Media Trial

“The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

– Thomas Jefferson

Introduction

“The nation wants to know.

What?

Did Shashi Tharoor really murder Sunanda Pushkar?

The Media said so, one journalist in particular heavily stressed that Mr. Tharoor in fact did. [1]

The nation wants to know.

What?

Are the Talwars’ guilty?

The Media said yes, so they must be.[2]

Apologies if the article has a smidgen of dramatics but I must add that this article is in no way an abject take on the state of Media (inclusive of modern formats) and the narrative built by it. We do recognize and appreciate the critical role played by media in a democracy as reflected in the opening quote by Thomas Jefferson.

The Supreme Court in the case of M.P. Lohia v. State of West Bengal[3] made scathing remarks about media trial. It observed in regard to misleading articles published in the media about the trial and its facts,

“Having gone through the records, we find one disturbing factor which we feel is necessary to comment upon in the interests of justice…We deprecate this practice and caution the publisher, editor and the journalist who was responsible for the said article against indulging in such trial by media when the issue is subjudice. However to prevent any further issue being raised in this regard, we treat the matter as closed, and hope that the other concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice.”

Media is considered as the fourth pillar of our democratic society after executive, legislature, and judiciary. Beyond the control and limitation of the government’s vital organ in large interest of the masses, media sometimes raise over or above. The last few years witnessed an enhanced interface between the media and common man. It is the media (print or electronic) has become a part of the life of the people of India, who are largely dependent on the media coverage for various needs including entertainment and information. Starting from the issues relating to common man, their feelings, their necessities, their expectations, and every aspects of their life closely associated with the media. Media keeps the peoples awakened and there is no denying the fact that it has become one of the major instruments of social change. In a democratic set up, it is media which strengthens the democratic norms and values and also accelerates the pace of development.[4]

Part III of the Constitution of India does not specifically talk about Freedom of Press. But in a number of cases, the Supreme Court has held that the freedom of speech and expression enshrined in Article 19(1) of the Constitution includes freedom of the press.

Public Trial

These days our fourth pillar has started functioning akin to a public court. It conducts parallel trials. Trial by Media generally refers to a practice where the media starts doing its own investigation and forms a public opinion against the accused even before a trial commences. In this way, it prejudices the trial thereby infringing the right of the accused to a fair trial. Thus, the accused that must be considered as innocent until proven guilty is now presumed as guilty thereby violating his rights.

Media trial has become so very ‘obvious’ in our news channels that before the final verdict is pronounced, the justice is delivered and served. A fast example of this are the infamous debates of a particular Indian news channel in the Republic of India where if you do not chant “Bharat Mata Ki Jai” (“Hail Mother India”) you might as well shift base to our not so welcoming neighbour country.

The Law Commission has criticized the growing trend among Medias to interfere in the process of trial and thereby causing great prejudice to the accused.[5] It stated,

“If excessive publicity in the media about a suspect or an accused before trial prejudices a fair trial or results in characterizing him as a person who had indeed committed the crime, it amounts to undue interference with the administration of justice, calling for proceedings for contempt of court against the media. Other issues about the privacy rights of individuals or defendants may also arise. Public figures, with slender rights against defamation are more in danger and more vulnerable in the hands of the media.”

The strength and importance of media in a democracy is well recognized. Article 19(1) (a) of the Indian Constitution, which gives freedom of speech and expression includes within its ambit, freedom of press. The existence of a free, independent, and powerful media is the cornerstone of a democracy, especially of a highly mixed society like India. Media is not only a medium to express one’s feelings, opinions, and views, but it is also responsible and instrumental for building opinions and views on various topics of regional, national, and international agenda.

However, there are always two sides of a coin. With this increased role and importance attached to media, the need for its accountability and professionalism in journalism cannot be emphasized enough.

Freedom Restricted?

There is a heated debate between those who support a free press which is largely uncensored and those who place a higher priority on an individual’s right to privacy and right to a fair trial.

During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that regardless of the result of the trial the accused persons will not be able to live the rest of their life without intense public scrutiny. The counterargument is that the mob mentality exists independently of the media which merely voices the opinions which the public already has.

One poignant case is that of OJ Simpson. Perhaps no other cultural event captured (and held captive) the American public’s attention so intently as O.J. Simpson’s low-speed chase through Los Angeles in June 1994 and the ensuing double murder trial, which ended in his acquittal in October 1995. The Guinness Book of Records lists the Simpson case as the “most viewed trial” with a daily average of 5.5 million Americans watching live coverage on three major cable networks. The journalistic media frenzy and “Simpsonization” of the case shaped and potentially distorted the world of the reader and viewer. The media’s implicit racism and the birth of the 24-hour-news-coverage brought us into the world we know today, where TV line-ups are abounded with “reality” shows, hyper-news coverage, and true-life crime stories.[6]

In the case of State of Maharashtra v. Rajendra Jawanmal Gandhi,[7] the Supreme Court has held that a trial by press, electronic media or by way of a public agitation is the anti-thesis of rule of law and can lead to miscarriage of justice. A Judge is to guard himself against such pressure.

In the case of Saibal v. B.K. Sen,[8] the Court said, “It would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of the investigation. This is because, trial by newspapers, when a trial by one of the regular tribunals is going on, must be prevented.”

In one of the landmark cases of Attorney General v. BBC,[9] Lord Dilhorne stated,

“It is sometimes asserted that no Judge will be influenced in his Judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a Judicial Office does his utmost not to let his mind be affected by what he has seen or heard or read outside the Court and he will not knowingly let himself be influenced in any way by the media, nor in my view will any layman experienced in the discharge of Judicial duties. Nevertheless, it should, I think, be recognized that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that may be subconsciously affected by it. It is the law and it remains the law until it is changed by Parliament. that the publications of matter likely to prejudice the hearing of a case before a court of law will constitute contempt of court punishable by fine or imprisonment or both.”

Media has an important role to play in a democratic society. The job is to keep the society informed about the happenings which have a direct or indirect impact on it and not to draw conclusions. Media should be a tool to achieve justice and not to defeat it. The electronic media in the present context must play a pivotal role. Lord Dilhorne’s words aptly sum up this topic.

Q & A

  1. What is meant by Media Trial?

Trial by Media generally refers to a practice where the media starts doing its own investigation and forms a public opinion against the accused even before a trial commences. In this way, it prejudices the trial thereby infringing the right of the accused to a fair trial.

  1. Is Media Trial protected by the Constitution?

Article 19(1) (a) of the Indian Constitution, which gives freedom of speech and expression includes within its ambit, freedom of press, i.e. Trial by Media. Though the freedom is not absolute and can be reasonably restricted.

  1. What are is the mechanism for restricting Media Trial?

Several safeguard like the courts can grant injunction against the press restraining publication of article on the issues which may prejudice the court proceedings, Pre-censorship, Apart from section 151 of the code of civil procedure, the high courts have the inherent power to prohibit publication for a temporary period and that power has been provided under Article 129 and Article 215.

  1. What are the famous Media Trial cases?

The most famous and earliest media trail case could be said to be that of OJ Simpson as discussed in the article.

  1. Isn’t restriction on Media against democracy?

The Hon’ble Supreme Court in the case of A.K. Gopalan v. State of Madras [AIR 27, 1950 SCR 88] observed that a man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. Thus, the constitutional right comes with a yardstick of restrictions which are reasonable.
 


[1] Outlook Web Bureau, Sunanda Pushkar Death Case: Court Orders FIR Against Arnab Goswami, Republic TV on Tharoor’s Complaint, (Feb. 10, 2020, 3:31 pm), https://www.outlookindia.com/website/story/india-news-court-orders-fir-against-arnab-goswami-republic-tv-on-tharoors-complaint-in-sunandra-pushkar-death-case/32523.

[2] Mayank Mishra, Aarushi Murder Case: Please, Let’s Put an End to Media Trials, (Oct. 12, 2017, 08:30 pm), https://www.thequint.com/voices/blogs/aarushi-murder-case-end-to-media-trials.

[3] M.P. Lohia v. State of West Bengal, 2005(2) SCC 686.

[4] Law Commission of India, 200th Report, On Trial By Media Free Speech and Fair Trial Under

Criminal Procedure Code, 1973 August 2006.

[5] Law Commission of India, 200th Report, On Trial By Media Free Speech and Fair Trial Under

Criminal Procedure Code, 1973 August 2006.

[6] Alderman, Derek H. “TV News Hyper-Coverage and the Representation of Place: Observations on the O. J. Simpson Case.” Geografiska Annaler. Series B, Human Geography 79, no. 2 (1997): 83-95. www.jstor.org/stable/490620.

[7] State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.

[8] Saibal v. B.K. Sen, AIR 1961 SC 633.

[9] Attorney General v. BBC, 1981 A.C 303 (HL).

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