Legal

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This Blog is written by Kavya Jithendran from The National University of Advanced Legal Studies, Kochi. Edited by Saumya Tripathi.

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INTRODUCTION

Mass media has influenced the society in multiple ways, changing the magnitude and complexity of societal actions and engagements, paving way for social change and technological innovation, defining new standard of life but triggering decline of some traditional forms of control and authority making it a unique feature of modern society. In the same spirit, media also plays a vital role in molding the opinion of the society and hence is considered to be the cornerstone of our democracy. Media is capable of changing the whole viewpoint through which people perceive various events and this has a significant impact on court proceedings too. The influence of media in trial is undeniable and this investigative journalism during the course of a trial has had positive as well as negative effects.

While on one hand access to accurate information of court proceedings increases transparency and public confidence in the fairness of the justice system this has also led to interruption of fair trial by bringing in corrupted public opinion. It is also important to note its assistance in bringing forward issues that would have gone unpunished but for the intervention of media. Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case and Bijal Joshi rape case are some instances where trial by media had substantial impact in Indian judiciary, bringing the subject to scrutiny of scholars and general public. The grey area which induce concern is when media publishes material that may be prejudicial to a suspect or accused in a way that questions the character of accused, publication of confessions, publications which reflect upon the merits of the case, imputation of innocence, creating an atmosphere of prejudice, criticism of witnesses or upon the criminal justice system.

SIGNIFICANCE OF THIS DEVELOPMENT

The case of Jessica Lal’s murder helps illuminate into the scenario. The accused in this case was acquitted by the trial court due to lack of evidence, but within a month of acquittal this decision was overturned and a significant role in doing so was played by the media. The acquittal by the trial court was resulted by lack of evidence and the media took it upon themselves to gather that evidence, directly picking up where the police left off. The press directly called upon the public to act out against what they revealed as a flawed and dangerous system and what was perceived as injustice. Interview orchestrated by the media revealed that large bribes were given to witnesses by the father of the accused. All this eventually led to the courts finding the accused guilty based on existing evidence which included two spent cartridges recovered from car of the accused.

Another instance is the reporting of murder of Aarushi Talwar, when it preempted the court and reported that father of the deceased and possibly her mother were involved in her murder. In the case, the media came up with a lot of reports upon the character of the parties, the strength of the evidence which proved prejudicial to the case of the parties. These publications had the capability to harm the justice system if they are not restricted to a certain level and if they are allowed to go unchecked. This case also pointed to the possible dangers of media trials conducted just to attenuate the public passion. The publications by modern mass media aren’t always devoid of misrepresented events aimed at gaining more viewers and provoking particular responses. In this sense, to ensure fairness the judicial system which includes the lawmakers and judges have to ignore the opinion of the masses in the process and focus on the evidence of a case. Social justice cannot be controlled by mass communication and this can be ensured by tending to the broken parts of the justice system.

IMPACT

The constitutionality of media trials is a greatly discussed matter today. The question here is the balance between right to freedom of speech and expression and right to fair trial. Freedom of press, read into the right to freedom of speech and expression in contained in Article 19 of the Constitution, is the essence of proper democratic process. Every citizen has the right 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 an absolute necessity. The constitutional validity of freedom of press in India was identified in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641] and further upheld in Printers (Mysore) Ltd. v. CTO [ (1994) 2 SCC 434]. As stated in Indian Express Newspapers (Bombay) case, 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 and are contrary to the constitutional mandate. Further stress to open justice can be seen in order XVIII Rule 4 of Civil Procedure Code, 1908.

But this does not diminish the importance of right to fair trial. Everyone has a constitutional right to have a fair trial in the court of law, by an impartial tribunal, uninfluenced by newspaper dictation or popular outlook. The right to fair trial is one of the fundamental guarantees of human rights and rule of law and anyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law, and the guilt is to be proved beyond reasonable doubt, 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. Measures to ensure this are embedded in the Constitution itself whereby it is stated that the judgement of the supreme court of India shall be delivered only in open court. The law further provides that the judiciary should develop rules and procedures for media coverage of public judicial proceedings, with good practices including providing the trial judge with latitude to control the conduct of the proceedings to maintain decorum and prevent distractions, guarantee the safety of any court official, party, witness, or juror and ensure the fair and impartial trial.

STATUTORY PROVISIONS

Provisions aimed at safeguarding right to fair trial can be found in 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 Indian Constitution. The Contempt of Court Act classifies contempt as civil and criminal. Scandalizing, prejudicing trial and hindering the administration of justice are considered as criminal contempt. This provisions regarding prejudice 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’. Contempt of court has been brought in to prevent such unjust and unfair trials. It has been explained in multiple case laws like of Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr (AIR 1975 AP 30) that any 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 not possible constitutes contempt. Further no one should bring unfair pressure to bear on one of the parties to a cause so as to force him to drop his complaint or defence and no editor has the right to assume the role of an investigator to try to prejudice the court against any person.

When litigation is pending before a Court, no one shall comment on it in such a way there is a real even if the person making the comment honestly believes it to be true as it still amounts to contempt of Court if it prejudices the truth before it is ascertained in the proceedings. The law of contempt in India however does not prevent comments before the litigation is started nor after it has ended.  Under Contempt of Court Act, 1971 Act, pre-trial publications are given immunity against contempt proceedings, certain acts like the publication of any material by the media by the pre-trial stage can affect the interest of the parties involved in the trial. Regulation of mass media is also facilitated by the Press Council instituted under The Press Council Act, 1978. The main objective of the Council is to ensure the freedom of Press. The Council is also empowered with the authority to sanction punishment for irresponsible journalism.

CASE LAWS

The principle of contempt is well settled in India. There exist another cluster of cases which deals with the desired independence of trial from media. In Sushil Sharma v The State (Delhi Administration) and Ors. (1996 CriLJ 3944), the aggrieved felt that the news items appearing in the Press and the electronic media having reported the Naina Sahni murder case (in which he was the accused)  in a sense colouring the public opinion and public passion against him. In this decision the court looked into the proposition as law laid down that if the statement made by the investigating or prosecuting agency or by any other person interfered with the administration of the justice or in any way lower the dignity of the Court, then the Court would be justified in initiating contempt proceedings. The Court held that Courts cannot in such events shut its eyes nor would refuse to take notice on the ground that these news items were published before filing of the charge sheet i.e., before commencement of the trial.

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Ors. (AIR 1961 SC 633) Supreme Court opinioned that 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 publicize the results of that investigation. T is undesirable to have a trial by newspapers, when a trial by one of the regular tribunals of the country is going on. This is because 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.

In the case of Hamdard Dawakhana v UOI (1960 (2) SCR 671), it was opined by the Court that while there exist a right to gain information and knowledge about matters that are of common interest, a trial by media is opposite of the rule of law. Even though the media is one of the foremost pillars of the democracy, its freedom can be restricted to a certain point. In the case of “Express Newspapers (Bombay) (P) Ltd. V UOI [(1985) 1 SCC 641] the Supreme Court stated that freedom of the press is the heart of social and political intercourse while also calling out the press as public educator making formal and non-formal education and its purpose to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. This statement of the Court clearly points out to the fact that freedom of press and media is of utmost importance and cannot be curtailed beyond necessary extent. In decisions such as R. Rajagopalan v. the State of TN (1995 AIR 264), the Court insisted in creating a balance between freedom of press and individual rights especially in cases involving public figures or public events.

ANALYSIS

Courts and legal commentators have acknowledged the fact that the media has a very real impact on the resolution of individual lawsuits. The magnitude of the coverage and the filter through which the media reports on litigation can induce bias in public minds. Media often portrays lawsuits in traditional protagonist-antagonist terms causing public sentiment to rest with only one of the parties. This is of consequence particularly during viewing of evidence and the deliberations in a case. The decision making in such cases which have attracted media attention is all the more difficult as the judges might have a hard time distinguishing between impressions formed by pre-trial and in court.

Indian judiciary is regarded as the guardian of the Constitution and is an independent and extensive system with little accountability. It is hard not to call attention to the relative ease of the Courts to conceal or not reveal a conscious or unconscious bias rather than account for it. Hence the duty to ensure fair trial always lies with the Courts, even though the existing legislations and laws can be called in for assistance.

 

CONCLUSION

The free press- fair trial debate has always been a controversial legal topic. This issue of prejudicial publicity is particularly serious today as a result of active media coverage and the spread of social media. When a criminal case faces excessive media attention, the trial court should be able to balance the defendant’s interest in receiving a fair trial, the state interest in punishing the guilty and the media’s interest in preserving their right to report the news to general public. Independence of media is a feature of strong democracy and the need to preserve it is beyond question the responsibility of the government. This does not mean that media has to be left unregulated. Checks to ensure that the press and mass media doesn’t cross the boundary to obliterate individual rights are necessary. And the most functional 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.

 

REFERENCES

https://www.article19.org/data/files/pdfs/publications/foe-and-contempt-of-court.pdf

Brendan O’flaherty & Rajiv Sethi, Public Outrage and Criminal Justice: Lessons from the Jessica Lal Case, Department of Economics, Columbia University (March 16, 2009).

Prejudicial Publicity Surrounding a Criminal Trial: What a Trial Court Can Do to Ensure a Fair Trial in the Face of a Media Circus, 26 Suffolk U. L. Rev. 1063 (1992).