The media has a significant part in shaping societal opinion, and it has the ability to change people’s whole perspectives on numerous events. Heinous crimes must be denounced, and the media would be justified in demanding that those who commit them be punished according to the law. The media, on the other hand, cannot usurp the judiciary’s powers. While a media enslaved by official laws is bad for democracy, the consequences of continuous impunity are far worse. Steps must be aimed at preventing media trials from weakening civil rights, such as giving the media a better description of their rights and responsibilities, and allowing the courts to penalize those who flagrantly disrespect them.
One of the four pillars of democracy is the media. The media plays a critical part in shaping societal opinion, and it has the power to shift people’s whole perspectives on certain events. The media should be applauded for initiating a trend in which the media actively participates in catching the accused. The introduction of cable television, local radio networks, and the internet, particularly in the last two decades, has dramatically increased the reach and effect of the mainstream media. “There is no right where there is no attention,” Jeremy Bentham remarked. The essence of justice is transparency. It is the most powerful stimulant to action and the most certain of all safeguards against improbability.” “The effect of television and newspaper reportage on a person’s image by producing a widespread assumption of guilt, independent of any ruling in a court of law,” the Supreme Court writes.
Media trial, social media, Freedom of Speech, Regulation, Right to Privacy
The term “media trial” refers to the influence of television and print media coverage on a case, in which the media attempts to convict the accused even before the trial begins. The Constitution’s Article 19(1)(a) guarantees people freedom of speech and expression. Article 19(2), however, says that this freedom is subject to reasonable limitations “in the interests of India’s sovereignty and integrity, state security, international relations, public order, morality, or contempt of court, defamation, or incitement to a crime.”
The media has now morphed into a Janta Adalats, or ‘public court,’ and has begun interfering in judicial procedures. The media fully ignores the crucial difference between the convict and the accused by upholding the core concepts of “presumption of innocence unless proven guilty” and “guilt beyond a reasonable doubt.” It entails establishing public opinion against the suspect or accused even before the court takes notice of the matter, in addition to inquiry. As a result, the public is prejudiced, and the accused, who should have been deemed innocent, is presumed guilty, with all of his rights and liberties unrestricted.
In recent years, there have been several cases in which the media has presided over an accused’s trial and rendered a ruling before the court. Priyadarshini Mattoo, Jessica Lal, Nitish Katara murder case, and Bijal Joshi rape case are some well-known criminal instances that may have gone unpunished if not for the involvement of the media. The media, on the other hand, faced criticism for pre-empting the court and stating that Aarushi Talwar’s own father, Dr. Rajesh Talwar, and maybe her mother, Nupur Talwar, were implicated in her murder; the CBI later determined that Rajesh wasn’t the culprit. Media trials are a procedure that has become more common in recent years. Something that started as a way to expose the general public to the truth about cases has now turned into a harmful behavior that is interfering with the legal system. It also emphasises the critical need of ‘responsible journalism.’
History of Media Trial
Certainly, the idea that the media may influence the judicial process dates back to the invention of the printing press. One of the first prosecutions pursued by the media in the twentieth century was Roscoe ‘Fatty’ Arbuckle, who was convicted by the courts but lost his career and reputation as a result of the media coverage. A-G v. Fraill was another case in which Joanne Fraill was convicted to eight months in prison for contempt of court in 2011 by London’s High Court for sharing Facebook messages with the accused in a drug trial while she was on the jury. After asking her Facebook friends to assist her decide on the judgement, a UK jury was removed from a court for child abduction and sexual harassment. When it was found that juries had acquired material on the Internet that had not been provided in court, convictions were reversed and mistrials were proclaimed.
The impact of social media has recently been utilized by families and relatives of those accused of crimes to restart proceedings. Media impact was evident in the incidents of Jessica Lall, Priyadarshini Mattoo’s murder, Nitish Katera’s murder, BMW’s murder, and Aarushi’s murder. Jasleen Kaur, a Delhi lady, accused a guy, Sarvjeet Singh, of sexual harassment after posting a photo of him on Facebook in 2015. After uploading a photo of him on Facebook in 2015, Jasleen Kaur, a Delhi woman, accused a man, Sarvjeet Singh, of sexual harassment. The man was labelled a “pervert” and dubbed “Delhi ka darinda” (Delhi’s Predator) by the media after his Facebook post went viral. Four years later, a Delhi court found the man to be innocent, and he was cleared of all charges.
Individuals do their own inquiry and establish public opinion against the accused before the court takes cognizance of the matter, which is known as a media trial. It instills bias in the public and, in some cases, judges. As a result, rather than being deemed innocent, the accused is presumed guilty. It not only obstructs the “administration of justice,” but it also sends out a deceptive message to the public. Rather of relying on the judges, society begins to generate views based on their own ideas.
Freedom of speech is critical in shaping public opinion on social, political, and economic issues. Similarly, those in positions of authority should be allowed to keep the public informed about their plans and goals; hence, freedom of expression might be considered the mother of all rights. Keeping this in mind, in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India Justice Venkataramaiah of the Supreme Court of India stated: “[f]reedom 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 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. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.” The Supreme Court’s comment above demonstrates that press freedom is critical to the democratic process’s proper functioning. Democracy means government of the people, by the people, and for the people; it is self-evident that every citizen must have the right to participate in the democratic process, and that free and open discussion of public issues is absolutely necessary to enable him to intelligently exercise his right to vote. This clarifies India’s constitutional perspective on press freedom. The Supreme Court emphasised in Printers (Mysore) Ltd. v. CTO that, while freedom of the press is not specifically protected as a fundamental right, it is implied in freedom of speech and expression. Press freedom has long been a prized privilege in all democratic countries, and the press is rightfully referred to as the fourth chamber of government. As a result, it has received widespread support from those who believe in the free flow of information and citizen participation in government; it is the primary responsibility of all national courts to uphold this freedom and to invalidate any laws or administrative actions that infringe on it or are contrary to the constitutional mandate. The Supreme Court of India stated in R. Rajagopal v. State of Tamil Nadu that freedom of the press includes engaging in uninhabited discussion regarding public people’ engagement in public problems and events. However, in terms of their private lives, a fair balance of press freedom, privacy rights, and sustained defamation must be achieved in accordance with the Constitution’s democratic way of life.
The media, particularly social media, has enormous influence in shaping and influencing public opinion. The media attracts the judge’s attention to elements that are not to be addressed in adjudicating the case and may unconsciously affect the judge’s verdict by publicizing inadmissible material and making it public. Then there’s the issue of organizational equity. The court’s decision is based on prejudices and difficulties in the pursuit of justice and fairness. A suspect/accused has the right to a fair trial under our laws, and is deemed innocent unless proven guilty in court. As a result, these biases become a social sin that affects public opinion. The most famous example is the KM Nanavati Case, in which public opinion influenced the accused’s conviction.
In light of the Supreme Court’s findings in different cases and the opinions of numerous jurists, it is obvious that press freedom is inextricably linked to the freedom of speech granted to all citizens by Article 19(1). (a). The press is no more important than any other citizen, and it cannot claim any special privileges (unless explicitly granted by law) that are not available to any other citizen. No specific limitations can be placed on the press that cannot be imposed on any other citizen of the country.
How Media Trials Affect the Right to privacy?
There has always been a basic debate concerning the relative weight of privacy vs public interest when evaluating the contradiction between freedom of the press to broadcast information and the right to privacy. Despite the fact that India lacks codified legislation on the right to privacy, it has gained constitutional legitimacy, prompting the preparation of the Personal Data Protection Bill in 2019. One topic to consider is if the PDPB, which will shortly become India’s privacy legislation, has a provision to protect individuals against media intrusion into their privacy.
Unfortunately, no, because the PDPB has permitted exemptions for processing personal data for journalistic purposes under Article 36(e). Journalists have been granted the freedom to publish their views and opinions on any information that they, as data fiduciaries, believe the general public will be interested in. The purpose behind such unfettered freedom, according to the Indian government, is to guarantee that the press and media outlets are free of extraneous limitations and are not prevented from doing their jobs. However, Article 36(e) creates the sense that the government should have given it more attention before exempting journalists from the PDPB’s duties to safeguard privacy. In reality, the government has not only been unconcerned about media privacy concerns, but has actually oversupplied media intervention and bolstered their authority through this statute. First, the data fiduciary’s role to select which information the masses are interested in does not strike a perfect balance between the basic right to privacy and the need for discretion. Instead of presenting “what the public is interested in,” media outlets should be required to illustrate “what is in the public interest.” Second, the PDPB does not require journalists to meet requirements of need and proportionality before intruding on the right to privacy. The sole stipulation for the media to claim this exemption is that they follow the code of ethics set out by media self-regulatory bodies.
Constitutionality of Media Trial
The right to freedom of speech is enshrined in Article 19 of the 1966 International Covenant on Civil and Political Rights, which states that “everyone shall have the right to hold opinions without interference” and that “everyone shall have 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.”
Nonetheless, this liberty comes with the caveat that using it entails “particular obligations and responsibilities” and is susceptible to “other people’s rights or reputations.” Article 19(1) (a) of the Indian Constitution guarantees the right to freedom of speech and expression. Despite the fact that, unlike the United States of America, freedom of the press is not a separately guaranteed right in India, the Supreme Court of India has recognized freedom of the press under the umbrella right of freedom of speech and expression as envisaged under Article 19(1)(a) of the Indian Constitution.
The Supreme Court had the opportunity to deliberate on the extent of press freedom in In Re: Harijai Singh and Anr. and In Re: Vijay Kumar, and acknowledged it as “an essential requirement of a democratic system of government” and “the mother of all other rights in a democratic society.” The right to information and the right to disseminate through all sorts of media, whether print, electronic, or audio-visual, is included in Art 19(1) (a). The right includes the right to acquire and disseminate ideas and information regarding topics of common interest, according to Hamdard Dawakhana v. Union of India.
The Supreme Court has ruled that trials by press, electronic media, or public agitation are cases that are at best the antithesis of the rule of law since they might result in a miscarriage of justice. A Judge, in the view of the honorable court, must protect himself from such pressure. “No occasion should arise for the impression that the publicity attached to these matters (the hawala transactions) has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence, including the presumption of innocence of the accused unless found guilty at the end of the trial,” the Supreme Court said in Anukul Chandra Pradhan v. Union of India.
Immunity under Contempt of Court Act, 1971
Pre-trial publications are protected from contempt charges under the 1971 Contempt of Court Act. Contempt of court is defined as any publication that interferes with, obstructs, or seeks to obstruct the process of justice in connection with any civil or criminal case that is genuinely ‘pending.’ Certain actions, such as pre-trial media appearances, might jeopardise the accused’s right to fair trial. Such articles may be on the accused’s past convictions, his general character, or his supposed confessions to the police. Media reportage, as seen during the Aarushi Talwar case, where the press went berserk, speculating and pointing fingers even before any arrests were made, is granted immunity under the existing framework of the Contempt of Court Act, 1971, despite the grave threat such publications pose to the administration of justice.
If there is no legislative action, such as broadening the term ‘pending’ to include ‘from the moment the arrest is made’ under the Contempt of Court Act, 1971, or judicial control through gag orders, as used in the United States of America, such publications may proceed unchecked. Because of these flaws, the press is allowed to report colorful stories without fear of repercussions. It feeds on the crime’s brutality and public anger without any accountability, like a parasite.
Right of the Public to know
The essential basis of press freedom, according to the Supreme Court, is the public’s right to know. “The basic purpose, therefore, of the press is to offer full and impartial knowledge about all elements of the country’s political, social, economic, and cultural life,” the Supreme Court explained. It serves an educational and mobilizing purpose. It has a significant influence on popular opinion.” “Freedom of the press” entails “people’s right to receive the true news,” according to India’s Chief Justice, but he also acknowledges that newspapers cannot read like an official gazette and must have a tint of “sensationalism, amusement, and worry.”
“Those who know about the incident may come forward with information, it prevents perjury by placing witnesses under public scrutiny, it reduces crime through the public expression of disapproval for crime, and last but not least, it promotes the public discussion of important issues,” the Supreme Court wrote in the Bofors Case. Two crucial basic parts of investigative journalism are that:
- the issue should be of public interest for the reader to be aware of, and
- an attempt should be made to conceal the facts from the public.
When we talk about the constraints that need to be imposed on the media, it’s important to remember that the restrictions that need to be put on the media must be reasonable and should not hinder or limit the media’s ability to communicate in a significant way. Whereas Article 19 of the constitution allows the media to express itself through the freedom of speech, it’s also worth noting that this language also imposes fair constraints on how one expresses oneself, similar to the restrictions imposed by Article 19 (2) of the constitution. As a result, it is the constitutional obligation of the courts to ensure that such limits do not go beyond the scope of the Constitution of India’s reasonable constraints. The formation of the Press Council of India has had a significant impact on the fact that it has controlled the press’s ability to disseminate biased content. This manner, the material that reaches the viewers stays under control, and anything that violates the law will be considered contemptuous. Punishing individuals who breach this basic norm of court contempt would be the most suitable way to govern the press.
Ineffective legal norms governing journalistic conduct
Under the Press Council Act, 1978, the Press Council of India is established, with the objectives to “preserve the liberty of the Press and to take care of and improve the standards of newspapers and news agencies in India”. To achieve these objectives, it must “ensure on a part of newspapers, news agencies and journalists, the upkeep of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship” and “encourage the expansion of a way of responsibility and public service among all those engaged within the profession of journalism”. The Council, also, enjoys powers to censure. If someone believes that a press agency has committed any professional misconduct, the Council can, if they accept as true with the complainant, “warn, admonish or censure the newspaper”, or direct the newspaper to, “publish the contradiction of the complainant in its forthcoming issue” under Section 14(1) of the Press Council Act, 1978. The formation of the Press Council of India has had a significant impact on the fact that it has controlled the press’s ability to disseminate biased content. This manner, the material that reaches the viewers stays under control, and anything that violates the law will be considered contemptuous. Punishing individuals who breach this basic norm of court contempt would be the most suitable way to govern the press.
Given that these safeguards may only be implemented after the story materials have been published, and because they do not entail especially severe penalties, their usefulness in preventing the publishing of prejudiced reports appears to be limited. The inadequacies of the Press Council’s authority were emphasised in Ajay Goswami v. Union of India: The Press Council is only empowered to warn, admonish, or censure newspapers or news agencies, and it has no jurisdiction over electronic media. The Press Council only has declaratory adjudication authority, and its power is limited to giving directions to the answering respondents arraigned before it to publish particulars concerning its investigation and adjudication.
It, on the other hand, has no additional jurisdiction to ensure that its instructions are followed and that its observations are applied by the wrongdoers. The Press Council of India’s lack of punitive powers has limited its ability to manage errant publications. Along with these powers, the Press Council of India28 has established a group of suggested norms for journalistic conduct. These norms emphasise the importance of accuracy and fairness and encourage the press to “eschew publication of inaccurate, baseless, graceless, misleading or distorted material.” The norms urge that any criticism of the judiciary should be published with great caution. These norms further recommend that reporters should avoid one-sided inferences, and plan to maintain an impartial and sober tone in the least times.
However, because these standards cannot be legally enforced, they are frequently broken. Finally, the PCI has contempt of court powers to prevent unfavourable media stories from being published. The PCI, on the other hand, can only use its contempt powers in relation to pending civil or criminal matters. This limitation ignores the potential influence of pre-trial reporting on the administration of justice.
Media Trial: A necessary evil?
We have a long history of fiercely independent reporting. In reality, the press exposed the majority of the major frauds. The cops simply followed them around. The low-paid journalist deserves credit for obtaining material that appeared to be unreachable to the country’s elite vigilance squads. That’s how the naval case of HDW (Howaldtswerke) and Bofors made the news. That’s how we learned that Narasimha Rao paid MPs from the Jharkhand Mukti Morcha, and Satish Sharma and Buta Singh facilitated the arrangement. At every stage of our political journey, the media has done us proud. The public’s attention is increasingly focused on courts and the lawsuits that are filed there. The Courts are likely to stay under the media’s scrutiny indefinitely now that they have come under scrutiny. More Indians are aware of their constitutional rights than ever before as a result of developments sparked by the media and handled by the courts. The media despises the sub judice rule and says that during a hearing, courts prefer to interpret it very rigidly, prohibiting any discussion of the problems before the Court, even if they are attracting public interest. As a result, there is an urgent need to liberalize the sub judice rule, allowing it to be invoked only in circumstances where there is a clear purpose to sway the outcome of the trial, rather than any conduct that could have a remote chance of doing so. The public interest is another key restraint on media stings and trials. The media loses its footing and attracts the wrath of the court if public interest is absent and ego or manipulative interests emerge.
The value of freedom of expression in a real democracy cannot be overstated. Without an effective forum for expressing one’s views, no democracy can function. Social media has enormous power, and if it is mishandled, it may cause serious harm to a country. Individuals bear the duty for checking and ensuring that no harm is done, and the general people should be more media literate and able to distinguish between reality and fiction. Though social media serves as a forum for bringing people’s voices to the attention of society and legislators, it now has a harmful rather than a beneficial impact. The current incidents, such as the boys locker room incident, demonstrate this. The third and fourth pillars of a democratic system, respectively, are the judiciary and the media. They are necessary for the system to work properly. While the former must respect the latter’s freedom and right to cover and disseminate news of court proceedings in an open justice system, the latter must also exercise due diligence and extreme caution when reporting the former in order to protect the former’s sanctity and ensure a free and fair trial. The best method to regulate the media is to use the Court’s contempt power to penalize those who violate the fundamental code of behaviour.
The media’s freedom of speech and expression cannot be permitted to sway the outcome of the trial. At this point, it would be great to prohibit the trial from being broadcast on social media. Requiring controlled media coverage of cases until the media is expected to profit from financial and sensational factors is an excellent concept. Rather than tipping the scales in favor of one side or the other, social media should serve as a facilitator. The extensive use of social media in the community, common beliefs that social media debates are less ‘official’ than conventional press, and easy access to jurors’ internet information all provide unique problems to the judicial system in the twenty-first century.
- Constitution of India, 1949, art.19(1)
- Constitution of India, 1949, art.19(2)
- Nehal Misra, Social Media Trial: A threat to the society and legal system, iPleaders https://blog.ipleaders.in/social-media-trials-threat-society-legal-system/ (Last visited on February 27, 2022 at 02:37 PM)
- Vanya Verma, Famous Cases of Media trials in India, iPleaders https://blog.ipleaders.in/famous-cases-media-trials-india/ (Last visited on February 27, 2022 at 02:41 PM)
- Yash Singh, Constitutionality of the Media Trials in India: A Critical Study, Pro Bono India https://www.probono-india.in/research-paper-detail.php?id=645 (Last visited on February 27, 2022 at 02:47 PM)
- Attorney General vs Frail & Anr.,  ACD 89
- Nehal Misra, supra note 3
- (1985) 1 SCC 641
- Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, Law Octopus https://www.lawctopus.com/academike/media-trials-india/#_ftn1 (Last visited on February 28, 2022 at 04:48 PM)
- Maneka Gandhi vs Union of India, (1978) 1 SCC 248
- (1994) 2 SCC 434
- (1994) 6 SCC 632
- 1962 AIR 605
- Nimisha Jha, supra note 10
- Nikita Das, Media trials in India: An unwritten carve-out to the right to privacy? IAPP, https://iapp.org/news/a/media-trials-in-india-an-unwritten-carve-out-to-the-right-to-privacy/ (Last visited on February 28, 2022 at 05:09 PM)
- The Personal Data Protection Bill, 2019, s.36(e)
- Nikita Das, supra note 16
- (1996) 6 SCC 466
- 1960 AIR 554
- State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386
- 1996 (6) SCC 354
- Yash Singh, supra note 5
- Press Council Act, 1978, s.13(1)
- Press Council Act, 1978, Section 13(2) (c)
- Press Council Act, 1978, Section 13(2) (d)
- Yash Singh, supra note 23
-  1 SCC 143
- Nimisha Jha, supra note 15
- Nehal Misra, supra note 3
Edited by: Drishti Miglani