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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.
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?
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.
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.