MEDIA TRIAL IN INDIA
Prejudicing the Sub-judice
“I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.”- Pandit Jawaharlal Nehru
Keeping in cognizance the statement made by our first Prime Minister, today the media in India is free, independent and powerful with various freedoms and immunities. Basically, Freedom of media in India stems from the Article 19 (a) of the Indian Constitution which provides for freedom of speech and expression. The Hon’ble Supreme Court of India has even regarded the freedom of press as ―the mother of all liberties in a democratic society[1] Popularly called as the fourth pillar of democracy, media today has the power of not only formulating the opinion of the society but also is capable of changing the perspective through which the public views events and cases. Especially within the last three decades, with the arrival and popularity of cable TV, radio networks and also the internet, the reach and impact of the mass media has greatly increased.
However, we must keep in mind that 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[2]. Thus, the freedom of press is limited by the reasonable restrictions enumerated under Article 19(2). Article 19(2), expressly contains, ―contempt of court as a ground under which the Contempt of Courts Act, 1971 falls.
While there is no one definition of ‘Media Trial’, it is a phrase which can best be understood, as noted by the Supreme Court of India:
“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 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 impossible but means that regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny”[3]
Thus from the above statement, we can understand that Media, which has the ability to mobilize the thinking process of millions of people, has now reincarnated itself into a public court[4] (Janta Adalat) and has started interfering with the court proceedings and consequently, the administration of justice. Media substitutes the role of the judiciary by indulging in concepts of ―breaking news, carrying on investigation of crimes, interfering in police investigation and partial reporting.[5] However, we must acknowledge that even our own judiciary has benefitted from ethical, fearless and investigative journalism ; as often judges have taken suo-moto cognizance of the matters in various cases after relying on their findings. In the recent past there have been various cases which have been driven by media like Jessica Lal murder case, Nira Radia case; scams like 2G scam, Commonwealth Games scam and Harshad Mehta stock market scam amongst others. Nonetheless, there is one pertinent question which needs to be asked; How much interference by media may be passed off as the work of a healthy regulator and when does it start to interfere with the process of the court?[6]
Thus it is no surprise that the Apex Court in State of Maharashtra v. Rajendra Jawanmal Gandhi[7] , observed as follows:
“A trial by press, electronic media or public agitation is very antithesis of the rule of law. It can well lead to miscarriage of justice”.
Hence it is imperative that we keep in mind that the media cannot usurp the functions of the judiciary and deviate from objective and unbiased reporting. While media which is shackled by legal regulations is disastrous for democracy and the country, the repercussions of continued unaccountability can prove to be even more damaging. Thus steps need to be taken in order to prevent media trials from eating away the civil rights of citizens, whereby the media have a clearer definition of their boundaries, and the courts are given the power to penalize those who disregard them.
One such step which exists to prevent media trials is the ‘sub- judice rule’. “Sub judice” is a Latin expression which means “under a Judge” or “under judicial consideration“. Where a judicial proceeding (including a trial) is imminent or pending before a court of justice, there is generally a prohibition against publication and discussion of the subject matter which is sub judice. The settled view in this connection as propounded in Government Pleader v. Mathayi Manjooran[8], C.G. Janardhanan v. T.K.G. Nair[9], Kochu Moideen v. Nambissan and Others [10]and other cases, has been that in criminal cases in order that a matter becomes “sub judice”, it is sufficient if a crime case has been registered, investigation started and proceedings in Court are imminent and that editing, printing or publishing of news in such manner as to cause prejudice affecting a fair trial amounts to contempt of court.[11]
The major problem with media trials is that it violates the right to fair trial, which can be interpreted to be one of the implicit rights contained within the Right to life under Article 21 of the Constitution of India. There are various facets to the right to a fair trial. The Hon‘ble Supreme Court in the case of Zahira Habibullah Sheikh & Anr vs. State of Gujarat[12] has held that,
“The principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices…. 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.”
Thus violating the principle of fair trial, media can often be seen as bridging the fundamental gap between the accused and the convict in many cases. This usually happens when media starts what it calls, a parallel investigation and builds up a public opinion against the accused, thus prejudicing the public and sometimes even the judges, against his case. Say for example in the infamous Arushi and Hemraj Murder Case, the Supreme Court of India on 6th August 2008 sharply criticized the media for acting as if it was a super investigating agency and for tarnishing the reputation of the doctor couple (Rajesh and Nupur Talwar) whose daughter Arushi Talwar had been murdered.
Besides, we need to remember that according to the Indian Criminal Justice system, law is to be governed by senses and not by emotions. Media Trials also violate the fundamental premises of our justice system ie. ‘presumption of innocence until proven guilty’ and ‘guilty beyond reasonable doubt’. This can be seen for example as media doesn’t follow the rules of evidence as prescribed by the law. For example, mere suspicion or hearsay evidence or alleged confession by the so called accused to the police (which is inadmissible in evidence according to Cr.P.C.) is more than sufficient to cook up a ‘story’ and serve it to the public as a “breaking news”.
Thus the law as to prevent prejudice or interference with the due course of justice has been well stated by justice Gopal Rao Ekkbote in the case of Y.V. Hanumantha Rao v. K.R. Pattabhiram wherein it was observed by the judge that:
“ When litigation is pending before a Court, no one shall comment on it in such a way there is a real and substantial danger of prejudice to the trial of the action, as for instance by influence on the Judge, the witnesses or by prejudicing mankind in general against a party to the cause. Even if the person making the comment honestly believes it to be true, still it is a contempt of Court if he prejudices the truth before it is ascertained in the proceedings. To this general rule of fair trial one may add a further rule and that is that none shall, by misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a cause so as to force him to drop his complaint or defense. It is always regarded as of the first importance that the law which we have just stated should be maintained in its full integrity. But in so stating the law we must bear in mind that there must appear to be ‘a real and substantial danger of prejudice’.”
Further, media trials also create unnecessary pressure on the judges, who also are human beings who care about their reputation and promotion. A bench of justices BD Ahmed and Sanjeev Sachdeva in 2015[13] said “Media trials do tend to influence judges. Subconsciously a pressure is created and it does have an effect on the sentencing of the accused/convict. Earlier media had a self imposed code of not reporting sub-judice matters, but now “media has thrown it (the code) to the winds.” Citing pressure on the judiciary during the Nirbhaya rape case, Supreme Court Judge Kurian Joseph said “Please stop trying (cases) in the media till a case is over. Never try a case in the media, it creates a lot of pressure on judges, they are also human beings,”[14] Referring to “the amount of pressure that is built,” he recalled how a judge who dealt with the case had once told him that “had he not given that punishment, they would have hung him.”[15] This can be better understood in the light of a news item with reference to Nirbhaya gang rape: “The Delhi High Court will today confirm the death sentence of the convicts in the gang rape case”. Additionally if the judges gives a judgment, which is against the ‘verdict’ by the media trial, often the judge is viewed as biased or corrupt.
Last but not the least media trial also creates pressure on the lawyers to not take up cases of accused, thus forcing these accused to go to trial without any/ proper defense, which is against the principle of natural justice. For instance, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, the prime accused in Jessica Lal murder case, he was subjected to public derision[16]. Media channels came up with quotes like “defend the indefensible “amongst others. In such instances, the rule of law would be fatally undermined if the mere fact that you looked guilty ensured that you were found guilty without a proper trial. If our legal system is to work properly, lawyers should be free to represent unpopular or unpleasant clients, and do their best for them rather than being made to refuse them on the ground that they don’t deserve being defended.
Also another troublesome and contrary observation that can be made regarding lawyers in such media trials, is the role of lawyers, who are often called upon by the media channels to give their ‘expert advice’, often without adequate research or their ‘legal opinion’ on matters which are sub-judice like a pending verdict. I firmly believe that these lawyers should be held at a higher standard than the media because of their privileged position in our judicial system and society. This media participation by Advocates has been commented upon by the Supreme Court in R.K.Anand v. Delhi High Court –
“We have viewed with disbelief Senior Advocates freely taking part in TV debates or giving interviews to a TV reporter/anchor of the show on issues that are directly the subject-matter of cases pending before the court and in which they are appearing for one of the sides or taking up the brief of one of the sides soon after the TV show….
We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for the administration of justice in the country.”
The following are a few court verdicts deprecating “media trial” and giving weighty reasons in support of the views taken:
- Kerala Verdict – State of Kerala v. Poothala Aboobacker[17]
“25. Rape and murder are undoubtedly brutal and diabolic sins constituting the worst forms of criminal incursions on the human body. The perpetrators of such crimes are indeed so despicable that, in appropriate cases, the award of the extreme penalty of death alone may be the most condign punishment for them. But a criminal court can do so only on proof before it according to law. Until such proof, the whole case remains in the realm of allegations and accusations. Judges cannot act on such allegations or on the spicy versions supplied by the print or visual media. The temptation which a judge in his hermit like existence should consciously resist is the populist media publicity for his deeds as a Judge.”
“In the divine function of a Judge, there is no place for popularity. A judge who falls a prey to this weakness is sure to be guided by the heart rather than the head. A judge cannot be living in a world of fantasy while marshalling the evidence before him in the process of dispensation of justice in order to reconstruct a story different from the one propounded by the prosecution. The wealth of judicial experience gained by him should make him more and more informed, detached and objective rather than publicity oriented.”
- Again in M. P. Lohia v. State of West Bengal[18], the Apex Court has deprecated the unwholesome practice of the trial by media in respect of a matter which is sub judice.
“The Fourth Estate also does not seem to realise the irreparable damage inflicted on the victims of crimes and the alleged culprits and those close to them through the sensationalised journalistic adventures. Truth is very often suppressed, exaggerated or distorted to add flavour and spice to the stories. Trial by the media can do more harm than good to the society at large. Instances are not rare when test identification parades are reduced to mere farce due to the injudicious publicity given to the alleged assailants by publishing their photographs. Every such act of adventurism exerts unnecessary pressure on the courts which are to eventually try the alleged offenders. The fickle minded public which has been conditioned to believe a particular version through a calculated process of media indoctrination will be loath to accept a different conclusion. Hence, if the court which finally tries the alleged culprit were to ultimately record an order acquittal for want of legal evidence before it, it may not be out of place for the public at large to conclude that the verdict of the court is wrong. They may even attribute motives in the Presiding Judge.”
- Delhi Verdict – Kartongen Kemi Och Forvaltning AB and Ors v. State Through CBI[19]
“This is a nefarious example which manifestly demonstrates how the trial and justice by media can cause irreparable, irreversible and incalculable harm to the reputation of a person and shunning of his family, relatives and friends by the society. He is ostracised, humiliated and convicted without trial. All this puts at grave risk due administration of justice. It is common knowledge that such trials and investigative journalism and publicity of mature, half baked or even presumptive facets of investigation either by the media itself or at the instance of Investigating Agency has almost become a daily occurrence.”
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: Free Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) submitted on 31st August 2006[20]. In this report, guidelines are given to recognize media publications as prejudiced towards the suspect or the accused followed by recommendations, which are made for amending the provisions of the Contempt of Courts Act, 1971. The Commission has also 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. It also recommends that the High Court be empowered 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, thus eliminating the possibility of prejudice.
Thus concluding I would like to say that it’s not practical to expect Media, the fourth pillar of our democracy, the watchdog of our society to be a silent spectator on cases which arouse public curiosity. However, keeping in mind the unhealthy competition amongst media houses, their tendency to ‘sensationalize’ individuals and events and their ownership by powerful politicians and big media houses, it isn’t really fruitful to expect them to exercise reasonable self- restriction . In such a situation, The 200th report of the Law Commission on Trial by Media is very welcome as it advocates for media to truthfully and responsibly report facts which would help the public in forming an informed opinion, instead of trying to usurp the power of judiciary and make judgmental comments on pending trials. However, one thing is clear that the liberty of press is subordinate to administration of justice. In the end, it would be beneficial for both the judiciary and the media to have greater mutual understanding and respect as both perform indispensible functions in a democracy like India.
[1] Harijai Singh and re:Vijayakumar, AIR 1997 SC 73
[2] Express Newspapers Vs. U.O.I., (1997) 1 SCC 133.
[3] Vide para 293 of R.K. Anand v. Delhi High Court -(2009) 8 SCC 106
[4] 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
http://www.iosrjournals.org/iosr-jhss/papers/Vol20-issue5/Version-4/N020548894.pdf
[5] S.L Rao, Trial by Media-Television should have no role when criminal cases are in court, The Telegraph, July 25, 2011, available athttp://www.telegraphindia.com/1110725/jsp/opinion/story_14234123.jsp
[6] See supra note 4
[7] AIR 1997 SC 3986
[8] 1959 KLT 102.
[9] 1960 KLT 792.
[10] 1969 KLT 513.
[11] Justice V Ramkumar, Sept 2016 “Trial By Media” http://www.livelaw.in/trial-by-media/
[12] Attorney General v. BBC: 1981 AC 303 (CA), p. 315
[13] http://www.firstpost.com/india/media-trials-tend-influence-judges-delhi-hc-indias-daughter-documentary-2149773.html
[14] https://timesofindia.indiatimes.com/india/Media-trials-strain-us-says-SC-judge/articleshow/48221249.cms Accessed November 1,2017
[15] See supra note 14
[16] See supra note 11
[17] See supra note 11
[18] 2005 (2) SCC 686
[19] 2004 CCR 285
[20] Justice M. Jagannadha Rao, 2006 “200th Report On Trial By Media Free Speech And Fair Trial Under Criminal Procedure Code, 1973” Law Commission Of India