Media Trials: Guilty Until Proven Innocent?

Reading time: 8-10 minutes.

Article 19(1)(a) of the Indian Constitution secures the right to freedom of speech and expression, which though does not directly concern itself with freedom of press, numerous precedents have considered them to be mutually inclusive terms. It was held in Indian Express Newspapers v Union of India (1985 SCR (2) 287)that iota of such freedom would be calculated to be free from interference from any authority “which would have the effect of interference with the content and circulation of newspapers.”

Often known as the fourth pillar of democracy, the media has always played an important role in churning out debates over the existing legal scenario of the country. While the police can be bribed and manipulated by those in power, it is the media that reaches echelons that are out of the reach of the police or the judiciary. For instance, the impeachment of the 42nd U.S. President Bill Clinton or the arrest of Indian tycoon Harshad Mehta was utterly impossible when the powers of the state actors were totally crippled by virtue of their supremacy, power or authority. It was the wide media coverage and the resultant repercussions, that left the authority no choice but to take reasonable action. In this way, the media mirrors the working of the society and promises to bring a positive out-come with greater transparency, accountability and mass awareness.

Also read: Explained: Freedom of expression in India

Media Trials

Even though the benefits are large, the cons cannot be overlooked. The locus of the problem lies in a situation when the media changes its position from being an unbiased reporter to an opinionated influential justice evaluator. The Cases like Aarushi Talwar, Nanavati, Jessica Lal or even Sushant Singh Rajput have been complete examples in defining the role of media in instilling the minds of people with a perspective based on emotional appeals, rather than on a thorough investigative process that analyses the cases based on facts- as done by the investigative authorities. These situations identify themselves as being classic examples of media trials.

Finding its prominence in the case of  RK Anand v. Registrar (Crim. App. No. 1393 Of 2008), such trials refer to the impact of journalistic coverage of a person’s reputation creating a mass perception of a person’s guilt, sometimes without any conclusive evidence and simply based on opinions, regardless of the verdict pronounced by any court of law. The focus remains on the competition with other similarly placed forums, with little importance given to the veracity of facts.

The Constitution definitely does not give unbridled rights to the media with Article 19(2) reasonably restricting its ambit in accordance to the needs of the society and the authority of the government. Such “reasonable restrictions” can be based on a plethora of factors like “state security” or “contempt of court” and “defamation” among others. But applying such standards to the restriction of media influence requires a certain extent of impartiality of the administration which leads to the pertinent question- how far is the journalistic freedom applicable?

Also read: Sedition law in India

Derogation of the Rights of the Accused

The principle of “innocent until proven guilty” was officially incorporated by the United Nations in its Declaration of Human Rights, 1948 (Article 11, Section 1) has been further adopted by the European Convention for the Protection of Human Rights, 1953 (Article 6, Section 2) and the International Covenant on Civil and Political Rights, 1976 (Article 14, Section 2). While the Constitution enables media houses to express their views fearlessly, the same should not be exercised against the basic human dignity enshrined under Article 21 of the Indian Constitution of an accused person, because then it would be a derogation of the aforementioned principle and ideally lead to a violation of the principles of a fair trial. This would be in total derogation of the “Norms of Journalistic Conduct” as enlisted by the Press Trust of India which warns against propagation of fake news or defamation.

Another question that finds its way around the validity of such trials is the scenario when the accused is proven innocent or there is an acquittal. The scrutiny faced by such individuals and the reports based on assumptions still remain in the public space which, regardless of the outcome of the trial remain etched in the minds of the people and the accused has to face such scrutiny for the rest of his life.

Conclusion

The legal recourse to such a situation is present in the form of “Right to be Forgotten” enshrined by the European Union’s GDPR. It comes to the resume of people who have the right to claim erasure of news pertaining to them on the public domain, once such news ceases to be true. Such a recourse is still contingent in the Indian scenario on the passage of the Personal Data Protection Bill. Hence, as per the present legislative framework, the most a person is capable of doing is to claim damages under defamation.

Lastly, the media must be curbed from making an emotional appeal to the minority sentiment when a trial is concerned. The O.J. Simpson and the K.M. Nanavati case, striking a chord with the Black and the Parsi sentiments respectively showed the ability of a media trial in changing the course of the decision by putting a pressure on the judicial system based on false claims of marginalisation of a certain section of the society. Such a situation not only results in injustice but brings death to democracy. Hence, it is high time the recommendations of the 200th Law Commission is followed and media houses are told to assume social responsibility of imparting impartial news upholding the larger interests of democracy.

Author: Shouraseni Chakraborty, student of National University Of Study And Research In Law, Ranchi. 

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Explained: Freedom of speech in India

Reading time: 6-8 minutes.

 “I disapprove of what you say, but I will defend to the death your right to say it.” So well, what do you think this quote means or say what does it signify!! Yes you guessed right it’s about right to freedom of speech. So basically, the right to freedom of speech and expression is a right to express our opinion freely and is granted to all the citizens of India as a fundamental right under Article 19 of the Constitution of India, 1949.

Recently, a similar issue on the topic, right to freedom of speech raised in which the Supreme Court Judge, Justice Deepak Gupta, in response to the amid protests at various parts of the country against the Citizenship Amendment Bill( CAB), National Population Register(NPR), and National Registrar of Citizens(NRC) ruled that “A dissenter is not an anti-national” which means that when one has dissent with the government or proposes some policy contrary to the policy of the government or have some view different to that of government, then he is not to be regarded as an anti-national.

As the person doing so enjoys his right of freedom of speech and expression which means that he may have his own opinion, and can articulate his idea or views without the fear of retaliation. He further said that it’s the right of every citizen, to question, to challenge, to verify, and to ask for accountability from the government and criticism of the executive, the judiciary, the bureaucracy or the armed forces cannot be termed as anti-national. 

There have been incidents where the people showing dissenting voices have been designated by the term anti-nationalists. He further said that “Majoritarianism is an anti-thesis to the democracy” which means that the it is not always necessary that the government is correct, and therefore the citizens have the rights to express their opinion and discontents against the same. Similarly a party who wins the election by 51% of the votes is not the only one who will rule and the other party with 49% of the votes’ is ought to keep silent or has no voice in ruling the country for the next 5 years. He stated that the “superior courts were the protectors of the right of the people and have a duty to ensure that the powers that be do not suppress dissent”.

In a democracy, the right to dissent is the most precious right one can have and the government in such a case has no powers or rights to stifle peaceful protests. It is not necessarily always, that the government should be right, there are some times at which the government may be wrong and thereby the people have the right to protest peacefully and express their opinion. Also having or expressing a contrary opinion does not always mean disrespecting the government or the country.

Further, he opines that Dissent and disagreement are human as well as the constitutional right of the citizens in a democracy and no one should be deprived of that right, especially for the holistic development of the society, where along with the economic rights, civil rights of the citizens have also been protected.  He concluded by his remarks “A free country is one where there is freedom of expression and governance by the rule of law”.

In India, a right to express one’s own opinion, ideas, and convictions freely by spoken words, by writing, through visual representation, or through any other mode can together be said as exercising the right to Speech and expression. When we see the hierarchy of liberty; freedom of speech and expression comes at the first and foremost place, it is the essence of a free and liberal society and therefore must always be safeguarded. Also it’s one of the most important fundamental liberties guaranteed against the suppression of the state.  Liberty to express one’s opinions, expressions and ideas freely without the fear of punishment plays a significant role in the development of a society and ultimately of the state.

Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression to every citizen of India and is the most essential article which embodies the basic freedom of the state. Apart from guaranteed freedom of speech under the constitution and statutes of various states, it is also guaranteed by various international conventions which explicitly talks about the protection of freedom of speech. Some of them are the Universal Declaration of Human Rights(UDHR), the European Convention on Human Rights(ECHR) and fundamental freedoms, International Covenant on Civil and Political Rights(ICCPR), etc.

Article 19 of the Universal Declaration of Human Rights, 1948 states 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”. Freedom of Speech is also required for the discovery of truth through the way of open discussion, fulfillment, and development of self, for expressing personal beliefs and political attitudes, along with active participation in the democracy.                                       

The right to freedom of speech which is enriched in the Preamble under Article 19(1)(a) is not without limitations and is not absolute. If the speech in India is given an uncontrolled license, it would tend to lead to disorder and anarchy in the country.

Thus, the right to free speech and expression can never be confused with a license to make unfounded and irresponsible allegations against the judiciary. Some reasonable restrictions are being imposed on some purposes on the exercise of this right under Article 19(2) of the Indian Constitution which is stated as ” Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or concerning contempt of court, defamation or incitement to an offense”.  In the modern world, freedom of speech also includes the press. The reasonable restrictions would include internet information and censorship, which is an extension of speech and expression the only difference is the medium, which here is the internet.

The case of Romesh Thappar v. State of Madras(1950 SCR 594, 607; AIR 1950 SC 124), was one of the earliest cases to be decided by the Supreme Court in which it declared freedom of the press as a part of freedom of speech and expression. In which Justice Patanjali Sastri,  rightly observed that “Freedom of Speech and Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible”.

In the case of Indian Express v. Union of India, (1985) 1 SCC 641, it has been ruled that the Press plays a very significant role in the democratic machinery of the country. The courts have to uphold the freedom of the press and invalidate all laws and administrative actions that abridge that freedom.

In the recent case of Kanhaiya Kumar v. State of NCT of Delhi, an event was organized by the students of Jawaharlal Nehru University, on the Parliament attack convict Afzal Guru, who was hanged in 2013. There were protests made in the event by various means i.e. through poetry, art, and music against the judicial killing of Afzal Guru. Several allegations were made regarding the students shouting anti-Indian slogans. Therefore there was a case filed against several students on charges under offenses of Sedition. After which Kanhaiya Kumar, the President of the Student Union of the University was arrested after allegations of shouting anti-national slogans. But was later released on bail by the Delhi High Court because of the unclear role and lack of reasonable evidence.

Therefore, in an independent country like India, it is really important for the holistic and healthy development of our country that one should have the right to express his/her dissent by peaceful means. There are 3Ds important in a democracy to run smoothly i.e. discussion, disagreement, and dialogue. One of the basic rights guaranteed in a civil society is the freedom to speak and express our opinion and ideas freely. Freedom and speech are being described as the bulwark of democratic government and is vital in the proper functioning of the democracy.

It is rightly said by Justice P N Bhagwati in the landmark judgment of Maneka Gandhi v. Union of India, that “Democracy is based essentially on free debate and open discussion, for that, is the only corrective of government action in a democratic setup. If democracy means the government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is essential.” It emphasized on the significance of the freedom of speech & expression in a democratic country like India. Thus, it is a human as well as a constitutional right which should never be taken away from the citizens.

Author: Bhakti Rathi from NMIMS Kirit P. Mehta School of Law.

Editor: Tamanna Gupta from RGNUL, Patiala

Article 19: Boon or Bane?

Reading time: 4-5 minutes.

There is an old adage – “Of two evils choose the least”. The makers of the constitution, sagacious people as they were, possibly faced this quandary while framing Article 19. They knew that this could be a double edged sword – on one hand the freedom of the citizens had to be provided for in its deepest interpretation; and on the other hand, there had to be checks and balances to prevent the obvious possibility of misuse that such rights entail.

Indeed, the sheer number of amendments made over time, to this article in order to pre-empt the possibility of the latter, is testimony to the overbearing nature of the seamy side of human conduct. Most of these alterations had to be made within the very first decade itself of the Article coming in. The philosophical dilemma is inherent; and this is not specific to India but evident across the world.

One of the leading members of the committee constituted to draft the Indian Constitution, B.N. Rau, had travelled to the United States, where he had met Justice Felix Frankfurter for a comprehensive discussion on the lines in which Fundamental Rights should be drawn up.

There are strong influences on the Indian Constitution from U.S. principles, especially in the Fundamental Rights – even, the American doctrine of “due process” which had been rejected by the framers of our Constitution at the time of its enactment; had later found its way in, through judicial pronouncements.

Some observations of persons of letters from that country relating to the underlying principles reminiscent of our Article 19 are noteworthy. On one hand, we have Madeline L’Engle saying – “Because to take away a man’s freedom of choice, even his freedom to make the wrong choice, is to manipulate him as though he were a puppet and not a person.”

And on the other hand we have J. Martin Kohe cautioning – “You possess a potent force that you either use, or misuse, hundreds of times every day.” With Jon Ronson chipping in – “Misuse of privilege is seen as the worst sin.” And Adam Hamilton summarizing – “While some misuse their freedom to perpetrate evil, millions respond by feeling compelled to use their freedom to do good.”

From a constitutional angle, the position can be ascertained from the words of Thomas Hardiman – “Those who drafted and ratified the Second Amendment were undoubtedly aware that the right they were establishing carried a risk of misuse, and States have considerable latitude to regulate the exercise of the right in ways that will minimize that risk. But States may not seek to reduce the danger by curtailing the right itself.”

Similar view was adopted by the makers of the Indian constitution as well; the need to balance both sides was reflected in the enabling provisions of 19(1) being followed immediately by the limiting provisions of 19 (2 to 6). But over time, the ingenuity of the crooked human mind got the better of it and have found ways to subvert and exploit the chinks in the provisions.

Thus, we have freedom of speech bringing in hate speeches for ulterior political gains; freedom of assembly being given the shape of rallies and road blockades holding daily life to ransom; trade unions being used to stoke labour militancy leading to closures, lockouts and unjust enrichment of union leaders; freedom of movement and residence as a means for crass urbanization steamrolling natural rural life; freedom of trade in dishing out junk food, intoxicants, pesticide-laced vegetables and hormone-injected livestock; and freedom of occupation to promote privatization of crucial medical care leading to affordability issues for many.

These are just to mention a few – only the tip of the iceberg perhaps. The gravest concern is possibly the juggernaut effect that is getting built up day by day – exploitation of loopholes by some is encouraging newer takers for such unwholesome means. Thus, the unfortunate fact remains that Article 19, instead of conferring the presumable salutary effect of society at large; is effectively proving to be a breeding ground for sharks – people in search of a fast buck willing to throw scruples and niceties to the wind.

But surely, such an important fundamental right cannot be given a go by; and at the same time we cannot go on lengthening the restrictions in 19(2) onwards – in the pursuit of plugging ever-new holes that keep cropping up. Perhaps it would not even be prudent to plug up all the holes – it is a proven fact that liquor ban leads to bootlegging and tobacco ban leads to increased sale of contraband narcotics.

Outright proscription would lead to difficulty in enforcement – monetary costs would go up in terms of the need for more personnel, technology and equipment. Even social costs may be too high – people may turn to armed hostilities to get their demands met leading to chaos, encrypted social media to disseminate propaganda which cannot be controlled and consumption of hooch leading to mass poisoning. All these actual and possible afflictions undermine the very bedrock of responsible use of freedom; that had underpinned the conferral of these rights to the people.

The frustrating situation is akin to what U.S. President Harry Truman had summarized in his famous quote in the context of pressing economic problems – “Give me a one-handed Economist. All my economists say ‘on one hand…’, then ‘but on the other hand…”

Perhaps for now, the only way is to hope that sanity would prevail in the larger plane of social goodwill at some inflection point; and a new horizon would evolve for our progeny. Let us not forget the basic belief reposed on the citizens by the framers of our Constitution – that the rights which they conferred with the trust for responsibility would not be misused.

To conclude, the words of M. K. Hobson come to my mind; with the aspiration that realization of the same will gradually sink in to all and sundry; even though it may take time and the route may be tortuous – “I’ve just always been fascinated by what our belief can do, and what happens when we misuse that”. Let us all look forward to that day; when good sense would dawn – let’s await our tryst with destiny.

-This article is brought to you in collaboration with Sourish Roy from Indian Institute of Technology (IIT), Kharagpur.