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Even in the Coronavirus lockdown, several cases arose by means of media which questioned the sanctity of judicial proceedings because of the constant gaze aroused amongst the spectators. Media is the fourth pillar in a democracy, but to what extent do we allow freedom of speech to hamper rights of accused in the process towards garnering access to justice? Unnatural demise of Sushant Singh Rajput, “Bois Locker Room” (hereinafter as BLR) have been one of the few cases which have hampered fair trial procedures alongside fair investigation. Throughout, a parallel investigation was running by either the journalistic media or social media, which worsened the situations and also exposed things which infringe persons the right to privacy. Innocence until proven guilty, or discrediting the judicial witnesses, or virtual jury submissions analysing the guilt of an accused have severely distorted the boundaries that media should be permitted to delve into. This paper intends to highlight how media trials ever since Aarushi Talwar’s double-murder case have been a hinderance in access to justice and fair trial, and have malignantly compromised with the principles of natural justice that the Code of Criminal Procedure, 1973, seeks to protect and enshrine.
Article 39(a) of the Indian Constitution postulates that the legal system should operate in a manner to advocate and promote tenets of justice. Article 19(1)(g) guarantees one the right to practice professionally, journalism and work in the fourth pillar of democracy- media. It is when these two rights come intersecting each other’s ways that the scope of this paper initiates. The Constitution has been very considerate in granting to the persons facing accusation the rights of free and fair trial, but it tends to be unable to perform its duty to the best of its capacity when the media picks up an analogous yet unauthorised investigation at its own accord. Soli J. Sorabjee opined,
“It has been seen that when a certain case is in court, the media starts a parallel trial, which is not good…Let the court first decide on a matter, then the media can criticize it.”
In many a case, the judiciary has had to put an injunction or immediate stop on the intervention by the non-straightjacketed journalist houses. Delhi High Court issued restraining orders on Arnab Goswami’s defamatory broadcasting on Shashi Tharoor’s court case regarding Sunanda Pushkar. Bombay High Court requests media-houses to show restraint as it was prejudicing the ongoing investigation by the police, in matters of Sushant Singh Rajput’s case. It was also leading to increased number of threat calls and text messages to the accused who wasn’t proven guilty by due procedure of law yet.
The case of K.M Nanavati, which dates back to over half a century ago, was also in the glare of media and became one of the first investigative journalism trials conducted in parallel effect. It hindered the judicial process to the point that the jury members of the trial agreed with the media’s perspective and didn’t find the accused guilty. This was subsequently overturned in Bombay High Court and upheld in the Supreme Court, however it cannot be missed that the influence of media was daunting even back then in the process of justice.
There are various provisions in the Code which safeguard the interests of every individual involved in a criminal trial, be it the accused, victim, or adjudicators and witnesses. This section of the paper aims to highlight how media trials infringe these rights provided and enshrined by the Code of Criminal Procedure, 1971.
The cardinal principle of presuming innocence until proven guilty was reiterated in Asharam Bapu v. Union of India and Ors which laid emphasis on the parameters of evidence to prove beyond reasonable doubt the guilt of a person which would then lead to him being a convict of the crime.
Universal Declaration of Human Rights (hereinafter UDHR) were enshrined by the United Nations General Assembly on 10th December 1948, which deal with essential attributes relating to fair trial in a criminal case. They have been embodied in the CrPC as well in form of various distinctive sections.
Article 10 of the UDHR mandates that everyone is to be provided with full equality to public hearing by an impartial and sovereign independent court, and that it should be fair in its proceedings while determining the right and obligations of any alleged criminal charge against them.
Article 11 of the UDHR provides that everyone who is purportedly charged with a penal offence is entitled to be presumed innocent until they are proven guilty according to the due procedure of law in a public trial at which they have had all their guarantees necessary for their defence.
A fair criminal trial has the following attributes:
- Since India is an adversarial system of justice, the law must provide fair opportunity to the alleged accused to defend himself fructuously. This is also mentioned in Sections 303 and 304 of CrPC where a pleader of the accused choice must be present to defend him. The indigent accused person should even at the State’s cost avail the services of free legal aid. Upon such denial of the services the trial may amount to be vitiated leading to setting aside of the conviction and sentence of person accused.
In a media trial however, these provisions are vitiated instantly, as the person the media ropes a virtual case against has no defender, no right to set aside the media jury and the viewership’s conviction, and it also leads to heavy defamation of the accused of a penal offence in an actual court proceedings.
- The trial must be conducted by a competent judge or magistrate who has the required jurisdiction to conduct the trial in an independent and impartial procedure. This gets significantly compromised in a media trial as the journalists exceed their allowed jurisdiction and try to conduct an independent parallel investigation which is not authorised by law. The Programme Code per Cable Television Networks (Regulation) Act, 1995 and 1994 Rules disallow media-houses from conducting these trials as they are in strict non-adherence and violation of the said code, additionally the Code of Ethics and Broadcasting Standards, and the News Broadcasting Standards Regulations. These ethics mention how as a rule the media must maintain a respectable distance and not intrude in the private lives of individuals. The legal ramifications are also well-established and certainly made aware to the smooth running of independent journalism not at the cost of jeopardising the nature of investigation and trial by the judicial bodies themselves.
- Section 327 of CrPC demands that the trial should be held in open Court so that there is public access. While Media trials allow for public access, the author shall later in the paper discuss how the in-camera trials also come in the view of camera and breach privacy of respective individuals accused of a crime.
- The accused is legally entitled to be provided with the exact accusations against them and the charges are to be explained properly to them as stated in CrPC Sections 228, 240 and 246. While this is not only missed as a step in a media trial, there are further allegations which are self-imposed by the journalist fraternity, which have minimal role from the side of the accused. In Shashi Tharoor’s case the watchdog went so far as to openly label him as a murderer even though it wasn’t proven in the Courts. However vigilant the media claims to be in their work, it is notable that it exceeds its boundaries more than a couple of times to gain more public attention and also manipulates public opinion.
- The accused is supposed to be present during the trial so as to have effective prosecution case and defence as well, as per Section 273 of CrPC. In Sushant Singh Rajput’s case, Rhea Chakraborty was called upon by RepublicTV and other News agencies, but in her apparent “witch-hunt”, she wasn’t always present and neither was the news disseminator authorised to summon her legally to be a part of their self-induced media trial.
- Proper and sound reasoning should exist in order to compile a coherent judgement as provided in Section 235 of CrPC and the accused must be heard as well (audi alteram partem). Against Rhea Chakraborty, various evidences from twitter fake accounts et al were developed and created to present a disillusioning image to the public on the innocence or guilt of the accused. The sanctity of police investigation should be respected and not foolishly dealt with by conducting another investigation without any sanction from the authorities. It makes the whole process dubious and outrageous as respect is not shown in the legal establishments.
The Supreme Court has observed the significance and need of fair trial in the administration of criminal justice system in a case, where it said that denial of fair trial is injustice to both accused and the victim, but also the society. The need for an impartial judge, a fair prosecutor and an environment of judicial calm exists in a fair trial which also ensures bias and prejudice for or against the accused, the witnesses or the cause are eliminated entirely.
Autrefois acquit and autrefois convict are an embodiment of the doctrine that a person who has once been convicted or acquitted cannot be tried for the same offence again, reinstated in Section 300 of CrPC. Media trials take on investigation and sometimes even sting operations to find their version of correct facts. They are not only trying the person without any jurisdiction, but media is also breaching this fundamental principle of natural justice which has been mentioned above. The inbuilt right of an accused to be dealt with in a fair manner is infringed in a media trial.
The law mandates under Section 165 of CrPC, that the officer-in-charge of a police station can proceed the investigation of a cognisable offence if there is sufficient reason to believe on the virtue of an FIR or any other information received. The power to hold investigation or preliminary inquiry also rests with the Magistrate in a case where the police decides not to investigate the case under proviso of 157(1) of CrPC, so alternatively the Magistrate can conduct preliminary inquiry and investigation as well.
However, the law mandates at no occasion or destination, a provision which empowers media to conduct its investigation suo motu. While dissemination of news is required to enshrine fundamental principles of accountability and free speech and expression, it cannot be stretched to the point where of their own accord media decides to conduct their investigation based on their selective evidences which might be found by using unreliable sources and inadmissible content as per Court requirements.
A rape victim is supposed to be taken for her medical examination within 24 hours of FIR being registered. To prevent the prosecutrix from anxiety and intimidation from being present in physical proximity to the accused, she is expected to give her testimony from across a screen, as in-camera trials are the rules of procedure. Her mental health is prioritised and relevant measures are taken to protect and ensure security. It is also done to in a way shield the prosecutrix from the ramifications that arise once the matter goes into public scrutiny. However, rampant media trials regarding rape cases have growing concerns as they expose sensitive details that a victim might not be comfortable to share and put in public domain. Indira Jaising has requested medias to follow self-control and self-regulation while going into investigation because they hamper with the rights of victim as well as accused.
The Law Commission report deals with the issue of “Trial by Media: Free Speech v. Fair Trial under Criminal Procedure”.  It highlights and focusses on pre-judicial coverage by the media on crimes, accused and suspects and how it plays a role in the administration of justice. Criminal contempt can be explained by the kind of publication which, either by words or signs or visual representations, which prejudices or biases the judicial proceeding in a way that is interfering the due course. It also involves the types of publications which tends to obstruct the administration of justice in any form.
Various issues have been brought forth by the report which can be found as under:
- Whether publications by the media can subconsciously or unconsciously affect the Judge’s psyche.
Lord Denning M.R has opined in the Court of Appeal that Judges are not influenced by the publicity of the media, a view which the House of Lords didn’t seem to agree with as it came off more as a statement than the truth.
- In A.K Gopalan v. Noordeen, the court held that a criminal proceeding is to be deemed as imminent if the suspect is arrested. It also ruled that if a prejudicial or biased publication has been made for a person who has been arrested by the police, then right to freedom of speech and expression must pave way to the rights of an accused which entitles them for a fair trial to be conducted keeping aside any prejudices or influence from the prejudicial publications made by the press after arrest. This was one of the first change in positions of law which was later reversed in the Contempt of Courts Act, 1971, Section 3(2) dealing with innocent publication and distribution of matter, which read that it is in exclusion from criminal contempt if any or all publications made before the filing of charge-sheet are of a prejudicial nature which are capable of interfering with the matters of Court and justice. It was required that there was no mala fide intention in the reason for publishing that material regarding the accused.
- The Freedom of Expression and Speech as well as the balance with due process of liberty shall be dealt with in a separate section of this paper, yet it is pertinent for the author to mention that it draws its primary source from the 200th Law Commission Report, as it extensively dealt with these issues as a starting point.
- Section 3 of the Contempt of Courts Act, 1971 finally gave contempt charges to whoever interfered by making a publication of an accused which resulted in undue interference of the Court proceedings. However, it doesn’t necessarily mean good implementation, when media-houses are prepared to deal with contempt charges, at the cost of already perturbing the justice system. It is therefore in discussion in the report whether a sort of postponement or suppression of the publication should be directed so as to curb the wide range of ramifications that may arise once the publication is made.
- An attempt was made to discuss which categories of media publications are to be given the recognition of being prejudicial to a suspect or accused. Cases that can excite hostile emotions towards an individual under charge can amount to contempt of court. In AG (NSW) v. Willisee, those cases where it is presumed that a person might be guilty of a crime only upon the virtue of their existent criminal record, and is innocent if there is no criminal record found. It was prevalent in a couple of cases where a woman was unduly prejudiced against because she was held of fraud multiple times, so she was assumed to be guilty for abandoning her child, or one man who was charged of forgery earlier on and then was published that he’s been sentenced to imprisonment. In M.P Lohia v. State of West Bengal, newspapers published in an article that the wife was a case of an alleged dowry death case, but the schizophrenic conditions of the wife were not published which gave a biased opinion creating a pressurised environment before the judge. These are unjustified and wrong notions that should be avoided and also mention the role of media in influencing the innocence or guilt of a person in courtroom proceedings. Hence, these intentions behind media trials should be avoided.
- Suggestions were made to amend certain provisions of Contempt of Court Act, 1971. It was specified that the journalists should be trained in aspects of law if they voyeur into broadcasting law-related content, since the absolute freedom of media doesn’t seem justified if the media persons aren’t equipped with sufficient inputs of law. Human rights, Constitutional law, Right to life and liberty, Defamation law, Contempt of Court law etc are important from media’s perspective. A diploma and degree course in Journalism and Law should be mandatory for journalists to have adequate knowledge before discussing legal matters.
The Constitution of India guarantees to the media and judiciary these rights listed as under:
- Freedom of Press is guaranteed under Article 19 of ICCPR which affirms the Article 19(1)(a) of freedom of speech and expression. The liberty to seek, receive and disseminate information of all sorts regardless of boundaries exist to every person of the Indian State.
- Democracy’s tenets include public participation, and taking Benthamian principles which depend on publicity as the very soul for justice, it gives further confidence to the media.
- Article 39(a) states that furthering of justice shall be the objective kept as a priority while operating the legal system.
- Article 50 provides separation of power between the judiciary and the executive and there are respective articles to maintain it with legislature as well. Nevertheless, since informally media is thought to be called the fourth pillar of democracy, evidently so a demarcation of jurisdiction should be made imperative so as to ease the functioning as well as ensure and respect the other’s periphery.
Supreme Court has expressed its fears in having media trials as it may inculcate public opinion running on a different tangent from rule of law and constitutionalism, which may increase the demand for capital punishment easily, which in turn can severely damage the tenets of justice.
But to further the agenda of investigative journalism on the fundamentals of Free Speech at the cost of someone’s right to live with dignity seems like a clash of rights. The furtherance of media trials harp on the pressure to increase substantially the TRP ratings and viewership sales, which is a serious impediment on truth and substance as to sell like hot cakes media depends on using juicy headlines, punchlines and interviews which thrive because of the deviation from legitimacy. The right provided under Article 19(1)(g) which allows citizens of India to carry out any profession of their choice, coupled with Article 19(1)(a) which enables them to express themselves without fear of oppression come with a pinch of salt pertaining to reasonable restrictions. ‘Your rights end where my nose begins’ is a common phrase used to explain the limitations of absolute freedom. A trial by media becomes an antithetical governing over rule of law, as it can culminate into a miscarriage in access to justice. Fali Nariman has opined that a “responsible media is the one which is a handmaiden of effective judicial administration”.
Media has taken the reincarnated shape of Janta Adalat, like the khap panchayats or public courts following regressive mechanisms to nose their way into surmising a verdict by the jury of their stereotypical notions. In Jessica Lal murder case, the media was overjoyed in taking the role of a facilitator of justice as it induced candle light marches and opinion polls to garner public’s opinion on what punitive measures serve the criminality of the scene, yet it was ruled by the Apex Court that freedom of speech needs to be carefully put to use otherwise it interferes with the administration of justice and even amounts to a travesty of justice because the presumption of innocence turns to guilt and burns out in thick air. John Grisham wrote once that media finds guilt on the basis of suspicion while police finds guilt on the basis of evidence, which stands certainly apt for the conditions prevalent in the scenario of current times.
Bois Locker Room (BLR) was an incident which created a lot of ruckus on Instagram. Some screenshots were surfaced and circulated on the platform which were engaging with sexual violence, rape threats and hyper-masculinity. With rapidity, allegations were made wherein one of the alleged minor suspects involved in the fiasco committed suicide because of the mental agony and humiliation. It was later found that the screenshots were manifested by a minor girl who was curious to see the reaction of people in her social-circle. The ramifications of swift methods without precaution and essential due-care for the dispensation of justice can be haphazard. Social media, another form of prevalent and highly popular media is quick in conducting a trial of its own, which causes impediments in the actual procedure which is to be conducted by the courts of justice.
A balance of rights and obligations needs to be maintained between to get the best effective result in a democratic setup. It can be done by implementing a few policy change recommendations like:
- Recognising Media as a legitimised fourth pillar of democracy so that rights and restrictions can be mandated by the laws of the land. A free hand and entitlement over independent running should be prioritised but not at the cost of hurting the administration of the legal system.
- Media should self-regulate and follow ethics and norms which do not aim to delve into defamation, and other forms of embarrassment for the persons arrested, accused or involved in a trial. These norms are essential as they help underline the respect for judiciary and dignity of individuals of a country. News is essential but it should not impair the already existing mechanisms which regulate and provide justice.
While the judiciary is expected to be aware of the consequential right of speech and expression granted to media as an institution, the overarching mechanism of conducting investigative journalism and media trials should be regulated by the media houses as they not only hamper rights of the persons involved in the trial but also have far-reaching implications in altering the mindset of general media. Contempt restrictions, ethical guidelines and non-interference with the adjudication process are methods which can push forward this growing power fluctuation between judiciary’s authorised trials and media’s outlawed trials.
 The Constitution of India, 1950, Art. 39(a).
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 The Constitution of India, 1950, Art. 21, 22; Legal Service Authorities Act, 1987.
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 Hussainara Khatoon (IV) v. State of Bihar (1980) 1 SCC 98 at 105.
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 The Code of Criminal Procedure, 1973, §228, §240, §246.
 Supra note 4.
 Romila Thapar v. Union of India, (2018) 10 SCC 802.
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 Zahira Habibullah Sheikh (V) v. State of Gujarat, (2006) 3 SCC 374 at 395.
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 A.K Gopalan v. Noordeen AIR (1969) 2 SCC 734.
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 The Contempt of Courts Act, 1971, §3(2).
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 AG(NSW) v. Willisee 1980 (2) NSWLR 143 (150).
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 Supra note 32.
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 Santosh Kumar Shashibhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
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 Supra note 2.
 Fali S. Nariman, Are Impediments to Free Expression in the Interest of Justice, CIJL Yearbook, Vol 4, 1995.
 Sidharth Vashisht alias Manu Sharma v. State of Delhi (2010) 6 SCC 1.
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Author: Tushmi Udyalak
Editor: Kanishka Vaish, Senior Editor, LexLife India.