Media trial and its effect on the administration of justice.
Abstract- ”Freedom of speech and expression has been embodied as fundamental right in the Constitution of India which includes Media as it is regarded as one of the pillars of democracy. Thus, Freedom of Media is Freedom of people to be informed in Public matters. However, with passage of time it can be seen that trial by media is taking place where the media passes the verdict, before the judge pronounces the judgement in the Court. Although it helps in general awakening of matters of interest of common public, but fair comments must be printed and it is not to be decided when the matter is placed in the Court and decision is pending. It can however in certain matters if found in investigation that it has been carried out in an inappropriate manner show that the process carried on is inappropriate but it should not interfere in process of administration of justice. Before a person is convicted in court, his life is turned into a show where his past events are discussed and in many high-profile cases, one-sided stories are portrayed thereby it affects jurors while presiding the trial and lives of people involved in the trial. A clear line should be drawn between freedom of speech of press and a fair trial. In many cases, the media highlights and makes stories in such a manner that public is greatly influenced and has no true knowledge about the actual fact. Many voices of people who are accused are manipulated and are pronounced as guilty even before the trial Courts have come to their decision. This paper discusses about media trial and how it affects jurors while presiding the trial and lives of people involved in trial and draws a clear line between freedom of speech and contempt of court.”
Trial by media is phrase which was made popular in late 20th century and early 21st century to describe the impact of television and newspaper coverage on person’s reputation by creating a perception of guilt even before the verdict is passed by court of law. The debate is whether freedom of press which is should be given a priority which to an extent is largely uncensored or priority should be placed on individuals right to privacy and fair trial. Different reasons can be looked upon when media attention is particularly intense surrounding a legal case where in cases where crime itself is in some way sensational by being horrific and another case maybe where a celebrity is involved in the case as accused or victim. The concept of media trial is not a new concept and there has been numerous instances where media has been accused of conducting a trial of accused and passing verdict even before court passes judgement. Trial is a process which to be carried out by courts and trial by media is definitely an undue interference in process of justice delivery. It has reincarnated itself into a public court namely the ”Janata Adalat’ ‘where it pronounces its own verdict even before court does and completely overlooks vital gap between accused and convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. “The press is commercialized to a large extent. In this business, profits and social responsibility need to be balanced and if that does not happen, society will not accept the media for long. As an independent and statutory body, the PCI shall ensure that a balance is struck between profit-making and social responsibility, profit-making tendency of some media owners and contractual-basis hiring of journalists are hampering quality of journalism was quoted by Justice Markandey Katju, (former Judge, Supreme Court of India), Chairman, Press Council of India. It is to be noted that freedom of speech and expression is not absolute, unlimited in all circumstances as giving unlimited freedom would lead to uncontrollable licence and absolute freedom.
During the period of high publicity cases media is often accused of provoking an atmosphere of public hysteria akin to a lynch mobwhich creates a situation wherein whatever will be the verdict of the court as in if accused is allowed to go scot-free he will be hounded at every turn in his life. In (Printers Mysore) Ltd. v. CTO the Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy. Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971) has recommended the law to debar the media from reporting anything that is prejudicial to rights of accused in criminal cases from the time of arrest to investigation and trial. Article 19 of the International Covenant on Civil and Political Rights, 1966, embodies the right to freedom of speech, that is, “everyone shall have the right to hold opinions without interference” and the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Under the Press Council Act, 1978, the Press Council of India is established, with the objectives to “preserve the freedom of the Press and to maintain and improve the standards of newspapers and news agencies in India”. The Supreme Court has stated that trial by press, electronic media or trial by way of a public agitation are instances that can at best be described as the anti-thesis of rule of law as they can lead to miscarriage of justice. In the opinion of the honourable court, a Judge has to guard himself against such pressure.In Anukul Chandra Pradhan v. Union of India the Supreme Court observed that “No occasion should arise for an impression that the publicity attached to these matters (the hawala transactions) has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial” In the Bofors Case, the Supreme Court stated about merits of media publicity: “those who know about the incident may come forward with information, it prevents perjury by placing witnesses under public gaze and it reduces crime through the public expression of disapproval for crime and last but not the least it promotes the public discussion of important issues.”The important core elements of investigative journalism envision that-
(a) the subject should be of public importance for the reader to know and
(b) an attempt is being made to hide the truth from the people.
Only days earlier, Sabharwal had expressed his own concerns against sting operations, which he feared were being “commercialized” and needed to be “regulated”The Universal Declaration states that-“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media regardless of frontiers” In Saibal v. B.K. Sen the supreme court said: “It would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of the investigation. This is because, trial by newspapers, when a trial by one of the regular tribunal is going on, must be prevented. The basis for this view is that such action on the part of the newspaper tends to interfere with the course of justice”. In D.N. Prasad v. Principal Secretary, the court argued that the nature of electronic media was such that there was very little filtering that takes place and news reaches persons regardless of their age and capacity of comprehension. One of the clear turning points in the way that we think about the relationship between electronic media and the coverage of trials occurred with the O.J.Simpson trial which was telecast live accompanied with expert commentary on the trial process.Scholars have argued that what distinguished the Simpson trial from previous media forms was its simultaneity and this is a crucial aspect of thinking about what ‘trial by media’ in our times implies. HHA Cooper says
”We saw, and heard, virtually all the evidence as it was being forensically presented. Somewhat incongruously, one might have thought, the jury of the accused’s peers was denied that to which the rest of us had access. Sound law, no doubt, but lacking, unquestionably, in a certain understanding of the stark realities of the modern, media age. …..What is stated, now, as an indisputable fact is that this publicity, and the way in which it was developed and purveyed, was contemporaneous with the actual legal proceeding itself. Had there been no more than this instantaneous reportage, it would have been difficult to argue that it had no effect upon the fostering of opinions about the guilt or innocence of the accused. It was like watching a televised tennis match, stroke by stroke, where, though the end was yet to be made known, we might still root for the players. Such exercises promote partisanship, and when there is added to this, the ardent commentary of the “elucidators,” the paid entertainers, however they might, themselves, have conceived of their role, one had to wonder whatever happened to the presumption of innocence.
The PNB bank fraud case has got curiouser as the alleged absconders in the case – billionaire diamond merchant Nirav Modi and his uncle Mehul Choksi – wrote to the investigating agency from undisclosed locations that they are being treated unfairly and protested against being termed as “fugitives of the law.” But they have written emails to the investigating agency, the latest mails which came on Thursday claim that they are not absconders and their constitutional rights are being violated. They are even demanding a free and fair trial. In his latest letter to the CBI, Mehul Choksi has said that he cannot travel to India as his passport stands suspended by the regional passport office in Mumbai which has failed to give him any explanation as to why it has been suspended. He said that he is in no way dictating the terms of his appearance and he is aghast to know why he is being considered a security threat to the country. Choksi has written that he is infact feeling threatened and is apprehensive about the safety and security of his family. With his business suddenly being hit, the employees, customers and creditors have developed animosity towards him. He has also pointed fingers at the political parties saying that the issue has been politicised by them. Choksi says “Right to life and right to fair trail” are “quintessential fundamental rights enshrined in the Constitution” and there is a presumption of innocence in favour of every person till he is proved guilty. He said that the “media trial” has violated his fundamental rights even as the CBI has seized his office servers depriving him of his basic rights to communicate as he has lost all access to his business dealings. Choksi has demanded a “free and fair trial” saying that he is in no way an absconder as he is travelling for his business and has left the country much before the FIR had been registered.
Chief Justice JS Khehar has expressed concern over the media trial of suspects in any case and hinted that the Supreme Court would draw the line on how much policemen can tell the media during the pre-trial, investigation stage as reportage sometimes undermines free and fair trial. “Reputation of a person is very important. People may be arrested… If they are shown on electronic media, their reputation is smeared forever, even though they may be acquitted later,” CJI Khehar observed.
The research on media trial i.e. positive and negative aspects of media trial has been elaborated in 200th report of the law commission entitled trial by media Free speech v. Fair trial under criminal procedure (amendments to contempt of court act,1971) where various reports were recommended as to address damaging effect of sensationalized news reports, accused victimization by media, on administration of justice. The commission has recommended prohibiting publication of anything that is prejudicial towards the accused a restriction shall be operated from time of arrest. The judiciary which becomes caught up in such entertainment, by the public televising of its process, will struggle (sometimes successfully, sometimes not) to maintain the dignity and justice that is the accused’s due. But these are not the media’s concerns. Jurists should be in no doubt that the media’s concerns are entertainment, money-making and, ultimately, the assertion of the media’s power.” The Law Commission of India categorizes ten type of publications in the media as prejudicial to a suspect or accused: (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; (5) Police activities; (6) Imputation of innocence; (7) Creating an atmosphere of prejudice; (8) Criticism of witnesses; (9) Premature publication of evidence; (10) Publication of interviews with witnesses.The print and electronic media have gone into fierce and ruthless competition, as we call them ‘aggressive journalism’ that a multitude of cameras are flashed at the suspects or the accused and the police are not even allowed to take the suspects or accused from their transport vehicles into the courts or vice versa. Earlier, journalism was not under pressure to push up TRP ratings or sales. So, the journalists did their work with serious intent and conviction, with courage and integrity. They did not pronounce people guilty without making a serious attempt to study the charges, investigate them, and come to their own independent conclusions, without fear or favour. They did not blindly print what law enforcers claimed, what the bureaucracy said or what politicians planted on to them. That is why people trusted them. But now we are seeing a different self acquired role of media in form of ‘media trial’. The media has to be properly regulated by the courts. The media cannot be granted a free hand in the court proceedings as they are not some sporting event. Any institution, be it legislature, executive, judiciary or bureaucracy, is liable to be abused if it exceeds its legitimate jurisdiction and functions. Media trial is also an appreciable effort along with the revolutionary sting operations as it keeps a close watch over the investigations and activities of police administration and executive. But there must be a reasonable self-restriction or some sort of regulations over its arena and due emphasis should be given to the fair trial and court procedures must be respected with adequate sense of responsibility. Media should acknowledge the fact that whatever they publish has a great impact over the spectator. Therefore, it is the moral duty of media to show the truth and that too at the right time. The most suitable way to regulate the media will be to exercise the contempt jurisdiction of the court to punish those who violate the basic code of conduct. The use of contempt powers against the media channels and newspapers by courts have been approved by the Supreme Court in a number of cases as has been pointed out earlier. The media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial itself. An ideal proposal will be that the Indian press and the Indian people are not at present democratic enough to allow the press to intrude in the judicial process. What will an ideal proposition in allowing the media trial at this moment. It’s definitely an ideal proposition to allow controlled media reporting of the cases once the media is supposed to come out of the profit and sensational considerations. The media has to play the role of a facilitator rather than tilting the scales in favour of one or the other party.
Heinous crimes must be condemned and the media would be justified in calling for the perpetrators to be punished in accordance with the law. However, the media cannot usurp the function of the judiciary and deviate from objective and unbiased reporting. While a media shackled by government regulations is unhealthy for democracy, the implications of continued unaccountability are even more damaging. Steps need to be taken in order to prevent media trials from eroding the civil rights of citizens, whereby the media have a clearer definition of their rights and duties, and the courts are given the power to punish those who flagrantly disregard them.
While the principle of ‘innocent until proven guilty’ is assumed to be one of the bedrocks of a democratic legal system, the fact of the matter is that this is a truism that exists only on paper and in reality, the criminal justice system is often heavily loaded against people who are accused of crimes. In their book on fair trials and free speech, Bruschke and Loges argue that the presumption of innocence in the legal system ironically represents our collective awareness of our bias against defendants. They assert “The defendant’s height and weight don’t depend on the attitude of the jury, but the defendant’s presumption of innocence does. We put this presumption in our legal code to remind ourselves, as jurors and even as victims, that we must withhold judgment until evidence is presented because we are tempted to indulge a bias against people accused of crimes. This is particularly true in the era of ‘crisis media’ where the rush to confirm our unverifiable fears by the media results in an embedded journalism in which the only version that it endlessly relayed are the ones produced by the prosecution.In his reading of the media coverage of the parliament attack case, Shuddhabrata Sengupta argues that the ‘creation’ of terrorism requires a calibrated media strategy. Describing the media coverage of the attack as involving an overproduction of enthusiastic and detailed reports on the supposed backgrounds, past lives and actions of the primary accused in the 13th December case, Sengupta sees a close link between the need for convincing ‘evidence’ on the part of the security and intelligence community and the media’s thirst for a meaty story. He claims that this has led to a situation in which television channels and newspapers routinely project the accused and arrested as ‘terrorist masterminds and co-conspirators’ without even the caveat that this was as alleged by their captors.
Nandita Haksar who led the legal defence and public campaign to defend Geelani notes that the media went into overdrive to implicate Geelani in the conspiracy. She writes
”From the time of his arrest, the investigating agencies planted a series of stories designed to portray Geelani as a mastermind of the conspiracy. Newspapers across the country, even respectable conservative dailies, carried tabloid-style headings and sensational confessions by Geelani. The Hindustan Times carried a report entitled “Case Cracked: Jaish Behind Attack”, which stated, “A Delhi lecturer, who spoke to militants, also called up Jaish militants in Pakistan” (December 16, 2001). The staid Hindu carried a story the next day entitled “Varsity Don Guided ‘Fidayeen'” …. These newspapers carried such reports without thought to basic journalistic ethics. The usual healthy scepticism about police stories disappeared as patriotism took over, and patriotism excluded the possibility of raising some basic questions about the truth of the police stories supposedly based on confessions made by Geelani while in custody. Even when the court records clearly showed that Geelani had refused to implicate himself by giving a false confession, the newspapers did not relent.”
In Saibal v. B.K. Sen it said:
“It would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of the investigation. This is because, trial by newspapers, when a trial by one of the regular tribunal is going on, must be prevented. The basis for this view is that such action on the part of the newspaper tends to interfere with the course of justice”.
The Supreme Court has come down heavily on the media for interfering with the due course of justice through prejudicial reporting. In State of Maharashtra v. R.J. Gandhi, the Court, while accepting the plea of the accused for a change in the venue of the trial on the ground that his right to fair trial was adversely affected due to public outcry, observed, “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 such pressure and he is to be guided strictly by rule of law.” In another case, the Court cautioned that the publicity attached to the instant matters must not dilute the emphasis on the essentials of a fair trial and the principle of presumption of innocence of the accused unless found guilty; the credibility of the judicial process should not be undermined in any manner.
In D.N. Prasad v. Principal Secretary, the court argued that the nature of electronic media was such that there was very little filtering that takes place and news reaches persons regardless of their age and capacity of comprehension. One of the clear turning points in the way that we think about the relationship between electronic media and the coverage of trials occurred with the O.J. Simpson trial which was telecast live accompanied with expert commentary on the trial process. Scholars have argued that what distinguished the Simpson trial from previous media forms was its simultaneity and this is a crucial aspect of thinking about what ‘trial by media’ in our times implies. HHA Cooper says -We saw, and heard, virtually all the evidence as it was being forensically presented. Somewhat incongruously, one might have thought, the jury of the accused’s peers was denied that to which the rest of us had access. Sound law, no doubt, but lacking, unquestionably, in a certain understanding of the stark realities of the modern, media age. What is stated, now, as an indisputable fact is that this publicity, and the way in which it was developed and purveyed, was contemporaneous with the actual legal proceeding itself. Had there been no more than this instantaneous reportage, it would have been difficult to argue that it had no effect upon the fostering of opinions about the guilt or innocence of the accused. It was like watching a televised tennis match, stroke by stroke, where, though the end was yet to be made known, we might still root for the players. Such exercises promote partisanship, and when there is added to this, the ardent commentary of the “elucidators,” the paid entertainers, however, they might, themselves, have conceived of their role, one had to wonder whatever happened to the presumption of innocence.
In the R K Anand case the Delhi high court sought to lay down a set of principles that should govern the relationship between media reportage and fair trial. A few of the key principles include:
Most people tend to believe what is published in the mass media making it necessary for the media to ensure that what is being published is accurate. In respect of a potentially damaging publication, the media cannot feign ignorance or plead that it did not know that it had a ‘loaded gun’ The concept of self-regulation of the media appears to be a myth. There will always be a debate about whether, in a given case, the media has transgressed its limits so as to invite an injunction or later an action for contempt of Court. The less frequently this happens, the better it is for an ordered society.
Once proceedings have begun in a court of law or are otherwise imminent, the media has no role to play in the form of ‘investigative journalism’ or as a fact finder. The matter then rests entirely within the domain of the Court, litigants and their lawyers no matter how long the litigation lasts. The media ought to keep its hands off an active case. It follows from the above that before a cause is instituted in a Court of law, or is otherwise not imminent, the media has full play in the matter of legitimate investigative journalism. This is in accord with our Constitutional principle of freedom of speech and expression and is in consonance with the right and duty of the media to raise issues of public concern and interest. This is also in harmony with a citizen’s right to know particularly about events relating to the investigation in a case, or delay in investigation or soft- pedaling on investigations pertaining to matters of public concern and importance. When a cause is pending in Court, the media may only report fairly, truly, faithfully and accurately the proceedings in the Court, without any semblance of bias towards one or the other party.
The media may also make a fair comment in a pending cause without violating the sub-judice rule. In the administration of justice, no balancing act is permissible. It is not permissible to contend that the public interest or the right to know outweighs the administration of justice. Such a view may shake the very structural foundations of an impartial justice delivery system.
In 2013, the Court passed a landmark judgment in the case of Sahara India Real Estate Corp. Ltd. & Ors. v. Securities & Exchange Board of India & Anr., also known as the Media Guidelines case. The Court laid down guidelines pertaining to reporting by the media of matters that are sub-judice. The Court observed that open justice is the cornerstone of our judicial system.
Trial by Media is Contempt of Court and needs to be punished. The Contempt of Court Act defines contempt by identifying it as civil and criminal.
Criminal contempt has further been divided into three types:
Prejudicing trial, and
Hindering the administration of justice.
Prejudice or interference with the judicial process: This provision owes its origin to the principle of natural justice; ‘every accused has a right to a fair trial’ clubbed with the principle that ‘Justice may not only be done it must also seem to be done’. There are multiple ways in which attempts are made to prejudice trial. If such cases are allowed to be successful will be that the persons will be convicted of offences which they have not committed. Contempt of court has been introduced in order to prevent such unjust and unfair trials. No publication, which is calculated to poison the minds of jurors, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible, amounts to contempt. Commenting on the pending cases or abuse of party may amount to contempt only when a case is triable by a judge.No editor has the right to assume the role of an investigator to try to prejudice the court against any person.
The observations of Mr. Andrew Belsey in his article ‘Journalism and Ethics, can they co-exist’) quoted by the Delhi High Court in Mother Dairy Foods & Processing Ltd v. Zee Telefilms aptly describe the state of affairs of today’s media. He says that journalism and ethics stand apart. While journalists are distinctive facilitators for the democratic process to function without hindrance the media has to follow the virtues of ‘accuracy, honesty, truth, objectivity, fairness, balanced reporting, respect or autonomy of ordinary people’. These are all part of the democratic process. But practical considerations, namely, pursuit of successful career, promotion to be obtained, compulsion of meeting deadlines and satisfying Media Managers by meeting growth targets, are recognized as factors for the ‘temptation to print trivial stories salaciously presented’. In the temptation to sell stories, what is presented is what ‘public is interested in’ rather than ‘what is in public interest’. Punjab High Court in Rao Harnarain v. Gumori Ram stated that the duty of the journalist is to report the cases and not to adjudicate in the matters.
Lord Denning stated in the Court of Appeal that Judges will not be influenced by the media publicity , a view which was not accepted in the House of Lords. Cardozo, one of the greatest Judges of the American Supreme Court, referring to the “forces which enter into the conclusions of Judges” observed that “the great tides and currents which engulf the rest of men, do not turn aside in their curse and pass the Judges by”.
The 2010 edition of “Norms of Journalistic Conduct” issued by the Press Council of India has taken into account adjudications and other pronouncements covers to a large extent almost every aspect of compulsions and compunctions in journalistic practice.
The point to be considered in this that the media should only report what is true and fair and not get involved in publicing it and commenting what harms the reputation of the person involved in the case until court has decided the matter and given any decision. If media keeps on publishing anything without substantive proof people would lose faith on what is being shown by media and unnecessary things would come out as issues which wouldn’t have been thought of thereby creating unnecessary trouble.Media if it stays within prescribed limits as to in case of reporting only what is true and should be shown its helpful as it will bring awareness about the current issues prevailing in the society but it should not start judging and come to a conclusion i.e.. Trial by media before the court passes the verdict. If media is passing any comment based on the stories portrayed and before posing a question in such a manner which makes people think about it, media should understand its effect on person about whom issue is raised and about whom comments are made.
In State of Maharashtra v. Jalgaon Municipal Council, the Apex Court observed that an accused cannot be convicted merely because anybody including press so desire. The press has right to publish court proceedings but this right is not absolute one and is subject to two limitations. Firstly, it should not amount to contempt of court and secondly, it should not prejudice the accused.
Australian Law Reform Commission in its Report on Contempt and Prejudice to Jury accepted the risk that reports of legal proceedings may contain material that could prejudice a jury trial. It recommended that a Court should have power to postpone publication of a report of any part of proceedings if it is satisfied that the publication could give rise to a substantial risk that the fair trial of an accused for an indictable offence might be prejudiced because of the influence which the publication may have on jurors. The Irish Law Reforms Commission has recommended stricter provisions of a ban on reporting of preliminary proceedings of indictable offences, such as committal proceedings.While concluding it can be said that media is the gatekeeper and watch dog of democracy. Its duty is not only to report news but also create public opinion, public awareness and consciousness related to public policies. However, it should not be misunderstood that they also have the right to judge and draw conclusions before order is passed by the court.
The overexposure of the Noida double murder (of student Aarushi Talwar and her domestic help Hemraj) in the visual media has reached a nauseating level. Ever since the tragic occurrence, competing television channels have devoted most of the news time to this story not to report facts but to theorise; not to inform the viewers but to counsel; and not to sympathise with the victim’s family but to sensationalise the murders. Even the dead have a right to privacy. It is time the visual media allowed the case to be dealt with by the law.