Fair Trial, Judiciary and Media: Need for Balance

By A Gowri Nair & Saipooja, School of Legal Studies, CUSAT

Editor’s Note: The media is regarded as the fourth pillar of any democracy. An independent media is necessary for keeping a check on the government and its organs. But with the increasing corporatisation of media and the race to grab more eyeballs for higher numbers, the media is overstepping its boundaries. It has been witnessed that the media pronounces its own verdict before the trial begins and ends up violating the principles of a fair trial. The accused persons are held guilty in the eyes of the public before a verdict is delivered in open court. Also, the sensationalism by media affects judges as they are human beings and the public opinion created by the media is bound to have an effect on them. What is being suggested is not gag orders, but self-restraint by the media. Moreover, public participation in polity is also being advocated to create a balance between a fair trial and independent media.” 

Introduction

Free speech and Expression is perhaps one of the most important and useful Rights available in our Constitution. Freedom of expression incorporated in the Indian Constitution in Article 19(1) remains an important facilitator for widespread engagement of the media within a democratic atmosphere. It is using this freedom that media is able to function.

Media is regarded as one of the pillars of democracy. The freedom of press is regarded as “the mother of all liberties in a democratic society”[i]. A responsible press is a handmaiden of effective judicial administration. Media has wide ranging roles and plays a vital role in shaping the opinion of the society, but like every other freedom and liberty, this freedom of speech and expression is also seen to be misused by the media. Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become a license that would lead to disorder and anarchy[ii]

‘Trial by media’ is a recently coined term and is used to denote a facet of ‘media activism.’ It means “ the impact of television and newspaper coverage on a person’s reputation by creating widespread perception of guilt regardless of any verdict in a Court of law.” Especially during high publicity Court cases, the media often provoke an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial impossible but means that, regardless of the result of the trial, as per public perception the accused is already held guilty and is not be able to live the rest of his life without intense public scrutiny.

There is no legal system where the media is given the authority to try a case. Trial is essentially a process to be carried out by the courts and is associated with the process of justice. It is the indispensable component on any judicial system that the accused should receive a fair trial.

In India, trial by media has assumed significant proportions. There have been numerous instances in which media has been accused of conducting the trial of the accused and passing the ‘verdict’ even before the court passes its judgment.

Media: The Watchdog Of Democracy

Media has undoubtedly played a tremendous role in bringing justice to the disadvantaged people. One cannot gag the press due to the heroic role it played in cases which are commonly known as ‘Billa Ranga case’, ‘Baba Nirankar’, ‘Sudha Gupta’ and of ‘Shalini Malhotra’.

Without an active media, the cries of the victims of brutal khap killings of Haryana would have gone unheard. The fear of khap and the backing of police and politicians allowed this barbaric tradition to continue for long till they came out in front of the world through the media. Many other cases like the Arushi Murder Case, Jessica Lal Murder Case, Ruchika Girhotra Case and even the games played in IPL Row was brought out into broad daylight because of the laudable efforts of media. This is certainly a very positive and welcome act from the part of the media.

The media is now a full -fledged business. The name of the game is ratings, viewership, eyeballs and advertisements. In the scheme, news is whatever sells. This means anything that catches and grabs the attention of people. Or, in other words, ‘sensationalism’. The present day trend in news reporting manifestly points out that Journalism and ethics stand apart. Journalists and media persons are supposed to be distinctive facilitators for the democratic process to function without hindrance. The ethics that the media must embrace includes virtues like accuracy, honesty, truth, objectivity, fairness, balanced reporting, respect and autonomy. These virtues are very much part and parcel of the democratic process. It is unfortunate that these days the media people are overcome by materialistic considerations rather than professional ethics and sincerity towards the profession. The journalists and reporters are compelled to meet deadlines, satisfy media managers by meeting growing targets and so on. Coupled with this there is also cut throat competition between different media houses and newspaper organisations. To win the race, they have begun to publish and present what the ‘public is interested in’ rather that what is for ‘public interest.’

The Need To Regulate Unhealthy Media Activism

The judiciary is not free from human follies

It is true that every holder of judicial office does his utmost not to let his mind be affected what has seen or heard or read outside the court and he will not knowingly let himself be influenced in any way by the media. At the same it is to be kept in mind that judges being humans are not free from faults. A man may not be able to put that which he has seen, heard or read entirely out of his mind; and he may be affected by it. The judiciary is not independent unless the Courts of Justice are able to administer law in the absence of pressure of popular opinion.

If one carefully analyses the judgment in Reliance Petrochemicals v. Proprietor of Indian Express[iii] in the light of the judgment of P.C. Sen[iv] , it can be inferred that the Supreme Court has accepted that Judges are likely to be “subconsciously influenced” by the media publicity. The same view has been held by Justice Frankfurter of U.S. Supreme Court and Lord Scarman and Lord Dilhorne in the House of Lords.[v]

Justice Frankfurter in the case of John D. Pennekamp v. State of Florida[vi] has observed:

“No Judge fit to be one likely to be influenced consciously except by what he sees or hears in Court and by what is judicially appropriate for his deliberations. However, judges are also human and we know better than did not forbear how powerful is the pull of the unconscious and how treacherous the rational process…and since Judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print. The power to punish for contempt of court is a safeguard not for judges as persons but for functions which they exercise. It is a condition of that function –indispensible in a free society –that in particular controversy pending before a court and awaiting judgment, human being, however strong, should not be torn from their mooring of impartiality by the undertone of extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the right to influence Judges and Jurors.”

Several other Reports have also suggested that the judges are likely to get influenced by the stories published and broadcasted by the media houses. Cardozo, one of the greatest Judges of the American Supreme Court, in his Nature of the Judicial Process [vii] referring to the forces which enter into the conclusion of the judges observed “the great tides and currents which engulf the rest of the men, do not turn aside and pass the Judges by”. The Canadian Law Reform Commission[viii] has taken the view that while judges may generally be impervious to influence, the possibility of such influence could not be ruled out altogether, and in the case of Judicial officers, the sub-judice rule served an important function of protecting public perception of impartiality.

In a case[ix] where a woman committed suicide in Calcutta in her parents’ house, the husband of the deceased woman and his family were charged with dowry death under the Indian Penal Code. The husband subsequently filed a number of documents to prove that the woman was a schizophrenic psychotic patient, while the parents of the woman filed documents to prove their allegations of demand of dowry by the husband and his family. The trial was yet to commence. The lower courts refused to grant bail. Later the Supreme Court granted interim bail to the accused and while passing the final orders referred very critically to certain news items in a magazine. The Court deprecated two articles published in the magazine in a one-sided manner setting out only the allegations made by the woman’s parents but not referring to the documents filed by the accused to prove that the lady was a schizophrenic. The apex Court observed, “These type of articles appearing in the media would certainly interfere with the course of administration of justice”.

There must be regulations with regard to publications and news programs while a trial is going on. It is just as important to protect the public perception of judges’ impartiality as to protect risk of bias. After all we cannot forget the Common rule Law laid down in R v. Sussex Justices: Exparte McCarthy[x] that “Justice should not only be done, it should manifestly and undoubtedly be seen to be done”.

Fair Trial and Trial by Media

Our criminal law requires that the guilt of a person be proved beyond reasonable doubt and the accused is presumed to be guilty unless the contrary is proved in a court of law, observing all the legal safeguards to an accused. The media people have in many cases acted as self-proclaimed judges.

Parties have a constitutional right to have a fair trial in the court of law, by an impartial tribunal, uninfluenced by newspaper dictation or popular cry. Fairness and justice are two main basements on which the entire democratic structure rests. Denial of fair trial can be understood as the obstruction or interference in the administration of justice to a person facing trial. The prejudicial publication against the accused amounts to denial of fair trial.

The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due the course of justice. In Anukul Chandra Pradhan v. Union of India,[xi] the Supreme Court observed that “No occasion should arise for an impression that the publicity attached to these matters has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial.” The trial by a press, electronic media or by way of public agitation is the very anti-thesis of rule of law and can lead to miscarriage of justice. The liberty of press is subordinate to administration of justice.

 Violation of Human Rights

The responsibility of the media is greater than the responsibility of an individual because the media has a larger audience. The freedom of press should neither degenerate into a license to attack litigants and close the door of justice, nor can it include any unrestricted liberty to damage the reputation of respectable persons.

The infringed privacy and tainted reputation of certain persons has become an inevitable byproduct of extra snooping done by media. Suspects and accused apart even the victims and witnesses suffer from excessive publicity and invasion of privacy rights. In the famous Jessica Lal Murder case,[xii] where Manu Sharma was tried and convicted for murder, the court held that “There is danger, of serious risk of prejudice if media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or if media publishes statements which out rightly hold the suspect or accused guilty even before such an order has been passed by the court.” In the aforementioned case, certain articles immediately after the date of occurrence caused a confusion in the mind of the public as to the description and number of actual assailants / suspects. It is absolutely not fair to cause taint to the reputation of a person by creating widespread perception of guilt, regardless of any verdict in a court of law. In the recent times, a congress minister in the coalition Government of Jammu and Kashmir had to resign after revelations of his sexual advances and molestation became public. Tarun Tejpal and Justice AK Ganguly were in the dock for the same reason. Such kinds of ‘Trial by Media’ have become common and rife after deregulation of the media and proliferation of visual media.

It is absolutely not fair to taint the reputation of a person by creating widespread perception of guilt, regardless of any verdict in a court of law. The suspect gets negative publicity and later even if the court finds him innocent, his future remains uncertain because of the stories cooked up by the media.

The security of the witnesses is also often jeopardized by irresponsible reporting. If the identity of the witness is published, there is danger of him coming under pressure both from the accused or his associates. This is one of the main reasons why almost everyone is hesitant to report a crime or appear as witness. With the unfettered interference of the media, each witness wants to retract and get out of the muddle. Sting operations are conducted to point out the lacuna in investigations and trial much before the investigation or trial has progressed considerably. This affects the morale of the police and other investigation agencies. The police are often made a scapegoat. The over enthusiastic media often puts a lot more pressure than required on the police to speed up the investigation. Speedy investigation under pressure can lead to arrest of innocent persons.

Conclusion

It has to be remembered that freedom of expression is not absolute, unlimited or unfettered. The judiciary is peopled by judges who are human, and being human they are occasionally motivated by considerations other than an objective view of law and justice. No judge is completely impervious from the influence of the hype created by the media.

The media must exercise better self-regulation. It is expected of persons at the helm of the affairs in the field of media to ensure that the trial by media does not hamper fair investigation by the investigating agency, and more importantly does not prejudice the defence of accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.

In order to stifle free speech and comments on the court, even an occasional exercise of the power of court to punish the condemners is enough to deter most persons form saying anything that might prejudicially affect any trial proceeding or tend to transgress the natural justice principles.

If government starts regulating the media, the whole purpose would be defeated. Instead the better option would be robust and civic engagement by the people with their polity and political class. In other words the engagement that is both adversarial and co-operative. An educated, cultivated and engaged civil society can be the best watchdog over governments and the media. This would restore and balance the polity and accord a semblance of normalcy among the institutions of the country.

 Edited by Kudrat Agrawal

[i] In re Harijai Singh, AIR 1997 SC 73.

[ii] Express Newspapers v. U.O.I., (1997) 1 SCC 133.

[iii] 1988(4) SCC 592.

[iv] AIR 1970 SC 1821.

[v] Attorney General v. BBC, 1981 A.C. 303 (HL).

[vi] (1946) 328 US 331.

[vii] Lecture IV, Adherance to Precedent . The Subconscious Element in the Judicial Process (1921) Yale University Press.

[viii] Canadian Law Reform Commission , Contempt of Court : Offences against Administration of Justice {Working Paper 20, 1977,p 42-43} and Report 17 (1982) at p 30.

[ix] M.P. Lohia v. State of West Bengal, 2005(2) SCC 686.

[x] 1924 (1) KB 256.

[xi] 1996(6) SCC 354.

[xii] Sidhartha Vasisht v. State (NCT of Delhi), AIR 2010 SC 2352.

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