Anant Ekka, Sec-A, Roll No. 26, Media & Law

A critical analysis on the Trial by Media vis-a-vis Right of the accused Submitted to Mr. Ankit Awasthi (Faculty of Media & law)

Submitted by Anant ekka Section A Roll No: 26 Semester VIII B.A.LL.B(Hons.) Submitted on: 6 /04/2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR (C.G.)

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Acknowledgement The successful completion of any task would be, but incomplete, without the mention of  people who made it possible and whose constant guidance and encouragement crowned my effort with success. I would like to thank my course teacher Mr. Ankit Awasthi for providing me the topic of my interest. Secondly, I would like to thank our Vice Chancellor for providing the best possible facilities of I.T and library in the university. I would also like to extend my warm and sincere thanks to all my colleagues, who contributed in numerable ways in the accomplishment of this project.

Thanking you, Anant Ekka Semester VIII

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Contents Acknowledgments…………………………………………………………………... 2 Introduction....................................................................................................…..........4 Research methodology..................................................................................................6 Trial by Media...............................................................................................................6 Position in India...........................................................................................................10 Right of the accused in respect to media trial..............................................................12 200th Law Commission Report....................................................................................14 Conclusion……………………………………………………………………….….. 15 Webliography................................................................................................................16

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Introduction Media is regarded as one of the four pillars of democracy. Media plays a vital role in moulding the opinion of the society and it is capable of changing the whole viewpoint through which people perceive various events. The media can be commended for starting a trend where the media plays an active role in bringing the accused to hook. Especially in the last two decades, the advent of cable television, local radio networks and the internet has greatly enhanced the reach and impact of the mass media. The circulation of newspapers and magazines in English as well as the various vernacular languages has also been continuously growing in our country. This ever-expanding readership and viewership coupled with the use of modern technologies for newsgathering has given media organizations an unprecedented role in shaping popular opinions. However, media freedom also entails a certain degree of responsibility. Media is a very essential for democracy. It serves the purpose of ‘gatekeeper’ and a ‘watchdog’ of the society. The media acts as multifaceted institution with multiple activities. It takes the message simultaneously from all the parties involved and builds the opinion on an issue, with definitely threatens the establishment from violating rights with the growth of the number of news channels and in increasing popularity of” breaking news” Electronic Media has come to play a major role in stirring public opinion and consciousness public advocacy outside the court through well- established mechanism like lobbying, negotiations and mobilization of public opinion has been effectively undertaken by the media. The strength and importance of media in a democracy is well recognized. Article 19(1) (a) of the Indian Constitution, which gives freedom of speech and expression includes within its ambit, freedom of press. The existence of a free, independent and powerful media is the cornerstone of a democracy, especially of a highly mixed society like India. Media is not onl y a medium to express one’s feelings, opinions and views, but it is also responsible and instrumental for building opinions and views on various topics of regional, national and international agenda. The pivotal role of the media is its ability to mobilize the thinking  process of millions. The increased role of the media in today’s globalized and tech-savvy world was aptly put in the words of Justice Learned Hand of the United States Supreme Court when he said, “The hand that rules the press, the radio, the screen and the far spread magazine, rules the country”. 4

Democracy is the rule of the people, a system which has three strong pillars. But as Indian society today has become somewhat unstable on its 3 legs- the executive, the legislature and the judiciary, the guarantee of Article 19 (1)(a) has given rise to a fourth pillar known as media or press. It plays the vital role of a conscious keeper, a watchdog of the functionaries of society and attempts to attend to the wrongs in our system, by bringing them to the knowledge of all, hoping for correction. It is indisputable that in many dimensions the unprecedented media revolution has resulted in great gains for the general public. However, there are always two sides of a coin. With this increased role and importance attached to the media, the need for its accountability and professionalism in reportage cannot  be emphasized enough. In a civil society no right to freedom, howsoever invaluable it might  be, can be considered absolute, unlimited, or unqualified in all circumstances. The freedom of the media, like any other freedom recognized under the Constitution has to be exercised within reasonable boundaries. With great power comes great responsibility. Similarly, the freedom under Article 19(1) (a) is correlative with the duty not to violate any law.

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Research Methodology This research project is Non-Doctrinal in nature since it is largely based on secondary & electronic sources of data and also since there is no field work involved while producing this research and it largely involves study of various cases. It is not empirical in nature.

Objective  What is Trial by Media.  Position of media trial in India  Rights of the accused in relation to trial by media.

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Trial by Media Trial by media is a phrase used to describe 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. In the United Kingdom there is a heated debate between those who support a free press which is largely uncensored and those who place a higher priority on an individual’s right to privacy and right to a fair trial. Although a recently coined phrase, the idea that popular media can have a strong influence on the legal process goes back certainly to the advent of the printing press and probably much further. This is not including the use of a State controlled press to criminalize political opponents, but in its commonly understood meaning, it covers all occasions where the reputation of a person has been drastically affected  by ostensible non-political publications.1 The Indian law has made some exceptions to the rule of privacy in the interest of the public, especially, subsequent to the enactment of the Right to Information Act, 2005 (RTI). The RTI Act under Section 8 (1) (j) exempts disclosure of any personal information which is not connected to any public activity or of public interest or which would cause an unwarranted invasion of privacy of an individual. However, Courts have taken a positive stand on what constitutes privacy in different circumstances. The 200th Law Commission Report qualifies certain publications as prejudicial if made after a person is arrested. It has been recognized in several countries and also in India that  publications which refer to character, previous convictions, confessions can amount to contempt. There are various other aspects such as judging the guilt or innocence of the accused or discrediting witnesses etc. mentioned in the report which can amount to contempt.2 Media has now reincarnated itself into a ‘public court’ (Janta Adalat) and has started interfering into court proceedings. It completely overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until  proven guilty’ and ‘guilt beyond reasonable doubt’. Now, what we observe is media  trial where the media itself does a separate investigation, builds a public opinion against the 1

Dr. Shobha Ram Sharman, “ Judicial Activism of Media”, (2010)PL visited on 5/4/17  M. Jagannadha Rao, J. 200th Law Commission Report on “Trial by Media: Free speech and fair trial under Criminal Procedure Code, 1973 ”, August, 2006 2

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accused even before the court takes cognizance of the case. By this way, it prejudices the  public and sometimes even judges and as a result the accused, that should be assumed innocent, is presumed as a criminal leaving all his rights and liberty unredressed. If excessive  publicity in the media about a suspect or an accused before trial prejudices a fair trial or results in characterizing him as a person who had indeed committed the crime, it amounts to undue interference with the “administration of justice”, calling for proceedings for contempt of court against the media. Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent the encroachment of civil rights. 3 In recent times there have been numerous instances in which media has conducted the trial of an accused and has passed the verdict even before the court passes its judgment. Some famous criminal cases that would have gone unpunished but for the intervention of media, are

Priyadarshini Mattoo case,  Jessica Lal case, Nitish K atara murder case  and Bijal Joshi rape case. The media however drew flak in the reporting of murder of  Aarushi Talwar , when it preempted the court and reported that her own father Dr. Rajesh Talwar, and possibly her mother Nupur Talwar were involved in her murder, the CBI later declared that Rajesh was not the killer. India, at present, does not have an independent statute protecting privacy; the right to privacy is a deemed right under the Constitution. The right to privacy has to be understood in the context of two fundamental rights: the right to freedom under Article 19 and the right to life under Article 21 of the Constitution.

CONTEMPT OF COURT BY MEDIA:

The verdict of media on any legal case before the court verdict is the contempt of the court,  because verdict of media before court verdict is not correct. Media has no right to say anything about court verdict, so media should understand it and do their work properly in society.

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 https://researchersclub.wordpress.com/2014/04/22/trial-by-media-an-indian-perception/ visited on 5/4/17

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FAKE TRIAL:

Today it is often seen that the trial by media becomes fake. Now media do their work under  political power. Media can do anything whatever their political leaders say. Media does it  because of their self benefits. They forget about their real duty, this is ridiculous such type of media should be removed from society. Corrupt face of media came in 2012 when two zee news editors' Sudhir Chaudhary and Sameer were arrested by crime branch of Delhi, acting on a complaint by congress M.P Naveen Jindal who had accused the two of trying to extort RS.100 crore worth of advertisements from his company in return for dropping stories linking the Jindal group Coalgate.

CRITISED TRIAL:

In the resent past history media's trials were criticism because there trials were not true but  based on media's personal thought ,for example infamous cases like 'Arushi case', Jessica Lal case in both these cases media's trials are false and based on their personal views .

TRUE TRIAL:

Media's trial is not always wrong but many times their trials appreciated, for example the media trial on 2002 'Gujrat Danga' was really appreciated. The trail of media helped the  police to catch the real accused persons like 'Bajrangi' who was the one of the accused  person, in this case media trial also consider by the supreme court during its verdict.

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Position in India Similarly there have been a plethora of cases in India on the point. The observations of the Delhi High Court in Bofors Case or Kartongen Kemi Och F orvaltning AB and Ors. vs. State

through CB I 4 are very much relevant, as the Court weighed in favour of the accused’s right of fair trial while calculating the role of media in streamlining the criminal justice system: “It is said and to gr eat extent correctly that through 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. All this is done in the interest of freedom of communication and right of information little realizing that right to a fair trial is equally valuable.” The ever-increasing tendency to use media while the matter is sub-judice has been frowned down by the courts including the Supreme Court of India on the several occasions. In State of Maharashtra vs. Rajendra Jawanmal Gandhi  5, the Supreme Court 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 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.” The position was most aptly summed up in the words of Justice H.R.Khanna:  –  “Certain aspects of a case are so much highlighted by the press that the publicity gives rise to strong public emotions. The inevitable effect of that is to prejudice the case of one party or the other for a fair trial. We must consider the question as to what extent are restraints necessary and have to be exercised by the press with a view to preserving the purity of  judicial process. At the same time, we have to guard against another danger. A person cannot,

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 2004 (72) DRJ 693  1997 (8) SCC 386

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as I said speaking for a Full Bench of the Delhi High Court in 1969, by starting some kind of  judicial proceedings in respect of matter of vital public importance stifle all public discussions of that matter on pain of contempt of court. A line to balance the whole thing has to be drawn at some point. It also seems necessary in exercising the power of contempt of court or legislature vis-à-vis the press that no hyper-sensitivity is shown and due account is taken of the proper functioning of a free press in a democratic society. This is vital for ensuring the health of democracy. At the same time the press must also keep in view its responsibility and see that nothing is done as may bring the courts or the legislature into disrepute and make the people lose faith in these institutions.” The Hon’ble Supreme Court in the case of Rajendra Sail Vs. Madhya Pradesh H igh Court

Bar Association and Others 6 , observed that for rule of law and orderly society, a free responsible press and an independent judiciary are both indispensable and both have to be, therefore, protected. The aim and duty of both is to bring out the truth. And it is well known that the truth is often found in shades of grey. Therefore the role of both cannot be but emphasized enough, especially in a “new India”, where the public is becoming more aware and sensitive to its surroundings than ever before. The only way of orderly functioning is to maintain the delicate balance between the two. The country cannot function without two of the pillars its people trust the most.

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 (2005) 6 SCC 109

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Rights of the accused in respect to media trial

Right to fair trial:

Right to a fair trial is absolute right of every individual within the territorial limits of India vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is more important as it is an absolute right which flows from Article 21 of the constitution to be read with Article 14. Freedom of speech and expression incorporated under Article 19 (1)(a) has been put under ‘reasonable restriction’ subject to Article 19 (2) and Section 2 (c) of the Contempt of Court Act. One’s life with dignity is always given a priority in comparison to one’s right to freedom of speech and expression. Media should also ponder upon these facts. Fair trial is not purely private benefit for an accused  – the publics’ confidence in the integrity of the justice system is crucial.7 The right to a fair trial is at the heart of the Indian criminal  justice system. It encompasses several other rights including the right to be presumed innocent until proven guilty, the right not to be compelled to be a witness against oneself, the right to a public trial, the right to legal representation, the right to speedy trial, the right to be  present during trial and examine witnesses, etc. In the case of Zahira H abibullah Sheikh v.

 State of Gujarat 8, 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.”

Right to be legally represented:

Through media trail, we have started to create pressure on the lawyers even —  to not take up cases of accused, thus forcing these accused to go to trial without any defense. Is this not against the principles of natural justice? Every person has a right to get himself represented  by a lawyer of his choice and put his point before the adjudicating court and no one has the right to debar him from doing so. For an instance, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused in a murder case, he was subject to public 7 8

 Gisborne Herald Co. Ltd. V. Solicitor General, 1995 (3) NZLR 563 (CA)  [(2004) 4 SCC 158]

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derision. A senior editor of the television news channel CNN-IBN called the decision to represent Sharma an attempt to “defend the indefensible”. This was only one example of the media-instigated campaign against the accused.9 As we all knew that in that case we had one of the best lawyers of the country, Gopal Subramaniam, appearing for the state and the case of Manu was handed to some mediocre lawyer. Media went hammer in tongues when Mr. Jethmalani took the case and posed him as a villain. Don’t we want to give equal opportunity to the defense to prove its case, or have we lost faith in the judiciary? The media have to understand their limit before it becomes too late. Suspects and accused apart, even victims and witnesses suffer from excessive publicity and invasion of their privacy rights. Police are  presented in poor light by the media and their morale too suffers. The day after the report of crime is published; media says ‘Police have no clue’. Then, whatever gossips the media gathers about the line of investigation by the official agencies, it gives such publicity in respect of the information that the person who has indeed committed the crime, can move away to safer places. The pressure on the police from media day by day builds up and reaches a stage where police feel compelled to say something or the other in public to protect their reputation. Sometimes when, under such pressure, police come forward with a story that they have nabbed a suspect and that he has confessed, the ‘Breaking News’ items start and few in the media appear to know that under the law, confession to police is not admissible in a criminal trial. Once the confession is published by both the police and the media, the suspect’s future is finished. When he retracts from the confession before the Magistrate, the  public imagine that the person is a liar. The whole procedure of due process is thus getting distorted and confused. The media also creates other problems for witnesses. If the identity of witnesses is published, there is danger of the witnesses coming under pressure both from the accused or his associates as well as from the police. At the earliest stage, the witnesses want to retract and get out of the muddle. Witness protection is then a serious casualty. This leads to the question about the admissibility of hostile witness evidence and whether the law should  be amended to prevent witnesses changing their statements. Again, if the suspect’s pictures are shown in the media, problems can arise during ‘identification parades’ conducted under the Code of Criminal Procedure for identifying the accused. 10

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 http://www.hrdc.net/sahrdc/hrfeatures/HRF164.htm accessed on 5/4/17  http://www.legalserviceindia.com/article/l237-Trial-By-Media.html accessed on 5/4/17

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200th Law Commission Report

The most reckoning research on the positive and negative aspects of media trial has been elaborated in 200th report of the Law Commission entitled Trial by Media: F ree Speech vs.

F air Trial Under Criminal Pr ocedure (Amendments to the Contempt of Court Act, 1971) that has made recommendations to address the damaging effect of sensationalized news reports on the administration of justice. While the report has yet to be made public, news reports indicate that the Commission has recommended prohibiting publication of anything that is prejudicial towards the accused  —   a restriction that shall operate from the time of arrest. It also reportedly recommends that the High Court be empowered to direct  postponement of publication or telecast in criminal cases. The report noted that at present, under Section 3 (2) of the Contempt of Court Act, such publications would be contempt only if a charge sheet had been filed in a criminal case. The Commission has suggested that the starting point of a criminal case should be from the time of arrest of an accused and not from the time of filing of the charge sheet. In the perception of the Commission such an amendment would prevent the media from prejudging or prejudicing the case. Another controversial recommendation suggested was to empower the High Court to direct a print or an electronic media to postpone publication or telecast pertaining to a criminal case and to restrain the media from resorting to such publication or telecast. The 17th Law Commission has made recommendations to the Centre to enact a law to prevent the media from reporting anything prejudicial to the rights of the accused in criminal cases from the time of arrest, during investigation and trial. 11

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 https://www.lawctopus.com/academike/media-trials-india/ visited on 5/4/17

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Conclusion It becomes clear that the media had a more negative influence rather than a positive effect (except for a few exceptions here and there). 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. 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). From the above discussion it is clear that the media's trail is true if it is done by honest feeling otherwise it is false. No doubt that media is an integral part of a democratic county but now the media is more self-centered. They can do anything for their TRP'S, most of the news channels work under the political powers. It is true that the freedom of media is the freedom of people, but media took it in a wrong way for example the interference of media in court work. To make media true or clear it should be regulated by court. The Supreme Court has to  pass an order to punish media, if media interfere in jurisdiction of court; it is the only way which helps to restrict the bad effect of media trial and right to fair trial of the accused has to  be safeguarded at any cost.

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Webliography 

www.civilserviceindia.com

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www.legalserviceindia.com

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researchersclub.wordpress.com

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www.lawctopus.com

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www.civilservicestimes.co.in

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www.lawctopus.com

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www.lawinfowire.com

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www.slideshare.net

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www.livelaw.in/trial-by-media

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