This article is written by Max Croson who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
Journalism is a revolutionary tool for the dissemination of information. The press and media have always been considered the fourth pillar of the Constitution. The media has taken up the role of a watchdog to become the voice of people in terms of reporting injustices, thus, using their power to bring transparency to the system. In the words of Retd. Justice P B Sawant “No doubt media plays a vital role in present times; media has come to be known as the eyes and ears of the people. Over the years it has transformed into their brains and tongues.” However, this expedition of the media questioning the flaws of the system and raising voices against the rich and powerful has lost its sacred integrity and ethics somewhere along the way. It has created a vicious cycle of attracting more audiences to their news channels or newspapers by creating sensational headlines in a bid to increase their TRP ratings and revenue. This has made the media biased and politically motivated rather than being neutral and critical to the extent possible. Such psychology has taken the form of vigilante journalism in high-profile cases popularly known as media trials.
Media trial : an insight
Trial by media is also known as investigative journalism or parallel investigation by the media when a case (criminal or civil) is ongoing in any court or competent adjudicatory body. This can involve the media to encroach upon the rights of the parties to proceedings while exercising its freedom of speech and expression. Moreover, discussing various privileged information in the public domain during proceedings causes many versions of the same story to come out and be sensationalized on the media platform. The media taking the role of an adversary and using the audience as a judge to conduct their own trials is how a media trial comes to be.
Perceiving media trial as a threat to the judicial system
Trial by media poses magnanimous threats to the judicial system. It can cause serious prejudice towards the due process of law and can even rob an accused of a fair trial which is in complete contravention to Articles 14, 20, and 21 of the Indian Constitution. It can hamper the investigation by the police officials. A parallel investigation by the media, in any case, can impose unwarranted and enormous pressure on the police authorities. Whenever the media sensationalizes a case, millions of people watching their news channels or reading their print media start forming an opinion of the case. This puts a lot of pressure on the police to come up with a satisfactory answer to the press. A sense of pressure on the police is indeed good for the case, as the investigation will be expedited. However, the problem starts cropping up once the media starts scrutinizing every single move of the investigating agency which has two effects.
- Firstly, it gives the people a sense of distrust in the case against the investigating agency depending upon the type of discourse created by the media.
- Secondly, it can sabotage the investigation since such close scrutiny can give the actual culprit the prospect of devising strategies to evade prosecution.
This practice of the media of going out of its way and undertaking the role of an adversary to try the cases and deliver its judgment on the accused long before the court can reach a decision. This is completely against the procedure established by the law. Moreover, the media is not justified to commit such investigative journalism outside the purview of the competent court. Since it totally defeats the purpose of the institution of an adjudicatory body. Moreover, encroaches upon the fundamental rights of an accused, victim, witness, and other parties concerned with the case.
Consequences of the media trial on an ongoing proceeding
Some of the major consequences of the media trial on an ongoing proceeding are:
Risk of a witness going hostile
Media trials can be really taxing on every person involved in them. Preserving the identity of a witness becomes quite difficult when the media sensationalizes a case. This gives rise to the witness experiencing a threat to his life. Other factors such as undue pressure and harassment by the media to the witness can turn them hostile in a bid to get out of the muddle as soon as possible.
Invasion of privacy of the parties involved
The media is often insensitive towards the mental state of the parties involved especially the accused and the victim. They invade their privacy which causes infringement of the Right to Privacy guaranteed under Article 21 (Justice K S Puttaswamy Vs. Union of India).
Tarnishing the public image of the accused
The Right to Reputation of the accused is also tarnished by the media by the usage of slanderous and libelous statements and innuendoes push the accused towards individual guilt before the court. This has grave life-long effects on the accused which persists even after acquittal. The image made by the media during the course of the trial remains in the minds of the people. Thus, the accused even after acquittal remains a convict in the eyes of the society at large.
Ineffective Test Identification Parade
Releasing pictures of the suspects on media platforms can expressly violate the rights available to the accused alongside growing hurdles to any kind of judicial proceedings, especially rendering the process of identification of accused through the method of Test Identification Parade ineffective.
Polarization of public sentiment
The media trial has the power to sway the public opinion and polarize them against the accused or the function of the judicial system by terming it flawed or biased towards the accused. This can have a huge impact on the mindset of the people and can break their trust in the judicial system.
Influencing the judge’s opinion
Trial by media can have an effect on the subconscious psyche of a judge trying the particular case. In the research findings by S. Landsman & R. Rakos, it was inferred that there was no empirical data to support or refute the assertion that judicial officers are not likely to be influenced by media publicity. This means that the judges can also be swayed by the media trials. In P C Sen (In Re), the SC clearly stated that “an action which tends to influence a jury can also influence a judge.” Moreover, this can be attributed to the classic case of K M Nanavati where the media had sensationalized the story and portrayed the accused as the victim instead. This narrative had a lot of influence on the jury members which led them to decide in the favour of the accused. Thus, media trials do have an impact on the functioning of the adjudicatory authority and can be held guilty of coloring the opinion of a judge in the sensationalized matter.
Judgments drawing a line between fair trial and free press
- In the case of the State of Maharashtra Vs. Rajendra Jawanmal Gandhi, the Supreme Court of India stated that a judge must insulate himself against any media pressure and strictly be guided by the rules of law. This view was taken to uphold the freedom of the press on the basis that the fair trial would solely rest upon the judge who would be giving the final verdict regardless of outside pressure by the media.
- It was seen in MP Lohia Vs. State of West Bengal, that the SC observed that biased material published by the media paints the accused in a bad light without appreciating the efforts of the court in deciding the matter critically, analyzing all documents submitted by both parties; it certainly interferes with the course of administration of justice. Further, the court cautioned the press against indulging in a trial of their own when the matter is sub judice.
- In Orissa High Court in Bijoyananda Vs. Bala Kush, it was held that the press has greater responsibility due to its larger reach. Thus, the sanctity of freedom of press bestowed upon it by the Constitution shall not degenerate into a license to attack litigants and damage their reputation.
- In RK Anand Vs. Delhi High Court, the SC said that the intention here is not to lay down a reformist agenda in an attempt to control the media from outside. Such regulation will do more harm than good. Thus, the media must self-regulate to maintain the high quality of media reporting and professional standards to sustain its freedom as well as render no prejudice to the judicial proceedings.
- In the case of Sidhartha Vashist @ Manu Sharma Vs. State (NCT of Delhi) the SC took into account the danger of serious risk of prejudice if the media exercises unregulated freedom. Moreover, the freedom of speech under Article 19(1) must be carefully and cautiously used, so as to prevent any hindrance or interference with the administration of justice; which may lead to undesirable results in matters sub judice before the courts.
Can the media publish material prejudicial to the court proceedings?
The media should not publish material prejudicial to the court proceedings. However, in some cases, it has the immunity to publish material prejudicial to the court proceedings. First of all the media has the freedom of speech and expression under Article 19(1) r/w Article 19(2) subject to reasonable restrictions. Let us examine the circumstances in which the media has immunity to publish prejudicial material.
In A.K Gopalan Vs. Noordeen, the Supreme Court gave its observation to balance the liberty of a person under Article 21 and freedom of the press under Article 19(1) r/w Article 19(2). The court specifically stated that where there was an imminent threat to a person to the institution of proceedings against him. Here the court gave its reasoning that when a person is arrested or summoned, or an arrest warrant is issued against him constitutes an imminent threat to judicial proceedings and will be considered as sub judice. Protection by the court under Article 22(2) of the Constitution and Sections 57 and 76 of Criminal Procedure Code, 1973 is sufficient grounds to infer that court proceedings are imminent. The court further explained that any publications prejudicial to the proceedings, published by the media before such imminent threat will have immunity.
Section 3(1) of the Contempt of Courts Act, 1971 (hereinafter CoC Act) exempts those publications from criminal contempt where the publisher did not have reasonable grounds for knowing the pendency of proceedings. Also termed as an innocent publication. Moreover, pretrial publications have immunity under Section 3(2) of the CoC Act. Referring to the ‘Explanation’ given under Section 3 of CoC Act; these are the prerequisites for the pendency of judicial proceedings:
- When a complaint is filed, a civil proceeding is initiated.
- When a charge sheet or challan is filed or when the court issues summon or warrant, criminal proceedings are initiated.
- In any other case when the court takes cognizance of the matter
Before this stage, the media has immunity from contempt. However, is it just, fair, and equitable to grant such immunity to the media at the expense of prejudice to the accused and eventual judicial proceedings?
According to the ‘Principle of Open Justice’, the media can effectively perform the role of a watchdog supporting the discussion of courts without publishing the most obviously prejudicial material specifically relevant to a case. According to ‘Rules of Evidence’, the first and foremost reasoning while publishing any pre-trial report, or ongoing proceedings must be to consider the presumption of innocence of the accused, until proven guilty beyond any reasonable doubt. Moreover, inadmissible evidence such as allegations to the general character of the accused, confessions obtained while in police custody, opinion evidence, etc. shall not be published by the media in a bid to present their own discourse of the case.
Reducing the menace of media trials : sneak peek
The media and press enjoy the freedom of speech and expression. However, it is subject to reasonable restrictions and must be regulated in order to have sustainable judicial proceedings.
It is important that the press while performing its duty to report the news, uses utmost care and caution to report its findings. The media should maintain the integrity and responsible reporting as a self-regulatory mechanism laid down in the Code of Ethics & Broadcasting Standards Regulations that encourage the media channels from showing anything libelous or resorting to media trials.
It must be checked that all the news channels are following the tenets of the Programme Code in letter and spirit, as prescribed under the Cable Television Networks (Regulation) Act, 1995 (hereinafter CTVN Act) and CTVN Rules, 1994. Strict measures should be taken against those channels that violate these regulations. Moreover, the Press Council of India under Section 13(2)(b) of Press Council Act, 1978 (hereinafter PCI Act) has framed “Norms of Journalistic Conduct” with guidelines and principles of journalism for print media such as accuracy and fairness, pre-publication verification, media trial, etc. The media trials through print media can be curbed by resorting to filing complaints under Section 14 of the PCI Act via ‘Complaint Mechanism’ available on PCI’s website. The PCI can take suo motu cognizance on such complaints if it finds merits in them and can censure or penalize the media house.
Censure or penalize media houses who do not follow guidelines laid out by WHO adopted by the Press Council of India; which must be adhered to while reporting of a suicidal death must be subjected to strict action should be taken against publishers who do not abstain from publishing stories about suicide prominently & unduly repeat such stories, use sensational headlines, use photographs, video footage of the dead body, expressly describe the method used, etc. (As was seen widely in the Sushant Singh Rajput Case). Using the ‘Doctrine of Postponement’ that was laid down by the constitutional bench of the Supreme Court of India in Sahara India Real Estate Corporation Ltd. Vs. SEBI. The postponement order can be issued by a court to hold the publications by media in any proceedings to avoid any prejudice. While drawing this jurisprudence from the English Common Law the SC observed that in order to prevent contempt of court, postponement orders can be issued in some cases. This concept has also been discussed in detail in the 200th Law Commission Report which has also extended its support towards the application of this doctrine with regard to curbing instances of media trials.
Another proposition by the 200th Law Commission Report has been to train journalists in crucial aspects of laws relating to freedom of speech and its reasonable restrictions, the importance of human rights, the law of defamation, and contempt with a view to making them aware of the repercussions of their actions with respect to media trials.
Laws governing media trials
Statutory restraint on media trials can be exercised by way of the following;
The Press Council of India is empowered under Section 13 of the Act to maintain and improve the standard of Indian newspaper reporting and review any material reported by any newspaper. Under Section 14 it is empowered to censure the newspapers that are liable for professional misconduct and publish work against the public interests.
CTVN Act, 1995 and Rules, 1994
The CTVN rules lay down the tenets of the Programme Code, which regulates the type of programs that will be broadcasted. The CTVN Act empowers the authorized officer under Sections 19 and 20 to prohibit the transmission of certain programs in the public interest or the television network altogether to maintain public decency and morality. Furthermore, the Bombay High Court in its decision in the Sushant Singh Rajput’s death case has strengthened its stand on media trials, by ruling that the Central Government was duty-bound to deal with complaints regarding infringement of the tenets of Programme Code, in an expedited manner.
Sections 124A, 499 and 505 of IPC
The media trials can be regulated in cases where the publications fall foul of Section 124A of IPC, thereby committing the offence of sedition and Section 499 committing the offence of criminal defamation through its publications. However, the fourth and fifth exception under this Section exempts any publication of reports of proceedings of the court, and opinion of merits of cases decided in court or conduct of witnesses from the ambit of defamation. Section 505 can be used against media where there is a publication with intent to cause any person of armed forces to fail his duties, or instill fear in people to commit acts against the state or public tranquility, or incite hatred and violence among communities.
Section 3 of Police (Incitement of Disaffection) Act, 1922
The interpretation of this section under the Act can be used to regulate media in instances where the media intentionally publishes anything that causes a lack of faith in the police department.
Article 14 and 21 of the Indian Constitution
Article 14 is important since it empowers an individual to seek equality before the law and equal protection of the law. If the media causes prejudice to a trial, then it can no longer be termed as a fair and just trial before the court. Article 21 i.e. Right to life, on the other hand, is the most significant in this matter. Various judgments have expanded the ambit of the right to life. Now it analogously includes the right to reputation, right to privacy which can be invoked in cases of infringements by media publications.
Section 2, 3, 4 and 5 of CoC Act
Section 2 defines civil and criminal contempt of court. Clause (c) of the said Act specifically mentions the guidelines for publication i.e. publications that scandalize, prejudice, or interfere with the judicial proceedings or administration of justice will amount to contempt of the court. Section 3, 4, 5 further clarifies and give additional guidelines that can be interpreted to differentiate between a fair publication and a prejudicial publication.
International jurisprudence in media trials
The international jurisprudence on media trials has a strong inclination towards free and fair trials. Some excerpts can be taken from international charters and cases that support this contention. Article 6 of the UN Basic Principles on the Independence of the Judiciary states that the Judiciary must ensure that “judicial proceedings were conducted fairly and the rights of parties were respected.”
The 200th Law Commission Report on Media Trials put forth the relationship between the media and judicial independence by discussing the basic principles laid down in the Madrid principles 1994 which envisages provisions under ICCPR and 1985 UN principles on the Independence of Judiciary. The freedom of media is essential in any democratic country governed by the Rule of Law. It is the duty of judges to recognize and give effect to freedom of media by applying only such restrictions as authorized by ICCPR. The specific provision as per ICCPR is, “The media have an obligation to respect the rights of individuals, protected by the International Covenant and the independence of the judiciary.” Moreover, under the basic principle, freedom of media has been interpreted to convey information and comment on the administration of justice including cases before, during, and after trial without violating the presumption of innocence. This principle upholds the sanctity of Article 6(2) of the European Convention, Article 14(2) of ICCPR, and Article 11(1) of UDHR i.e. right to be presumed innocent unless proven guilty with respect to media publications.
It further states that laws may restrict Basic Principle in relation to criminal proceedings in the interest of the administration of justice for the prevention of serious prejudice to the defendant, or any improper pressure upon a witness, jury member, or victim.
European Convention on Human Rights (ECHR) under Article 10 lays down the principle of freedom of expression which covers the right to hold an independent opinion. Moreover, it further agrees that restrictions are necessary to be imposed on the freedom of expression for protection of an individual’s right to life and other analogous rights such as;
- protection of the right to reputation of an individual,
- protection against disclosure of confidential information as a fiduciary duty,
- maintaining public integrity
- protection of health and morals
- maintaining objectivity, fairness in the judiciary in consonance with the principles of natural justice
A number of foreign judgments also set out their jurisprudence with respect to analyzing media trials. In Billie Sol Estes Vs. Texas, the judgment was laid down that broadcasting notorious criminal trials should be prohibited. Moreover, in Attorney General Vs. British Broadcasting Corporation (BBC), the common law jurisprudence in case of criminal trials has always favoured the rights of the accused over press freedom. Unrestrained publicity of trials can have adverse effects on the working of Courts of Law in upholding a fair trial, as was observed in the decision of R. V Lord Chancellor.
Following all the above discussion it must be noted that media trial is proving to be a growing menace to society. The attitude of the media has succumbed to the growing demand for TRP ratings and reaching their respective revenue targets. The cause of the media has now shifted from ‘what is in public interest’ to ‘what the public is interested in.’ According to the common law rule laid down in R V Sussex Justices: Exparte McCarthy, “Justice should not only be done, but it should also manifest and undoubtedly be seen to be done” is the approach of the courts. The job of the media is to report the unbiased and objective reporting of any issue. Its aim should be to empower the people to hold their own opinion on the subject and analyze it critically instead of creating their own narratives and discourse to confuse the general public with conspiracy theories, and polarize them. The media and press should use their freedom of the press under Article 19(1) of the Indian Constitution to raise the right questions to the appropriate authority and help them with unbiased reporting in the interest of equity and justice.
- 200th Law Commission Report, https://lawcommissionofindia.nic.in/reports/rep200.pdf
- PIL (ST) no. 92252 of 2020 with IA No. 95156 of 2020, https://www.livelaw.in/top-stories/bombay-hc-republic-times-now-ssr-case-contemptuous-168531
- Programme Code- Centre Duty Bound to immediately deal with complaints regarding broadcast content: Bombay High Court, Live Law, https://www.livelaw.in/news-updates/programme-code-cable-tv-act-centre-duty-bound-immediately-deal-with-complaints-168603
- Cable and Television Networks (Regulation) Act, 1995, https://legislative.gov.in/sites/default/files/A1995-7.pdf
- Contempt of Courts Act, 1971 https://legislative.gov.in/sites/default/files/A1971-70_0.pdf
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