Freedom of Press vis -a- vis Media Trial

ABSTRACT 

The idea of Free Press did not prevail in pre- Independent India. The founding fathers of the Constitution impliedly inserted this idea into the right of free speech and expression. Thus, the Indian Constitution protected the Right to speech and expression under Article 19 (1) (a).

Later, press was read into the article and became a part of free speech and expression. By the mere fact of recognition of this right under Article 19 (1)(a), the reasonable restrictions were automatically applied to the right.

Expression through press unlike an individual’s right to speech, impacts the public at large. It leads to formation of opinions in the minds of the public, which can either be good or otherwise. Thus, this right of press on one hand is called by the scholars as the fourth pillar of democracy which must be free and on the other hand must be in tune with the limitations of the Constitution thus being informative, non-toxic and verified.

Media trials are an anathema to the right of free press. Provocative speeches, shouting and banging of the tables along with instigating graphics, cannot be called as journalism and thus protection of press cannot be availed.

Life sans dignity is only a denotative term. A person accused in the court of media can never be acquitted. He or she faces the wrath of fake journalism and is stripped of its dignity each hour. 

Thus, the need of self -restraint, following the code of ethics and the presence of a self-regulatory bodies is the need of the hour.

POST CONSTITUTIONAL POSITION OF “PRESS”

In pre- Independent India, there was no constitutional or statutory guarantee of freedom of an individual or media/press. At most, some common law freedom could be claimed by the press, as observed by the Privy Council in Channing Arnold v. King Emperor (1914) 16 BOMLR 544.

“The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject, in general, may go, so also may the journalist, but apart from statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.”

During the framing of the Constitution, B. N. Rao, the Constitutional Advisor to the Constituent Assembly assured that freedom of the press was included in the guarantee of freedom of speech and expression and it was hardly necessary to provide for it specifically.

Dr. Ambedkar said that we don’t want to give absolute rights to the press because it has two aspects. The right could be given to the first aspect of the press and not to the second aspect. The press is a right of expression. The Constitution of India in Article 19(1) (a) lays down that “All citizens shall have the right, to freedom of speech & expression and it includes the right to press also.”

The Supreme Court in its numerous judgements warranted the same principle. The Court thus held that the freedom of the press is contained in the guarantee of freedom of speech and expression in Article 19(1) (a) of the Constitution.

In Sakal Papers Ltd. V. Union of India, AIR 1962 SC 305. the Court held, the freedom of press means freedom from interference from authority which would have the effect of interference with the content & circulation of newspapers.

The Indian Constitution, while not mentioning the word “press”, provides for “the right to freedom of speech and expression” (Article 19(1)(a)). However, this right is subject to restrictions under sub clause (2), whereby this freedom can be restricted for reasons of “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt, court, defamation, or incitement to an offence”.

MEDIA: FOURTH PILLAR OF DEMOCRACY

The media can make a real difference to the lives of poor and disadvantaged people by:

 • making people more aware of their rights and entitlements; 

• enabling people to have access to government programs, schemes and benefits; 

• making people more aware of political issues and options and helping to stimulate debate; 

• educating the public on social, economic and environmental issues;

 •drawing attention to institutional failings – corruption, fraud, waste, inefficiency, cronyism, nepotism, abuse of power and the like.

Freedom of press has always been a cherished right in all democracies. “Growth and development of representative democracy are so much intertwined with the growth of press that the press has come to be recognized as an institutional limb of modern democracy.”

Often media is assumed to be neutral and free from other established pillars of democracy. The media is not only a source of information but also a voice to the voiceless against the maladministration.

Freedom of expression, under which the media exercises power has four broad social purposes to serve:

 (i) it helps an individual to attain self fulfilment, 

(ii) it assists in the discovery of truth, 

(iii) it strengthens the capacity of an individual in participating in decision making, and 

(iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. In sum, the fundamental principle is the people's right to know.

Therefore, liberty of the press remains an Ark of the Covenant. In Re: S. Mulgaokar (1978) 3 SCC 339, it was held thus:

“1. Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so subtle. But, like other liberties, this also must be limited.”

Thus, the right to press is a sacrosanct right and cannot be curtailed by illegal means. The Court in mentioned thus:

“It is not necessary for the press to be subservient to the Government. As long as this Court sits’ newspapermen need not have the fear of their freedom being curtailed by unconstitutional means. It is not acceptable that merely because the Government has the power to levy taxes, the freedom of press would be totally lost. The Court is always there to hold the balance even and to strike down any unconstitutional invasion of that freedom.”- Indian Express Newspapers (Bombay) Private Limited & Ors. Vs. Union of India & Ors., (1985) 2 SCR 287.

This right mentioned is not unrestricted and is subject to reasonable restrictions. The right to press is a right to be exercised responsibly, though in case of doubt, the benefit will and must be inclined towards the press. In Re: S. Mulgaokar (supra) the Court mentioned thus:

“23. Many values like free press, fair trial, judicial fearlessness and community confidence must generously enter the verdict, the benefit of doubt, without absolutist insistence, being extended to the defendant.”

But a journalist while carrying the power to mould the public opinion must act responsibly. The Court in Express Newspapers Pvt. Ltd. & Ors V. Union of India & Ors 1986 AIR 872  mentioned thus:

"A journalist occupies a responsible position in life and has powers which he can wield for good or evil. It is he who reflects and moulds public opinion. He has to possess a certain amount of intellectual equipment and should have attained a certain educational standard without which it would be impossible for him to perform his duties efficiently.”

It is to be understood that some degree of abuse is inseparable from the proper use of everything, and in no instance is this truer than in that of the press. But the community is the taker of the news and thus, it should be the duty of a journalist to respect the listener and provide him with verified, non-toxic and informative news. The Court recognized the right of the community to hear in Bennett Coleman & Co. v. Union of India (AIR 1973 SC 106) and read thus:

“Under the theory of the freedom of speech which recognizes not only the right of the citizens to speak but also the right of the community to hear”

India and Media Trial

“False words are not only evil in themselves, but they infect the soul with evil” – Socrates

Recently the country has seen an uproar in the case of actor Sushant Singh Rajput’s unnatural death case. There have been innumerable claims on the social media, which have turned into media debates and hours everyday have been spent in deciding why did Sushant die? What was the reason behind his suicide? Did he actually commit suicide or was it a murder? These questions were tried by the media in the midst of the raging coronavirus pandemic in the country.

The matter is still sub- judice and the possibility of a murder of the actor has been negated by medical fraternity.

But this is not the first case to be tried by the media with its fictional judicial power. There are good number of instances of media trial and also legal perspectives attached to it.

Kartongen Kemi Och Forvaltning AB and Ors. vs. State through CBI/ 

The Bofors Case:

In an interview to Swedish national daily 'Dagens Nyhetter', Late former President of India, Mr. Pranab Mukherjee said the Bofors scandal was a media trial but it had not been proven to be a scandal in a court of law.

Rights when exercised beyond their circumscribing limits, leads of violations of the rights of others. Similarly, when press freedom is exercised beyond the justified limits, it may cause irreparable damage. The Court recognized the fact in Kartongen Kemi Och Forvaltning AB and Ors. (supra) and mentioned thus:

“7. This case 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.”

(Dr. Rajesh Talwar And Another V. Central Bureau of Investigation, 2013 (82) ACC 303)

Aarushi Talwar Murder Case: 

In 2008, a girl named Aarushi Talwar (aged about 13 years) and Hemraj Banjade, her male live- in domestic worker employed by her parents, aged 45 years, was found dead on the night of 15-16 May at Aarushi’s home in Noida, India. The case aroused public interest as a whodunit story (i.e. a story or play about a murder in which the identity of the murderer is not revealed until the end) and received heavy media coverage. The media covered this sensational case with indecent allegations against Aarushi and other suspects. This act of Media was heavily criticized by many people as a trial by media did not only distorted the reputation of the deceased but also interfered in the ongoing investigation of the police.

(Reference: Supreme Court on Media Trial in India, available at: https://lexforti.com/legal-news/supreme-court-on-media- trial/#_ftn1 (last visited on October 20, 2020)

Sushant Singh Rajput Suicide Case:

Rajput was a rising star in India's popular Hindi film industry, and his death shocked India. His body was discovered in his bedroom on 14 June. Mumbai police said the 34-year-old appeared to have taken his own life, and reports in the press suggested that the actor had been dealing with mental health issues.

But the matter took a 360 degree turn when the attention shifted to Rhea Chakraborty, an ex- girlfriend of the deceased. The media titled the girl as “fortune huntress”, a “mafia moll” and “sex bait to trap rich men”.

Later, the father of the deceased actor lodged a police complaint (First Information Report) on 25 July, accusing Chakraborty of abetment of suicide. He alleged that Chakraborty had been stealing his son's money, was overdosing him on medication, had threatened to make public his mental health issues, and had distanced him from his family. He also denied that his son had any mental health issues.

This led to immense trolling of Chakraborty on social media. The social media forwards made news items and soon she was declared as a “murderer” and part of “drug racket” and so on.

This led to filing of Public Interest Litigations in the Bombay High Court by six former Director Generals of Police, a former Additional Director General of Police, and a former Commissioner of Police. The other PIL has been filed by filmmaker Nilesh Navlakha; the editor of a regional newspaper Mahibub D. Shaikh; and retired civil servant Subhash Chander, seeking direction to ensure news channels do not undertake a media trial that can prejudice the independent investigation being undertaken by Central Bureau of Investigation in the case.

The Bombay High Court expressed surprise that there is no state control over electronic media.

The pre-trial publications are sheltered against the Contempt of Court Act, 1971, is thus practised thoroughly.

IMMUNITY UNDER CONTEMPT OF COURT ACT, 1971:

Under the Contempt of Court Act, 1971, pre-trial publications are sheltered against contempt proceedings. Any publication that interferes with or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding, which is actually ‘pending’, only then it constitutes contempt of court under the Act. 

Under Section 3(2), sub clause (B) of clause (a) of Explanation, ‘pending’ has been defined as

 “In the case of a criminal proceeding, under the Code of Criminal Procedure, 1898 (5 of 1898) or any other law – (i) where it relates to the commission of an offence, when the charge sheet or challan is filed; or when the court issues summons or warrant, as the case may be, against the accused.”

PUBLIC PARTICIPATION:

Some scholars justify a ‘trial-by-media’ by proposing that the mob mentality exists independently of the media which merely voices the opinions which the public already has. In a democracy, transparency is integral. Without a free press, we will regress into the dark ages of the Star Chambers, when the judicial proceedings were conducted secretively. All these omnipresent SMS campaigns and public polls only provide a platform to the public to express its views. It is generating public dialogue regarding issues of public importance. Stifling this voice will amount to stifling democracy.

Reference: Constitutionality of Media Trials in India: A Detailed Analysis https://www.lawctopus.com/academike/media-trials-india/#_ftn31

FAILURE OF THE THREE PILLARS

Senior Advocate C Aryama Sundaram, while discussing the problems on 'media trial' in a virtual debate hosted by NewsX on the topic 'pros and cons of media trial' as part of Ram Jethmalani Memorial Lecture, observed that:

"If you had the 1st, 2nd and 3rd estate behaving properly, the 4th estate (media) will not be able to convert public opinion".

Thus, in his humble view people look up to the media as the decision makers, due to failure of performance on part of the other three organs of the Government.

THE DIFFICULTIES OF THE MEDIA VICTIM

The observations by a Division Bench of the Delhi High Court in Suo Motu proceedings - 2009 (1) KLD 133, while mentioning about the slow progress in many criminal cases, observed that often an innocent person has no remedy if he is an accused in such a case or if he is subject to media trial. Thus, the court must in such cases be vigilant in protecting the rights of an individual. The Court observed thus:

"We do appreciate that in respect of some cases (largely criminal cases) the justice delivery system in our country progresses virtually at a snail's pace and often an innocent person has no real remedy available to him, if he in framed in a matter, or is subjected to a 'trial by media'. As a result, seldom does anyone approach a Court of law for relief either by way of an injunction or for damages in a case of 'trial by media'. Such being the reality, we are of the opinion that the Courts have a great responsibility and, therefore, need to be far more vigilant and pro-active in protecting the rights and reputation of an individual from an unwarranted 'trial by media'. 

In a sense, the Courts have to energize the rule of law. While this may add to the burden of our criminal Courts, we are of the view that it is imperative for the Courts to protect a citizen from what may appear to be victimization. This is certainly the duty if not an obligation of Courts. This is all the more important in a pending matter. For example, if a person is arrested on the suspicion of having committed a crime, it is not the function of the media to 'declare' him (by implication) innocent or guilty. That is within the exclusive domain of the judiciary. But if the accused is subjected to a 'trial', either through the print or audio-visual medium, it may subconsciously affect the judgment of the Judge, and that may well be to the prejudice of the accused, who is, in our justice delivery system, presumed innocent until proven guilty. In such a situation, the Judge must be pro-active by restraining the media from carrying out a parallel trial. Otherwise our criminal justice delivery system will be completely subverted. Failure to do so would result in an unfortunate situation arising in some cases as will be evident from what we discuss herein below"

RESTRICTIONS ON REPORTING ISSUES WHICH ARE "SUB JUDICE"

The settled view in this connection as propounded in Government Pleader v. Mathayi Manjooran LQ 1959 HC 0616,  C.G. Janardhanan v. T.K.G. Nair 1961 CriLJ 104, Kochu Moideen v. Nambissan and Others 1969 KLT 513  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.

But some ambiguity has been introduced in the Explanation to Sec. 3 of the Contempt of Courts Act, 1971 with regard to the stage at which a matter can be considered to be "pending". The said Explanation would state that in criminal proceedings under the Code of Criminal Procedure, 1898  or any other law in force (necessarily laws in force at the commencement of the Contempt of Courts Act, 1971) a criminal proceeding can be said to be pending only when the charge sheet is filed or when the Court issues summons or warrant or takes cognizance of the matter wherever applicable.

Reference: Trial By Media, available at: https://www.livelaw.in/trial-by-media/?infinitescroll=1 (last visited on October 20, 2020).

CONCLUSION

Free Press and freedom of press are integral to any democracy. This right is very sacrosanct not just for the media person, but for the citizenry as well. The right of the taker of news item to be informed, to know, to form an opinion which is quintessential for freedom of speech and expression, must be protected.

But when media acts as a 'public court', and pronounces guilty verdict even before the completion of formal investigation and trial in accordance with law, it should be dealt with a strong hand.

The media has these days reincarnated itself into a public court. They do not just make suggestive innuendos but direct allegations and some of them even instigate violence. The media looks upon discovery of facts as a way of earning TRP, to gain more audience. They bother less about the credibility of source but about their meter ratings.

It is also seen that in some cases there is influence of the ruling government on the media houses. China can be seen as the best example for this, where free press is almost an illusion.

In words of Dr. A M Singhvi, while discussing the problems on 'media trial' in a virtual debate hosted by NewsX on the topic 'pros and cons of media trial' as part of Ram Jethmalani Memorial Lecture, observed that:

“The Press Council of India is worse than a paperless tiger, he said. The News Broadcasters

Association (NBSA) is also "woefully inadequate" in dealing with the problem. There is a conspiracy of silence and a clan-feeling which defeats peer review.”

He advocated a stronger role for these self-regulatory bodies, and said that the violators should be 'named and shamed'. Also, there is a need for an independent rating agency.

Lastly, he stressed that the conflict of interest of media houses should be addressed. In this regard, he referred to the Broadcasting Bill, which was proposed many years ago. It had provisions for specified ownership in media and addressed simultaneous cross-holding in media and some other prohibited sectors.