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September 11, 2020

Media Trial-The Good, The Bad And The Ugly…..


- Dr. Swati Jindal Garg, Advocate [ Supreme Court of India ]

Swati-Jindal-Garg

Jim Morrison has rightly said-“whoever controls the media, controls the minds.”

 In today’s world Media is regarded as one of the four pillars of democracy and plays an important role in not only moulding the public opinion, but also changing the entire mindset of the public and the lens through which it perceives any event. The unprecedented growth of media, especially in the last two decades can be attributed to the high internet connectivity and social media boom all around the world that has not only blurred physical boundaries but also brought every event under direct public scrutiny. The ever expanding reach of mass media, coupled with the use of modern technology for news gathering has given media organisations an unprecedented role in shaping public opinion.

The importance of an independent media can be gathered through the fact that it has been granted impunity via Article 19(1)(a) of the Constitution which gives freedom of speech and expression which further includes within its ambit, freedom of press. The existence of a free and independent media is also needed for building opinions and views on various topics of regional, national and well as international importance. Media in today’s world has the ability to mobilise the thinking process of millions of people and this is the reason it has now become the fourth pillar along with the executive, the legislature and the judiciary and plays the role of the watchdog of the society as well as the system.

However, just as there is a flip side to every coin, in a civil society too, no right to freedom comes without the corresponding duty to not violate any law. The great power that has been given to the media in India also comes along with the greater responsibility of carrying that power fairly. In its pursuit for sensationalism and commercial gains, the media has somewhere along the way, started eating away the right to a fair trial and the influence of the press is increasingly becoming detrimental to the impartial decision making process of the judiciary. Every act of the judiciary is coming under the public scanner to such an extent that the judges are themselves being judged for every breath they take. In such a scenario, it becomes increasingly difficult for any human being to perform their duties to the best of their abilities.

Trial by media is the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that regardless of the result of the trial the accused persons will not be able to live the rest of their life without intense public scrutiny. This problem is more intense in case of celebrity names being involved because in such cases, media reports can greatly influence and swing popular sentiments either way.

In R. Rajagopal v. State of T.N the Supreme Court of India has held that freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right of privacy and maintained defamation has to be performed in terms of the democratic way of life laid down in the Constitution.

The problem therefore arises when the right to free press and the right to fair trial start competing among each other. The right to free trial is protected by Articles 129 and 215 (Contempt Jurisdiction-Power of Supreme Court and High Court to punish for Contempt of itself respectively) of the Constitution of India wherein restrictions  are imposed on the discussion or publication of matters relating to the merits of a case pending before a Court. A journalist may thus be liable for contempt of Court if he publishes anything which might prejudice a ‘fair trial’ or anything which impairs the impartiality of the Court to decide a case on its merits, whether the proceedings before the Court be a criminal or civil. Time and again, the media has exceeded this right by making and passing assumptions on the accused and thus coloring public opinion.

In Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court explained that a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.”

Fair trial Parties have a constitutional right to have a fair trial in the court of law, by an impartial tribunal, uninfluenced by newspaper dictation or popular clamour. What would happen to this right if the press may use such a language as to influence and control the judicial process? It is to be borne in mind that the democracy demands fair play and transparency, if these are curtailed on flimsiest of grounds then the very concept of democracy is at stake.

However, the right to free press is also a constitutional right and cannot be stifled on grounds of Contempt of court and the right to free trial. In stifling all criticism by raising the threat of contempt, the judiciary also becomes accountable to the democratic set up of the country. The restrictions imposed on the media must be reasonable and within the ambit of Article 19. It is the constitutional obligation of all courts to ensure that the restrictions imposed by a law on the media are reasonable and relate to the purposes specified in Article 19(2).

The restrictions imposed by Article 19(2) upon the freedom of speech and expression guaranteed by Article 19(1)(a) including the freedom of press serve a two-fold purpose viz. on the one hand, they specify that this freedom is not absolute but are subject to regulation and on the other hand, they put a limitation on the power of a legislature to restrict this freedom of press/media. But the legislature cannot restrict this freedom beyond the requirements of Article 19(2) and each of the restrictions must be reasonable and can be imposed only by or under the authority of a law, not by executive action alone. Needless to say that if the judicial decisions appear to be arbitrary, then they must be subjected to scrutiny. It will be dangerous to gag the press in the name of contempt of court. If the appellate court feels that the media publicity affected fair trial, it can always reverse the decision of the lower court. On the other hand there are instances like the  Aarushi Talwar case, where the press, had literally gone berserk, speculating and pointing fingers even before any arrests were made, and was granted immunity despite the grave threat such publications posed to the administration of justice. Such publications may go unchecked if there is no legislative intervention, by way of redefining the word ‘pending’ to expand to include ‘from the time the arrest is made’ in the Contempt of Court Act, 1971, or judicial control through gag orders as employed in United States of America. Due to such lacunas, the press has a free hand in printing colourful stories without any fear of consequences. Like a parasite, it hosts itself on the atrocity of the crime and public outrage devoid of any accountability.

Some scholars justify a ‘trial-by-media’ by proposing that the mob mentality exists independently of the media which merely voices the opinions which the public already has. In a democracy, transparency is integral. Without a free press, we will regress into the dark ages of the Star Chambers, when the judicial proceedings were conducted secretively. All these omnipresent SMS campaigns and public polls only provide a platform to the public to express its views. It is generating public dialogue regarding issues of public importance. Stifling this voice will amount to stifling democracy.

At the end, we all have to ask ourselves the same question……is media trial a necessary evil? In a scenario where most of the big scandals have been busted only due to the efforts of media, can we really take away credit that is due to the poorly paid journalists who put their lives on the line in order to expose the truth to the public eye? It has become quite clear that the media has to be properly regulated so that an apt balance between the right to free press and the right to free trial can be maintained. In this regard, the Law Commission also has come up with a report on “Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure” (Amendments to the Contempt of Court Act, 1971)’ [Report number 200 prepared in 2006].

Another way of striking a balance is to regulate the media by exercising the contempt jurisdiction of the courts under Article 129 and 215 against those who violate the basic code of conduct. Aggressive journalism has gone too far and overstepped its boundaries too many times for it to be left unchecked. The TRP pressure was not what it is these days so now we are seeing a different self acquired role of media in form of ‘media trial’. The problem does not lie in media’s exposing the lacuna of a bad investigation by police, or mal-performance of the duties ordained to the civil servants but the eye-brows start to raise when the media ultra vires its legitimate jurisdiction and does what it must not do. The media trial has now moved on to media verdict and media punishment which is no doubt an illegitimate use of freedom and transgressing the prudent demarcation of legal boundaries. Even though media trial is an appreciable and laud-worthy effort as it also holds within it, various sting operations that have exposed many a rackets and keeps a watch over the investigations and activities conducted by the police, the latest example being that of the Sushant Singh Rajput case, 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 nothing but the truth and that too at the right time. 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. 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. There is also a parallel need to improve judicial performance. The public needs to be reassured that the delay in deciding high profile cases is not deliberate but might also be due to various extraneous reasons like police indifference and wanton delaying tactics on the part of the defence.

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’.



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