“A fair trial is one in which the rules and evidence are honored, the accused has competent counsel and the judge enforces a proper courtroom procedure, a trial in which every assumption can be challenged.”
-Harry Browne
Table of Contents
Introduction
The Indian news media has freedom of speech and expression, which is ensured to it under Article 19(1) (a) of the Indian Constitution to publish court proceedings in the greater public interest. However, Article 19(2) of the Constitution authorizes the government to impose, by law, reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.”
In Brij Bhushan and another v. State of Delhi, the court held “ It must be recognized that freedom of speech and expression is one of the most valuable rights guaranteed to a citizen by the constitution and should be jealously guarded by the courts. It must also be recognized that free and political discussion is essential for the proper functioning of a democratic government. and the tendency of modern jurists is to deprecate censorship though they all agree that “liberty of the press” is not to be confused with “licentiousness”. But the constitution itself has prescribed certain limits for the exercise of freedom of speech and expression and the court is only called upon to see whether a particular case comes within those limits.”
This is primarily done to ensure the transparency and legitimacy of a trial. This ensures that the media, also the fourth pillar of the Indian Democracy is not deprived of the power it deserves. There have been numerous cases where responsible coverage of cases proves to be a hanging sword over those in power.
As seen in the case of Priyadarshini Mattoo that is Santosh Kumar Singh vs State Th. — a student at the Law Centre of Delhi University who was allegedly murdered by her senior Santosh Singh — the Delhi Police had allegedly sabotaged all clues concerning the crime scene and botched up relevant evidence at the behest of Singh’s father, then Joint Commissioner of Police. But justice prevailed because the media took it upon itself to constantly hammer authorities with its news headlines forcing them to not dispose of the case. Finally, the High Court ordered Singh to be ‘hanged till death’.
Free speech versus fair trial
- Article 14 of the International Convention and Civil and Political Rights (ICCPR) guarantees the right to a good trial and Article 16 provides a right to recognition everywhere as an individual before the law. Article 10 of the Universal Declaration on Human Rights (UDHR), which again guarantees the right to a good trial.
- Section 304 in the code of criminal procedure provides for legal aid to citizens who can’t afford it to ensure fair trial.
- Article 21 of the Constitution provides, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
So even though the right to the free trial is not exclusively mentioned in the Indian constitution it is assumed to be ‘by default’ within the objectives of the constitution.
Justice Brennan stated: “No one can seriously doubt, however, that uninhibited prejudicial pretrial publicity may destroy the fairness of a criminal trial.”
In Nahar Singh Yadav And Another.. Versus Union of India, the court held that “A criminal trial is a judicial examination of evidence with the object of punishing the offenders on proper proof of relevant facts,…Hence a criminal trial, which may result in depriving a person of not only his personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the foremost imperative of a criminal justice system.”
Irresponsible and untamed coverage of sub-judice matters is a frequent phenomenon in our nation. Media houses that are largely run by big industrialists see Judicial trials as an economic opportunity and may sensationalize the same to improve their television rating points.
This was seen in the case of Sushil Sharma v. The State (Delhi Administration and Ors., 1996, there was little evidence that the accused had murdered his partner. However, while the case was still pending in the court, the media had started portraying the accused as a murderer and could change the views of the public even before the decision of the case.
Such cases are clear violations of the principle “innocent until proven guilty” which is a principle of common law that means, it is the duty of the prosecutor and information tribunals to assume the accused innocent until he is proven guilty beyond a reasonable doubt. But to the contrary, it is often seen that a criminal matter which can be portrayed as emotionally disturbing and have the potential to spur controversy is considered to be a source of ‘content’ and are sensationalized to appeal to the viewers, this entire process puts the reputation of the accused at risk. Moreover, it infringes upon the fundamental right to privacy of both the accused as well as the victim.
As a result, Celebrity trials, riveting cases of sexual abuse, and minor abuse sometimes receive undue media attention. The reputation of the accused is perpetually undermined and defamed.
In the recent Sushant Singh Rajput death case, actor Rhea Chakroborty was arrested for judicial inquiry. The 28-year-old was arrested based on the statements from other accused who had been arrested in connection with the case. For the entire period that she was questioned and was under the judicial radar, the media didn’t spare her privacy and reputation any heed. And brutally disparaged her honor to gain viewership. She was monitored through lenses and the TV news channels did not even refrain from calling her names, accusing her of black magic and going below the belt. These were all sub-judice matters. The court was yet to decide its verdict, but the accused was held guilty by public opinion.
India does not have any legal provisions that prevent reporting or commenting on Sub Judice matters, unlike America. Some trials with all the twists and mysteries to solve are a real thwart to media houses and their ratings but it is the duty of the state to not compromise people’s fundamental and constitutional rights in the name of investigative or intriguing journalism. The media has the power and reach to change and formulate opinions of thousands of members of society and hence, they should cater the society with responsible journalism.
Legal measures to regulate trial coverage
The only reasonable measure that the judiciary can fancy regulating media proceedings is thru the contempt of court act 1971. The act says that “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of the other act whatsoever which interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in the other manner.
Mohd. Akhtar vs The State of Jammu and Kashmir
As in the Kathua gang rape case that is the Mohd. Akhtar vs The State Of Jammu And Kashmir which happened in January 2018, some media houses revealed the identity of the minor victim. The Delhi supreme court took suo moto cognizance and ordered those media houses to deposit ₹10 lakhs as a penalty. Section 23 of the Protection of youngsters from Sexual Offences Act and Section 228A make revealing of the identity of a rape victims a punishable offence.
The objective of the act is not to curtail the rights of media under article 19 but to protect the accused as well as the victim from unfair scrutiny and detest from the society in sub judice matters.
Sahara India Real Estate … vs Securities & Exch.Board Of India & …
the bench, headed by Chief Justice S.H Kapadia, said that if publishing news related to a trial would “create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of the trial”, the court could grant a postponement order, temporarily gagging the media from reporting on it.
In the recent case where the Delhi HC took suo moto cognizance of sedition charges against 18 accused, the Additional sessions judge Amitabh Rawat, cautioned the media to be careful and objective in its approach. “It is one thing to report generally about the charge-sheet but quite another to reproduce it as it is and thus, obviously, the question of leakage would arise. This is grossly unfair and unjustified and the court expects that it would not occur in the future,” the court said.
The norms of journalistic conduct issued by the press council of India says “The fundamental objective of journalism is to serve the people with news, views, comments, and knowledge on matters of public interest during a fair, accurate, unbiased, sober, and decent manner. to the present end, the Press is predicted to conduct itself, keep with certain norms of professionalism, universally recognized. The norms enunciated below, and other specific guidelines appended thereafter, when applied with due discernment and adaptation to the varying circumstance of every case, will help the journalist to self-regulate his or her conduct.” However, this provision expects self-regulation which again leaves the matter at the mercy of the reporter.
Section 20 of the Cable TV Networks (Regulation) Act, 1995, states that the govt can regulate or prohibit the transmission or retransmission of any program that it feels isn\’t in conformity with the Programme and Advertising Code, which oversees television content in India.
However, since there’s nobody to pre-certify content for TV, potentially problematic programs only come to note once they have been aired.
Hence, these regulations are not strict enough to harness the role of media and news agencies and prevent them from scandalizing cases, distorting facts, or propagating alternative narratives.
Conclusion
The power of media cannot be undermined when it comes to responsible and unbiased journalism. In a democratic nation, the freedom of speech is a weapon against the unchecked authority of those in power.
The Indian media has time and again proved how it can help bring those under the ambit of law, who would otherwise be neglected or ignored. But there have also been cases where the media has sabotaged the rights of those under the judicial review by breaching their privacy, declaring them guilty even before the trial, and bringing filth to their reputation.
The unrestrained and unquestioned coverage of judicial trials by print, social, or television media causes injustice to many, which should not be tolerated especially when they are fighting for justice already.
REFERENCES
- https://braddocklaw.net/what-does-the-right-to-a-fair-trial-mean-defense-attorney/
- https://gulfnews.com/world/asia/india/trial-by-media-wins-justice-for-victims-in-india-1.572108
- https://blog.ipleaders.in/principal-features-of-a-fair-trial/
- https://www.scconline.com/blog/post/2021/01/04/chh-hc-whether-filing-of-forged-and-fabricated-document-amounts-to-contempt-of-court-hc-explains/
- https://legaldesire.com/contempt-of-court-in-india-and-freedom-of-media-and-privacy-in-sub-judice-matters/
- https://accountablejournalism.org/ethics-codes/India-Norms
- https://www.greaterkashmir.com/news/kashmir/media-trial-guilty-until-proven-innocent/
- https://www.insightsonindia.com/2020/09/11/cable-tv-networks-regulation-act-1995/
- https://www.coursehero.com/file/p5p7066bq/Consider-the-following-statements-The-government-can-regulate-or-prohibit-the/
- https://indiankanoon.org/doc/158887669/?type=print
- https://www.scconline.com/blog/post/tag/suo-motu-cognizance/
- https://www.scconline.com/Members/NoteView.aspx?enc=SlRYVC0wMDAwMDU0NzM5JiYmJiY0MCYmJiYmU2VhcmNoJiYmJiZmdWxsc2NyZWVuJiYmJiZ0cnVlJiYmJiZyZWFzb25hYmxlIHJlc3RyaWN0aW9uIG9uIGZyZWVkb20gb2Ygc3BlZWNoJiYmJiZBbGxXb3JkcyYmJiYmZ1NlYXJjaCYmJiYmZmFsc2U=
This article is authored by Aditi Rathore, Student at Institute of Law, Nirma University, Ahmedabad.
