Fair Trial As A Fundamental Right: Impact Of Pre-Judicial Reporting And Trial By Media By - Hanah Mariam Philip
Fair Trial As A Fundamental Right: Impact Of
Pre-Judicial Reporting And Trial By Media
Authored By - Hanah Mariam Philip
ABSTRACT
It
is cardinal for media to be mindful while reporting anything to avoid deviating
from unbiased reporting due to the enormous power it holds to influence the
society. One of these powers emerges from Article 19(1)(a) of the Indian
Constitution which confers the right to free speech and expression to all its
citizens. The harsh reality of today, however, is that the lack of unbiased
reporting has led to myriad instances of adversely affecting the rights and
reputation of the victim as well as the accused. Even before a court of law has
established its view/ judgment on an issue, media’s pre-judicial reporting on
the issue hampers an individual’s right to fair trial and disregards the legal
principle of presumption of innocence. Often, the line of distinction between a
culprit and an accused or a suspect is ignored and disregarded, particularly by
the media houses. Well before the commencement of the trial, the author of the
article is already trying to establish that the accused has committed a crime,
thereby fueling public outrage and leading the audience to sympathize and come
in support of the complainant. The impact of such an appalling misuse of power
by media on the individuals involved can cost them their time, dignity and
reputation in the society. Past events and consequences of trial by media that
portray the intrusive nature of the institution make us question its existence
and status as the fourth pillar of democracy.
Keywords: free
speech, pre-judicial reporting, fair trial, presumption of innocence,
trial by media
INTRODUCTION
The
phrase "Trial by Media" earned its popularity more towards the early
21st century whereby the media steps into the shoes of conducting the trial of
an accused and declares a verdict even before the court of law has laid out its
judgment. Trial by media takes its course when media presents the facts of the
case to the public in a manner that influences public opinion and creates an
atmosphere of guilt or innocence around the accused, even before the court has
had a chance to decide the case. Although it can be understood that the role of
media also includes ensuring active participation of individuals for the
purpose of public scrutiny, a destructive impact on the same may arise in cases
where it deviates from its real purpose and object due to the procurement of
false information, lack of evidence, political influence or the practice of
reporting and publishing paid news among other things.
RESEARCH PROBLEM
Media,
instead of acting in the capacity of a helping hand by connecting the general
public and their interests to the government as well as to serve the people
with news, views, and information on matters of public interest in a fair,
accurate and unbiased manner, has many at times undertaken the duty or the
authority of declaring an individual as innocent or guilty. Judiciary is
entrusted with the duty of delivering justice and pre-judicial reporting by the
media disrupts the procedure of the Judiciary by conditioning the minds of the
people by publishing their pre-judicial judgments and opinions, thereby
adopting a dogmatic approach. The conflict is between the Freedom of the Press
and the Independence of the Judiciary and therefore, there is a need to
understand the line of demarcation and fix liability on its violation.
RESEARCH OBJECTIVE
This
paper intends to understand the impact of media trial on Judiciary and to
ascertain whether media exercises unrestricted power by publishing pre-judicial
reports. The paper would further analyze whether any
restriction can be imposed on media trial. ‘
RESEARCH QUESTIONS
·
Whether trial by media amounts to
interference with the criminal justice system?
·
Whether there is a conflict between
freedom of press and independence of Judiciary?
THE INTERNATIONAL LAWS ON FAIR TRIAL
AND PRESUMPTION OF INNOCENCE
According
to Article 11 of Universal Declaration of Human Rights 1948, Section 2 under Article 14 of the International
Covenant on Civil and Political Rights 1966, Article 7 of the African Charter
on Human and Peoples’ Rights 1981
and Article 8 of the American Convention on Human Rights 1978, the presumption of innocent until
proven guilty is upheld for every individual in a public trial who has been
accused of and charged with penal offence. Section 1 under Article 14 of the International Covenant on
Civil and Political Rights 1966 also emphasizes on the facets of fair trial and
states that everyone who is charged with a criminal offence must be equally
treated before a court or tribunal and as a result must also be subjected to a
fair and public hearing by a competent, independent and impartial court.
Article 8 of the American Convention on Human Rights, 1978 expresses that no
one must be unheard, i.e., any person, even if charged with a criminal offence,
has the right to a fair and impartial hearing within a reasonable time. Article
6(1) and (2) of the European Convention on Human Rights, 1953 also deals with
right to fair trial.
NATIONAL
LAWS ON FAIR TRIAL
Article
14 of the Indian Constitution guarantees equality before the law or the equal protection of the
laws to everyone and therefore any procedure which comes in the way of a party in getting a
fair trial would be violative of Article 14 of the Constitution of India. Article 19 confers upon its citizens the right to free
speech and expression which can be exercised subject to reasonable
restrictions under clause 2 which also covers the aspect of defamation.
Therefore, right to free speech is not absolute and does not protect any speech
which harms the reputation of another. As conferred
under Article 21 of the Indian Constitution, an accused has the right to defend
himself/herself as a part of the fundamental right to fair trial, right to
reputation, right to live with dignity and the right to privacy. Additionally,
the Press Council of India has established norms of journalistic conduct warning journalists not to give excessive publicity to
victims, witnesses, suspects and accused such that it amounts to an invasion of
privacy. The right of the suspect or the accused to privacy is recognized by
the PCI to guard against trial by media. While warning against publishing
defamatory posts/articles, it reminds journalists and the Press to perform
their duty with due care and diligence to serve the public interest.
Reasons such as bad character of the accused should not be the basis upon
establishing the guilt of a person but instead, proof of facts must be relied
upon. As per these established norms, it is also expected of the Press to understand
the distinction between “public interest” and “those in public interest” to
avoid a deviation from utilizing their position for the betterment of the
society instead of running after mere sensationalism. Rule 41-A under the norms
deals with trial by media and states that privacy of the Victim,
Witnesses, Suspects and accused must be protected against publicity. Ideally,
the intention is to not allow a compromise on the fair trial of an individual
and the media is expected to refrain from anticipating and publishing a decision prior to the verdict
given by the court, unreasonably pressuring the judge, the jury, or the
witnesses, or unfairly influencing a party to the proceedings.
RIGHT TO FAIR TRIAL
The
fairness and rationality of a trial serve as the very foundation upon which a
judicial procedure may be used. The right to a fair trial is a basic human
right protected by our Constitution as well as international treaties and
conventions. Any method that prevents a party from receiving a fair trial would
be a violation of Article 14 of the Indian Constitution.[1]
Media is habitually seen to be overlooking the legal presumption of
innocent until proven guilty, thereby negatively impacting the accused in a
case. In Anukul Chandra Pradhan v. Union
of India[2], it was
stated that no situations shall arise or serve to
reduce the emphasis on the fundamentals of a fair trial and that the
fundamental rules of law, such as the accused's presumption of innocence, must
not be compromised due to the publicity attached to such matters until proven
guilty at trial. Without a doubt, this condition must be kept in mind during
the entire trial. It is important to ensure that the judiciary's credibility is
not damaged in any way.
In
the past, journalism was not influenced by the need to increase TRP ratings or
sales, which allowed journalists to work with sincerity and conviction,
demonstrating courage and integrity. They were meticulous in their
investigation of charges before drawing their own conclusions, independent of
fear or favor, and did not rush to declare people guilty. They did not blindly
print information provided by law enforcement officials, bureaucrats, or
politicians, and as a result, they were trusted by the public. However, the
media's role has evolved, and we are now seeing the emergence of "media
trials," where everyone tries to manipulate the media to serve their own
interests or harm their rivals. The issue is not the media's exposure of gaps
in investigations by the police or malpractice among civil servants, but when
the media exceeds its legitimate jurisdiction and does what it should not do.[3]
Everyone
involved and in charge of the affairs in the field of media should ensure that
a trial by the media does not interfere with the investigating agency and
in the process of reporting, should not prejudice
the right of defense of the accused in any manner since the failure to comply
with or adhere to the same may pose hindrance to fair judicial proceedings.[4]
With the sole purpose of attracting larger audience, the element of
neutrality is conspicuously missing in the portrayal of facts and issues of a
particular case by the writers. Even in the past, there have been instances
where the accused have been targeted and tormented by the media which will be
discussed further in this paper. Although this act is exercised within the
fundamental right to free speech conferred under Article 19, the court in the
case of M.P Lohia v state of WB[5]
held the view that one cannot ignore the
possibility of instances where the usage of freedom of speech and expression may
interfere with the administration of justice in cases where media published
articles are being prejudicial in nature, which indeed should not be permitted.
RIGHT TO REPUTATION AND DIGNITY
A question that naturally crops up with respect to the
freedom of speech and expression is whether this right exercised by media can
be allowed to such an extend where the reputation of an individual, being a
facet of Article 21, has little or no regard at all. Reputation is connected to the dignity of an
individual, making it an inalienable part of life. Pre-judicial media reports
prior to the commencement of trial have possibility of having an adverse impact
on the reputation of a party, be it in his/her social or professional lives.
Right to free speech does not confer the right to defame others. The
Delhi High Court declared that the book "Godman to Tycoon: The Untold
Story of Baba Ramdev" violated the petitioner, Ramdev's right to
reputation under Article 21 of the Constitution and hence the book was not
allowed to be published or sold. The Court additionally stated that one
person's right to reputation cannot be sacrificed in order to uphold the
freedom of speech of another. As the petitioner
about whom the book is written is entitled to be treated with dignity and has a
right of social reputation as an ordinary citizen even if he is a public
figure, and since reputation is a cherished value and an element of personal
security, portions of the book which make readers think that he is an ambitious
villain, until so proved in the Court of Law are necessarily to be restrained
from being published and distributed for sale. This is so that the right to
reputation of a living individual under Article 21 of the Constitution of
India cannot be sacrificed and crucified at the altar of the right to freedom
of speech and expression of another.[6] Freedom of speech does confer the right and
liberty to anyone to defame others. A correlative duty of not interfering with
the liberty of other individuals lies with the citizens since everybody has a
right to reputation and right to live with dignity.[7] The Sarvjeet Singh v. Jasleen Kaur case is a prime
illustration of how a careless media trial can rapidly ruin a person's
reputation and lead to assassination of character and even mental
torture. The court while acquitting Singh, observed, "In the
present case, the complainant has made material improvements in her statements.
The testimony of the complainant is not trustworthy and casts serious doubt on
the case of the prosecution. Moreover, the place of incident was a public road
and expected to be crowded at the time of the incident and no public witness
was examined in the present case. This non-examination of the eyewitnesses who
could have supported the case of the prosecution casts serious doubt on the
case of the prosecution in the present circumstances, when the version of the
complainant is doubtful."[8] It was only four years after the case was filed,
Sarvjeet Singh was declared not guilty by the Delhi High Court. However,
in the meanwhile, news channels, newspapers and
news sites called the accused in the case all sorts of names such as Delhi ka
darinda, etc. Due to its wide range of reporting, many notable celebrities also
came in support of the complainant which attracted even more attention from the
public. The News Broadcasting Standards Authority (NBSA)
had directed the news channel Times Now to issue an apology and pay a fine for
their reporting on Jasleen Kaur case. According to NBSA, the reporting on the
channel was done in an "aggressive, frightening, and browbeating
style." The order further mentioned that the accused was treated as guilty
by the channel.[9]
As once stated by the Supreme Court, the power exercised by media can become dangerous if
checks and balances are not inherent in it[10].
Therefore, a person’s reputation holds a massive
possibility of being damaged by an incorrect or wrong piece of information if
reported by media due to its unbridled power.
FREEDOM OF PRESS AND INDEPENDENCE OF JUDICIARY
The
Judiciary and the press are both essential for a progressive society. Free
press and media are imperative in a democracy but the concern arises when it
results in causing prejudice to a trial. The rampant growth of media influence
has aided the public at large in being acquainted with the arising issues and
thereby has aided them in formulating opinions. However, these public opinions
are media built and when they portray only one-sided perspective, it can result
in the presumption of it to be true without paying any heed to check its
authenticity. No doubt that the usage of Article 19(1)(a) of the constitution
should not stand as an interference to the matters existing before the court or
in the process of administration of justice.[11]
The parallel investigation and trial conducted by the media have many at times
have casted doubts upon the investigating agencies on their findings and placed
them under undue pressure during the course of the investigation. In order to
ensure that media reporting does not undermine the integrity of ongoing legal
proceedings, the judiciary has developed various mechanisms, such as contempt
of court laws and gag orders. The use of gag orders has been a subject of
debate and criticism, with some arguing that it curtails the freedom of the
press and undermines the principle of open justice. However, it is important to
note that gag orders are not a regular practice in Indian courts and are
usually issued in cases where the court believes that the media coverage could prejudice
the trial or impact the fairness of the proceedings. In Sahara v SEBI,
a private television channel leaked privileged communication without
authorization, which included a settlement proposal that had been exchanged
between the two lawyers representing both sides. the Supreme Court of India
stated that “We are distressed to note that even without prejudice proposals
sent by the learned counsel for the appellants to the learned counsel for SEBI
has come on one of the television channels, such reporting by television
channels not only affects the business sentiments but also it interferes with
the administration of justice.”[12]
The Court passed several directions and key guidelines regarding media
reporting. The Court extensively dealt with how media must refrain from
influencing the outcome of a case and abide by fair and accurate reporting of
the court proceedings without any distortion or sensationalization. Media
reporting should be respectful of the judiciary and not undermine its
authority. They should not publish any information that is not verified or
sourced from credible and reliable sources. The court also affirmed, what is
already established by law, that revealing any personal information or details
that could lead to the identification of the victims is also prohibited. The
disclosure of the identity is prohibited under Section 228A of the Indian Penal
Code, 1860 in cases of victims of sexual offenses, including printing or
publishing the name, address, photograph, or any other identifying details that
could lead to the victim's identification. This is to protect the privacy and
dignity of the victim. However, there have been several instances where media
was seen to be infringing some of these guidelines.
The Arushi Talwar murder case[13] serves
as one such illustration of how the media can influence public opinion and
create a prejudicial atmosphere even before the court proceedings begin. The
media's reporting of the case created a negative public opinion against the
Talwar family, which made it difficult for them to get a fair trial. The media
invaded the personal lives of Aarushi and her parents, publishing private
correspondence and portraying Aarushi's father as a murderer. The victim's
parents were accused of their daughter's murder by the media before any verdict
had been reached by the court. Due to the media's interference, the judges'
minds were prejudiced, and the parents were sentenced to life imprisonment.
However, the victim's parents appealed the conviction, and after hearing the appeal,
the Allahabad High Court acquitted them, stating that the Central Bureau of
Investigation had failed to prove their guilt beyond reasonable doubt. The
media's framing of the victim's parents before the court's verdict had negative
consequences in the case of Arushi Talwar.
One
of the recent cases pertaining to the case of a late actor is a prominent instance where media had vigorously reported for months
on the matter of the late actor’s death to be a murder. There were prime time
discussions on the actor’s death and relentless accusations were thrown at many
individuals who were hounded for months and were termed as drug dealers,
members of drug syndicate, etc. Some of the reporters claimed having access to
“exclusive chats” and in the name of Justice, refused to accept their act of
invading one’s privacy. The most pressing issues at the time such as falling GDP,
agricultural riots, covid 19 all seemed irrelevant. This was a case where not
one but three national agencies set out to probe into the death of the actor
and not once did the media or any other person query about why no incriminating
findings were found against the accused. In the present case, the
court said that “Substantial damage has been caused to the reputations of the
persons so called involved. It takes year of hard work to build a reputation
and with just one stroke it is brought from top to bottom. Without being
punished, there is stigma on their forehead till the trial is completed, no
matter if they are cleared of the charges.”[14].
In the meantime, following the reporting and trial by media, there was an
uproar all over social media and the influence of it on the minds of the masses
was so deep rooted that the involved individuals who are public figures
received death threats, slurs and other forms of online harassment.
SUGGESTIONS AND CONCUSION
The quest for truth must never end
and media is surely an institution that plays an active role. Essentially what
we must look at is to find the balance between right to freedom of speech and
expression and the right of the accused to a fair trial since at this point in
time, these 2 rights are conspicuously pitted against each other. The existing
system of self-regulation of media is questionable from the analyses of various
incidents discussed above. The media should respect the principle of the
presumption of innocence and avoid portraying an accused person as guilty
before they have been convicted in a court of law. The media should make a
clear distinction between news reporting and opinion pieces. This will help
prevent the media from influencing public opinion and the judiciary by
presenting their personal views as facts. Encouraging media literacy is also
cardinal since it is an important skill in today's information age, where the
proliferation of media sources can make it difficult to discern between
credible information and fake news. By developing media literacy skills,
individuals can become more discerning and informed consumers of media, better
equipped to evaluate the credibility and accuracy of media content, including
news articles and social media posts that amount to media trial. If the media
is tempted to go outside the bounds of the constitution and infringe on
individual liberties, the judiciary must be proactive and take the necessary
action to curb the same.
As
the former American minister Malcom X rightly stated, “the media is the most
powerful entity. 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.” In most cases, media is seen to be overlooking the
legal jurisprudence and principle governing trials in India, which is innocent
until proven guilty, creating a negative impact not only on the accused but
his/her family members as well. Pre-trial publicity can derail a fair and a
speedy trial. Somewhere along the lines, media clearly
missed the demarcation between news making and news reporting. There is a high
likelihood that an individual of ordinary prudence who sees a news story
repeatedly broadcasted on multiple news channels with a significant amount of
emphasis may be swayed by it, even if they previously were not convinced by the
media's arguments. While the freedom of speech and expression of the media
needs to be protected and promoted, the right to fair trial of the accused
needs to be secured and guaranteed. Denial of a fair trial is as much injustice
to the accused as it is to the victim and society. [15]
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[1] Dwarka Prasad Agarwal (D) By LRs. v. B.D. Agarwal and
Others, (2003)
6 SCC 230 at 245
[2] Anukul Chandra Pradhan v. Union
of India, (1996) 6 SCC 354 (para 7)
[3] Hashmat Ali Khan and Ghalif Nashter, Role of
Media: Education, Culture and Ethics in Modern India, SCC Online
[6] Swami
Ramdev vs Juggernaut Books Pvt Ltd & Ors, Indian Kanoon, Para 180
[8] https://www.siasat.com/delhi-court-acquits-sarvjeet-singh-jasleen-kaur-case-1705476/
[9]
https://thelogicalindian.com/news/saravjeet-singh-jasleen-kaur/
[11] Manu Sharma v. State (NCT of Delhi), (2010) 6
SCC 1