Media has broadened the preview of the Right to freedom of speech and expression under the Constitution of India. But as every coin has two sides, lately, the media is seen to be slowly seeping into the judiciary usurping their functions. A fine line needs to be drawn between the Right of free press in context with “immunity” guaranteed under the Contempt of Court Act is in demand. This Article seeks to explain Investigative Journalism, its constitutionality and impact on Indian Democracy. 

“Today a story is not told it’s sold.”

-Jim Morrison

One cannot deny the importance of media as it is the watchdog of the government, keeping the public well informed and heedful. Media has been dyed in the wool as the “fourth pillar” of Democracy. The founding fathers of the Indian Constitution were au courant of the struggles of the press to gain freedom. Hence, the freedom of speech and expression has been conferred in Article 19(1)(a) of the Constitution of India.

Even so, it is well noted that the “right of freedom and expression” is not an absolute right and reasonable restrictions may be imposed on this Right on contingent grounds. This restriction is eminent in the light of today’s world where big corporates and political parties have turned media into a puppet to yield their free will.

Unfortunately, there are not sufficient rules in place to regulate these journalistic bodies that degrade the justice system with conspiracy theories in the name of ‘Investigative Journalism.’ With Media self-programming itself into a ‘public court’ (Janta Adalat), an abridgement of the gap between a real story and a sold story is starting to blur out, completely ignoring the principle of ‘presumption of innocence until proven guilty.’

The advancement in technology has aided this ignorance by helping media pierce into the judiciary and turn cases into political drama shows even before the Court’s verdict. These published opinions prejudice the interest of the parties in a case, violating their Right to privacy, ergo interfering with the process of a fair trial. Media has a tremendous power to awaken the people. But that power must be exercised with the precision and circumspection

Constitutionality of Media Trial

The Contempt of Court Act,1971

Contempt of Court under the Act includes both Civil and Criminal Contempt.

Criminal contempt has been additionally divided into three forms, Scandalizing the trial, prejudicing trial and hindering the administration of justice. Although pre-trial publications that do not prejudice the accused are given immunity under the act. Freedom of press extends to include a right to publish an accurate report of Courtroom proceedings witnessed by the journalist. The Supreme Court of India apprehended that Article 19(1) (a), in addition to assuring freedom of speech and expression, ensures the Right to receive information on matters regarding public interest.

In State of Maharashtra vs Jalga Municipal Council, the Apex Court stated that an accused could not be convicted solely on the basis that the press craves it. The publication of the court proceedings by the media is not an absolute right and can be restricted when i) it amounts to Contempt of Court and ii) when it prejudices the accused.

Any publication that interferes or tend to interfere with the dispensation of justice in any ‘pending’ civil or criminal case will be deemed as Contempt of Court under the Act. To avoid peeks of imprudence that was showcased by the media yet still granted immunity in the case of Dr. (Smt.) Nupur Talwar vs State of U.P. where the media put a strain on the judicial proceedings by spreading canards and defamatory stories. To avoid circumstances like these, a stricter boundary must be set in place.

Freedom of Press

Media Trial – The Achilles Heel on the road to dispensation  of Justice

Though there is no explicit provision under the Constitution of India relating to freedom of speech, the Apex Court has accentuated the impliedness that it falls under scope freedom of speech and expression through various judgements. In Brij Bhushan and Anr. vs State of Delhi, the Supreme Court stated that

“Every free man has undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press.”

Additionally, in Romesh Thappar v. State of Madras, the petitioner ran a journal titled “Cross Road.” This journal was prohibited from entering or circulating by the Government of Madras under the Maintenance of Public Order Act, 1949. The Court, in its judgement stated that forbidding a journal was invalid and restriction can only be imposed within the preview of authorized limits under Article 19 (2) of the Indian Constitution.

Persistently the courts have tried to set boundaries to a certain point without curtailing the freedom of the press as recommended by the Law Commission in its 200th Report. Facilitating a balance between the two equally important fundamental rights, right to freedom of speech and expression and Right to a free and fair trial has been a predicament.

Public’s Right to Information

The “freedom of the press” encourages the public’s “right to know” granting them access to information acting as an enabler in strengthening democratic norms. Media can be a powerful user of the Right to Information Act, 2005 and an agent for the empowerment of people leading to an informed Society.

One of the earliest judgements where the Supreme Court emphasized the Right to know was S.P. Gupta vs. Union of India better known as the Judge Transfer case. The Court observed that the concept of an open government stems directly from the Right to know is understood from the Right of free speech and expression guaranteed under Article (19)(a). The Court implicated that disclosure serves as an essential aspect of public interest, and secrecy should be regarded as an exception.

Repercussions of Media Trial

 

“Every institution is liable to be abused, and every liberty, if left unbridled, tends to become a license which would lead to disorder and anarchy.”

-Lord Atkin

Media Trial v. Right to be Represented

The Right to be Represented by a lawyer is bestowed equally upon any person as a fundamental right. The birth of Media Trial has amounted to imparting tremendous public prosecution onto lawyers forcing them to forsake the case to retain their reputation. This goes against the Principles of Natural Justice. The ‘self-imposed’ code that prevents journalists from reporting sub-judice matters has been long forgotten. One of the most highlighted cases in this scenario is the Jessica Lal Case, senior lawyer Mr Ram Jethmalani decided to defend the accused Manu Sharma, the news channel called it “an attempt to defend the defensible.”

Media Trial v. Fair Trial

Media has steadily preyed on the guarantee of the fair trial, thus leading slowly into the decline to the presumption of innocence principle. The high publicity of court cases has made it impossible for the accused person to live regardless of the verdict. The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat stated that

“Fair trial obviously would mean a trial before an unbiased 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.

In simple words one of the components of fair trial is to ensure prohibition on matters predisposing the trial and hindering the administration of justice

Further, in State of Maharashtra v. Rajendra Jawanmal Gandhi, the Apex Court observed that a press trial is an antithesis to the rule of law. It paves a path that leads to the miscarriage of justice. A Judge must protect himself against any such pressure, and he is to be steered strictly by the rules of law. The Right of free trial and Right of the free press must co-exist. Destruction of legal presumptions will only lead to impingement upon the protection granted to an accused under Article 21 of the Constitution.

Violation of Rights to Privacy

Judicial activism has brought the Right of Privacy within the scope of Fundamental Right. The Right to free press and Right to privacy gravitate towards being a double-edged sword. One’s right to know tends to infringe another’s right to be left alone. According to Article 12 of the Universal Declaration of Human Rights “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the Right to the protection of the law against such interference or attacks.”

The growth of the media, chiefly the electronic media in recent years has brought to attention issues of privacy. The Court from time and again has tried to balance both the rights to ensure neither’s rights are infringed. In State v. Charulata Joshi the Supreme Court held that the Right guaranteed under Article 19(1)(a) of the Indian Constitution is not absolute. The press must acquire the willingness of the person to be interviewed. If the person showcases unwillingness to be interviewed.

Further, in the Aarushi Talwar Case, the media flooded electronic portals with transcripts of the deceased’s email, which lead to slandering of her character. This very act amounts to the violation of the Right to Privacy.

Media Trial – The Achilles Heel on the road to dispensation  of Justice

Influence of Media Trial on Judges

The Anglo-Saxon Theory establishes that Judges subconsciously fall prey and are influenced by publications made by the media. This attracts the principle that “Justice must not only be done but must be seen to be done.” In  Ram Chandra v. State of Rajasthan the Supreme Court’ statement that the punishment of death sentence awarded to the accused “responded to the society’s cry for justice.” This expressly portrayed that the sole criteria for executing a death penalty did not only become dependent on the principle of “rarest of rare case” but extended to the reaction of the society.

Media no longer reports but opines news. Also, in the Nirbhaya Rape Case, Judge Justice Kurian Joseph was reported to have said: “If I had not given that punishment they would have hung me, the media had already given their verdict.” We need to remind ourselves that judges are humans, they have tried mightily to restrict the trial to the courtroom, only to be seen flooding streets repeatedly. Eventually, their subconscious is bound to be affected.

Conclusion

Although media plays a vital role in uncovering the truth and highlighting public opinion, the judiciary’s evaluation of the crime must take precedence over the collective consciousness of the society. Media that violates the necessary code of conduct must be held in contempt of Court. Further, the Courts must find a balance to ensure both the fundamental rights are given equal space in the Constitution, thereby not endorsing the Right to freedom of speech and expression to prejudice the court trial.

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