MEDIA TRIAL: A LEGAL DILEMMA

By- Vikalp Sharma

Media is the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power because they control the minds of the masses.

-Malcolm X
Introduction

The issue based on the media trial which is talked about by numerous Civil Rights Activists, Constitutional Lawyers, Judges and Academicians pretty much consistently nowadays. With the appearance of TV and link channels, the measure of exposure gets to any crime, suspects or accused in media has reached to alarming proportions.

Innocent might be censured for reasons unknown at all and the individuals who are not liable may not get reasonable preliminary proceedings in order to very less restraints on media in so far as the administration of the bothered justice.

Press an only medium of expression but also a business[1], due to that urge for increasing the TRP in the competition has sparked a disposition in the sensationalize news items which would be otherwise worthless.[2]

India is the largest democratic country, the right to speech and expression is a significant right, however such right isn’t rigid as that in the Constitution per se. Media exercises certain unrestricted source of issuing publication information regarding the case and influence the mind of the public, it directly affects the Court in the case of accused.

Therefore, it affects the image of the accused even after the acquaintance from the fair treatment from the Court as he can’t reconstruct his reputation in the eyes of the public.

In the case of Express Newspaper v. Union of India[3], Court said “Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become license which would lead to disorder mayhem for which media is no exception”.

Justice P.B Sawant in “Media and Judiciary”, “The Statesman” dated on 28.3.2005 said that Breaking News is baked news by media with a bit of ‘Masala’, it’s TRP rating also get a boost.

Media Trial has taken a boost in the 21st Century and which signifies the person’s reputation by creating a perception of guilt in the mind of the public regardless of any verdict in a Court of law.

Based on the half details of the case or any statements of the accused or witnesses, media presents their view to the public during the pendency of Court trial is not only interfering with the administration of justice but also affecting the decision-making power of the Judiciary.

There were certain cases like Jessica Lal case, Priyadarshini Mattoo case, or Nitish Katara case, media before the judgment passed by Court, passed their verdict on said cases.

Definition of Media Trial

The Court defined Media Trial as the pre-trial and in-trial reporting of the case, whether civil or criminal, which is likely to prejudice the fair trial of every accused.[4]

It means ‘whenever a sensational case comes to be at the court trials, there is expected upsurge in the public curiosity, whenever media investigates or interfere and makes a presumption indeed, even before the decision of the Court’s then it is considered to be ‘Trial by Media.’

Constitutional Approach

Prior to the Constitution of India, there were no statutory provisions for freedom of speech or the liberty of press.

In Arnold v. King Emperor[5] Privy Council observed that ‘Freedom of the Journalists is a normal opportunity of the subject, and to whatever lengths the subject when all is said in done may go, so additionally may the writers, however, separated from resolution law, his benefit is no other.

Article 19(1) (a) of the Constitution of India envisages the freedom of speech and expression, it also provides the freedom of the media. In Ramesh Thapar v. State of Madras[6] the Court said Article 19(1) (a) does not refer specifically to the freedom of the press but the judicial decisions have repeatedly affirmed that the Article is sufficiently wide enough to include the freedom of the press.

However, the rights granted under Article 19 are not absolute, they are subject to some reasonable restrictions enunciated under Article 19 (2).

The article is read as:

“Article  19(1)[7]. All citizens shall have the right:

(A) To freedom of speech and expression (B) …….……………………………………..

(G)……………………………………………..

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause, in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”.

Judiciary v. Media Trial

There are many questions which are to be answered; first of all, are media/ journalists competent to conduct the proceedings in the way they do? Let’s take an example, if media takes a conclusive determination as well as the guilt of an accused and also represent confession by the accused even though made it with the help of police.

This implies the ignorance of media about the principles of law enunciated under Section 25 of the Indian Evidence Act, 1872.[8] Therefore, something which is forbidden by the court becomes easy to taint the accused guilt or confession in the society or general public which creates hatred towards the accused.

The most debated issue has been the influence of media on the decision-making process of the Judges. Journalism has an effect on the legal executive.

For example in maintaining the burden of capital punishment on Mohammed Afazal in December 2001 assault on Parliament, Justice P. Venkatarama Reddi expressed; “The matter which brought about substantial setbacks, had shaken the whole country and the aggregate still, small voice of the general public may be fulfilled if the death penalty is granted to the guilty party.,.”[9]

In Priyadarshini Mattoo case, Mattoo was raped and murdered by Santosh Singh, son of Police Inspector- General. Trial Court acquitted the accused, The Additional Session Judge, J. P Thareja said about Santosh that, “he knew that he is the man who carried out the wrongdoing; he had to clear him giving him the advantage of uncertainty.”[10]

In State of Maharashtra v. Rajendra Jawanmal Gandhi and Secretory, Ministry of Information and Broadcasting v. Cricket Association of West Bengal[11] Apex Court has held that a trial by press, electronic media or by way of public agitation is the very antithesis of Rule of Law and can lead to a miscarriage of justice, a Judge is to guard himself against such pressure.[12]

In Saibal Kumar v. B.K Sen[13],Apex Court said “Presumably, it would devilish for a newspaper to deliberately lead an autonomous examination concerning wrongdoing for which a man has been captured and to distribute the after-effects of the examination. This is on the grounds that proceedings by the newspaper, when a proceeding by one of the standard councils of the nation is going on, must be forestalled. The reason is that such activity with regard to a newspaper will in general meddle with the course of equity, regardless of whether the examination will in general partiality to the accused.

State of Maharashtra v. Rajendra Jawarhalal Gandhi[14], see also State v. Editors,[15]; A.K Gopalan v. Naorudin,[16] -Trail by media rather than Trial by Court which is the very direct opposite of rule of law bringing about the inequality trial.

Press Council of India and Law Commission 200th Report of India

If the Council is of the view that a news agency has committed any professional misconduct, they have the inherited power to “warn, admonish or censure the newspaper or agency, or direct the newspaper/ agency to “publish the contradiction of the complainant in its forthcoming issue” under Section 14 (1) of the Press Council Act, 1978.[17]

However, these measures can only be enforced after the publication of news materials.

In Ajay Goswami v. Union of India[18], the followings are the inadequacies of the Press Council Act, 1978:

  1. Section 14 of PCI engages the Council just to caution, rebuke or rebuff the papers/office;
  2. It has no ward over electronic media;
  3. It can exercise its power only to the pending civil and criminal cases;
  4. It only enjoys the authority of declaratory adjudication with limited power; and
  5. It has a lack of punitive power.

Press Council of India has also established a certain set of norms for journalistic conduct which are as follows:

  1. It emphasizes the importance of accuracy and fairness;
  2. Encourages the press to abstain from publication which is inaccurate, baseless, misleading or distorted materials;
  3. Publication of criticism of Judiciary be published with great caution;
  4. Avoid one-sided inference and be impartial; and
  5. It has criminal contempt powers to restrict the publication of prejudicial media reports.

In “200th report of Law Commission” titled “Trial by Media: Free Speech v. Fair Trial under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)”, contradictive and positive parts of media preliminary has been explained, additionally made suggestions to address the harming impact of sensationalized news provides aspects regarding the organization of equity.

It has additionally been suggested that the High Court be enabled to coordinate the deferment of distribution or broadcast of criminal cases. The Commission has additionally recommended that the beginning stage of a criminal case ought to be from the hour of capture not from the hour of recording the charge sheet.

The assumption of the Commission in proposing the suggestion was the keep the media from prejudicing the case and makes a harmony between the Article 14, 19 and 21 of the Constitution of India and adjusting the privileges of free discourse and fair treatment.

Conclusion and Suggestions

The high-profile cases such as Jessica Lal and Nitish Katara murder cases, powerful people were the accused and benefit from such incessant media exposure. Neelam Katara, mother of the deceased in the Nitish Katara case, succeeded in getting a verdict from the subordinate court due to the support of the media and the public opinion generated through print and electronic media. It is said Trial by Media has its obvious fallouts.

It needs to be careful and cautious in their conduct. The solution lays not in the curbing of media freedom but in making efforts to make more responsible. No person charged with any crime should be judged by the media because that person is innocent until proven guilty, and it is the basic principle of criminal jurisprudence.

During these times, there is a need to devise a delicate and due balance between freedom of speech and expression of the media and on the other hand the due process rights of the suspect and accused.

The Paramount functions of the media are to act as the opposition of the government and also stay neutral in the process. This role of the media is highlighted in the cases.

None of the cases would have got so much of importance in the judiciary had the media not intervened, however, it is very important to have a responsive and responsible media to have a healthy democracy.


[1] Hamdard Dawakhana v Union of India, (1960) 2 SCR 671; Indian Express Newspaper v. Union of India (1985) 1 SCC 641.

[2] Example- Swamy nityananda’s sex sandle & Shashi Tharoor’s link in Kochi IPL issue.

[3] (1997) 1 SCC 133.

[4] Shyam Singh v. State, 1973 Cri.LJ 441; Kehar Singh v. State (1988) 3 SCC 609.

[5] (1914) L.R. 41 I.A. 149.

[6] AIR 1950 SC 124.

[7] Constitution of India.

[8] It prohibits the confession to the police as admissible in the court of law.

[9] See: http://www.hrdc.net/sahrdc/

[10] http://www.ourpriyadarshini.org/ on 12/12/06 (quoted from Trial By Media-The Jessica Lal Case , available at: http://ssrn.com/abstract=1003644).

[11] 1995 (2) SCC 161

[12] 1997 (8) SCC 386

[13] (1961) 3 SCR460

[14] (1997) SCC 386

[15] AIR 1995 (Ori) 36

[16] AIR 1970 SC 1694

[17] Section 14 (1) of the Press Council Act, 1978, states: “Where, on receipt of a complaint made to it or otherwise,  the Council has reason to believe that a newspaper or news agency has offended against the standards of journalistic ethics or public taste or that an editor or working journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act and, if It is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case maybe.”

[18] (2007) 1 SCC 143

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