TRIAL BY MEDIA: A HUMAN RIGHTS PERSPECTIVE
Submitted by: Ms Ruchi Lal Assistant Professor, Amity Law School, Noida,U.P Ph.no- 9868068650
[email protected] Address- Amity Law School, I-2 Block, Amity University, Sec.125, Noida, U.P
Ms. Dipanwita Biswas
Assistant Professor, Amity Law School,Noida,U.P Ph.noE-mailAddress- Amity Law School, I-2 Block, Amity University, Sec.125, Noida, U.P
Abstract
Trial by Media: A Human Rights Perspective (Key words) Ms.Ruchi Lal* Ms. Dipanwita Biswas** The violation of rights is not confined to cases where violence is at the root of violation of human rights. Violation of human rights has many dimensions and one such dimension finds expression in the form of media trial. Trial by media is a phrase that became popular at the threshold of the 21st Century to assert the impact of television and newspaper coverage on the minds of the people irrespective of the fact that it may transgress the reputation of a person involved due to widespread public perception of guilt regardless of any verdict in a court of law. Media, today, is globalised and commercialised and in its primary endeavour to increase profit/TRPs ratings, media has reincarnated itself into a ‘public court’.
It completely
overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. The media itself does 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 sometimes even judges and as a result the accused who is presumed as a criminal even before trial by the court, thereby violating his right to fair trial, right to privacy, right to be legally represented and right to dignity which are a violation of his basic human rights guaranteed not only by Constitution of India but also by international instruments such as Universal Declaration of Human Rights 1948, International Covenant on Civil and Political 2
Rights 1966 and European Convention on Protection of Human Rights and Fundamental Freedoms 1950. Media trial or investigative journalism is not wrong in its end but in its approach and the methods to which it resorts. Infact, media trial along with the revolutionary sting operations is an appreciable effort as it keeps a close watch over the investigations and makes the government institutions more accountable. But it must not be done in irresponsible way without paying heed towards the basic norms and principles of civilized democratic society.
*Assistant Professor, Amity Law School, Amity University, Noida, Uttar Pradesh. ** Assistant Professor, Amity Law School, Amity University, Noida, Uttar Pradesh.
TRIAL BY MEDIA: A HUMAN RIGHTS PERSPECTIVE Ms Ruchi Lal*
Ms. Dipanwita Biswas** “Reporters thrive on the world’s misfortunes. For this reason they often take an indecent pleasure in events that dismay the rest of the humanity.” Russell Baker, The Good Times, 1989
Preliminary reflections “Historically the growth and development of representative democracy is so much intertwined with the growth of press that the press has come to be recognised as an institutional limb of modern democracy.”1 Infact press and media forms the backbone of a democratic society. Together they subject the functioning of all public institutions to public 1
* Assistant Professor, Amity Law School, Amity University, Noida, Uttar Pradesh. ** Assistant Professor, Amity Law School, Amity University, Noida, Uttar Pradesh. D.D Basu, Commentary on the Constitution of India,6th ed., Vol.C,2008, p.95
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scrutiny and makes them answerable and accountable to the people. It also plays an important role in administration of justice. The Indian Press Commission has expressed the view that “democracy can thrive not only under the vigilant eye of its legislature, but also under the care and guidance of public opinion and the press is par excellence, the vehicle through which opinion can become articulate.”2 In recent times, media has variously contributed to the society. As the watchdog on government; as the champion of vulnerable section of society; as a whistle-blower against the perpetrator of wrong and above all, as a frontrunner in publishing the information of public interest. Also, media has significantly promoted social causes like literacy, discouraging female feticide, health management, AIDS awareness, etc. Notwithstanding such wonderful sagacity and honesty on the part of media and media personnel, certain reporting of recent past has brought it into the spot light. One such stark illustration remains the case of ‘media trial’.
Meaning of Media Trial Media trial is a term used for those cases which are still under consideration in courts. The verdicts on these cases have not been given yet by the courts but widespread coverage is given by the media which by adding a pinch of sensation, try to influence the decisions made by the judges involved. It is nothing but a pre trial by the media based on materials collected by it, without scrutinizing its evidentiary value required under law for its acceptance, and pronouncing judgment before the law takes its course. 3 Such trial by media can cause 2
First Press Commission Report, 1982. Abhitosh Pratap Singh and Madan Mohan, Media: Facilitating Justice or Hampering Justice? , Indian Bar Review, Vol.XXXIII, 2006, P.239. 3
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irreparable, irreversible and incalculable harm not only to the person subjected to trial but also to the institution administering justice.4 The evils that might possibly result from such media trial are: •
Media trial may influence the minds of prospective witnesses.
•
It may compel the parties to discontinue litigation.
•
It may prejudice the public as a whole by evoking adverse reactions and thereby impair the public confidence in the administration of justice.
• •
It may inhibit other potential litigants from resorting to the courts of law. Further, the media treats seasoned criminals and the ordinary one, sometimes even the innocents, alike without any reasonable discrimination. Even if they are acquitted by the court it becomes practically impossible for them to resurrect their previous image. Such kind of exposure provided to them is likely to jeopardize all the cherished human rights which every individual is entitled to merely by virtue of being born a human being.5
In this paper an attempt is made to critically analyse the impact of trial by media on human rights of accused, suspects and witnesses particularly right to privacy, dignity, right to legal representation and the right to fair trial.
Locating the Right to Freedom of Expression of Media a) Constitutional Law Framework 4
A.Raghunadha Reddy, Trial by Media- A Critique From Human Rights Angle, Nyaya Deep, Vol. XI, Janauary 2010,p.31 5 Jagganadha Rao, Fair Trial and Free Press? : Law’s response to Trial by Media, Constitutionalism Human Rights and Rule of Law, Universal Law Publishing Co.,p.26
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The Preamble to the Constitution of India gives explicit prominence to the concept of liberty of thought and expression among other liberties. Further Article 19(1)(a) of the Indian Constitution guarantees to all its citizens the fundamental right to freedom of speech and expression which includes within its ambit freedom of media.
In Romesh Thapar v. State of Madras6, it was held that the freedom of speech and expression guaranteed under Article 19(1)(a) includes the freedom of ideas, their publication and circulation. It was stated in Hamdard Dawakhana v. Union of India7, that the right includes the right to acquire and impart ideas and information about matters of common interest. Further the Supreme Court of India, in Life Insurance Corporation of India v. Manubhai D Shah8 has stated that the “freedom of speech and expression” in Article 19(1)(a) means the right to express one’s convictions and opinions freely, by word of mouth, writing, printing, pictures or electronic media or in any other manner. The press is a manifestation of collectivity: it reflects people’s hopes and aspirations and also their agonies and afflictions. However, in a civil society, no right or freedom, however invaluable it might be, can be always considered absolute, unlimited or unqualified in all circumstances. The sweep of all rights or freedoms is therefore, always controlled and regulated so that the like rights or freedoms of others are not jeopardized.9 Realizing, the truth of this fact of social life- the Constitution of India envisages the regulation of fundamental right to freedom of speech and expression guaranteed under Article 19 (1) (a) by imposing reasonable restriction U/A 19(2). This means that freedom of press is not absolute and is
6
1950 SCR 594 1960 (2) SCR 671 8 1992 (3) SCC 637 9 Virendra Kumar, Free Press and Independent Judiciary : Their Juxtaposition in the Law of Contempt of Courts, Indian Law Journal, Vol. 47, No. 4, Oct- Dec 2005, p.49 7
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subject to reasonable restrictions which can be imposed by the legislature on the grounds specified in Article 19(2) of the Constitution. b) International Law Framework Article 19 of the Universal Declaration of Human Rights 1948 guarantees the right to freedom of expression in following terms: ‘Everyone has the right to freedom of opinion and expression and this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ Also Article 19 of the International Covenant on Civil and Political Rights 1966 guarantees freedom of expression by explicitly conferring following rights: •
An unfettered right to hold opinions;
•
A right to express and disseminate any information or ideas;
•
A right to have access to media;
•
A right to seek information and ideas.
Locating Human Rights of Accused Affected by Media Trial
Right to fair trial, legal representation, right to privacy and dignity are basic human rights guaranteed to the accused, suspects and witnesses by the various international instruments as well as by the Constitution of India. Article 3 of Universal Declaration of Human Rights 1948 declares that everyone has right to life, liberty and security of person. Article 11 of UDHR deals with the right to be presumed 7
innocent until proven guilty. Further Article 12 deals with privacy rights and reads: No one shall be subject to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interference and attacks.” The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 guarantees right to life, right to liberty and security, right to fair trial, right to respect for private and family life. There are similar provisions in the International Covenant on Civil and Political Rights 1966, American Convention on Human Rights, 1969 and the African Charter of Human Rights and People’s Rights, 1981. In India, Art 21 of the Constitution is crucial which guarantees the right to life and personal liberty. It reads: No person shall be deprived of his life or personal liberty except according to procedure established by law’. Right to privacy, legal representation and right to human dignity have been held by the Supreme Court to be implicit in Article 21.
Impact of Trial by Media on Human Rights Media trial is an illegal invasion into the terrain reserved for judiciary and it is not only theoretically wrong but also a blatant infraction of basic human rights guaranteed to the accused.
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Right to Fair Trial Every accused person has a right to fair trial guaranteed to him both by national and international legal framework clubbed with the principles of natural justice that justice must not only be done but must manifestly and undoubtedly be seen to be done. Trial is a word associated with the process of justice and to be carried out strictly by the courts. In Zahira Habibullah Sheikh v. State of Gujarat,10 the Supreme Court explained that a “fair trial would mean a trial before an impartial Judge, a fair prosecutor and in an 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.” It encompasses several other rights including the right to be presumed innocent until proven guilty, the right not to be compelled to be a witness against oneself and the right to a public trial. Trial by media obscures the chances of fair trial being given to an accused. By doing investigative journalism, media builds a public opinion against the accused even before the court takes cognizance of the case. It prejudices the public and judges and as a result the accused is presumed as a criminal.11 All this is a clear negation of the constituents of fair trial. In addition to this if , years later, the court proceeding end in a clean acquittal or acquittal for lack of proof, there is no way the affected person can resurrect his or her lost image in the society and the person remains uncompensated for loss of reputation. 12
Presumption of innocence till proven guilty is a human right and one of the elements of fair trial. In Narendra Singh v. State of M. P13, Supreme Court in this context stated that: “in 10 11 12 13
2004 4 SCC 158 Supra note 4 Supra note 9 AIR 2004 SC 3249
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media trial this human right find no place as it proceed to establish guilt determinedly. Right after the incident, the media begins its trial and the story is presented as if the accused is the real culprit. The news is celebrated and the price of the time slot for advertisement shoots up and media harvest money at the cost of one’s dignity, honour and right to life and liberty as guaranteed under Article 21 of the Constitution of India.” Further, 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. Under this premises, media’s presumption regarding anyone’s guilt at the outset is an example of its callous behaviour.
“The right to a fair trial is a norm of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of their basic rights and freedoms, the most prominent of which are the right to life and liberty of a person. Media should take in to account the significance of these basic human rights and the implications incase of its violation and negation.”14 For this standards cannot be imposed from outside rather it is the obligation of the media to introspect on these issues and mend its ways.
Right to privacy Often over-inquisitive media encroaches upon the individual’s right to privacy by crossing the boundaries of its freedom. In the name investigative journalism, media goes into the domain of right to privacy of persons and reveals that what they are doing and what is private in their life.
14
http://www.humanrightsfirst.orgpubsdescriptionsfairtrial.pdf visited on 28th December 2010
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The following observations of the Supreme Court in R. Rajagopal and Another v. State of Tamil Nadu and Others15 are true reminiscence 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.
Right to privacy of rape victims: Women hesitate to report rape because of the fear of the consequences. As a result of trial by media, the real issue of rape can been receded in the background. The identity of the victim is not always protected by the media. Further, a woman who is a victim of a sexual offence may give written consent to the publication of the matter which would be likely to lead to her identification. Also the past sexual history of the victim may also find its way into the newspapers. In cases of public disclosure of private facts, there are three interests involved which must be protected; the privacy of victims of sexual offences, the physical safety of such victims, who may be targeted for retaliation if their names become known to their assailants; and the goal of encouraging victims of such crimes to report these offences without the fear of exposure.16 15 16
1994, JT 1994 (6) SC 514 Cox Broadcasting Corporation V. Cohn,420 US 469 (1975)
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In an attempt to encourage women to report to the police details of sexual offences committed against them, British Parliament has provided anonymity for the rape victims. It is an offence to publish or broadcast the name, address or pictures of once she or any other person has made an allegation of a rape offence against her.17 This restriction remains in force for the lifetime of the victim. Once a person has been accused of rape, the restrictions on publication become more stringent. No matter or an article likely to lead members of the public to identify a woman as a complainant in relation to that accusation shall be published or broadcasted. In India, the law is very clear that it would be a crime to reveal the identity of the rape victim. Section 228A of Indian Penal Code, which is introduced in 1983, prescribed 2 years of imprisonment and fine for this offence. Also The Press Council of India’s norms for journalistic conduct say that in reporting sexual assault on children, names, photos and particulars of their identity shall not be published. Norm 14 laid down by Press Council of India states that: “Caution against identification: While reporting crime involving rape, abduction or kidnap of women/females or sexual assault on children, or raising doubts and questions touching the chastity, personal character and privacy of women, the names, photographs of the victims or other particulars leading to their identity shall not be published.”18 In the above circumstances, the right to privacy or anonymity conflicts with the freedom of the media to report the proceedings of the court but in the light of the travesties involved for the victim such restriction is justified.
17
Supra note 3 http://indiacurrentaffairs.org/the-park-wood-episode-new-media-new-tool-to-victimizerape-victims-prof- madabhushi-sridhar/ visited on 28th December 2010. 18
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Right to be Legally Represented The media assumption of guilt clearly crouches upon the right to legal representation. This is in turn a critical component of the right to fair trial and it may also intimidate lawyers into refusing to represent accused persons. Trial by media creates a pressure upon lawyers not to take up the case of a person who is the subject of such trial thereby creating a situation where such a person may have to go to trial without defence. This is a clear violation of principles of natural justice. Every person has a right to get himself represented by a lawyer of his choice and no one has the right to debar him from doing so. For instance, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused in a murder case, he was subject to public derision. A senior editor of the television news channel CNN-IBN called the decision to represent Sharma an attempt to “defend the indefensible”. This was only one example of the media-instigated campaign against the accused.19
Prominent cases on Media Trial Trial of Roscoe Arbuckle One of the first celebrities in the 20th century to be tried by media was Roscoe 'Fatty' Arbuckle who was acquitted by the courts but nevertheless lost his career and reputation due to the media coverage. In 1921 Arbuckle threw a party during which Bit player Virginia Rappe became ill and died days later. Roscoe ‘Fatty’ Arbuckle was charged with murder. Immediately the press was all over the story and sensationalized that Arbuckle had caused the rupture by crushing Rappe while on top of her. Even more lurid accounts suggested that Fatty Arbuckle had violated her Virginia using a champagne bottle. Two days later voluntary and state mandated bans were imposed on Arbuckle’s movies. Rappe, endured three widely publicized trials for murder. His 19
http://www.hrdc.net/sahrdc/hrfeatures/HRF164.htm visited on 29th December 2010.
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films were subsequently banned and he was publicly ostracized. Though he was acquitted by a jury and received a written apology, the trial's scandal has mostly overshadowed his legacy as a pioneering comedian. Though the ban on his films was eventually lifted, Arbuckle only worked sparingly through the 1920s. In 1932 he began a successful comeback, which he briefly enjoyed before his death in 1933. O. J. Simpson murder case One of the most publicized criminal trial in American history has been the case of People of the State of California v. Orenthal James Simpson20 popularly known as the O. J. Simpson murder case in which former American football star and actor O. J. Simpson was tried for the offence of murder of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. Simpson was acquitted after a lengthy trial that lasted over nine months. The trial received extensive media coverage. The media coverage was itself at times controversial; the issue of whether or not to allow any video cameras into the courtroom was among the first issues Judge Ito had to decide, ultimately ruling that live camera coverage was warranted.this decision was later criticized by other legal professionals. Judge Ito himself, along with others related to the case were said to have been influenced to some degree by the media presence, and the publicity that came with it. The trial was covered in 2,237 news segments from 1994 through 1997. On June 27, 1994, Time published a cover story "An American Tragedy" with a mugshot image of O. J. Simpson on the cover. The image was darker than a typical magazine image, and the Time photo was darker than the original, as shown on a Newsweek cover released at the same time. Time itself was now the object of a media scandal, and it was found it had employed photo manipulation to darken the photo, for the purpose of, as commentators have claimed, making Simpson appear more "menacing." The publication of the cover photo drew 20
43 Cal.2D 553
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widespread criticism of racist editorializing, and yellow journalism. Subsequently time publicly apologized.
Chamberlain Murder Trial Alice Lynne (Lindy) Chamberlain-Creighton was at the centre of one of Australia's most publicised murder trials, in which she was convicted of killing her baby daughter, Azaria. The conviction was later overturned. When Azaria was two months old, Michael and Lindy Chamberlain took their three children on a camping trip toUluru, arriving on 16 August 1980. On the night of 17 August, Chamberlain reported that the child had been taken from her tent by a dingo. A massive search was organised, but all that was found were remains of some of the bloody clothes, which confirmed the death of baby Azaria. Her body has never been discovered. Although the initial coronal inquiry supported the Chamberlains' account of Azaria's disappearance, Lindy Chamberlain was later prosecuted for the murder of her child on the basis of the finding of the baby's jumpsuit and of tests that appeared to indicate the presence of blood found in the Chamberlains' car. This forensic gathering convicted her of murder on 29 October 1982, and sentenced her to life imprisonment. New evidence emerged on 2 February 1986 when a remaining item of Azaria's clothing was found partially buried near Uluru in an isolated location, adjacent to a dingo lair. This was the matinee jacket which the police had maintained for years did not exist. Five days later, Chamberlain was released. This was trial by media and prejudice of the worst kind. Many Australians simply took a dislike to her as a person and did not care whether she was guilty or not - they just wanted her punished anyway, regardless of the truth. Lindy Chamberlain was judged because of her 15
religious beliefs (Seventh Day Adventist) and because she apparently didn't behave according to some perceptions of how a grieving mother should behave. Cases on Media Trial in India In, India, trial by media has assumed significant proportions in the last decade. Some famous criminal cases that would have gone unpunished but for the intervention of the media are Priyadarshini Mattoo case, Jessica Lal murder case and Nitish Katara murder case. But the media recently drew flak in the reporting of Aarushi and Hemraj murder case. Priyadarshini Mattoo Case Priyadarshini, a 23-year-old student of Delhi University, was raped and brutally murdered, at her uncle’s residence in Delhi, by Santosh Kumar Singh, the son of JP Singh, an IPS officer in 1996. The trial court acquitted Santosh Singh.Delivering the judgment ,in 1999, the Additional Sessions Judge. G.P. Thareja said of Santosh, that though he knew that "he is the man who committed the crime," he was forced to acquit him, giving him the benefit of doubt. In a 450 page judgment the judge came down heavily on the role of Delhi Police; “There has been particular inaction by Delhi Police”, he said, while commenting that the accused’s father may have used his official position to influence the agencies. “The influence of the father has been there in the matter and there was deliberate inaction” (at the time his father was second in command of the police forces in Delhi). The helmet was found with a shattered safety glass - however the evidence was so poorly presented that the defense was able to discount it. He further stated that the rule of law doesn’t seem to apply to the children of those who enforce it. The release of the accused led
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to a public outcry which was supported by the media.21 It pressured the CBI to challenge the verdict in High Court in 2000. However till 2006, nothing productive happened. . A massive public chorus of disapproval swung the media into action, exposing the weaknesses of the judiciary and CBI. Media covered the public protests, providing a platform to voice opinions. Journalists campaigned with the public demanding justice. The excessive media coverage influenced the verdict positively. Priyadarshini’s father, Chaman Mattoo, made frequent appearances on television, bringing the judiciary under intense pressure. There were discussions, special shows, opinion polls conducted on news channels. Newspapers and news sites reported the in-depth case study and questioned the judicial system for their unacceptable approach to the case. It worked as a wake up alarm for the legal system. The intense media spotlight accelerated the trial. In August 2006, the case was taken up on a day-to-day hearing basis which is rare in India. The judgment was delivered within 42 days, awarding the death penalty to Santosh Singh in October. Santosh Singh appealed against the death penalty sentence to the Supreme Court of India on 19th Feb 07In October 2010, the Supreme Court upheld the conviction of Santosh Kumar Singh but reduced the death sentence to life imprisonment.Priyadarshini's father expressed disappointment with the CBI for failing to appeal against this decision. Jessica Lal murder case On the night of 30 April, 2010 at 2 AM, when the bar was closed for drink, Manu Sharma ordered Jessica Lal to serve the drink. The refusal of drink led to their conflict. Manu Sharma 21
http://firstterm.acjnewsline.org/upload%20for%20groupC/media %20watch/Priyadarshini%20page.htm visited on 5th February, 2011.
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fired the first bullet in the air with his gun. The second round of bullet was on Jessica Lal and with that round she died instantly. After extensive hearings with nearly a hundred witnesses, a Delhi trial court headed by Additional Sessions Judge S. L. Bhayana, acquitted Manu Sharma and a number of others were acquitted on 21 February 2006. in Jessica Lall Murder case, on 21 February 2006. In the immense uproar, hundreds of thousands of people e-mailed and SMS-ed their outrage on petitions forwarded by media channels and newspapers to the President and others seeking remedies for the alleged miscarriage of justice. Soon, NDTV, a news channel, received more than 200,000 cellphone text messages urging retrial. A poll conducted by the newspaper Hindustan Times showed that on a scale of 1 to 10, the public's faith in law enforcement in India was about 2.7 Public pressure built up with newspapers splashing headlines such as "No one killed Jessica", and TV channels running SMS polls. Models, fashion designers, friends, relatives and others held candle-light vigils at India Gate in New Delhi to protest the verdict, followed by an even bigger candle light protest accompanied by a unique week long t-shirt campaign (slogan: we support re-investigation of Jessica Lal's murder, let the truth come out) in Manu Sharma's hometown, Chandigarh. Hundreds of students, MNC executives along with retired IAS and Army officers participated in the protest. On 25 March 2006, the Delhi High Court admitted an appeal by the police against the Jessica Lal murder acquittals, issuing non-bailable warrants against prime accused Manu Sharma and eight others and restraining them from leaving the country. A sting operation by the news magazine Tehelka was shown on the TV channel STAR News, which stated how the witnesses had been bribed and coerced into retracting their initial testimony.
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On 15 December 2006, the Delhi High Court held Manu Sharma guilty based on existing evidence and was awarded life imprisonment. In April 2010, the Supreme Court of India affirmed the life sentence for the guilty.
Aarushi Talwar and Hemraj murder case. Aarushi Talwar, a 14-year-old girl was found dead with her throat slit. Suspicion immediately fell on the missing servant Hemraj, however subsequently his body was recovered from the terrace of the house. The case received nationwide attention due to extensive coverage by the media which eventually took the shape of trial-by-media. . Media reported the case without having any concern for the honour of the family in general and the character of the victim and her father in particular. Every effort was made by the media to highlight the elements of illicit relationships, adultery, fornication, mystery and honour killing in a bid to challenge the popularity of daily soaps. Expressing its annoyance at the way things turned out in the Aarushi murder case, the Supreme Court asked the media to exercise restraint in reportage of such sub-judice matters. It observed “extreme caution and care in reporting such cases was required, as it is not only the reputation of a person but a person is held guilty even before the trial in the case is over,” Although the court acknowledged the crucial role played by the media, it indicated that some guidelines are still required. “The media has a powerful influence. Not only the print media, even television has reached all blocks and villages,” the bench said in a balancing act, while expressing the need for having some kind of regulation in place.
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These observations came during the hearing of a public interest litigation filed by advocate Surat Singh, seeking the court’s intervention to avoid increasing instances of media trial and recurrences of what happened to Talwar’s family.
Conclusion Though media enjoys the fundamental right of free speech on par with individual citizen, it is more powerful than that of ordinary citizens because it is organised. The media rightly enjoys the free speech right. But there are also certain negative aspects, which cannot be ignored. Today the press and media instead of being a noble profession is largely being considered a business. This commercialises the press and thereof arises the danger of media eroding the civil rights of the citizens. It is here that law assumes importance which must find out ways and means to restrict the monopoly trends in the media business and also look into the problem of media violation of individual’s rights. Law must also endeavour to restore public debate and free flow of information through the media. To quote Nani Palkhivala: “Openness is a concomitant of a free society. Men in power try to control and corrupt the press because they would not like anything to be known by the public which would detract from the respect, the acclaim and adulation to which they think they are entitled. This creates a conflict between rulers who are keepers of secrets and the press who are the tellers of tales.” If press freedom is attacked, it will result in the jeopardising of human rights because press reports human rights violations of authorities and powerful sections of the society. However, free press does not mean that the State should not intervene in its functioning; it should intervene when the situation warrants. This intervention should only be in the interest
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of the public at large. But in the name of legal intervention, the State should not impede the free flow of information that will go a long way in protecting and promoting human rights.22
Amnesty International has rightfully stated that: “States have a duty to protect journalists and not to prosecute them in an effort to control the free flow of information. A free media is not only beneficial but necessary in a free society… When faced with unjust restrictions and the threat of attack, self-censorship in the media can have the opposite effect, aiding the covering up of abuses and fostering frustration in marginalized communities.” 23 Thus media and journalists carry heavy responsibility in any society and are supposed to behave as a votary of human rights and democracy and not as violators of these canons. By indulging in media trial, press violates the basic human rights of the accused. Infact media trial has now moved on to media verdict and media punishment which is an illegitimate use of freedom. Having said that it is imperative to mention here that media trial is also an appreciable effort as along with the sting operations it keeps a close watch over the investigations and activities of police administration and executive. But there must be a reasonable self-restriction and due emphasis should be given to the fair trial and court procedures must be respected with adequate sense of responsibility. Throwing light on the limitation of investigative journalism, P.M Bakshi says that “these limits primarily flow from the right to reputation, the right to privacy and the law of contempt of court.”24
22
Andrew Vandenberg, Citizenship and Democracy in a Global Era, Mac Millan Press, 2000, p.245 23 http://web.amnsty.org/web.nsf/ visited on 29th December 2010. 24 P.M Bakshi, Constitution of India, Universal Law Publication, 2008.p.43.
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Today, there is greater need to device a delicate balance between freedom of speech of media on the one hand and the due process rights of the suspect and accused on the other. There is a need to balance right to privacy and freedom of speech and expression of media for “privacy is an important right; it is an aspect of human dignity. But freedom of expression and particularly expression by the media are cornerstone of democracy. These two powerful human rights are often in conflict, the resolution of which can mean limiting of one right in favour of other. Right to privacy protects fundamental aspects of the self: autonomy, individuality, integrity. Freedom of expression, like privacy, is often seen as essential to democracy and some see it as the most important human right. Freedom of expression applies to the dissemination of information and ideas, including those which maybe offensive or even harmful. It also extends to the right to receive information and ideas. It is of vital importance in sustaining a free and impartial press, the medium by which society learns about matters of public and political interest....The interplay between freedom of expression and privacy shows that these rights are not necessarily in diametric opposition. Whilst the protection of one right may limit the other, both are underpinned by the values of control and independence. Society needs a clear, fair and effective reconciliation of these rights.”25
The 17th Law Commission in its 200th report, titled Trial by Media: Free Speech V. Fair Trial under Criminal Procedure (Amendments to the contempt of Courts Act, 1971)26 has recommended a law to debar the media from reporting anything prejudicial to the rights of the accused in criminal cases, from the time of arrest to investigation and trial. The Commission has said that today there is feeling that in view of the extensive use of the television and cable services, the whole pattern of publication of news has changed and 25 26
Supra note 16 http://lawcommissionofindia.nic.in/reports/rep200.pd visited on 2nd January, 2011.
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several such publications are likely to have prejudicial impact on the suspects, accused, witnesses and judges and in general, on the administration of justice. Media should acknowledge the fact that whatever they publish has a great impact over the spectator. Therefore, it is the moral duty of media to show the truth and that too at the right time and also to ensure that its way of functioning does not result in the violation of the rights of the people which are succinctly referred to as human rights. ------------------------------
References 1.
Abhitosh Pratap Singh and Madan Mohan, (2006), Media: Facilitating Justice or
Hampering
Justice? , Indian Bar Review, Vol.XXXIII, P.239.
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