By Shreyasi Godse ~ Law College Dehradun, faculty of Uttaranchal University
Media, is an information disseminating platform which serves the public’s right to know and has the power to mould the public opinion. It also has the freedom of expressing its views which it derives from the Constitution of India where the freedom of press is included in the wider ‘expression’ which is guaranteed by Article 19(1) (a). Media is necessary to maintain a free and fair democracy as it takes care of the checks and balances on the legislature, executive and the judiciary, by way of discussing and constructively criticizing their functioning on a public platform. Free and robust reporting, criticism and debate contribute to public understanding of the rule of law and a better comprehension of the entire justice system. Possession of power over public opinion creates a necessity for responsible journalism. Therefore, the right to freedom of speech and expression is not absolute freedom and is subject to the limitations contained in clause (2) of Article 19. Absolute, unlimited and unfettered freedom of the press at all times and in all the circumstances would lead to disorder and anarchy. Despite the restrictions, media goes beyond the extent of mere broadcasting information, to basically tending to interfere in the administration of justice.
Despite the restrictions, media goes beyond the extent of mere broadcasting information, tending to interfere in the administration of justice.
The advent of technologies in the past decade has aided the media to gather and broadcast the information that is confidential and may infringe the privacy of the individual, which is done to sensationalize the issue which is most common in high profile cases. The media taking advantage of the public’s interest in the high profile cases profusely abuses the freedom of speech and expression to increase their TRP (target rating point). This scenario is very evident from the recent Sushant Singh Rajput’s death case, where the media houses have gone to investigate the evidence which prima facie interferes in the administration of justice. A trial has been defined as the ‘formal judicial examination of evidence and determination of legal claim’, where the examination and determination have to be in the formal judicial manner. Keeping this in mind, the conduction then how conduction of the same by media is not justifiable in the eyes of the law. The media trials end up shaping the public opinion, and here it initiates the danger of prejudice.
FREEDOM OF SPEECH V. FAIR TRIAL
The media in the garb of exercising its right to freedom of speech and expression exceeds its limits and rather violates the principle of criminal jurisprudence of presumption of innocence. Trial by media can be explained as constructive character assassination of the accused through showcasing the coverage of the case in such a manner so that it sets a negative narrative about the person and creates a bias which leads to subconscious pressure on the judge. This prejudging of the case by media and defaming of accused even before the trial hinders the due process by denying fair trial. Media has to maintain the balance between freedom of speech and due process or otherwise, the imbalance of the same may lead to contempt of court. The Courts should also issue guidelines regarding reporting of matters to strike a balance and to give equal space in the Constitutional scheme.
If a citizen, in the garb of exercising the right of free expression guaranteed under Article 19(1) tries to scandalise the Court or undermines the dignity of the Court, then the Court would be entitled the power under contempt provisions. Media is to be put on the same footing as every other citizen and should not be subjected to any privilege regarding unfair and unfettered publication or broadcasting about the suspect or accused.
FAIR TRIAL V. MEDIA TRIAL
Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat explained fair trial as a trial which is free of bias or prejudice for or against accused, witness or the cause and is conducted before an impartial judge, a fair prosecutor and in the atmosphere of judicial calm. Trial by media contradicts fair trial as the trial is not conducted before a judge and rather it creates public unrest. Right to a fair trial is an absolute right which flows from Article 21, where media demands for the right to freedom of speech and expression to express its view and public opinion, then it should also ensure this right of a fair trial to the people of India for upholding equality before law mentioned under Article 14.
Supreme Court observed in the case of State of Maharashtra v. Rajendra Jawanmal Gandhi that there exists procedure established by law to govern the conduct of trial , such trial by media is an antithesis of rule of law, and stated that it is the responsibility of the judge to guard himself and sentence the accused when proven guilty according to the provision of law.
In the case of Manu Sharma v. State (NCT of Delhi) the apex court observed the danger and held that;
“297. There is a danger of serious risk of prejudice if the media exercises unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or if the media publishes statements which out rightly hold the suspect or the accused guilty even before such an order has been passed by the court.”
CONTEMPT OF COURT
Criminal Contempt is defined under S.2(c) of The Contempt of Courts Act, 1971 as:
(c) “Criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-
- Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
- Prejudices or interferes or tends to interfere with the due course of any judicial proceeding; or
- Interferes or tends to interfere with or obstruct or tends to obstruct, the administration of justice in any other manner;
The administration of justice includes three stages, namely, inquiry, investigation and trial. An inquiry is defined under S.2 (g) of The Code of Criminal Procedure, 1973 as “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate of Court , media assumes this authority on itself by setting the inquiry by interviewing the accused. An investigation is defined under S.2(h) of the above mentioned Act as “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf, where the code clarifies the procedure of carrying on the administration of justice, media pertains to interfere in the procedure established by taking the case especially the high profile cases in its own hands and begins collecting the piece of evidence and investigating the same, this establishes that contempt of court is committed.
In Saibal v. B.K Sen the court condemned the investigative journalism undertaken by the print media and called it mischievous to publish the results of the same. The view was to prevent the dual trial when already trial by the tribunal is going on, to avoid interference in the administration of justice.
However, the act of media gets a cover under the same act where the contempt can only be committed when the case is ‘pending’ which has been defined under Section 3(2), sub clause (B) of Explanation as “In the case of a criminal proceeding, under the Code of Criminal Procedure, 1898(5 of 1898) or any other law-(i) where it relates to the commission of an offence, when the charge sheet or challan is filed; or when the court issues summons or warrant, as the case may be, against the accused.”
In Sushant Singh Rajput’s death case the media went berserk in investigating the case, collecting shreds of evidence, creating witnesses and not only that but also went on interviewing the accused and broadcasting it across the media channels, it started doing the same even before the charge sheet was filed, which created prejudice about the case. This provision gives media an immunity and a free hand to conduct the trial; therefore, it requires an amendment which would bar the media from conducting trials and prejudicing the cases.
The arrival of 200th Law Commission report on media trial can be regarded as the panacea to this problem as it has suspended the media from publishing unfair and unfettered inferences about the accused from the time of the arrest to examination and trial. The basis for this views the growing TV and cable networks and fear that it would have a prejudicial effect on the suspect, accused and judges.
Trial by media is a threat not only to the accused but also to the victim in the case, as happened in the case of Hyderabad rape case where, due to the media trials, the name of the victim was revealed, which proves that media trials are an infringement of rights of both accused and victim. This concept of media trial hinders the administration of justice due to the loopholes present in the carrying on of the investigation by the assigned authorities. The fierce competition among the media houses and the race behind the TRP has extended to even violating the fundamental right of the accused. A regulatory measure is thus required to put a bar on this freedom of media, to maintain a balance between the rights of both the press and the people.
-  Express Newspaper V. U.O.I AIR 1978 SC 578.
-  Re Harijai Singh, (1996) 6 SCC 466 (para 10): AIR 1997 SC 73.
-  Henry Campell Black, Black’s law Dictionary, West Publishing Co.(4thEd 1968).
-  Re, Arundhati Roy, AIR 2002 SC 1375
-  (2005) 2 SCC (Jour) 75
-  1997 (8) SCC 386
-  (2010) 6 SCC1, 110-111, para 297
-  Justice RS Chauhan, Trial by Media: An International Perspective,(2011)PL October S-38
-  Section2(c), The Contempt of Courts Act, 1971
-  Section2(c), The Contempt of Courts Act, 1971
-  S.2(g), The Code of Criminal Procedure, 1973
-  S.2(h), The Code of Criminal Procedure, 1973
-  AIR 1961 SC 633