Media Adhiraj

SYMBIOSIS LAW SCHOOL, PUNE

SUBJECT : Entertainment Law

Project On : Constitutionality of

Media Trials in India

NAME : Adhiraj Singh Chauhan CLASS : B.A.LLB Div. ‘B’ Year IV PRN : 14010125102

INTRODUCTION The demi-world of journalism is like the fun house of mirrors that one finds in carnivals. In one reflection you are too fat; in another you are absurdly thin; in another reflection you appear to have an elongated neck; in another, a flat head,- in still another you have next to nobody. Yet there you are, standing in front of these bizarre reflections, fully formed and hearing little resemblance to any of the images before you. The difference is, however, that unlike the fun house of mirrors, the distortions of the media are rarely a joke1. With the case of Sheena Bohra murder, the excruciating eyes of the media have pierced the personal life of the main accused Indrani Mukherjea which has kicked in a fresh debate on the issue of media trial of the accused. Every aspect of her personal life and character which have nothing to do legally with the investigation of the murder are under public lens of scrutiny via the media. The ethics of journalism have been again in a controversial area due to their prying eyes on the accused. Media is regarded as one of the four pillars of democracy. Media plays a vital role in moulding the opinion of the society and it is capable of changing the whole viewpoint through which people perceive various events. The media can be commended for starting a trend where the media plays an active role in bringing the accused to hook. Especially in the last two decades, the advent of cable television, local radio networks and the internet has greatly enhanced the reach and impact of the mass media. The circulation of newspapers and magazines in English as well as the various vernacular languages has also been continuously growing in our country. This ever-expanding readership and viewership coupled with the use of modern technologies for newsgathering has given media organizations an unprecedented role in shaping popular opinions. However, media freedom also entails a certain degree of responsibility2. The strength and importance of media in a democracy is well recognized. Article 19(1) (a) of the Indian Constitution, which gives freedom of speech and expression includes within its ambit, freedom of press. The existence of a free, independent and powerful media is the cornerstone of a democracy, especially of a highly mixed society like India. Media is not only a medium to express one’s feelings, opinions and views, but it is also responsible and instrumental for building opinions and views on various topics of regional, national and international agenda. The pivotal role of the media is its ability to mobilize the thinking process of millions. The increased role of the media in today’s globalized and tech-savvy world was aptly put in the words of Justice Learned Hand of the United States Supreme Court when he said, “The hand that rules the press, the radio, the screen and the far spread magazine, rules the country”3.

1

TRIAL BY MEDIA AND TRIAL OF MEDIA http://www.rrtd.nic.in/MassMediaIndia2009.pdf 2 http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-by-media-looking-beyondthe-pale-of-legality-.html 3 Right to Privacy in Sting Operations of Media http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/57-61.pdf

Democracy is the rule of the people, a system which has three strong pillars. But as Indian society today has become somewhat unstable on its 3 legs- the executive, the legislature and the judiciary, the guarantee of Article 19 (1)(a) has given rise to a fourth pillar known as media or press. It plays the vital role of a conscious keeper, a watchdog of the functionaries of society and attempts to attend to the wrongs in our system, by bringing them to the knowledge of all, hoping for correction. It is indisputable that in many dimensions the unprecedented media revolution has resulted in great gains for the general public. Even the judicial wing of the state has benefited from the ethical and fearless journalism and taken suo-moto cognizance of the matters in various cases after relying on their reports and news highlighting grave violations of human rights4. However, there are always two sides of a coin. With this increased role and importance attached to the media, the need for its accountability and professionalism in reportage cannot be emphasized enough. In a civil society no right to freedom, howsoever invaluable it might be, can be considered absolute, unlimited, or unqualified in all circumstances. The freedom of the media, like any other freedom recognized under the Constitution has to be exercised within reasonable boundaries. With great power comes great responsibility. Similarly, the freedom under Article 19(1) (a) is correlative with the duty not to violate any law5. In an increasingly competitive market for grabbing the attention of viewers and readers, media reports often turn to distortion of facts and sensationalisation. The pursuit of commercial interests also motivates the use of intrusive newsgathering practices which tend to impede the privacy of the people who are the subject of such coverage. The problem finds its worst manifestation when the media extensively covers sub judice matters by publishing information and opinions that are clearly prejudicial to the interests of the parties involved in litigation pending before the Courts6. Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become a license which would lead to disorder and anarchy. This is the threshold on which we are standing today. Television channels in a bid to increase their Television Rating Point (TRP) ratings are resorting to sensationalized journalism with a view to earn a competitive edge over the others7. In recent times there have been numerous instances in which media has conducted the trial of an accused and has passed the verdict even before the court passes its judgment. Some famous criminal cases that would have gone unpunished but for the intervention of media, are Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case and Bijal Joshi rape case. The media however drew flak in the reporting of murder of Aarushi Talwar, when it preempted the court and reported that her own father Dr. Rajesh Talwar, and possibly her

4

Ibid Id 6 Supra note 2 7 Supra note 3 5

mother Nupur Talwar were involved in her murder, the CBI later declared that Rajesh was not the killer. This phenomenon is popularly called as media trial. Trial by Media it is 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. 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. During high publicity court 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 nearly impossible but means that regardless of the result of the trial the accused persons will not be able to live the rest of their life without intense public scrutiny. The counter-argument is that the mob mentality exists independently of the media which merely voices the opinions which the public already has. There are different reasons why the media attention is particularly intense surrounding a legal case: the first is that the crime itself is in some way sensational, by being horrific or involving children; the second is that it involves a celebrity either as victim or accused. 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 beyond. This is not including the use of a state controlled press to criminalize political opponents, but in its commonly understood meaning covers all occasions where the reputation of a person has been drastically affected by ostensibly non-political publications. The problem is more visible when the matters involve big names and celebrities. In such cases media reporting can swing popular sentiments either way8. The practice which has become more of a daily occurrence now is that of media trials. Something which was started to show to the public at large the truth about cases has now become a practice interfering dangerously with the justice delivery system. And it highlights the enormous need of what is called ‘responsible journalism’9.

8 9

Supra note 2 Supra note 3

IMPACT OF MEDIA TRIALS Media trials vs. Freedom of speech and expression Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. Similarly, the persons in power should be able to keep the people informed about their policies and projects, therefore, it can be said that freedom of speech is the mother of all other liberties.10 Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India11 has stated: “[f]reedom 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 a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.” The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for 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.12 This explains the constitutional viewpoint of the freedom of press in India. In Printers (Mysore) Ltd. v. CTO13 the Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy. It therefore received a generous support from all those who believe in the free flow of the information and participation of the people in the administration; it is the primary duty of all national courts to uphold this freedom and invalidate all laws or administrative actions which interfere with this freedom, are contrary to the constitutional mandate.14

10

Freedom of press in India : Constitutional Perspectives http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=6752 11

(1985) 1 SCC 641 at p. 664, para 32. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 13 (1994) 2 SCC 434 14 Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 12

Therefore, in view of the observations made by the Supreme Court in various judgments and the views expressed by various jurists, it is crystal clear that the freedom of the press flows from the freedom of expression which is guaranteed to all citizens by Article 19(1)(a). Press stands on no higher footing than any other citizen and cannot claim any privilege (unless conferred specifically by law), as such, as distinct from those of any other citizen. The press cannot be subjected to any special restrictions which could not be imposed on any citizen of the country. Media trial vs. Fair trial Trial by media has created a “problem” because it involves a tug of war between two conflicting principles – free press and free trial, in both of which the public are vitally interested. The freedom of the press stems from the right of the public in a democracy to be involved on the issues of the day, which affect them. This is the justification for investigative and campaign journalism15. At the same time, the “Right to Fair Trial”, i.e., a trial uninfluenced by extraneous pressures is recognized as a basic tenet of justice in India. Provisions aimed at safeguarding this right are contained under the Contempt of Courts Act, 1971 and under Articles 129 and 215 (Contempt Jurisdiction-Power of Supreme Court and High Court to punish for Contempt of itself respectively) of the Constitution of India. Of particular concern to the media are restrictions which are imposed on the discussion or publication of matters relating to the merits of a case pending before a Court. A journalist may thus be liable for contempt of Court if he publishes anything which might prejudice a ‘fair trial’ or anything which impairs the impartiality of the Court to decide a cause on its merits, whether the proceedings before the Court be a criminal or civil proceeding16. The media exceeds its right by publications that are recognized as prejudicial to a suspect or accused like concerning the character of accused, publication of confessions, publications which comment or reflect upon the merits of the case, photographs, police activities, imputation of innocence, creating an atmosphere of prejudice, criticism of witnesses, the Indian criminal justice system. It encompasses several other rights including the right to be presumed innocent until proven guilty, the guilt is to be proved beyond reasonable doubt and the law is governed by senses and not by emotions the right not to be compelled to be a witness against oneself, the right to a public trial, the right to legal representation, the right to speedy trial, the right to be present during trial and examine witnesses, etc17. In Zahira Habibullah Sheikh v. State of Gujarat18, the Supreme Court explained that a “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.”

15

Supra note 3 Ibid 17 Supra note 2 18 (2005) 2 SCC (Jour) 75 16

Right to a fair trial is absolute right of every individual within the territorial limits of India vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is more important as it is an absolute right which flows from Article 21 of the constitution to be read with Article 14. The right to freedom of speech and expression in contained in article 19 of the constitution. Article 19(1) (a) of the Constitution of India guarantees the fundamental right to freedom of speech and expression. In accordance with Article 19(2), this right can be restricted by law only in the “interests 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.”19 Position in USA: A number of decisions of the U.S Supreme Court confirm the potential dangerous impact the media could have upon trials. In the case of Billie Sol Estes20, the U.S. Supreme Court set aside the conviction of a Texas financier for denial of his constitutional rights of due process of law as during the pre-trial hearing extensive and obtrusive television coverage took place. The Court laid down a rule that televising of notorious criminal trials is indeed prohibited by the “Due process of Law” clause of Amendment Fourteen. In another case of Dr.Samuel H.Sheppard21, the Court held that prejudicial publicity had denied him a fair trial. Referring to the televised trials of Michael Jackson and O.J.Simpson, Justice Michael Kirby stated: “The judiciary which becomes caught up in such entertainment, by the public televising of its process, will struggle (sometimes successfully, sometimes not) to maintain the dignity and justice that is the accused’s due. But these are not the media’s concerns. Jurists should be in no doubt that the media’s concerns are entertainment, money-making and, ultimately, the assertion of the media’s power.”22 Position in UK: In England too, the House of Lords in the celebrated case of Attorney General vs. British Broadcasting Corporation (BBC)23 has agreed that media trials affect the judges despite the claim of judicial superiority over human frailty and it was observed that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. The Courts and Tribunals have been specially set up to deal with the cases and they have expertise to decide the matters according to the procedure established by the law. Media’s trial is just like awarding sentence before giving the verdict at the first instance. The court held that it is important to understand that any other authority cannot usurp the functions of the courts in a civilized society.

19

Supra note 2 Estes v Texas 381 US 532 (1965) 21 Sheppard v Maxwell 346 F.2d 707 (1965) 22 Supra note 3 23 [1981] AC 303 20

REGULATORY MEASURES As we concern with the restrictions imposed upon the media, it is clear that a court evaluating the reasonableness of a restriction imposed on a fundamental right guaranteed by Article 19 enjoys a lot of discretion in the matter. It is the constitutional obligation of all courts to ensure that the restrictions imposed by a law on the media are reasonable and relate to the purposes specified in Article 19(2). In Papnasam Labour Union v. Madura Coats Ltd24 the Supreme Court has laid down some principles and guidelines to be kept in view while considering the constitutionality of a statutory provision imposing restriction on fundamental rights guaranteed by Articles 19(1)(a) to (g) when challenged on the grounds of unreasonableness of the restriction imposed by it. In Arundhati Roy, In re25 the Supreme Court has considered the view taken by Frankfurter, J. in Pennekamp v. Florida26 in which Judge of the United States observed: (US p. 366) “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.” In D.C. Saxena (Dr.) v. Chief Justice of India27 the Supreme Court has held that no one else has the power to accuse a judge of his misbehaviour, partiality or incapacity. The purpose of such a protection is to ensure independence of judiciary so that the judges could decide cases without fear or favour as the courts are created constitutionally for the dispensation of justice. By these above observations and the judgment we can say that restrictions imposed by Article 19(2) upon the freedom of speech and expression guaranteed by Article 19(1)(a) including the freedom of press serve a two-fold purpose viz. on the one hand, they specify that this freedom is not absolute but are subject to regulation and on the other hand, they put a limitation on the power of a legislature to restrict this freedom of press/media. But the legislature cannot restrict this freedom beyond the requirements of Article 19(2) and each of the restrictions must be reasonable and can be imposed only by or under the authority of a law, not by executive action alone.28 The Press Council of India (PCI) was established to preserve the freedom of the press and to improve the standards of news reporting in India. Under the Press Council Act 1978, if 24

(1995) 1 SCC 501 (2002) 3 SCC 343 26 328 US 331 : 90 L Ed 1295 (1946) 27 (1996) 5 SCC 216 28 Supra note 16 25

someone believes that a news agency has committed any professional misconduct, the PCI 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.” Given that 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 limited29. Along with these powers, the PCI has established a set of suggested norms for journalistic conduct. These norms emphasise the importance of accuracy and fairness and encourages the press to “eschew publication of inaccurate, baseless, graceless, misleading or distorted material.” The norms urge that any criticism of the judiciary should be published with great caution. These norms further recommend that reporters should avoid one-sided inferences, and attempt to maintain an impartial and sober tone at all times. But significantly, these norms cannot be legally enforced, and are largely observed in breach. Lastly, the PCI also has criminal contempt powers to restrict the publication of prejudicial media reports. However, the PCI can only exercise its contempt powers with respect to pending civil or criminal cases. This limitation overlooks the extent to which pre-trial reporting can impact the administration of justice.30

200th LAW COMMISSION REPORT Art. 19(1)(a) of the Constitution of India guarantees freedom of speech and expression and Art. 19(2) permits reasonable restrictions to be imposed by statute for the purposes of various matters including ‘Contempt of Court’. Art.19(2) does not refer to ‘administration of justice’ but interference of the administration of justice is clearly referred to in the definition of ‘criminal contempt’31 in and in Sec.3 thereof as amounting to contempt. Therefore, publications which interfere or tend to interfere with the administration of justice amount to criminal contempt under that Act and if in order to preclude such interference, the provisions of that Act impose reasonable restrictions on freedom of speech, such restrictions would be valid. At present, under sec. 3(2) of the Contempt of Courts Act, 1971 read with the Explanation below it, full immunity is granted to publications even if they prejudicially interfere with the course of justice in a criminal case, if by the date of publication, a charge sheet or challan is not filed or if summons or warrant are not issued. Such publications would be contempt only if a criminal proceeding is actually pending i.e. if charges heet or challan is filed or summons or warrant are issued by the Court by the date of publication. Question is whether this can be allowed to remain so under our Constitution or whether publications relating to suspects or accused from the date of their arrest should be regulated? 29

http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf Ibid. 31 sec. 2 of the Contempt of Courts Act, 1971 30

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 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. The commission has 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“. This is criminal contempt of court, according to the commission; if the provisions of the Act impose reasonable restrictions on freedom of speech, such restrictions would be valid. It has suggested an amendment to of the Contempt of Courts Act.32 Under the present provision such publications would come within the definition of contempt only after the charge sheet is filed in a criminal case, whereas it should be invoked from the time of arrest. In another controversial recommendation, it has suggested that the high court be empowered to direct a print or electronic medium to postpone publication or telecast pertaining to a criminal case. On November 3, 2006, former chief justice of India Y K Sabharwal expressed concern over the recent trend of the media conducting ‘trial’ of cases before courts pronounce judgments, and cautioned: “According to law an accused is presumed to be innocent till proved guilty in a court of law, and is entitled to a fair trial. So, it is legitimate to demand that nobody can be allowed to prejudge or prejudice one’s case? Why should judges be swayed by public opinion?” In the US, the O J Simpson case33 attracted a lot of pre-trial publicity. Some persons even demonstrated in judges’ robes outside the court and lampooned Etoo, the trial judge. Yet, Simpson was acquitted. The judge was not prejudiced by media campaign or public opinion. The Supreme Court has ruled in many cases that freedom of the press is a fundamental right covered by the right to freedom of expression under Article 19 of the Constitution. But the right to fair trial has not explicitly been made a fundamental right. That does not mean that it is a less important right. More than a legal right, it is basic principle of natural justice that everyone gets a fair trial and an opportunity to defend oneself. The NHRC, in its special leave petition filed before the Supreme Court against acquittal of the accused in the Best Bakery case34, contended that the concept of a fair trial is a constitutional imperative recognised in Articles 14, 19, 21, 22 and 39-A as well as by the CrPC.

32

Section 3(2) Case no. BA097211 34 (2005) 2 SCC (Jour) 75 33

It is true that contempt of court is a ground for restricting the freedom of speech, but the media has not tried to lower the dignity of the judiciary by exposing loopholes of the investigation and the prosecution. And if judicial decisions also appear to be arbitrary, they must be subjected to ruthless scrutiny. It will be dangerous to gag the press in the name of contempt of court. If the appellate court feels that the media publicity affected fair trial, it can always reverse the decision of the lower court. In the US, in 1965, Sam Sheppard35 was convicted for murder. As this case received an enormous amount of pre-trial publicity, the US supreme court ruled that Sheppard’s conviction36 were violated and overturned the trial court’s decision. In the 1970s and 1980s, the US supreme court began focusing more on the media’s First Amendment rights — the right to freedom of the press. The Supreme Court’s pronouncement in Rajendra Sail case37, though given in context of criminal contempt, provides the proper guideline: “For rule of law and orderly society, a free press and independent judiciary are both indispensable”.

CONSTITUTIONALITY OF MEDIA TRIALS 1. Freedom of Press: Article 19 of the International Covenant on Civil and Political Rights, 196638, 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.”39

35

Sam Sheppard was convicted for the murder of his pregnant wife in their Cleveland suburban home Sixth Amendment rights 37 (2005) 6 SCC 109 38 International Covenant on Civil and Political Rights, 1966, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976. 39 Article 19 of the International Covenant on Civil and Political Rights, 1966: 1. Everyone shall have the right to hold opinions without interference. 2. 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. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; 36

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 Kumar40, 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”41. The right under Art 19(1) (a) includes the right to information and the right to disseminate through all types of media, whether print, electronic or audiovisual means42. The Supreme Court has stated that trial by press, electronic media or trial by way of a public agitation are instances that can at best be described as the anti-thesis of rule of law as they can lead to miscarriage of justice. In the opinion of the honourable court, a Judge has to guard himself against such pressure43.

2. Immunity under 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.” Certain acts, like publications in the media at the pre-trial stage, can affect the rights of the accused for a fair trial. Such publications may relate to previous convictions of the accused, or about his general character or about his alleged confessions to the police. 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 (b) For the protection of national security or of public order (ordre public), or of public health or morals. 40 1996) 6 SCC 466, paras 8, 9 and 10. 41 Ibid., para 8. 42 Secretary, Ministry of Information & Broadcasting v. Cricket Association of West Bengal, 1995(2) SCC 161; Romesh Thapar v. State of Madras 1950 SCR 594; See also Life Insurance Corporation of India v. Manubhai D Shah, (1992 (3) SCC 637. 43 State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.

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. Due to such lacunas, the press has a free hand in printing colourful stories without any fear of consequences. Like a parasite, it hosts itself on the atrocity of the crime and public outrage devoid of any accountability.

3. The Public’s Right to Know: The Supreme Court has expounded that the fundamental principle behind the freedom of press is people’s right to know44. Elaborating, the 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”45. However, the Chief Justice of India has 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”. In the Bofors Case46, 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.”47 Two important core elements of investigative journalism envisage that (a) the subject should be of public importance for the reader to know and (b) an attempt is being made to hide the truth from the people.48

44

A.G. v. Times Newspaper, (1973) 3 All ER 54; Express Publications (Madurai) Ltd. v. Union of India, AIR 2004 SC 1950, para 29; Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR 1995 SC 1236, para 4. 45 In Re: Harijai Singh and Anr.; In Re: Vijay Kumar, (1996) 6 SCC 466, para 10. 46 Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693. 47 Ibid., para 10 48 Supra note 73

CONCLUSION From the above account it becomes clear that the media has to be properly regulated by the courts. The media cannot be granted a free hand in the court proceedings as they are not some sporting event. The law commission also has come up with a report on “Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure” (Amendments to the Contempt of Court Act, 1971)’ [Report number 200 prepared in 2006]. The most suitable way to regulate the media will be to exercise the contempt jurisdiction of the court to punish those who violate the basic code of conduct. The use of contempt powers against the media channels and newspapers by courts have been approved by the Supreme Court in a number of cases as has been pointed out earlier. The media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial itself. The print and electronic media have gone into fierce and ruthless competition, as we call them ‘aggressive journalism’ that a multitude of cameras are flashed at the suspects or the accused and the police are not even allowed to take the suspects or accused from their transport vehicles into the courts or vice versa. Earlier, journalism was not under pressure to push up TRP ratings or sales. So the journalists did their work with serious intent and conviction, with courage and integrity. They did not pronounce people guilty without making a serious attempt to study the charges, investigate them, and come to their own independent conclusions, without fear or favour. They did not blindly print what law enforcers claimed, what the bureaucracy said or what politicians planted on to them. That is why people trusted them. But now we are seeing a different self-acquired role of media in form of ‘media trial’. Everyone manipulates the media to serve their own interests or hurt their rivals. The problem does not lie in media’s exposing the lacuna of a bad investigation by police, or malperformance of the duties ordained to the civil servants but the eye-brows start to raise when the media ultra vires its legitimate jurisdiction and does what it must not do. Be it highlighting the sub-judice issues into public keeping at stake the sanctity of judicial procedures and ‘right to life with dignity’ of accused and suspects. The media trial has now moved on to media verdict and media punishment which is no doubt an illegitimate use of freedom and transgressing the prudent demarcation of legal boundaries. From the above account it becomes clear that the media had a more negative influence rather than a positive effect. The media has to be properly regulated by the courts. The media cannot be granted a free hand in the court proceedings as they are not some sporting event. Any institution, be it legislature, executive, judiciary or bureaucracy, is liable to be abused if it exceeds its legitimate jurisdiction and functions. Media trial is also an appreciable effort along with the revolutionary sting operations as it keeps a close watch over the investigations and activities of police administration and executive. But there must be a reasonable selfrestriction or some sort of regulations over its arena and due emphasis should be given to the fair trial and court procedures must be respected with adequate sense of responsibility. Media should acknowledge the fact that whatever they publish has a great impact over the spectator. Therefore, it is the moral duty of media to show the truth and that too at the right time. The

most suitable way to regulate the media will be to exercise the contempt jurisdiction of the court to punish those who violate the basic code of conduct. The use of contempt powers against the media channels and newspapers by courts have been approved by the Supreme Court in a number of cases as has been pointed out earlier. The media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial itself. An ideal proposal will be that the Indian press and the Indian people are not at present democratic enough to allow the press to intrude in the judicial process. What will an ideal proposition in allowing the media trial at this moment. It’s definitely an ideal proposition to allow controlled media reporting of the cases once the media is supposed to come out of the profit and sensational considerations. The media has to play the role of a facilitator rather than tilting the scales in favour of one or the other party. Heinous crimes must be condemned and the media would be justified in calling for the perpetrators to be punished in accordance with the law. However, the media cannot usurp the function of the judiciary and deviate from objective and unbiased reporting. While a media shackled by government regulations is unhealthy for democracy, the implications of continued unaccountability are even more damaging. Steps need to be taken in order to prevent media trials from eroding the civil rights of citizens, whereby the media have a clearer definition of their rights and duties, and the courts are given the power to punish those who flagrantly disregard them. The above analysis reveals us the gravity of the situation as it persists in India. An ideal proposal will be that the Indian press and the Indian people are not at present democratic enough to allow the press to intrude in the judicial process. It’s definitely an ideal proposition to allow controlled media reporting of the cases once the media is supposed to come out of the profit and sensational considerations. The media has to play the role of a facilitator rather than tilting the scales in favour of one or the other party. Heinous crimes must be condemned and the media would be justified in calling for the perpetrators to be punished in accordance with the law. However, the media cannot usurp the function of the judiciary and deviate from objective and unbiased reporting. While a media shackled by government regulation is unhealthy for democracy, the implications of continued unaccountability are even more damaging. Steps need to be taken in order to prevent media trials from eroding the civil rights of citizens, whereby the media have a clearer definition of their rights and duties, and the courts are given the power to punish those who flagrantly disregard them. The judiciary has been critical of the overactive and prejudicial reporting by the media. In the Labour Liberation Front case, Justice L. Narasimha Reddy lamented the “abysmal levels to which the norms of journalism have drifted.” In M.P. Lohia v. State of West Bengal49, the Supreme Court cautioned the publisher, editor and journalist of a magazine that had reported the facts of a case that was sub-judice, thus “interfering with the administration of justice.” The Indian Law Commission’s recent report entitled Trial by Media: Free Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) has 49

AIR 2005 SC 790

made recommendations to address the damaging effect of sensationalised news reports on the administration of justice. While the report has yet to be made public, news reports indicate that the Commission has recommended 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 credibility of news media rests on unbiased, objective reporting. It is in the media’s interest to ensure that the administration of justice is not undermined.

BIBLIOGRAPHY Texts referred: 

Halsbury’s Laws of England, Vol. 8,



Jennings, Law of the Constitution (3rd Edn)

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Yick Wo v. Hopkins, 30 L Ed 220



Madhavi Goradia Divan, Facets of Media Law

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M.P. Jain, Indian Constitutional Law, 6th Edition 2010

World Wide Web: 

www.ambedkar.org



www.lawctopus.com



www.lawnotes.in

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www.indiacode.nic.in/coiweb/amend/amend81.htm

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www.indconlawphil.wordpress.com

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www.persmin.gov.in/otraining/.../undp.../Media%20Trial%20India.pdf



www.indiankanoon.org/doc/211089/