Need For Regulating Media Trials

P.L. Goyal, Advocate
District Courts Faridabad
(Retd. Additional District and Sessions Judge)

Date : 09/09/2020

Need For Regulating Media Trials

Democracy had three pillars namely, legislature, executive and judiciary till about the last three decades. But with the passage of time people perhaps felt that democracy was unstable with three legs and accordingly they evolved the freedom of speech and expression through media as the fourth pillar. The increased role of the media in today's globalized and tech-savvy world was aptly projected by Justice Learned Hand of United States when he said, "The hand that rules the press, radio, the screen, and far spread magazines, rules the country".

TV channels, in a bid to increase their TRPs (Television Rating Points) are resorting to sensational journalism with a view to get competitive edge over the others. Today trials by media is the impact of TV and newspaper coverage. Our `Media Studios' have virtually turned to be courtrooms for all intents and purposes. Facts of the cases in all their lurid details, full particulars - whether correct or otherwise - the various steps and stages of investigation of the case, freely embroidered with personal and motivated comments and observations, are being presented, evidence discussed, experts opinions sought, and even the public is being given opportunity to participate in the process. Public is asked to send their views by SMS or by logging on the websites of channels. The conclusions tend either to pronounce on the guilt of certain persons or on the motives of the investigators. A sort of parallel adjudicatory system has been erected by the media personnel which is plain megalomania.

In recent times there have been numerous instances of conduction of trials against the accused and of passing verdicts against them before the concerned courts passed their judgments. Some of the instances are Priyadarshni Mattoo case, Jessica Lal case, Nitish Katara murder case, Bijal Joshi rape case and Aarushi Talwar murder case. Currently, during the last about three weeks all the TV channels are engrossed in the media trial of Sushant Rajput case. Almost fifty percent time of all the TV channels is being spent on this case which has a deafening effect on our ears. It appears that our country has no other problem except discussing this case.

Although the term `media trial' is a recently coined phrase, the idea that popular media can have a strong influence goes back certainly to the advent of the printing press and perhaps much beyond.

In the recent past in the famous trial of US in O.J. Simpson, despite the acquittal of the accused O.J. Simpson by the court there, the promotion of the media coverage in the public mind was raised above the status of the court.

Often the press coverage can be said to reflect the views of the person in the street. However, great impact of media projection of the cases requires greater responsibility on the media. Problem is where media covers extremely sub-judice matters clearly prejudicial to the interest of the one party or the other.

About the impact of press coverage and its importance Venkataramiah J. of our Supreme Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641, had stated -

"Freedom of press is the heart of our social and political intercourse. The press has now assumed the role of public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication 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 about which a democratic electorate (Government) cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities".

The above statement of the Supreme Court illustrates that freedom of press is essential for the proper functioning of our democratic process. Freedom of press extends to engaging in uninhabited debate about the movement of public figures and important events.

However, trial by media has created a problem as it is a sort of tug of war between two conflicting principles, i.e. free press and free trial. Public is vitally interested in both of these issues. At the same time, "Right to Fair Trial" has to be uninfluenced by any kind of extraneous considerations or pressures. The media, therefore, cannot be permitted to exceed its right by publications that are prejudicial to a suspect or the accused involved in the case. Then every accused, under our adjudicatory system has the right to legal representation by a counsel of his own choice. Some times the media creates such a hype that for an ordinary advocate it becomes difficult and embarrassing to defend an accused upon whom a lot of mud is slung by adverse media coverage. The readers must be remembering that in Jessica Lal murder case the accused Manu Sharma was being defended by the eminent criminal lawyer Sh. Ram Jethmalani and the TV channel CNN had the audacity to confront him with the suggestion that he was defending unwarranted cause.

Fetters have, therefore, to be put on the rights of the press and the electronic media in the conduction of media trials. The ever increasing tendency to use media while the matter is sub-judice has been frowned upon by the Apex Court in several cases. In State of Maharashtra v. Rajendra Jawanmal Gandhi 1997(8) SCC 386, it was observed -

"There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and he is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law".

Again in M.P. Lohia v. State of West Bengal (AIR 2005 SC 791), the Apex Court castigated the conduct of the press in publishing the interview of the family of the deceased during the pendency of the anticipatory bail application of the accused in the High Court of Calcutta and the special leave petition before it.

Importance of the freedom of press in parliamentary democracy has been time and again recognized, stated, re-stated, and confirmed by the Superior Courts of our country despite the fact that Article 19(1)(a) of our Constitution does not contain any specific enumeration of this freedom. As early as in Romesh Thappar v. State of Madras (AIR 1950 SC 124), the Apex Court had struck down the ban imposed by the Government of Madras on the entry and circulation of the journal, Cross Roads, which was printed and published by the petitioner. The Apex Court held that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 was violative of Article 19(1)(a) and did not fall within the ambit of any of the exceptions specified in Article 19(2). The court held that nothing short of a danger to the foundations of the State or a threat to its overthrow could justify the curtailment of the right of freedom of speech and expression.

In LIC v. Manubhai D. Shah (AIR 1993 SC 171), the Apex Court observed, inter-alia, that freedom of speech and expression was a natural right which a human being acquired on birth. The words `freedom of speech and expression' had to be broadly construed to include the freedom to circulate one's views by words of mouth or in writing or through audio-visual instrumentalities. The said words, therefore, included the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. The Apex Court even went to the extent that the right of freedom of speech and expression also included to answer the criticism levelled against one's views by a rejoinder through print media or electronic media where the publisher was the State or its instrumentality.

In the circumstances a balance has to be struck by the Parliament and the judiciary to reconcile the freedom of speech and expression to be exercised by the media with the individual rights of the accused persons who are facing or likely to face trials in cases. In Rajender Sail v. M.P. High Court Bar Association and others (2005) 6 SCC 109, it was observed by our Top Court that for rule of law and orderly society, a free responsible press an independent judiciary were both indispensable and both had to be, therefore, protected.

It will be appropriate that where litigation is pending before a court of law, then no one should comment upon it in such a manner that there is a real and substantial danger of prejudice to the trial of the action, as for instance by influence on the judge or by prejudicing the witnesses etc. If there is violation of this rule then the same should be taken seriously and the person concerned should be hauled up for the action of contempt of court. The parties have a constitutional right to have a fair trial in the court of law, by an impartial tribunal, uninfluenced by media reports. This does not mean that the media cannot report on the events pending investigation or trial of the cases. The media should keep a restraint by reporting the events in an impartial manner without any kind of embroidery. A lie, if repeated several times, acquires the status of truth in the eyes of a common man. This expression was coined by Adolf Hitler when he dictated his 1925 book Mein Kampf, about the use of a lie so `colossal' that no one would believe that someone could have the impudence to distort the truth so infamously. The judges trying a case are after all human beings and they can also be swayed away by the propaganda and hype created by the media in parallel trials.

A meeting of the group of about 40 legal experts and media representatives convened by the International Commission of Jurists (ICJ) at its Centre for the Independence of Judges and Lawyers (CILJ), and the Spanish Committee of UNICEF had met in January 1994 at Madrid in Spain with the objectives of examining the relationship between the media and the judicial independence as guaranteed by the 1985 UN principles on the independence of judiciary and for formulating the principles addressing the relationship between freedom of expression and judicial independence. After a long debate it was concluded that the function and right of media were to gather and convey information to the public and to comment on the administration of justice, including the cases before, during and after trial but without violating the presumption of innocence. These principles must be got observed from the press or TV channels indulged in media trials in our country and if there is any violation then the same should be taken note of seriously and punished for commission of contempt of court. For the said purpose the Contempt of Courts Act, 1971 should be modified to include within its ambit even the media trials of investigations before the actual trial before the courts. Our Apex Court should lay down specific and detailed guidelines in this regard to be followed by the media.

Further our Parliament may put by appropriate legislation some fetters upon the rights of media for curtailing the misuse of freedom of press via motivated media trials. Some jurists in our country are of the view that the freedom of speech and expression under Article 19(1)(a) of our Constitution can be controlled by reasonable restrictions under Article 19(2) which reads as under -

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

The said jurists advance the argument that no reasonable restrictions are thus possible by legislation as the same will not be within the ambit of Article 19(2) of our Constitution.

It is humbly submitted that the Parliament can put fetters against irresponsible indulgence by the media in media trials under Article 19(2) by amending the provisions of Contempt of Courts Act, 1971 so as to bring within its sweep the cases in which trials have not commenced but may commence in future. Further there can be restrictions on right of freedom of speech and expression for inculcating decency or morality under Article 19(2). Further the Parliament will be clearly within legislative competence if it imposes restrictions on media against motivated media trials as such restrictions will clearly fall within the ambit of `decency' or `morality' for safeguarding the valuable rights of the accused persons for an impartial trial by competent courts of law without being in any manner affected by the adverse impacts of media propaganda.

Media no doubt forms the backbone of our democratic setup. It subjects all the institutions to public scrutiny and makes them answerable to the public to whom they are to serve. However, the media cannot be permitted to trample over the rights of the accused persons by resorting to irresponsible media trials. A responsible media should act as the handmaiden of effective judicial system in the country which will be the real service for the country.

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