General

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This Blog is written by Ruhani Garg from Institute Of Law, Nirma University, Gujarat. Edited by Shelal Lodhi Rajput.

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INTRODUCTION

Media has gained prominence, in rapidly evolving socio-economic conditions of India. The Legislature, Executive, and Judiciary are the three fundamental pillars of democracy. Media is regarded as the fourth pillar of Indian Democracy. It plays a crucial role in framing the opinions and beliefs of the society and is proficient in altering the whole viewpoint through which people perceive various events. Through the passage of time, the object of the media had eventually changed. It has interfered in the role of the judiciary and landed up in investigating the veracity of the matter rather than just reporting the bare facts of the news.

Media plays a role of watchdog of the functionaries of the society and expose the wrongdoers. Media played a vital role by starting a trend, in bringing accused to the hook. No one can be allowed to prejudice the case until the completion of the trial, but media has a tendency to prejudice the mind of the court, prosecutor, and the general public. Media covers the interview of a witness or the relative of the victim and prejudges the issue of conviction of accused while the case is pending in the court of law.

Media gets its freedom under Article 19 (1) (a) of the Constitution. It confers the freedom of speech and expression includes within its ambit, freedom of the press. The freedom of media recognized under the constitution has to be exercised within reasonable boundaries and correlative with the duty not to violate any laws.

MEDIA TRIAL AND FREEDOM OF SPEECH AND EXPRESSION

Article 19(1)(a) of the Constitution of India guarantees, Freedom of speech and expression. Freedom of speech and expression frames the opinions and beliefs of society on social, political, and economic matters. Therefore, it can be said that freedom of speech and expression is principal of all liberties as it permits a person to place his opinion among others and the people keep informed about the policies of the person in power.

In the case of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [1], J. Venkat Ramaiah of the Supreme Court stated “freedom of press is the heart of social and political intercourse. The press has assumed the role of the public educator by making formal and non-formal education possible on a large scale mainly in the developing world, where modern communication and television 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 the Government cannot make responsible judgments.”

The statement of the Supreme Court illustrates that freedom of press and media is of utmost importance for the proper functioning of a democratic system. It is essential in a democracy that every citizen must be entitled to participate in the democratic process and there will free and general discussion on public matters.

In Printers (Mysore) Ltd. v. CTO [2], the Supreme Court stated that freedom of the press is implicit in freedom of speech and expression though it is not expressly guaranteed as fundamental rights. Apex court further stated that the media has been rightly described as the fourth chamber of democracy and its freedom should always be cherished in all democratic countries.

Supreme Court in the case of R. Rajgopal v. State of T.N.[3]  held that freedom of press extends to cases where public figures, public issues, and events are involved. However, the court stated that there should be proper balancing between freedom of press and the right to privacy of people.

In view of all judgments made by the Supreme Court, it can be said that freedom of press flows from freedom of expression which is guaranteed under Article 19(1)(a) of the Constitution of India. The media cannot claim any privilege distinct from any other citizen of the country as well as they cannot be subjected to any special restrictions which could not be imposed on any other citizen.

MEDIA TRIAL AND FAIR TRIAL

Article 21 of the Constitution of India guarantees the Right to fair trial to be a part of the Right to life and liberty. Media trial gives rise to two conflicting ideologies a “fair trial” and “freedom of press”. Articles 129 and Article 215 of the Constitution and Contempt of Courts Act, 1971, aims at safeguarding the right to fair trial. The balance between Article 19 and Article 21 is essential as these are the rights of equal weight.

There are particular restrictions on media regarding discussions and publications of matter which are still pending before the court. The media exceeds its right by prejudicing the issue of conviction. The person is presumed to be innocent until proven guilty in a court of law according to our justice system. Therefore, a journalist may be held liable if he publishes anything which prejudices a fair trial.

In the case of Zahira Habibullah Sheikh v. State of Gujarat [4], the Supreme Court stated that fair trial means trial before an impartial judge and in which bias or prejudice for or against a victim or accused is eliminated.

In the case of Vijay Singhal and Ors. vs. Govt. of NCT of Delhi and Anr. [5] the court held that the object of the trial is to meet the ends of justice and right to free trial will always prevail over right to freedom and expression in order to achieve justice.

In many judgments, the High Court and Supreme Court criticized the trial by media in the matter which is pending before court of law as it prejudices the opinion of the jury on the case. The Press Council of India also refrains from doing such sensational journalism.

MEDIA TRIAL AND RIGHT TO BE REPRESENTED

The media started to force the lawyers not to take up the cases of accused i.e. forcing accused to go on trial without any defense, which infringed the rights of the accused to be represented by a lawyer of his choice in the court of law. It is against the principle of natural justice. Every person should be entitled to get a lawyer and have a defense. In the case where Ram Jethmalani decided to defend Manu Sharma, he faced societal objections. In these types of instances, media trial affects the principle of natural justice and also security of lawyers comes into danger and they are not able to fulfill their ethical duties.

MEDIA TRIAL IS CONTEMPT OF COURT

The Trial by media needs to be punished for Contempt of Court. The Contempt of Court Act defines civil contempt and criminal contempt. Criminal contempt has been divided into three types.

1) Scandalizing

2) Prejudicing trial

3) Hindering the administration of justice

Prejudice or interference with the judicial process: Contempt of court has been introduced to prevent prejudices trial i.e. when a person will be convicted for the offenses they have not committed. The principle “Justice may not only be done it must also see to be done” should be clubbed with “every accused has right to fair trial”. Any publication which is calculated to poison the minds of juries or intimidate a witness or other parties in which administration of justice would be difficult amounts to contempt. Any editor or journalist cannot prejudice the court against any person.

In the case of Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr. [6], J. Gopal Rao Ekkbote stated that when a case is pending before the Court, no one shall comment on it and prejudge it, in a way that there is real and substantial danger of prejudice to the trial of an action by influencing the judge. If any person prejudices the truth before ascertained in the proceeding it will be considered Contempt of Court even if the person making comment honestly and believes it to be true.

Fair Trial: Article 21 of the Constitution of India guarantees the Right to fair trial to be a part of Right to life and liberty. The concept of ‘denial of fair trial’ means the interference in the administration of justice and the person facing trial. The prejudicial publication which affects the accused amount to the denial of fair trial. This concept has been coined by authoritative Judicial pronouncements as a safeguard in the criminal trials.

Justice Shah in re P.C. Sen [7] stated that any act which is done or any writhing published aims to bring a Court and Judge into contempt, or to lower the authority, or to interfere with the due course of justice, is a contempt of court.

The restrictions imposed by Article 19(2) upon the freedom of speech and expression guaranteed by Article 19(1)(a) including the freedom of press involves two sides. Firstly, it specifies that this freedom is not absolute but is subject to regulation and secondly, they put a limitation on the power of a legislature to restrict this freedom of media. But the legislature cannot restrict the freedom of media beyond the requirements of Article 19(2) and each of the restrictions must be reasonable. Also, the restrictions cannot be imposed by executive action alone, it should be either by or under the authority of law.

CONSTITUTIONALITY OF MEDIA TRIALS

A. Freedom of Press: Freedom of press is not separately guaranteed right in India but the Supreme Court of India has recognized it as under the umbrella right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India.

Article 19 of International Covenant on Civil and Political Rights, 1966, states  “everyone have the right to hold opinions without interference” and the “freedom to seek, receive and impart information, either orally, in writing or in print, in the form of art, or through any other media of choice”. These rights are subject to duties or responsibilities and to the rights and reputation of other party. In Re: Harijai Singh and Anr. and In Re: Vijay Kumar [8], the Supreme Court recognized freedom of press as an essential part of democratic system and regarded media as principal of all other liberties in democratic country. The Apex court also stated that Article 19(1)(a) of the Constitution includes the right to information and right to broadcast through all types of media.

In the case of Hamdard Dawakhana v. Union of India [9] the Court observed that right to freedom also included the right to gain information and knowledge about matters that are of common interest. The Supreme Court further stated that the trial by press is opposed to rule of law and can lead to miscarriage of justice. In this situation Judge has to guard himself against such pressure.

B. Immunity under Contempt of Court Act, 1971: Under the Contempt of Court Act, 1971, immunity is given to pre-trial publication against contempt proceedings. Any publication which interferes the course of justice in the proceeding, pending before court of law, constitutes Contempt of court. These publications can affect the right of accused for a fair trial.

C. Public’s Right to Know: The Supreme Court stated that main principle behind the freedom of press is people’s right to know. Media plays a crucial role in framing the opinions and beliefs of the society and is proficient in altering the whole viewpoint through which people perceive various events. Freedom of speech and expression frames the opinions and beliefs of the society on social, political, and economic matters. In the Bofors Case [10], the Supreme Court highlighted the merits of media and stated that if anyone knows anything about the case can come forward with information, it reduces crime and leads to public discussion of important issues.

D. Public Participation: Some people believe that media merely voices the opinions which public already has, by conducting media trial. In a democratic system there should be transparent and accountable setup. Without the freedom of press, the country will go into the ages when proceedings were conducted secretively. Therefore, campaigns or public polls provides a platform to the public to express its views and opinions and ensure public participation.

E. Legal Norms and Journalist Conduct: The Press Council of India is established under Press Council Act, 1978, “to preserve the freedom of the Press and to maintain and improve the standards of news agencies in India”.

If any person believes that a news agency has committed any professional misconduct, the Council under Section 14(1) of the Press Council Act, 1978, can “warn, admonish or censure the newspaper”, or direct the newspaper to, “publish the contradiction of the complainant in its forthcoming issue”. In Ajay Goswami v. Union of India [11], the shortcomings of the powers of the Press Council were highlighted under Section 14 of the Press Council Act, 1978.

CONCLUSION

Media is regarded as fourth pillar of Indian Democracy and it has freedom under Art 19(1)(a). But it cannot be allowed to prejudice the trial itself. It has to be properly regulated by the courts. It can be regulated by Exercising the contempt jurisdiction of the court to punish those who violate the basic code of conduct. It can be said that media has more negative influence rather than positive influence. Media plays a role of watchdog of the functionaries of the society and expose the wrongdoers.[13]

The judiciary has been criticising the overactive and prejudicial reporting by the media. No one can be allowed to prejudice the case till the completion of the trial, but media has a tendency to prejudice the mind of the court, prosecutor, and general public. Media covers the interview of witness or the relative of victim and prejudge the issue of conviction of accused while the case is pending in court of law. In the case of M.P. Lohia v. State of West Bengal [12], the Supreme Court directed journalist, editor and publisher of a magazine that had reported the facts of the case that was sub-judice and obstructed with the administration of justice. It is essential in a democracy that every citizen must be entitled to participate in democratic process and there will be free and general discussion on public matters. However, there should be balance between freedom of press and right to privacy of people.

The media started to force the lawyers not to take up the cases of accused i.e. forcing accused to go on trial without any defense, which infringed the rights of the accused to be represented by a lawyer of his choice in the court of law. It is against the principle of natural justice. Sensationalised news report has damaging effects on administration of justice. The credibility of media depends upon unbiased, objective reporting. Media should ensure the administration of justice is not undermined.

REFERENCES

[1] 1986 AIR 515, 1985 SCR (2) 287

[2] 1994 SCR (1) 682, 1994 SCC (2) 434

[3] 1995 AIR 264, 1994 SCC (6) 632.; MANU/SC/0056/1995

[4] (2004) 4 SCC 158

[5] MANU/DE/0746/2013.

[6] AIR1975 AP 30.

[7] AIR 1970 SC 1821.

[8] (1996) 6 SCC 466, paras 8, 9 and 10

[9] 1960 (2) SCR 671.

[10] Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693.

[11] (2007) 1 SCC 143

[12] AIR 2005 SC 790

[13] Media Trial versus free and Fair Administration of Justice <https://www.mondaq.com/india/human-rights/262924/media-trial-versus-free-and-fair-administration-of-justice-need-for-guidelines>