Media Trial and Judiciary

INTRODUCTION

Tanish Dahuja*

Free speech and Expression, under article 19(1)(a)[1] are one of the most important and useful Rights available in our Constitution.

This freedom plays a pivotal role in generating “public opinion” regarding “economic, political and social matters.” This freedom comprises within its ambit the “distribution of information”, “freedom of propagation and exchange of ideas” that helps forming one’s opinion and point of view and debates on matters of public concern.

In Maneka Gandhi v. Union of India[2], Justice Bhagwati has highlighted on the importance of the “freedom of speech and expression” as under:

“Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential.”

But this “right of freedom of speech and expression” is not absolute. According to Article 19 (2) of the Constitution of India, nothing in Article 19 (1) (a) can “prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, Defamation or incitement to an offence.”

In India, the order of the day is that freedom of the press cannot be restricted unless such restriction is a reasonable one and not excessive. It is necessary to preserve and maintain the freedom of the press in a democratic country but at the same time, it is also necessary to put some restrictions which are permissible on that freedom. These restrictions cannot be unreasonable and it can be imposed only on the grounds mentioned under the Article 19(2) of the Constitution, which are the grounds for imposing a limitation on the “freedom of speech and expression.”

MEDIA TRIAL

Media in simple words is a means of communication. It involves publishing, broadcasting and the Internet. In the contemporary world, media has developed a lot, making the dissemination of information easier than ever before.

Role of Media in Democratic society-

Media plays a very important role in a democracy. It creates in the society a sense of awareness regarding the democratic and social obligations. Media is considered as the “fourth pillar” of democracy and it brings to the people the information about the other three pillars, i.e., “executive, legislature and judiciary”, by making their work transparent.

However, media at times try to mould or bend the public opinion and have the capacity to change the viewpoint through which various events are perceived by the people.

“Trial” in an ordinary sense means that a proceeding that takes place before a Court of justice. According to Black’s Law Dictionary, “trial” means “a formal judicial examination of evidence and determination of legal claims in an adversary proceeding.”

To keep up with the increasingly competitive market, the media frequently distorts the facts and sensationalize news stories to grab the attention of the public. The media is frequently found publishing biased opinions and spreading prejudice in the name of “news”. There are many incidences when the media is found conducting a trial of an accused and giving its own decision even before the court passed any judgment.

The Supreme Court of India has recorded on the consequence of media trial as under: ―

“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. During high publicity cases, the media are often accused of provoking 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, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny.”[3]

Judiciary to Conduct Trial not Media-

Media trial is not appreciated in a democratic society and there is judiciary to conduct such trial, which is considered as the competent institution for the administration of justice. It is important to protect a citizen from being victimized by the media, even though it adds burden to the criminal courts. Suppose on the basis of a suspicion that a crime has been committed, a person is arrested then the person should not be declared as innocent or guilty by the media because it is not the function of media. This function comes under the domain of the judiciary.

So, the “trial by media” affects the judgment of the Court and at the same time also harms the accused because the accused should be generally presumed as innocent until he is proven guilty.

FAIR TRIAL

One of the important features of democracy is the conducting of a fair trial. Fair trial means a trial that takes place before a judge who is impartial, a prosecutor who is fair and in a calm judicial atmosphere.

International Recognition of Fair trial-

· Every country that respects the “rule of law” considers the “right to fair trial” as an indispensable right. Article 10 of the UDHR runs as follows “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

· Article 11 of UDHR provides that ―Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

· Article 14 and 16 of “International Covenant on Civil and Political Rights” also protects the “right to fair trial” and it is binding on the member states.

Indian Recognition of Fair Trial-

· When taking into consideration the Indian legal system, “Right to fair trial” in a “criminal prosecution” is impliedly mentioned under the “right to life” guaranteed by Article 21 of the Constitution of India.

· So, right to fair trial in a democracy is of utmost importance from proper administration justice. When a fair trial is denied to an accused, it is as much injustice to the “accused” as much as it is to the “victim” and the “society”.[4]

But, today, our 'Media Studios' have literally turned to be a courtroom for all purposes. The facts of the particular case in all their lurid details, full particulars – correct or otherwise - the various steps and stages of police investigation, freely embroidered with subjective comments and observations are presented, evidence discussed, expert opinion sought, even the public is given an opportunity to participate in this process. They can send in their views by sms or by logging on to the channel's website. The conclusion tending either to pronounce on the guilt of certain persons or on the motives of the investigators are being splashed in the mass media.

Media Trial and Its Ill Effects

Media often forgets the fact that law is not governed by emotions. The significance of the right to fair trial can be understood from the fact the Article 21 of Constitution of India, which impliedly deals with fair trial, cannot be suspended even during an emergency.[5]

The Supreme Court of India on “trial by media” has observed that the law has established a procedure according to which the trial of an accused person is to be conducted and a trial by “electronic media”, “press” or “public agitation” is contradictory to rule of law. This may result in miscarriage of justice. A judge should never get influenced by such pressures and strictly follow the rule of law. Once a judge finds out that the person is guilty of an offence then the question relating to the sentence to be awarded should be addressed by the Judge himself, and it must be according to the provisions of the law.[6]

Burden of proof

In criminal cases, the principle remains constant that the initial burden is on the prosecution to establish that the accused has committed a crime. If the prosecution fails to establish beyond reasonable doubt that the accused is guilty, the accused is entitled to an acquittal.[7]In the famous case of Woolmington v. DPP[8], Stating the judgment for a unanimous Court, Viscount Sankey made his famous "Golden thread" that the burden of proving is on prosecution beyond the reasonable doubt.

But if burden of proof is put on the shoulders of the wrong party, the Supreme Court states that this would vitiate the entire judicial system.[9]And the media trial is a perfect example of this shifting the burden on accused that it had not committed the crime. This is in total violation of the basic principles of jurisprudence to prove beyond the reasonable doubt by the prosecution and fundamental rights of the accused.

Reputation of Accused

Media is not acquainted with the traditional rules according to which evidence are to be cited and therefore, are not well versed to talk about the evidence that are substantial for declaring an accused as a convict. Thus, this frequently takes away from the victim the right to justice. This type of mockery of the right to justice is more evident when an ordinary criminal or accused is made equivalent to a seasoned criminal or a felony by the media, without conducting any appropriate investigation on the subject-matter.

In most of the cases, media is least bothered by the reputation of the accused and is more concerned with creating a “Breaking News Item” Nowadays, it is very common to see that the accused is put on trial by media and is declared as convict without even giving an opportunity to the other side to be heard, which blatantly harms the natural justice principle.

Security of Witnesses

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 lacunae 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.

Media Cares only for TRP

It seems that “media trial” has moved to “media verdict” which clearly indicates the misuse of freedom of speech. After the introduction of Target Rating point (TRP) the competition has increased among the media houses which has created great amount of pressure on journalism. Before the introduction of this TRP, journalists used to work with braveness, integrity and impartially. But with the need of increasing TRP scales, the media war has become ruthless. For the purpose of regulating the media certain guidelines and norms are set by the Press Council of India. Lately, the media is misusing its freedom in the garb of the “freedom of speech and expressing”. “Freedom of expression” is allowed only to the extent to which it does not have any harmful effect on others.

Media Trial and Contempt of Courts Act

For the purpose of protecting this right to fair trial provisions are included in the Contempt of Courts Act, 1971 and under Articles 129 and 215 of the Constitution of India, which empowers the Supreme Court and High Courts respectively “to punish for contempt of itself”. Therefore, liability for Contempt of Court may arise on the part of a journalist who publishes anything that may prejudice a “fair trial” or harms the impartiality of a Court to decide a cause on its merit.

Saibal Kumar v. BK. Sen, 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 published the details of 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.”

In M.P. Lohia v. State of West Bengal[10] 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.[11]

Cases on Media Trial

K.M. Nanavati v. State of Maharashtra[12]

In this case the question was that whether K.M. Nanavati was guilty in intentionally killing of the deceased, as his wife as confessed to him about his illicit relationship or it was the result of sudden and grave provocation? The jury in the Sessions court brought a verdict of ‘not guilty’ under both charges by an 8:1 majority. The Sessions judge then submitted the case to the Bombay High Court, as he was opposed to the opinion of the jury. An appeal was hereafter made. It was claimed that jury had been influenced by media and was open to being misled.

In appeal filed to the high court, the conviction was converted to punishment for murder. We also see how the judgment of the Supreme Court is absolutely the reverse of the jury.

As jury members were mostly members of the society in general and not legal professional or judges, these shortcomings were expected from the jury trials system. They were highly influenced by the media, community, and society.

Sunanda Pushkar death case

Sunanda Pushkar, the wife of renowned politician Shashi Tharoor, was found dead in a hotel. Initial reports claimed that it was a suicide but later reports mentioned that the reason of death was not natural. When the Delhi Police Commissioner was asked by the media houses about labeling Tharoor as the prime suspect, then he refused to label Tharoor and said that they were in no hurry to question Tharoor. But as the media always does, started with their media trial and declared Shashi Tharoor as the murderer.[13] Disclosing of half-truths, cherry-picking of facts and twisting of statements were considered to be more preferable than trying to put forward the actual facts about the case.

In the year 2017, Shashi Tharoor filed a defamation suit in Delhi High Court against a well- known media house. The Court observed that the “right to silence” of Shashi Tharoor must be respected by the Journalist and his channel during the pendency of the investigation in Sunanda Pushkar’s death case. The Court further said that the Journalist and his channel are free to state facts in relation to the investigation but cannot announce Shashi Tharoor to be the murderer.

The Court was of the view that after the commencement of the criminal investigation media reporting needs to be sensitive to the uncertainty relating to the questions rose in the proceedings. The “press” cannot declare anyone convict or insinuate anyone guilty or make any kind of unsubstantiated claims. Care and caution must be taken by the press while reporting on pending trial or matter under investigation.

Sushant Singh Rajput Case

The Hon’ble Court observed that “Trial by media leads to interference and obstruction of justice and clearly amounts to contempt.” Also, the court held that media should avoid putting photographs of victims and accused as well as reconstructing the incident while the investigation is underway.

The High Court found that the kind of coverage that Republic TV and Times Now did at that time vilifying Riya Chakraborty and insisting the Mumbai police had failed by not arresting her was prejudicial to the interests of Chakraborty as a potential accused, and could dent any attempt to have a fair trial in the future.

The court said, “substantial damage has been caused to the reputations of the persons so-called involved. It takes years of hard work to build a reputation and with just one stroke it is brought from top to bottom. Without being punished, there is stigma on their forehead till the trial is completed, no matter if they are cleared of the charges,”

Aryan Khan Drug Case

Aryan Khan was arrested because of an alleged drug bust by the Narcotics Control Bureau (NCB) in Mumbai. The young man has spent considerable time in jail, been slandered online, and has his face (and private information) plastered over the web. A lot of hate that Aryan Khan is getting seems to be simply because he is famous by association. Comments like ‘his father is rich,’ ‘these star kids are all like this,’ and ‘all these kids do drugs’ were floating around on the internet, with some other strongly worded and politically charged commentary thrown in as well.

"There is hardly any positive evidence on record to convince this Court that all the accused persons with common intention agreed to commit unlawful act," the Court’s bail order read.

In the process of this very public trial, what is forgotten is that mental health is a fickle and brittle thing. Small things may trigger a cascade that leads to a lifetime of mental health issues.

Before the hon’ble Judiciary passed a judgement or even there could be a trial in this case, Aryan Khan has probably dealt with a lot of unwelcome media attention in his life already, but as a 23-year-old boy and a star kid, this communal badmouthing, doubting, and harassment is probably leaving a mark that we might not be able to see, but he will always be able to feel.[14]

Later, Aryan Khan was cleared of all accusations by the NCB.

Conclusion

No freedom, however sacred it may be, can be absolute. This is also true of press freedom. Not only the freedom of press is subject to the laws of the land, such as contempt and libel, but also is responsible to the society it serves. It should accept certain responsibilities in the discharge of its function.

The press has an obligation –voluntary and self-imposed that in presentation of truthful news and fair comment it adheres to certain norms of decency and decorum, and that it does not indulge in vulgarity, obscenity, character assassination, violation of citizen’s privacy and incitement to offence, disorder and disintegration of the country.

Also, in presentation of news as well as comments, the press should avoid sensationalism and vulgarity. It should eschew publication of reports tending to incite violence which may lead civil disorder, mutiny, or rebellion. Anything obscene or tending to encourage the crime or unlawful activities should be kept out of both news and advertisement columns. Rumors, gossips and scurrilous reports concerning the private life of an individual should be avoided.

It has been 72 years since India became Republic and commencement of the Constitution and there has been a lot of ups and down in our democracy and the press also has come across age. As being a subject of the largest democracy of the world we should remember the words of our former Prime Minister Rajiv Gandhi, that the time has come for the press of the largest democracy in the world to work with hand- in-hand with judiciary for the welfare of its subjects.

Thus, it is true that the media forms the backbone of a democratic society. It subjects the functioning of all public institutions to public scrutiny, and makes them answerable and accountable to the public to whom they have to serve. It also plays an important role in assisting in administration of justice.

However, it cannot be ignored that at times the media fails to exercise the freedom of press conferred upon it by the Constitution in ‘public interest’ as pointed out above. It neglects the real and core issues which the society is facing. It forgets its social responsibility towards the people. It is for this reason that a need arises to regulate this freedom of press.

A responsible media is the handmaiden of effective judicial administration. Free and robust reporting, criticism and debate should be there which contributes to public understanding of rule of law and a better comprehension of the entire justice system.

References

1. Bare Acts

· The Constitution of India, 1950.

· The Contempt of Courts Act, 1971.

2. Websites

· Diva Rai, Jessica Lal murder case: The epitome of judicial and media activism in India, August 5, 2020 available at https://blog.ipleaders.in/jessica-lal-murder-case-the- epitome-of-judicial-and-media-activism-in-india/ .

· Bachi Karkaria, Nanavati case marked many firsts – trial by media & tussle between judiciary and executive, 27 April, 2019, available at https://theprint.in/opinion/nanavati-case-marked-many-firsts-trial-by-media-tussle- between-judiciary-and-executive/227964/ .

· Bachi Karkaria, A 'crime of passion' that India never forgot, 14 May 2017, available at https://www.bbc.com/news/world-asia-india-39790535 .

· Justice V. Rajkumar, “Trial by Media”, http://www.livelaw.in/trial-by-media/.

· Justice Y. Srinivasa Rao, “Fair Trial” https://www.latestlaws.com/articles/right-to- fair-trial-by-y-srinivasa-rao-judge/,

· Hon'ble Mr. Justice G. S. Singhvi, TRIAL BY MEDIA: A NEED TO REGULATE FREEDOM OF PRESS∗ Oct.- Dec., 2012, Bharati Law Review available at www.manupatra.com .