Abstract –

The quality and significance of media in Democracy is very much perceived. Article 19(1) (a) of the Indian Constitution, which gives the right to speak freely of discourse and articulation incorporates inside its ambit, Freedom of press. The presence of a free, autonomous and strong media is the foundation of an acceptable democracy, particularly of an exceptionally blended society like India. Media isn’t just a medium to communicate once emotions, suppositions and perspectives, however it is likewise mindful and instrumental for building conclusions and perspectives on different subjects of territorial, national and universal plan. The vital job of the media is its capacity to prepare the considering procedure millions. The criminal equity framework in this nation has numerous lacunae which are utilized by the rich and amazing to go without any penalty. Figures represent themselves for this situation as does the conviction rate in our nation which is wretchedly low at 4 percent. In such conditions the media assumes an urgent job in activating popular conclusion as well as uncovering treacheries which in all probability would have gone unnoticed in any case.

Keywords:  Trial by media, Indian Constitution, Freedom of Speech.

INTRODUCTION

Blackstonian idea of opportunity of press which was expressed as early as in 1769 contained four essential points[1] which even to this date stands the test of time to structure the essence of the idea of press opportunity. They are as per the following:

• Liberty of the press is essential to the state;
• No previous restraints should be placed on the publications;
• That does not mean there is press freedom for doing what is prohibited by law;
• Every freeman has the undoubted right to lay what sentiment he places before the public, but if he publishes what is improper, mischievous or illegal he must take the consequence of his own temerity.

It cannot be denied that it is of paramount importance that a perilous balance between the fundamental right to expression and the right to one’s privacy be maintained. The second practice which is a really a kind of abuse, has become more of a daily occurrence now is that of Media trials and curated by media houses to be telecasted for prime-time slots for enhanced trps. Earlier it was actually an ardent attempt to show to the public at large the truth about ongoing famous cases, but now has become a commercial practice interfering dangerously with the judiciary. The following observations of the Supreme Court in R. Rajagopal and Another v. State of Tamil Nadu and Others[2]  are true reminiscence of the limits of freedom of press with respect to the right to privacy.

The Concept of ‘press freedom’ has created a multitude of implications especially in the legal domain and as result have many cascading effect and hence they are not confined to the constitutional provisions alone. Various façade of this effect is inter alia on various laws like criminal law, Copyright Act, Official Secrets Act, Freedom of Information Act, Law of torts, and so forth, to give some examples.

These legislations govern the limits of legality for some of the most important and pertinent issues like those of decency or morality, the issue of privacy and right to information, defamation etc. Issues arising due to investigative journalism are also dealt with by these legislations. There are also exclusive media laws like Working Journalists Act, Press Councils Acts, Newspapers Act, Press and Registration of Books Act etc. The Press Councils Act created the quasi-judicial body- Press Council of India. Basic issues relating to Article 19(1)(a) personal liberties and the principles of natural justice need to be settled. Existing privilege laws are a bit too ambiguous and expansive in nature as it doesn’t define what exactly constitutes a breach of privilege or Contempt of House. Hence the need to codify privileges.

Various luminaries and independent committees have also laid out recommendations with the sole interest to safeguard journalists and professionals, from being compelled to disclose information received in confidence except when required in public interest and also against a charge of contempt of Court by permitting truth as a defense.

At this juncture, as we are advancing towards the sexagenarian age of our independence, let’s emphasis on what our former Prime Minister Late Sh. Rajiv Gandhi had said about the freedom of press in India:

            “Freedom of Press is an Article of Faith with us, sanctified by our Constitution, validated by four decades of freedom and indispensable to our future as a Nation.”

HISTORICAL BACKGROUND

The chapter on Fundamental rights, Part III in the Indian Constitution, was not joined as a well-known admission to worldwide supposition and thinking on human rights after the end of Second World War. The interest for protected certifications of human rights for Indians was made the extent that route back as in 1895 in the Constitution of India Bill, prominently called the Swaraj Bill, which was propelled by Lokmanya Tilak, a legal counselor and an extraordinary political dissident. This bill conceived for India a Constitution ensuring to each resident, among different opportunities, the opportunity of press.

To a certain degree one can stipulate that the inception of press in India was made with commercial interests in mind. It was the seed sown by the first British MNC – The East India Company. It was one of those instruments of the British, which was later controlled by the Indians to serve their purpose; as the job of the press experienced a significant change and it before long ended up being one of the best weapons Indians used in their struggle for freedom from the British. The press was consistently heavily influenced by the company, however after its press job reversal the need to brace brutal checks got inevitable. Oppressive laws were passed and decisions were given to curb the freedom of the press.

The Fathers of the Indian Constitution connected extraordinary significance to freedom of speech and expression and the freedom of the press. Their experience of black days under British rule, when the pro Indian press was oppressed by sedition trials and seizure of security deposits, taught them of the paramount importance of this right in the sovereign democratic republic which India was to be under its Constitution. They believed for a democracy to prosper, freedom of expression and the freedom of press shall always be protected. They accepted that integral to the idea of free press is opportunity of political sentiment and at the center of that opportunity lies the option to condemn the Administration. They embraced the considering Sh. Jawahar Lal Nehru who stated, “I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed and regulated press.[3]”

The Indian Constitution illustrates freedom in Article 19(1)(a) which ensures right to freedom of speech and expression. It has been held that this right to freedom of speech also includes press freedom. It is an implied or deduced right. The commercial aspects of the press are regulated under Article 19(1)(g) which provides for freedom of profession, occupation, trade or business which is restricted by Article 19(6) which incorporates arrangements for open intrigue, proficient and specialized capabilities and state nationalization-aggregate or incomplete.

As per the constitutional advisor, Dr. B.N. Rau, our constitutional adviser according to him, it was not really important to accommodate the opportunity of the press explicitly, on the grounds that opportunity of articulation would incorporate opportunity of the press.[4]  The perspectives on Dr. Ambedkar and Dr. B.N. Rau have been vindicated by the supreme Court. In a progression of choices from 1950 onwards the apex court has decided that the opportunity of press is verifiable in the assurance of the right to speak freely of discourse and articulation. Therefore opportunity of press is one of the principal rights ensured by the Indian constitution.[5]

One of the heads of limitations on the right to speak freely and articulation in the draft Constitution was sedition”, suitably portrayed by Gandhiji as the Prince of the Indian Punitive Code‟. It was much of the time conjured to smash the opportunity development and manifest political dissidents, including conspicuous pioneers like Tilak[6]  and so forth in the prime of English colonism subversion was interpreted by the privy Gathering in the instances Wallace-Johnson[7] and Sadashiv Bhalerao[8]  to incorporate any explanation that was at risk to cause, disaffection‟ , specifically, energizing in others certain hostile emotions towards the administration, in spite of the fact that there was no component of affectation to savagery or insubordination. To limit discourse under the head of „sedition‟ was irking to the designers of the Constitution.

INTERPRETATION OF FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech and expression implies the option to communicate one’s own feelings and sentiments openly by methods for composing, printing pictures or some other mode. It subsequently incorporates the declaration of one’s thoughts through any transmittable medium or noticeable portrayal, for example, motion, signs and such.[9] The articulation means likewise distributions and in this manner the opportunity of press is remembered for this class. Free engendering of thoughts is the fundamental target and this might be done on the stage or through the press. The opportunity of engendering of thoughts is made sure about by opportunity of course. Freedom of course is fundamental to the opportunity as the freedom of distribution. For sure without dissemination the distribution would be of little worth.[10]

Freedom of expression has four broad purposes to serve: –

1. It helps an individual to attain self-fulfillment;
2. It assists in the discovery of truth;
3. It strengthens the capacity of an individual in participating in decision making;
4. It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change

In the Romesh Thappar case the court laid down an important principle: –

            “So long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, Clause 2 of Art 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to public security is involved, an enactment which is capable of being applied to cases where no such danger could arise cannot be held to be unconstitutional and valid to any extent.[11]”

In this way Article 19 (2) was amended by the First Amendment of Constitution in 1951[12], which was created and enacted with retrospective effect on 18 June, 1951. Subsequently Article 19(2) of the constitution was amended by the (Sixteenth Amendment) Act, which was enacted with prospective. Therefore, by method of legal proclamations throughout the years there had been a change in perspective in the use of this article and it turned out to be to some degree of restraint on freedom of press forcing limitations by method of revisions.

PRE JUDGING THE CONCEPT OF TRIAL BY MEDIA

This idea has been glided distinctly in the ongoing years where the media having the ability to speak freely and articulation under Article 19(1)(a) utilizes the intensity of their correspondence medium to connect with the majority and scrutinize and now and again pre-judge a case under legal thought in the official courtroom which now and again sums to Maligning or Disdain of Court. The ongoing model could be the Arushi Twin Homicide case‟ where media essentially sentenced the alleged individual blamed. A few suggestions have been made on this issue in the 200th report of the Law Commission of India.

The ever-expanding propensity to utilize media while the issue is sub-judice has been looked down and frowned upon by the courts and supreme Court of India on several occasions. In Supreme Court observed in, State of Maharashtra v. Rajendra Jawanmal Gandhi[13]:

            “There is procedure established by law governing the conduct of trial of a person           accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and is to be guided strictly by rules of law. If he finds the person guilty of an offence, he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law.”

Basic tenet of justice in India is to provide for a Fair Trial, a trial free from any biases and external pressure. In order to safeguard the right of fair trial, Provisions have been laid out under the Contempt of Courts Act, 1971 and under Articles 129 and 215 of the Constitution of India. Media is particularly concern of any censorship or restrictions which are placed on public discourse or publication of matters relating to the essential facts of a case pending before a Court. A journalist may thus be liable for contempt of Court if he publishes anything which might prejudice a ‘fair trial’ or anything which impairs the impartiality of the Court to decide a cause on its merits, whether the proceedings before the Court be a criminal or civil proceeding.

RESTRAIN ON FREEDOM OF SPEECH & EXPRESSION

Some restrictions have been imposed on the freedom of speech and expression under article 19(2). Some of them as discussed hereunder-

1. MORALITY AND DECENCY

Important attribute on which freedom of the press can be contained within the ambit of Constitution of India is “decency and Morality”. Modern standards are not conforming with when dealing with the concepts of morality and decency. concepts like morality decency and obscenity are very subjective in nature in the ever evolving society still respected jurists and the court of the land have attributed the facets within the ambit of Sections 292 to 294 of the IPC deal with this restriction.

      The aforementioned conundrum is a point of pain for the natural understanding among the masses we use nudity and vulgarity inter alia with obscenity whereas honorable court has clearly ruled in the landmark case of The Bandit Queen[14] , that strictly under the laid out law of the land both nudity and vulgarity cannot be attributed with obscenity.

1. DEFAMATION

If any man’s reputation is hurt or gets injured by a statement, then it amounts to Defamation. Defamation as a crime has been codified under section 499 Indian Penal code. Under civil law we follow precedent of courts since it is not codified under any civil law. Since press and media plays in the space of public discourse hence it is considered that strict libel laws can have devastating effect on freedom of press, as also described in the landmark case of New York Times v Suvillian[15]  by the supreme court of USA where it has ruled that every inaccurate statement when is found not to be backed with malice, is not warranted for a legal action. Prime Reason for drawing such a strong line was to maintain a balance for free debate in a healthy democracy where sometimes statements are made in the heat of the moment and are actually not judged with proper prudence by the speaker and as such m should be considered and be tolerated, for survival “freedom of expression needs to have some space for breathing”

      The Supreme Court of India was of the same view and held that in R. Rajagopal v State of TN[16]  (Auto Shanker Case).

1. CONTEMPT OF COURT

Contempt of court is like a rider or restriction on freedom given to media and press along with freedom of expression. No unreasonable restrictions is imposed on the right to freedom of speech and is actually saved under Art 19(2)[17]  we can deduce this fact because Supreme Court has upheld the constitutionality of the Contempt of Court Act, 1952  on the similar ground as stated above. Courts have many a time expressed displeasure towards press and media when the said fourth pillar tries to pass verdicts of the ongoing case. The High Court of Punjab decided that, freedom of the press is subordinate to the administration of equity”. The duty of each and every journalist is to deliver fair news and not to give their opinion on the subject matter which is prejudice in the court of law or give verdict on any particular case.[18]

      In Today’s India law of contempt is such, that the country which follows ‘satyameva jayate’ ,there is no defense from contempt not even the truth.[19]  Anomaly of this kind is very peculiar. Article 361-A of the Indian Constitution likewise manages contempt which was embedded after the Forty Fourth Amendment Act, 1978.

1. SOVEREIGNTY AND INTEGRITY OF INDIA

Several rulers and kingdom existed in India at the time of independence which were merged in a United India for a better future. Still many families still reserved the right to use title land and palaces from their past glory days and that gave birth to an idea of mutiny among many for political and personal reasons and on 21^st January, 1963 a bill was introduced in the Lok sabha by then Law Minister Ashoke K umar Sen to safeguard Sovereignty and integrity of India as a ground under Article19(2) for restricting the freedom under Article 19(1)(a) was added by amendment.[20] Main purpose of the amendment was to provide special power to parliament, so that it can legislate on this subject without having been put in a position where parliament would have to face a constitutional challenge on the ground that the legislation was ultra vires due to the presence of Article19(1)(a).

1. SECURITY OF THE STATE AND PUBLIC ORDER

The concept of Public order, law and Security of the State are like three concentric circles, also these are not equal articulation, in this description law and order representing the largest circle, within which lies the next circle representing public order and within which is the smallest circle representing security of State. Thus, an act which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State.

      The supreme court of India while explaining the section 4 of the Press (Emergency Powers) Act, 1931, held in State of Bihar v. Shaialabla Devi[21] that the words that deal with the visible representation, signs or words that are used to which encourage or incite or tend to encourage or tend to incite to commit any offence of violence or murder, the Supreme Court held that any expression or speech which encourages or incite the commission of any hilarious crimes such as breaching the security of the county or State or murder are dealt under clause 2 of Article 19.

1. FRIENDLY RELATIONS WITH FOREIGN STATES

This ground was additionally included by the constitution through (1st Amendment) Act, 1951. The article behind the arrangement is to forbid unreasonable pernicious promulgation against a remote agreeable state which may risk the support of good relations among India and that state. No comparative arrangement is available in some other Constitution of the world. Limitations under this classification would incorporate criticism of remote dignitaries as well as purposeful publicity for adversaries to expert in an outside state after India has perceived a specific expert in that state, or promulgation for war with a state content with India. At present there is no particular enactment regarding this matter. Be that as it may, an assortment of resolutions contains limitations on types of articulation which would adverse effect amicable relations with alien states.

OUTCOME

The crux of it all is that large majority still puts large reliance on the media for information and what’s happening in the society on daily basis. an individual can hardly procure information for himself, information which helps him to become a healthy part of the society where the knowledge of right and duties of an individual helps in creating a balance for an ideal society. But since procuring such news is hard for an individual hence press and media acts as a custodian of the society by broadcasting and distributing such news. Media plays an important role in the society because it becomes the voice of all especially who’s who show dissent and are often suppressed. Hence freedom of the press has a dimension and range that is vastly different from the ambit and content of other individual freedoms. Press freedom embodies the principle of accountability and thus enables press to be an instrument of democratic control. Protection and promotion of free press is substance sub serves and strengthens democracy, an essential feature of the Constitution.

Based on rule of law, the press must have freedom and it also created a more vibrant and strong democracy. Still freedom of press is not absolute. Since press play in the public domain and thus it has to obey with stringent procedures, utmost responsibilities towards the society and with grave caution.

Joseph Pulitzer rightly opined, that “commercialism has a legitimate place in a newspaper”. Pulitzer said, without high ethical ideals a newspaper is not only stripped of its splendid possibilities for public service, but may become a public danger to the community”[22] .press and media must work with a moral compass, legal strictness and curtailing of press freedom must only come in action once press diverges from the path of being the torch bearer of the society and starts to completely walk on the evil path of misinformation. Different governments and administration from all ages of human existence have used carrot and stick methods”[23]. In the most penultimate analysis, truth of press freedom is seen by the struggles and in emphatic victories for the cause of press freedom by its champions, they must remember Benjamin franklin’s glorious word to his compatriots:

            “They who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety”[24] 

REFERENCES

1. Press and the Law (1990) by Justice A.N. Grover; pg. 7 para 2 2.
2. (1994) 6 SCC 632.
3. Nehru’s speech on 20th June 1916 in protest against the press Act, 1910.
4. Shiva Rao, The Framing of India’s Constitution: A Study, pp. 219-20.
5. Brij Bhushan v State of Delhi; AIR 1950 SC 129 6.
6. 25 IA 1
7. 1940 AC 231.
8. AIR 1947 PC 82.
9. Lowell v Griffin, (1939) 303 US 444.
10. Romesh Thappar v State of Madras, AIR 1950 SC 124
11. Ibid
12. “Nothing in sub clause (a) of clause (i) shall effect 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 rights conferred by the said sub clause in the interest of the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
13. AIR 1997 SC 8986.
14. Bobby Art International v Om Pal Singh Hoon, (1996) 4 SCC 1 15.
15. 376 US 254.
16. (1994) 6 SCC 632 at 649.
17. K. Daphtary v O.P Gupta, AIR 1971 SC 1132.
18. Rao Harnarain v Gumori Ram, AIR 1958 Punj. 273.
19. Bijoyananda v Bala Krishna AIR 1953 Ori 249.
20. Inserted by the Constitution (Sixteenth Amendment) Act, 1963, Section 2. 21.
21. AIR 1952 SC 329.
22. Gerald Gross (ed.), the Responsibility of the Press, Clarion Books, New York,1966, pp.39-40.
23. Indian Express Newspapers v Union of India, (1985) 1 SCC 641.
24. Referred to in Soli J. Sorabjee, supra 50 at p.25.

[1] Press and the Laws (1990) by Justice A.N. Grover, pg. 7 para 2.

[2] (1994) 6 SCC 632.

[3] Nehru’s speech on 20^th June 1916 in protest against the press Act, 1910.

[4] B. Shiv Rao, the Framing of India’s Constitution: A study, pp. 219-20.

[5] Brij Bhushan v. state of Delhi; AIR 1950 SC 124.

[6] 25 IA 1.

[7] 1940 AC 231.

[8] AIR 1947 PC 82.

[9] Lowell v. Griffin, (1939) 303 US 444.

[10] Romesh Thappar v State of Madras, AIR 1950 SC 124.

[11] Ibid.

[12] “Nothing in sub clause (a) of the clause (i) shall effect in the operation of any existing law or prevent the state from making any la, in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by the said sub clause in the interest of the security of the state, friendly relations with foreign states, public order, decency or morality or in relation of contempt of court, defamation or incitement to an offence.”

[13] AIR 1997 SC 8986.

[14] Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1.

[15] 376 US 254.

[16] (1994) 6 SCC 632 at 649.

[17] C.K Daphtary v. O.P. Gupta, AIR 1971 SC 1132.

[18] Rao Harnarain v. Gumori Ram, AIR 1958 Punj. 273.

[19] Bijoyananda v Bala Krishnan, AIR 1953 Ori 249.

[20] Inserted by the constitution (Sixteenth Amendment) Act, 1963, Section 2.

[21] AIR 1952 SC 329.

[22] Gerald Gross (ed.) the Responsibility of the Press, Clarion Books, New York, 1966, pp. 39-40.

[23] Indian Express Newspapers v. Union of India, (1985) 1 SCC 641.

[24] Referred to in Soli J. Sorabjee, supra n. 50 at p. 25.

Authored by: ANJUM SAXENA
Research Scholar, Shobhit Deemed University, Meerut, Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7