This article is written by Shobhna Aggarwal, from Banasthali Vidyapith. This article covers all the perspectives of the trial which is done by the media in certain cases and it also highlights whether it is good or not.

Introduction

Media a source of getting information or a source of changing one’s own thought process. Media plays an important and crucial role in today’s world from providing the actual news to creating a person’s character. The impact of the tv and newspaper as reported in the late 20th and early 21st century has created a widespread perception of guilt, hatred, innocence sooner or later judgment in a court of law. The Aarushi Talwar case where no one was having any clue about the actual facts of the case, the media solved the case before the law as her parents were accused of the murder of their own daughter as the verdict of the trial by the media. Every coin has its two sides similarly, in the suits there are two parties and each one should have equal opportunity and right to represent themselves before the law but, the media believes in fast and quick decisions rather than the right one.

What is a media trial?

India is a country where all the people have an upsurge of curiosity to know about the sensational and the high profile cases. People themselves start collecting information to lead the case in their mind and in this process the media by publishing their own versions of facts in the source of newspapers, news websites, news channels pour water on the people’s thirst for these sensational cases. This is known as investigative journalism, which is permissible in India. The power of the influence and revolutionizing the mass in creating perception against a guilty or innocent mind is known by trial by media or media trial.

Trial by media – is it fair

The trial by media in their own eye may be as fair as everything is fair in love and war because they work on this principle only. Media have the ability to cause a trial by media because the public look to media as a reliable source of information, this was also held by the English court in the Case Johnson, (2016 P. 381), therefore media acts as a public court or a Janta court where they decide the culprit soon before the commencement of the proceedings. The media by reporting consistently on a person who is convicted in a trial forces the public to make perception for that person as an accused, which results in the guilt of the accused before proceedings even begin. Hence, the trial by the media is not so fair as they have no power to interfere and to force the public to make an opinion against an individual. The media by doing the pre-trial interferes in the procedure and mechanism of the judiciary which is not permissible under any law or act.

Is media trial against freedom of speech and expression

The right to freedom of speech and expression is envisaged in Article 19(1)(a) of the Indian Constitution, which states that every citizen has the right to freedom of speech and expression holding the right to freedom of press too. The media take this freedom as a right to hold opinions without interference and freedom to seek, receive, & impart information and ideas of all kinds either orally or written or by any art or through any other media of their choice. The media is making the wrong use of their freedom of speech and expression as guaranteed by the Constitution. The freedom of speech and expression guaranteed as a fundamental right to every citizen of the state but enjoying one’s right can be a violative of others fundamental right, as the right media exercising for their freedom of expression is violative of many people’s right to life and right to have a fair trial as guaranteed under Article 14 and Article 21 of the Indian Constitution. The trial by media causes the public to build perception leading towards feelings of hatred for that same person. In fact, the news or the report which the media use to publish in their channels or in any other medium also watched by the jury who are in the judiciary process which can also lead to pre-judgment and biased decisions as to the mind and thought process of the jury can be affected by this media trial. The media did not investigate or try to look at the actual facts of the situation rather they just jumped up to the conclusion of making a convict as accused. Have you ever seen the media trying to make a good reputation for any convict? The media is not provided with any special kind of freedom of speech and expression they hold the same power as any other individual has in a country like India but the media uses beyond its power.

Restrictions by the Constitution

Everything in this country has a limitation to its nature be it a right or freedom similarly, the freedom of speech and expression as guaranteed under Article 19(1) (a) of the Indian Constitution has also been restricted with some reasonable measures under article 19 (2) of the same act. The clause 2 of the art. says that the state has the power to make any law to impose any restriction for the freedom of speech and expression and on the same page no one is allowed to used this right as against the sovereignty integrity and security of the nation, or against any friendly nation with other states or against any public order, defamation and incitement to an offense or decency or morality in relation with the court. The Constitution has provided these reasonable restrictions to safeguard other fundamental rights over one’s freedom. The preamble of the constitution also mentioned that every individual has the right to live a decent life and to have a fair trial but the media is busy with their own trial process, they didn’t care about the perspective or the opinion which will be created by their act or what grievance can be faced by the person against whom they have used their power. The media even tried to replicate our prime minister Modi Ji as a culprit in the Godha Train Burning Case. The PM was charged with the offense of initiating and condoning the violence in which more than 1000 people were killed most of the minority communities, but in 2002 the Nanavati Commission gave a clean chit to our PM. The media tries to build a perception but later on, when they were proved wrong they have nothing to say they just start focusing on the other topic but due to their action people have to live a life with a guilty stamp on their head given by the media trial only.

Pre-trial publicity is injurious to the health of a fair trial

The right to have a fair trial as embodied under art. 21 of the constitution of India. It states that every individual irrespective of any excuse has the right to have a fair trial. No one can be deprived to represent himself before the court to have a fair trial. As in India the theory of innocent until proven guilty is followed, therefore, any person convicted in any matter has this right, but the media follows their own rules and their own judgments, despite looking on both the sides they give their overruling making any convict or an innocent as guilty. The pre-trial publicity as done in any case leads to pre-assumptions and pre-public opinion before the trial, therefore it is injurious to the health of a fair trial as the witnesses or the judge’s everyone has their pre-conclusion which turns into biasness and then leading toward unfair trials. The contempt of court act, 1971 provides provisions for safeguarding the right to fair trial too as it puts restriction on publishing materials of the case pending before the court but the media didn’t understand this cl., they rather stated that the word pending means the cases in which the proceedings have been initiated. Further, the media by trial implicates that no lawyer should take up those cases in which they have already given their verdict, and if anyone of them tries to do so they ridicule them too for defending such cases like happened in the Delhi Gang Rape Case or the famous Kasab Case in the cases the defense were highly criticized by the media for taking up and defending the one who is the culprit in their eye soon before the court’s judgment, which violates the notion of the fair trial as the media pressurize the counselors to give upon those cases. This is not enough; the pre-trial also causes effects on the witnesses of the cases as they disclose all the important information regarding witnesses or the evidence which results in the manipulation of either the evidence or the statements of the witnesses. Whereas in some cases the pre-trial media helps the criminal to run away or to get underground after committing the crime. The pre-trial media play an important role in implicating a person’s character as well in providing information to the masses.

Situation in English courts

The media all over the world has a greater impact on the public as they have the power to attract and manipulate the thoughts of the people by providing information to the masses by different sources. The situation of the media in English courts is similar to some extent. As art. 6 of the human rights act, the UN-based principle on the independence of the judiciary states that it is the duty of the judiciary to ensure that the judicial proceedings have been conducted fairly as well as the rights of both the parties have been respected. The principle is given in this article has been interpreted in the same language in the International Covenant on Civil and Political Rights (ICCPR), 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. Whereas contrary to both the provisions provided under the human right act or ICCPR, the right to press or freedom of expression is also given under Article 10 and Article 19 respectively, but it also states that this freedom shall be paramount with the limitations and shall be made only up to the mark that is necessary for a democratic society. The media shall be in proportion to the pressing social needs only. U.S.A. & U.K. both believe in limitation of the power given to the media in publishing and casting these pre-trials. The U.S. supreme court stated that the media has the dangerous potential to impact the trials. In a landmark case Dr.Samuel H.Sheppard, the Court held that prejudicial publicity had denied him a fair trial. Similarly, in U.K. England in the case of Attorney General vs. British– Broadcasting Corporation (BBC)has agreed that media trials affect the judges despite the claim of judicial superiority over human frailty.

Madrid principles on the relationship between the media and judicial independence

In January 1994, participants from 40 countries met in Madrid, Spain in a meeting convened by the International Commission of Jurists, the Centre for the independence of Judges and Lawyers, and the Spanish Committee of UNICEF. The purpose of the meeting was to examine the relationship between the media and judicial independence as guaranteed by the 1985 United Nations Principles on the Independence of the Judiciary. The other purpose of this meeting was to formulate principles addressing the relationship between freedom of expression and judicial independence. The preamble of this document lays emphasis on the Rule of Law and to prevail this rule of law freedom of expression especially the freedom of media becomes an important element in the Democratic society. This document imposes duties and responsibilities on both the judiciary and media. The basic principle that was laid down in the document is the freedom of expression which includes the freedom of media. It is the function and right of the media to gather and convey the information to the public and to make a comment on the administration of justice including cases before the trial, during the trial, and after the trial of the case. The basic principle is immune from any special restrictions and the scope of this principle is very vast. 

Key points from World Summit on the information society

The World Summit on the Information Society (WSIS) was a two-phase summit on information and communication that was sponsored by the United Nations. The first phase of WSIS took place in Geneva in the year 2003 and the delegates from 175 countries took part in it and where they adopted a Declaration of Principles. The aim was to achieve an information society based on shared knowledge and access to all. The second phase of WSIS took place in Tunis in the year 2005. It resulted in the agreement on the Tunis Commitment, which was a statement of WSIS adopted on 18 November 2005, and the Tunis Agenda for the Information Society that was for the creation of the Internet Governance Forum. Association for Progressive Communications (ACP) came forward to support the Tennis Event in the year 2005. ACP is an international network of civil society organizations. In the whole WSIS process, youth and the representatives of civil society played a key role to make it a success. In 2015 United Nations General Assembly reviewed the progress of the WSIS.

Conclusion

Media considered to be the fourth pillar of democracy, had an overall negative role rather than some of the positivity falling here and there. Media being journalism that tries to spread affection, brotherhood, and feeling of unity among the nation, has started spreading the emotion of hatred in one or the other way. The country like INDIA which involves the word secularism in its preamble has the youth who have most aggressive, harmful and the feeling of the enemy towards the other religion, the society which should encourage the acquittal one’s always judge and segregate them and this is all because of the trial that media held before having the actual facts. The law commission report on the trial by media: free speech vs fair trial also concluded that media cannot be granted with a free hand and to regulate the media there shall be contempt jurisdiction of the court and the one who violates it shall be punished.

References

• http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1 &do _p df=1&id=22062
• https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/208649/11/12_chapter3.pdf
• https://lawcirca.com/critical-appraisal-of-media-trial-under-article-191a-of-the-india-constitution/
• http://www.legalserviceindia.com/article/l237-Trial-By-Media.html
• http://www.dlnluassam.ndl.iitkgp.ac.in/bitstream/handle/123456789/171/Arunav%20talukdar%20Diss%202018.pdf?sequence=1&isAllowed=y
• http://lawcommissionofindia.nic.in/reports/rep200.pdf

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