Trial by Media

I. Introduction – An Overview

A question arises that whether Media Trial really affects the natural process of an Indian Court proceeding by shaping its findings parallel to people’s opinion. It is pertinent to note that India follows the Judge System i.e. senior individuals appointed only after qualifying professional examination who are appointed as the sole qualified person to pass a verdict; unlike the Jury System where random senior citizens of the country are appointed to a certain case to be adjudged by them. A reverse argument to this is that the judge system framework makes India's courts very nexused, while the Jury System has radically diminished the nexus-inclination in Western courts. However, a far-reaching media can easily play a psychological role in changing the thinking of a jury pool than a well-qualified non-biased judge. Hence, it is important that Media platforms follow professionalism and ethics. There have been various circumstances where the media had assumed control over cases and pronounced an accused guilty even before the court has pronounced its judgement. “If the issues arising in litigation are ventilated in such a way as to lead the public to form its own conclusion thereon in advance, it may lose its respect for and confidence in courts' and that Again, it cannot be excluded that the public's becoming accustomed to the regular spectacle of pseudo-trials in the news media in the long run have nefarious consequences for the acceptance of the Courts as the proper forum for the settlement of legal disputes.”² The Constitution guarantees the right to freedom of speech under Article 19(1)(a), i.e. the right to hold opinions without interference and therefore freedom to to look, obtain, transmit knowledge, ideas of any sort either orally or in writing, or in print, or in any medium with extensive limits. However, freedom of the press is not absolute, reasonable restriction is to be applied to safeguard the rights of public at large or that even of a single citizen. However, in a plethora of cases, the media has pronounced an accused as guilty even before the start of trial. Such publication that incites and causes a wave of people’s opinions, such wave immerses the natural proceeding of the judiciary, making the trial unjust. Such publications fail to comply the directions of reasonable constraint under Article19(2) of the Constitution, and suo moto fall under Contempt of Court for infringing with the rights of the accused of fair and just trial under Article 21 of the Constitution. Hence, this is often subject to special roles and obligations and to the privileges or reputations of people.

Trial by media or prejudice due to pre-trial reporting and publications by the media falls under the umbrella of Article 19(1)(a) which guarantees the fundamental right of 'freedom of speech and expression', only to the extent to which the right can be reasonably restricted under Article 19(2) of the Constitution.

Article 14 and 21 of the Indian Constitution guarantees fair trial and investigation to every citizen. However, such right of an accused is usually hampered by media trial. “The manner in which people accused of crimes are portrayed in media, and the consequences that these people have to suffer thereafter, in almost all cases notwithstanding the final verdict of the court of law, is and always been, a matter of concern for all democratic, republican systems based on a written constitution and rule of law.”³

The media has portrayed stories in a way so to incite the overall population to put stock in the complicity of the individual prosecuted. Where there has been high exposure of legal disputes, the media has frequently assumed a significant part in creating hysteria among the watchers, making it almost incomprehensible for fair trial. There have been cases that would have driven the court to report the charged as guiltless, had it not been the anger of the media in embellishment the appraisals of people, similarly as influencing the course of the Judiciary. To name a few, The Bijal Joshi rape case (2005), The Priyadarshini Mattoo case (2006) and The Jessica Lal case (2010) are few cases where the Media has gone a step ahead to try the case and pronounce a pseudo-judgement in the eyes of common man before the actual acquittal or conviction order from the Hon’ble Courts.

The paper revolves around Freedom of Press, framework of regulatory laws of media so as to prevent publishing of prejudicial matter, safeguarding the privileges of a denounced under Article 14 and 21 of the Constitution of India against Media Trial for the need of accomplishing fair and just investigation and trials.

II. Freedom of Press

In the earlier years, the Supreme Court in Romesh Thappar v. State of Madras observed that freedom of the press is an essential framework to support a democratic nation. It was established that a law could impose similar restrictions on the exercise of this right as stated under Article 19(2) of the Constitution. Freedom of press comes as an opportunity for citizens to educated themselves regarding public issues. To safeguard democracy rules of nation, it is crucial that people should have the chance of express their feelings and to make their viewpoints known to the people unhindered. Refusal or restrictions to Freedom of Press would essentially undermine the ability to affect general inclination of opinion-making.

The case of Indian Express Newspapers v/s Union of India, laid down the importance of media in systematic running of a democracy. “Freedom of Press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in large scale particularly in the developing world. The courts have obligation to maintain the opportunity of press and refute all laws and authoritative activities that shorten that opportunity.”⁴

Freedom of Press has not been accepted as a separate right under the Constitution unlike the United States of America or the Republic of South Africa. Freedom of Press falls under Article 19(1)(a) i.e. Freedom of Speech and Expression. The Supreme Court in the case of Re: Harijai Singh And Anr., recognized Freedom of Press as, “an essential prerequisite of a democratic form of government” and regarded it as “the mother of all other liberties in a democratic society”⁵

The court in Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India⁶ held that freedom of press was not restricted to expression of thoughts and ideas which were “accepted” and “acceptable” but also to those which offended or shocked any section of the population. Freedom of speech and expression included the right to receive information and ideas of all kinds from different sources, and embodied the right to know.⁷

In Shreya Singhal v. Union of India⁸, the court held that the substance of the rights under Article 19 (1) (a) would continue as before, regardless of the method of communication. The law does not restricts reporting and publishing to mass, or a single person; yet it is required for the message to not contain any claim that might disrupt public order.⁹

As reiterated in Anukul Chandra Pradhan v. Union of India, “No occasion should arise for an impression that the publicity attached to these matters (the hawala transactions) 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”¹⁰As quoted by Justice L. Narasimha Reddy, “abysmal levels to which the norms of journalism have drifted” referring to the media, the judiciary has been critical of the overactive and prejudicial reporting by the media.

Hence, any publication outside the purview of Article 19(2) of the Constitution shall be prohibited. A duty of care shall be implemented to refrain from bias, incorrect and half detailed publishing or reporting, failure of which, such act shall be punishable by law. Any publisher, editor and journalist of a magazine that shall report maliciously, the facts of a case sub-judice, thus interfering with the administration of justice shall not fall under the ambit of Freedom of Press.

III. Media trial vs. Fair trial

The right to a fair trial is an absolute right provided to every individual as per Articles 14, 19 and 21 of the Constitution. However, the freedom of the press is not absolute, just as the freedom of expression is not. Public Interest has to be safeguarded by article 19(1)(2) which lays down reasonable limitations to the freedom of expression in matters affecting:¹¹

• Sovereignty and integrity of the State
• Security of the State
• Friendly relations with foreign countries
• Public order
• Decency and morality
• Contempt of court
• Defamation
• Incitement to an offence

As reiterated in Indian Express Newspapers v/s Union of India, “Freedom of expression has four broad social purposes to serve:

i. It helps an individual to attain self-fulfilment,

ii. It assists the discovery of truth,

iii. It strengthens the capacity of an individual in decision making, and

iv. It provides a mechanism by which it is possible to establish a reasonable balance between stability and social change”¹²

However, such purpose is only served and can be upheld by not violating the abovementioned provisions of Article 19(1)(2) of the Constitution. In specific cases, the Supreme Court has expressed that publications by the press, electronic media, web-based media or any open fomentation are occasions which could be portrayed as absolute opposite of the overall standard of law, prompting the premature delivery of equity.

The court in the case of Kartongen Kemi Och Forvaltning AB and Ors. vs. State through CBI balanced the rights of the accused of fair trial while counter-balancing the role of media in restructuring justice system. It was held that the media not only promotes healthy discussions of ongoing issues but also, media helps in providing exposure to the individuals who think about the facts in dispute and may offer additional facts and information, it forestalls perjury by setting observers under open speculation and it lessens wrongdoing through the public articulation of dissatisfaction for wrongdoing. This is done in light of a legitimate concern of the interest of freedom of press and right of information, not forgetful of the fact that right to a fair trial is equally valuable.”¹³

In State of Maharashtra vs. Rajendra Jawanmal Gandhi, the Supreme Court observed: “There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and is to be guided strictly by rules of law. If he finds the person guilty of an offence, he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law.”¹⁴

Article 14 of the Constitution provides that the State shall not deny to any person equality of law or the equal protection of the laws. The courts have a duty to uphold. Media Trials may not, must not make a circumstance where the Judge feels as he would like to think that it would be more positive to pass a decision that is corresponding to the people groups prominent attitude, than something that isn't adjusted to the line of examination and circumstantial evidence if any. Failure of pronouncing a judgement on the facts of the case, but on people opinion may bring grave injustice, violating the accused right of equal protection of law and before law.

Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. In the present age of being the best in business, many news channels and journalist, allegedly to improve the TRP ratings, tend to share sensitive information on television, blogs, etc. Information like private chats which are alleged to be end-to-end encrypted too! From sharing to someone’s private conversations to their bank details. All information which is very much an issue of Right to Privacy (falls under the ambit of Right to Life and Personal Liberty) which ethically should have not been shared. Any such information that infringes with the pre-trial proceeding shall fall under Contempt of Court and strict action shall be taken in order to protect the rights of the accused. In the case of Anukul Chandra Pradhan v. Union of India¹⁵, the Supreme Court laid down that there should not be any publicity that may affect the essentials of a fair trial and the basic principles of presumption of innocence of the accused unless found guilty at the end of the trial.

Hence, any publication or reporting, whether written or spoken that shall infringe with the Rights of Accused and instances that can at best be described as the anti-thesis of rule of law as they can lead to miscarriage of justice shall be held contemptuous in nature.

IV. Right to be represented

High profile cases in the recent pasts have received great media attention, with the aim of increasing TRPs, media has increased the pressure on lawyers handling such high-profile or sensitive cases. For a layman, the denounced should’ve not been represented, however that is not fair trial. Even an accused has the right to be represented, where the Media makes it hard for experts to carry out their responsibility where they are attempting and maintain the privilege of their client(accused) for a reasonable and just trial. The dread of losing the altruism of a legal advisor let alone the accused, through the mechanism of media has made numerous legal counsellors avoid such prominent delicate cases. In the case of Manu Sharma in Jessica Lal’s case, where the well-known senior advocate Ram Jethmalani had defended the accused; one of the TV News channel reported it as “defence of the indefensible”, subsequently, articulating that the accused was by then obligated for the wrongdoing. The assumption of the media indisputably encroaches upon the rights of the accused to have a reasonable fir-trial similarly as his right to be represented by a professional.¹⁶

Ordinarily, representation through a legal advisor in any authoritative procedures isn't considered as a significant an aspect of the standard of natural justice, as oral hearing isn't included within the minima of fair hearing. However, the courts in India have held that in need of representation in situations, where the person is illiterate, or matter is complicated and technical or expert evidence is an record, or an issue of law is involved, or the person is facing a trained prosecutor, some professional assistance must tend to the party to form his right to defend himself meaningfully.¹⁷

V. Media Trial, Contempt of Court?

The contempt of court law is one of the more significant morals of media. The importance of law which ought to be remembered by the media as a whole. The Contempt of Court Act, 1971, which was amended in 2006 has two distinct aspects: (a) civil contempt and (b) criminal contempt.

But as for the media, it has mainly been concerned with criminal contempt. Section 2(c) of the Act, criminal contempt, means the publication, whether by words, spoken or written or by signs, or by visible representations or otherwise of any matter or any other act whatsoever which

(i) scandalizes or tends to scandalize or lower or anything that tends to lower the authority of any court or

(ii) prejudices or interferes or tend to interfere with the due course of any judicial proceeding or

(iii) interferes or tends to interfere with expression.¹⁸

In the popular instance of Aarushi Talwar's Murder,¹⁹ the media had pronounced the guilt of the accused before the trial had begun. This further leads to misleading the public and affecting the rights of the accused of a fair trial. Yet, this is frequently additionally a resistance given to the press, yet the media had gone crazy during this case. Such distributions have been known to have gone unchecked without the impedance of the law-making bodies of the country. It has been named as contempt since a portion of the demonstrations which are distributed before the decision given by the court, can misdirect people in general and influence the privileges of the blamed for a reasonable preliminary. Not to forget that the democratic rule of system is ‘reasonable play’ and ‘straight forwardness’ and by such a demonstration of the media, the idea of democracy raises a serious question.²⁰

Article 129 and Article 215 of the Indian Constitution states the powers vested with the Supreme Court and the High Courts to repel itself for any contempt, independently. Consequently, a columnist or a journalist may be in danger for the contempt of the court, where he decides to circulate anything which may struggle with the "fair trial" of the accused or which may incapacitate the absence of prejudice of the of a court during any proceeding.

As seen before under Article 19(1)(2), any publication or reporting not in accordance with the reasonable restriction applied, may be subject to review. The media ought to be cautious and ought to cling to the standards and guidelines recommended by the Press Council of India and ought to likewise remember the standards of normal equity and reasonable examination regardless.

In Arundhati Roy²¹, the Supreme Court has considered the view taken by Frankfurter, J. in Pennekamp v. Florida in which Judge of the United States observed: “If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise.”

A question arises as to in what part of a court proceeding, an ill reporting or publishing is to be declared as a contemptuous act or an abuse of the process of court? The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has suggested that such posting of incorrect facts, or not disclosing every fact, or ill reporting of facts shall be contemptuous only after a Charge Sheet is filed in case of criminal case, whereas it should be invoked from the time of arrest. The Law Commission has also recommended a law to debar the media from reporting anything prejudicial to the rights of the accused in criminal cases, from the time of arrest to investigation and trial.²² “In India a criminal trial does not begin until a competent court has framed charges against the accused; and charges can be framed only after the police have concluded their investigation and have filed the investigation report (popularly known as a charge-sheet) before the court.”²³

The commission had said, “Today there is feeling that in view of the extensive use of the television and cable services, the whole pattern of publication of news has changed and several such publications are likely to have a prejudicial impact on the suspects, accused, witnesses and even judges and in general on the administration of justice”²⁴

Three defence generally available to a claim of Contempt of Court are following²⁵:

• innocently publishing or committing acts that would otherwise amount to contempt, if there is reason to believe that there were no ongoing judicial proceedings regarding these acts, or
• if it is believed that the content of their words or actions did not contain anything contemptuous, or
• if the reporting is factually accurate, disclosing all facts, and
• fair criticism of the judiciary,
• truth as a defence to contempt, provided that the person claiming this defence was acting in public interest.²⁶

VI. Regulating Laws

There are mainly three act that states the objectives governs the rights of press, namely, The Press Council Act, 1978, The Cable Television Networks (Regulation Act), 1995 and The Information Technology Act, 2000.

The objective of Press Council Act, 1978 is to ensure on the part of newspapers, news agencies and journalists: ²⁷

• the maintenance of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship and
• encourage the growth of a sense of responsibility and public service among all those engaged in the profession of journalism

Alongside these forces, the Press Council of India has set up a lot of recommended standards for editorials. These standards accentuate the significance of accuracy and fairness and encourage the press to maintain professional standards and to refrain from distribution of mistaken, unmerited, awkward, deluding or mutilated material. There shall be an attempt to report impartial and disclosure of complete facts at all time. Failure of which, the such reporting or publication will be tried under contempt of court. Nonetheless, the PCI can only exercise its powers with respect to pending civil or criminal cases. “This limitation does not consider the extent to which pre-trial reporting can impact the administration of justice.”²⁸

The Cable Television Networks Rules, 1994 sets restrictions and specifies that no program ought to be conveyed if any of the measures are met i.e. any program containing anything vulgar, slanderous, purposeful, bogus and intriguing insinuations and misleading statements; which is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes.²⁹

Along with media specific legislation, with the increase in cyber bullying and electronic publications, enactment of Section 69A of the Information Technology Act empowers the Central government to direct any intermediary to block any information generated, transmitted, received, stored or hosted in any computer resource, if it is satisfied that it is necessary or expedient to do so in the interest of the sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign States, public order, or for preventing incitement to the commission of any cognisable offence provided for in the law.³⁰

The Hon'ble Supreme Court of India in Sahara India Real Estate Corp. Ltd. v. Securities & Exchange Board of India³¹ while deciding the issue whether the court can frame guidelines for the visual media, observed that deferment of publication of such matters pending trial can be ordered. Be that as it may, even in the said choice likewise, the Hon'ble Supreme Court of India has declined to pass orders as to the framing such guidelines for the visual media.

The foundation of the abovementioned statutes likewise has a huge effect on the way it has controlled the intensity of the press, media and electronic media to keep it from distributing biased substance. Henceforth, regulating the substance that goes out to the watchers remains impaired and anything that contends with the law, will fall under the ambit of contempt. The most fitting approach to manage the press is to penalise the individuals who disregard this fundamental code of contempt of the court.

VII. Conclusion

The media has become a foundation of the democratic rule of our nation. The functioning of judiciary is not to be frustrated or hindered by a democracy which tends to serve the more prominent interests of the general public, the rights of press shall be restricted up to setting an issue in the awareness of society with no assumption being given. Yet, these rights are being utilised in a greater scope that what they were enacted for. Media shouldn’t publish prejudicial reports, and let the judiciary function the way prescribed in law, without creating any bias in the general conclusion. The right to a free and fair trial under Article 21 must be maintained.

The Contempt of Court Act, 1971 is still hard squeezed of the option to talk unreservedly and articulation ensured by the Constitution to the residents of the nation. The law is seen as an infringement on the freedom of press in explicit cases. The freedom ensured isn't to be consulted with permit to make unwarranted, inappropriate and flighty slanders against the adjudicators or the courts corresponding to legal issues. However, it is pertinent to note that the media must be appropriately managed by the courts. While a media which has been constrained by the legislature isn't useful for democratic rule government, the suggestions and the consequence of unaccounted distributions are considerably all the more harming to the standing of the individual as well as to the judgment forced by the courts. The media unequivocally loathes to this rule of sub judice rule. Media platforms have often complained about interpretation of this sub judice rule. Courts have precluded publishing and reporting of issues of any discussion of the issues before the Court, even though they attract public interest. There is in this manner a prompt need to change the sub-judice rule of law, summoning it just in situations where there is a solid reason to influence fair-trial and in no demonstration which may have a far off capacity to impact it. If public interest is missing and self or manipulative interests surface, the media loses its ground and invites the contempt of the court.

Steps should be taken so as to forestall media preliminaries from dissolving the social liberties of citizens, whereby the media have a clearer understanding of their privileges and obligations, and the courts are enabled to rebuff the individuals who glaringly ignore them.

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