Freedom of press vis-à-vis Trial by Media

A media shackled by the Government is a relic of the past.

The contemporary media has been called the handmaiden of justice and the watchdog of society[1]. Philip K. Dick rightly said, ”Today, we live in a society where realities are manufactured by the media.” Often hidden under the garb of freedom of speech, media commands the wisdom of the masses. It has justly revived itself into the ‘eyes and ears of the general public’[2] because sans it, the democracy would only be a charade. Withal, it would be foolish to disregard the fact that today’s media has engulfed itself into materialistic journalism. The publicity attached to an exposition tends to dilute the emphasis on the essentials of a fair trial and the basic principles of criminal jurisprudence. There is a serious risk of prejudice if media is allowed to exercise an unbridled freedom[3]. Ergo, media should self-regulate and not cross the ‘Lakshman Rekha’ ordained by the Constitutional tenets; after all “Justice should not only be done, it should manifestly and undoubtedly be seen to be done[4]”.

Trial by media is a catch-phrase, akin to a lynch mob, which provokes public hysteria. It is a trial conducted by media which injures a person’s reputation and dignity by creating a perception of guilt regardless of any verdict by the Court[5].

In the contemporary age, trial by media has gained profound significance. Some of the eminent cases that would have gone unpunished if not for the intervention of media are the Priyadarshini Matto case, Jessica Lal case, Nitish Katara murder case and Bijal Joshi rape case. However, extensive media coverage also drew flak in the reporting of the murder of Arushi Talwar, wherein, it declared her father, Dr Rajesh Talwar, as guilty despite the fact that he was acquitted by the administrators of justice[6].

Encapsulated as the fourth estate of democracy[7], media turned out to be a boon which enlightened people on crucial issues. Howbeit, over the years, media started intruding in the task of the Judiciary and ended up investigating the truthfulness of the case rather than just reporting it. This sensational style of journalism tends to create a pre-judicial stance in the minds of citizens and obstructs the fair administration of justice attesting that the pen is certainly mightier than the sword[8].

Media Trial v. Freedom of Speech and Expression

If Freedom of Speech is taken away then dumb and silent we may be led, like sheep to the slaughter.

-George Washington

It is crucial for people to know before they act, and there is no educator to compare with the press. Freedom of speech is considered as the very essence of democracy[9] and the mother of all liberties[10]. It is the heart of social and political intercourse[11]. Although the Indian Constitution does not explicitly grant freedom of the press, it is an intrinsic right under Article 19(1)(a) which guarantees right to freedom of speech and expression[12].

The purpose of media is to predominantly advance the public interest by publishing facts and opinions without which a democracy cannot concoct responsible judgments[13]. This mushrooming role of media was aptly chronicled by the learned Justice Hand when he said that “the hand that rules the press, the radio, the screen, and the far-spread magazines, rules the country”[14]. 

As aptly expressed by George Orwell, Freedom of the press, if it means anything at all, means the freedom to criticize and oppose. But does the freedom of the press mean freedom from the law? I believe not. It is germane for us to understand that with great power, comes greater responsibility. Many a time, to grab more eyeballs, and to increase the ‘TRPs’, media houses distort and warp a story to exhibit it in a sensationalized fashion[15]. It was rightly remarked in the case of Auto Shankar[16], that a balance should be maintained between public events and private lives of people and the media should not delve into the privacy of the people under the garb of Article 19(1)(a) of the Constitution of India.

Media Trial v. Fair Trial

The great tides and currents which engulf the rest of the men do not turn aside and pass the Judges by.

 – Benjamin N. Cardozo

Judiciary commands respect and non-interference from other spheres of society[17]. The right to a fair trial is of paramount importance as without such protection there would be a trial by the public which no civilized society tolerates[18]. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm[19].

The 200th report of Law Commission was fair to indicate that pre-judicial coverage of crime, accused; suspects and witnesses would impact the administration of justice[20]. Such detrimental opinions completely overlook 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[21]. The object of free trial is to meet the ends of justice, and if there is a competition, between the right to free trial as against the right to freedom of expression, the former must trump the latter[22]. Right to a fair trial is also warranted by the International obligations of India[23], therefore, it becomes an international obligation to curtail the unfettered media privilege.

Media Trial v. Right to Reputation

A single lie destroys the whole reputation of integrity.

– Baltasar Gracian

It is the prevalent gospel that reputation is one of the finer graces of human civilization that makes life worth living[24]. A person is entitled to have and preserve one’s reputation and one also had the right to protect it[25]. A good reputation is an element of personal security and is protected by the constitution, equally with the right to the enjoyment of life[26].

Declaring a person guilty even before the verdict of a competent court is sure to bring him ridicule, embarrassment and loss of reputation in the minds of the right-thinking members of the society. It unquestionably builds the impression that, apart from the charges under enquiry, the person was a man of bad and desolate character[27]. As wisely annotated by Cicero, “Take from a man his reputation for probity, and the more shrewd and clever he is, more hated and mistrusted he becomes”[28].

Media Trial v. Right to Privacy

To be left alone is the most precious thing one can ask for in the modern world.

– Antony Burgess

Right to privacy falls within the ambit of Article 21 of the Constitution[29]. The pursuit of commercial interests also motivates the use of intrusive newsgathering practices which tend to impede the privacy of the people who are the subject of such coverage. Suspects and accused apart, even victims and witnesses suffer from excessive publicity and invasion of their right to privacy[30].

When the issue is subjudice, it is the duty of the media to allow the course of justice to take place[31] and not interfere in the administration of Justice. Media trial often leads to digging up old graves i.e. the character of the accused, his family life and relatives which might not even be apropos to the case at hand. This is the unfairness of media trial which cannot be left unchecked.

Media Trial v. Right to Representation

Injustice anywhere is the threat to justice everywhere.

– Martin Luther King

Every person has the right to defend himself against the allegations levelled against him. Denying this right would violate the principles of Natural Justice[32]. Yet, sometimes, media trials create a lot of pressure on the lawyers, not to take the case, which forces the accused to go through the trials without any defence. For instance, when Ram Jethmalani decided to defend Manu Sharma, it was stated that he was trying to defend the indefensible.

Sometimes the media also presents a case in such a way that if a judgment goes contrary to the media trial, the judge who has given the verdict would seem biased[33]. In such instance, the lawyer’s security comes in danger due to which they are unable to fulfil their ethical and professional duty[34].

Trial by Media- A necessary evil?

A little evil is always necessary for obtaining the greater good.

– Voltaire

Trial by media can sometimes be regarded as a necessary evil[35]. Countless scams would remain shrouded, if not, for the succour of media. The distinguished role played by the media cannot be stressed enough. But the verity remains that media needs to be a tuned. The problem does not lie in media exposing the wrongs in the society. It arises when they go beyond their powers and do things which they shouldn’t[36].

It would be mischievous for a newspaper to systematically conduct an independent investigation into a crime[37]. Media has now reincarnated itself into a ‘Janta Adalat’ and has started interfering in the administration of Justice[38]. An evil, however incumbent it might be, cannot violate the fundamental principle of criminal jurisprudence.

Conclusion

Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become a license which would lead to disorder and anarchy[39]. A trial by media or public agitation is an antithesis to the rule of law[40]. Today, in the temptation to sell stories, what is presented is what the public is interested in rather than what is in the public interest[41]. Even the judges are likely to be subconsciously influenced by the media gimmicks[42].

However, the mastery of the media cannot be ignored. Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent the encroachment upon civil rights[43]. The only alternative at our disposal is to punish the misdemeanour with contempt proceedings. Ergo, times have changed; the world demands a stricter action on our part to curb the attack on the administration of justice. It is best left to the discretion of our competent legislature to devise a plan to regulate, not prohibit, the practice of media trials.


[1] Dr S. Krishnan, Trial by Media: Concept and Phenomenon, International Journal of Advanced Research, <http://www.journalijar.com/uploads/597_IJAR-22705.pdf> Accessed on 08/06/2020 at 15:45 HRS.

[2] Javid Ahmad Bagth, Media coverage of trials: A legal uncertainty, International Journal of Law, Volume 4; Issue 2; March 2018; Page No. 78-82, < www.lawjournals.org> Accessed on 08/06/2020 at 15:58 HRS.

[3] A Gowri Nair & Saipooja, Fair Trial, Judiciary and Media: Need for Balance, (Lawctopus, 4 February 2015), <https://www.lawctopus.com/academike/fair-trial-judiciary-media-need-balance/#_edn10> Accessed on 08/06/2020 at 16:05 HRS.

[4] R v. Sussex Justices: Exparte McCarthy, 1924 (1) KB 256.

[5] A Gowri Nair & Saipooja, Fair Trial, Judiciary and Media: Need for Balance, (Lawctopus, 4 February 2015), <https://www.lawctopus.com/academike/fair-trial-judiciary-media-need-balance/#_edn10> Accessed on 08/06/2020 at 16:05 HRS.

[6] Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, (Lawctopus, 13 November 2015), <https://www.lawctopus.com/academike/media-trials-india/> Accessed on 08/06/2020 at 16:11 HRS.

[7] Printers (Mysore) Ltd. v. CTO, (1994) 2 SCC 434, Para 13.

[8] Media Trial from the Lens of Indian Constitution and Judiciary, (Legal Desire, 14 March 2018), < https://legaldesire.com/article-media-trial-lens-indian-constitution-judiciary/> Accessed on 08/06/2020 at 16:20 HRS.

[9] Romesh Thappar v. The State of Madras, AIR 1950 SC 124.

[10] Re Harijai Singh, AIR 1997 SC 73, Para 8.

[11] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 at p. 664, para 32; also mentioned in Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, (Lawctopus, 13 November 2015), <https://www.lawctopus.com/academike/media-trials-india/> Accessed on 08/06/2020 at 16:11 HRS.

[12] Romesh Thappar v. The State of Madras, AIR 1950 SC 124.

[13] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 & 664 also mentioned in Media Trial from the Lens of Indian Constitution and Judiciary, (Legal Desire, 14 March 2018), < https://legaldesire.com/article-media-trial-lens-indian-constitution-judiciary/> Accessed on 08/06/2020 at 16:20 HRS.

[14] Pramit Bhattacharya, Constitutionality of Media Trials, (Blog IPleaders, 1 July 2016), <https://blog.ipleaders.in/constitutionality-media-trials/#_ftn2> Accessed on 08/06/2020 at 16:30 HRS.

[15] Ibid.

[16] Ibid; Also in R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, Para 19.

[17] Indian Judiciary and Freedom of Press, (Legal Services India, 1 August 2018), < http://www.legalservicesindia.com/law/article/1046/10/Indian-Judiciary-and-Freedom-of-Press > Accessed on 08/06/2020 at 16:55 HRS. Also in M.P. Lohia v. State of West Bengal, AIR 2005 SC790.

[18] Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, (Lawctopus, 13 November 2015), <https://www.lawctopus.com/academike/media-trials-india/> Accessed on 08/06/2020 at 16:11 HRS. Also in Bofors Pay-off case, Crl. Misc. (Main) 3938/2003.

[19] Ibid. Also in Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors., (2004) 4 SCC 158.

[20] 200th Report by the Law Commission of India, Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971, <https://indiankanoon.org/doc/42810882/> Accessed on 08/06/2020 at 17:09 HRS.

[21] Urvashi Singh, Trial by Media a threat to Administration of Justice, (Lexology, 31 October 2012), < https://www.lexology.com/library/detail.aspx?g=52a59428-9ce1-4fe5-8af9-f10750d37ca4> Accessed on 08/06/2020 at 17:14 HRS.

[22] Media Trial from the Lens of Indian Constitution and Judiciary, (Legal Desire, 14 March 2018), < https://legaldesire.com/article-media-trial-lens-indian-constitution-judiciary/> Accessed on 08/06/2020 at 16:20 HRS. Also in Vijay Singhal and Ors. v. Govt. of NCT of Delhi and Anr., MANU/DE/0746/2013.

[23] Article 6, UN Basic Principles on the Independence of the Judiciary, G.A. Res.146, U.N. GAOR, 40th Sess. (1985) and Art. 14(1), International Covenant on Civil and Political Rights, Entered into force on 23 March 1976.

[24] Alefiya Kurabarwala, Article 21 of the Constitution- Right to life and personal liberty, (Legal Services India), < http://www.legalserviceindia.com/legal/article-1235-article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty.html> Accessed on 08/06/2020 at 16:21 HRS.

[25] Riya Jain, Article 21 of the Constitution of India- Right to life and personal liberty, (Lawctopus, 13 November 2015),<https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/> Accessed on 08/06/2020 at 17:27 HRS. Also in State of Bihar v. Lal Krishna Advani, AIR 2003 SC 3357.

[26] Ibid. Also in Smt. Kiran Bedi v. Committee of Inquiry, 1989 AIR 714, 1989 SCR (1) 20.

[27]  R v. Parke : (1903) (2) KB 432, 200th Report by the Law Commission of India, Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971, <https://indiankanoon.org/doc/42810882/> Accessed on 08/06/2020 at 17:09 HRS.

[28] Marcus Tullius Cicero, <https://www.brainyquote.com/quotes/marcus_tullius_cicero_400858> Accessed on 08/06/2020 at 17:33 HRS.

[29] Saibal Kumar v. B.K. Sen, AIR 1961 SC 633.

[30] Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, (Lawctopus, 13 November 2015), <https://www.lawctopus.com/academike/media-trials-india/> Accessed on 08/06/2020 at 16:11 HRS.

[31] United Nations, Basic Principles on the Role of Lawyers, 7 September 1990, available at http://www.refworld.org/docid/3ddb9f034.html.

[32] Shalab Kumar Gupta and Ors. v. B.K. Sen and Anr., AIR 1949 Cal. 106.

[33] Pramit Bhattacharya, Constitutionality of Media Trials, (Blog IPleaders, 1 July 2016), <https://blog.ipleaders.in/constitutionality-media-trials/#_ftn2> Accessed on 08/06/2020 at 18:07 HRS.

[34] Media Trial from the Lens of Indian Constitution and Judiciary, (Legal Desire, 14 March 2018), < https://legaldesire.com/article-media-trial-lens-indian-constitution-judiciary/> Accessed on 08/06/2020 at 18:20 HRS. Also in United Nations, Basic Principles on the Role of Lawyers, 7 September 1990, available at http://www.refworld.org/docid/3ddb9f034.html.

[35] Pramit Bhattacharya, Constitutionality of Media Trials, (Blog IPleaders, 1 July 2016), <https://blog.ipleaders.in/constitutionality-media-trials/#_ftn2> Accessed on 08/06/2020 at 18:12 HRS.

[36] Ibid.

[37] Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr,AIR 1961 SC 633. Also in Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, (Lawctopus, 13 November 2015), <https://www.lawctopus.com/academike/media-trials-india/> Accessed on 08/06/2020 at 16:11 HRS.

[38] Devika Singh and Shashank Singh, Media Trial: Freedom of Speech VS. Fair Trail IOSR Journal Of Humanities And Social Science (IOSR-JHSS), Volume 20, Issue 5, Ver. IV (May. 2015), PP 88-94, < http://www.iosrjournals.org/iosr-jhss/papers/Vol20-issue5/Version-4/N020548894.pdf> Accessed on 08/06/2020 at 18:18 HRS.

[39] Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, (Lawctopus, 13 November 2015), <https://www.lawctopus.com/academike/media-trials-india/> Accessed on 08/06/2020 at 16:11 HRS.

Also in Express Newspapers v. Union of India, (1997) 1 SCC 133.

[40] State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) SCC 386.

[41] Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, (Lawctopus, 13 November 2015), <https://www.lawctopus.com/academike/media-trials-india/> Accessed on 08/06/2020 at 16:11 HRS.

Also in Mr Andrew Belsey, Journalism and Ethics, quoted in Mother Dairy Foods and Processing Ltd. v. Zee Telefilms, IA 8185/2003 Suit No. 1543/2003 dated 24.1.2005.

[42] Ibid. Also in Reliance Petrochemicals v. Proprietor of Indian Express, 1988(4) SCC 592.

[43] S. Devesh Tripathi, Trial by Media-Prejudicing the Sub-judice, <http://www.rmlnlu.ac.in/webj/devesh_article.pdf> Accessed on 08/06/2020 at 18:23 HRS.

Nimrah Ali from School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University, Chennai

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