Mallya Can Rile Against Media Trial, But Onus Is On Him To Prove Prejudice

Vijay Mallya, who owes banks over Rs 9,000 crore and initially claimed that he was not absconding (but right now he is not returning), says he does not want a trial by the media. But as the case of the Sahara promoter Subrata Roy shows, the onus is still on him to prove that a media trial is jeopardising his defence.

In September 2012, the Supreme Court took a nuanced position on Roy’s claim of trial by media. It held that the right to freedom of expression enjoyed by the media under Article 19(1)(a) must be balanced against the right to a fair trial under Article 21 of the Constitution. Therefore, if one undertrial is apprehensive that excessive media glare could prejudice his case, he can file a writ petition and get an order in rem check or against a particular media house proscribing publication/airing till the trial is over.

It is a fine judgment but one that puts the onus on the one who is under trial. He will have to prove before the writ court with cogent facts how his case would be prejudiced by the media’s obsession. It wouldn’t be easy because judges are likely to bridle with indignation at any hint of fellow judges being swept off their feet by what the media portrays or brings out—if at all this is the apprehension. And it is the judiciary which painstakingly sifts through the evidence produced by both sides before pronouncing guilt or innocence. Judges are steeped in law, unlike jury members who are drawn from all walks of life.

India bid adieu to jury trials in 1960. Now, all trials are carried out by a bench occupied by men and women who not only know the law but also the principles of natural justice. While jury members, drawn randomly from telephone directories as in the US, are susceptible to being influenced by what the media says – which is why they are kept away from the outside world for the duration of the trial – judges themselves are presumed to be resistant to such influences.

Vijay Mallya thus has a tough task if he is indeed toying with the idea of gagging the entire media. He has been repeatedly saying that he doesn’t owe anything to banks or taxmen or employees, thus clinging steadfastly to the House of Lords verdict from more than a century ago (Solomon & Solomon) that a company promoter, howsoever high his stakes may be, is liable only for the capital he has agreed to bring in and not a penny more. But Mallya forgets that a lot of water has flown under the bridge since then and the lifting of the corporate veil is often resorted to by courts to nail crooks. He would be relentlessly questioned on his ample personal wealth both in India and abroad by the court, going far beyond what the media is raising now.

Those who cry about media trial forget that they can file defamation cases, though the courts offer a lot of latitude to the media given the public interest they serve by disseminating information. There is one more vital power in the arsenal of the accused—to leave evidence before the court which the media may be cussedly refusing to show.

Mallya would do well not to embarrass himself by harping constantly on the media trial. Truth is a defence available for the media, both before the writ court should he seek a gag order, as well as in defamation cases. It would be a case of paranoia if he believes that the entire media world is out to prejudice his case or defame him. The media too is democratic and competitive. He can always project his side of the story through media houses he allegedly cultivated when he was having a whale of a time.

The writ court may at best stay the constant playing of television images of Mallya pecking kisses at petite girls or clinking glasses at parties, but then this is the image that Mallya has always chosen to project. He can’t now claim that these images prejudice the case against him.