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The Case Against In-Camera Trial
The Case For It
“The public is interested in how this trial is conducted. Everything that happens in court should be open to the public.”
a defence lawyer in the Delhi gangrape case
Anand is the defence lawyer for driver Ram Singh, one of the main accused in the Delhi bus gangrape case, which has shocked the nation and in the aftermath of which several questions are being asked about the ability of the state to ensure a life of dignity for women and about a judicial system that fails them repeatedly. As ordered by the trial court, the case is currently being heard in- camera. In short, this means the proceedings are out of bounds for the media and hence the public does not get to hear anything of the proceedings.
“The courts can easily put in place rules to regulate coverage of the trial instead of keeping the media away.”
At the time of writing, Anand was planning to move a petition for conducting the trial in an open court. Anand is not alone in his demand. Meenakshi Lekhi, a Bharatiya Janata Party (BJP) member and a leading lawyer, is representing a clutch of journalists who have moved a similar petition for an open trial of five of the six accused (one of them is said to be a juvenile and will appear before a juvenile board). Lekhi says the arguments against the accused–as much as those in their defence–must be presented to the public, which has a right to know what’s happening. After all, it’s not just the accused who are on trial in this case; also on trial is the system, the functioning and failures of which are likely to be addressed in the arguments put forth by the lawyers representing both sides. Besides, underlying the demand for an open hearing is the premise that the trial must be fair and also be seen as fair: this is better served when the public knows not just the outcome of the trial but also every stage of it, the evidence presented, the refutations and so on. This happens only when the case is chronicled and reported by the media.
Systemic failures too show up in an open trial. The survivor and friend of the victim who was with her on the bus and beaten badly had stated to a TV channel that when police arrived at the scene of crime on December 16, policemen squabbled over which police station must take up the case—a question of jurisdiction, a headache often faced by anyone trying to lodge a complaint.
“I’m not sure why the media should be allowed. It has to focus on being solution-based and not to sensationalise.”
Judges often decide to try certain cases—including rape cases—in camera with valid reasons. As Ashutosh of IBN7 puts it, “I can understand where the reasoning for an in-camera trial comes from: in places away from Delhi, for instance, an open court proceeding may be painful for the victim and her family.”
But in this case, which stood out for the extreme violence of the perpetrators, there have been some sidelights too: the protests against the rape (and the system) saw a heavy-handed police bearing down on protesters. This, and the actions of state players like ministers, invited severe public censure. When the police seeks an in-camera trial after this, questions are bound to be asked by the public, which is quite fed up with the lack of transparency in state institutions and the slow-moving judiciary, lawyers say. No one questions the wisdom of the law making allowance for an in-camera trial of rape cases, questions are being asked about why this particular trial is being shielded from public gaze.
The outpouring of grief for the victim and the demands protesters have made—including some outrageous ones—makes the case for a well-informed and reasoning public crucial to a democracy. It’s mostly lack of information that leaves room for rumour and misinformation. As Lekhi says, “Considering the fact that this case has pricked the collective conscience of the nation and has virtually converged itself into a movement seeking legislative, administrative and judicial reforms, it will serve the larger cause if the public is made aware of the trial.” It is the same public, after all, that’s making thousands of suggestions to the Justice J.S. Verma committee, set up for making changes in the laws dealing with rape and violence against women. And, to adapt a line about justice, institutions must not only work in a transparent manner, they should also be seen as working in a transparent manner.
“In places away from Delhi, for instance, a trial in public can be painful for the victim and also her family.”
But Sunitha Krishnan, an activist who has spent over two decades fighting for the rehabilitation of trafficked women, has a different perspective: “I’m not sure why the press should be allowed to report on the trail. Is the press interested in doing that for all rape cases in the country? I think the media should focus on being solution-based and stop all efforts to sensationalise any act of sexual offence. I also think the media should now focus on all other cases of sexual offenses so that they too can reach the trail phase as the Delhi case. And that is where the media needs to be unrelenting, in its efforts to highlight all injustices against women. We should trust the judiciary as it goes about its work. There’s anyway so much pressure on the judiciary and the authorities.”
While Sunitha makes a case for women who are struggling against an unresponsive system, whether this applies to the Delhi victim, who is no longer around to make her case, is debatable. In fact, in a rape case in Ohio, US, in which a teenager was allegedly raped by two baseball players, the defence lawyers, citing enormous and often intrusive media presence, have sought an in-camera trial.
But Anand says, “I am representing the driver in this case but I feel that, as our justice system works on the assumption of innocence until proven guilty, the trial should not be in-camera.” And Lekhi says the courts can put in place ways to regulate the media instead of keeping the media away. The petitions are slated to be heard in the second week of February. In an ironic way, it will be left to the media, in the end, to keep the pressure on this case to ensure that legal process is followed to its logical conclusion. Wouldn’t it make much more sense if the arguments made by the lawyers are conducted in open court?