IT is a fundamental principle of criminal law that a person is presumed to be innocent until his guilt is proved in a court of law beyond reasonable doubt.

The benefit of any doubt goes to the accused. This principle is flagrantly violated when the police boast before the media of their ‘success’ in arresting a person allegedly involved in a heinous crime and provide, for good measure, the ‘evidence’ in support of their accusation well ahead of his trial. Accusers become judges.

In former days, this reprehensible practice was unheard of. The archaic phrase ‘prejudicing the mankind’ before trial, criminal or civil, constituted contempt of court. It was visited with stern punishment. Latterly, courts in India have become lax and the police have become garrulous in reckless disregard of the rights of the person affected.

It is exactly a month today since a noted journalist Muhammad Ahmed Kazmi was arrested in New Delhi on March 7. The police alleged his complicity in a terrorist attack on an Israeli diplomat’s car on Feb 13. ‘Informal’ media briefings by police officials followed immediately thereafter and were fully reported in the press and more so on TV.

Kazmi was highly regarded by his peers in the media and they strongly protested not only against his arrest, but also the sustained flow of leaks to the media by police officials, without attribution.

Aimee Ginsburg, the Indian correspondent for Israel’s largest daily Yedioth Achronoth, courageously wrote early this week: “I have found the entire story quite fishy from the onset and it seems to be getting fishier, all the way to the arrest of my colleague Syed Mohammad Ahmad Kazmi in Delhi a few weeks ago. I do not know if he is guilty of anything or not.

“I do know this, though: I do not like the merry climax of excitement in the media establishment every time something explodes, giving us the chance to talk about terrorists again; and I certainly do not like having to write news stories filled with facts fed to us by people who expect us just to write what they have fed us whether we believe a word of it or not. I was not the only journalist feeling manipulated during this whole story, and I said so to my editors.”

This was a clear reference to the police.

Maoists (also called Naxalites since the movement began in Naxalbari in West Bengal) suffer the same fate. Sympathisers in academia are picked up and paraded as advocates of armed revolt.

Last June in Mumbai, J. Dey, a highly regarded crime reporter, was shot dead by motorcycle-borne assailants. A few weeks later, Jigna Vora, deputy bureau chief of a daily, was arrested for alleged abetment of the crime. Police theories flowed profusely after both events, only to be exposed as wrong later.

Matters do not stop there. Cooperative TV channels have aired ‘confessions’ by alleged Kashmiri militants, no doubt with the cooperation, if not instigation, of the police.

All this is a scandalous violation of the fundamentals of the criminal justice system. Reports arouse public wrath against the hapless suspect and eventually prejudice the trial. Two distinguished lawyers, Geoffrey Robertson, Q.C. and Andrew Nicol, Q.C.

who specialise in cases of human rights, point out in their erudite work Media Law that “when the principle of free speech collides with the principle of fair trial, the former must give way”.

Convictions have been set aside by appeal courts because media coverage rendered a fair trial impossible. Police briefings ahead of the trial are worse still. The citizen tends to be less sceptical of the police than he is of press comment.

That in a democracy the police have a duty to inform the public is beyond question. But all that it needs to do is to publicise the fact of the arrest, the identity of the person arrested, and the charges likely to be brought against him — and no more.

Leaks or even attributable briefings while the investigation proceeds are highly improper and, indeed, illegal. They constitute a clear case of contempt of court and the officials should be hauled up by the courts promptly and awarded deterrent sentences.

Media comments on a pending trial impair the course of justice. Police comments during the investigation ensure that the course does not even commence properly and fairly.

There is another facet of this game of what a jurist called “manipulation of the media by the parties”. Both the US, Supreme Court and the Court of Appeal in England have deprecated the practice of lawyers arguing their client’s case before TV cameras.

When they do so in courts of law, they function as advocates. When they perform before the media, they operate as PROs.

However, some lawyers have started behaving far worse than that. They have presumed to act as judges ahead of the trial and refused to act as defence counsel in unpopular causes. Bar associations have passed resolutions in their support. This has a greater impact on the public mind than comments by the police.

The finest statement of the duties of counsel was made by Thomas Erskine in his celebrated defence of Tom Paine when he was tried in 1792 for a seditious libel: “From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end.

“If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment, and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel.”

The writer is an author and a lawyer based in Mumbai.

Updated Apr 06, 2012 11:04pm

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