Trial by Media

TRIAL BY MEDIA
The courts in India play vital role in the distribution of power and rights and in the overall development of the country. The independence of each individual judge ensures that every case is decided on the basis of the law, the evidence and facts, without any improper influence. Consequently, judicial independence is an indispensable element of the right to due process, the rule of law and democracy. It is axiomatic that a judge should not act on any influence of any third party. Article 21 of the Indian Constitution requires a fair, just and equitable procedure to be followed in criminal cases. Moreover, Common Law recognises the principle of presumption of innocence, i.e., “an accused is innocent until proven guilty” which is strictly followed in India.
Despite all the fairness promised to the accused during a trial in front of an ‘independent’ and ‘impartial’ judge, there occur certain cases where the media takes the cases into their own hands and try the same and sometimes convict the accused in their own ‘public court’. The Indian press is considered to be world’s one of the most free press. However, media has started misusing the Constitutional right under Article 19(1) (a) of ‘freedom of speech and expression’ under the hood of “Media Trial” where the media itself conducts a separate investigation, builds a public opinion against the accused even before the court takes cognizance of the case. By this way, it prejudices the public and judges and as a result the accused, that should be assumed innocent, is presumed as a criminal. This paper aims to elaborate the problem of trial by media and its impact on the judicial independence. Also, this paper will explain the role of media during a trial and its positive and negative effects on a sub-judiced matter.

RIGHT TO FAIR TRIAL
The right to fair trial hangs somewhere between the Constitutional principles of free press and independent judiciary. The former refers to a case where the freedom of speech and expression has been attributed liberal interpretation within the meaning of the words in Article 19 (1) (a). On the other hand a free and independent judiciary is always important for the safeguards of the rights of a citizen or a person.
In the criminal justice system, which we have been following, the guilt is to be proved beyond reasonable doubt and the law is governed by senses and not by emotions. While displaying our emotions, the media and the masses forget that it puts tremendous pressure on the judge presiding over the case. How can we expect a fair judgment from a judge who is under such tremendous pressure from all sections of the society? A person is presumed to be innocent unless he is held guilty by the competent court, but here the trend is to declare a person guilty right at the time of arrest. The media is there to report facts or news and raise public issues; it is not there to pass judgments.
The Supreme Court of India has defined “trial by media” to mean “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.”1 Under the Universal Declaration of Human Rights, anyone charged with a criminal offence is entitled to a fair trial and has the right to be presumed innocent until proved guilty in a court of law.2 It is precisely this right that a trial by media impinges upon. The Supreme Court of India has recognized the right to a fair trial as a part of the Fundamental Rights of citizens to equality and life and personal liberty, conferred by two articles of the Constitution of India.3 Under Articles 32 and 226 of the Constitution, the Supreme Court of India and the High Courts of various states can respectively issue writs against the state for the enforcement of Fundamental Rights.
The phrase “trial by media” gained currency in Western countries during the proliferation of television news coverage in the 1960s.16 In contrast, the flourishing of new television channels has been a comparatively recent phenomenon in India. Television broadcasting was a state monopoly in the country until the 1990s.4 A “somnolent and widely discredited” government channel was India’s only television news source for many years.5 Today, as a consequence of economic liberalization, there are over 200 private news channels in India. The print and electronic media have gone into fierce and ruthless competition, as we call them ‘aggressive journalism’ that a multitude of cameras are flashed at the suspects or the accused and the police are not even allowed to take the suspects or accused from their transport vehicles into the courts or vice versa. The Press Council of India issues guidelines from time to time and in some cases, it does take action. But, even if ‘apologies’ are directed to be published; they are published in such a way that either they are not apologies or the apologies are published in the papers at places which are not very prominent. 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.6
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. Media should also ponder upon these facts. Fair trial is not purely private benefit for an accused – the publics’ confidence in the integrity of the justice system is crucial.7
Jessica Lall Case
At a party in New Delhi, a model-cum-bartender named Jessica Lall was shot dead by a drunken gatecrasher, after she refused to serve him alcohol. Several witnesses identified the attacker as Manu Sharma, the son of an INC politician and a relative of the former President of India Shankar Dayal Sharma. However, during Sharma’s trial, nearly all witnesses, including Jessica’s fellow bartender, recanted their initial statements made to the police.8 Meanwhile, a policeman investigating the case complained to his superiors that Sharma’s family had colluded with some police officials and destroyed evidence. This complaint was strangely ignored.9 A trial court eventually acquitted Sharma for lack of evidence.
Sharma’s acquittal led to a public outcry. Backed by the media, a nationwide “Justice for Jessica” campaign ensued. The campaign intensified after a magazine carried out a sting operation which suggested that witnesses had been bribed by Sharma’s family. Another news outlet leaked a written statement that Manu Sharma had given to the police shortly after the murder. In the statement, Sharma had apparently confessed to the murder. Under Indian law, a confession made to the police in the absence of a magistrate — which was true of the leaked statement—is inadmissible as evidence in a court of law.10 However, the channel which leaked the statement argued that it “only lent credence to the fact that… Manu Sharma killed Jessica Lall.”11 Meanwhile, a well-known journalist threw caution to the winds and condemned Sharma as “a craven killer.”12 Some sections of the press also criticized the trial court judge who acquitted Sharma. Sharma was found guilty of murder when the case went up to the Delhi High Court on appeal. The High Court had fast-tracked the case in the wake of the Justice for Jessica campaign. The High Court criticized the trial court’s decision as “positively perverse” and referred to the revised statement of Jessica’s fellow bartender as a “concoction.”13 In April 2010, the Supreme Court of India upheld the Delhi High Court’s judgement.14
EFFECT ON JUDGES
Another worrying factor and one of the major allegations upon ‘media trial’ is prejudicing the judges presiding over a particular case. 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 publicity15, a view which was not accepted in the House of Lords.16 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”.17
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.
TRIAL BY MEDIA IS CONTEMPT OF COURT
In British India, the contempt jurisdiction of courts was based not on any statute or enactment, but on the assumption that it was an inherent power of a court of record.18 The Constitution reaffirmed this. The Constitution designates the Supreme Court and the High Courts as courts of record and gives them the power to punish for contempt of court.19 The enactment of the Contempt of Courts Act 1971 saw the detailed codification of the law of contempt. The Act splits the offense of contempt of court into civil and criminal offenses. While civil contempt pertains to the non-compliance of court orders, criminal contempt is defined to include the publication of matter which prejudices or interferes with the due course of any pending judicial proceeding, or interferes with or obstructs the administration of justice.20 According to Section 2 of the Act, a judicial proceeding in a criminal case begins when a charge sheet is filed or when a court issues a warrant or an order of summons. A judicial proceeding ends when the case is finally decided by a court, including any appellate review. A criminal contempt proceeding can be initiated by: (i) the Supreme Court of India or a High Court suo moto, (ii) a designated law officer like the Attorney General of India or the Solicitor General of India, or (iii) by any person, with the approval of such a law officer.21 A person found guilty of contempt of court may be punished with a fine or imprisonment. However, a court may waive punishment if a contemnor issues an apology to the court’s satisfaction.22
The Act exempts from liability the publication of “a fair and accurate report of a judicial proceeding.”23 In the context of the trial-by-media debate, this exemption is not very relevant. When a case is pending, “the media may only report fairly, truly, faithfully and accurately the proceedings…without any semblance of bias towards one or the other party.”24 In 2006, the Act was amended to allow “truth…in public interest” as a defence to a charge of contempt.25 The amendment implemented a recommendation of the National Commission to Review the Working of the Constitution (NCRWC).26 Although courts have yet to discuss the scope of this new defence in detail, the defence is likely to pay an important role in future cases involving a trial by media.
Following the post-90s media boom, the Indian judiciary has admonished investigative journalists on many occasions. But courts have curiously resisted applying their contempt powers suo moto. In Maharashtra v. Gandhi,27 the Supreme Court of India expressed its annoyance at the “great harm” that had been caused to a rape trial by prejudicial news reports. But the Court did not invoke its contempt jurisdiction and merely made this staid observation: “A trial by press, electronic media or public agitation is the very antithesis of [the] rule of law.” In Kartongen v. State,28 the Delhi High Court concluded that the defendants in a corruption case had been the victims of a “trial by media.” But this finding was not enough to make the Court apply its contempt powers. Similarly, in Dubey v. Lokayukt,29 a High Court rebuked the media for making prejudicial comments on pending cases, but chose not to exercise suo moto contempt jurisdiction.
In Labour Liberation Front v. Andhra Pradesh,30 a High Court noted that biased media coverage had “assumed dangerous proportions” in India, and that journalists would soon be “shown their place” by the judiciary. Yet the Supreme Court showed leniency towards the media in two subsequent cases. In Lohia v. West Bengal,31 the Supreme Court criticized a magazine for interviewing the parents of a woman allegedly murdered for dowry. Noting that the interview contained information that would be adduced in the forthcoming trial of the defendant, the Court concluded that articles of such a nature “would certainly interfere with the administration of justice.” But the Court merely expressed “hope” that other journalists “would take note” of the Court’s “displeasure” and refrain from making prejudicial comments in pending cases. During the appeal in the Jessica Lall Case, the Supreme Court observed that “various articles in the print media had appeared even during the pendency of the matter…and apparently, had an effect of interfering with the administration of criminal justice.” But once again, the Court simply let off the media with a broad warning, saying: “We would certainly caution all modes of media to extend their cooperation to ensure fair investigation, trial, defence of accused and non interference in the administration of justice in matters sub judice.”

LAW COMMISSION’S 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. 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
Though media act as a watchdog and act as a platform to bring people voice to the notice of society and legislatures. But now days media is so much sensationalized and they just do for their salaries and TRP’s. there are few reporters those showing only those news for what they have been paid by political parties. 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 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 earlier. The media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial itself. Certain cases are so hyped for a day or two, so much so that you switch to any channel, they all will be flashing the same story but then when the heat is over there is no following of the case. The news then jostles for space with other stories that are carrying the heat then. Media just sensationalized the case for few days and leave it as they find other “masala” news irrecpective of how much importance earlier news was.
Trial is very much effected by the Media sensation. Judges while making decision start considering Media criticism if they goes opposite from the view of the Media that’s why in mostly high profile cases verdict passes by media becomes the final verdict in trial courts.