INTRODUCTION:

The subject of media by trial is very debatable among civil rights activists, constitutional lawyers, judges and academics. Though Media is regarded as one of the pillars of democracy and it has wide ranging roles in the society. But so far as the administration of criminal justice is concerned it also acquires a greater responsibility. In a democratic country, freedom of expression is an important right but such a right is not absolute in as much as the Constitution itself, while it grants the freedom under Article 19(1)(a), permitted the legislature to impose reasonable restriction on the right, in the interests of various matters, one of which is the fair administration of justice as protected by the Contempt of Courts Act, 1971. Such liberty is imposed upon media to avoid any chaos in the society.

Lord Atkin presented a view that Liberty does corrupt into license and is prone to be abused. Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become a license which would lead to disorder and anarchy.[1]

Freedom of media is the freedom of people as they should be informed of public matters. It is thus needless to emphasis that a free and a healthy press is indispensable to the functioning of democracy. It has now reincarnated itself into a ‘public court’ (Janta Adalat) and has started interfering into court proceedings. It completely overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’.

If media exercises an unrestricted or rather unregulated freedom in publishing information about a criminal case and prejudices the mind of the public and those who are to adjudicate on the guilt of the accused and if it projects a suspect or an accused as if he has already been adjudged guilty well before the trial in court, there can be serious prejudice to the accused. In fact, even if ultimately the person is acquitted after the due process in courts, such an acquittal may not help the accused to rebuild his lost image in society.

Basically there is greater need to strike a right balance between freedom of speech and expression of the media on the one hand and the due process rights of the suspect and accused. Art 19(1)(a), 19(2), Art 21 and Art 14 of the Constitution play a very important role in striking an even balance. Therefore the project discusses following points:

1. Freedom of speech v. fair trial

2. The different approaches upon trial by media

Madrid principle

Indian constitution

Contempt of court act

3. Regulatory measures

4. Subconscious effect on judges by media trial

5. Categories of publication by media which can be regarded as prejudicial to suspect or accused.

6. Analysis of 200th report of Law Commission

7. Conclusion

Freedom of Speech and Principles of Fair Trial

Freedom of speech and expression incorporated under Article 19 (1)(a) has been put under ‘reasonable restriction’ subject to Article 19 (2) and Section 2 (c) of the Contempt of Court Act. Right to a fair trial is absolute right of every individual within the territorial limits of India vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is more important as it is an absolute right which flows from Article 21 of the constitution to be read with Article 14. The right to a fair trial is at the heart of the Indian criminal justice system. It encompasses several other rights including the right to be presumed innocent until proven guilty, the right not to be compelled to be a witness against oneself, the right to a public trial, the right to legal representation, the right to speedy trial, the right to be present during trial and examine witnesses, etc.

Parties have a constitutional right to have a fait trial in the court of law, by an impartial tribunal, uninfluenced by newspaper dictation or popular clamour.[2] What would happen to this right if the press may use such a language as to influence and control the judicial process? It is to be borne in mind that the democracy demands fair play and transparency, if these are curtailed on flimsiest of grounds then the very concept of democracy is at stake.

The concept of ‘denial of a fair trial’ has been coined by authoritative judicial pronouncements as a safeguard in a criminal trial.

The most objectionable part, and unfortunate too, of the recently incarnated role of media is that the coverage of a sensational crime and its adducing of ‘evidence’ begins very early, mostly even before the person who will eventually preside over the trial even takes cognizance of the offence, and secondly that the media is not bound by the traditional rules of evidence which regulate what material can, and cannot be used to convict an accused. In fact, the Right to Justice of a victim can often be compromised in other ways as well, especially in Rape and Sexual Assault cases, in which often, the past sexual history of a prosecutrix may find its way into newspapers. Secondly, the media treats seasoned criminal and the ordinary one, sometimes even the innocents, alike without any reasonable discrimination. They are treated as a ‘television item’ keeping at stake the reputation and image. Even if they are acquitted by the court on the grounds of proof beyond reasonable doubt, they cannot resurrect their previous image. Such kind of exposure provided to them is likely to jeopardize all these cherished rights accompanying liberty.[3] Therefore there is a need for balancing the freedom of speech and expression on the one hand and undue interference in the name of freedom of speech as permitted by Article 19(2) on the other hand. It is to be realized by media before publication that such should be done without unduly restricting the rights of suspects/accused under Article 21 of the Constitution of India for a fair trial.

In Anukul Chandra Pradhan vs. Union of India, [4], the Supreme Court observed that “No occasion should arise for an impression that the publicity attached to these matters (the hawala transactions) has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial”

Principle behind Trial by Media:

Madrid principle

A group of 40 distinguished Legal Experts and Media representatives convened by the International Commission of Jurists (ICJ), at its Centre for the Independence of Judges and Lawyers (CIJL) and the Spanish Committee of UNICEF met in Madrid, Spain between 18-20, January 1994. The objectives of the meeting were:

(1) to examine the relationship between the media and judicial independence as guaranteed by the 1985 UN Principles on the Independence of Judiciary.

(2) To formulate principles addressing the relationship between freedom of expression and judicial independence.

The group of media representatives and jurists while stating in the ‘Preamble’ that the ‘freedom of the media, which is an integral part of freedom of expression, is essential in a democratic society governed by the Rule of Law and that it is the responsibility of the Judges to recognize and give effect to freedom of the media by applying a basic presumption in their favour and by permitting only such restrictions on freedom of the media as are authorized by the International Covenant on Civil and Political Rights (“International Covenant”) and are specified in precise law, emphasized that :

“The media have an obligation to respect the rights of individuals, protected by the International Covenant and the independence of the judiciary”.

It refers to the principles which are drafted as “minimum” standards of protection of the freedom of expression.

The Basic Principle:

(1) Freedom of expression, including the freedom of the media constitutes one of the essential foundations of every society which claims to be democratic. It is the function and right of the media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence.

(2) This principle can only be departed from in the circumstances envisaged in the International Covenant on Civil and Political Rights,

(3) The right to comment on the administration of justice shall not be subject to any special restrictions.

(4) The Basic Principle does not exclude the preservation by law of secrecy during the investigation of crime even when investigation forms part of the judicial process. Secrecy in such circumstances must be regarded as being mainly for the benefit of persons who are suspected or accused and to preserve the presumption of innocence. It shall not restrict the right of any such person to communicate to the press, information about the investigation or the circumstances being investigated.

(5) The Basic Principle does not exclude the holding in camera of proceedings intended to achieve conciliation or settlement of private disputes.

(6) The Basic Principle does not require a right to broadcast or record court proceedings. Where this is permitted, the Basic Principle shall remain applicable.

Furthermore the principle provides that Judge should receive guidance in dealing with the press and the Judge shall be encouraged to assist the press by providing summary of long or complete judgment of matters of public interest. Judges shall not be forbidden to answer questions from the press etc.

Moreover the balance between independence of judiciary, freedom of the press and respect of the rights of the individual particularly of minors and other persons in need of special protection is difficult to achieve. Such circumstances can be avoided to a large extent by establishing a Code of Ethics for the media which should be elaborated by the profession itself.

Indian constitution

Our Constitution does not separately refer to the freedom of the press or of the electronic media in Part III but these rights are treated by the law as part of the ‘Freedom of speech and expression’ guaranteed by Article 19 (1)(a) of the Constitution of India. The guarantee is subject to ‘reasonable restrictions’ which can be made by legislation to the extent permitted by Article 19(2).

In addition to it there are certain other rights which guarantees rights to the suspect or accused person. Article 20, clause (1) of the Constitution states that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence and not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Art 20, clause (2) states that no person shall be prosecuted and punished for the same offence more than once. Art 20, clause (3) is important and it deals with the right against self-incrimination.

Art 21 is the crucial article which guarantees the right to life and liberty. Article 22(2) requires that a person who is arrested has to be produced before a Magistrate within 24 hours of the arrest.

Contempt of Court Act

Section 2(c) of Contempt Court Act defines criminal contempt.

“Section 2(c): ‘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 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”.

Section 3(1), however, exempts the following:

“Innocent publication, if the publisher had no reasonable grounds for believing that the proceeding was pending”.

Section 4 of the Act protects fair and accurate reporting of judicial proceedings. Section 7 states when publication of information relating to proceedings in chambers or in camera is not contempt, except in certain cases which are enumerated in that section.

Pre-trial publications granted immunity under sec 3(2) and Explanation:

It will be seen from the Explanation below sec 3, the starting point for deeming a criminal proceeding as pending, it is sufficient if a charge sheet or challan is filed or Court summons or warrant are issued. Thus so far as criminal contempt is concerned; the ‘pre-trial’ period has not been given the required importance under the Court of Contempt Act, 1971.

‘Pendency’ under the Explanation to sec 3 starts, in a criminal case, only from the time when the charge sheet or challan is filed or summon or warrant is issued by the criminal Court and not even from date of arrest, even though from the time of arrest, a person comes within the protection of the Court for he has to be brought before a Court within 24 hours under Art 22(2) of the Constitution of India. If there are prejudicial publications after arrest and before the person is brought before Court or his plea for bail is considered, there are serious risks in his getting released on bail.

Certain acts like publications in the media at the pre-trial stage, can affect the rights of the accused for a fair trial. Such publications may relate to previous convictions of the accused, or about his general character or about his alleged confessions to the police etc.

In the context of a parallel investigation which was undertaken pending arrest and trial in the court, the Supreme Court referred to ‘trial by press.’ This was, of course, before 1971 Act was enacted. In Saibal v. B.K. Sen[5] it 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 tribunal is going on, must be prevented.

Regulatory Measures

The Press Council of India (PCI) was established to preserve the freedom of the press and to improve the standards of news reporting in India. Under the Press Council Act 1978, if someone believes that a news agency has committed any professional misconduct, the PCI can, if they agree with the complainant, “warn, admonish or censure the newspaper”, or direct the newspaper to, “publish the contradiction of the complainant in its forthcoming issue.” Given that these measures can only be enforced after the publication of news materials, and do not involve particularly harsh punishments, their effectiveness in preventing the publication of prejudicial reports appears to be limited.

Along with these powers, the PCI has established a set of suggested norms for journalistic conduct. These norms emphasise the importance of accuracy and fairness and encourages the press to “eschew publication of inaccurate, baseless, graceless, misleading or distorted material.” The norms urge that any criticism of the judiciary should be published with great caution. These norms further recommend that reporters should avoid one-sided inferences, and attempt to maintain an impartial and sober tone at all times. But significantly, these norms cannot be legally enforced, and are largely observed in breach.

Lastly, the PCI also has criminal contempt powers to restrict the publication of prejudicial media reports. However, the PCI can only exercise its contempt powers with respect to pending civil or criminal cases.

Subconscious Effect on Judges by Media Trial

Media publication can ‘unconsciously’ influence Judges or Juries. The media create a series of unconscious pressures on a juror especially in a high-profile trial. Jurors know that they are being watched by the world. They are not only making a decision for themselves, but they are making a statement for their family, co-workers, community, and society as a whole. This elevates their verdict to a level beyond the evidence. The American view appears to be that Jurors and Judges are not liable to be influenced by media publication, while the Anglo-Saxon view is that Judges, at any rate may still be subconsciously (though not consciously) influenced and members of the public may think that Judges are influenced by such publications under such a situation. Therefore, Lord Denning stated in the Court of Appeal that Judges will not be influenced by the media publicity[6], a view which was not accepted in the House of Lords.

Cardozo, one of the greatest Judges of the American Supreme Court, referring to the “forces which enter into the conclusions of Judges” observed that “the great tides and currents which engulf the rest of men do not turn aside in their curse and pass the Judges by”.[7]

Hon’ble Justice D. M. Dharmadhikari, Chairman, M. P. Human Rights Commission also asserted that there is always a chance that judges get influenced by the flowing air of remarks made upon a particular controversy. The media presents the case in such a manner to the public that if a judge passes an order against the “media verdict”, he or she is deemed either as corrupt or biased.

“No Judge fit to be one is likely to be influenced consciously, except by what he sees or hears in Court and by what is judicially appropriate for his deliberations. However, Judges are also human and we know better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process … and since Judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print. The power to punish for contempt of court is a safeguard not for Judges as persons but for the functions which they exercise. It is a condition of that function – indispensable in a free society – that in a particular controversy pending before a court and awaiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the undertone of extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the right to influence Judges and Jurors.”[8]

Various high profile cases where media trial played an important role:

There are series of cases where trial by media played an important role in administration of justice and disposal of the case. The last few years have proven to be quite extraordinary what with the impact of television and newspaper coverage forcing some lawsuits to be re-opened. The cases of Nitish Katara, Jessica Lall, Priyadarshini Mattoo, Aarushi Talwar and Ruchika Girhotra are a few examples.

Categories of Publication by Media which can be regarded as Prejudicial to Suspect or Accused

The right to free expression and speech as envisaged in Article19(1) (a) of Constitution of India provides the right to hold and express opinions and ideas subject however to reasonable restrictions imposed under Clause (2) of the article. The supporters for the freedom of speech and expression argue that they should be allowed to write and publish any criticism on judiciary which is true and fair, devoid of any contempt proceedings.

In E.M.Sankaran Nambbodiripad v T. Narayanana Nambiar[9] it has been held that while Article 19(1) (a) guaranteed the freedom of speech and expression, Article 19(2) showed that it was also intended that contempt of court should not be committed in exercising that right. The liberty of free expression is not to be compounded with licence to make unfounded allegations of corruption against judiciary. The abuse of the liberty of free speech and expression carries the case nearer the law of contempt.[10] There are various categories

Publications concerning the character of accused or previous conclusions:

“Publications which tend to excite ‘feelings of hostility’ against the accused amount to contempt because they tend to induce the Court to be biased. Such ‘hostile feelings’ can be most easily induced by commenting unfavourably upon the character of the accused.” These also can be influenced on the Jury.

“Such publications amount to gross contempt because they bring to the notice of the Jury facts very damaging to the accused, which they are not entitled to know, and which have a tendency to create bias against the accused.” In English case an accused was arrested and remanded on a charge of forgery, the media published articles that he had admitted an earlier conviction for forgery and that he had been sentenced to imprisonment. Wills J held that that was “unquestionably calculated to produce the impression that, apart from the charges then under enquiry, he was a man of bad and dissolate character”[11]

Publication of Confessions:

Though a confession to police is inadmissible in law still publications of confessions before trial are treated as highly prejudicial and affecting the Court’s impartiality and amount to serious contempt. In R v. Clarke, ex p Crippen :[12] Crippen was arrested in Canada but not formally charged, but a publication appeared in England in Daily Chronicle, as cabled by its foreign correspondent, that “Crippen admitted in the presence of witnesses that he had killed his wife but denied the act of murder”. The publication was treated as contempt.

Publications which comment or reflect upon the merits of the case:

This is indeed the extreme form of ‘trial by newspaper’ since the newspaper usurps the function of the Court without the safeguards of procedure, right to cross-examine etc. Such publications prejudge the facts and influence the Court, witnesses and others. In Shamim vs. Zinat[13], an article was published in a magazine pending an appeal against conviction for murder expressing opinion on the merits of the case. The High Court held that it amounts to contempt of court because it is interference into the course of justice.

News item scandalizing a judge:-

The fundamental right to freedom of speech in the context of a news item scandalizing a judge was exhaustively considered by a Division Bench of the Orissa High Court in Lokanath Mishra v State of Orissa[14] . It was held that it was in the public interest to ensure that allegation or criticism which is scandalous or tend to scandalize or tend to lower the authority of the court is not permitted because in functioning of democracy an independent judiciary is to function without fear or favor and its strength is the faith of the public in general in the institution.

Creating an atmosphere of prejudice:

This applies more in the present situation of media. Where the news reporters are in a race of publishing more breaking news material than others, but if they want to produce sensational films, they must take care in describing them not to use any language likely to bring about any derangement in the carriage of justice.

In M.P. Lohia vs. State of West Bengal[15], to which we have earlier referred, the Supreme Court seriously deprecated a one sided article in a newspaper in which the allegations made by the parents of the wife in an alleged dowry death case were published but the record filed by the accused that his wife` was schizophrenic were not published. These publications create a pressurised atmosphere before the Judge.

Premature publication of evidence:-

While the police or the Criminal Investigation Department were to pursue their investigation in silence and with all reticence and reserve, being careful to say nothing to prejudice the trial of the case, whether from the point of view of the prosecution or of the defence, it had come to be somehow for some reason the duty of newspapers to employ independent staff of amateur detectives who would bring to an ignorance of the law of evidence a complete disregard of the interests whether of the prosecution or the defence”

To publish results of such investigations could prejudice a fair trial and will therefore amount to contempt. assuming investigation journalism is permissible, if that is continued after criminal proceedings become ‘active’ and a person has been arrested, and if by virtue of the private investigation, the person is described as guilty or innocent, such a publication can prejudice the courts, the witnesses and the public and can amount to contempt.

Analysis of 200th report of Law Commission

The most reckoning research on the positive and negative aspects of media trial has been elaborated in 200th report of the Law Commission entitled Trial by Media: Free Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) that has made recommendations to address the damaging effect of sensationalized news reports on the administration of justice. While the report has yet to be made public, news reports indicate that the Commission has recommended prohibiting publication of anything that is prejudicial towards the accused, a restriction that shall operate from the time of arrest. It also reportedly recommends that the High Court be empowered to direct postponement of publication or telecast in criminal cases.

The report noted that at present, under Section 3 (2) of the Contempt of Court Act, such publications would be contempt only if a charge sheet had been filed in a criminal case. The Commission has suggested 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. In the perception of the Commission such an amendment would prevent the media from prejudging or prejudicing the case. Another controversial recommendation suggested was to empower the High Court to direct a print or an electronic media to postpone publication or telecast pertaining to a criminal case and to restrain the media from resorting to such publication or telecast. The 17th Law Commission has made recommendations to the Centre to enact a law to prevent the media from reporting anything prejudicial to the rights of the accused in criminal cases from the time of arrest, during investigation and trial.

CONCLUSION:

Free expression is the fundamental fountain-head of democracy. The right of free expression does not however confer right to denigrate others right of person and reputation as such the right of free expression is subject to reasonable restrictions. There the right of press should be subject to limited restriction to keep a balance in the society. Similarly Any institution, be it legislature, executive, judiciary or bureaucracy, is liable to be abused if it exceeds its legitimate jurisdiction and functions. But sometimes these ultra vires activities are blessing in disguise as is the case of judicial activism. Media trial is also an appreciable effort along with the revolutionary sting operations as it keeps a close watch over the investigations and activities of police administration and executive. But there must be a reasonable self-restriction over its arena and due emphasis should be given to the fair trial and court procedures must be respected with adequate sense of responsibility.

A watch over the activity of media can be applied through the provisions of contempt. Realizing the need for doing away with the traditional and conservative approach, the Indian legislature brought in “The Contempt of Court Amendment Act, 2006” and introduced through amendment a new Section 13 (b).[16] With this statutory amendment now defence of truth can be pleaded in contempt of court proceedings if such an assertion of fact was in the public interest and is bona fide.

This initiative by the legislature though a small step in a move to change the pre-judge notion approach of the judiciary, is a right step, for it recognized the need for balance in excising the power of contempt jurisdiction by the courts and the right of the citizen to express and hold ideas.

REFERENCE:

1 Express Newspapers Vs. U.O.I., (1997) 1 SCC 133. See also re:Harijai Singh and re:Vijayakumar, AIR 1997.SC 73 wherein the Supreme Court of India has observed that the freedom of press is regarded as “the mother of all liberties in a democratic society”.

2 Cooper v. People (1889) 6 Lawyers Report Annotated 430(B).

3 Jagannadha Rao, Fair Trial and Free Press: Law’s Response to Trial by Media, p. 26.

4 1996(6) SCC 354

5 AIR 1961 SC 633

6 Attorney General v. BBC : 1981 AC 303 (CA), p. 315.

7 ‘Nature of the Judicial Process’ , Lecture IV, Adherence to Precedent. The Subconscious Element in the Judicial Process, 1921, Yale University Press. The full text of the passage in the above essay of Cardozo reads thus: “Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex instincts and emotion and habits and convictions, which make the man, whether he be litigant or Judge … … … There has been a certain lack of candor in much of the discussions of the theme or rather perhaps in the refusal to discuss it, as if Judges must lose respect and confidence by the reminder that they are subject to human limitations.. …” Cardozo then stated in a very famous quotation, “None the less, if there is anything of reality in my analysis of the Judicial Process, they do not stand aloof on these chill and distant heights; … The great tides and Currents which engulf the rest of men, do not turn aside in their course, and pass the Judges by”.

8 Justice Frankfurter observation in case of Abrams v. U.S : (1919) 250 US 616

9 AIR 1970 SC2015: 1970 (2) SCC325

10 M.R.Prashar v. Dr. Farooq Abdhullah (1984) 1 Cr LC 433

11 R v. Parke : (1903) (2) KB 432

12 (1910) 103 LT 636

13 1971 Crl L5 1586 (All)

14 1999 Cri LJ4719

15 AIR 2005 SC 790

16 “The courts may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.”

Received on 28.03.2013 Modified on 02.04.2014

Int. J. Ad. Social Sciences 2(2): April-June, 2014; Page 92-97