TRIAL BY MEDIA IN INDIA
Author: P. Vasishtan
Co-Author: Samhitha Sharath Reddy
Tamil Nadu National Law University,Tiruchirappalli
The Constitution of India through its extension in the offering of Freedom of Speech and Expression to the Media has significantly allowed the Media Houses to conduct all forms of essentials of a conventional Court Trial in their format and present it to the Public and predict what the upcoming Judgement on that case would turn out to be. This is Media Trial.
These Media Trials have often brought clarity to certain cases and have equally created confusion in some cases. Understanding the fine line difference between ‘Free Press’ and ‘Right of Fair Trial’ will make clear of the concept of how far should the Media be allowed to exercise their right.
This Paper will reveal whether India is fully dependent on Media Trial or not, and throw light on the concept of Media Trials through the lens of the Indian Constitution, and the downsides of same. Further, this paper aims to analyse the position of media trials in other countries to better understand what steps India can take to mitigate such instances from occurring in the future.
KEYWORDS: Media Trial, Fair Trial, Freedom of Expression, Democracy.
The reason why Media could reach people than any other medium could is the fact that it is interactive and more engaging in nature. Whatever that is featured in the media always has listeners and believers. Its direct approach is what has made people regard it as the fourth pillar of society. Simultaneously, this power should not be misused, especially when it comes to reporting law and Court related news and programs. But the present-day media merely critically lashes out at many laws and portrays any party to a case either innocent or criminal without considering the facts and evidences at hand. It portrays whatever it wants the people to believe. This forms upon a dual course of assumptions made by people, one from the media and the other, from the Court, thus leading to confusion.
This forces the Judiciary to take extra steps to curb the media from its overreach and this again entails a debate on freedom of press and freedom of Judiciary. In this paper, we will briefly look into the position of Trial by Media in India.
The media is globally regarded as the watchdog of society. And when it comes to judiciary, the media has taken up roles of being catalyst for many social reforms. In a US case of Aron Burr, it all started in 1807 then reached England, and eventually, the trend reached India.
The three torchbearers of democracy in the world maintain the right balance between fundamental rights and over usage of it. One of such Judiciaries’ role is to protect the right to a fair trial. This was first enshrined in the UN Basic Principles’ Article 6 which demands the Judiciary to “ensure that judicial proceedings are conducted fairly and the rights of the parties are respected”. Similar principles were enunciated and ratified at the ICCPR that provides “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial judiciary”
The fine-line difference between the media and Judiciary encompasses two major concerns.
- There should be no ‘Trial by Media’
- Neither the press nor anybody must presume or ‘prejudge’ a case.
Justice requires people being tried only by the Courts and none else.
The freedom of press is ancillary to the freedom of speech and expression and over time, it has evolved itself in the role of Public Court (Makkalin Needhimandram) and has begun to involve in the Court proceedings. When the media explains the legal process, it probably does in a way how it wants its subscribers to listen.
The Media further decides on the cases with its own set of evidences as collected by its reporters and portrays them in a true light to make the public believe. The media being the backbone of the news industry sets off with any piece of verified/unverified news, and develops onto it. While before the truth is uncovered through proper channel investigation, the damage would have probably done and the effect would have probably been felt. Such a piece of frivolous or baseless news is conveyed through its lens. An accused’s right to a fair trial and the media’s right to freedom of expression often collide.
However, the Supreme Court had observed that the freedom of the press is often regarded as the “mother of liberties in a democratic society.” The public would naturally believe what media tells them over a pronounced Judgement of any Court due to the engaged way of conveying. According to Jurisprudence, any person is innocent unless proven guilty and nobody could prejudge about it. But the media conveniently pronounces judgments with frivolous evidences such as expert predictions, interviews of so-called witnesses or the relatives of the victim, or does a background check to support its baseless claims.
Doing so, would not only mislead the public but would force a lot of pressure onto the Courts while pronouncing Judgements or the prosecutors whilst the case would still be at the trial stage. Even the Courts and the investigation authorities have jurisdictions but the media does not. The media exercises this unlimited Jurisdictional power by using Article 19(1)(a) and Article 19(2) to its merit. However, Section 2 of the Contempt of Courts Act, 1971 identifies ‘interference into administration’ as criminal contempt.
Therefore, such acts by the media would amount to Contempt of Court under Section 3 of the Act, and if Courts could issue desist order under this head, then the reasonable restrictions would become valid to stop media’s interference. Once again, its shortcoming is that it has to be tried on a case to case basis and there will be a plethora of cases where media intervention would be present.
The AP High Court has observed that “the objective of civil society is justice not truth… Freedom of Press is not particularly stated in Part III of the Constitution”. However, the SC in its various Judgements has granted the Press with the freedom of expression. In a technologically growing country like India, the attention to media holds prominence and the media always enjoys an upper hand than the actual trial or any Court. But the media covers only the topics that it piques on people’s interests and the cases that reap them of any profit or publicity. So, the cases portrayed in the media often revolve around the watchability or the essence of interesting twist the case must have, probably murder trials or crimes involving big celebrities people usually care for.
In the past 2 decades, there were a few cases that were exclusively covered by the Media that include
- Nirbhaya Rape Case
- Jessica Lal Case
- Arushi Talwar Murder Case
- Nira Radia Case
- BMW Accident Case etc.
Apart from them, there were scam cases like the Fodder Scam, 2G Scam, Coalgate Scam, Commonwealth Scam, Satyam Scam, etc.,
However, all of these cases were pronounced with either innocent or guilty charges, the media’s interference was always portraying the suspects in a bad light with the notion that they had determined for themselves playing blind eye on the Court and the submitted evidences.
On the other hand, the role of media was exemplary and was widely appreciated by the swiftness of collecting the evidence that was instrumental at the court or had changed the course of a case. Further, media is the first house that brings out all the corruption-related and other inactiveness of political party and often hosts debates with representatives of major rival parties to keep the public informed of the regular agendas of new schemes and their shortcomings. Such critical attempts only contribute to growth and development and align with people’s changing interests. It is a basic civil right to have a free and fair trial.
With the aforesaid examples brings us back to the first argument of what is the level of interference can media be allowed into administration or what extent shall it be allowed under freedom of speech and expression. But again, such an appreciable approach of the media becomes unpleasant when they intrude into the freedom exercised by the Judiciary.
So, when the two fundamental rights of two big heads clash, the best resolution is to attempt to maintain a fair balance between the both and make sure one’s jurisdiction does not encroach upon the other. While it becomes the Courts’ duty to deter any print or telecast media from publishing content that is sub-judice for matters that prejudice the Court’s functioning. For the rest as much as a healthy or essential criticism is published, the Courts can allow leeway under the Freedom of Press criteria. The US’ Constitution allows the freedom of the press to investigate anything, absolutely but commenting upon a pending trial is strictly prohibited and violation of it may entail serious proceedings, both in-department as well as Court.
The SC in Sahara case, laid down many guidelines with regards to media reporting on the matters that are sub judice in Court including the publicly disclosing of documents that are a part of a pending trial.
The Court in the Mirajkar’s case observed that “Open Justice is a cornerstone of our judicial system as it instils faith in legal system. However, it is not absolute and often be confused by the varied opinions of the media while the Court shall have only one stand.”
The media is vested with the right to know about the proceedings of the court so that they could disseminate the same to the public to keep them apprised of the regular updates, thereby the public gaining confidence in the transparency of the Courts’ functioning. However, reporting as a second source always entails the risk of words or facts being twisted and such a scenario must not lead to prejudice when it reaches the public and in what way the public would perceive it. Thus, the inaccuracy of reporting the court proceedings would amount to Contempt of Court and would subsequently lead to a substantial interference with the administration of Justice. The reason behind Section 4 is to grant the merit to the publisher provided he/she publishes the same with good intent. Further Article 21 of the Constitution envisages this freedom to the press.
The Court reserves a Judgement when it observes the media waiting to report and the public anticipation. This Court will try to pronounce the Order when the situation outside will not escalate further post the deliverance. There are various facets to the right to a fair trial as stated in the case of Zahira Habibullah Sheikh & Anr vs. State of Gujarat
The 200th Law Commission Report elucidates on the positive and negative aspects of the media trial. Submitted in 2006 titled Free Speech v. Free trial, the Report recommended various amendments to prevent encroachments of media into the trial and laid down various criteria, drawing a fine line, crossing it will entail a criminal contempt case under the Contempt of Court Act, 1971. The Report further spoke of the impact created by the media or the damage the Government or the Judiciary suffered due to the frivolous content published.
Further, the Commission recommended any form of prejudicial content published bu the media on the accused on a pending trial. It also empowered the High Court to suitable act upon the contempt and align the destructive publications that cause confusion and damage to the public.
Further, the Report suggested the Courts to start with their own similar press releases chamber so that the ambiguity or the unofficial releases by the private media could be averted thereby, alleviating confusion and double standard news.
The 17th Report recommended the Centre to enact laws to prevent media from reporting prejudicial news and interfere into the rights of the accused right from arrest and all the way through the pendency of the trial.
In Chapter IX, it stated various forms of conduct by the press constituting interference in the due course of administration of justice.
The problem with Media was never about it apprising the public with the proceedings and facts or even the clerical error in their reporting. The real problem arose when the media conveniently started misusing the power of Freedom of Press thereby its want to overpower the judiciary. The Media tried to portray Justice in the best format that was more profitable to them. Most media is funded by the political parties or has their back and thus, report bias news and publish so. To reap personal merits, the media houses should not defend themselves with the façade of ‘Freedom of the Press’ guaranteed by the Constitution. To gain views and popularity should not come at the cost of misleading the public and trivialising the Court System. While the Media has done well in certain cases, at the outset, weighing the pros and cons of its involvement in a trial, would mostly end in detriment to either the accused or to the confidence of the public in the Judiciary. Looking at the shortcoming, the researchers opine that there must be a strict line drawn so that the interference of media should not encroach upon the freedom so exercised by the Courts of Law.
 United States v. Aaron Burr 25F Cas 55 (D Va 1807)
 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 49.4.
 UN Basic Principles on the Independence of the Judiciary, G.A. Res.146, U.N. GAOR, 40th Sess. (1985) art.6.
 Art. 14(1), ICCPR, (1966) 999 UNTS 171, 1976 Can. T.S. No. 47, in force, including Canada, 1976.
 The Madrid Principles on the Relationship between the Media and Judicial Independence, established by a group convened by the International Commission of Jurists, its Centre for the Independence of Judges and Lawyers, and the Spanish Committee of UNICEF.
 Laws may restrict the Basic Principle [of a free press] in relation to criminal proceedings in the interest of the administration of justice to the extent necessary in a democratic society
a) for the prevention of serious prejudice to a defendant;
b) for the prevention of serious harm to or improper pressure being placed upon a witness, a member of a jury, or a victim.
 Rajeev Dhavan, Publish and Be Damned: Censorship and Tolerance in India (2008)
 Sunday Times v. United Kingdom (1979) 2 EHRR 245 (Sometimes referred to as “the Thalidomide case”)
 Harijai Singh and re: Vijayakumar, AIR 1997 SC 73
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 Enact law to regulate trial by media: Law Commission, The Hindu, Sept 3, 2006 < https://www.thehindu.com/opinion/Readers-Editor/Freedom-of-the-press-and-fair-trial/article16301300.ece> accessed 03 September 2019
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 Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr., AIR 1975 AP 30 — “…… 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 defense. 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.”
 Indian Express Newspapers V Union of India 1985 SCR (2) 287.
 S.L Rao, Trial by Media-Television should have no role when criminal cases are in court, The Telegraph, July 25, 2011, available at http://www.telegraphindia.com/1110725/jsp/opinion/story_14234123.jsp
 Devika Singh & Shashank Singh, Media Trial: Freedom of Speech v. Fair Trial, IOSR-JHSS, pp.88-94.
 Mukesh and Anr. v. State for NCT Delhi & Ors. Crl. Appeal No. 607-608 of 2017
 Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1
 Dr. MRs. Nupur Talwar v. CBI, Delhi and Anr. Crl. Appeal No. 68 of 2012
 Ratan N. Tata v. Union of India and Ors. W.P. (C) No. 398 of 2010 with W.P. (C) No. 16 of 2011
 State Tr. P. S. Lodhi Colony, New Delhi v. Sanjeev Nanda Crl. Appeal No. 1168 of 2012
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 Sahara India Real Estate Corporation Ltd. and Ors. v. Securities and Exchange Board of India and Anr. C. A. No. 9813 of 2011 and C. A. No. 9833 of 2011
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 Attorney General v. BBC 1981 AC 303 (CA), p. 315. – “The principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices…. 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.” Most of these safeguards to ensure a fair trial are contained under the Code of Criminal Procedure, 1973 which contains and defines the procedure which has to be followed in criminal cases. The concept of a fair trial cannot be limited to a statute and the has also in the past transferred cases from one state to another when it is reasonably anticipated that the accused will not be afforded a fair trial or the court process may be interfered with by extraneous considerations.”
 Anamika Ray & Ankuran Dutta, Media Glare or Media Trial: Ethical Dilemma between two Estates of Indian Democracy, (2015) OJCMT, <https://www.ojcmt.net/download/media-glare-or-media-trial-ethical-dilemma-between-two-estates-of-india-democracy.pdf> accessed 03 September 2019
 200th Law Commission of India Report, available at <http://lawcommissionofindia.nic.in/reports/rep200.pdf> accessed 03 September 2019
These include, (1) Publications concerning the character of accused or previous conclusions; (2) Publication of Confessions :(3) Publications which comment or reflect upon the merits of the case; (4) Photographs related to the case which may interfere with the identification of the accused; (5) direct imputations of the accused‘s innocence; (6) Creating an atmosphere of prejudice; (7) Criticism of witnesses: (8) Premature publication of evidence: (9) Publication of interviews with witnesses.