India is world’s largest democracy. The Government of the Union of India constitutes of four pillars. These are Executive, Legislature, Judiciary and the fourth estate.
India is world’s largest democracy. The Government of the Union of India constitutes of four pillars. These are Executive, Legislature, Judiciary and the fourth estate. This fourth estate is the media. The Indian Constitution does not contain any express provision for the freedom of media and press. The media deduces its rights from the right to freedom of speech and expression available to the citizens under Article 19(1) (a) of the Indian Constitution. Thus, the media has the coequal rights—no more, no less than any individual to write, publish, circulate or broadcast. In pre-independent India a case arose, in which the Privy Council held- “The freedom of the journalist is an ordinary part of the freedom of the subject and to whether lengths the subject in general may go, so also may the journalist, apart from the statute law, his privilege is no other and no higher….. No privilege attaches to his position.”
Although the rights of the media are not guarded by any specific provision of the constitution, the Hon’ble court has time and again inveterate that the rights of the press are tacitly included in the guarantee of freedom of speech and expression under Article 19(1) (a) of the Indian Constitution.
In Romesh Thapper v. State of Madras the Supreme Court stated that freedom of speech and expression includes freedom of press. It held that, “Turning now to the merits there can be no doubt that freedom of speech and expression includes propagation of ideas, and that freedom is enshrined by the freedom of circulation”.
Presently, under sec. 3(2) of the Contempt of Courts Act, 1971, full exemption from criminal prosecutions is granted to publications even if they prejudicially interfere with the course of justice in a criminal case. But this immunity is available only if by the date of publication, a charge sheet or challan is not filed or if summons or warrant is not issued. The publications would amount to contempt only if a criminal proceeding is actually pending i.e. if charge sheet or challan is filed or summons or warrant are issued by the Court by the date of publication.
Media plays a dynamic role in shaping the opinion of the society and it is competent enough of changing the entire viewpoint of the people. The media can be praised for initiating a trend where it has an effective role in making sure that the offender is punished and that justice is done. The last two decades has seen the coming into being of cable television, local radio networks, the internet and the social media. This has immensely increased the reach and impact of the mass media. However, media freedom also carries with it a certain degree of liability in case of tantalising and false reports being published with the only objective of expanding their viewership and readership.
The media, in India, has been always been influential in forming public opinion on matters which are of social and economic importance. The media has been continuously making the citizens aware of the different problems that plague our country, like honour killings, farmer suicides, inflation, corruption, poverty, unemployment, and so on.
However, it is also the duty of the media to make sure that whatever is put forward in the name of news is accurate. Reporting should be such that serves the interests of the society. Under the garb of news, it should not convey false news that affects any person in a deleterious way. Even if the media, later on, rectifies its prior false statement, the injury done to the person cannot be undone, in most of the cases.
This is especially true in case of media reports, concerning criminal cases. Such cases involve the questions of life and liberty of the person, which is a sensitive issue. It must, therefore, be viewed with utmost care. Occasionally, such news may sway the judges and thereby deprive a citizen of this valuable right. The media feeds the public with what it is interested in, and not what is in public interest.
The role of media, in relation to that of the judiciary, needs discussion. George Gerbner states, “Popular entertainment and news via mass media represent the convention cultural pressures of the social order. The judicial process, however, represents an effort to adjudicate individual cases according to law.”
Trial by media is a term of non-literary or vernacular origin. It was meant to indicate the role of adjudication that the media had assigned unto itself. Being informal in origin, no comprehensive definition of the term existed in textbooks. The Hon’ble Supreme Court has made an attempt in R.K Anand v. Registrar, Delhi High Court to define the term in the following manner: “The impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. 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, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny.”
The result of the excessive publicity about a suspect or an accused, even before the trial begins in a Court, causes impediments in fair investigation and trial. Sometimes, the accused is declared as the offender by the media even before the Court pronounces its verdict. This amounts to undue interference with the administration of justice. Privacy rights of all persons concerned are also interfered with. The victims and the witnesses are also affected in similar manner.
The UN Special Rapporteur on Freedom of Expression and Opinion received a submission from the British Irish Watch (now known as Rights Watch UK) against a very sustained attack by the press on Mrs. Bernadette and Mr. Michael McKevitt who had been advocating national sovereignty for Ireland and who were claiming the Irish people’s right to self-determination through a Committee. The media started linking these two persons to the Omagh bombing of 15th August,1998 in which 29 people were killed. The media attack started even before the police interrogated them. The contents of the representation to the U.N. Rapporteur by the British Irish Watch quoted below, fits well into what is happening with the media in our own country:
“Guilt by association is an invidious device. In the case of Bernadette and Michael McKevitt, the media have created a situation where almost no one in Ireland is prepared to countenance the possibility that they may be innocent, notwithstanding the fact that neither of them has even been questioned by the police in connection with the Omagh bombing. They have been demonized … such media campaigns are self-defeating. If the media repeatedly accuses people of crimes without producing any evidence against them, they create such certainty of their guilt in the minds of the public that, if these persons are even actually charged and tried, they have no hope of obtaining a fair trial. When such trials collapse, the victims of the crime are left without redress. Equally, defendants may be acquitted but they have lost their good name”
The errors on part of the police during investigation of the crimes can be attributed to the hype which the media gives to such cases. From day one it starts building immense pressure on the police to solve the case immediately and to catch the culprit. It starts reporting that the police have cue in the matter. The morale of the police suffers and as a result they become forced to divulge whatever little information they have. The media gathers the line of investigation by the police and gives such publicity to it that the person who has indeed committed the crime, can move away to safer places. More often than not, the pressure on the police from the media reaches a stage where it is compelled to present completely false information in the public, in order to save its reputation. Innocent persons are implicated for no wrong or without any concrete evidence against them. Again, if the suspect’s pictures are shown in the media, problems can arise during ‘identification parades’ conducted under the Code of Criminal Procedure for identifying the accused.
Sometimes, because of publicity given to the witnesses they become scared and come under such pressure that they retract their statements. This leads to the question about the admissibility of hostile witness evidence.
Freedom of speech is the bulwark of a democratic government. This freedom is essential for the proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. In a democracy, freedom of speech and expression opens up channels of free discussion of issues. Freedom of speech plays a very crucial role in the formation of public opinion on social, political and economic matters.
Article 19 (1) (a) of the Indian Constitution guarantees to all citizens the right to ‘freedom of speech and expression’. Under article 19 (2), reasonable restrictions can be imposed on the exercise of this right for certain purposes. In Maneka Gandhi v. Union of India, Bhagwati, J., has emphasized on the significance of the freedom of speech and expression in the following words: “Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussions of public matters is absolutely essential.”
The phrase ‘speech and expression’ used in article 19 (1) (a) has wide connotation and includes within its ambit right to acquire information on matters of public interest and disseminate the same through any available media whether print or electronic or audiovisual. The media takes the responsibility to inform the public on all matters in which public have a ‘right to receive information’ such as informing public about the functioning of the elected government. The question of ‘freedom of press’ in a democratic society assumes great importance as it touches two aspects of the expression ‘free speech and expression’ enshrined in Article 19 (1) (a): 1) right to express one’s views and freedom of propagation and interchange of ideas; 2) right of the citizens to obtain information on matters relating to public interest and to communicate it.
In India, freedom of press is implied from the freedom of speech and expression guaranteed by Article 19 (1) (a). There is no specific provision ensuring freedom of press as such. The freedom of the press is regarded as a “species of which freedom of expression is a genus”.  Thus, we see that in India, freedom of press stands on the same footing as freedom of speech of a citizen, and the press enjoys no privilege as such distinct from the freedom of citizen.
Freedom of press is very helpful in maintaining and strengthening the democratic fabric of the country. The primary function of the press is to provide truthful, comprehensive and objective information to the people on all aspects of the country’s social, economic and political life. This enables the peolple to form rational opinion which is a sine qua non in a democracy. The press seeks to advance public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgements. Articles and news published in the press from time to time to expose the weaknesses of the government. This leads at times to the suppression of freedom of the press by the government. It is, therefore, the duty of the courts to uphold the said freedom and invalidate all laws or administrative actions with the freedom of press contrary to the constitutional mandate.
In Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer, the Supreme Court reiterated that though freedom of press is not expressly guaranteed as a Fundamental Right, is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has been described as the fourth estate. The democratic credentials of a state are judged by the extent of freedom the press enjoys in that state.
The freedom of press is not so much for the benefit of the press as for the benefit of the general community because the community has a right to be supplied with information and the government owes a duty to educate the people within the limits of its resources.
However the freedom of the press to publish and propagate facts and opinions is not unhindered and is subject to reasonable restrictions being imposed under Article 19 (2). Free expression cannot be equated or confused with a licence to make unfounded and irresponsible allegations against the judiciary or any other institution or person.
All pre-trial publications are shielded from contempt proceedings under the Contempt of Courts Act, 1971. Even if the publication interferes with or obstructs the course of justice, it does not constitute contempt of the Court, unless the civil or criminal proceeding, in connection of which the publication is made, is actually ‘pending’ in a Court of law. The explanation appended to Section 3 of the Act states that: “For the purpose of this section, a judicial proceeding is said to be pending:
and in the case of a civil or criminal proceeding, shall be deemed to continue to be pending until it is heard and finally decided, that is to say, in a case where an appeal or revision is competent, until the appeal or revision is heard and finally decided or, where no appeal or revision is preferred, until the period of limitation prescribed for such appeal or revision has expired.
The proceeding which has been heard and finally decided shall not be deemed to be pending merely by reason of the fact that proceedings for the execution of the decree, order or sentence passed therein are pending.
Under the existing framework of the Contempt of Court Act, 1971, media reportage, as seen during the Aarushi Talwar case, where the press, had literally gone berserk, speculating and pointing fingers even before any arrests were made, is granted immunity despite the grave threat such publications pose to the administration of justice. Such publications may go unchecked if there is no legislative intervention, by way of redefining the word ‘pending’ to expand to include ‘from the time the arrest is made’ in the Contempt of Court Act, 1971. This was recommended by the Law Commission in its 200th report.
Besides this, if at the time of publication the person publishing the report had no reason to believe that the trial was pending, or he had no reasonable grounds to believe that it contained matters that amounted to contempt of the Court, then, he shall not be guilty of contempt. If he publishes a fair and accurate report of the judicial proceeding, at any stage, he shall not be guilty of contempt. Also, publishing of fair comments on merits of the case decided, do not make the publisher guilty of contempt. All of this will apply even when the publication has had an injurious effect on the rights of the persons concerned with the case.
It is because of such loopholes that the press has a free hand in printing colourful stories without any fear of consequences. Like a parasite, it hosts itself on the atrocity of the crime and public outrage devoid of any accountability.
Justice Katju attacked the media for distracting the public and bringing the non-issues to the centre of discussion. The real issues which are basically economic are not brought to the forefront. It cannot be argued that the media never reports on farmers’ suicides in Maharashtra, the rising levels of unemployment, the increase in prices of essential commodities, the lack of housing and medical facilities, and so on. But such coverage forms a miniscule percentage of the total coverage. Most of the reports are on sports, film business, pop music, fashion parades, astrology and so on. In the present times, the media has become just like any other trade- it depends on corporate advertising and middle class spending. It cannot be claimed with certainty that what reaches the citizens is for public good.
“The freedom of the prosecuting agency, and that of the Courts, to deal with the cases before them freely and objectively, is substantially eroded, on account of the overactive or proactive stances taken in the presentations made by the print and electronic media. Once an incident involving prominent person or institution takes place, the media is swinging into action and virtually leaving very little for the prosecution or the Courts to examine the matter. Recently, it has assumed dangerous proportions, to the extent of intruding into the very privacy of individuals. Gross misuse of technological advancements, and the unhealthy competition in the field of journalism resulted in obliteration of norms or commitment to the noble profession. The freedom of speech and expression which is the bed rock of journalism is subjected to gross misuse. It must not be forgotten that only those who maintain restraint can exercise rights and freedoms effectively.”
Consultations, discussions and persuasion are the methods that should be employed in order to rectify the defects in the media. Only when these measures prove inadequate, harsher methods may be required. Some of these methods may be imposing heavy fines on defaulters, stopping government advertisements to them, suspending their licences, and so on.
The ‘presumption of innocence until proven guilty’ and the rule to establish ‘guilt of the accused beyond reasonable doubt’ are the golden principles of criminal jurisprudence. But today there is a feeling that the media, keeping at stake these golden principles, starts a separate investigation publishes news articles and creates a public opinion against the accused even before the Court takes cognizance of the case. Such activity of the media is likely to have prejudicial impact on the suspects, accused, witnesses and even judges and in general on the administration of justice.
Right to life and personal liberty, guaranteed under Article 21 of the constitution of India, envisages a fair investigation, a fair trial by a fair procedure established by a law. A ‘fair trial’ is said to be the heart of criminal jurisprudence. In Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court explained that a “Fair trial would obviously mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.”
Article 10 of the Universal Declaration of Human Rights, 1948, 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 of any criminal charge against him”. The prominent status of right to fair trial can be understood from the fact that it is an internationally recognised right.
Fair investigation and fair trial are concomitant to preservation of fundamental rights of the accused under Article 21 of the constitution. The right to fair trial is intimately linked to the right of the accused to be presumed innocent until proven guilty, the right of a person accused of any crime not be compelled to be a witness against himself (Article 20 (3), the right of a person not to be prosecuted and punished for the same offence more than once (Article 20 (2).
In the light of the abovementioned principle of fair trial, another important principle that assumes much importance is the ‘24 hour rule’ contained in Article 22 (2) of the Indian constitution. Article 22 (2) requires an arrested person to be produced a Magistrate within 24 hours of his arrest. This ensures that judicial mind is applied immediately to make sure that the arrest of the person produced before him is legal, regular and in accordance with the law. This is a mandatory provision. But the protection afforded by Article 22 (2) is often rendered meaningless by the colourful coverage of a sensational case, by the media.
The provision for production of the arrested person before a Magistrate within 24 hours is designed to enable the person arrested to be released on bail, or to apply other provisions made for his proper custody pending investigation, inquiry or trial. If any media publication is made after the arrest, pertaining to the person’s character, his previous convictions or confessions (if any), the person’s case will be prejudiced and discriminated even in the bail proceedings when issues arise as to whether bail is to be granted or rejected, or as to what conditions are to be imposed and whether there is a need for police or judicial remand. Such publications also affect any subsequent trial that takes place.
One of the alarming consequences of media trial which is not usually a part of public discourse is that it pressurises the lawyers not to take up the case of the accused. As a result the accused goes to trial without any defence. This obviously goes against the principles of natural justice. Every accused is entitled to engage a lawyer of his choice and to be represented through him in the Court.
The trial by media makes the lawyers apprehensive and they prefer not to defend the accused. Even when they decide to advocate the trial on behalf of the accused the media indulges in such character assassination of the lawyer that his reputation takes a plunge.
In the Jessica Lal Case when the celebrated lawyer, Mr. Ram Jethmalani, accepted the brief and decided to defend the accused Manu Sharma, the media created such hue and cry, to the extent of doubting the lawyer’s integrity. A senior editor of a popular television channel called his decision to defend the accused as an attempt to “defend the indefensible”. This resulted in the case of the accused being given to another indifferent lawyer. On the other hand, another renowned lawyer Mr. Gopal Subramaniam appeared on behalf of the State. Thus, the accused was not given an equal chance to defend. This gives an impression that we have lost faith in the judicial system, though this may not be the case.
Another case was that of Ajmal Kasab, the main accused in the 26/11 trial. Abbas Kazmi, his lawyer was called “terrorist lawyer” by the media. Just because he followed the same religion as that of the accused, he was linked to the conspirators in the case. In fact, the lawyer went on record and said that he was deeply hurt and anguished by the persecution at the hands of the public prosecutors and the media in general.
In the Noida serial killings case also the accused had to endure the consequences of sensational journalism. In this case corpses were found in the house of one Mohinder Singh Pandher. He, along with his domestic help, Surender Kohli, were the prime suspects in the case. The media repeatedly indicated that both of them have already confessed to the killings. This led to the local Bar Association to decide that no advocate from Noida would defend them. The media fails to recall that every accused is entitled to be represented by a lawyer of his choice in the Court. This is his guaranteed right under the constitution.
The Universal Declaration of Human Rights, 1948 in Article 12 recognises the concept of privacy. It states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Article 17 of the International Covenant on Civil and Political Rights, 1966 also gives place to privacy as a right. It is worded in a manner similar to Article 12 of UDHR.
The Indian constitution does not separately recognise privacy as fundamental right. but the Supreme Court has held in Justice KS Puttaswamy (Retd.) v. Union Of India, that the right to privacy is protected as an intrinsic part to life and personal liberty under Article 21 of the constitution. It connotes a right to be left alone. At its core it includes the preservation of personal intimacies, the sanctity of family life, marriage, home and sexual orientation.
Elaborating the concept of privacy, the Court observed that, privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy restrains the State from committing intrusion upon the life and personal liberty of citizens. This restriction must also be placed on the press when it goes into intrusive and unverified style of reporting.
The following observations of the Supreme Court in R. Rajagopal v. State of Tamil Nadu are true reminiscences of the limits of freedom of press with respect to the right to privacy: “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”
In the Radia Tapes case the conflict between the right to information and the right to privacy was thrown open. The publication of private conversations was in violation of the right of privacy both the parties. In PUCL v. Union of India, the Supreme Court had observed, that, “telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”
In the Sunanda Pushkar murder case also the media discussed the past life the victim in detail. Her personal relationships were brought in the public. This definitely was not required in public interest.
The media coverage of the Bombay terror attacks displayed the same lack of restraint, where the minutest details of a person’s last communication with his/her family were repeatedly printed in the media. None of the information presented by the media revealed anything new about the terror attack or emphasised the gravity of the attack.
In the Aarushi murder case, the newspapers were flooded with the transcripts of the deceased girl’s emails and casting aspersions on her character.
The media should make sure that right to privacy of an individual is protected while exercising its right to free speech and expression. While the people have a right to be informed, but an accused or a suspect also has a right to be protected and defended, and the same cannot be violated.
With the sudden obnoxious onslaught of parallel trials conducted by the media and the opinions expressed by the activist media in matters that are sub judice, one is left to ponder its impact on the administration of justice and the judicial personnel. Courts of various jurisdictions have not denied the influence of media reports on the judges.
The Achilles heel of the judicial system is that judges are human beings and their rational process of adjudication might be tainted by irresponsible and coloured stories put up by the media. The delicate task of administering justice ought notbe made unduly difficult by irresponsible press. It should be accepted as a fact that a man may not be able to entirely keep away from what he has seen, heard or read and he may be subconsciously affected by it. A trial conducted by a biased judge is as good as no trial.
The practice of ‘trial-by-media’ has been deprecated by the Courts, “No journalist can assume the role of an investigator, in a pending case, and then attempt to influence the mind of the Court” This limitation has been admitted by the Supreme Court of India, wherein it ruled, “prejudice, a state of mind, cannot be proved by direct and positive evidence. Therefore, it cannot be judged on the basis of an objective standard…”
The contempt proceedings make it impossible to gauge the extent of the influence of media on the outcome of judicial process. Apart from this no judge is likely to accept that the eventual ruling in any matter was in any way conditioned by reports printed by the media. Therefore, any attempt to conduct any empirical exploration to determine the influence of media on judges is nipped in the bud. It is extremely difficult to trail and assess the erosion of judicial independence.
In the recent past the Indian judiciary has categorically denied any influence of the media, both print and electronic, on the judges. In Balakrishna Pillai v. State of Kerala, the Apex Court stated, “the grievance relating to trial by press would stand on a different footing. Judges do not get influenced by propaganda or adverse publicity.” Again in the case of Zee News v. Navjot Sandhu, the Supreme Court held that media interviews do not prejudice judges.
The bias of the reporter is exhibited in any testimonial dealing with criminal justice system that is accessible to the public. This distinctiveness between what the reality is and what the public knows about it the outcome of the activities of the media. The light will determine the shadows cast. Depending on the light in which the media decides to place the accused some become martyrs, some become endearing and some become culprits.
“A trial by press, electronic media or pubic agitation is the very antithesis of the rule of law. It can well lead to miscarriage of justice. A Judge has to guard himself against any such pressure and he is to be guided strictly by the rules of law.”
Freedom of press included under Article 19 (1) (a), involves a fundamental principle of people’s right to know. It should therefore receive a fulsome support from all those who believe in the participation of the people in the administration. However this freedom of press is not unbridled. Wherever it tends to interfere with the administration of justice, it can be curtailed. Interference with administration of justice is not a permissible freedom. The Supreme Court has observed that the right of freedom of media has to be exercised responsibly and an internal mechanism should be devised to prevent publications that tend to bring the judiciary into disrepute. Procivility to sensationalism is to be curbed in every case.
Conducting a fair trial of those who are accused of criminal offences is a very important facet of a democratic polity that is governed by the rule of law. The right of every accused to a fair trial is enshrined in Article 21 of the Indian constitution. This means that the accused must be granted the fairest opportunity to prove his innocence. Any conviction that is the outcome of an unfair trial is contrary to the concept of justice.
The various media of the present times are indulged in neck to neck competition regarding publication and coverage. Their sole aim is to create a sensation and get more readership and viewership. With this obvious intention of creating a sensation it publishes a distorted and fallacious news item. Such news items considerably influence the public opinion and infringe the right of the accused to a fair trial. This has become a matter of concern for the legislature as well as the judiciary.
The freedom of the press and the right to have a free and fair trial forms the very basis of the rule of law. Neither of them can be compromised. Therefore striking a correct balance between these two fundamental rights has become inevitable. In order to prevent the rights of equal weight clash, Courts have to evolve balancing measures based on recalibration, under which both the rights are given equal space in accordance with the constitutional scheme.
InSahara India Real Estate Corporation Ltd. and Ors. v. Securities and Exchange Board of India and Anr,during the pendency of appeal and despite the interim order of the Court, some of the newspapers published the proceedings of the Court. A five judge constitution bench of the Hon’ble Supreme of India laid down appropriate guidelines with regard to reporting media of matters which is sub judice. It also included guidelines regardig public disclosure of documents forming part of Court proceedings, and also the manner and extent of publicity to be given by media to the pleadings filed in Court in proceedings which are pending. The Court suggested the following measures:
The question of prior restraint also arose before the Court in the case of Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P) Ltd. The test formulated in that case was that any preventive injunction against the press must be “based on reasonable grounds for keeping the administration of justice unimpaired” and that, there must be reasonable ground to believe that the danger apprehended is real and imminent.
Also in Naresh Shridhar Mirajkar v. State of Maharashtra, the High Court ordered that the deposition of the defence witness should not be reported in the newspapers.Evidence of the witness need not receive excessive publicity as fear of such publicity may prevent the witness from speaking the truth. The Court also stated that, such orders prohibiting publication for a temporary period during the course of trial are permissible under the inherent powers of the court whenever the court is satisfied that interest of justice so requires and could not be treated as violative of Article 19(1) (a).
Another observation the Court made in Sahara India case was that,if Article 19 (2), which refers to law in relation to Contempt of Court,is read with Article 129 and Article 215, which confers on the Supreme Court and the High Courts the power to punish for contempt, it becomes clear that the power is conferred to see that “the administration of justice is not perverted, prejudiced, obstructed or interfered with”. To see that the administration of justice is not prejudiced or perverted clearly includes power of the Supreme Court/High Court to prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.
2. Contempt of Court Act, 1971
In the context of contempt on account of publications which are not fair and accurate publication of court proceedings, the relevant provisions are contained in Sections 4 and 7 of the Contempt of Courts Act, 1971. Section 4 deals with “report of a judicial proceeding”. A person is not to be treated as guilty of contempt if he has published such a report which is fair and accurate. Section 7 deals with publication of “information” relating to “proceedings in chambers”. In other words, Section 7 deals with proceedings in camera where there is no access to the media.
Also the provisions of Section 13 have to be borne in mind. The inaccuracy of reporting of court proceedings will be contempt only if it can be said on the facts of a particular case, to amount to substantial interference with the administration of justice. This is based on the presumption of “open justice” in courts. Open justice permits fair and accurate reports of court proceedings to be published. The media has a right to know what is happening in courts and to disseminate the information to the public which enhances the public confidence in the transparency of court proceedings. However at times even accurate reporting of the trial may give rise to substantial risk of prejudice. In such cases, there is no other practical means short of postponement orders which not only safeguards fairness of the trials, but also prevents possible contempt by the media.
3. Order of Postponement of publication
In the US freedom of press is expressly protected as an absolute right and orders of postponement are treated as restraints which offend this right. This has led the American Courts, to evolve techniques or methods to be applied in cases where on account of excessive prejudicial publicity, there is usurpation of court’s functions. These are techniques such as retrials being ordered, change of venue, ordering acquittals even at the Appellate stage, etc. In the view of the Court, orders of postponement of publications/ publicity is just a neutralizing device, when no other alternative such as change of venue or postponement of trial is available. It has been evolved by courts as a preventive measure to protect the press from getting prosecuted for contempt and also to prevent administration of justice from getting perverted or prejudiced.
Given that the postponement orders curtail the freedom of expression of third parties, in India such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice. Such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. Whenever the High Court/ Supreme Court pass postponement orders under their inherent jurisdictions, such orders would fall within “reasonable restrictions” under Article 19(2).
4. Right to approach the High Court/ Supreme Court
Anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights.
The media has a right to report matters which are of public interest. In fact it is the duty of the media to keep the public informed. Elaborating, the Supreme Court opined, “The primary function, therefore, of the press is to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. It has an educative and mobilising role to play. It plays an important role in moulding public opinion”. “Those who know about the incident may come forward with information, it prevents perjury by placing witnesses under public gaze and it reduces crime through the public expression of disapproval for crime and last but not the least it promotes the public discussion of important issues.”
At the same time it is also important that the independence of the judiciary is maintained and the confidence of the public in the administration of justice is not shaken. To ensure this, the Indian constitution lays down that in exercising the right of freedom of speech and expression, contempt of Court is not committed. Under Article 19 (2), the state may make a law imposing reasonable restrictions on the exercise of the freedom of speech and expression. Since the media derives its freedom from Article 19 (1) (a), it is also subject to the same restrictions. One of the grounds on which restriction can be placed is ‘contempt of court’.
The Supreme Court has emphasised upon the need for the concept of contempt of court in the following words:  “Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearlessly is the source of existence of civilisation in society. The writ issued by the Court must be obeyed. It is the binding efficacy attaching with the commands of the Court and the respect for the orders of the Court which deter the aggrieved persons from taking the law in their own hands because they are assured of an efficacious civilised method of settlement of disputes being available to them wherein they shall be heard and their legitimate grievances redeemed. Any act or omission which undermines the dignity of the Court is therefore viewed with concern by the society and the Court treats it as an obligation to zealously guard against any onslaught on its dignity.”
Power has been specifically conferred on the Supreme Court under Article 129 of the Indian constitution, as well as on each of the High Courts under Article 215, to punish its contempt. Contempt of other Courts can be punished by the High Courts under the Contempt of Courts Act, 1971. Section 228, I.P.C., also makes some cases of contempt of Court punishable.
The Contempt of Courts Act, 1971 defines ‘contempt of court’ as meaning civil contempt or criminal contempt. ‘Civil contempt’ means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. ‘Criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
No editor has the right to assume the role of an investigator to try to prejudice the court against any person. While reporting any matter the press must bear in mind two of the most important principles of natural justice. One is that ‘every accused has a right to a fair trial’ and the other is that ‘justice may not only be done, it must also seem to be done’. Any publication which is calculated to poison the minds of judges, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible, amounts to contempt of Court.However, the publications that are made before the chargesheet has been filed or those which are made once the litigation ends are not considered contempt.
The law as to interference with the due course of justice has been well stated by the then Chief Justice Gopal Rao Ekkbote of Andhra Pradesh High Court in the case of Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr., wherein it was observed by the learned judge that: “ … When litigation is pending before a Court, no one shall comment on it in such a way there is a real and substantial danger of prejudice to the trial of the action, as for instance by influence on the Judge, the witnesses or by prejudicing mankind in general against a party to the cause. Even if the person making the comment honestly believes it to be true, still it is a contempt of Court if he prejudices the truth before it is ascertained in the proceedings. To this general rule of fair trial one may add a further rule and that is that none shall, by misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a cause so as to force him to drop his complaint or defence. It is always regarded as of the first importance that the law which we have just stated should be maintained in its full integrity. But in so stating the law we must bear in mind that there must appear to be ‘a real and substantial danger of prejudice.”
In re P.C.Sen Justice Shah explained the law in the following words: “The law relating to contempt of Court is well settled. Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Court. In R. v. Gray, it was stated that contempt by speech or writing may be by scandalizing the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard. It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of justice. The question is not so much of the intention of the contemnor as whether it is calculated to interfere with the administration of justice.”
In Hiralal Dixit v. State of Uttar Pradesh, the Supreme Court observed that it is not necessary that there should be an actual interference with the course of administration of justice. It is enough if the offending act or publication tends in any way to so interfere. If there are insinuations made which are derogatory to the dignity of the court and are calculated to undermine the confidence of the people in the integrity of the judges, the conduct would amount to contempt.
All the parties to a trial have a constitutional right to have a fair trial in a court of law. It is also necessary that the tribunal is uninfluenced by any media reports. “Press report or no reports, the charge to be framed has to be based on the basis of the material available on record. The charge cannot be framed on extraneous circumstances or facts dehors the material available on record. While framing the charge the Court will from prima facie view on the basis of the material available on record… Conviction, if any, would be based not on media’s report but what facts are placed on record. Judge dealing with the case is supposed to be neutral.”
“Liberty of the press is subordinate to the administration of justice. The plain duty of a journalist is the reporting and not the adjudication of cases.” “In the event of conflict between the concept of freedom of speech and the requirements of a fair trial, all other things being equal, the latter should prevail.”
The most important detailed appraisal about the approbatory and the disapprobatory impact media trial was done by the Law Commission of India in its 200th report which was titled as “Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)”. It was submitted on August 31, 2006.
The report includes different ways in which the trial by media results in interference with administration of justice. It includes: (1) printing about the character and previous convictions of the accused; (2) printing any confessions that are made by the suspects to the police or anyone else; (3) comments upon the merits of the case, which may not always be fair; (4) photographs which come in the way of determining the identity of the accused; (5) direct insinuations regarding the innocence of the accused; (6) building up an atmosphere which is tendentious (7) criticising the witness; (8) publishing the evidence before it is brought before the Court; (9) interviewing the witnesses before their depositions in the Court and make such interviews public. Most of these headings have been taken from Borrie and Lowe‘s commentary on Contempt law. These are not a part of either any statue or any judicial pronouncements in India.
The Commission in its report also makes certain recommendations in order to deal with the injurious effect of news reports that tend to arise a quick and intense interest or curiosity regarding the matter, in the public. It also includes measures to ensure that the accused or anyone associated with the case is not victimized by the media.
The Law Commission recommends a restriction of publication of all reports that tend to prejudice the right of the accused to fair trial, from ‘the time of his arrest’. Under the present Contempt of Courts Act, 1971, such a restriction operates only from the case a challan is filed or a summons/warrant is issued by the Court. Before the proceeding commences, the media is free to report on the case; and it is not considered as contempt. It made a recommendation that the High Courts be empowered to order postponement of such prejudicial reports even before the filing of the chargesheet. In A.K. Gopalan v. Noordeen, the Supreme Court had made an observation that any publication that is prejudicial to the accused or suspect can be contempt even when it was made prior to the commencement of trial and after the arrest was made. This was accepted by the Sanyal Committee appointed in 1963 to make proposals for a new contempt law. The Committee included it in the draft Bill it had prepared. But, later, the Joint Parliamentary Committee which reviewed the report of the Sanyal Committee decided to drop this proposed change as vague. Therefore, the Law Commission report suggested an amendment to Section 3 of the act of 1971.
The report, however, makes it clear that only the High Courts, and not the subordinate courts, should to be given this power. This is because under section 15 (2) of the Act of 1971, the subordinate courts can only make a reference to the High Court regarding contempt. It has no power to take action.
Media has a far reaching impact on the public perception. In this era of information technology, it has a more effective and direct approach to the people. Media plays an important role in influencing and changing the social and political views and that is why it is often referred to as the ‘fourth pillar’ of a democratic society. The judicial system should not have a close-minded approach towards the issue of ‘free press versus fair trial’. It should not deprive the press of its right to acquire information and to disseminate the same, which is included under the expression ‘free speech and expression’ in Article 19 (1) (a).
The courts are obliged to respect the freedom of press because of the fundamental societal interests this institution serves- strengthening the democracy, propagation and interchange of ideas, and the public scrutiny of the administration of justice. The media on its part must also understand that although the Courts support it out of respect for the societal interest it promotes, but, just as the Court must accept all manner of fair criticism, the media must also accept criticism and accordingly act on it. It is also important that the media acknowledges the fact that the nature of its institution is such that it has considerable potential to interfere with the administration of justice. Justice Shah has rightly remarked that, “Sensationalising of issues not only distorts public perception but also erodes the public’s confidence in the judicial system. The line between the right to comment on subjudice matters and interference in administration of justice often gets blurred.” The media should voluntarily vouch fr accountability in their working.
For rule of law and orderly society, a free responsible press and independent judiciary are both indispensable. Both the institutions i.e., the media and the judiciary seek to advance public interest. For the proper functioning of a democracy it therefore becomes impertinent that free press and independent judiciary should not exist in isolation. The authority of the Courts should be maintained, as well as, the freedom of the press to comment on matters of public interest must be given due importance and must be protected. Any kind of conflict between the media and the judiciary must be reconciled. Both the institutions must develop greater mutual understanding and respect to maintain a balance between their functions.
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