The Special Public Prosecutor and star anti-terror lawyer Ujjwal Nikam seems to have landed himself in a tight spot. At an anti-terrorism conference in Jaipur on Friday, he said that he had cooked up the widely spread story that 26/11 attacker Ajmal Kasab had demanded mutton biryani while he was in jail. The lawyer said that he had floated the lie because he thought some people in the media were growing sympathetic to the young Pakistani.

With this statement, Nikam has incriminated himself for perjury ‒ making a false submission before a court ‒ and has possibly committed criminal contempt by trying to influence the court in handing out the severest punishment to the gunman. This is in addition to violating legal ethics prescribed in Chapter V of the Advocates Act, which prohibits lawyers from indulging in dishonest and undignified conduct and promoting themselves in the media.

Nikam has been here before. His penchant for giving interviews and drumming up public sentiment against the accused led the Maharashtra government to clamp a gag order on him in 2008. In 2009, 20 lawyers passed a resolution demanding action against him for his enthusiastic conduct of media trials. Even his submissions in court, especially during Kasab’s case, when he went on an overflow of epithets, came in for sharp criticism in the media.

US examples

If he was in the US, which has the best developed principles to govern the conduct of prosecutors during trial proceedings and interacting with the media, Nikam could well have been staring at disbarment. In the seminal ruling of Sheppard v Maxwell, the US Supreme Court set aside a conviction and ordered a retrial in a case marred by fervid media speculation and flagrant violation of conduct rules by the prosecutors. “Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable, and worthy of disciplinary measures,” the court stated.

This ruling prompted the American Bar Association in 1968 to commission the Reardon Report, which laid down minimum and mandatory standards that sought to balance the Fourth Estate’s freedom of speech with an accused’s fundamental right to a fair trial. It placed prosecutors on a different footing from the defence counsel, because the former, by virtue of being “ministers of justice” and not merely “officers of the court”  like ordinary lawyers had a higher obligation to ensure that the accused suffered no prejudice. Thus, it strictly forbade them from making extra-judicial comments on pending criminal proceedings. There was no bar on zealous advocacy, so long as it was confined to a courtroom.

High Court statements

Such binding statutory provisions are conspicuous by their absence in India, although there are some High Court rulings espousing salutary principles. Notable among them is the Andhra High Court’s decision in Medichetty Ramakistiah stating that prosecution should not mean persecution, and the Prosecutor should be scrupulously fair to the accused. In 1999, the Delhi High Court emphasised that it was a prosecutor’s duty to assist the court in arriving at the truth, and protect and respect the rights of the accused.
The absence of legal regulations to govern prosecutorial conduct has a detrimental effect on the media as well.

Public prosecutors are an indispensable source for journalists covering the law and the crime beat. Prohibiting prosecutor-media interaction runs the risk of creating an avenue for incorrect, and even speculative reporting, which undoubtedly impacts a free and fair trial. But in the absence of protocols for media-prosecutor interaction, both parties often end up committing excesses, as Nikam's case proves too well. The moment that happens, the judiciary steps in, threatening to impose restrictions on reporting, or worse, weilding the power of criminal contempt. The Sahara India Real Estate ‎Corporation v  SEBI case of 2012, in which the Supreme Court was about to lay down mandatory guidelines for media reporting of legal proceedings, provides the most potent warning to act before it is too late.

In the interests of justice, all stakeholders must act with alacrity.