Category: Legal Essay
Paper Code: LE-BB-O1
Page Number: 379 - 384
Date of Publication: February 10, 2021
Citation: Bidisha Barman & Kaustabh Moni Sarma, Trial by Media: A Hindrance in the Path of Justice and Fairness, 1, AIJACLA, 379, 379-384, (2021), https://www.aequivic.in/post/aijacla-trial-by-media-a-hindrance-in-the-path-of-justice-and-fairness.
Details Of Author(s):
Bidisha Barman, Advocate, Gauhati High Court
Kaustabh Moni Sarma, Advocate, Gauhati High Court
ABSTRACT In the present era, journalistic freedom is being diverted against its positive facet. The media is more interested in targeting a large number of audiences and paying less heed to the reliability of sources. In sub judice matters, media conduct their own trial and try to supersede the Judiciary by infringing privacy, fair trial, and administration of justice. Media organizations in the name of Freedom of Press under the ambit of Freedom of Speech and Expression have started to misuse its immunity; they run certain malignant campaigns which result in defaming a person accused in a particular crime without being declared as guilty or innocent by the judicial authority. Thus, media is moving towards a polarized form. KEYWORDS Administration of Justice, Fair Trial, Freedom of Press, Freedom of Speech and Expression, Media Trial, and Privacy
“When we talk about journalistic freedom, it is not absolute. He shares the same freedom as other citizens. There is no separate freedom for journalists like in the US. We need journalists who are fair in their debates.”
- Justice Kuttiyil Mathew Joseph
In the contemporary world, media is being regarded as the fourth pillar of democracy. Since its inception, it has played a very prominent role in moulding public opinion and has actively changed the perception of our humanistic society towards various events. Globally, media has been entrusted with a wide range of powers and responsibilities under the legal exposure of “Freedom of Speech and Expression”. It is often said that with the increase in the surfeit of power granted to a particular thing or a person, lessens the morality of the same. Since the latter part of the 20th century, media has frequently misleadingly used its power, leading to an imbalance in the field of professional ethics and morality. The first Prime Minister of India, Pandit Jawaharlal Nehru was the first person to recommend that restraint must be imposed on “Freedom of Press” to protect moral and ethical standards. Thus, the First Amendment to the Constitution of India, 1951 added three more reasonable restrictions on the fundamental right of “Freedom of Speech & Expression”. He expressed that the press is being involved in vulgarity and indecency, so it had become difficult to make a distinction between the true and forged events. Thus, the issue of “Media Trial” is promptly evident from this context. According to different senior advocates of the Supreme Court of India, the merger of mainstream media and social media has evolved into a “Dangerous Cocktail” which is not at all conducive to the “Rule of Law”. Harish Salve, a senior advocate of the Supreme Court of India, stated that problem arises in the society when media becomes a “parallel system of rule of noise, where the rule of noise starts displacing the rule of law”. In general, the word “trial” implies the procedure where the court after examining the evidence presented before it, delivers its decision or judgment regarding the guilt or innocence of the accused. Thus, it is quite evident that media cannot be regarded as a competent authority to conduct a trial on its own. It is not a distinguished and lawful statutory authority.
“Trial by Media” can be termed as a process wherein the media starts investigation of a certain reported crime on its own and tries to create a widespread perception of the guilt or innocence of the accused person in front of the public before the person is produced in the court of law or verdict has been passed for or against him in the court of law. The mainstream media has evolved itself into a self-proclaimed “Public Court” (Janata Adalat). And this public court completely discards the two basic principles of the Indian Criminal Justice System, i.e., “innocent until proven guilty” and “the prosecution must prove the guilt of the accused beyond all shadows of reasonable doubt”.
MEDIA TRIAL AND ITS LEGITIMACY
The role of media has been marked as a “watchdog” in a democracy. However, in this era of globalization, media has perhaps overturned into a mere “publicity showboat”. The critical analysis of the role posed by media trial in the justice administration system can be explained through the following aspects:
Media Trial vis-à-vis Freedom of Speech & Expression:
“Freedom of press” is implicitly included under Article 19(1) (a) of the Constitution of India which provides for the fundamental right of “Freedom of Speech and Expression”.In this context, the self-evolved and self-regulated concept of “Media Trial” comes into the picture. In the name of freedom of the press, media often publishes certain crucial news relating to the integrity or security of India, which may pose an irreparable threat to the nation. Thus, it may have vitiated the provisions of “The Official Secrets Act, 1923”, which prohibits actions posing threat to the sovereignty and integrity of India.In2007, a news channel ran a sting operation that showed the involvement of a government school teacher in a prostitution scandal. Later, police investigation revealed that it was a fake sting operation. The school teacher filed a case of defamation against the news channel for damaging her reputation. In another incident held in the year 1994, in Thiruvananthapuram, two ISRO scientists were falsely accused on account of selling vital information relating to ISRO rocket engines. Though they were acquitted by the court, several unrealistic news publicized by different news channels hampered their reputation. These incidents of “media sensationalism” “and “media trial” in the name of freedom of the press are completely intolerable. The Supreme Court of India has observed in the cases of Romesh Thappar v. The State of Madras, Bennett Coleman & Co. &Ors v. Union of India &Ors, Indian Express Newspaper v. Union of India &Ors., Sakal Papers (P) Ltd., And Others v. The Union of India, that though freedom of press is included under the “Freedom of Speech & Expression” it is not absolute and subject to certain reasonable restrictions. Thus, freedom of the press cannot infringe Article 19 (1) (a) & Article 19 (2).
Fair Trial, Right to Privacy, and Criminal Contempt:
The right to fair trial and the Right to Privacy has been implicitly guaranteed within the scope of the fundamental rights under the Constitution of India. However, the right to a fair trial doesn’t include “Trial by Media”; rather it affects the fairness of a trial, interferes, or prejudices the due administration of justice in a particular case. The Supreme Court of India has held in SidharthaVashisht @ Manu Sharma v. State (NCT of Delhi), that print and electronic media must maintain the distinction between trial by media and informative media. Media sensationalism has led to the publication of false and biased news, causing injury to the reputation of a person. And once the reputation of a person is vilified over news channels, his or her reputation doesn’t remain the same. The former Chief Justice of India, Justice J.S.Khehar expressed his concern over the proposal of new guidelines governing the information that a policeman can speak out before the media regarding the pre-trial or investigation stage because media reportage sometimes undermines free and fair trial.In Sahara India Real Estate Corporation Ltd. v. Securities & Exchange Board of India, the Supreme Court has ruled that if any accused faces a smear campaign during a trial that may prejudice his case, he would be free to approach the trial court to postpone the reporting of an order. In case of subjudice matters, if the media runs a parallel trial and the court orders the acquittal of the accused, then it may create a negative perception among the public towards the judges, thus subverting the fair administration of justice. In Laxmi Raj Shetty And Anr. v. State of Tami Nadu, the Supreme Court has held that newspaper report is only hearsay evidence and not a document as specified under Section- 78(2) of the Indian Evidence Act, 1872. No reliance can be placed on them to convict a person. Thus, media reports are not permissible in judicial proceedings.
“Section -228A of the Indian Penal Code,1860” penalizes the action of printing or publication of any matter that relates to the identity of a victim in respect of sexual offenses. In Nipun Saxena &Anr. v. Union of India &Ors., the Supreme Court has held that the identity of the victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule, ostracization, and harassment. There had been incidents when media disclosed certain information through various mediums relating to the identity of a rape victim, such sensationalism by news channels to garner TRPs (Television Rating Points) leads to the strict infringement of the right to privacy of a person.
“Section-2(c) of the Contempt of Courts Act,1971” provides that the publication of any matter which scandalizes, interferes, prejudice, or obstructs the due administration of justice shall be considered as criminal contempt. Recently, the news relating to the death of a famous Indian actor has created a ruckus over news channels. The Press Council of India has issued warnings to media that they must adhere to journalistic norms and conduct in covering cases under investigation. The coverage of the alleged suicide by an Indian film actor is in strict violation of journalistic norms and conduct. In this case, the media has run its parallel trial which has endangered the due process of investigating agencies.Media is prone to immunity for its publications in respect to matters related to judicial proceedings under the Contempt of Courts Act, 1971 in conformity with the Press and Registration of Books Act,1867. Thus, illegitimate actions by media in the name of freedom of the press should be included under criminal contempt as it tends to lower the authority of the Court through media trials.
The 200th Report of the Law Commission of India on “Trial by Media: Free Speech v. Fair Trial under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971)” have prescribed that extensive media coverage in sub judice matters, has proved to be detrimental to suspects, accused, witnesses and even judges which have affected the administration of justice. So, the law commission has prescribed certain amendments concerning criminal contempt by media under the Contempt of Courts Act,1971.
Investigative Journalism versus Trial by Media:
The concept of“Investigative Journalism” is included within the scope of freedom of the press. It has the moral responsibility to reveal the hidden secrets of a society in respect of greater public interest without jeopardizing the stability in the society, but while doing so it cannot harm the reputation of a person. In the name of investigative journalism, the media cannot run a “parallel trial” on its own. There are differences between the two aforesaid terms - in the Aarushi Talwar Murder case; the media ran a parallel trial on its own that led to indecent allegations against the deceased and other suspects. Though the accused in this case were later acquitted by the court; this act of media trial was subjected to heavy criticisms because it not only hampered the reputation of the deceased but also interfered in the investigation procedure. Secondly, the Supreme Court of India has restrained Sudarshan News, a news channel, against telecasting a program that used the word “UPSC Jihad”. The court has expressed that journalistic freedom is not absolute so news channel cannot publish anything which vilifies a certain minority community in the country. Thirdly, in the famous corruption case known as the “Coffin Gate scam”, a magazine named “Tehelka” through its sting operation exposed the former Defence Minister of India, George Fernandes. Though the accused in this case were later acquitted by the court but the media criticized the defense minister for misuse of power on his part. Fourthly, in the Bijal Joshi rape case where the accused were related to some influential people and there was political pressure upon the family of the victim to settle the matter outside the court, media interrupted in the meantime and criticized the accused with wide coverage of the whole incident. The first two aforesaid instances depict media trial where media tries to supplant judicial authority, while the latter instances depict investigative journalism conducted in the public interest.
THE WAY FORWARD AND CONCLUSION
At present, except “Prasar Bharati”, all other Media Houses are either run by businessmen or politicians with their self-regulatory bodies. The Press Council Act, 1978 empowers the Press Council of India to warn or censure any newspaper, news agency more particularly the editor or journalist of a media organization if any conduct on their part infringes journalistic ethics and standards resulting in professional misconduct. Although the News Broadcasters Association and Press Council of India, regulates the conduct of journalistic freedom, these organizations can be considered as a “tiger without teeth and claws”, because any misconduct on the part of media is simply handled by the issuance of certain warning against them. The main motive behind these media trials is to gain high TRPs, as a major part of the public is more attracted to entertainment news. Thus, the need of the hour is strict legislation that will not only protect “freedom of speech & expression” but also prohibit media trials.
Henceforth, media trial is like a termite that is damaging the core values of Journalism. It neither gives credit to journalism nor does it do any good to democracy, it only runs down the prestige of freedom of the press. It is said that “with great powers, comes great responsibility”, freedom of the press is very essential but at the same time it must realize the responsibility that they have to reveal the truth, and not hamper the reputation of any person or class of society.
 Sofi Ahsan, Trial by rule of law replaced by trial by embarrassment: Lawyers on ‘trial by media’, The Indian Express, (Sep. 2020, 13, 06:43 AM), https://indianexpress.com/article/india/trial-by-rule-of-law-replaced-by-trial-by-embarrassment-lawyers-on-trial-by-media-6593899/.  Id.  Romesh Thappar v. The State of Madras,1950 AIR 124, 1950 SCR 594.  Bennett Coleman & Co. & Ors. v. Union Of India & Ors.  Indian Express Newspaper v. Union of India &Ors., 1986 AIR 515, 1985 SCR (2) 287.  Sakal Papers (P) Ltd., And Others v. The Union of India, 1962 AIR 305, 1962 SCR (3) 842.  Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352.  Samanwaya Rautray, Supreme Court hints at end to ‘media trial’, The Economic Times (Sep. 2020, 08 12:51 AM), https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-hints-at-end-to-media-trial/articleshow/57028827.cms.  Sahara India Real Estate Corporation Ltd. v. Securities & Exchange Board of India, AIR 2012 SC 3848.  Laxmi Raj Shetty And Anr v. State of Tamil Nadu, 1988 AIR 1274, 1988 SCR (3) 706.  Nipun Saxena & Anr. V. Union of India & Ors., (2019) 2 SCC 703.  Press Trust of India, Sushant Singh Rajput case: Press Council asks media not to carry out its own ‘parallel trial’, The Indian Express (Sep. 2020, 18, 09:20 PM), https://indianexpress.com/article/india/sushant-singh-rajput-case-press-council-asks-media-not-to-carry-out-its-own-parallel-trial-6573977/.