Oh, behave

The media8217;s conduct during the police investigations into the murder of Aarushi Talwar was an excess that was...

The media8217;s conduct during the police investigations into the murder of Aarushi Talwar was an excess that was waiting to happen. Introspection, however must avoid sweeping censure as well as mitigation of the gravity of the excess. It must pinpoint where the practices depart from the law. Above all, it must be constructive.

The remarks made by Justice Bilal Nazki of the Bombay High Court in the Grover murder case reveal the gravity of the malaise but also provide a clue to the cure. 8220;The media is conducting the trial with the help of the police8221;; very much as it did in the Talwar case. The judge was hearing a petition filed by an accused in the Grover murder case for a copy of her confession to the magistrate. The court asked the police 8220;You give the confessional statement to the press but not to the accused?8221; The kind of statements made by police officials in the Talwar case constitute prima facie contempt of court as does its reportage by the media.

An authoritative legal work records a case in which 8220;a police officer was found guilty of contempt by stating at an organised media conference that a suspect had admitted committing the murders with which he was charged8221;. In India the police assist suspects to confess before TV cameras. Chief Justice Jordan of Australia8217;s High Court ridiculed the idea 8220;that a junta of police officers and journalists can hold a sort of preliminary setting of the issues likely to be raised at the hearing.8221;

The police has a duty to inform the public of the progress in crime investigation. It has no right to comment on the suspect8217;s character or background. The media can criticise the ineptitude or tardiness of police investigations without prejudging the guilt or innocence of the suspect.

Some bad practices have crept in lately. The police have no qualms about branding a suspect as 8220;gangster8221;, 8220;smuggler8221; or 8220;terrorist8221; to the media. Imputation of guilt before conviction is a gross contempt of court. In the UK, television channel ITN was hauled up for broadcasting that an arrested suspect was an escaped IRA terrorist. It escaped punishment because this was not repeated and occurred nine months before the trial the 8216;fade factor8217;. The BBC was less fortunate when it imputed guilt in a high profile case more than once. It is the totality of the circumstances that matter. A radio journalist who in three broadcasts implied the guilt of a priest arrested on sexual offences charges was punished through the trial was eighteen months away. The word 8220;allegedly8221; did not help a TV reporter who said that a suspect had 8220;admitted to the murder8221;.

A hoary work on the subject says: 8220;it is a serious contempt to publish the criminal record of an accused or to comment on the previous bad character of the accused before trial. Similarly publication of a confession to a crime made by an accused out of court, even if the confession is true, is a serious contempt of court8230;8221;

Within these rules, investigative journalism can be helpful in exposing crime, especially fraud. Assertion of innocence is as wrong as imputation of guilt. The Premier of New South Wales was fined 25,000 for contempt when he said 8220;I have a deep conviction that Justice Murphy who was awaiting trial is innocent of any wrong-doing8221;.

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However, 8220;encouraging the initiation of a prosecution is not by itself prejudicial to the administration of justice8221;. The decision involves a consideration of the public interest. Geoffrey Robertson Q.C. and Andrew Nicol Q.C. write in their classic on media law 8212; 8220;it was in the public interest that the media should be free to expose wrongdoers and demand that they should face trial. To render them liable for contempt at this stage would deter them from providing a useful public service8221;.

The law does not cover everything. The media must draft its own code of conduct.

The writer is a constitutional expert and commentator