Media became a boon to enlighten people and make them more aware and concerned about the whole world. The democracy has essentially three pillars viz., legislature, executive and judiciary. Media has become the fourth pillar of the democracy.[i] It highlighted the social, economic, cultural and legal problems of the society. The Media in India stands on the pillar of the Constitution of India.[ii]
The purpose of the media eventually changed with the progression of the time. Media intruded the role of the judiciary and landed up in investigating about the truthfulness of the subject matter rather than just reporting the bare facts of the news. In the largest democratic set-up, the termite of corruption ate away the underlying foundation of the judicial system. The criminal justice system needs rejuvenation. The litigants follow unethical steps to save the accused from conviction by: pressurizing the defense to withdraw the case, greasing the hands of public authorities in distortion of evidence, etc. The victim is deprived of the protection. A consequence of this enormous institutional imbalance has been the pre-emptive media coverage of criminal trials.[iii] Media has made pre-judicial stance in the minds of the public by their sensational style of journalism.
Media Trials v. Freedom of Speech and Expression
Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. Similarly, the persons in power should be able to keep the people informed about their policies and projects, therefore, it can be said that freedom of speech is the mother of all other liberties.[iv]
Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, has stated:
“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. 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.”[v]
The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential.[vi] This explains the constitutional viewpoint of the freedom of press in India.
Media Trials v. Fair Trial
The right to fair trial has been held to be part of the right to life and liberty guaranteed by Article 21 of the Constitution.[vii] The “Right to Fair Trial”, i.e., a trial uninfluenced by extraneous pressures is recognized as a basic tenet of justice in India. Provisions aimed at safeguarding this right are contained under the Contempt of Courts Act, 1971 and under Articles 129 and 215 of the Constitution of India. Our criminal justice system adheres to ‘presumption of innocence’ i.e. a person is presumed innocent unless proved guilty by the competent court. The Media’s role is to publicize the news objectively which implies to the publicity of factual part and public issues of any news and not to adjudicate upon any case. The electronic media and print media are now submerged in an unappeasable competition of TRPs(Television Rating Points) and sales respectively. The Media is directed by the Press Council of India neither to give excessive publicity to accused, victims, witnesses nor to disclose any confidential information that may hamper or prejudice investigation nor identify witnesses as they may become hostile nor to run any parallel trial putting undue pressure on the judge or jury adjudicating upon the case.[viii]
In the case of Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court has held,
“It is reflected in numerous rules and practices…. fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. A Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.”[ix]
In the case of Vijay Singhal and Ors. vs. Govt. of NCT of Delhi and Anr., it was held that,
“The object of a trial is to meet the ends of justice, and if, in order to achieve that end there is a competition, in a manner of speaking, between the right to a free trial as against the right to freedom of expression, the former would trump the latter.”[x]
In the case of Sahara India Real Estate Corporation Ltd. and Ors. vs. Securities and Exchange Board of India and Anr., the Supreme Court laid in its judgment,
“The media has a right to know what is happening in courts and to disseminate the information to the public which enhances the public confidence in the transparency of court proceedings. As stated above, sometimes, fair and accurate reporting of the trial (say a murder trial) would nonetheless give rise to substantial risk of prejudice not in the pending trial but in the later or connected trials. The postponement order not only safeguards fairness of the later or connected trials, it prevents possible contempt by the Media.”[xi]
In the plethora of judgments, the High Court and Supreme Court have criticized the trial by media of the sub-judice matter as it prejudices the jury’s opinion on the specific case and even on later similar cases. The Press Council of India has also specified in their Norm of Journalism Conduct 2010 edition to refrain from doing such sensational journalism.
Media Trials v. Right to be Represented
The media have started to force the lawyers not to take up the cases of accused, infringing the rights of accused to be represented by a lawyer of his choice before the Court. The media trial is in this manner against the principles of natural justice. When eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused in the case of Jessica Lal murder case, he faced societal objections. Kamini Jaiswal, who represented SAR Geelani, a Delhi University professor, accused of the Parliament attack 2001, was called “an anti- national”. Similarly Prashant Bhushan, the counsel for Yakub Memon was also opposed.[xii]
In this instance, the lawyers’ security comes in danger due to which they are enable to fulfill their ethical duty to provide legal aid in criminal matters.[xiii] Consequently, media trial affects the principle of natural justice.
In a democratic country media has an indispensible role. All the pillars of the democracy need to function independently without intruding upon the functions of others. Media had intruded upon the sanctity of judiciary in the high profile criminal cases like Inderani Mukerjee case,[xiv] Priyadarshani Matoo case,[xv] Jessica Lal case,[xvi] etc. Some accused are free due to the intervention of media.
The legislature has to perform great responsibility while drafting the laws on trial by media without curtailing their freedom. Media has the right to comment and discuss on the judgments of the case but they have no freedom to start a trial of sub-judice matter. The accused’s right to fair trial is always on zenith than the freedom of media to start the trial of his pending case. Media trial vitiates the purpose of justice. After all, Judges are also human beings, they are not only acting to perpetuate their own power (although in fact, often very concerned with their prestige, but also normative actors conditioned by their legal upbringing,[xvii] one must be chary of placing undue weight on judicial interpretation as authoritative.[xviii]
[i] Printers (Mysore) Ltd. v. CTO, (1994) 2 SCC 434.
[ii] India Const. art. 19(1)(a).
[iii] 2 U. Balt. J. Media L. & Ethics 28 2010.
[iv]Freedom of press in India : Constitutional Perspectives http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=6752 (last visited on 13/03/2018 at 11:15 PM).
[v] (1985) 1 SCC 641 & 664.
[vi] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
[vii] State of Maharashtra v. Champala, AIR 1981 SC 1675.
[viii] Trials by Media, Norms of Journalistic Conduct (2010 ed.).
[ix] (2004) 4 SCC 158.
[xii]http://www.hindustantimes.com/india/defending-the-doomed-lawyers-who-stand-up-for-terror-accused-maoists/story-3roGxXmlQeBIlwfOVVmuFO.html (last accessed on: 14/03/2017 at 10:44 PM).
[xiii] United Nations, Basic Principles on the Role of Lawyers, 7 September 1990, available at: http://www.refworld.org/docid/3ddb9f034.html [accessed 14 March 2018].
[xiv] http://indianexpress.com/article/india/india-news-india/sheena-bora-murder-case-peter-mukerjea-alleges-media-trial-2998197/ (last accessed on: 14/03/2018 at 00:08 AM).
[xv] Santosh Kumar Singh v. State through CBI, (2010) 9 SCC 747.
[xvi] Sidhartha Vashisht @ Manu Sharma Vs.Respondent:State (NCT of Delhi), AIR 2010 SC 2352.
[xvii] See Falk, ‘On Treaty Interpretation’, 354.
[xviii] Interpretation in International Law (Andrea Bianchi et.al. eds., 2015).