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Freedom of speech and expression is a guaranteed fundamental right under Article 19 of the Indian Constitution. It includes within its ambit freedom of press. The Supreme Court has via a number of decisions held that freedom of press is a part of freedom of speech and expression under Article 19 (1) (a). The freedom of speech and expression is often regarded as the first condition of liberty, as every individual is give a right to express his own views and ideas as long as he doesn’t express views to promote disharmony or incite violence. Without freedom of speech there can be no democracy. Hence it carries within itself an utmost regard as the protector of civil liberties.
This freedom of speech and expression is utilised by the media, whether it be a print media or electronic media and in the latest developments the social media, which helps them to express views and broadcast their opinions to the common public. The media often becomes the voice of the public. And with the technological boom of the late 20th century, the media has expanded itself to reach at every corner of the country, thereby, rightfully getting recognized as the fourth pillar of the democracy. And with such recognition media inherits a responsibility to profess the views in a prejudicial manner. The job of the media or the 4th estate is to ensure that:
- Corruption is unearthed or detected.
- Expose protection of criminals by rich and powerful.
- Unearth the “facts” which are tried to be disposed of by administration.
- Build pressure for investigation in a fair and unbiased manner.
Hence the media with its enormous power and reach helps the underprivileged or people from such strata of society which doesn’t get the eyeballs of administration or for some other reasons the administration or the executive fails to protect such individuals. When the media takes up such causes, it does a great service to the society and fulfills its objective in helping achieving the rule of law and administration of justice.
Ideal media coverage of a trial
The above flowchart depicts the various stages through which a trial commences and ends. It starts with discovery of facts or investigation and ends in a judgement. At various stages of this process, the media exercise its right of freedom of press. However the media should exercise such right at different stages differently.
At Stage 1 or discovery of facts: At this stage the powers of the media should never be curtailed. At this stage, when the crime or the offence is supposed to be discovered or the investigation is just starting to take place, the media plays an important role in unearthing the crime. It protects the victims who sometimes are neglected by the state and its authorities because they belong to a weaker section of the society. When the media takes up such causes and tries to unearth and bring forward the plight of such victims, the media does a great service. Many landmark rulings and decisions of Supreme Court and High Courts have taken place because of the media when it exercises it’s at this nascent stage. Few of the landmark rulings worth noting are:
- Ruchika Girhotra Case- where the victim, a girl of 14 years, who was molested by an IPS Officer got a ruling in her favour after 19 years. The officer was ultimately convicted of molestation.
- Jessica Lal Murder Case- where the young aspiring model who was shot dead by the son of a powerful politician, got justice when he was ultimately convicted. Initially the trial court acquitted the accused despite there being dozens of eyewitnesses. Thereafter the media took the course and ultimately the accused was convicted by the High Court.
- The Priyadarshini Matoo Case- where the young law student was raped and murder by the accused, who was the son of a powerful IGP; the trial court acquitted the accused but the media took up the course and ultimately in the High Court, the accused was convicted and the ruling was reversed.
- Nitish Katara Case- where the son of a powerful politician was convicted in a case of honour killing.
- Nirbhaya Case- where the victim was gang raped and ultimately died as a result of such injuries, caused by the accuseds. The accuseds were ultimately hanged to death.
When the media takes up such cases it does a great service. But what about the other stages of trial and how should the media behave in such stages?
At the subsequent stages of Charge Sheet, Trial and Judgement: When the formal process of a trial starts, then the media should restrict itself to express only such views which the investigative agencies or the courts express. It should report on daily happenings inside the court and should refrain on passing its own opinions.
What happens when Media begins a trial by itself?
This phenomenon of media trial began in the 20th Century and has blossomed itself to reach heights in the 21st Century with the advent of electronic and social media to completely abrogate the rule of law. The media constantly in the past few decades has tried to supplant its own views and replace the court rendered verdicts and because of the wider coverage and reach of the news that the rulings of the courts, the people or citizens of the country start embedding within themselves with the view of media rather than the courts- which are alone empowered to deal with the offences.
Of late, the media at various stages of trial and its process gives reports on not only daily happenings of courts and investigation, but provides its ‘own views and reasoning and reading of evidences’. The reporting of crime nowadays not only includes the insights into life and background of accuseds and victims, but also includes backgrounds and the cause of undertaking or happening of such offences- a job which was reserved for the courts to undertake. The fundamental right and law of privacy is thrown into the garbage bin all in the name of transparency. The right of freedom of press is misused in the name of freedom of speech and expression and because of its large presence and reach to the common man; the media portrays itself as the sole guardian of the liberties of the citizens. That to me is not the correct procedure and duty of the media.
With the coming of age of social media, every person, even if he has a bias and has a prejudice can comment on ongoing investigations and trials. Mediums of twitter and Facebook are often made public forums or public courts where the individuals criticize the courts, the judges, the lawyers, the accuseds and sometimes even shame the victims for getting in part of an environment which they believe is less suited to a ‘conservative society’. And these forums along with helping hand of media houses often create a sense of displeasure and pressurize the system, which includes the investigators and the judges, to fine tune themselves as per their reasoning. The sight of #ABC is guilty is often the call for by primetime anchors to arouse the public, to create a sense of sensationalism, lack of civility and complete inclination towards verbal and visual extremism. You get selective leaks by investigating agencies to boost TRP’s.
To understand more thoroughly, let us try to dissect the problem with media trials and pin point some of the mistakes or reasons which leads to the media abrogating the rule of law. Some of those reasons include:
- Because the media houses nowadays are owned primarily by business people, who have deep pockets and interests in earning profits, the facts and often distorted to create an atmosphere of sensationalism, added with mixtures of politics, glamour and corruption to increase the TRP’s or Television Rating Points; which in turn leads to higher returns on advertisements.
- Because of such sensationalism, the rule of presumption of innocence and proof beyond reasonable doubt is hampered; now, the victim is often presumed guilty and has to prove his innocence.
- Standard of reasonable doubt is replaced by presumption of guilt with the adventurism of media trials.
- One factor which is often neglected is that the judges and the investigators or the police are also human beings, and they are also susceptible to getting influenced by outside pressure and public sympathy created by media trials. It also affects their reasoning. The presumption that judges are immune to public hearings and views of public and what are happenings around them in the society is a presumption, far beyond any reasonable standard.
- The media often doesn’t understand the concept of law of evidence. The evidence as presented in court is often challenged by media anchors in primetime television news, where the journalist often acts as the interpreter of evidence and has at its disposal four to five expert jurors; even if India has abolished jury trials; who read the evidence and determine the circumstances to point towards the guilt of the accuseds.
- Court monitored investigations created by media channels driven by public movements compel investigators to find the accused guilty; rather than judging and investigating in a unbiased and unprejudiced manner.
- The toxic triangle of viewership, revenue and ratings often create a hyperbolic situation where the news broadcasted is least concerned with the truth but more concerned with the revenue it generates; thereby not letting the justice prevail but supplanting it with the process of money-making.
- Media verdicts overshadow the judgement of courts because of its wide reach; and in the process the accused that eventually might get acquitted, loses his reputation in the process of media trials.
These are some of the few wrongdoings of media trials; and such wrongdoings can be witnessed in recently pronounced cases. Some of those cases include:
- The 2G Case: Wherein several high-profile politicians and executives and corporate houses were tried in what was known as the 2G Spectrum case. The case was heard and several politicians and businessmen were targeted. They were presumed guilty just because of denial of bail in the first instance. Ultimately, the trial court acquitted the accuseds but so much damage was done in the meanwhile to the reputations of the accused that the whole telecom sector eventually got tanked with. What remained a sector so promising in early parts of the decade is now on the brink of collapse
- Goa land mining case where the court stayed the operations of mining but did not consider the plight of workers associated with such occupation.
- Sushant Singh Rajput Case ; where selective leaks were provided ( clearly visible) by the investigating agency over the death of one promising actor of Bollywood, with the press blaming on all counts the offence of suicide committed by the actor on another promising actress, purportedly in a relationship with the deceased. The primetime news media houses rather than broadcasting the plight of migrants in the devastating effect of pandemic chose to broadcast the glamorous murder-suicide case. No one bothered to protect the privacy of Rhea chakraborty. Her presumption of innocence was replaced by the efforts of media to guilt beyond reasonable doubt. She might or might on get acquittal, but in the meanwhile has completely lost her credibility and image because of media trial.
- Coal Gate case: wherein several licenses of coal allocation blocks were cancelled by the Supreme Court. It was opined by several jurists that the loss to the government over cancelling of such licenses was unprecedented. The matter of allocation was done as a matter of policy but the court cancelled the allocations while dealing with principles of administrative law in which the executive is generally given enough leverage.
- Aarushi-Hemraj Double murder case; wherein the accused father Rajesh Talvar was tried and convicted by media when he was held for 50 days on suspicion of murdering his own daughter. Ultimately the parents were acquitted by the high court but the media with its relentless coverage of the story tarnished the image of the whole family.
These are only some of the cases where because of the media either the exchequer observed losses or where the reputation of the individual was shredded to tears. This damage when once caused is irreparable. So the media while exercising its right to freedom of press guaranteed under freedom of speech and expression under Article 19 (1) (a) must undertake a responsibility to ensure that the powers they exercise are used in a unbiased, unprejudiced and effective manner. Then only the true job of the 4th estate which acts as the protector of individual liberty will be realised.
However, one should also introspect and look into the question as to why people from different sections of society carry so much trust and faith in the media, which is presumably, not working in an effective and prudent manner. The reasons are manifold and it is necessary for our discussion to highlight those reasons; which will help us to understand as to why people put so much faith in media. The reasons are as follows:
- The 4th estate or the media has become, in effect, the viewpoint of the public because of the failure of first three states- i.e. the Parliament, the executive and the judiciary.
- There is public perception that the powerful executives/politicians/rich corporates get away from their negligent acts by exercising pressure on the administrative bodies or investigative agencies.
- Evidence as presented by media, is blindly accepted by the common man as the evidence as per law. It is neither relevant for the public to understand the law of evidence nor the media wishes to inform the public as to what ‘evidence in law’ means. Hence, the evidence as presented by the defence or the prosecution is often discredited with and the evidence of media is considered as paramount.
- There is complete lack of confidence in the common public about the nature and work of the police or investigative agencies. The incidences of human rights violation while the accuseds are in custody, extra judicial killings in name of encounters and complete lack of discipline and fairness and transparency makes the image of the police shady in eyes of the public. There is common belief that you can get away by paying a modest bribe to the officer concerned rather than go through the process of law effectively.
- There is also the belief that the judicial system is ill-quipped to deal with the cases with the growing pendency of litigations in courts gives the impression that justice, even If achieved, will be considerably delayed. The public is exalted when the accuseds are denied bails in the first instance, as in the eyes of public, the amount of deterrence than an individual observes while denying bail is the only time that the accused will be behind bars.
- The public has started to believe to not let a guilty to be remained free rather than non-guilty to be behind bars. This is direct cause to the lack of legal education prevalent in the country.
- Therefore because of above reasons coupled with the factors of circumstances, political necessities, glamour, TRP, sensationalism, verbal extremism inevitably leads to a situation where the media starts distorting facts for generation of revenue, as ultimately media houses are run by business people or corporates having deep economic interests in the society.
- This transparency and working of the media houses needs to be understood by every individual and he/she should be able to formulate his/her own opinion as to what constitutes a news and what remains a fake news.
After understanding the issue of media trial and its causes and concerns, the issue is not to be left alone without any remedial measures be provided for. As ultimately, if there are no remedial measures sought for, the entire discussion will remain as mere ink on paper. So after understanding the concept of media trial and looking at the various circumstances that govern the media trial, following measures, as a course of remedy are provided for, which includes:
- There should be a mechanism for accountability of the press. The Press should create a body which self-regulates the media.
- The concerned authorities i.e. the National Broadcasting Standard Authority, the ministry of electronics and information broadcasting should create an independent body which remains in charge of ensuring that journalistic rules and regulations are maintained.
- The courts should strictly invoke the contempt of courts act and impose heavy penalties on media houses if they broadcast news related to an ongoing trial, which tampers with the rule of sub-judice.
- The remedy of injunction, whether permanent or temporary, against broadcasters of such news stories should be granted by considering all the rules related to laws of injunction.
- Establishment of defamation tribunals- so as to fast-track disputes of defamation if an individual is injured by the publication.
- Instead of passing mere obiter dictum, the courts should start invoking the rule of ratio decidendi and impose heavy costs on media houses whose stories hamper the proper administration of justice.
- There needs to an independent and transparent TRP calculation agency whose reports should be published in public domain.
- The parliament should consider reigniting the debate of the broadcaster’s bill which is pending in the parliament since 1997.
- The media houses should be self-financed; the shareholding of such houses must not depend on whims and fancies of corporate individuals; but the news agencies should devise mechanisms to make themselves truly independent of such players.
These are only few remedies, which if implemented, even partially, will go on simplifying the role that media houses play. The job of the media is certainly to act as the fourth estate, to protect individual liberties and to express its own views, but in the process it should not supplant its own views with the views of courts or tribunals. Freedom of speech and expression guaranteed under Article 19 is always subject to reasonable restrictions; and a proper legislation can always be enacted to regulate conduct of media while covering trials. Pre-trial publicity, trial by media often robs the accused of his fundamental right to a fair and impartial trial. Because of false narratives created, the accused is often denied his right of a competent counsel, the hearing by an impartial judge and the receptiveness of a unbiased society. What the trial run by media does is simply abrogate the rule of law, which under any given circumstances, howsoever desperate be the situation, must prevail.
The freedom of press is undoubtedly recognized as a part of freedom of speech and expression, a fundamental right guaranteed under Article 19 but the right to a fair trial, a trial which has no bias, no opinion, which weighs the evidence as presented in court and a trial in which the accused is represented by a proper counsel is recognized as a part of Article 21 which protects right to life. This fundamental right guaranteed under Article 21 is nearly elevated to the extent of absolute right, a right greater than any fundamental right and thus must prevail over freedom of speech under Article 19. When one therefore looks in all fairness, the rights of accuseds and victims should therefore, be given primacy over the right of public, even more so after the landmark case of Justice KS Puttaswamy and others versus Union of India wherein right to privacy is also included as part of fundamental right.
When one considers every aspect discussed as above it is concluded that one needs to take a harmonious route while dealing with such sensitive issues. On one hand the freedom of press should not be curtailed but on the other hand the freedom of press should not be exercised in a manner which abrogates the rule of law and violates the rights of accused of a free and fair trial. The correct approach of media should be to bring forth the causes, which the administration/executive/system wants to bury deep within the earth’s core. That is to the limited extent the media should exercise its right of freedom of press. When the formal process of trial begins, the media should refrain itself from giving its own opinions as to what are the facts/evidences/circumstances that lead to such an offence. It should only comment on the daily happenings as they stand and must leave the people, to judge for themselves. When this process is followed, the media, as the fourth estate, performs its role with the intention and object for which it was created.
Author: Shaurya singh sanawar
Editor: Kanishka Vaish, Senior Editor, LexLife India.