By Arpit Agrawal :
In the last decade we have witnessed rapid growth of media influence in the process of access to justice in plethora of cases relating to corruption, rape, murder, sexual harassment, terrorist activities, etc. Media activism imposes an indirect pressure on the adjudicating authorities to deliver justice to victims in a timely manner.
Media, is considered to be the watchdog of society and catalyst of reforms. For the smooth functioning of democracy under Article 19(1) (a) media impliedly claims the right to investigate, reveal, expose and criticize to create a constructive check.
In a democracy the freedom of press is very essential as the public has right to know and right to be informed. But, the media has to take utmost precaution while publishing news and cases pending before court as it would lead to media trial. The investigative role of press has been useful to set right the mal-administration of authority, exposing crimes and unlawful acts and disseminating information of public interest. But the expression public interest has no fixed connotation. The Media trial has become an acute problem with the ever-expanding role of media.
The intervention of media in recent times has drawn positive appraisal as constant effort of media to discover truth has played a pivotal role in delivering justice in the infamous Jessica lal Case, and Nirbhaya Case.
In Sanjeev Nanda Case, NDTV news channel conducted a sting operation showing Nanda’s lawyer bribing the witness, while the state prosecutor being complicit and helped in the discovery of the truth.
Legality of ‘Trial by Media’
(i) Freedom of press
Article 19 of the International Covenant on Civil and Political Rights, 1966, embodies the right to freedom of speech, that is, “everyone shall have the right to hold opinions without interference” and the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
Nonetheless, this freedom comes with a rider that the exercise of this right comes with “special duties and responsibilities” and is subject to “the rights or reputations of others”.
The right to freedom of speech and expression has been guaranteed under Article 19(1) (a) of the Constitution of India. Even though freedom of press is not a separately guaranteed right in India unlike the United States of America, the Supreme Court of India has recognized
freedom of press under the umbrella right of freedom of speech and expression as envisaged under Article 19(1)(a) of the Constitution of India.
In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar6, the Supreme Court had the occasion to decide on the scope of the freedom of press, recognized it as “an essential prerequisite of a democratic form of government” and regarded it as “the mother of all other liberties in a democratic society”7
It was stated in Hamdard Dawakhana v. Union of India9, that the right includes the right to acquire and impart ideas and information about matters of common interest.
(ii) Immunity under the Contempt of Court Act, 1971
Under the Contempt of Court Act, 1971, pre-trial publications are sheltered against contempt proceedings. Any publication that interferes with or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding, which is actually ‘pending’, only then it constitutes contempt of court under the Act.
Under Section 3(2), sub clause (B) of clause (a) of Explanation, ‘pending’ has been defined as “In the
case of a criminal proceeding, under the Code of Criminal Procedure, 1898 (5 of 1898) or any other law – (i) where it relates to the commission of an offence, when the charge- sheet or challan is filed; or when the court issues summons or warrant, as the case may be, against the accused.”
Under the existing framework of the Contempt of Court Act, 1971, media reportage, as seen during the Aarushi Talwar case, where the press, had literally gone berserk, speculating and pointing fingers even before any arrests were made, is granted immunity despite the grave treat such publications pose to the administration of justice.
Such publications may go unchecked if there is no legislative intervention, by way of redefining the word ‘pending’ to expand to include ‘from the time the arrest is made’ in the Contempt of Court Act, 1971,
or judicial control through gag orders as employed in United States of America.
(iii) The public’s right to know
In A.G. v. Times Newspaper Supreme Court opined, “The primary function, therefore, of the press is to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. It has an educative and mobilising role to play. It plays an important role in moulding public opinion”
However, the Chief Justice of India had remarked, “freedom of press means people’s right to know the correct news”, but he admitted that newspapers cannot read like an official gazette and must have a tinge of “sensationalism, entertainment and anxiety”.15
In the Bofors Case16, the Supreme Court recounted the merits of media publicity: “those who know about the incident may come forward with information, it prevents perjury by placing witnesses under public gaze and it reduces crime through the public expression of disapproval for crime and last but not the least it promotes the public discussion of important issues.
(iv) Public participation
Quoting Jeremy Bentham, on secrecy in the administration of justice, “In the darkness of secrecy, sinister interest and evil in every shape are in full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps
the judge himself while trying under trial.”
Without a free press, we will regress into the dark ages of the Star Chambers, when the judicial proceedings were conducted secretively. All these omnipresent SMS campaigns and public polls only provide a platform to the public to express its views. It is generating public dialogue regarding issues of public importance
(v) Ineffective legal norms governing journalistic conduct
under Section 14(1) of the Press Council Act, 1978. The Council, also, enjoys powers to censure. If someone believes that a news agency has committed any professional misconduct, the Council can, if they agree with the complainant, “warn, admonish or censure the newspaper”, or direct the newspaper to, “publish the contradiction of the complainant in its forthcoming issue”
But these measures can only be enforced after the publication of news materials, and do not involve particularly harsh punishments, their effectiveness in preventing the publication of prejudicial reports appears to be limited.
In Ajay Goswami v. Union of India26, the shortcomings of the powers of the Press Council under Section 14 were highlighted.
Repercussions of Trial by Media
- Right to Fair Trial compromised
The edifice of the indian criminal justice system is based on the twin principles of ‘guilt to be proved beyond reasonable doubt’ and ‘presumption of innocence until proven guilty’.
In Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court explained, “denial of a fair trial is as much injustice to the accused as is to the victim and the society. fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. 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.”
Sensational journalism has also had an impact on the judiciary. For instance, a ‘trial-by-media’ began almost immediately after Afzal’s arrest in the attack on the Indian Parliament case. Only one week after the attack, on 20 December 2001, the police called a press conference during the course of which Afzal ‘incriminated himself’ in front of the national media.
- Right to Privacy
Article 12 of Universal Declaration of Human Right enunciates, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
The following observations of the Supreme Court in R. Rajagopal v. State of Tamil Nadu are true reminiscences of the limits of freedom of press with respect to the right to privacy: “a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. if he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”
- Reputations Tarnished
Article 19 of the International Covenant on Civil and Political Rights, 1965, enunciates, “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. However, the exercise of such rights carries with it special duties and responsibilities and the same may be subject to certain restrictions like respect for the rights or reputations of others.
During the hearing of the public interest litigation filed by advocate Surat Singh in the Aarushi Talwar murder case before the Supreme Court, Justices Altamas Kabir and Markandey Katju remarked, “Nobody is trying to gag the media. They must play a responsible role. by investigation, the media must not do anything which will prejudice either the prosecution or the accused. sometimes the entire focus is lost. A person is found guilty even before the trial takes place.”
(iv) Meddling with the criminal justice system
Due to such high-powered salesmanship of ideas, the proactive stance of the media is beginning to intervene with the administration of justice. There is excessive pressure on the police and administration.
In State (N.C.T. of Delhi) v. Navjot Sandhu, the Court deprecated the practice of exposing the accused persons to public glare through TV and in case where Test Identification Parade or the accused person being identified by witnesses (as in the present case) arise, the case of the prosecution is vulnerable to be attacked on the ground of exposure of the accused persons to public glare, weakening the impact of the identification. Due to media propaganda, lawyers of unpopular accused persons are subjected to public derision.
Conclusion
The criminal justice system followed in India is based on the theory that an accused is entitled to fair trial and is innocent until proven guilty beyond any reasonable doubt. But, under the hood of “Media Trial”, where the media itself conducts a separate investigation, builds public opinion against the accused even before the court takes cognizance of the case, by this way it prejudices the public and the judges and as a result the accused, that should be assumed innocent, is presumed as a criminal. The trial by media influences the witness also, the witness may change their depositions in tune with media reports and public opinion created by the media. The repeated reports in media may leave witness in a state of confusion and they may be deviated from what they have seen or heard.