PRESENTATION ON

TRIAL BY MEDIA: SECOND JUDICIARY

JAYANTA GHOSH

SCOPE

• Meaning of MEDIA TRIAL • Constitution and Media Trial.• History of Media Law• Free Press V. Free Trial.• Influence of Media on - Witness - Accused - Judges and Court•Justification by Media •International Efforts•Law Commission 200th Report.•Suggestions: Social Responsibility

“I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.”

(Mr. Nehru’s declaration in the course of a speech delivered on 20th June 1916 in protest against the Press Act, 1910.)

MEANING OF MEDIA TRIAL

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 regardless of any verdict in a court of law.

HISTORY OF MEDIA LAW:

• First enactment was in 1799 when Lord Wellesley promulgated the Press Regulations which had the effect of imposing prior restraints on an infant newspaper publishing industry.

• The rigors of those regulations were eased in 1813 by the administration of Lord Hastings

• After Sepoy Mutiny of 1857, The Government clamped down on the publication of writings deemed seditious and imposed

punitive sanctions on printers and publishers who failed to fall

in line.

•Lord Ripon as Viceroy in 1880. Ripon’s first acts on assuming office was to repeal the unpopular measure

•Birth of Indian National Congress, newspapers began adopting a more assertive stance leading to friction between the press and the government, which led to more stringent measures aimed at curtailing the freedom of press.

•After the Second World War ended, talks on the transfer of power began and most of the controls on the press were dismantled.

•After independence, and after the adoption of the Constitution, freedom of the press in this country has grown.

•During the emergency of 1975, imposition of severe censorship on the press.

Contd..

In Romesh Thapar Vs. State of Madras, [AIR 1950 SC 124 ] and in several subsequent cases strict and narrow limits have been placed on the Legislative powers to abridge the right conferred by Article 19(1) (a). Any restriction on Article 19(1) (a) can only be valid if three conditions are met: - • It is supported by the authority of law;• The law in question is related to one or more of the permitted heads of restrictions laid down under Article 19(2); and• The restriction is reasonable.

Contd..

Express Newspapers Limited vs. Union of India, [AIR 1958 SC 578 at 621]

•It was held that it is also necessary that the procedure and the manner in which the restriction is imposed be just, fair and reasonable.

•Supreme Court exhaustively dealt with freedom of the press but stated that it can not be unbridled. Like other freedoms, it can also suffer reasonable restrictions.

Contd..

•The subject of ‘trial by media’ or prejudice due to ‘pre-trial’ publications by the media is closely linked with Article 19(1)(a) Which guarantees the fundamental right of ‘freedom of speech and expression’.

• The extent to which that right can be reasonably restricted under Article 19(2) by law for the purpose of Contempt of Court and for maintaining the due process to protect liberty.

• The basic issue is about balancing the freedom of speech and expression and undue interference with administration of justice within the framework of the Contempt of Courts Act, 1971, as permitted by Article 19(2).

Contd..

•That it should be done without unduly restricting the rights of suspects/ accused under Article 21 of the Constitution of India for a fair trial.

FREE PRESS AND FREE TRIALS

•The freedom of the press stems from the right of the public in a democracy to be involved on the issues of the day, which affects them.

•People cannot adequately influence the decisions that affect their lives unless they can be adequately informed on the facts and arguments relevant to the decisions.

•Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument. This is also the justification for investigative and campaign journalism.

Contd..

•The Constitution of India and the Contempt of Courts Act, 1971 contain provisions aimed at safeguarding the right to fair trial.

•Restrictions are imposed on the discussion or publication of matters relating to the merits of a case pending before a Court.

•The problem does not lie in media’s exposing the lacuna of a bad investigation by cops, or mal-performance of the duties ordained to the civil servants but the eye-brows start to raise when the media ultra vires its legitimate jurisdiction and does what it must not do.

•Be it highlighting the sub-judice issues into public keeping at stake the sanctity of judicial procedures and ‘right to life with dignity’ of accused and suspects.

•Media has now reincarnated itself into a ‘public court’ (Janta Adalat).

• It completely overlooks the vital gap between an accused and a convict.

•The golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’ are overlooked.

•The media is there to report facts or news and raise public issues; it is not there to pass judgments.

INFLUENCE OF MEDIA ON ACCUSED

• If media 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.

• 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.

• Excessive publicity in the media characterizing him as a personwho 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.

INFLUENCE OF MEDIA ON WITNESS

•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 early stage, the witnesses wants to retract and get out of the muddle.

•Witness protection is then a serious casualty. This leads to the question about the admissibility of hostile witness evidence and whether the law should be amended to prevent witnesses changing their statements.

INFLUENCE OF MEDIA ON JUDGES AND COURT

•Judges are not immune from criticism either in respect of their judicial conduct or their conduct in a purely private capacity. But it is for concern when criticisms of them are ill-informed or entirely without foundation, and may have a tendency to undermine public confidence in judicial institutions.

•A Judge is to guard himself against such pressure a media publication can ‘unconsciously’ influence Judges or Juries and whether Judges, as human beings are not susceptible to such indirect influences, at least subconsciously or unconsciously.

State of Maharashtra v. Rajendra Jawanmal Gandhi [1997 (8) SCC 386.]

The Supreme Court has held that a trial by press, electronic media or by way of a public agitation is the very anti-thesis of rule of law and can lead to miscarriage of justice.

The contempt of court act defines contempt by identifying it as civil and criminal . Criminal is further divided into three types:

1. Scandalizing2. Prejudicing trial3. Hindering the administration of the justice.

JUSTIFICATION BY MEDIA

•The media did us proud at every juncture of certain criminal affairs.

•Now that the Courts have come under the media’s microscope, they are likely to remain there forever. As with most changes both positive and negative consequences have flowed from this.

•A Positive by-product of changes spurred by the media and addressed by the Courts is that more Indians are aware of theirconstitutional rights than ever before.

INTERNATIONAL EFFORTS

In 1994, a group of 39 distinguished legal experts and media representatives, convened by the International Commission of Jurists, its Centre for the Independence of Judges and Lawyers, and the Spanish Committee of UNICEF, met for three days in Madrid, Spain. The objectives of the meeting were -

•To examine the relationship between the media and judicial independence,

•To formulate principles to help the media and the judiciary

•Develop a relationship that serves both freedom of the expression and the judicial independence.

Contd..

The participants came from Brazil, Sri Lanka, United Kingdom, Sweden, Jordan, Australia, Ghana, France, India, Spain, Germany, Austria, Netherlands, Norway, Poland, Portugal, Switzerland, Senegal, Palestine, Bulgaria, Croatia, and Slovakia.

LAW COMMISSION 200TH REPORT

Under the chairmanship of J USTICE M. JAGANNADHA RAO August,2006, Following recommendations had been made:

1. To address the damaging effect of sensationalized news reports on the administration of justice.

2.Prohibiting publication of anything that is prejudicial towards the accused — a restriction that shall operate from the time of arrest.

3.The High Court be empowered to direct postponement of publication or telecast in criminal cases and to restrain the

media from resorting to such publication or telecast.

4.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.

CONCLUSION/SUGGESTIONS: SOCIAL RESPONSIBILITY

Media has wide reach and a more effective and a more direct approach to the people. That is why it is called as a fourth pillar of the society.

•The media often act and should act as the alter ego of the society and should therefore faithfully reflect its mood, its thinking and its problems and report events which affects public interest.

•While presenting facts it must give their context and discuss their pros and cons to enable people to grasp properly their significance and to form their informed views to them.

THANK YOU