By Dr Swati Jindal Garg

American politician and statesman J William Fulbright said: “When public men indulge themselves in abuse, when they deny others a fair trial, when they resort to innuendo and insinuation, to libel, scandal, and suspicion, then our democratic society is outraged, and democracy is baffled. It has no apparatus to deal with the boor, the liar, the lout, and the antidemocrat in general.”

Even though the above statement was given years back, not much has changed. Indian democracy prides itself on the checks and balances it has imposed in order to ensure justice to all. But the fact is that people make judgments about a case based on its reporting in the media before the facts are heard in courts. 

Taking note of this fact, a three-judge bench presided by Chief Justice DY Chandrachud recently said: “Media trials are liable to result in a deflection of the course of justice by impacting upon the evidence which would be adduced and its assessment by the adjudicating authorities.” The Court also warned that police briefings to the media about the investigation of crimes “must not result in a media trial so as to allow for the pre-judging of the guilt of the accused”. It directed the home ministry to prepare within three months “a comprehensive manual on media briefings by police personnel”.

The Court was dealing with pleas which raised the issue of procedure to be followed by the police in investigating encounters and the propriety and procedure governing media briefings by police personnel where a criminal investigation is in progress. 

Whatever disagreement there may be as to the scope of the phrase “due process of law”, there can be no doubt that it embraces the fundamental conception of fair trial, with the opportunity to be heard. It is imperative that both the guilty and innocent parties are entitled to due process of law, a fair trial and a counsel. Most of all, they are entitled to fair treatment from the police. The law enforcement officer has the same duty as the citizen—rather, he has a higher duty—to abide by the letter and spirit of the Constitution and laws. He must not only be careful to obey the letter of the law, but be intellectually honest in the enforcement of it. 

The apex court took due note of the fact that existing guidelines on the subject were prepared by the home ministry “over a decade ago on April 1, 2010”. The bench, which also comprised of Justices PS Narasimha and Manoj Misra, said: “Since then, with the upsurge in reporting on crimes not only in the print media but in the electronic and social media, it becomes extremely important that there should be a standard operating procedure which balances out all the considerations….”

It added: “There can be no denying the fact that the disclosure of an official version of the investigation would ensure against speculation on crime reporting, which may be of disservice both to the public interest involved and the interest of the accused, witnesses, prospective witnesses as well as victims and survivors of crime. There is in that sense a need to have a uniform policy which can be adopted for notifying nodal officers who would be available to share the official version of the stage of the investigation consistent with the need to ensure that the disclosure itself does not derail the course of the investigation.”

Ensuring that all the stakeholders get an adequate opportunity for a fair representation, the bench asked DGPs of all states to communicate to the ministry within one month “their suggestions for the preparation of appropriate guidelines”, after which the ministry will prepare them. Another interested party is the National Human Rights Commission.

The Court also said: “The nature of the disclosure cannot be uniform since it must depend upon the nature of the crime and the participating stakeholders, including the victims, witnesses and accused themselves. The age and gender of the accused as well as of the victims would have a significant bearing on the nature of the disclosure to be made as well. The guidelines must duly factor in the need to ensure that the disclosure must not result in a media trial so as to allow for the pre-judging of the guilt of the accused.”

Criminal law in India has certain fundamentals. For a proper redressal and access to justice, it is imperative that all these fundamentals are adhered to. These include:

• A guilty mind and a guilty act together constitute a crime.
• A mistake of fact is a defense in crime, but not a mistake of law. 
• The law does not permit ex-post facto laws, which means that no one can be punished for an offence that is no longer recognised as the offence. 
• Everyone shall be presumed innocent until proven guilty beyond a reasonable doubt. 
• An accomplice is treated the same as the accused and given equal punishment under the criminal law. 
• The rights of the accused before, during, and after trial are protected. He has various rights like the right to a fair trial, the right to bail, the right to free legal aid and protection against self-incrimination and double jeopardy, which can never be infringed upon by the authorities. 

Statements given by the police—that generally don’t take into account the rights of an accused person—play a role in influencing the public mind. The media trial that ensues changes the lives of these accused forever.

Section 21 of the Human Rights Act, 2004, says: “Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing with the exception of the press and public which may be excluded from all or part of a trial in order to protect the morals, public order or national security in a democratic society.” 

This right however, is not confined only to criminal cases. Whether a person is a defendant in a criminal case or a party to civil proceedings, they both have the right to a fair trial before a competent, independent and impartial court or tribunal established by law. Section 21 of the Act further provides that judgments and hearings must be public unless other laws (for example, child protection) provide otherwise.

The Indian media has seen significant growth in the past few decades and the total claimed circulation of publications during 2021-22 was 39,17,12, 282, according to the Office of Registrar of Newspapers for India. The role of the media cannot be undermined because of its massive reach. Over the last few years, however, the media has stepped out its domain and invaded that of the judiciary by conducting trials parallel with courts. It has assumed the role of a public court which fails to recognise the concept of “innocent until proven guilty” and “guilty beyond reasonable doubt”. 

Media trials usually commence even before the courts can try the matter and investigate the matter on their own, coming to a conclusion where the public forms an opinion against or for the accused. This has a prejudicial impact on the actual trial, leading to infringement of the right to fair trial of the accused. While the public praises the media for raising awareness on important social issues, it can also be obsessively intrusive when it involves public personalities.

The latest order of the Supreme Court will go a long way in combating the problem of media trials and take us closer to achieving a fair justice system.

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

ILNS: A Public Interest Litigation has been filed in the Delhi High Court, seeking directions for making of standard rules for reporting criminal cases by the media, taking into consideration the right of the accused. The PIL also wants the media to be restrained from engaging in media trials. The backdrop of this PIL are media reports and analyses in the case of the arrest of Olympic medalist wrestler Sushil Kumar, accused in a murder case.

The PIL has been filed by Kamla Devi who is mother of wrestler Sushil Kumar and Shrikant Prasad, a student of law at Delhi University. The petitioners want a direction to Delhi Police, Press Trust of India and other concerned media channels to refrain from Media Adalats. The plea also wants media to not disclose statements of witnesses and all information related to the case. The plea says that only the investigation agency has that power.

The PIL  says that the media has now transformed itself into “janta adalats” or “public courts” and has started intervening in the proceedings of the court. The vital gap between a convict and an accused is completely overlooked by the media which disregards the cardinal principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’.

The petitioners observe that a separate investigation is being done by the media itself. This is called a media trial, along with the regular investigation. This includes forming public opinion against the suspect or the accused even before the court takes cognizance of the case. As a result, the public is prejudiced, due to which the accused, who should have been assumed innocent, is presumed to be a criminal, abandoning all his rights and liberty unrepressed.

It was also alleged that excessive publicity of the accused or the suspect in the media before the trial in a court of law either incriminates a fair trial or results in characterizing the accused or suspect as the one who has certainly committed the crime. This amounts to undue interference with the “administration of justice”, which calls for proceedings against media for contempt of court. The rules that have been designed to regulate the journalism and journalistic conduct are unfortunately inadequate to prevent the encroachment upon civil rights.

“Today the attitude of media as like they themselves are the court and they decide who is guilty and who is not, even before the decisions of courts. After being regarded as one of the four pillars of democracy, the media plays a pivotal role in moulding and shaping the opinions of the society. It is capable of changing the mass mentality, through its viewpoint. However, with the increase in the role of its democratic frontiers, the need to look into its professionalism and reportage cannot be stressed enough,” the PIL reads.

The petitioners laid emphasis on the fact that there have been numerous cases where the media had taken the cases into their own hands and declared an accused as a convict, even much before the Court had already given its decision. There have been quite infamous cases that would have led the Court to declare the accused as innocent, had it not been the wrath of the media in shaping the opinions of the people as well as impacting the judgment of the Judiciary.

A few of such cases mentioned in the PIL  were: The Jessica Lal case, 2010, The Priyadarshini Mattoo case, 2006 and The Bijal Joshi rape case, 2005.

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The PIL also states: “Delhi Police has categorised this in a sensitive case, but they themselves are leaking each and every information to the media and the media is running these on every channel with their distorted means with a sole motive of gaining TRP. Privacy of an individual is a fundamental right held in AK Puttuswamy vs UoI 2017 by the apex court,” but this has been thrown out of the window by the police, said the PIL. The PIL talks about Article 19 and the freedom of speech and expression, but also points out the limits.

The Bombay High Court has come down hard on media trials in its order in the media trial that succeeded the death by suicide case of actor Sushant Singh Rajput. Holding that the coverage of Republic TV and Times Now in the case was contemptuous, the High Court listed new guidelines to avoid media trials.

Among the main points in the judgment given by Chief Justice Dipankar Dutta and Justice G.S. Kulkarni is that the Press Council of India guidelines on reporting shall apply to the electronic media as well. This has not been the case so far.

The Court said media trials amounted to contempt of court and impacted the delivery of justice. The Court drew a distinction, however, saying contempt provisions come into being only when the media trials are on cases that are in court.

The Court issued directions to regulate reporting in the media of a criminal investigation which is underway. It observed that the media/press should avoid discussions and debates surrounding a criminal investigation, and should focus only on informing the public keeping that in mind. The rights of the accused and the witnesses should not be prejudiced by the media, the court said.

Among other norms to be followed, are:

In case of reporting a suicide, the media should avoid suggesting the deceased was of a weak mind/character.

Avoid reconstructing the crime scene, interviewing potential witnesses, revealing confidential and sensitive information.

The Court told investigative agencies not to reveal information as they are under no obligation to put out information about investigation proceedings underway. The Court said publishing suicide notes or such material as if it is admissible when its state of admissibility is not known should be avoided.

The court said a Public Information Officer could be appointed by the police as suggested by Senior Advocate Arvind Datar to put out authentic information.

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New Delhi (ILNS): An application has been filed in the Supreme Court seeking orders to restrain electronic and print media from broadcasting/publishing any material that may lead to a media trial, directly or indirectly hampering the investigation in the Sushant Singh Rajput death case.

The application has been drawn by Advocate Rajesh Inamdar and Shahshwat Anand and filed by Pankaj Kandhari.

It has been alleged that the broadcasters have telecast highly sensitive/confidential information in connection with the ongoing criminal investigations where the news outlets have made various statements based on purported disclosure statements made by the accused and other witnesses to the investigating officers, attributing the source of information to be from the investigating agencies. The petitioners have submitted that such information to which only the officers or the person being in question should be privy have reached the channels.

It has further been submitted that the CBI, ED, and NCB have filed their counter-affidavits stating that no information from their side was leaked to the media and they have been conducting the investigation proficiently.

It has further been submitted that if no information was leaked by the agencies then in such circumstances why none of the investigating agencies have taken any actions against media channels for broadcasting the sensitive private conversations recorded by them.

Hence, in such circumstances, the petitioner has submitted that it becomes imperative to direct the broadcasters to disclose the source from where the private sensitive information was received and to direct an inquiry to be conducted into misconduct if any of the officials of the investigating agencies or by the accused or the witnesses.

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The application has been filed in the case filed by Nilesh Navlakha raising concerns about the media coverage pertaining to the unnatural death of Rajput which according to the petitioner tantamount to media trial.

-India Legal Bureau

New Delhi (ILNS): The Delhi High Court today asked the Centre what steps it has taken after the court’s previous orders on a plea by actress Rakul Preet Singh. The Court had on September 17 directed the authorities to treat actress Rakul Preet’s plea restraining the media from reporting on her in connection to the Rhea Chakraborty drug case, as a representation.

Acting upon a plea filed by Rakul Preet the bench of Justice Navin Chawla issued notices to the authorities seeking the response of the Ministry of Information and Broadcasting, among other respondents and posted the matter for further hearing on October 15.

She had alleged in her petition that a ‘media trial’ was being held against her in the Sushant Singh Rajput case after she was named by Rhea Chakrabarty in a statement to the CBI.

The petitioner’s counsel argued before the court that fake news is being peddled against her client. An example of such fake news was that, after the previous hearing in the High Court, the news being circulated was that she had been summoned by the NCB on September 24. On that day Rakul Preet was in Hyderabad and no summon was issued to her, the counsel said.

“My right to dignity and privacy, which is to be left alone, is being violated,” counsel Aman Hingorani said on her behalf.

However, the court sought to know whether it can pass any order when none of the channels are before it. It said that the petitioner has to show a grievance or any particular broadcast with which she is aggrieved about.

Appearing for the News Broadcasters Association (NBA), its counsel Rahul Bhatia told the court that they have been receiving a lot of complaints and they are being pursued on a daily basis. The court asked the counsel to file a status report in this regard.

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The Court then asked the ASG to clarify what actions have been taken on its September 17 direction where the court had asked to consider Rakul Preet’s plea of media trial as a representation.

The matter will now be heard on October 15.

-ILNS

The professionalism and ethics of the media are constantly brought into question when it takes sides in a case and pronounces the accused guilty even before the court begins trial

By Abhilash Kumar Singh

The media plays a key role in shaping and changing the opinions of society. However, it is pertinent to look at its professionalism and ethics considering that media trials are often conducted in various mediums. There have been many cases where the media had taken cases into its own hands and declared an accused guilty even before the court has given its decision. The Sushant Singh Rajput case is one of them.

#Sorrybabu was trending last week on Twitter. The context was that someone from the Karni Sena organisation heard Sushant’s alleged girlfriend Rhea Chakraborty saying, “Sorry Babu” when she went to the mortuary to see his dead body. And people decided that she was apologising for murdering him. A few days back, some news channels decided that Sushant was not in depression because he was wishing good luck to a friend on WhatsApp and asking him to take care.

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Some infamous cases would have led the court to declare the accused innocent. Two of them are the Jessica Lal murder case, 2010, and the Bijal Joshi rape case, 2005. Media trials led to widespread coverage of the guilt of the accused and led to a certain perception about him. It created hysteria among viewers in high-profile cases, making it nearly impossible for the trial to result in a fair judgment.

The history of media trials goes back to the 20th century. In the case of American silent movie star Roscoe “Fatty” Arbuckle (1921), who was charged with the death of a woman, he was acquitted by the court, but lost his reputation and job after the media declared him “guilty”. Another famous case is the trial of former National Football League player, broadcaster and actor OJ Simpson who was tried and acquitted on two counts of murder for the June 12, 1994, deaths of his ex-wife, Nicole Brown Simpson, and her friend Ron Goldman. But the media influenced the mind of viewers and declared Simpson guilty. Media trials have caused wrongful portrayal of the accused and helped in destroying their careers.

The Constitution guarantees the right to freedom of expression under Article 19(1), i.e., the right to hold opinions without any interference and the freedom to seek, receive, impart information, ideas of any kind regardless of the frontiers, either orally, or in writing, or even in print, or in any form of art, or through any other media of the person’s choice. This is also subject to special duties and responsibilities and the rights or reputations of others.

Freedom of the media is the freedom of people as they should be informed of public matters. It is, thus, needless to emphasise that a free and a healthy press is indispensable to the functioning of democracy. In a democratic set-up, there has to be active participation of people in all affairs of their community and the state. It is their right to be kept informed about the current political social, economic and cultural life as well as burning topics and important issues of the day in order to enable them to consider forming a broad opinion in which they are being managed, tackled and administered by the government and their functionaries.

To achieve this objective, the people need a clear and truthful account of events, so that they may form their own opinion and offer comments and viewpoints on such matters and select their future course of action. However, the freedom is not absolute as it is bound by sub-clause (2) of Article 19 (1). However, the right of freedom and speech and expression does not embrace the freedom to commit contempt of court.

In certain cases, the Supreme Court has stated that trial by the press, electronic media, social media or any public agitation are instances which could be described as antithesis of the general rule of law, leading to the miscarriage of justice.

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 actually 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 for a fair trial. 

In the Aarushi Talwar murder case of 2008, the media had declared who was guilty even before the trial began. There were mass protests and the public was hysterical over news reports alleging that her parents were the cause of her death.

A journalist may be liable for contempt of court when he decides to publish anything which might go against “fair trial” for the accused or which may affect the impartiality of the court during any proceeding. The right to a fair trial is an absolute right provided to any individual as per Articles 14, 19, 20, 21 and 22 of the Constitution.

Media trials have also pressured lawyers not to take up cases where the public deems certain individuals guilty without actually being proven. This forces the accused to withdraw his right to have an advocate. The assumption of the media encroaches upon the right of the accused to have a fair trial as well as his right to have a good advocate.

Every news channel is after TRPs and no one wants to actually get justice for the accused. It is time for the media to be regulated so that the strict standards and ethics of journalism are maintained. If not, penal provisions should be kicked in. When the government can regulate movies, why not the media? The right to free press is only as good as the interests of the public for whom the news is being served.

The media is the cornerstone of our democracy which operates for the greater interest of society, but the legal process in any matter should not be hindered by it. The mandate of the press is limited to placing a matter in the consciousness of society without any presumption being given. Courts are the right forums for such decisions and they must be allowed to function without spreading prejudice in the public opinion. The right to a free and fair trial under Article 21 must be upheld.

—The writer is Advocate, Supreme Court of India

Lead picture: Rhea Chakraborty. Photo credit: Instagram