Updated: September 10, 2020 8:27:14 pm
(Written by Anita Tagore)
Indian democracy is marked by a paradox: It is an arena of conflicting demands and pulls of different social groups which are marginalised because of their caste, religion and gender identities. As a critical public sphere, the media has represented such asymmetries in the democratisation processes and also been an avenue for meaningful civic engagement.
The governmentality of media practices has enabled, regulated and justified a specific form of rationality that defines their goals and the means of achieving them. Prominent examples are the several media trials in both television channels and social media that have acquired disproportionate influence over public sphere interactions. They have opened up broader normative questions about the tabloidization of media. Such neo-liberal media practices reproduce subjects according to the needs of market forces and create social conditions that legitimise such skewed representations as normal. Emotional excitement or delirium allows individuals to be increasingly apathetic to the collective conscience. Duties are no longer accepted carte blanche and moral rules no longer seem binding.
The alleged suicide of a young promising actor, Sushant Singh Rajput, has stirred a hornet’s nest for Bollywood. The continuous dramatised fights on TV speculating about the death of the actor have framed his partner Rhea Chakraborty as a “conniving murderer” despite the matter being part of an investigation. The “unaccountable power” of the traditional and new media giants reflect the ugliness of unequal power relations of our society. The essentialist construction of subjectivities like virtuous womanhood, dominant ideals of femininity and masculinity and frequent slandering are a subtle subtext of the Twitterati wars. Trolls have accused Rhea Chakraborty of being a “gold digger” or Bengali black magician, depriving the couple of their agency of taking decisions in a shared household based on a hetero-normative premarital relationship. The privateness of their relationship is now suspect in the public eye more so because it was not solemnised to marriage and there is visible antagonism between the two families. The media has not only fed on this turpitude but also unleashed a hate campaign till Chakraborty was arrested on charges of drug abuse — not murder. Images of camerapersons inappropriately pouncing on Chakraborty while on her way to NCB shows a ruthless misogynist media apologetically invading her private space.
The daily dose of prime-time participation by news channel anchors in these media trials has created a moral panic in the public. The hyper-focus on the deconstruction of truth is prejudicial, patriarchal and geared towards political gain. Is a coercion-free space for deliberation possible? It has brought to the forefront of the debate on free speech versus free trial. The suicide of rape accused activist, Khurshid Anwar in 2013 is testimony to the targeted vilification campaign by the media without allowing the due process of law. I could give many more examples of media lynching and perversion that has provoked mental health issues and discrimination in the victims.
At this juncture, it is critical to look at how the judiciary has reinstated constitutional trust and spirit of rule of law in the debates centred on free trial norms in India.
In Express Newspapers vs. Union of India, the Supreme Court extensively dealt with freedom of the press and stated that it cannot be unbridled. Like other freedoms guaranteed by the Constitution, it is subject to reasonable restrictions. The trial by media needs to be understood in the framework of Article 19 (1)(a) and Article 19(1)(2) read with Article 21. The Law Commission Report on “Trial by Media: Free Speech and Fair Trial under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)” laid down the contours for a balance of interests between the freedom of speech and expression on one hand and undue interference with the administration of justice on the other hand. Freedom of media to express can be circumvented to a fair trial.
Similarly, in Inspector Anil Kumar v. M/S I Sky B and Ors and Anukul Chandra Pradhan v. Union of India, the Court pointed out that the presumption of innocence of an accused is a legal presumption and should not be annihilated through the process of media trial while the investigation is pending. Any media trial would impinge upon the protection granted to an accused under Article 21 of the Constitution.
Two fundamental principles of natural justice are Nemo debet esse judex in propria causa (the doctrine of bias) and Audi alterem partem (to hear the other side). In Zahira Habibullah v State of Gujarat, the Court, in no uncertain terms, defined a fair trial — a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm are nominal requirements of the procedure. There can be no place for bias or prejudice for or against the accused, the witnesses or the cause which is being tried. Premature judgments of guilt or innocence in a media trial will be the denial of a free and fair trial. Any interference in the judicial process that has an impact on the sentencing process is unfair. The danger of invasion of the right to privacy of the accused will also pose a threat to justice.
In the re-imagination of new India, how should the media be? It should not engage in malicious campaigns against dissenters, trust deficit and deviance should be replaced by robust civic engagement through responsible and responsive media practices, and empathy should be the core value of media freedom that would strive for sustaining democratic togetherness.
The writer is Assistant Professor, Kalindi College, University of Delhi
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