“The media is the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses”, Malcolm X (1925-1965), Black Leader, United States. Decades later these cryptic utterances of one of the most controversial figures of the American Civil Rights Movement are turning out to be prophetic.
The advent of 24*7 Television News has transformed the way news is sourced, delivered, and consumed by the information hungry audiences craving for gory details of high profile and violent crimes committed in the society. The inevitable outcome is that a parallel trial of the accused is conducted by the media outlets who would stop at nothing to keep their audience entertained.
“The ghastly rape and murder of a 11-year-old child has shocked the conscience of humanity. The family of the victim is yearning for justice for their daughter who was brutally taken away from them at a tender age. The monsters who committed this act must be punished with the severest punishment possible under law. Thus, nothing short of a death penalty would heal the wounds of the family that are still grieving the loss of their innocent child. Despite knowing the identity, location of the culprits and irrefutable evidence of the involvement of the culprits the law enforcement agencies are yet to take any action. It is imperative that the guilty are apprehended and exemplary punishment is meted out to meet the ends of justice”.
You may be excused for thinking that these passionate arguments are probably advanced by a skillful criminal lawyer seeking justice for a deceased client in a Court of Law. In fact, these are the kind of arguments that are now commonplace in prime-time debates of almost every Television News Channel in the Country. The News Anchor screaming his lungs out at the debate panel while sitting in an air-conditioned studio dons the hat of a Judge, Jury and Executioner. This is what is commonly referred to as a Trial by Media.
Trial by Media is the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. Most of the news anchors, who probably hold a Degree in Journalism, deem it perfectly normal to encroach into the sacred domain of a Court of Law and pass judgments on who according to them is guilty and how they should be punished.
TV news media plays a crucial role in dissemination of information to the citizens and holding the people in power accountable. However, an increasingly global and competitive world requires the news channels to play the dual role of being the fourth pillar of democracy and make money for their investors at the same time. This delicate balancing act now seems to be taking a back seat as scores of news channels in the country have thrown the towel on their journalistic etiquette to attract more eyeballs than their competitors by prioritizing profits over ethics.
Freedom Of Speech
Unlike the United States where the press derives its Freedom of Speech from the 1st amendment to the Constitution, there is no such specific mention of Freedom of Speech for the press in India. Article 19 of the Indian Constitution is the source of freedom of speech and expression for both individuals as well as the press. As evident from Article 19(1)(a) there is no distinction between the Freedom of Speech for citizens and the press. Thus, the press is subject to the same reasonable restrictions as any individual citizen under Article 19(2) of the Constitution.
Though this was not always the case. The first Prime Minster of India Pt. Jawaharlal Nehru once remarked, “To my mind, the freedom of the Press is not just a slogan from the larger point of view, but it is an essential attribute of the democratic process. I have no doubt that even if the government dislikes the liberties taken by the press and considers them dangerous, it is wrong to interfere with the freedom of the Press. By imposing restrictions, you do not change anything; you merely suppress the public manifestation of certain things, thereby causing the idea and thought underlying them to spread further. Therefore, I would rather have a completely free Press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated Press.”
Interestingly, it did not take long for the Prime Minister to make a complete U-turn on the whole matter who in 1951 suggested that a certain section of the press had been indulging in vulgarity, indecency and falsehood which had made it necessary to arm the authorities to deal with such newspapers. The eventual outcome of this change of heart was the 1st Amendment to the Indian Constitution which among other things placed a reasonable restriction on the freedom of speech and expression through Article 19(2).
Back To The Future – Regulatory Framework
As things stand today, the TV news media is partly regulated under the Cable Television Networks (Regulation) Act 1995. Section 5 of the Act states that, no person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed progamme code.
The question that arises is what exactly is this Programme Code? The Programme Code is outlined in the Cable Television Networks Rules, 1994 which is reproduced below:
6. Programme Code. – (1) No programme should be carried in the cable service which: –
(a) Offends against good taste or decency:
(b) Contains criticism of friendly countries.
(c) Contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes.
(d) Contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half-truths.
(e) Is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote-anti-national attitudes.
(f) Contains anything amounting to contempt of court.
(g) Contains aspersions against the integrity of the President and Judiciary.
(h) Contains anything affecting the integrity of the Nation.
(i) Criticizes, maligns, or slanders any individual in person or certain groups, segments of social, public, and moral life of the country.
(j) Encourages superstition or blind belief.
(k) Denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals.
(l) Denigrates children.
(m) Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic, and regional groups
(n) Contravenes the provisions of the Cinematograph Act, 1952.
(o) is not suitable for unrestricted public exhibition
While Section 19 & Section 20 of the Act enable the authorities to prohibit transmission and operation of a cable television network if it is found to be in violation of the programme code or if it is likely to promote disharmony or feelings of enmity, hatred or ill-will, or likely to disturb the public tranquility.
Though the Government through Ministry of Information and Broadcasting has issued advisories to private satellite channels to adhere to the programme code, these advisories are not binding in nature.
Self-Regulation – News Broadcasters Association
The Indian TV news channels have always preferred to suggest that they self-regulate their content and hence there is no need to have any independent regulator as that would amount to curtailing the freedom of the press. As part of their self-regulation efforts, the TV news channels have come together to set up the News Broadcasters Association (NBA) which represents the private television news & current affairs broadcasters. The NBA presently has 26 leading news and current affairs broadcasters (comprising 77 news and current affairs channels) as its members.
News Broadcasting Standards Authority (NBSA) is an independent adjudicating body set up by the News Broadcasters Association. Its task is to consider and adjudicate upon complaints about broadcasts.
There is a Code of Ethics and Broadcasting Standards laid down by NBA for violation of which a complaint may be made, include the following editorial principles:
A news channel must:
- Ensure impartiality and objectivity in reporting
- Ensure neutrality
- Ensure that when reporting on crime, that crime and violence are not glorified
- Ensure utmost discretion while reporting on violence and crime against women and children
- Abhor sex and nudity
- Ensure privacy
- Ensure that national security is not endangered
- Refraining from advocating or encouraging superstition and occultism
- Ensure responsible sting operations
The Toothless Tiger!
One cannot help but wonder whether the news channels indeed adhere to this self-regulation and Code of Ethics. A complaint brought to the NBSA in 2019 against Republic TV is the prime example to understand how effective self-regulation really is. In March of 2019, Republic TV aired a program titled “Congress Bharat Mata Claim”, in which the anchor hectored a Muslim guest to say “Bharat Mata ki Jai”. A complaint was filed with NBSA regarding the Republic TV episode. NBSA considered the complaint and took a prima facie view that the debate and conduct of the Anchor violated the principles of the Code of Ethics relating to “Impartiality & Objectivity in reporting” and “Neutrality”. When the NBSA summoned both parties to a hearing Republic TV responded by calling the hearing an unwarranted intense pseudo-judicial oversight. Republic TV refused to budge and instead joined hands with fifty other regional broadcasters and formed the News Broadcasters Federation a parallel body to the News Broadcasters Association whose members unanimously elected Arnab Goswami, the managing director and editor-in-chief of Republic TV, to be president of the governing board.
Indian Courts On Parallel Trial By Media
State of Maharashtra v. Rajendra Jawanmal Gandhi, “A trial by press, electronic media or public agitation is the very antithesis of Rule of law. It can well lead to miscarriage of justice”.
Sidhartha Vashisht v. State (NCT of Delhi), “Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending”.
Shashi Tharoor v. Republic TV, “You are nobody in the field to get evidence or get access to evidence. understand what evidence in criminal law is. It is not a reflection on the Plaintiff (Tharoor) but the investigating agency. Can there be a parallel investigation or trial? Would you not like the courts to take their own course? People must take a course in criminal trial and then get into journalism.”
Konan Kodio Ganstone and Ors. v. State of Maharashtra, “There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading covid-19 virus in India. There was virtually persecution against these foreigners.”
Judge Shabir Ahmad Malik in an injuction sought by Irzan Khan observed that, “The media has the fundamental right of free speech and expression however, the said right is not greater than the rights of an individual. It is the legally bounden duty of the court to protect the fundamental as well as the legal rights of the parties and in the instant case the fundamental and legal rights of the plaintiff.”
Displacement of Presumption of Innocence
The Supreme Court in Sahara v. SEBI, propounded the Doctrine of Displacement of Presumption of Innocence. Under this doctrine if the Court feels that due to excessive prejudicial publicity the media coverage interferes with administration of justice then the postponement of media coverage is the neutralizing device that can be used by the Court to balance Freedom of Expression of the press vs Freedom of Trial and right to fair hearing.
The Supreme Court remarked that, “Courts are duty bound under inherent jurisdiction, subject to above parameters, to protect the presumption of innocence which is now recognized by this Court as a human right under Article 21, subject to the applicant proving displacement of such a presumption in appropriate proceedings. Lastly, postponement orders must be integrally connected to the outcome of the proceedings including guilt or innocence of the accused, which would depend on the facts of each case. For aforestated reasons, we hold that subject to above parameters, postponement orders fall under Article 19(2) and they satisfy the test of reasonableness.”
The Apex Court further held that, “An infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial.”
The Indian TV News industry was not always as cringeworthy as it is today. In fact, not very long ago the TV media won accolades from all quarters for crusading to secure justice for the victims and their families in some of the most violent crimes in India committed by powerful people who would have otherwise used their clout to get away scot free. Fearless and continuous coverage on the deaths of Jessica Lal, Nitish Katara, Priyadarshini Mattoo, Manjunath Shanmugam and Nirbhaya are some prime examples of the critical role TV news channels played in ensuring that the guilty are brought to book. There have been countless such instances of TV media galvanizing the masses to show up and speak up whenever the wheels of justice seemed to be turning too slow. From encouraging candle-light vigils to exposing glaring deficiencies in investigations, the TV media worked tirelessly towards the noble cause of justice for the victims and their families.
Ironically, the very same news channels are now viewed with a deep sense of distrust and anguish. One does not need to go too far in history to realize when the rot started. TV media’s coverage of the Arushi Talwar murder case was probably one of the lowest points for Indian TV news media. From coming up with bizarre conspiracy theories to broadcasting images that made the audiences recoil, there was nothing that was left out by the editorial board. It was a no holds barred coverage that ended up in a major embarrassment and loss of credibility for the TV news media. Every channel was doing its creative best to disprove the other news channel by coming up with their own theories regarding who committed the murder and in what manner. The news channels thought it perfectly normal to assassinate the character of a dead girl who could not even defend herself against the malicious accusations that were being propounded. Numerous laws of the land were flouted during the coverage with little or no accountability. Similar coverage was seen after the deaths of Sunanda Pushkar, Sridevi and other high celebrities who died under uncertain circumstances.
What then explains this fall from glory? From being the crusader against injustice to the propagator of half-baked truths? The answer lies in the slow yet progressive unchecked influx of entrants in the TV news media has led us to a sorry situation. There are over 880 private television channels in India. 43% of these are news channels! The number of news channels comes to a whopping 378! These 378 news channels are locked in an eternal battle of one-upmanship whose pen-ultimate prize is highest TRP ratings and viewership. The high TRPs in turn bring higher advertising revenues which is akin to a pot of gold at the end of the rainbow for TV news channels. With barely any regulatory framework in place to hold the news channels accountable, their conduct and coverage only seems to be getting murkier.
1) What Is Trial By Media?
Trial by Media is the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law.
2) Is The Freedom Of Speech Of Press Subject To Reasonable Restrictions?
In India, the press derives its freedom of speech from Article 19(1)(a) of the Constitution. There is no special mention of press in the Constitution. Hence, the freedom of speech of media is subject to the same reasonable restrictions as that of an individual under Article 19(2).
3) Can An Injunction Seeking Prohibition Of Prejudicial Media Coverage Be Sought By An Accused?
Yes, the Court may order postponement of media coverage if the excessive publicity of the trial interferes with the administration of justice.
 (1997) 8 SCC 386