Without going into merits and demerits of the case, I would like to make following comments with respect to three arguments advanced in the recent controversy revolving around the two articles published in the ‘Outlook’ and the on-line daily ‘The Citizen’ relating to a CCTV Footage in Tejpal case :
Firstly, it has been alleged that the said two articles amount to be a renewed media campaign that threatens the course of justice. It is beyond my comprehension as to how publication of articles, views and opinions can threaten the course of justice! The Supreme Court many a time, especially in the matter of Zee News Vs. Navjot Sandhu (2003) has stated that ‘judges do not get influenced by propaganda or adverse publicity’, and that cases are decided on the basis of evidence on record. For example, in the Parliament attack case in spite of heavy propaganda in the media against the four accused, including the teacher S.A.R. Gilani who was accused as the mastermind of the ‘attack’- even a documentary was made to that effect and repeatedly telecast by certain channels, the High Court and Supreme Court acquitted him along with two other accused.
Secondly,I am more worried about the pernicious argument which stresses that bail should not be granted to the accused in rape cases because there is no ‘witness-victim protection mechanism’ and if accused gets bail, he may threaten witnesses or tamper evidence. It is such like arguments which have led the Governments to introduce provisions of ‘Protected witnesses’ in the lawless laws like TADA & POTA in the past and in the UAPA and the NIA Acts at present. Under such provisions name and address of the ‘protected witness’, who may even be complainant or victim, is not disclosed to the accused, ‘witness’ is produced in court in camera, stands behind a screen where the ‘witness’ is able to see the accused but the latter is not, and thus his evidence is recorded. The accused is confronted with an almost insurmountable handicap in being deprived of the necessary information permitting him to know the identity of the witness, to test his reliability or to cast doubt on his credibility. Such procedure is unfair and against the principles of natural justice, and human rights activists are agitating against it. If our feminist and civil liberty activists start harping on demanding ‘witness -victim protection mechanism’, I am afraid such provisions as available in UAPA and NIA Acts may soon be extended to the rape laws.
Thirdly, regarding the argument that such articles are deliberate attempt to influence public opinion against the complainant’, I would like to say that it is an insult to our fellow citizens saying that they cannot be trusted to read or to understand or to discriminate. Free expression of opinion is essential to the very existence of a democracy. Free expression and free discussion even of ideas unpalatable to us enable us the testing of our own prejudices and preconceptions.
N D Pancholi is an advocate in the Supreme Court of India and President, PUCL