Trail by Media

P a g e | 1INTERNAL BACKLOG Judicial Strictures Pertaining To Trial by Media SUBMITTED BY AKSHAT PANDEY BA.LLB. PRN: 10010223010 Symbiosis Law School, NOIDA Symbiosis International University, PUNE On 12, September 2014 Under the guidance of Prof. Ahmed Ali Course-in-charge P a g e | 2 CERTIFICATE The project titled Judicial Strictures Pertaining to Trail by Media submitted to the Symbiosis Law School, NOIDA for Media Law as part of internal assessment is based on my original work carried out under the guidance of Prof Ahem Ali. The research work has not been submitted elsewhere forward of any degree. The material borrowed from other sources and incorporated in the project has been duly acknowledged. I understand that I myself would be held responsible and accountable for Plagiarism. Signature of the candidate: Date 12-9-2014 P a g e | 3 ACKNOWLEDGEMENT It is a great pleasure for me to put on records our appreciation and gratitude towards Prof. Ahmed Ali for his immense support and encouragement all through the preparation of this report. I would like to thank the college for providing us with a well-equipped library. Last but not the least, I would like to thank all the friends and others who directly or indirectly helped us in completing our project report. P a g e | 4 INDEX 1) Introduction.............................................................................................................5 2) Trail by Media Its Effects ......................................................................................6 3) Conflicting Rights of Victim, Accused and Right to Freedom Of Speech and Expression.......................................................................................8 4) International Perspective........................................................................................10 5) Judicial Strictures ...................................................................................................11 a) R.KAnandCase...............................................................................................11 b) Aarushi MurderCase......................................................................................12 c) Delhi Gang Rape Case....................................................................................13 6) Conclusion.................................................................................................................15 P a g e | 5 Introduction Trial by media is a phrase popular in the late 20th century and early 21st century to describe the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law. The Law Commission of India in order to harmonize the aforesaid two rights Freedom of Press Versus Right to free and fair trial, in its 200th Report4 submitted on 31st August 2006 recommended various amendments to the Contempt of Court Act 1971 and measures of postponement of proceedings and further said that such powers cannot be vested in the subordinate courts where the criminal proceedings are 'active'  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 will not be able to live the rest of their life without intense public scrutiny.  The subject of ‗Trial by Media‘ is discussed by civil rights activists, constitutional lawyers, judges and academics almost every day in recent times. With the coming into being of the television and cable-channels, the amount of publicity which any crime or suspect or accused gets in the media has reached alarming proportion.  We are aware that in a democratic country like ours, freedom of expression is an important right but such aright 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. Law Commissions 200th Report 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. 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 P a g e | 6 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. Trail By Media: Its Effect A) To the Victim 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. a) 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. b) 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. P a g e | 7 c) 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. after the judgment in R. Rajagopal v. State of Tamil Nadu 1 B) To Others 1) Suspects and accused apart, even victims and witnesses suffer from excessive publicity and invasion of their privacy rights. Police are presented in poor light by the media and their morale too suffers. The day after the report of crime is published, media says ‗Police have no cue‘. 2) Then, whatever gossips the media gathers about the line of investigation by the official agencies, it gives such publicity in respect of the information that the person who has indeed committed the crime, can move away to safer places. The pressure on the police from media day by day builds up and reaches a stage where police feel compelled to say something or the other in public to protect their reputation 3) The media also creates other problems for witnesses. If the identity of witnesses is published, there is danger of the witnesses coming under pressure both from the accused or his associates as well as from the police. At the earliest stage, the witnesses want to retract and get out of the muddle .Witness protection is then a serious casualty. C) Effect on Judiciary Another worrying factor and one of the major allegations upon ‗media trial‘ is prejudicing the judges presiding over a particular case. The media create a series of unconscious pressures on a juror 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. In interviewing jurors after the trial of Hollywood madam Heidi Fleiss, many jurors expressed how they hoped that the police would use their resources more wisely than to prosecute victimless crimes. When talking about the testimony of Dr. Irwin Golden, who was the coroner in the Simpson case, juror Marsha Rubin-Jackson said: 1 AIR 1995 SC264 P a g e | 8 But it comes to the point in this particular case where Dr. Golden has made thirty errors. Now, you can't tell me this man has not made errors on previous autopsies . . . . But this just happened to be a case that came to the court as a 'high-profile' case and the problems were brought to everyone's attention. Conflicting Rights of Victim, Accused and Freedom of Speech and Expression People’s Rightn to Know 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. In a democratic set up there has to be active participation of people in all affairs of their community and the state. It is their right to be kept informed about the current political social , economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider to form broad opinion in which they are being managed, tackled and administered by the government and their functionaries. To achieve this objective people need a clear and truthful account of events, so that they may form their own opinion and offer their own comments and viewpoints on such matters and issues and select their future course of action. But Right to knowledge for the public shouldn‘t curtail the accused right to fair trial otherwise that would be a grave miscarriage of justice. Free Speech vs Fair Trial Freedom of Press is not specifically mentioned in Part III of Indian Constitution, however the Hon'ble Supreme Court in a number of judgments has recognized that freedom of speech and expression also includes freedom of press1. In rapidly changing socio-economic conditions of a country like India, the role of media/ press has gained prominence and hence it is often quoted that "Media" is the fourth pillar of Indian Democracy. According to criminal jurisprudence, a suspect/accused is entitled to a fair trial and is presumed to be innocent till proven guilty by a Court of law. None can be allowed to prejudge or prejudice his case till the completion of trial. However, media on account of excessive coverage goes beyond its domain and publishes and covers interviews of witness or relative of a victim and prejudges P a g e | 9 the issue of conviction of the accused while the matter is pending adjudication in a court of law. Balance between the two Rights Under Article 19(1)(a) of the Constitution, the rights of the freedom of Press have been recognized as Fundamental Rights and under Article 21 of the Constitution the accused/suspect and under trial and the Civil litigant have Fundamental Right to have a free and fair trial3. Therefore balancing between the two fundamental rights has become inevitable and the time has come that Courts should give appropriate directions with regard to reporting of matters (in electronic and print Media) which are sub judice. When rights of equal weight clash, Courts have to evolve balancing measures based on re-calibration under which both the rights are given equal space in the Constitutional Scheme Art. 19(1)(a) of the Constitution of India guarantees, freedom of speech and expression and Art. 19(2) permit reasonable restrictions to be imposed. However Article 19(2) does not refer to 'administration of justice' but interference of administration of justice is clearly referred to in the definition of 'criminal contempt' in Sec. 2 of the Contempt of Courts Act,1971 and in Sec. 3 thereof as amounting to contempt. Therefore, publications/coverage which interfere or tend to interfere with the administration of justice amount to criminal contempt under the Contempt of Court Act and if in order to preclude such interference, the provisions of that Act impose reasonable restrictions on freedom of speech, such restrictions would be valid. Right to a Fair Trial 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. 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. One‘s life with dignity is always given a priority in comparison to one‘s right to freedom of speech and expression. 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 P a g e | 10 legal representation, the right to speedy trial, the right to be present during trial and examine witnesses, etc. International Perspective: A) Universal Declaration on Human Rights: The Universal Declaration of Human Rights, 1948, also recognises certain rights which should be taken note of. Article 10 deals with the right of an accused ―in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him‖. Article 11 of the Universal Declaration deals with the right to be presumed innocent and reads thus: ―Article 11 (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national orinternational law, at the time it was committed. Nor shall a heavier penalty be imposed than the one that is applicable at the time the penal offence is committed.‖ Article 12 deals with the person’s privacy rights and reads thus: ―Article 12: No one shall be subject to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interference and attacks. B) The American Supreme Court and the Circuit Courts, which are akin to our High Court as they, too, are superior appellate courts& have taken an ambivalent position on this controversy. Caught between the two warring fundamental rights, the American Supreme Court began with protecting the rights of the accused, but slowly shifted to protecting the rights of the media. But in the process, it laid down certain tests for dealing with the effects of pre-trial publicity and prescribed certain remedies for dealing with such adverse effects. These tests and remedies could be useful to us as well. In Sheppard v. Maxwell the Supreme Court of United States was asked to consider whether Sheppard was deprived of a fair trial in his state conviction for the second-degree murder of his wife because of the trial judge& failure to protect Sheppard sufficiently P a g e | 11 from the massive, pervasive and prejudicial publicity that attended his prosecution .Speaking for the Court, Clark, J. concluded that Sheppard did not receive a fair trial consistent with the due process clause of the Fourteenth Amendment and, therefore, reverse the judgment. The Court laid down the test of; reasonable likelihood; of prejudicial news prior to the trial preventing a fair trial. If such reasonablelikelihood exists, then the conviction should be overturned. The Court, hence, shifted from the test of &presumed prejudice to the test of reasonable likelihood. of the family of the deceased, giving version of the tragedy and extensively quoting the father of the deceased as to his version of the case. The Indian judiciary has not dealt substantially with the issue of freedom of press versus the right to fair trial. But this issue has taxed the imagination of the media, both the world over and in India. In 1994, thirty-nine distinguished legal experts and media representatives met for three days in Madrid. One of the basic principles, enunciated in the Madrid Principles on the Relationship Between the Media and Judicial Independence, is that :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. Thus, even the Madrid Principles do place a limit on the media ;not to violate the presumption of innocence Judical Stricture and Views 1) In the landmark judgement in R.K Anand vs Delhi High Courth the Supreme Court examined the important question relating to Trial by Media. The case arose out of a sting operation carried out by a private television channel, NDTV to expose the unholy nexus between the prosecution , its witnesss and the defence in the famous BMW hit and run case resulting in the death of six opersons by a speeding BMW car driven by the scion of Healthy and influential family. While the trial was pending from eight years , NDTV telecast a sting operation to expose the manner in which a senior advocate appearing for the accused was negotiating, with the help of Special Public Prosecutor, a sell out in favour of defence . The Special Public Prosecutor and the Defence were held guilty of contempt of Court and debarred from appearing in the Delhi High Court and its subordinate court for four months. P a g e | 12 In appeal before the Supreme Court, it was contended on behalf of the appellant that the TV channel had indulged in a trial by media and that it could have telecasted the sting only after operating permission from the Media. The Supreme Court rejected this contention holding that Such a course would not be an exercise in journalism but in that case the media would be acting as some sort of special vigilance agence for the court . On little consideration the idea appears to the quite repugnant both from the point of view of the court and the media. J udgement: The Court held that NDTV was not guilty of indulging in trial by Media.The Court dismissed R.K Ananad’s appeal and issued notice to him for enhance of punishment. Public prosecutor appeal was however allowed, quashing his conviction for criminal contempt but finding him guilty for the misconduct. 2) Aarushi Murder Case: The famous double murder case of Noida where parents were accused of killing daughter and servant hemraj , The media palyed a very important role in this case After every high profile case is solved, the media engages in a intra-industry introspection session on their role in the case. Media houses run amok to take credits for the firsts. ―Blame-storming‖ is the name of the game. With the Arushi murder case allegedly solved, the media is engaging in a similar exercise.This time a debate is ripe on how the media botched up the case. Even before evidence could have been presented in the courts, the media was already out with the verdict ; not once, but quite a few times. However, since handing out justice is not the core competency of the media — fortunately, they obviously erred. Of course, they were assisted by the faulty evidence gathering of the Noida police (the police are too thick-skinned to accept their fault). The culprits (as discovered by the media) were many. First was Hemraj, the domestic help (who was later found to be one of the dead). Next was Dr. Rajesh Talwar (the father of Arushi). Stories about Dr. Talwar‘s illicit relationship with a colleague and neighbour floated around adding to media‘s masala. Arushi too was linked with Hemraj. There was a slew of servants and employees who continued to fall into the net. Targeting innocent people P a g e | 13 continued like a detective serial on the tube making for eye-catching headlines until the compounder Krishna, finally admitted to having killed Arushi, avenging his mistreatment by Dr. Talwar.The Media was involved to such an extent that the Supreme Court of India on 6 th August 2008 sharply criticized the media for acting as if it was a super investigating agency and for tarnishing the reputation of the doctor couple (Rajesh and Nupur Talwar) whose daughter Arushi Talwar had been murdered. 3) Delhi Gang Rape Case The Delhi gang rape case is once again hogged media limelight. The reason being the juvenile court is going to give the shocking case‘s first verdict on one of the six accused – then a minor. In fact, the incident that took place in December 2012 is etched in the minds of people across the globe as a horrific event that once again brought to the public debate the issues of women safety and growing sexual assaults on them. The brutal rape by six men on a moving bus, which led to the death of the victim, brought people out on streets, not just demanding safety laws but forcing every home to mull on the otherwise tabooed issue of gender violence. There were calls for social reform that were not based on clichés of being holistic but on equality for men and women in opportunity and access, in education and familial structures. An important part in raising this debate was played by the media, both national and foreign. As the news of the rape broke, the media went into frenzy, not just in tracking the case but in leading people to introspect. A responsible section of the media asked people to be part of radical reforms the country required while it continued to give expression to the public grief, the mourning and reconciliation as people watched in horror the victim‘s final moments. However, the media was also accused of activism and leading a trial of its own while covering the case. As the movement to bring the gang rape victim to justice went viral, the nation saw widespread protest that spilled on streets across the country. The media covered the demonstrations day and night, following the protesters to every street and corner, giving a voice to their demands for justice and bringing them to the centre of political debate. Moreover, it exposed the growing crime statistics, especially in the national capital, against women. Basically, the media led bare the growing frustrations of an entire emerging aspirational urban class and generation. P a g e | 14 It was amid these reverberations that the media, including print, electronic and social, was accused of activism. As it catalysed anger among the civil society groups, prominent dailies such as The Hindu, The Times of India, The Indian Express, Hindustan Times, and others, continuously published protesters‘ movement and promoted the movement among masses not only through print but also through their electronic version. As the media created a momentum within society and government to focus on criminal acts and take immediate steps towards preventing such brutal crimes, there is however no doubt that it got carried away into the usual bickering about the political parties, bureaucrats and lawyers. There was also an onslaught of irresponsible story-telling that thrived on indifference, manufactured revolt, incompetence and lack of transparency in some sections. As the debate around the rape laws gained momentum, the media itself turned out like a dictator, who believed every man was a potential rapist and thus, called for stricter punishment, including capital sentence. There is no doubt that a large section of the media getting carried away with the heat of the rage that followed the rape, forgot that laws have to work equally for all rather than take shape according to the popular narrative. One is assured that the December 16 gang rape incident will continue to be a touchstone when covering issues related to women‘s safety and that the democracy‘s fourth pillar can transform incidents of national shame to national justice by espousing confidence in institutions that have been created to protect the citizens of the country. Conclusion:  From the above account it becomes clear that the media had a more negative influence rather than a positive effect (except for a few exceptions here and there). The media has to be properly regulated by the courts. The media cannot be granted a free hand in the court proceedings as they are not some sporting event. The law commission also has come up with a report on ‗Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)‘ [Report number 200 prepared in 2006].  The most suitable way to regulate the media will be to exercise the contempt jurisdiction of the court to punish those who violate the basic code of conduct. The use of contempt powers against the media channels and newspapers by courts have been approved by the Supreme Court in a number of cases as has been pointed out P a g e | 15 earlier. The media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial itself. Trial By Media Is Contempt Of Court And Needs To Be Punished  The Contempt of Court Act defines contempt by identifying it as civil and criminal: Criminal contempt has further been divided into three types: 1. Scandalizing 2. Prejudicing trial, and 3. Hindering the administration of justice.  Unlike American Constitution, Indian Constitution has wide power to impose restriction and control the power of media under article 19(2) of the Constitution. Recently it has also come to light that the media houses are making an arrangement with corporate houses for not reporting anything against them for immoral consideration. Thus while balancing between the two fundamental rights on account of excessive coverage in an appropriate case mode of prior restraint and self regulation should be effectively invoked and those who violate the basic code of conduct must be punished under Contempt of Court Act, 1971. When rights of equal weight clash, Courts have to evolve balancing techniques or measures based on re-calibration under which both the rights are given equal space in the Constitutional Scheme. P a g e | 16 Bibliography Books a) Madhavi Goradia Divan, Facts upon Media Law (Eastern Book Company LKO, 1 st Edn. 2010) b) Durga Das Basu , Law of the Press. Articles a) Trial By Media: A Legal Dilemma Resolved With Reference To Jessica Lal at legal services India b) Trial by Media Prejudice and the Sub judice c) 200 th Law Commission Report Websites a) www.google.com b) www.legalservices india.com