The conflict between press rights and government control – an analysis of the contemporary trends in press rights and the need for curtailing media trial written by Sidharth Sabu student of National University of Advanced Legal Studies.
INTRODUCTION
Press is essentially referred to as the fourth estate in a democratic setup and is bestowed upon with the function of keeping the citizens informed of the happenings in the state thereby acting as a bridge between the government and the people. However, in order to carry out this function, the rights of the press have to be protected by law against arbitrary action from the government. Legal frameworks have to be made so as to protect the rights of the press in such a manner that it would not be detrimental to the interest of the state. Throughout the world, the press is under threat of oppression not only from the governments but also from various pressure groups such as religious organizations.
Coming to India, press and press rights have a history that dates back to the struggle for independence. The colonial powers were intimidated by the impact of print media on the public and used all measures to muzzle its growth. The leaders that spearheaded the freedom movement post the first war of independence started focusing more on print media, to criticize the government and their policies. In fact, the print media was one of the primary modes by which the struggle was carried on. The role of the press in India’s freedom struggle is quite similar to that of the United States of America, however, unlike the latter press rights were not recognized as a fundamental right in India. Freedom of Press falls under the purview of Article 19(1)a – right to freedom of speech and expression. This means that it shall be limited or restricted by law as per article 19(2).
It was through case laws, press rights were recognized and a framework was drawn. After independence, there have been instances of the government imposing restrictions upon the press that affected press rights very deeply which will be addressed later in the article. In modern times, the commercial reach of the press has substantially increased with the arrival of television news channels which started a race between channels to get maximum viewership. This to an extent has deteriorated the quality of media over time but more importantly, with news channels wanting more content on a daily basis, the scope for entertaining fake news and indulging in press trials has increased exponentially. As of now, there is a vacuum in the legal sphere with respect to media trials and the propagation of fake news. This needs scrutiny and shall be done in the light of judicial decisions in this regard.
FREEDOM OF PRESS IN INDIA
Currently, there are almost 100,000 registered publications in India and numerous cases have been reported where these publications have been censored on account of their content. The problem of not having Freedom of Press as a separate, explicit right recognized under part III of the constitution has brought the press to succumb under the scrutiny of article 19 (2) which lays limitations upon the freedom of speech and expression. Words such as morality and decency create ambiguity and could be taken advantage of by the government to impose their policies upon the press without any bar.
During the 1970s, Indian newspapers depended largely upon advertisements from the government. Without revenues from this head, it was quite difficult for publications to function properly. This was often used as a tool to enforce their whims upon the press by the government. Just before the Emergency of 1975 was declared, the government withdrew support for many publications such as The Indian Express and The Statesman when they refused to abide by the governmental censorship.
At the time of emergency, as expected, there was strict censorship imposed upon the press, and all kinds of media and anything criticizing the government policies were harshly silenced if not met with violence.
After the Indhira Gandhi era, there have been several attempts to curtail press rights through legislation and administrative actions. In 1988, the government introduced the Defamation Bill which placed the entire burden of proof on the accused in defamation suits. There were terms in the Bill which were undefined and vague such as ‘grossly indecent,’ ‘scurrilous, ‘or ‘intended for blackmail’ and this made it easier for political leaders to cook up charges against the publishers. The act sought to impose a minimum period of imprisonment of reporters and newspaper editors. The bill was strongly criticized and as a result, the bill was retracted and never saw light again.
Another point to be seen in the light of the above-mentioned points is the instances of violence against a journalist and the way it has raised over a very short period of time. There were a plethora of instances of violence against journalists at the time of the anti CAA movement in Delhi and other cities. News reporters were denied access to these spots and when questioned they were meted with violence.
Unlike the US, the exclusion of freedom of the press in Part III made it necessary for the judiciary to fill the vacuum. IN Romesh Thappar v Union of India, press rights were recognized as essential freedom for the preservation of democracy. it was held that freedom of speech, expression, and press strengthen the base of any democratic nation. In Indian Express Newspaper v Union of India, it was held by the Supreme court that the freedom of the press is an essential attribute of democracy. It has the following dimensions/scope; right to access information, right to publish, and right to circulation. The Supreme Court has intervened and widened the scope of press rights by recognizing certain specific rights such as; In Sakal Papers v Union of India, the legislation which limited the number of publications that a newspaper could have was struck down. In Bennett Coleman and Co. v Union of India, the government order which limited the page number was struck down on account that it violates article 19(a).
THE ISSUE OF MEDIA TRIALS
Media Trial is when the media takes up the functions of the judiciary wherein they take an issue and sensationalize it by making their own conclusions for the purpose of increasing their commercial reach. Media Trails have been a point of concern for a long time and has been increasing ever since the arrival of television news channels. India, with a huge number of private news channels with national coverage and local coverage, the need to be in the race for viewers is a necessity in order to get funds. Press houses with obvious political affinity reports contents in a manner that would favor their interests. Especially in instances where the matter is subjudice, the popular media can affect public opinion in such a way that it would affect even the judges.
One of the very first instances of media trial was held in the year 1921, the mysterious death of Virgenia Rappe which is considered as the first major scandal in Hollywood. She attended a party in the suite of Hollywood actor- Roscoe “Fatty” Arbuckle and was found traumatized in one of the rooms with injuries to which she succumbed 4 days later. There were different versions of the incident by different individuals, but the one where the murderer was Arbuckle gained popularity. The incident was sensationalized by the media at that time. Three trials were conducted throughout which the actor suffered character assassination by popular media, his career was ruined. At the end of the third and final trial, Arbuckle was acquitted and the jury admitted that there wasn’t even the slightest evidence to connect him with the murder. This is a classic example of a media trial.
Media Trials and Extensive Media activism have been seen in the US in cases involving celebrities. The conflict between the first amendment rights of the press and the sixth amendment right of the citizen to a fair trial is essentially what happens. In the case where the 19-month-old son of Charles and Anne Morrow Lindbergh was kidnapped and murdered by a German-born carpenter, Bruno Hauptman was arrested. This gained huge media attention and following the trial, Hauptman was convicted and executed. His widow died later still claiming his innocence.
In the 80s, the trial of Claus Von Bulow in the murder case for the killing of her wife gained huge media attention. CNN had extensive coverage of the issue with subsidiary stories and contents based on his lifestyles and characteristics.
Among them, the case that got the biggest media attention was the landmark O J Simpsons case where the former NFL player and actor O J Simpson was accused of the murder of two individuals including his ex-wife. The pursuit, arrest, and trial were broadcasted worldwide and the pursuit itself was watched by 95 million viewers. The national television canceled the broadcast of the NFL tournament to broadcast the trial. It was in fact one of the most broadcasted and viewed trials of all time. The media as well as the people were divided in their opinion with respect to the outcome of the case wherein the accused was acquitted.
One glaring example of a media trial in India was the Jessica Lal murder case which could be referred to as the epitome of media activism in the sense that it had a positive and moral impact on the judiciary. In this case, Jessica Lal, a woman was shot dead by an individual during a party for not serving the drink of his choice. She was shot in the head and died at a spot among the 80 individuals who were present at the scene only a few came up as witnessed. A case was lodged against the culprits, however, the witnesses turned hostile and the accused were discharged. This caused so much media frenzy and attention causing public outcry throughout the country. A petition was filed in the Delhi High Court to look into the matter and the accused were all convicted which clearly was influenced by the public outcry. The Supreme court upheld the High Court Decision and acknowledged that there has been a media trial taken place in that case.
The Supreme Court commented thus, “There is danger, of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or if the media publishes statements which out rightly hold the suspect or the accused guilty even before such an order has been passed by the Court”
The case of R.K. Anand v. Delhi High Court clearly stated it would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers for the Court. Media should perform the acts of journalism and not as a special agency for the Court. 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.
One of the most sensational crimes of that time, the Aarushi Talwar murder case too had gone through the media trial process. Even while the case was in the investigation stage, the media were framing her parents as culprits and one of the popular channels conducted an SMS contest for the viewers to predict the murderer in the case. There were instances where the media tried to cook up false accusations against the accused such as the parents’ extramarital affairs and the possibility that Aarushi could be an adopted child. Years later, the CBI had to close the case due to a lack of evidence.
A very recent example of a media trial is actor Sushant Sigh Rajput’s suicide and the related criminal activities that unfolded following the investigation. The popular media targeted each and every single person associated with the actor’s personal and professional life including Bollywood filmmaker Karan Johar, the actor’s partner, and actor Rhea Chakrobarty and on a later stage of the investigation the evidence showing Rhea Chakrobarty’s involvement in narcotics gave rise to a whole new narrative which converted the whole incident as a murder case without any substantial evidence to believe so. Even if it were, the media were taking the whole issue at its hand and playing the role of a judge. It was a time when the pandemic had reached its zenith and focus was needed in that area as well, but the media channeled their full attention to this matter without adhering to any basic code of conduct or ethics. It was a media trial at its highest possible level. The “prime time debates” that aired almost every single day had a huge impact on the viewers and led to a huge public outcry against the actor. Apart from targeting the persons and assassinating their character, A major problem regarding the issue was that it was very sensitive in the sense that it was essentially a suicide case, and reporting such an incident needs special care. In 2008, the World Health Organisation in collaboration with the International Association for Suicide Prevention issued certain guidelines to be followed by the media while reporting suicide and attempted suicide cases such as; wording the headings and titles carefully, not sensationalizing the case, applying special care while reporting celebrity suicide cases as it could have a huge impact on the public. The Press Council of India had, in 2019 issued a set of guidelines in this regard and even they were not adhered to in Sushant Sigh’s case. Research has shown that responsible media reporting of suicides can reduce suicides by 1-2%.
ROLE OF LAW
Since it has been laid in various case laws by the Supreme Court that media trials are a threat to fair trials, the laws to protect fair trials shall be used against media trial.
• Under the Contempt of Courts Act, 1971, any publication which interferes with, obstructs or tends to obstruct any proceeding, be it civil or criminal, and the course of justice, which is a pending proceeding, constitutes contempt of court. It has been termed as contempt because some of the acts which are published before the verdict given by the court can mislead the public and affect the rights of the accused of a fair trial.
• Court of Record- Article 129 of the constitution lays that, Supreme Court to be a court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself and Article 225 lays that High Courts to be courts of record Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself
• The UN Basic Principles on Freedom of judiciary article 6 lays down the importance of Fair Trial. International Covenant on Civil and Political Rights also lays the same concept.
• In the case of Re P C Sen, the Supreme Court held that anything that interferes with the authority of the court at the time of trial shall be considered to be contempt of court
• In K V Hanumantha Rao v K Pattabhiram, there was a curfew declared in the city of Hyderabad which was challenged before the court. while the matter was still in court, “Deccan Chronicles” published an article about the details of the curfew and its historical backgrounds. The Court held that, while a matter is pending in the court for trial, no comments that would cause substantial danger of prejudice on the trail, and such comment shall be considered as contempt.
• In Sushil Sharma v. The State (Delhi Administration and Ors, the Delhi High Court held that decision of a court shall be based on the facts of the case and the evidence and not based on the media narrative.
The 200th Law Commission titled, Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971) analyzed the issue with the view to come up with legal solutions. It is a comprehensive report which entails the impact of media trials in society as well as the judiciary. It made some valid point with respect to the issue such as the effects of media trials on the lives of an accused person even after acquittal – “ If media exercises unrestricted or rather unregulated freedom in publishing information about a criminal case and prejudices the mind of the public and those who are to adjudicate on the guilt of the accused and if it projects a suspect or an accused as if he has already been adjudged guilty well before the trial in court, there can be serious prejudice to the accused. In fact, even if ultimately the person is acquitted after the due process in courts, such an acquittal may not help the accused to rebuild his lost image in society.”
The report recommended some amendments in the Contempt of Courts Act to prevent media trial. As per the original Act section 3(2full immunity is granted to publications even if they prejudicially interfere with the course of justice in a criminal case, if by the date of publication, a charge sheet or challan is not filed or if summons or warrant are not issued. Such publications would be contempt only if a criminal proceeding is actually pending i.e. if charges sheet or challan is filed or summons or warrant are issued by the Court by the date of publication., it was recommended that this has to start from the moment of arrest o the accused.
It also recommended that the High Courts be granted the power to give directions to press to postpone reporting of matters pending before the court.
CONCLUSION
Press rights and the right to fair trial ought not to have been conflicting had the media been not indulging in excessive activism. It has come to a situation where the concept of presumption of innocence, the very essence of the criminal jurisprudence is under serious threat. The moment the identity of the accused persons is revealed, the media sensationalize the issue with ulterior motives that are driven only by commercial interests. Despite having a set of guidelines and a legal framework to prevent this anomaly, it still continues to happen. This calls for reforms in the legal framework and the legislature needs to interfere. On one side, the media is been attacked and silenced and on the other, the media is literally conducting trials and taking the roles of the courts, law has to maintain a balance.
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