How political power is shaping National Herald narrative

THE charge-sheeting of the Gandhis and others by the Enforcement Directorate in the National Herald case for alleged money-laundering and criminal misappropriation of public property has invited countrywide protests by the Congress and its sympathisers. They see the criminal case as one without a basis in fact or in law and a brazen act of political vendetta. The protest by the principal Opposition party has elicited a counter-response by the ruling dispensation.

Speaking through its former Law Minister Ravi Shankar Prasad at a special press conference, the BJP alleged that the accused had misappropriated public property through devious devices and were now seeking to intimidate the ED.

The former minister, embarking upon an elaboration of the prosecution’s case on the basis of selective leaks, was recently reported by the media as querying: “If public property worth thousands of crores is misappropriated, then why are you protesting and calling it vendetta?" The BJP spokesperson is also reported to have said that no one had a “license to loot." Another Cabinet minister in office has reportedly asserted: “It is an open and shut case of fraud, corruption and money laundering."

Clearly, the accused have been condemned through the media, without trial and even without an opportunity of being heard at the time of cognisance of the chargesheet, which was fixed for May 8. The Special Judge trying the case has since held that “the right to be heard at any stage of the proceedings breathes life into a fair trial."

Therefore, the usurpation of judicial function by the government’s spokespersons to conclude at the inception of the trial itself that the accused had misappropriated property worth thousands of crores offends against the first principles of liberal democracy and constitutional justice.

Such assertions by senior representatives of the government against political adversaries facing criminal charges have fuelled an unrelenting trial of the accused in the print, electronic and social media, which could interfere with the course of justice in several ways.

Repeated claims by the BJP of cheating, fraud, misappropriation and money laundering by the accused, when the trial is at its initial stage, could create a hostile public perception against them and influence the judgement of those charged with conducting a judicial trial.

Extensive discussion in the media of selective parts from the prosecution complaint, of which judicial cognisance is yet to be taken and for which the case was adjourned to May 8, can cause presumptive prejudice to the accused, which is proscribed in several judgements of the highest court (Sahara, 2013 and Manu Sharma, 2010, etc). In Manu Sharma, the Supreme Court declared that the “presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial." And, the Constitution Bench in Sahara has ruled that “the presumption of open justice has to be balanced with the presumption of innocence which is now recognised as a human right."

The accusatory tone and tenor of senior members of the ruling party in their media interactions concerning the case impairs the fundamental right of the accused to fair trial and presumed innocence, apart from violating their sacrosanct right to reputation, privacy and dignity.

Restraint in condemning leaders of political parties without a judicial finding of criminal culpability would ensure that political parties, the life blood of democracy, and their leaders are not discredited without a trial in accordance with law (Article 21). This would afford minimal protection to all political parties against the retributive inclinations of those in power and enhance the quality of democratic engagement.

Lest our democracy is wasted and weakened from within and the nation’s founding ideals allowed to wither, the National Herald case should be a test of the republic’s adherence to the ideal of equal justice for all. This case will test the inviolability of procedural justice, integrity of the judicial process and the constitutional promise of justice through fair trial, as against trial by accusation.

Indeed, media trials, especially in criminal cases, can adversely impact the liberty and freedom of individuals, a result that signals the “soulful requiem to liberty", as Justice DY Chandrachud reminded us in his eloquent dissent in the Bhima-Koregaon case.

The National Herald case raises several questions of seminal importance. In an age where “gossip is gospel", must the accused be condemned in the public sphere before a definitive judicial finding of guilt? Can unrestrained public conversations with media in cases of unproven criminal culpability of individuals be allowed to violate their right to justice and dignity? Should the principles of legal due process for discovery of truth in criminal trials be compromised to win the political battle of perception, in a trade-off between political expediency and the constitutional principle? What is the recourse, if any, for those who are punished by the oppressive processes of our criminal justice system and the endless trials that crush the accused even before the pronouncement of guilt?

These questions must stay alive in the consciousness of the nation and spur us to civilise ourselves in the use of power. Only then can we redeem the constitutional promise of a just society in which justice is not at the sufferance of the powers that be.

The qualitative distinction of the democratic way is the taming of power to the community’s sense of fairness and justice. The sanctity of legal processes depends likewise in ensuring that the rigours of law do not result in the mortality of justice.

Because events shape and define the future, the National Herald case will hopefully be an opportunity to reaffirm the nation’s commitment to the rule of law and to draw the boundaries of partisan politics.

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