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Constitutionality of Media Trials in India: A Detailed Analysis On November 13, 2015

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By Nimisha Jha, NLIU, Bhopal

Editor’s Note: 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. Heinous crimes

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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 functions of the

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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

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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

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disregard them.

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INTRODUCTION

The Constitution Of India

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 joke[1]. 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

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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.

CALENDAR

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

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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

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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 responsibility[2]. 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

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is not only a medium to express one’s feelings, opinions and views, but it is also responsible and instrumental for building



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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].

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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



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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,





fair trial



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of the media, like any other freedom recognized under the Constitution has to be exercised within reasonable boundaries.

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With great power comes great responsibility. Similarly, the freedom under Article 19(1) (a) is correlative with the duty not

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to violate any law[5].

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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 Courts[6]. However, sensationalised news stories circulated by the media have steadily gnawed at the guarantees of a right to a fair trial and posed a grave threat to the presumption of innocence. What is more, the pervasive influence of the press is increasingly proving to be detrimental to the impartial decision making process of the judiciary. Such news stories cannot easily be defended under the auspices of freedom of expression[7]. 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 others[8]. 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 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 way[9]. 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’[10].

A HISTORY OF MEDIA TRIALS Although a recently coined phrase, the idea that popular media can have a strong influence on the legal process goes back certainly to the advent of the printing press and probably much further. This is not including the use of a state controlled press to criminalize political opponents, but in its commonly understood meaning covers all occasions where the reputation of a person has been drastically affected by ostensibly non-political publications.

20th century One of the first celebrities in the 20th century to be arguably tried by media was Roscoe ‘Fatty’ Arbuckle who was acquitted by the courts but nevertheless lost his career and reputation due to the media coverage. Parallels can be drawn between these cases and the trial of O.J. Simpson. The connection is less about guilt or innocence but about the promotion of the media coverage in the public mind above the status of the court. Another interesting case in the US was the Rodney King incident and subsequent trial of the police officers involved. Once again an acquittal is challenged by the media reporting with violent consequences. What makes this case particularly important historically is the fact that it was amateur video footage which provided the key evidence of perceived guilt. As video cameras and their digital successors and CCTV become wider spread, this type of ‘caught on camera’ incident become more and more common. This can pose real problems for the legal system as the evidence they provide may be inadmissible for technical reasons (e.g. not being able to pinpoint exact times) but they give very strong images for the media (and public) to seize upon and the potential to manipulate by editing. Even where a criminal court finds somebody guilty the media can still appear to sit in judgement over their sentence. Examples include Myra Hindley whose proposed release from prison after thirty years was widely condemned by the British press (the argument became moot when she died in 2002); Maxine Carr who, having served her sentence, has been released and is, according to some commentators being “demonised by the press”. One case popularized by the media between 1980 and 1982 was the murder trial of Lindy Chamberlain in Australia who was, but later released in 1986 on new evidence showing that a dingo had in fact committed the act as was originally claimed by Chamberlain. The motion picture A Cry in the Dark depicted Chamberlain, as played by actress Meryl Streep, caught in a “trial by media” which fed the public’s, and subsequently the jury’s false conviction of her. Often the coverage in the press can be said to reflect the views of the person in the street. However, more credibility is generally given to printed material than ‘water cooler gossip’. The responsibility of the press to confirm reports and leaks about individuals being tried has come under increasing scrutiny and journalists are calling for higher standards. There was much debate over U.S President Bill Clinton’s impeachment trial and prosecutor Kenneth Starr’s investigation and how the media handled the trial by reporting commentary from lawyers which influenced public opinion. Another example was the investigation into biologist Steven Hatfill allegedly sending anthrax through the U.S. mail as a terrorist attack, which resulted in no conviction, but Hatfill went on to sue as his reputation was severely tarnished and career destroyed. Families and friends of persons convicted of crimes have apparently successfully used the power of the media to reopen cases, such as the Stephen Downing case in Derbyshire where a campaign by a local newspaper editor resulted in a successful appeal and his release after twenty seven years in prison.

IMPACT OF MEDIA TRIALS 1.

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.[11] Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India[12] 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.[13] This explains the constitutional viewpoint of the freedom of press in India. In Printers (Mysore) Ltd. v. CTO[14] 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.[15] In R. Rajagopal v. State of T.N[16] the Supreme Court of India has held that freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right of privacy and maintained defamation has to be performed in terms of the democratic way of life laid down in the Constitution. 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. 2.

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 journalism[17]. 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 proceeding[18]. 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, etc[19]. In Zahira Habibullah Sheikh v. State of Gujarat[20], 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.” 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.”[21] INTERNATIONAL CONVENTIONS ON FAIR TRIAL: In the International context, the UN Basic Principles on the Independence of the Judiciary, at Article 6, which states the judiciary is entitled and required “to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.”[22] The principles enunciated in this Article are also stated in similar language in the International Covenant on Civil and Political Rights (ICCPR)[23], which provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal” in the determination of any criminal charge or in a suit at law. [24] The ICCPR acknowledges that the right to a public trial is not absolute and that certain limitations on public access are necessary. Article 19 of ICCPR confirms that freedom of expression is also a fundamental part of a democratic society. It elaborates that freedom of expression includes the freedom of the press and states that “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.”[25] Under Article 10 of the European Convention on Human Rights, to which the UK and its other signatories are morally committed, the freedom of the press is paramount. Exceptions to that freedom may be made only such as are “necessary in a democratic society”, permissible only to the extent that they correspond to “a pressing social need”, and are proportionate to the end to be achieved.[26] 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 Estes[27], 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.Sheppard[28], 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.”[29] POSITION IN UK: In England too, the House of Lords in the celebrated case of Attorney General vs. British Broadcasting Corporation (BBC)[30] 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. POSITION IN INDIA: Similarly there have been a plethora of cases in India on the point. The observations of the Delhi High Court in Bofors Case or Kartongen Kemi Och Forvaltning AB and Ors. vs. State through CBI[31] are very much relevant, as the Court weighed in favour of the accused’s right of fair trial while calculating the role of media in streamlining the criminal justice system: “It is said and to great extent correctly that through 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. All this is done in the interest of freedom of communication and right of information little realizing that right to a fair trial is equally valuable.” Such a right has been emphatically recognized by the European Court of Human Rights: “Again it cannot be excluded that the public becoming accustomed to the regular spectacle of pseudo trials in the news media might in the long run have nefarious consequences for the acceptance of the courts as the proper forum for the settlement of legal disputes.”[32] The ever-increasing tendency to use media while the matter is sub-judice has been frowned down by the courts including the Supreme Court of India on the several occasions. In State of Maharashtra vs. Rajendra Jawanmal Gandhi[33], 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.” The position was most aptly summed up in the words of Justice H.R.Khanna: – “Certain aspects of a case are so much highlighted by the press that the publicity gives rise to strong public emotions. The inevitable effect of that is to prejudice the case of one party or the other for a fair trial. We must consider the question as to what extent are restraints necessary and have to be exercised by the press with a view to preserving the purity of judicial process. At the same time, we have to guard against another danger. A person cannot, as I said speaking for a Full Bench of the Delhi High Court in 1969, by starting some kind of judicial proceedings in respect of matter of vital public importance stifle all public discussions of that matter on pain of contempt of court. A line to balance the whole thing has to be drawn at some point. It also seems necessary in exercising the power of contempt of court or legislature vis-à-vis the press that no hyper-sensitivity is shown and due account is taken of the proper functioning of a free press in a democratic society. This is vital for ensuring the health of democracy. At the same time the press must also keep in view its responsibility and see that nothing is done as may bring the courts or the legislature into disrepute and make the people lose faith in these institutions.” The Hon’ble Supreme Court in the case of Rajendra Sail Vs. Madhya Pradesh High Court Bar Association and Others[34], observed that for rule of law and orderly society, a free responsible press and an independent judiciary are both indispensable and both have to be, therefore, protected. The aim and duty of both is to bring out the truth. And it is well known that the truth is often found in shades of grey. Therefore the role of both cannot be but emphasized enough, especially in a “new India”, where the public is becoming more aware and sensitive to its surroundings than ever before. The only way of orderly functioning is to maintain the delicate balance between the two. The country cannot function without two of the pillars its people trust the most. 3.

MEDIA TRIAL vs. RIGHT TO BE REPRESENTED Through media trial, we have started to create pressure on the lawyers even — to not take up cases of accused, thus trying to force these accused to go to trial without any defense. Is this not against the principles of natural justice? Every person has a right to get himself represented by a lawyer of his choice and put his point before the adjudicating court and no one has the right to debar him from doing so. For an instance, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused in a murder case, he was subject to public derision. A senior editor of a television news channel CNN-IBN called the decision to represent Sharma an attempt to “defend the indefensible”. This was only one example of the media instigated campaign against the accused. As we all knew that in that case we had one of the best lawyers of the country, Gopal Subramaniam, appearing for the state and the case of Manu was handed to some mediocre lawyer. The media assumption of guilt clearly encroaches upon the right to legal representation, a critical component of the right to fair trial and may also intimidate lawyers into refusing to represent accused persons. Suspects and accused apart, even victims and witnesses suffer from excessive publicity and invasion of their privacy rights. Police are presented in poor light by the media and their morale too suffers. The day after the report of crime is published; media says ‘Police have no clue’. Then, whatever gossips the media gathers about the line of investigation by the official agencies, it gives such publicity in respect of the information that the person who has indeed committed the crime, can move away to safer places. The pressure on the police from media day by day builds up and reaches a stage where police feel compelled to say something or the other in public to protect their reputation. Sometimes when, under such pressure, police come forward with a story that they have nabbed a suspect and that he has confessed, the ‘Breaking News’ items start and few in the media appear to know that under the law, confession to police is not admissible in a criminal trial. Once the confession is published by both the police and the media, the suspect’s future is finished when he retracts from the confession muddle. Witness protection is then a serious casualty. This leads to the question about the admissibility of hostile witness evidence and whether the law should be amended to prevent witnesses changing their statements. Again, if the suspect’s pictures are shown in the media, problems can arise during ‘identification parades’ conducted under the Code of Criminal Procedure for identifying the accused. Subconscious effect on the Judge as one of the major allegations upon ‘media trial’ is prejudicing the judges presiding over a particular case. As there is always a chance judges may get influenced by the flowing air of remarks made upon a particular controversy. The media presents the case in such a manner to the public that if a judge passes an order against the “media verdict”, he or she may appear to many either as corrupt or biased[35].

IS MEDIA TRIAL A CONTEMPT OF COURT? Trial by Media is Contempt of Court and needs to be punished. The Contempt of Court Act defines contempt by [36]

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identifying it as civil and criminal . Criminal contempt has further been divided into three types: 1. Scandalizing 2. Prejudicing trial, and 3. Hindering the administration of justice. Prejudice or interference with the judicial process: This provision owes its origin to the principle of natural justice; ‘every accused has a right to a fair trial’ clubbed with the principle that ‘Justice may not only be done it must also seem to be done’. There are multiple ways in which attempts are made to prejudice trial. If such cases are allowed to be successful will be that the persons will be convicted of offences which they have not committed. Contempt of court has been introduced in order to prevent such unjust and unfair trials. No publication, which is calculated to poison the minds of jurors, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible, amounts to contempt. when a case is triable by a judge. court against any person.

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Commenting on the pending cases or abuse of party may amount to contempt only

No editor has the right to assume the role of an investigator to try to prejudice the

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The law as to interference with the due course of justice has been well stated by the chief Justice Gopal Rao Ekkbote of Andhra Pradesh High Court in the case of Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr.

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, where in it was

observed by the learned judge that: “ …… When litigation is pending before a Court, no one shall comment on it in such a way there is a real and substantial danger of prejudice to the trial of the action, as for instance by influence on the Judge, the witnesses or by prejudicing mankind in general against a party to the cause. Even if the person making the comment honestly believes it to be true, still it is a contempt of Court if he prejudices the truth before it is ascertained in the proceedings. To this general rule of fair trial one may add a further rule and that is that none shall, by misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a cause so as to force him to drop his complaint or defence. It is always regarded as of the first importance that the law which we have just stated should be maintained in its full integrity. But in so stating the law we must bear in mind that there must appear to be ‘a real and substantial danger of prejudice.” Fair trial Parties have a constitutional right to have a fait trial in the court of law, by an impartial tribunal, uninfluenced by newspaper dictation or popular clamour.

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What would happen to this right if the press may use such a language as to

influence and control the judicial process? It is to be borne in mind that the democracy demands fair play and transparency, if these are curtailed on flimsiest of grounds then the very concept of democracy is at stake. The concept of ‘denial of a fair trial’ has been coined by authoritative judicial pronouncements as a safeguard in a criminal trial. But what does the concept ‘denial of fair trial’ actually mean: The conclusions of the judicial decisions can be summed as follows: The obstruction or interference in the administration of justice vis a vis a person facing trial. The prejudicial publication affecting public which in term affect the accused amount to denial of fair trial. Prejudicial publication affecting the mind of the judge and Suggesting the court as to in what manner the case should be preceded. The publisher of an offending article cannot take shelter behind the plea that the trial to which the article relates to isn’t then in progress nor immediately to be begun but it has to occur at a future time.

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Our law of contempt however does not

prevent comments before the litigation is started nor after it has ended. In re P.C.Sen

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Justice Shah who spoke for the

court succinctly put the law as follows: “The law relating to contempt of Court is well settled. Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Court : R. v. Gray[45],. Contempt by speech or writing may be by scandalizing the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard. It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of justice. The question is not so much of the intention of the contemner as whether [46]

it is calculated to interfere with the administration of justice.”

[47]

In Sushil Sharma v. The State (Delhi Administration) and Ors it was held by the Delhi High Court that: “Conviction, if any, would be based not on media’s report but what facts are placed on record. Judge dealing .with the case is supposed to be neutral. Now if what petitioner contends regarding denial of fair trial because of these news items is accepted it would cause aspiration on the Judge being not neutral. Press report or no reports, the charge to be framed has to be based on the basis of the material available on record. The charge cannot be framed on extraneous circumstances or facts dehors the material available on record. While framing the charge the Court will from prima facie view on the basis of the material available on record. To my mind, the apprehension of the petitioner that he would not get fair trial is perfunctory and without foundation. None of the news items, if read in the proper prospective as a whole, lead to the conclusion that there is any interference in the administration of justice or in any way has lowered the authority of the Court. The Trial Court has rightly observed that after the charge sheet has been filed, if the Press revealed the contents of the charge sheet it by itself by no stretch of imagination amounts to interference in the administration of justice.” Even in highly sensitive cases, the session trial has been conducted by the courts of Sessions without fear or favour. The Indian courts have emerged as the most powerful courts in the world with virtually no accountability. But every institution even the courts can go wrong. Every institution including the judiciary has its share of black sheep and corrupt judges. The judiciary is peopled by judges who are human, and being human they are occasionally motivated by considerations other than an objective view of law and justice. It would be foolhardy to contend that none of them, at least some of them, at least some times are motivated by considerations of their own personal ideology, affiliations, predilections, biases and indeed even by nepotistic and corrupt considerations[48]. In stifling all criticism by the threatened exercise of the power of contempt, the issue in a democratic society is ultimately one of the accountability of the judiciary itself. In order to stifle free speech and comments on the court, even an occasional exercise of this power is enough to deter most persons form saying anything that might annoy their Lordships. Perhaps the most important reason for the lack of reforms in the judiciary is the reluctance of the Press to write about and discuss the state of affairs within it for fear of contempt[49]. [50]

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr . It was held by the Supreme Court that: “No doubt it would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of that 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. There is no comparison between a trial by a newspaper and what has happened in this case.”

REGULATORY MEASURES As we concern with the restrictions imposed upon the media, it is clear from the above 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 Ltd[51] 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 re[52] the Supreme Court has considered the view taken by Frankfurter, J. in Pennekamp v. Florida[53] 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 Rajendra Sail v. M.P. High Court Bar Assn.[54]17 the editor, printer and publisher and a reporter of a newspaper, along with the petitioner who was a labour union activist, were summarily punished and sent to suffer a six months imprisonment by the High Court. Their fault was that on the basis of a report filed by a trainee correspondent, they published disparaging remarks against the judges of a High Court made by a union activist at a rally of workers. The remarks were to the effect that the decision given by the High Court was rubbish and fit to be thrown into a dustbin. In appeal the Supreme Court upheld the contempt against them, but modified and reduced the sentence. In D.C. Saxena (Dr.) v. Chief Justice of India[55] 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.[56] 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 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 limited[57]. 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.[58]

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’[59] 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? 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.[60] 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 case [61]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 case[62], 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. 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 Sheppard[63] was convicted for murder. As this case received an enormous amount of pre-trial publicity, the US supreme court ruled that Sheppard’s conviction[64] 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 case[65], 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, 1966[66], 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.”[67] 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[68]. In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar[69], 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”[70]. 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 means[71]. It was stated in Hamdard Dawakhana v. Union of India[72], that the right includes the right to acquire and impart ideas and information about matters of common interest. 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 pressure[73]. In Anukul Chandra Pradhan v. Union of India[74], the Supreme Court observed that “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”[75]. 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 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 know[76]. 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”[77]. 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 Case[78], 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.”[79] 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.[80] 4.

PUBLIC PARTICIPATION: Some scholars justify a ‘trial-by-media’ by proposing that the mob mentality exists independently of the media which merely voices the opinions which the public already has. In a democracy, transparency is integral. 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. Stifling this voice will amount to stifling democracy.[81] 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.”[82] 5.

INEFFECTIVE LEGAL NORMS GOVERNING JOURNALISTIC CONDUCT: Under the Press Council Act, 1978, the Press Council of India is established, with the objectives to “preserve the freedom of the Press and to maintain and improve the standards of newspapers and news agencies in India”[83]. To achieve these objectives, it must “ensure on the part of newspapers, news agencies and journalists, the maintenance of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship”[84] and “encourage the growth of a sense of responsibility and public service among all those engaged in the profession of journalism”[85]. 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” under Section 14(1) of the Press Council Act, 1978[86]. 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 limited. In Ajay Goswami v. Union of India[87], the shortcomings of the powers of the Press Council were highlighted: Section 14 of the Press Council Act, 1978 empowers the Press Council only to warn, admonish or censure newspapers or news agencies and that it has no jurisdiction over the electronic media and that the Press Council enjoys only the authority of declaratory adjudication with its power limited to giving directions to the answering respondents arraigned before it to publish particulars relating to its enquiry and adjudication. It, however, has no further authority to ensure that its directions are complied with and its observations implemented by the erring parties. Lack of punitive powers with the Press Council of India has tied its hands in exercising control over the erring publications. Along with these powers, the Press Council of India28 has established a set of suggested norms for journalistic conduct. These norms emphasize the importance of accuracy and fairness and encourage 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 does not consider the extent to which pre trial reporting can impact the administration of justice.[88]

MEDIA TRIALS: A NECESSARY EVIL? We have a rich tradition of fiercely independent journalism. In fact, most of the big scams were busted by the press. The law enforcers merely followed them up. The poorly paid journalist must be credited for extracting those information which looked inaccessible for the top vigilance teams of the country. That is how HDW(Howaldswerske) marine case and Bofors hit the headlines. That is how we found out that Narasimha Rao had bribed the Jharkhand Mukti Morcha MPs and Satish Sharma and Buta Singh had brokered the deal. The media did us proud at every place of our political juncture. There is increasing and intense public focus on Courts and the cases filed therein. Now that the Courts have come under the media’s microscope, they are likely to remain there forever. A Positive by product of changes spurred by the media and addressed by the Courts is that more Indians are aware of their constitutional rights than ever before. The media strongly resents this sub judice rule and complains that Courts during the course of a hearing tend to interpret the sub judice rule quite strictly to prohibit any discussion of the issues before the Court even if they are engaging public attention. There is, therefore, an urgent need to liberalize the sub judice rule, invoking it only in cases of an obvious intent to influence the trial and not to any act that might have the remote possibility of influencing it. Another major constraint on stings and trials by media is the public interest. If public interest is missing and self or manipulative interests surface, the media loses its ground and invites the wrath of the court.[89]

CONCLUSION From the above account it becomes clear that the media had a more negative influence rather than a positive effect (except for a few exceptions here and there). 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’.[90] 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 mal-performance 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.[91] 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 self-restriction 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[92]. What lessons does the Jessica Lall fiasco teach us? There is definitely a case for intensifying efforts to upgrade the quality of policing. There is at the same time a need to improve judicial performance. For instance, the Jessica trial took nearly seven years to get completed. Hardly anyone has commented on this. Will it be unreasonable to demand that this should be taken up by the Delhi High Court as a kind of case study to find out why there was such delay? The public would like to satisfy themselves that the failure was not because of judicial lethargy, but rather because of several extraneous factors such as police indifference and wanton delaying tactics on the part of the defence. The current popular perception is that judicial accountability is an unrealisable dream. It is for the judiciary to prove this perception wrong. 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 Bengal[93], 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 observations of Mr. Andrew Belsey in his article ‘Journalism and Ethics, can they co-exist’[94]) quoted by the Delhi High Court in Mother Dairy Foods & Processing Ltd v. Zee Telefilms[95] aptly describe the state of affairs of today’s media. He says that journalism and ethics stand apart. While journalists are distinctive facilitators for the democratic process to function without hindrance the media has to follow the virtues of ‘accuracy, honesty, truth, objectivity, fairness, balanced reporting, respect or autonomy of ordinary people’. These are all part of the democratic process. But practical considerations, namely, pursuit of successful career, promotion to be obtained, compulsion of meeting deadlines and satisfying Media Managers by meeting growth targets, are recognized as factors for the ‘temptation to print trivial stories salaciously presented’. In the temptation to sell stories, what is presented is what ‘public is interested in’ rather than ‘what is in public interest’. 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 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. Edited by Kanchi Kaushik [1] TRIAL BY MEDIA AND TRIAL OF MEDIA http://www.rrtd.nic.in/MassMediaIndia2009.pdf (last visited on 21/10/2014 at 00:07) [2]http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-by-media-looking-beyond-the-pale-oflegality-.html (last visited on 21/10/2014 at 00:08) [3] Right to Privacy in Sting Operations of Media http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/57-61.pdf (last visited on 21/10/2014 at 00:09) [4] Ibid [5] Id. [6] Supra note 2 [7] Ibid. [8] Supra note 3 [9] Supra note 2 [10] Supra note 3 [11] Freedom of press in India : Constitutional Perspectives http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=6752 (last visited on 21/10/2014 at 00:05) [12] (1985) 1 SCC 641 at p. 664, para 32. [13] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 [14] (1994) 2 SCC 434 [15] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 [16] (1994) 6 SCC 632 [17] Supra note 3 [18] Ibid. [19] Supra note 2 [20] (2005) 2 SCC (Jour) 75 [21] Supra note 2 [22] UN Basic Principles on the Independence of the Judiciary, G.A. Res.146, U.N. GAOR, 40thSess.(1985) art.6. [23] Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI) of 16 December 1966. Entered into force on 23 March 1976 in accordance with article 49. [24] Art. 14(1), ICCPR, (1966) 999 UNTS 171, 1976 Can. T.S. No. 47, in force, including Canada, 1976. [25] Article 14(1) of the ICCPR provides that “[t]he Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interests of the private lives of the Parties so requires, or to the extent necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” [26] As well as Article 10 of the European Convention on Human Rights (ECHR). [27] Estes v Texas 381 US 532 (1965) [28] Sheppard v Maxwell 346 F.2d 707 (1965) [29] Supra note 3 [30] [1981] AC 303 [31] 2004 (72) DRJ 693 [32] Supra note 3 [33] 1997 (8) SCC 386 [34] (2005) 6 SCC 109 [35] Supra note 2 [36] Section 2(b). [37] Section 2 (a) [38] AIR 1943 lah 329(FB). [39] Subhash Chandra v. S. M . Agarwal, 1984 Cri LJ 481(Del). [40] Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137. [41] AIR1975 AP 30. [42] Cooper v. People (1889) 6 Lawyers Report Annotated 430(B). [43] Leo Roy Frey Vs. R. Prasad and Ors , AIR 1958 P&H 377. [44] AIR 1970 SC 1821. [45] [1900] 2 Q.B.D. 36 at p. 40 [46] Para 8. [47] 1996 CriLJ 3944. [48] Supra note 2 [49] Ibid. [50] AIR 1961 SC 633. [51] (1995) 1 SCC 501 [52] (2002) 3 SCC 343 [53] 328 US 331 : 90 L Ed 1295 (1946) [54] (2005) 6 SCC 109 per Y.K. Sabharwal, J. (for himself and Tarun Chatterjee, J.) [55] (1996) 5 SCC 216 [56] Supra note 16 [57] http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf (last visited on 21/10/2014 at 00:14) [58] Ibid. [59] sec. 2 of the Contempt of Courts Act, 1971 [60] Section 3(2) [61] Case no. BA097211 [62] (2005) 2 SCC (Jour) 75 [63] Sam Sheppard was convicted for the murder of his pregnant wife in their Cleveland suburban home [64] Sixth Amendment rights [65] (2005) 6 SCC 109 [66] 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. [67] 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; (b) For the protection of national security or of public order (ordre public), or of public health or morals. [68] TRIAL-BY-MEDIA: DERAILING JUDICIAL PROCESS IN INDIA http://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf (last visited on 21/10/2014 at 00:03) [69] (1996) 6 SCC 466, paras 8, 9 and 10. [70] Ibid., para 8. [71] 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. [72] 1960 (2) SCR 671. [73] State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386. [74] 1996 (6) SCC 354. [75] Ibid., para 7. [76] 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. [77] In Re: Harijai Singh and Anr.; In Re: Vijay Kumar, (1996) 6 SCC 466, para 10. [78] Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693. [79] Ibid., para 10 [80] Supra note 73 [81] Ibid. [82] K.G. Balakrishnan, The Constitution, The Media And The Courts, The Fourth K.S. Rajamony Memorial Public Law Lecture, Kerala, www.supremecourtofindia.nic.in/new_links/9%5B1%5D.8.08.rajamony.pdf [83] Press Council Act, 1978, Section 13(1). [84] Press Council Act, 1978, Section 13(2) (c). [85] Press Council Act, 1978, Section 13(2) (d). [86] Section 14(1) of the Press Council Act, 1978, states: “Where, on receipt of a complaint made to it or otherwise, the Council has reason to believe that a newspaper or news agency has offended against the standards of journalistic ethics or public taste or that an editor or working journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case may be.” [87] (2007) 1 SCC 143 [88] Supra note 73 [89] Supra note 2 [90] Ibid. [91] Id. [92] Id. [93] AIR 2005 SC 790 [94] published in Media Ethics : A Philosophical Approach, edited by Mathew Kieran [95] IA 8185/2003 Suit No. 1543/2003 dated 24.1.2005

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2 Replies to “Constitutionality of Media Trials in India: A Detailed Analysis” DR. a.B. kafaltiya says: September 8, 2017 at 12:35 pm

A good article on media trials and freedom of speech.

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veronica says: September 26, 2017 at 6:57 pm

Amazing !!! really informative. Thank you so much or such an extraordinary article Nimisha. well done.

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