to prepare a fresh Memorandum of Police Guidelines, on ‘media briefings’ which would take into consideration the rights of the accused, so as to ensure, that their defence is not prejudiced in any manner, during the course of trial. Likewise, to ensure that the sensitive rights of victims of crime, are not unfairly compromised….Post for hearing after six weeks. Fresh guidelines be placed on record in the meantime.”
The case is still pending, and has not been heard after March 29, 2017, despite clear directions by the bench for placing of fresh guidelines by the Centre.