Manish Tewari | Social media lynch mobs subverting course of justice

Article 21 of the Indian Constitution guarantees that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. This due process clause underscores that every accused has a right to a free and fair trail uninfluenced by societal biases and prejudices.

The cornerstone of criminal jurisprudence going back to antiquity holds every person shall be presumed innocent until proven guilty. This presumption of innocence travels through the judicial process as appeals wind their way through the hierarchy of courts. Till the time the highest court has not spoken the above dictum remains the gold standard of both criminal and civil law.

Coupled with both the above is the rule of sub judice. The phrase res sub judice comes from a Latin maxim which means the “under judgment”. Matters are considered to be sub judice once legal proceedings become active. Criminal proceedings are deemed in motion once a person is arrested, a warrant for arrest or summons has been issued or a person has been charged. The principle of sub judice, therefore, until conviction or acquittal.

Publication, broadcasting or dissemination of any material that is sub judice constitutes contempt of court, a crime that is punishable by a fine and/or imprisonment. In certain foreign jurisdictions, third party costs orders have also be awarded against media organisations, enabling courts to recover the costs of any trial aborted as a result of the prejudicial reporting.

All this is necessary to ensure that any decision with regard to an accused’s life or liberty does not get influenced by any extraneous and accentuating circumstances or biased and prejudiced reportage. Originally designed to insulate jurors during jury trials, its application is all the more germane given the 24X7 media eco-system that now envelops humankind more so when social media has turned everybody and their grandmother into a broadcaster albeit without any restraint or responsibility.

Even legislative institutions, by and large, respect the rule of sub judice. Members cannot refer to any matter of fact on which a judicial decision is pending. Discussions on matters pending adjudication before courts of law are avoided on the floor of the House, so that courts can function uninfluenced by anything said outside the ambit of judicial proceedings in dealing with such matters.

However, such sacred rights have been reduced to a farce because print, broadcasting, radio and digital media are engaged in unrestricted and competitive voyeurism predicated upon bolstering their faltering financial bottom lines. They implement their own judge, jury, prosecutor and executioner templates against any hapless person that they have conveniently predetermined as the culprit. Breathless anchors and illiterate online personalities arrogate to themselves the role of the judiciary. They commence investigating the “facts” and hand out verdicts much before the courts get to hear even a single fact.
This trend saw in its most vulgar manifestation last year when a young actor unfortunately died of unnatural causes. Corporate business models of news channels, under the guise of “news” reporters swooped in like vultures distorting facts and purveying fake news. Such was intensity of sensationalism that a division bench of the Mumbai high court in a public interest litigation was constrained to observe that “media trial [that happens after judicial proceedings begin] interferes with administration of justice and hence amounts to “contempt of court” as defined under the Contempt of Courts Act, 1971”.

The problem is not limited to the pre-trial stage only. The image that the media creates, lingers even after the person has been acquitted by the courts. In case of Mrs Uma Khurana, a teacher, who on false suspicions propounded by the media, that she had allegedly forced students into prostitution, was attacked by a mob. Even though it was later proven in court that the allegations were fabricated and the lady was acquitted. However, what once becomes lore on social media is hard to take down with even unimpeachable facts or court judgments.

There is yet another problem that has become endemic today. Lynch mobs on social media with an entitled sense of self and amplified megaphones to boot regularly run down court judgments and those who have gone through exhausting and financially crippling legal proceedings just because they disagree with a particular judicial pronouncement.

It would be a trite to say that every court judgment is gospel and that is why the pyramid of appeal courts exist; however, to continue vilifying someone who has been “honorably exonerated” by a court of law is tantamount to victim shaming in the reverse, while subverting the majesty of the law concurrently.

The correct place to articulate such disagreements with a judgment is to approach the court above the one that has pronounced that particular order. Constructive criticism of a judgment in the public space has also never been frowned upon.

The Supreme Court in A.K. Gopalan v. Nordeen, 1969, held that a publication which is made after the “arrest” of a person amounts to contempt if it is biased to the suspect. Similarly, the apex court in M.P. Lohia vs State of West Bengal has pointed out that freedom of speech and expression sometimes may amount to interference with the administration of justice, and articles appearing in the media that could be prejudicial should not be permitted.

Former Supreme Court Justice Sikri’s prescient observation that judging is “under stress” in the digital era lies at the very heart of the dilemma. He said that “when an issue is raised, a petition is filed, before it is taken up by the court, people start discussing what should be the outcome”. Not “what is” the outcome but what “should be” and that has an influence on how a judge decides a case.
The Right to be Forgotten is now a part of the draft Personal Data Protection Bill that will allow users to de-link, limit, delete or correct the disclosure of their personal information held by data fiduciaries. Even though right to privacy is now a fundamental right the grave challenge today is how to prevent and, if necessary, proscribe both identified and invisible trolls in the virtual civilisation from launching vituperative and scandalous campaigns against court orders and the “subjects” of those judicial pronouncements. Does Article 19(1) (a) permit such continued abuse?

Undermining the rule of law by “personalities of the Internet” also constitutes a direct attack on the institution of judiciary and is subversive of democracy. The rules of engagement need to be revisited.