“All I know is just what I read in the papers and that’s an alibi for my”
Media plays an important role in society and is known as “watchdog”, it occupies an important role in shaping the mood of the public. [1] Freedom of media is the flexibility of individuals to be educated on on-going issues.[2] Unlike the U.S. Constitution, Article 19(1)(a) does not expressly mention the liberty of the press i.e. freedom to print and to publish what one pleases without prior permission.[3]
In the matter of Keshavananda Bharati v. Union of India, the Supreme Court famously held that the freedoms provided by Article 19 of the Constitution are part of the grundnorm governing the Indian society.[4] It is settled position of law that the right to freedom of speech and expression in Article 19(1)(a)[5] includes liberty of press and Article 19(2)[6] licenses reasonable restrictions to be imposed by the statute for the purposes of various matters including but not limited to contempt of court.[7] Lord Mansfield as early in 1784, had defined liberty of the press as consisting the right of printing without a previous license, subject to consequences of the law.[8]
“A free press lies at the heart of our democracy and its preservation is essential to the subsistence of liberty. Any inroad made upon the constitutional protections of a free press tends to undermine the freedom of all men to print and read the truth”[9]
The media being the fourth pillar of the Indian democracy, in all its might, provides a full proof picture into the working of the government, thus making an indelible impression on the citizens. The media keeps this channel of sight alive, it provides the information, adopts its own point of view, and thus works as a giving force to public debate. It stands as a permanent means of communication and control between the people and their elected representatives in parliament and government. [10] The liberty of press implicit in the freedom of speech stands on no higher footing than the freedom of speech and expression of a citizen and no privilege is attached to the press as such distinct form from the ordinary citizen.[11] It is, therefore, safe to say that the media is also subject to the general law of the land.[12]
Media Trials
The expression ‘trial by media’ itself is a misnomer as the word “trial” is nowhere defined in the Civil Procedure Code and Criminal Procedure Code. [13] Black’s law dictionary defines “trial” as a formal judicial examination of evidence and determination of legal claims in adversary proceedings.[14] Trial by media is still a debatable term and is basically used to denote a facet of media activism. In recent years, with the growth of cable television, local radio and newspapers, the range and reach of media have increased exponentially thereby continuously expanding readership and viewership. This has given our media providers an unprecedented role in shaping popular opinion and references.[15]
In R.K. Anand v. Delhi High Court, the Hon’ble Supreme Court interpreted trial by media as the impact of television and newspaper reporting on a person’s reputation by producing a widespread perception of guilt, independent of any court verdict. In high-profile cases, media are often accused of causing an environment of mass outrage comparable to a to lynch mob, which not only makes a fair trial unlikely but also ensures that, irrespective of the outcome of the trial, accused is already guilty in the eyes of the public perception and therefore is condemned to live the rest of his life under intense public scrutiny.[16]
In the case of State of Maharashtra v. Rajendra Jaunmal Gandhi it was held that a trial by press, electronic media or public agitation is an anti-thesis to the rule of law. It can lead to the miscarriage of justice.[17]
Media has now starting interfering into the working of courts of law by ignoring the key bridge between an accused and a convict which is the “presumption of innocence until guilt is proved” and the requirement of proving “guilt beyond the reasonable doubt”.[18] The distress caused by media in litigation during ongoing proceedings in a court of law have caused huge delays. [19]
Right to a fair trial
Balancing one’s right to freedom of speech and expression is the right of an individual to live with dignity. Right to a fair trial is safeguarded by Article 21 of the Indian Constitution along with Article 14 of The Indian Constitution.[20]
In Zahira Habibullah Sheikh V. State of Gujarat and Ors, the Supreme Court held that the concept of fair trial teaches and energizes other aspects of the law. This parallels various rules and practices. The fair trial has been held to mean a trial before an impartial judge, a fair prosecutor in a calm environment. A fair trial requires bias or discrimination to be removed for or against the accused, the witnesses or the proceeding of the case.[21]
This right to a fair trial can also be violated if the media uses such language when reporting a problem that can have an effect on a judge’s brain or in some way affect judicial process. In today’s times, the media have started to label and blame the accused with the ultimate goal of sensationalizing news items and increasing the news channel’s commercial popularity.
Interference in court proceedings
There is no uncertainty that media trials have uncovered numerous culprits in prominent cases like the Jessica Lal Murder Case,[22]Bijal Joshi Rape Case,[23] Nitish Katara case[24]but a strong argument lies in the protection of innocent persons needlessly dragged through such spotlights of shame. An example of the deep impact that media propaganda had on the outcome of a trial is the Aarushi Talwar Murder Case[25]. We observed media headlines changing back and forth to the extent of prematurely accusing the parents for the murder. This had a deep impact on the case which lacked support of evidence and the Supreme Court went on to remind the media of their solemn commitment to educating the masses.
According to the 200th Report of the Law Commission of India, the media exercises unrestricted, or rather uncontrolled independence in publishing information on criminal case and biases the opinion of the public and those responsible for adjudicating the accused’s guilt. In fact, even if the individual is finally convicted by the judge, it becomes almost impossible for the accused to prefer appeals. Strong and excessive media hype will misguide the fair trial and lead to the defendant being depicted as a criminal.[26]
On the off chance, if the media’s coverage about an accused or perpetrator conflicts with the court’s judicial process, then it leads to undue interference with the “justice process” which in turn gives rise to the media’s contempt of court proceedings. Regulations designed to regulate journalistic approach are sadly inadequate to prevent the infringement of civil rights and freedom.
Freedom of Speech & Expression v. Freedom of Media.
“The tension between courts and media revolves around two general concerns- the first is that there should be no “trial by media” and second is that it is not for the press and anyone else to prejudice the case. Justice demands that people should be tried by courts of law and not be pilloried by the media”[27]
The Constitution of India preserves freedom of speech and expression and right to fair trial under Article 19 and Article 21 respectively. In Kishori Mohan v. State of West Bengal it was held that
“this is one right that enables the aam janta to engage in public-interest activities; one can comment freely on the workings of Indian democracy without fear of retaliation; each individual is an arbiter of justice in his or her own conscience; authoritarian governments, repressive institutions and corrupt corporations should be under pressure; Not just international diplomacy, but something much bigger and deeper which is people’s consciences among them.”[28]
In R.V. Jayarajan, the Supreme Court held that the press occupies an unenviable position because media are eyes and ears of general public.[29]
Freedom of the press is therefore a subset of the freedom of expression and speech enshrined in Article 19 of the Constitution. Therefore, media are also subject to all restrictions imposed on private individuals. Universal Declaration of Human Rights states that “Everyone has the right to freedom of opinion and intervention and communicates information and ideas through any media irrespective of boundaries. “In the same sense, the term press freedom was not expressly used in conjunction with Article 19, but freedom of speech and expression involves freedom of the press”[30]
International Perspective
What the United States, England and India have in common is that as common law couuntries, they deeply value the freedom of speech and expression.[31] Various International documents or authorities have highlighted the importance of right of fair trial of individuals and have tried to strike a balance between freedom of media and this right of fair trial.[32]
According to UN Basic Principles Of Independence of Judiciary, Article 6, “Judiciary is entitled and required to ensure the judicial proceedings are conducted fairly and rights of parties are respected”[33]International Covenant on Civil and Political Rights says that “ everyone shall be entitled to fair in public hearing by competent, independent and impartial tribunal in determination of criminal charge or in suit”[34] It also acknowledges that the right to public trial is not absolute, and that certain limits are necessary to be imposed.
Media Trial Is Contempt of Court.
The Preamble to our Constitution gives prominence to the concept of liberty of thought and expression along with various other liberties such as liberty of faith, belief and worship. [35] Part III of our Constitution i.e. the Fundamental Rights, further provides for Freedom of Speech and Expression as contained in Article 19(1)(a).
In Romesh Thapar v. State of Madras, it was held that freedom includes the freedom of ideas, their publication and circulation. [36] The same was repeated in Hamdard Dawakhana v. Union of India wherein it was stated that the right includes the right to acquire and impart ideas and information about matters of common interest.[37]
In Life Insurance Corporation of India v. Manubhai D. Shah it was observed that freedom of speech and expression in Article 19(1)(a) means the right to express one’s convictions and opinions freely, by word of mouth, writing, printing, pictures or electronic media” [38]
The Contempt of Courts Act, 1971 defines contempt as scandalizing, prejudicing trial and hindering administration of justice. [39] In the case of Y.V. Hanumantha Rao v. K.R. Pattabhiranand Anr. it was observed that “When litigation is pending before a court, no one shall speak on it in such a way that there is a real and substantial danger of prejudice to the prosecution of the suit, such as impact on the defendant, the witnesses or bias against a party to the case in general. Even if the person who makes the statement honestly believes it is valid, it is still a Court contempt.”[40] This seems to be the opinion of the courts as subsequently concluded in Saibal Kumar Gupta v. B.K. Senand Another[41] and State of Maharashtra v. Rajendra Jawanmal Gandhi. [42]
Limitations on Freedom of Media
The media is under the duty to ensure that any information disseminated to the public is accurate. Implicitly, limits are also levied according to Article 19(2) of India’s Constitution the form of: [43]
right to integrity
right to privacy
limitation imposed by way of contempt of court.
Role of Judiciary
“A man may not be able to put entirely out of his mind what he has seen, heard or read and he may be influenced by it”[44]
In Reliance Petrochemicals v. Proprietor of Indian Express and in the light of the P.C. Sen Case[45] it can be stated that the Hon’ble Supreme Court has acknowledged that judges are likely to be “influenced subconsciously” by media attention.[46]
Several other studies have also indicated that the stories published and transmitted by the media houses are likely to have an impact of the decision making of a judge.[47] it can be coined in the phrase as found below:
“the great tides and currents which engulf the rest of the men, do not turn aside and pass the Judges by”[48]
In M.P. Lohia v. State of West Bengal, a woman had committed suicide in her parents’ house in Calcutta and the deceased’s husband and his relatives were accused of dowry death under the Indian Penal Code. While the deceased’s relatives submitted evidence to show that the case of in fact one of dowry death, the husband was successful in obtaining bail by providing documents which confirmed that the deceased was a schizophrenic.[49] While disposing the bail petition, the Court stating the following in relation to the media trial of the deceased’s husband:
“’Saga’ titled “Doomed by Dowry” written by one Kakoli Poddar based on her interview of the family of the deceased. Giving version of the tragedy and extensively quoting the father of the deceased as to his version of the case. The facts narrated therein are all materials that may be used in the forthcoming trial in this case and we have no hesitation that this type of articles appearing in the media would certainly interfere with the administration of justice. We deprecate this practice and caution the publisher, editor and the journalist who was responsible for the said article against indulging in such trial by media when the issue is subjudiced.”[50]
Constant scrutiny and comments on a matter sub judice creates a clouded atmosphere that leaves the proceedings in a dangerous state. The Delhi High Court, when questioned about the infamous documentary on Nirbhaya gang rape case, stated that “media tends to manipulate judges by subconsciously generating a burden”[51]
Recommendations and Suggestions
It is recommended that publication or showing of anything which is prejudicial towards the accused should be prohibited.
Prior Restraint: Under its authority, courts may make these orders banning disclosure during the course of the trial for a temporary period thereby reasonably restricting the freedom provided under Article 19(1)(a) of the Constitution.
Contempt of Courts Act,1917: The inaccuracy of the coverage of the proceedings shall be disregarded only if it involves serious interference with the administration of justice. Section 4 of the Act gives protection to the person making the publication if it is fair and accurate. Therefore, media outlets should be vary of the accuracy of the information.
Request to delay publication: It can be passed by the court and will serve as a protective measure to protect the press from contempt proceedings.
Right to approach Supreme Court and High Court: The griever could file written submissions in the respective courts if the media publications concerning the trial prejudiced him.
Conclusion.
Media acts as watchdog and functions as a forum for taking the voice of the people to the attention of government and legislatures. It is evident from the above that media plays a more negative role than a positive one. The media trial undeniably perverts the responsibility of the media and contravenes the fair outline of legal limits. [52] The freedom of speech and expression provided to media outlets should be fairly limited by the courts. The Indian Press Council can play a significant role by making more stringent rules and regulations for the media to obey. The Courts can impose exemplary damages to media outlets abusing this sacred right.
“All things considered, judges are human beings too, and when they read the remarks about the cases they hear they get distracted”
[1] Harijai Singh v. Vijay Kumar, (1996) 6 SCC 466
[2] Express Publications v. Union of India, (2004) AIR SC 1950
[3] V.N. Shukla, Constitution of India , 13th Edition 2017 pg.137
[4] Keshvananda Bharati v. Union of India, (1973) AIR SC 1461
[5] Article 19(1)(a), The Constitution of India
[6] Article 19 (2), The Constitution of India
[7] Sakal Papers Ltd. v. Union of India, (1962) AIR SC 305
[8] R. v. Dean of the State Asaph, (1784) 3 TR 428
[9] Carig v. Harney, (1947) 331 US 367
[10]Journal of the International Commission of Jurists, vol. III 132
[11]V.N. Shukla, Constitution of India , 13th Edition 2017 pg.137
[12] Indian Express Newspapers v. Union of India, (1985) 1 SCC 641
[13] Vikas Khatkar, Denuciation of Media Trials, Retrieved 01-03-2020
[36] Romesh Thapar v. State of Madras, (1950) SCR 594.
[37] Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671
[38] Life Insurance Corporation of India v. Manubhai D. Shah, (1992) 3 SCC 637
[39] Section 2(c), The Contempt of Courts Act, 1971
[40] Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr., (1975) AIR AP 30
[41] Saibal Kumar Gupta v. B.K. Sen and Another, (1961) AIR SC 633
[42] State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386
[43] Article 19(2) , The Constitution of India
[44] A Gowri Nair, Fair Trial, Judiciary and Media: Need a Balance, Retrieved on 03-03-2020
[45] P.C. Sen, (1970) AIR SC 1821
[46] Reliance Petrochemicals v. Proprietor of Indian Express, (1988) 4 SCC 592
[47] A Gowri Nair, Fair Trial, Judiciary and Media: Need a Balance, Retrieved on 03-03-2020
[48] Yale University Press, Adherence to Precedent,1921 Retrieved on 01-03-2020
[49] M.P. Lohia v. State of West Bengal, (2005) 2 SCC 686
[50] Kanchi, Constitutionality of Media Trial in India, Retrieved on 01-03-2020
[51] Prachi Darji, Media Trials the Escalating Influence on Judiciary, Retrieved on 03-03-2020
[52] Rajendra Sail v. M.P. High Court, (2005) 6 SCC 109
Anshit Aggarwal
Author
Anshit Aggarwal hails from Symbiosis International University and spends his most of time in organizing events, trekking and meditating. He is a seeker and a Yogi and an avid mooter too. For any clarifications, feedback, and advice, you can reach him at anshitaggarwal14@gmail.com
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