Deeksha Malik and Harsha Jeswani ((Students of Law, National Law Institute University, Bhopal)).
Media plays an educative, evocative and mobilising role in society. It is difficult to envisage a democratic society bereft of a free press. In recent times, however, media has come under sharp criticism for over-stepping the boundaries of a fair and balanced reporting. This is particularly true of investigative reporting, wherein the media is often found conducting parallel trials and pronouncing its own verdict of guilt or innocence of an accused even before he is adjudged so by a court of law. As a result, the accused is often deprived of his right to a fair trial which, in turn, leads to miscarriage of justice. This paper examines the phenomenon of ‘media trial’ and its impact on the administration of justice in the context of India, and the existing legal framework in this regard.
No judge fit to be one is likely to be influenced consciously except by what he sees and hears in court and by what is judicially appropriate for his deliberations. However, judges are also human, and we know better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process. While the ramparts of reason have been found to be more fragile than the Age of Enlightenment had supposed, the means for arousing passion and confusing judgment have been reinforced. And since judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print ((Frankfurter J of the US Supreme Court in Pennekamp v. Florida, 328 US 331 (1946).)).
Media has, since the 17th century, emerged as one of the most powerful and indispensable components of democracy. The Supreme Court of India once observed:
In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments ((Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India 1985(2) SCR 287)).
However, while performing its fundamental task of news reporting, it has, in recent years, assumed the role of a ‘public court’, wherein it carries out trials parallel to those of the court of law, does its own investigation, and generates up a public opinion against the accused even before the court gives the final verdict. What eventually occurs is that the fundamental principle of criminal jurisprudence, that is, ‘presumption of innocence until proven guilty’ falls into oblivion. The accused is often denied of his right to fair trial. Such publicity also convinces the witnesses to customize their testimony. Even the judge, howsoever meritorious and just he is in delivering the judgement, cannot be expected to be entirely immune from media sensationalism. This is what ‘trial by media’ connotes.
FREE SPEECH vis-a-vis FAIR TRIAL
The right to freedom of expression is one of the basic human rights enshrined in some of the significant international human rights documents. Article 19 of Universal Declaration of Human Rights, 1948 ((Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).))provides that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Similarly, Article 19 of the International Covenant on Civil and Political Rights, 1966 ((International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Rep. 102-23, 999 U.N.T.S. 171))states that “Everyone shall have the right to hold opinions without interference” and the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Thus, freedom of speech and expression is the inseparable element of a democratic society. It is regarded as a pre-condition of liberty and is therefore considered as the mother of all other liberties.
Freedom of speech enjoys special position as far India is concerned. This could be substantiated by the fact that the Preamble to our Constitution itself ensures to all citizens liberty of thought, expression, belief, faith and worship. In pursuance of the same, Article 19(1)(a) guarantees the right to freedom of speech and expression. Unlike the US Constitution, India does not have a separate provision for freedom of press. However, the Supreme Court in a score of cases has recognised this freedom within the ambit of the freedom of speech and expression as envisaged under Article 19(1)(a) ((See Express Newspaper v. Union of India, (1959) SCR 12; Bennett and Coleman v. Union of India, AIR 1973 SC 106; Indian Express Newspaper v. Union of India, (1985)1SCC 641.)).
The right of freedom of press is significant not only from the point of view of an editor or a journalist, but also for the public at large, which has the right to know and be informed. The renowned Indian economist Mr. Amartya Sen, for instance, remarked, “A free press and the practice of democracy contribute greatly to bringing out information that can have an enormous impact on policies for famine prevention… a free press and an active political opposition constitute the best early-warning system a country threatened by famine could have ((AMARTYA SEN, DEVELOPMENT AND FREEDOM 180-181 (Oxford University Press 1999).)).”
However, the right of the press to free speech should be balanced with an equally significant right of the accused to a fair trial. Assurance of a fair trial is the first imperative of the dispensation of justice. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system ((Amarinder Singh v. Parkash Singh Badal, (2009) 6 SCC 260.)). Such fair trial would only be ensured if there is “an impartial Judge, a fair prosecutor and atmosphere of judicial calm ((Zahira Habibulla Sheikh v. State of Gujarat, (2004) 4 SCC 158.)).”
Besides the right to fair trial, other rights of the litigants are also at stake when media tends to indulge in prejudicial reporting. For instance, every person has the right to privacy, a right that is implicit in the right to life and liberty guaranteed by Article 21 ((R.Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.)). Often, the right to privacy of the accused/victim and the right of the press to free speech are at loggerheads. Consider the case of rape of an international student studying at the Tata Institute of Social Sciences (TISS), where the privacy of the girl was compromised by the media by revealing her name, the name of the institution, the course she was pursuing, the manner in which the incident took place, and so on ((Sonal Makhija, Privacy &Media Law, THE CENTRE FOR INTERNET AND SOCIETY (Oct. 20, 2014, 10:00 AM), http://cis-india.org/internet-governance/blog/privacy/privacy-media-law.)). Instances of such unlimited and unwanted media interference abound.
In this light, some questions assume significance. Should the media be allowed to conduct parallel trials with those of the court? Does such reporting actually interfere with the administration of justice? If it does, are there sufficient safeguards within the existing legal framework to prevent miscarriage of justice through such interference? The following sections aim to shed light on these issues.
EVILS OF MEDIA TRIAL
Twenty years ago, O.J. Simpson, the football legend and media celebrity, was accused of allegedly killing his ex-wife and her friend Ronald Goldman. Even before the case came up for trial, media extensively covered the story, publicizing some of the incriminating details of the case. Even the past conduct of the star towards his wife was made known to the public. The media frenzy became so excessive that the jurors were confined in a hotel and kept under supervision so that they are immune from such sensationalism ((See WAYNE OVERBECK & GENELLE BELMAS, MAJOR PRINCIPLES OF MEDIA LAW 312-313 (Cengage Learning 2011).)). Nevertheless, the media carried stories accusing some of the jurors to be impartial.
Despite such excessive publicity by the media, American courts have largely advocated for the rights of the press, though initially, the emphasis was on the rights of the accused. However, the Supreme Court has laid down different tests in a series of cases to ensure that such publicity does not adversely affect the criminal justice system. In Rideau v. Louisiana, ((Rideau v. Louisiana, 373 U.S. 723 (1963).))for instance, the Court laid down the test of ‘presumed prejudice’. Before the trial began, an interview of the accused was telecast, wherein he admitted to his involvement in the commission of robbery, kidnapping and murder. The counsel for the accused pleaded for a change in the venue of the trial, contending that the interview had adversely affected the right of the accused to a fair trial. The trial court rejected the plea, even though many potential jurors from the local community had admitted to seeing the televised confession. On appeal, the Supreme Court reversed the conviction, holding that the trial was a mere “hollow formality” and that the interview so telecast had adversely affected the defendant’s right to fair trial. It ordered for a new trial to be conducted at a different venue. The Court modified the test in Murphy v. Florida, ((Murphy v. Florida, 421 U.S. 794, 798 (1975).))holding that juror exposure to information about a defendant’s prior convictions or to news accounts of the crime do not alone deprive the defendant of the due process. One must focus on the ‘totality of circumstances’ to see whether the trial of the accused was fundamentally fair. In a later case, the Court held that “One seeking to have his conviction nullified on the ground that he was denied a fair trial to an impartial jury due to adverse pre-trial publicity ordinarily must demonstrate an actual, identifiable prejudice attributable to that publicity on the part of members of his jury.” ((Mayola v. Alabama, 623 F.2d 992 (1980).))The Supreme Court, thus, laid down the test of ‘actual prejudice’.
Like USA, India has witnessed an upsurge in prejudicial media reporting. In 2008, the murder of the fourteen-year-old Aarushi Talwar ((Dr. Rajesh Talwar And Another v. Central Bureau Of Investigation, 2013 (82) ACC 303.))attracted sensational media coverage. Within hours of the murder, several television crews and reporters were in and out of the Talwar house, trampling all over the evidence ((Aarushi Talwar: India’s ‘most talked-about’ murder verdict, BBC NEWS (Oct. 28, 2014, 04:30 PM), http://www.bbc.com/news/world-asia-india-24987305.)). The media extensively talked about the alleged sexual relationship between the girl and the Talwars’ male servant as also the extra-marital affair of her father with a co-dentist. The excesses of the media prompted the Supreme Court bench consisting of Justice Altamas Kabir and Justice Markandey Katju to caution the media to be careful in its coverage of the case, and refrain from indulging in character assassination of the deceased and her father. It denounced the “sensationalist” media reports that were devoid of “sensitivity, taste and decorum” ((Aarushi murder case: SC slams ‘sensationalist’ media, THE INDIAN EXPRESS (Oct. 28, 2014, 01:00 PM), http://archive.indianexpress.com/news/aarushi-murder-case-sc-slams-sensationalist-media/658048/.)). “Media has played a huge role in creating a perception about us, and it has damaged our case,” Dr Nupur Talwar told the BBC in November, 2013.”The dignity of my 14-year-old has been shattered: she cannot defend herself. Every day I apologise to her for what people have done to her. I, as a mother and a human being, cannot understand. Every night I have to say sorry to her ((Supra note 16.)).”
The 2001 Parliament attack case ((Mohd. Afzal v. State (NCT of Delhi), (2005) 11 SCC 600.))convict Afzal Guru, too, fell prey to the lynch mob that was the product of excessive and unwanted media interference. Guru was denied the basic rights which must be accorded to every accused, especially in such grave offences. His defence produced no witnesses at all; his lawyer never met him; his statements were not verified through independent witnesses; out of 80 witnesses put forth by the prosecution, 56 witnesses, including some of the crucial ones, were not cross-examined ((Shuddhabrata Sengupta, A Political Hanging: Nirmalangshu Mukherji, KAFILA (Oct. 26, 2014, 03:00 PM), http://kafila.org/2013/03/18/a-political-hanging-nirmalangshu-mukherji/.)). Despite such flaws, he was sentenced to death and subsequently hanged on February 9, 2013. The Apex Court, while confirming the death penalty, said, “The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender ((Mohd. Afzal, supra note 19, at 760.)).” From his arrest to his conviction, the media went too far in generating this “collective conscience”, largely reporting the versions of the police and the prosecution, without due regard to his side of the story. In his clemency petition to the President, he said:
I told the media whatever ACP Rajbir asked me to tell them except for implicating Geelani. They wanted me to say (that) he was the mastermind (and) that he was somehow linked to Al Qaeda but I refused to do this. ACP Rajbir shouted at me and told me that I had been told not to say anything positive about Geelani. One of the journalists present at the time, Shams Tahir Khan testified to this fact when he was called as a Defence witness for Geelani. Even now when my petition is pending before you I am being tried by the media. The officers of the Special Cell knew that they had conducted an unfair and unjust trial and that is why the DCP Ashok Chand denied on oath that he had any knowledge of the media conference ((Excerpt from Afzal Guru’s clemency petition before Dr. A.P.J. Abdul Kalam, “An Application under
Article 72 of the Constitution of India for grant of pardon/remission of death sentence of Mohammad Afzal”. See NANDITA HAKSAR, THE AFZAL PETITION: A QUEST FOR JUSTICE 24 (Bibliophile South Asia 2007).)).
Similarly, S.A.R. Geelani, another accused in the case, was initially sentenced to death despite paucity of evidence against him. The media portrayed him a terrorist, relying mostly on the telephonic conversation between him and his brother. On appeal, the Delhi High Court acquitted him, describing the prosecution’s case as “at best, absurd and tragic ((Zehra Khan, Trial-by-Media: Derailing Judicial Process in India, 1NALSAR MLR 90, 104 (2010).)).”
The Supreme Court has come down heavily on the media for interfering with the due course of justice through prejudicial reporting. In State of Maharashtra v. R.J. Gandhi ((State of Maharashtra v. R.J. Gandhi, (1997) 8 SCC 386.)), the Court, while accepting the plea of the accused for a change in the venue of the trial on the ground that his right to fair trial was adversely affected due to public outcry, observed, “A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against such pressure and he is to be guided strictly by rule of law.” In another case, the Court cautioned that the publicity attached to the instant matters must not dilute the emphasis on the essentials of a fair trial and the principle of presumption of innocence of the accused unless found guilty; the credibility of the judicial process should not be undermined in any manner ((Anukul Chandra Pradhan v. Union of India & Ors, 1996 (6) SCC 354.)).
In 2013, the Court passed a landmark judgment in the case of Sahara India Real Estate Corp. Ltd. & Ors. v. Securities & Exchange Board of India & Anr. ((Sahara India Real Estate Corp. Ltd. & Ors. v. Securities & Exchange Board of India & Anr., (2012) 10 SCC 603.)), also known as the Media Guidelines case. The Court laid down guidelines pertaining to reporting by the media of matters that are sub-judice. The Court observed that open justice is the cornerstone of our judicial system ((Id. at 719.)). However, this right is not absolute and can, therefore, be restricted by the court if the necessities of justice so demand. In pursuance of the same, orders prohibiting publication for a temporary period during the course of trial can be passed in exercise of the inherent powers of the court. The Court highlighted the significance of postponement order in cases where a fair and accurate reporting could nonetheless give rise to substantial risk of prejudice not in the pending trial, but in a subsequent or connected trial. Such order not only safeguards fairness of such later or connected trial, but also prevents possible contempt ((Id. at 715.)). Further, passing of such order would not be violative of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, for such freedom is subject to restriction on the ground of “contempt of court” provided under Article 19(2). Trial by newspaper comes in the category of acts which interferes with the course of justice or due administration of justice ((Id. at 721.)). Presumption of innocence is a human right, and if it is found by the appropriate court that there has been infringement of such presumption by excessive prejudicial publicity by the press, the court can, under its inherent powers under Article 129 or Article 215, pass orders for postponement of publication for a limited period if the applicant is able to show substantial risk of prejudice to the pending trial ((Id. at 722.)). However, such an order can be passed only when other alternative devices such as change of venue or postponement of trial are unavailable.
MEDIA AS A WATCHDOG
Despite instances of excessive coverage of criminal trials, media has emerged as an extremely powerful force that keeps the citizens informed, vigilant and educated. It acts as a watchdog, maintaining a system of checks and balances that not only brings out the truth, but also ensures a transparent and accountable system. Indeed, “the survival and flowering of Indian democracy owes a great deal to the freedom and vigour of our press ((Amartya Sen, The glory and the blemishes of the Indian news media, THE HINDU (Oct. 25, 2014, 6 PM), http://www.thehindu.com/todays-paper/tp-opinion/the-glory-and-the-blemishes-of-the-indian-news-media/article2782016.ece.)).”
An apt illustration in this regard is the Jessica Lal murder case. ((Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352.))Lal, a struggling model, was shot dead in a bar on April 29, 1999 by Manu Sharma, son of Venod Sharma, a powerful Congress minister in Haryana. Sharma was charged with murder, while his friends were accused of other related crimes. However, four of the witnesses, who had earlier deposed that they had seen the murder happen, turned hostile. Others who had attended the party, too, made similar claims. Shyan Munshi, Lal’s friend who also worked at the same bar, completely changed his story; as for his earlier testimony recorded with the police, he said that the writing was in Hindi, a language he was not familiar with, and it should be repudiated ((Lisette Alvarez, Justice for Jessica: A Human Rights Case Study on Media Influence, Rule of Law, and Civic Action in India, THE FLORIDA STATE UNIVERSITY (Oct. 30, 2014, 10:00 PM), http://diginole.lib.fsu.edu/cgi/viewcontent.cgi?article=1046&context=uhm.)). On this basis, the Court acquitted all nine accused. This sparked a huge public outcry, and it was here that the media stepped in. There were petitions by hundreds of thousands of people expressing their dismay over the judgment that the media presented to the President. Newspapers carried such headlines as “No one killed Jessica”, and TV channels ran SMS polls asking the public to express their opinion on the issue. The zealous efforts of the media forced the Delhi High Court to admit an appeal by the Delhi Police against the acquittal. Meanwhile, some media channels carried out an undercover operation in the form of an interview with Shyan Munshi, who was made to believe that he was being auditioned for a film. The interview revealed that he could clearly speak, read and understand Hindi. Another interview conducted by a New Delhi-based magazine unveiled large sums paid by Mr. Venod Sharma to the witnesses as hush money ((Id.at 6.)). Finally, Manu Sharma was held guilty for Lal’s murder and sentenced to life imprisonment. Similarly, in the BMW hit-and-run case, where a rich young man mowed to death six people while speeding in his BMW, an English news channel carried out a sting operation in which the defence lawyers were shown offering money to a witness ((Sanjeev Nanda’s friend acquitted , THE HINDU, September 3, 2008, at 1.)). Not only were the advocates banned by the Delhi High Court from practicing for four years, but also the accused was held guilty for the said murder. These, and many other high-profile cases involving the wealthy and powerful, would have gone unpunished but for the relentless efforts of the media.
RECOMMENDATIONS: THE 200TH LAW COMMISSION REPORT
The Seventeenth Law Commission took suo motu cognizance of the issue having regard to the extensive prejudicial coverage of crime and information about suspects and accused, both in print and electronic ((200th Report on Trial by Media: Free Speech and Fair Trial under Criminal Procedure Code, 1973, LAW COMMISSION OF INDIA (Oct. 24, 2014, 05:30 PM).)). The Commission has observed that “the amount of publicity which any crime or suspect or accused gets in the media has reached alarming proportions. Innocents may be condemned for no reason or those who are guilty may not get a fair trial or may get a higher sentence after trial than they deserved. There appears to be very little restraint in the media in so far as the administration of criminal justice is concerned.” The Report has taken note of the failure of the Contempt of Courts Act, 1971 to acknowledge any contempt that might take place during the pre-trial period. For instance, s. 3(2) of the Act provides that the publication of any matter in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court. As per the Explanation to s.3, ‘pendency’ in a criminal case starts only from the time when the charge sheet or challan is filed or summon or warrant is issued by the criminal Court. The Report has pointed out that pre-trial excessive publicity about an accused might prejudice a fair trial and characterize him as one who has indeed committed the crime, thereby interfering with the due administration of justice and calling for contempt of court proceedings ((Id. at 12.)). Therefore, it has suggested that the date of “arrest” should be treated as the starting point of ‘pendency’ of a criminal proceeding. Further, it has suggested that publications pertaining to the character of the accused, previous convictions, confession, judging the guilt or innocence of the accused or discrediting witnesses could also amount to criminal attempt. Also, the High Courts should be vested with the power to restrain the press from publishing or broadcasting such prejudicial reports. Besides, it has recommended that journalists be trained in certain aspects of law relating to freedom of speech and expression found in Article 19(1)(a), the restrictions it is subject to, as also human rights, law of defamation and contempt ((Id. at 232.)).
More recently, the 2010 edition of “Norms of Journalistic Conduct” issued by the Press Council of India has taken into account adjudications and other pronouncements covers to a large extent almost every aspect of compulsions and compunctions in journalistic practice ((Norms of Journalistic Conduct, PRESS COUNCIL OF INDIA (Nov. 02, 2014, 01:30 PM).)). Norm 1 states that the Press shall eschew publication of inaccurate, baseless, graceless, misleading or distorted material. All sides of the core issue or subject should be reported. Unjustified rumours and surmises should not be set forth as facts ((Id. at 7.)). Dealing with investigative journalism, Norm 26(f) provides that the reporter must not approach the matter or the issue under investigation, in a manner as though he were the prosecutor or counsel for the prosecution. The reporter’s approach should be fair, accurate and balanced. The tone and tenor of the report and its language should be sober, decent and dignified, and not needlessly offensive, barbed, derisive or castigatory, particularly while commenting on the version of the person whose alleged activity or misconduct is being investigated. Nor should the investigative reporter conduct the proceedings and pronounce his verdict of guilt or innocence against the person whose alleged criminal acts and conduct were investigated, in a manner as if he were a court trying the accused ((Id. at 26.)). Finally, Norm 26(g) obliges the investigative journalist newspaper to be guided by the paramount principle of criminal jurisprudence, that is, ‘innocence of the person unless proven guilty beyond reasonable doubt’.
Media has an important role to play in any democratic society. Its job is to make people aware of the happenings which have a direct or indirect bearing on them. While doing so, it must not indulge in irresponsible and excessive reporting based on unsubstantiated allegations. Extra care should be taken in case of investigative reporting, keeping in mind the rights of the accused, particularly the right to fair trial and the presumption of innocence, as well as the effective administration of justice. Irrespective of any changes that Parliament may introduce with regard to the law of contempt as suggested by the Law Commission, the media itself must take up the responsibility to confine itself to only fair, accurate and balanced reporting.