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“When
your case is weak, take it to media, instead of to the courts”, says
Thomas Sowell. At the same time, Laura Alber says, “if O. J. Simpson
was guilty, the media was responsible for his acquittal”. Both could
be true. Priya
Bansal* |
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Introduction Access
to information is essential to the health of democracy. The rule of law
may be further institutionalized by support for an independent media
that keeps a check on the judiciary, reports on the courts, and promotes
a legal enabling environment suitable for press freedom.1
The public interest is defined as representing a plurality of voices
both through a greater number of outlets and through the diversity of
views and voices reflected within one outlet.2 The
press and the media have been recognized as the greatest influencing
factors. The power with them carries with it an obligation to act with
responsibility and creativity. But, there are symptoms of negativity in
the media. In the context of the judiciary, the positive performance is
not highlighted, but failure, howsoever insignificant it may be, is
picked up, blown out of proportion and publicized.3
Rights
of Media Under
Contempt of Courts Act, 1971 : No civil
or criminal action will lie against a newspaper for publishing a
faithful and fair report of proceeding of a court, though it may contain
matter disparaging to the character of an individual. This is saved by
Exception 4 to Section 499 IPC. Publication of a fair criticism of a
judicial act including a judicial decision is protected under Section 5.
Section 3(1) exempts innocent publication, if the publisher had ‘no
reasonable grounds for believing that the proceeding was pending’.
Sub- section (2) says that there is no contempt if no civil or criminal
proceeding is pending. Sub-section (3) exempts similar distributions
where similar belief as in sub-section (2) existed. Explanation to
Section 3 mentions when a judicial proceeding is to be treated as
‘pending’. So far as criminal case is concerned, it says pendency
starts when the chargesheet or challan is filed or when the Court issues
summons or warrant, as the case may be, against the accused and in any
other case, when the Court takes cognizance of the matter to which the
proceeding relates. The case is treated as pending till
appeals/revisions are decided. Section 4 protects fair and accurate
reporting of judicial proceedings. Section 7 mentions when publication
of information relating to proceeding in chambers or in camera is not
contempt.4 Under
Article 19(1)(a) of Constitution of India : Since
in India ‘freedom of expression’ is guaranteed by Article 19(1)(a)
of the Constitution, it has been held by Supreme Court5
that freedom of the ‘press’ is included in that wider guarantee, it
is necessary to plead for the freedom of the Press in the country. International
Law : The 1998 Declaration recognises
journalist as human rights defender and adds a critical momentum to the
protection of human rights and its defenders worldwide.6
The Universal Declaration, the European Convention and other
international human rights agreements explicitly protect freedom of
expression “regardless of frontiers,” a phrase especially pertinent
to the fast evolving media around the globe,7
particularly under Article 19, UDHR, Article 19, ICCPR and under Article
10, European Convention for the Protection of Human Rights and
Fundamental Freedoms.
Media
Reporting of Court Proceedings It
has indeed become a disturbing feature that the accused persons, after
their remand by the magistrate, are brazenly paraded before the press
and interviews are being allowed. In case where Test Identification
Parade or the accused person being identified by witnesses arises, the
case of the prosecution is vulnerable to be attacked on the ground of
exposure of the accused persons to public glare, weakening the impact of
the identification. Further, police custody is given by the court to the
investigation authorities on the premise that the accused is required
for the purpose of investigation. This custody is not to be misused by
allowing the media to interview the accused persons when they are in
police custody under the orders of the court.8 The
case of Rape victims: There is
unnecessary sensationalisation in rape cases wherein the media try to
dig into the victim’s sexual history. There are “rape shield
statutes” in the United States which prohibit disclosure of
information about a victim’s sexual history during trial and “victim
rights statutes” which enable rape victims to claim certain rights in
relation to privacy and claim heavy damages in case of violation of such
right. Though there are judicial guidelines on the matter in India,
there has to be a legislation modeled on the US pattern. And the
documents which tend to undermine the dignity of women and children
should be safeguarded from the media’s prying eyes.9 In
State of Maharashtra v. R. J. Gandhi10,
the case was one of rape on a girl eight years old and the offence was
committed at Kolhapur and the case was to be tried there. But because of
public outcry, the plea of the accused for a fair trial was accepted and
the case was transferred by the Supreme Court to the sessions court at
Satara. Confirming the conviction and adverting to the harm caused to
the victim, the Supreme Court said: “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 such pressure and he is to be guided
strictly by rule of law.” A
free press is the sine qua non of a democratic society and is a
bulwark of freedom of speech and expression and freedom of information.11
But the question arises, how far is it right to manipulate general
public’s mind towards a particular conclusion when the trials are
still in tube?
Restrictions
on Media Under
Indian Constitution, the Supreme Court
and High Courts are powered to intervene and punish the publication of
any matter, which causes prejudice to a pending proceeding, to keep the
stream of justice clear and pure so that parties may proceed with safety
both to themselves and to their character.12
That is why, clause (2) of Article 19(1) permits imposition by law of
reasonable restrictions on the exercise of this freedom in the interests
of the sovereignty and integrity of India, the security of the state,
the friendly relations with foreign states, public order, decency or
morality, or in relation to contempt of court, defamation or incitement
to an offence.13 Under
Contempt of Courts Act, 1971 : Section 2
(c) of the Contempt of Court Act, 1971 defines criminal contempt as
‘the publication, (whether by words, spoken or written, or by signs,
or by visible representations, or otherwise), of any matter or the doing
of any other act whatsoever which (i)…. (ii) prejudices or interferes
or tends to interfere with the due course of any judicial proceedings;
or (iii) interferes or tends to interfere with or obstructs or tends to
obstruct, the administration of justice in any manner’. It prohibits
such publication where it is prohibited by a statute or by the court on
certain grounds such as security of the State, public order and the
like. Misrepresentation or misreporting of court proceedings may amount
to contempt, if it can be shown that further proceedings are likely to
be prejudiced by such misreporting. No
person can flout the mandate of law of respecting the courts for
establishment of rule of law under the cloak of freedom of speech and
expression guaranteed by the Constitution.14 Proposed
Amendments in Contempt of Courts Act, 1971 : 17th
Law Commission, in its 200th
report this year took up suo moto the subject of trial by media.
It enclosed a draft bill with its recommendations to government,
suggesting amendments to the Contempt of Courts Act, 1971. One amendment
proposed is that the starting point of a criminal case should be from
the time of arrest of an accused and not from the time of filing of the
charge sheet, so that the media do not prejudge or prejudice the case.
Another proposed amendment would empower the High Court to direct the
print or electronic media to postpone publication or telecast pertaining
to a criminal case.15
Trial
by Media Nowadays,
the sensationalism involved in the cases of certain high profile
criminal cases has become very common with the spread of mass
communication. Example can be taken from recent Abu Salem case. This
invariably leads to the issue of prejudicial publicity placing one or
the other party involved in a disadvantaged position besides creating
situation which tends to reduce legitimate space for dispassionate
assessment of the truth by judicial officers. Moreover such media trials
unnecessary draw the judiciary into the public scanner, often making a mockery
of justice delivery system. The
Supreme Court observed in Anukul Chandra Pradhan v. Union
of India16, in the hawala
cases that the publicity attached to the matters should not affect the
essentials of a fair trial including the presumption of innocence. In
September, the special TADA court judge in Mumbai trying the Bombay
blasts case expressed his unhappiness at the media interviewing the
accused, prosecution and defence lawyers within the court premises. And
in November the Chief Justice of India, speaking in Bangalore, urged
judges not to feel pressured by the “disturbing trend” of the media
creating perceptions while a case was pending before the court. They
should go strictly by the law and the evidence without fear of becoming
unpopular. But he also said: “if this continues, there can’t be any
conviction. Judges are confused because media has already given a
verdict.” M.
P. Lohia v. State of W. B. and
Another17, was a case of
dowry death, the investigation was in progress and special leave
petition was pending before the Court. Even then an article had appeared
in the magazine called “Saga” titled “Doomed by Dowry” written
by Kakoli Poddar based on her interview of the family of the deceased.
The facts narrated therein were all materials that could be used in the
forthcoming trial of the case and the court said that these type of
articles appearing in the media would certainly interfere with the
administration of justice. To
make accountable to the people, an independent autonomous public
institution like the Media Council is, therefore, a constitutional need.
In some countries, it is established by the various constituents of the
media as a voluntary organization, while in other countries like ours,
it is constituted by the Legislature under a statute. These bodies by
whatever name they may be called and whether voluntary or statutory,
evolve a code of conduct or of ethics for the media with regard to
honesty and fairness; duty to seek the views of the subject of any
critical reportage in advance of publication; duty to correct factual
errors; duty to provide an opportunity to reply to critical opinions as
well as to the critical factual reportage; appearance as well as reality
of objectivity; duty to distinguish between facts and opinions; duty not
to prejudice the guilt of an accused and to publish the dismissal of
charges against or acquittal of anyone about whom the paper previously
had reported that charges have been filed or that a trial had commenced.18
Conclusion The
profession journalism has lost its sanctity and now the mantra is
“News is what sells”. The problem with the media’s judicial
activism is that it only campaigns for cases that appeal to its market
and its imagination. When Outlook editor Vinod Mehta asked on Ms.
Dutt’s show, whether she would be as zealous about a case in Gorakhpur,
she responded without missing a beat: “Probably not. These cases work
for our audiences because they work for the people like us.”19 Because
of preconceived notions about the accused different treatments are given
by the media, and that is how sometimes the accused gains unwarranted
hatred or sympathy from the public in general. Before the judgment is
pronounced, before any verdict is given by the court, accused either
becomes criminal or innocent in the eyes of the public. In the case of
Sanjay Dutt, media is handling the case sympathetically whereas Manu
Sharma has already been announced guilty by the media. In the words of
Senior Advocate Mr. Ram Jethmalani: “The press thinks they are judges
of who is a devil and who is not”.20
When there is a death sentence, the one for Afzal Guru leads to
consternation, whereas the one for Santosh Singh is greeted with
triumphant self- congratulation.21 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.
ENDnotes 1
The Role of Media in Democracy: A Strategic Approach, 1999, Center for
Democracy and Governance, http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnace630.pdf
2
ibid. 3
Justice R. C. Lahoti, Speech on Law Day, 2005 2 SCC Jour. 1 at 6 4
M. Jagannadha Rao, Fair Trial or Free Press?: Law’s Response to Trial
by Media, Constitutionalism Human Rights & Rule of Law, Universal
Law Publishing Co. Pvt. Ltd. at Page 97 5
Express Newspapers v. Union of India, AIR 1958 SC 578 at
614 6
A. H. Monjurul KABIR, Law & Our Rights, available at http://www.thedailystar.net/law/200306/03/,
June 15, 2003 7
ibid. 8
State v. Mohd. Afzal & Others, 107 (2003) DLT 385 at
443, Para. 139 9
Lekshmi Vijayabalan, Refresher Course on Court- Media Relations in
Advancing the Cause of Justice, held between Feb. 25-27, 2005, Vol. 2,
Newsletter of the National Judicial Academy, Dec. 2005 at Page 60 10
AIR 1997 SC 398. 11
Such arguments are reflected in the Commonwealth Privacy Act, wherein
the media has been excluded from the purview of privacy. 12
A. M. Ahmadi J., Interrelationship Between Law, Media and the Judiciary, Vol.
4-7, 1997-2000, United Lawyers Association, page 75 13
Justice R. S. Sarkaria, Freedom of Information and its Responsibilities,
Vol. 15, The Press Council of India Review, 1994 14
In Re: Arundhati Roy, AIR 2002 SC 1375 at 1380 15
Sevanti Ninan, Trials on the Tube, The Hindu Magazine (Delhi Ed.), Nov.
12, 2006 16
1996 (6) SCC 354 17
(2005) 2 SCC 686 18
P. B. Sawant J., Media and the Constitution, Vol. 18, The Press Council
of India Review, 1997, page 9 19
Supra note 15 20
ibid. 21
ibid. ------------------- *National
Law Institute University, Bhopal.
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