INTRODUCTION:

The demi-world of journalism is like the fun house of mirrors that one finds in carnivals. In one reflection you are too fat; in another you are absurdly thin; in another reflection you appear to have an elongated neck; in another, a flat head, – in still another you have next to nobody. Yet there you are, standing in front of these bizarre reflections, fully formed and hearing little resemblance to any of the images before you. The difference is, however, that unlike the fun house of mirrors, the distortions of the media are rarely a joke.[1]

“The average TV commercial of sixty seconds has one hundred and twenty half-second clips in it, or one-third of a second. We bombard people with sensation. That substitutes for thinking.”
– Ray Bradbury

As we all know, a nation’s culture is governed by the Legislature, which makes the law; the Executive, which takes part in ensuring that certain laws are adhered to; and lastly, the Judiciary, which regulates and oversees law enforcement and prevents any violation of the law.

Gradually, it has been noted that in addition to the three mentioned above, the media and telecommunications industry has evolved as the fourth organ of democracy. Media has proven to be a significant facet when it comes to the distribution of information at the local, national and global levels. Historically, mass media mechanisms have tended to counter information asymmetry on a very large scale.

I ask, in my writing, what is real? Because unceasingly we are bombarded with pseudo-realities manufactured by very sophisticated people using very sophisticated electronic mechanisms. I do not distrust their motives; I distrust their power. They have a lot of it. And it is an astonishing power: that of creating whole universes, universes of the mind.”

-Philip K. Dick

Amartya Sen has regarded Media to be a watchdog of the Society. There is appreciation of the power and value of media in a society. Article 19(1)(a) of the Constitution of India, which gives freedom of speech and of expression, contains freedom of the press within its scope.

The media’s crucial position is their power to engage millions in the thought process. The media’s expanded position in today’s globalised and tech-savvy world was accurately reflected in the words of Justice Learned Hand of the U.S. Supreme Court when he said, “The hand that rules the newspaper, the radio, the television and the far-spread journal, rules the country”.[2]

Thus, a large population consisting ordinary laymen, including both adults and teenagers are strongly affected by the mass media surrounding them, pushing them to make daily choices because of advertisements, entertainment shows, movies, and so on. This leads to individuals making more detrimental decisions, in terms of perhaps deciding their ideologies, political inclinations, and so on.

The problem that occurs in this case, which means that Mainstream Media often takes it upon itself to make pre-emptive statements on a legal matter, before the Court can give a verdict. While news reporting may have little legal validity (except where it impacts the mind of a judge), it may have various social consequences whereby punishments of any type can be placed on a personal or social basis that might not necessarily be reasonable.

At the end of the day, it is important for the media to realize that their job is to keep the public updated with the information that is authentic, verified and precise and then leave it to the people to make their own decisions, and preferably, not try to manipulate or direct popular opinion in any direction, regardless of the personal inclinations of the media house itself. In any case, the thinking of people should not be along the lines of the sensational agenda created by the media. Such a situation usually arises when Media loses its objective and unbiased voice.

The reason the Author opted for this analysis was after coming across certain cases of a similar nature, upon which light will be shed later in the research, like the Sheena Bohra murder case,[3] Sushant Singh Rajput case [4] where the personal life of the accused came under public scrutiny, which is against journalism ethics, but interestingly enough, constitutionally protected. 

The second condition behind the study was the case of Bhima Koregaon, where Justice Chandrachud, who gave a dissenting opinion, can be quoted as saying that the “Court functions as a watchdog to ensure a fair and unbiased inquiry is undertaken which is crucial to the protection of the rule of law”.

Lopsided media outlets become clear sources of public exploitation when besmirching the reputations of those engaged in prosecution and inquiry, and curbing the same becomes important.

Research Problem

The major question which the Author wishes to attempt to answer through this study is to hit upon the bottlenecks present in the current legal framework when it comes to addressing Trials by Media. Though laws exist to keep a check on Media, such as the Press Council Rules, as well as the Contempt of Court Act, 1970, it is observed that these aren’t enough safeguards for an accused to undergo a free and fair trial as it has already been seen in many past as well as current cases.

Thus, the research paper shall also answer the problematic overlapping of two rights that hold utmost important namely Freedom of Speech and Expression, and Right to Privacy, and how the balance is not reached. Furthermore, owing to hyped news in a few cases, the victims are more vulnerable to social sanctions against them in certain high-profile circumstances, which makes them unfair treatment.

The Author shall also focus on other jurisdictions, namely that of the United States to understand how Media Trials may be of a different nature there as compared to India, due to the presence of the Jury System.

Significance of Study

In this day and age, popular media, via news and other modes of mass media, represents the cultural social order, as a whole. However, the judiciary makes an attempt on a more individualistic basis to adjudicate each case as independently as possible according to the current legislation. The whole Trial by Media conundrum falls into play due to the fact that Journalism is a corporation at the end of the day. It does exist to make people aware of the ongoing issues on a domestic and a global level, but it also holds tremendous influence, and this leads to it exploiting the public for its own financial gain, which, as of now, is not illegal, regardless of how immoral it might be. Thus, the means of mass media are sometimes reduced to merely sensationalize issues, and feed the public what they want.

In the past, a politician had noted that there could be three houses in the House, but the Press and the Media are the fourth estate because of the very fact that the power they have may be considered to be on par with the power exercised by the Government, which says a lot itself. In 1891, Oscar Wilde subsequently noted in his writing The Soul of Man that Journalism had begun as the fourth estate, but from that moment on it had resulted in being the only estate, having swallowed up the other three. The government may change, the ruling party may go after their term, but Journalism and Media is here to stay and govern for an indefinite prolonged period. It has the most influence.

The importance of the research, as mentioned above, lies in the fact that when talking about Media Litigation, there is an inherent controversy that comes into play. Journalism is a business and, according to Article 19(1)(a), each news and journalism institution enjoys a substantial degree of freedom of speech and expression, guaranteed by the Indian Constitution. However, it has been observed in numerous cases, such as the Jessica Lal Murder Case;[5] Aarushi Talwar murder case[6]; Sushant Singh Rajput case[7] and most famously, the case of KM Nanavati[8], whereby, the Media had influenced public opinion to a significant extent, which, as impressive as it may be, is also highly problematic.

In comparison, it appears that aside from not being presented with a fair and equitable justice, media prosecution often leads to involvement with the accused’s personal lives, which may very well be insignificant. This seems particularly unjust and puts not only the perpetrator, but their families, to the spotlight, obviously violating their privacy rights.

Consequently, Media is one of the most critical instruments for social engineering, and it is imperative to curtail this right in a way that allows greater power than Article 19(2) suggests. It is understood, however, that all freedoms are liable for fair limitations, which will be addressed further in the study report, has not proved adequate since public opinion is still affected.

It must be remembered that India is a democratic country and the judiciary has repeatedly established that, unless proved guilty, any convicted person is presumed innocent. Provided that this is a matter of policy degree, but at the same time it has connotations of a social and human rights nature that demand a delicate balancing, between the constitutional freedoms afforded to all persons, including the mass media houses, as well as the judicial safeguards afforded to the accused.

Another important aspect that poses itself for consideration is the right to privacy, most recently protected by Article 21 of the Indian Constitution under the Right to Life. However, if full and unbridled privacy in such circumstances is given it will overturn the foundation of transparency and accountability on which India’s democratic governance rests.

Granted that the Contempt of Court Act of 1971 penalizes any pre-trial publication which tends to interfere with dispensing justice for a pending matter, however, the scope of the word pending still remains wide, which defeats the purpose of the provision.

Because of mass attention, as unbiased as they are preferably meant to be, it is imperative that the minds of judges and jurists, and their judgement: both in terms of their thoughts and what they offer, become a tad bit clouded, as this is just a human propensity.

The author believes that the study undertaken at present aims to look at the interplay between the Freedom of Speech and Expression, and the Right to Life and Privacy; alongside democratic ideals enshrined in governance in India, such as the Right to Free and Fair Trial, conflicting with the transparency. The importance lies in the fact that while a lot of research, both doctrinal and scientific, has been carried out on Trial by Media, there are separate policy and technical lacunae that need to be plugged in.

The study attempts to first, understand the interplay between the Public, the Press, and the Judiciary, secondly, cite case laws and instances where the public has been swayed due to the influence of media; thirdly, Help develop frameworks to make media more impartial in nature, so much so that it is not as effective as it is today to manipulate. Fourthly, in the light of Article 19 of the International Covenant on Civil and Political Rights, 1965, again, in respect to the Right to Live, the author intends to look into the facets of the tarnishing of reputations and lastly draw a comparative analysis with that of United States which still follow the jury system.

REVIEW OF LITERATURE

• Durga Das Basu, “Shorter Constitution of India”, Lexis Nexis, Haryana. In his book the author addresses in depth the “freedom of speech and expression” under the Indian Constitution. He also addresses the “press freedom” that emerges from the “freedom of expression and speech”. These aspects of press freedom are of considerable significance to the researcher in coping more efficiently with the topic of the analysis.
• D. S. Chopra and Ram Jethmalani, “Cases and Materials on Media Law”, Thomas Reuters, New Delhi. The book’s writers have sought to address the regulatory rules and rulings that deal with media. They also listed a number of cases surrounding press freedom and appropriate limitations on that right. The book includes a chapter focused entirely on “trial by media,” in which separate cases are addressed in depth and also the impact of the media trial on such cases. Through these cases, the authors have criticized the indulgence of journalists in such trial by media. This has helped the researcher to take note of several cases dealing with media trial which contributes to the study.
• “Trial-by-Media: Derailing Judicial Process in India”[9]. In this article, the author makes a brief discussion on the constitutional provisions relating to free speech in India. The author further discusses the immunity attached to pre-trial publications under the Contempt of Court Act of 1971, which will be addressed in the study by the researcher. The author also focuses on the ineffectiveness of the legal norms relating to journalistic conduct and also raises the issue of media trial having an ability to influence the judges. This has facilitated the researcher to have a thorough understanding of the subject, so as to make a further study on the issues.
• Kauser Hussain and Srishti Singh, “Trial by Media: A Threat to the Administration of Justice”.[10] The authors of this article start by describing the importance of media freedom and how media behaves as the “fourth pillar” of democracy. The authors also point out the media’s role in a democratic society. They only focused on the idea to make media more careful and cautious at its conduct. The Author through this study will take account of this issue and also try to justify the importance of imposing reasonable restrictions when a situation demands.

In order to ensure that the mechanism is concrete, the Author has comprehensively discussed varied factors. Firstly, the patterns defining how the media reports on court proceedings and justice systems in general. Secondly, how the media influences people’s perspectives on court proceedings and determinations and lastly how changing public views through media reporting affects court determinations.

Aims and Objectives of the Study

• The author aims to primarily understand the interplay between Freedom of Speech & Expression, and the guarantee of a Fair Trial afforded to all those who are accused. Though the right given under Article 19(1)(a.) is subject to reasonable restrictions, certain lacunae exist due to which prejudice is generated in favor of either party due to the power and influence the Media holds over the minds of laymen and ordinary decision makers, as well as the minds of the Judges.
• The author aims to resolve the problem at a policy level and to recognize possible ways of curbing the lacunae in question, either in terms of enforcement or practical aspects of the law itself, since the current scenario in the Contempt of Court Act, 1970, as well as the rules provided by the Press Council of India have not proved to be the most successful. This would be done after analyzing the existing legal framework and precedents which have been laid down by the Judiciary in the recent past.
• In addition to the legal context, an effort will also be made in brief to resolve ethical concerns in terms of journalism, with focus on tightening the noose of journalism’s morality due to its widespread effect and influence.
• The study shall also compare various legal systems, namely the English, as well as the American Jurisprudence, to understand how they treat situations of Media Trial, and if the Indian Jurisprudence could borrow their ideologies.

Hypothesis

The author did not settle for an observational research approach and relied mainly on doctrinal analysis from secondary sources, thereby proving difficult in obtaining an objective hypothesis. Moreover, it was discovered during the process of the study that there is no reliable measure to assess whether the judiciary was neutral and unprejudiced in a given situation. However, one clear theory the Author seeks to prove or disprove is the fact that the existing regulatory system is insufficient when it comes to coping with trial by media, which allows for quick infringement of citizens’ civil rights.

Not only is this proposed to be due to a lack of efficient system of Law, but also due to a lack professional journalism, which get lost somewhere in the large void of Freedom of Speech and Expression.

This is due to the suffixed hypothesis that excessive publicity and sensationalization by Media, by delving into personal lives prejudices the administration of Justice.

Research Questions

The Author, throughout the course of this research paper, aims to answer a few basic research questions such as:

• understanding the difference between Trial by Media, and a Fair Trial.
• Infringement of constitutional rights, such as Right to Life, and Right to Equality, and Right to Privacy, due to Media Trials.
• Analysing the current structure of Laws, namely precedents set by Indian Courts, the Constitution of India, as well as statutes, for protection against Trial by Media.

The Author will also attempt to identify the shortcomings of the existing system and attempt to recommend ways in which bottlenecks can be addressed to make the regulatory process more functional and practical, as well as suggesting changes to be made at the professional and ethical level.

Scope and Limitation of Study

The scope of the given study is limited to addressing the apparent disparity between the privileges bestowed upon the accused by the Constitution, on the one hand, and the media houses, on the other. In addition to the Constitution, the report will also contain other rules and legislation concerned with the freedom of the press and the rights of the accused, as well as other research questions that might emerge directly from the above.

Secondly, the research shall also address bottlenecks in the current legal framework, and try to devise a mechanism and provide constructive suggestions to counter the same.

The study shall primarily focus on Indian jurisprudence but also draw a comparative analysis with that of United States jurisdiction due to the presence of Jury system and its effects.

There are too many ethical aspects attached to Media Trials, and the Author shall not make them the focus of this paper, as legal elements shall assume precedence over any moral issues.

During the course of the study, print journalism and allied Press Council rules shall be mainly focused upon and tele journalism shall be given secondary significance, owing to the fact that Print Media has a much wider reach, and has been in existence for a far longer time.

Research Methodology

The chosen subject is very difficult to scientifically assess for different judges and jurists precisely because bias on the part of a judge can neither be assessed nor confirmed until after a verdict has been delivered.

Therefore, the research is undertaken in the Doctrinal, or Descriptive manner. The Author has used secondary sources in the form of academic literature, available in various Books, Journals, Articles. Apart from this, Law Commission Reports as well as Statutes, and the Constitution of India have also been referred to.

The data from secondary sources will be collected through books available in the Library of Gujarat National Law University, and by making use of articles and online journals made available online.

The data will then proceed to be compiled in a systematic manner, and the Author shall attempt to plug the loopholes available in such data, in context of the given topic, by evaluating which of the research questions and problems the data at hand fails to answer.

Tentative Chapterization

1. Introduction:
   1. A quick overview of Indian media law & ethics, talking about the media’s impact and control that needs a legal and moral perspective.
   1. Establish what a Free and Equal Trial entails in a civil sense, and equate the same to a Media Trial.

• History:
  • Understanding the history of the Jury System in India, and understanding Media Trials in such background, with special reference to the case of KM Nanavati.[11]
  • Comparing the same with the current scenario in the United States of America, where Jury System still persists, and the steps they have taken to curb Media Trials in such situations. Some historic examples, such as the case of O.J. Simpson[12] may also be highlighted.
• Legal framework with respect to media in India:

3.1 Constitutional protection for freedom of speech and expression granted to media houses, and how freedom of speech and expression under Article 19(1)(a.) protects journalistic rights.

3.2 Laws safeguarding the above-mentioned freedom, in terms of Contempt of Court Act, as well as the Press Council Rules.

3.3 The Constitutional Right to a Free and Fair Trial given to the accused.

3.4 Brief outline of overlapping of the Rights.

4. An Analysis Of The Effect Of Media Trial On Some Prominent Cases And    Developments In Recent Times:

4.1 Providing an in-depth analysis of how there is an overlap between Freedom of Speech and Expression, and Fair Trials by citing various examples and case-laws shedding light on the same.

4.2 Enlisting Laws and Rules available to tackle the above problem.

5. Determining the efficacy of present Legal Framework:

5.1 Recognizing the bottlenecks in the current Laws.

5.2 Providing corrective recommendations and suggestions on a Policy level to help plug loopholes.

5.3 Providing recommendations on ethical levels to help correct the scenario of Media Trials.

6. Conclusion and Suggestions:

This chapter completes the author’s observations and presents in a structured way the loopholes that were supposed to be filled, as well as the synthesized approach that should be taken to the theories of media law and associated constitutional rights.

REFERENCE

[1]“trial by media and trial of media”, http://www.rrtd.nic.in/MassMediaIndia2009.pdf

[2] supra

[3] Pratim Alias Peter Mukerjea v. Union of India & Anr., Criminal Writ Petition No. 4400 of 2017

[4]  Rhea chakraborthy v. Central Bureau of Investigation & Ors., Criminal Transfer Petition No. 225 of 2020

[5] Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1

[6] Rajesh Talwar v. Central Bureau of Investigation & Ors., Criminal Transfer Petition No. 45 of 2012

[7] Rhea chakraborthy v. Central Bureau of Investigation & Ors., Criminal Transfer Petition No. 225 of 2020

[8] KM Nanavati v. State of Maharashtra, 1962 AIR 605

[9] MLR 91 2010

[10]SAJMS 195 2016

[11] Supra Note 4

[12] People of the State of California v. Ornethal James Simpson, Case No. BA097211

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