By Isha Tyagi and Nivedita Grover, Symbiosis Law School Noida
“EDITOR’S NOTE: Media is rightly called the fourth estate. In today’s time, media is certainly the most powerful instrument for transmission of information as well as opinion. Media trials, a concept that gained popularity in the twentieth century, pertains to the media’s tendency to run parallel investigations during the Court proceedings and thereby exerting its hegemony over the people. Media trials have to be adjudged in light of the fundamental freedom of speech and expression as well the right to privacy. Owing to the adverse impact of media trials on the rights of the accused and suspects as well as its inherent potential to prejudice judges themselves as has been observed in the Best Bakery case, it is imperative that a suitable mechanism is created whereby uncensored press can be regulated within the domain of freedom of press.
The satirical release of Peepli [Live] (2010) accurately captured what takes place in media news rooms. The film revolved around a debt-ridden farmer whose announcement to commit suicide created a media circus. Ironically, in the case of the Radia tapes, the same journalists found themselves in the center of the media’s frenzy-hungry, often intrusive and unverified style of reporting. Exposés such as the Radia tapes and Wikileaks have thrown open the conflict between the right to information, or what has come to be called ‘informational activism’, and the right to privacy. Right to information and the right to communicate the information via media are guaranteed under Article 19(1) (a) of the Constitution of India. In State of Uttar Pradesh v. Raj Narain[i], the Supreme Court of India held that Article 19(1) (a), in addition to guaranteeing freedom of speech and expression, guarantees the right to receive information on matters concerning public interest. However, more recently, concerns over balancing the right to information with the right to privacy have been raised, after controversies like the Radia-tapes.
Privacy is a value which underpins human dignity and other key values such as freedom of association and freedom of speech. It should not be assumed that a desire for privacy means that a person has ‘something to hide’.[ii]
Privacy being a basic human right leads to a reasonable expectation of a person with respect to the fact that his means of communication and communication networks are safe and private, the breach of which will not only lead to a breach of his basic human right but also impair the pedestal on which the legal structure subsists. The Indian Constitution regulates and empowers freedom of speech under Article 19. However, it also provides restriction which may be imposed by the State if such a restriction is against public order, or morality. Similarly Article 21 of the Constitution guarantees the “Right to Life and Liberty” which includes the right to be left alone.
India, at present, does not have an independent statute protecting privacy; the right to privacy is a deemed right under the Constitution. The right to privacy has to be understood in the context of two fundamental rights: the right to freedom under Article 19 and the right to life under Article 21 of the Constitution.
Trial by media is a phrase used to describe the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a Court of law. In the United Kingdom there is a heated debate between those who support a free press which is largely uncensored and those who place a higher priority on an individual’s right to privacy and right to a fair trial. Although a recently coined phrase, the idea that popular media can have a strong influence on the legal process goes back certainly to the advent of the printing press and probably much further. This is not including the use of a State controlled press to criminalize political opponents, but in its commonly understood meaning, it covers all occasions where the reputation of a person has been drastically affected by ostensible non-political publications.[iii]
The Indian law has made some exceptions to the rule of privacy in the interest of the public, especially, subsequent to the enactment of the Right to Information Act, 2005 (RTI). The RTI Act under Section 8 (1) (j) exempts disclosure of any personal information which is not connected to any public activity or of public interest or which would cause an unwarranted invasion of privacy of an individual. However, Courts have taken a positive stand on what constitutes privacy in different circumstances.
The 200th Law Commission Report qualifies certain publications as prejudicial if made after a person is arrested. It has been recognized in several countries and also in India that publications which refer to character, previous convictions, confessions can amount to contempt. There are various other aspects such as judging the guilt or innocence of the accused or discrediting witnesses etc. mentioned in the report which can amount to contempt.[iv]
TRIAL BY MEDIA & MEDIA VICTIMIZATION
The PCI( Press Council of India) norms lay down the guidelines for reporting cases and avoiding trial by media. The PCI warns journalists not to give excessive publicity to victims, witnesses, suspects and accused such that it amounts to an invasion of privacy. Similarly, the identification of witnesses may endanger the lives of witnesses and force them to turn hostile. Zaheera Sheikh, who was a key witness in the Gujarat Best Bakery case, was a victim of excessive media coverage and sympathy. Her turning hostile invited an equal amount of media speculation and wrath. Her excessive media exposure possibly endangered her life. Instead of focusing on the lack of a witness protection program in the country, the media focused on the twists and turns of the case and the 19 year old’s conflicting statements. The right of the suspect or the accused to privacy is recognized by the PCI to guard against trial by media.
Swati Deshpande, a Senior Assistant Editor (Law) at the Times of India, Mumbai, observes that, “In cases of rape when facts are part of the judgment, you report facts that are relevant to the judgment or give you an insight on why the Court took a certain view and add value to the copy. One should avoid a situation where facts revealed are offensive or reveal the identity of the victim. The past history of both the victim and the accused should not be reported.”
She admitted, that “Media reporting often gives the impression that the accused has committed the crime or the media through its independent investigation wing has found a particular fact. When in fact, it has relied entirely on the information given by the police and failed to question or verify the facts by an independent source. The result is that most crime reporting is one-sided, because the information received from the police is rarely questioned.”
In the Bofors pay-off case[v], the High Court of Delhi observed that, “The fairness of trial is of paramount importance as without such protection there would be trial by media which no civilized society can and should tolerate. The functions of the Court in the civilized society cannot be usurped by any other authority.”[vi] The Court agreed that media awareness creates awareness of the crime, but the right to fair trial is as valuable as the right to information and freedom of communication.
The 200th report of the Law Commission[vii] dealt with the issue of Trial by media: Free Speech v. Fair Trial under Criminal Procedure. The report, focused on the pre-judicial coverage of a crime, accused and suspects, and how it impacts the administration of justice. The Contempt of Courts Act, under Section 2 defines criminal contempt as:
“…the publication, (whether by words, spoken or written or by signs, or by visible representations, or otherwise), of any matter or the doing of any other act whatsoever which
- prejudices or interferes or tends to interfere with the due course
of any judicial proceedings; or
- interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any manner.”
Section 3(1) of the Act exempts any publication and distribution of publication, “if the publisher had no reasonable grounds for believing that the proceeding was pending”. In the event, the person is unaware of the pendency, any publication (whether by words spoken or written or signs or visible representations) interferes or tends to interfere with or obstructs “the course of justice in connection with any civil or criminal proceeding pending at the time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending.” The report emphasizes that publications during the pre-trial stage by the media could affect the rights of the accused. An evaluation of the accused’s character is likely to affect or prejudice a fair trial.
If the suspect’s pictures are shown in the media, identification parades of the accused conducted under Code of Civil Procedure would be prejudiced. Under the Contempt of Court Act, publications that interfere with the administration of justice amount to contempt. Further, the principles of natural justice emphasize fair trial and the presumption of innocence until proven guilty. The rights of an accused are protected under Article 21 of the Constitution, which guarantees the right to fair trial. This protects the accused from the over-zealous media glare which can prejudice the case. Although, in recent times the media has failed to observe restraint in covering high-profile murder cases, much of which has been hailed as media’s success in ensuring justice to the common man.
Media has now reincarnated itself into a ‘public Court’ which can also be referred as “Janta Adalat” and has started interfering into Court proceedings so much so that it pronounces its own verdict even before the Court does. It completely overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’.[viii]
For instance, in the Jessica Lal murder case[ix], the media took great pride in acting as a facilitator of justice. The media in the case whipped up public opinion against the accused and held him guilty even when the Trial Court had acquitted the accused. The media took on the responsibility of administering justice and ensuring that the guilty are punished through candle light vigils and opinion polls. Past history of the accused was raked up, including photographs of the accused in affluent bars and pubs in the city which were published after he was acquitted.
The Apex Court observed that the freedom of speech has to be carefully and cautiously used to avoid interference in the administration of justice. If trial by media hampers fair investigation and prejudices the right of defence of the accused, it would amount to travesty of justice. The Court remarked that the media should not act as an agency of the Court. The Court, commented “Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending.”[x]
Pandit Jawaharlal Nehru, the first Prime Minister of independent India said- “I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.” But he did not foresee the danger involved as he did not expect the press to get involved into something which is beyond its limit and ethics too thus hindering the ‘administration of justice’.
SUBCONSCIOUS EFFECT ON THE DECISION MAKING
Another worrying effect of ‘media trials’ is that of prejudicing the judges presiding over a particular case. The American view appears to be that Jurors and Judges are not liable to be influenced by media publication, while the Anglo-Saxon view is that Judges, at any rate may still be subconsciously (though not consciously) influenced and members of the public may think that Judges are influenced by such publications under such a situation. Therefore, Lord Denning stated in the Court of Appeal that Judges will not be influenced by the media publicity, a view which was not accepted in the House of Lords. Cardozo, one of the greatest Judges of the American Supreme Court, referring to the “forces which enter into the conclusions of Judges” observed that “the great tides and currents which engulf the rest of men do not turn aside in their curse and pass the Judges by”.[xi]
Hon’ble Justice D. M. Dharmadhikari, Chairman, M. P. Human Rights Commission also asserted that there is always a chance that judges get influenced by the flowing air of remarks made upon a particular controversy. The media presents the case in such a manner to the public that if a judge passes an order against the “media verdict”, he or she is deemed either as corrupt or biased.
The most reckoning research on the positive and negative aspects of media trial has been elaborated in Law Commission Report that has made recommendations to address the damaging effect of sensationalized news reports on the administration of justice. While the report has yet to be made public, news reports indicate that the Commission has prohibiting publication of anything that is prejudicial towards the accused — a restriction that shall operate from the time of arrest. It also reportedly recommends that the High Court be empowered to direct postponement of publication or telecast in criminal cases. The report noted that at present, under Section 3 (2) of the Contempt of Court Act, such publications would be contempt only if a charge sheet had been filed in a criminal case. The Commission has suggested that the starting point of a criminal case should be from the time of arrest of an accused and not from the time of filing of the charge sheet. In the perception of the Commission, such an amendment would prevent the media from prejudging or prejudicing the case.
In the case of S v. Beahan, Justice Gubbay stated that:
“While the prosecution of an accused person must be conducted with due regard to traditional considerations of openness, fairness, and justice, the prosecution was not obliged to call witnesses regarded as material to the case of the defense, solely in order to afford the defense the advantage of cross-examination. If an accused person claims his fundamental right to a fair hearing has been violated, in that he has not been afforded facilities to obtain the attendance of witnesses to testify on his behalf, he must make some plausible showing of how their testimony would have been both material and favorable to his defense.”
In Saibal Kumar v. B.K. Sen,[xii] the Supreme Court tried to discourage the tendency of media trial and remarked,
“No doubt, it would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of the investigation. This is because trial by newspapers, when a trial by one of the regular tribunals of the country is going on, must be prevented. The basis for this view is that such action on the part of a newspaper tends to interfere with the course of justice, whether the investigation tends to prejudice the accused or the prosecution.”
Although our judicial system relies on the competence, impartiality and fearlessness of the trial judge and one cannot argue that unrestrained media coverage will not influence the judgment. Even in England there have been divergent opinions. In the view of Lord Denning, a professional judge will not be influenced by media coverage which affects only the common man. This concept of judicial superiority was not endorsed by Lord Dilhorne.[xiii] Even in the United States the judiciary has been of the view that the Court cannot function properly if a reporting is calculated to disturb the judicial mind. In John D. Pennekamp v. State of Florida,[xiv] it was observed,
“No Judge fit to be one is 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 our forebearers 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.”
It is correct that contempt of Court is one of the ground on which reasonable restriction can be imposed on the freedom of speech. The Contempt Of Court Act defines contempt by identifying it as civil and criminal. The provision of contempt has its origin to the principle of natural justice i.e. every accused has a right to a fair trial along with the principle that justice should not be done only but it must also appear to have been done. There may be many ways to prejudice a trial. If it is allowed, a person may be held guilty of an offence, which he has not actually committed. No editor has the right to assume the role of an investigator so as to prejudice the Court against any person. But law of contempt can only be attracted to prevent comments when the case is sub-judice. If the case is not pending in the Court, it is of no avail.
In M.P. Lohia v. State of West Bengal[xv] the Supreme Court strongly deprecated the media for interfering with the administration of justice by publishing one-sided articles touching on merits of cases pending in the Courts.
Justice N. Santosh Hedge said that the facts narrated therein are materials that may be used in the forthcoming trial in this case and that this type of article appearing in the media would certainly interfere with the administration of justice. He remarked-
“We deprecate this practice and caution the Publisher, Editor and the journalist who are responsible for the said articles against indulging in such trial by media when the issue is sub-judice. Others concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice.”
The Supreme Court in Zahira Habibullah Sheikh v. State of Gujurat[xvi] explained, “a fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial claim. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.”
Last but not the least media trial even has started creating pressure on the lawyers to not take up cases of accused, thus forcing these accused to go to trial without any defense. This is against the principle of natural justice. For instance, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused in a murder case, he was subject to public derision. Media channels came up with quotes like “defend the indefensible”. While at the same time Gopal Subramaniam was appearing for the state and the case of Manu was handed to some mediocre lawyer.
Apart from the suspects and the accused, even the Police are presented in a poor light by the media. It is indeed high time that the electronic media regulates itself by having self-censored guidelines to be put in place to retain free press.[xvii]
RIGHT TO APPROACH THE HIGH COURT OR THE SUPREME COURT
In the light of the law enunciated hereinabove, anyone, be an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate Writ Court and seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant). [xviii] The Court may grant such preventive relief, bearing in mind the principles of necessity and proportionality ensuring that such orders of postponement should be for short durations. Furthermore, it should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial.[xix]That is why, clause (2) of Article 19(1) permits imposition of reasonable restrictions on the exercise of this freedom in the interests of the sovereignty and integrity of India, the security of the State, the friendly relations with foreign States, public order, decency or morality, or in relation to the contempt of Court, defamation or incitement to an offence.
Though the media is the fourth pillar of Indian democracy and under Article 19(1)(a) of the Constitution it has a fundamental right, but at the same time it cannot be allowed to transgress its domain under the garb of freedom of speech and expression to the extent of prejudicing the trial itself.
When rights of equal weight clash, Courts have to evolve balancing techniques or measures based on re-calibration under which both the rights are given equal space in the Constitutional Scheme.
Right to fair trial of the accused has to be safeguarded at any cost. One should take into consideration that judges are also human beings and not robots who are pre-programmed to do certain things in a specified way. Too much hype leads to change of the thinking of the judges, sometimes the judgment becomes biased and total justice is not awarded.
Formatted on 19th March 2019.
[i] AIR 1975 SC 865, 1975 SCR (3) 333
[ii] http://www.privacy.org.au/About/PrivacyCharter.html, visited on 11/14/2014.
[iii] Dr. Shobha Ram Sharman, “Judicial Activism of Media”, (2010)PL July.
[iv] M. Jagannadha Rao, J. 200th Law Commission Report on “Trial by Media: Free speech and fair trial under Criminal Procedure Code, 1973”, August, 2006.
[v] Crl.Misc.(Main) 3938/2003
[viii] Urvashi Singh, “Trial by media a threat to administration of justice” http://www.lexology.com/library/detail.aspx?g=52a59428-9ce1-4fe5-8af9-f10750d37ca4
[ix] Sidhartha Vashisht, Manu Sharma v. State (Nct Of Delhi), Available at http://www.indiankanoon.org/doc/1515299/.
[xi] Nature of the Judicial Process’, Lecture IV, Adherence to Precedent. The Subconscious Element in the Judicial Process, 1921, Yale University Press.
[xii] (1961) 3 SCR 460
[xiii] See Attorney General v. British Broadcasting Corporation, 1981 AC 303 (HL)
[xiv] (1946) 328 US 331
[xv] (2005) 2 SCC 686
[xvi] [(2004) 4 SCC 158]
[xvii] Santrupt Satapathy, “Trial by media” http://www.lawinfowire.com/articleinfo/trial-by-media
[xviii] Justice A.M. Ahmadi, Interrelationship Between Law, Media and the Judiciary, Vol. 4-7, 1997-2000, United Lawyers Association, p. 75.
[xix] Mithilesh Kumar, “Media Trial vs. Free and Fair Administration of Justice: Need for guidelines” http://www.mondaq.com/india/x/262924/Human+Rights/Media+Trial+Versus+Free+And+Fair+Administration+Of+Justice+Need+For+Guidelines