Trial and error

Freedom of the media is an integral part of freedom of expression and an essential part of democracy. The right to freedom of speech and expression is enshrined under article 19(1) of the Indian constitution. Press freedom is implied from this, although not specifically mentioned. The Supreme Court of India has in many landmark cases held that the freedom of speech and of the press lies at the heart of all democratic organizations, for without free political discussion, public education, so essential for the proper functioning of the process of popular government, would be missing.

Under article 19(2) of the constitution, the legislature may restrict free speech for reasons of: (i) security of the state; (ii) friendly relations with foreign states; (iii) public order; (iv) decency and morality; (v) contempt of court; (vi) defamation; (vii) incitement to an offence; and (viii) sovereignty and integrity of India.

This commentary examines restrictions on the media in matters of contempt of court and defamation with specific emphasis on the phenomenon of “trial by the media”.

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What is trial by the media?

Trial by the media refers to the impact of media coverage on a person’s reputation by creating a widespread perception of guilt or innocence before or after a verdict in a court of law.

During highly publicized court cases, the media are often accused of provoking an atmosphere of public hysteria, which not only makes a fair trial nearly impossible, but means that regardless of the result of the trial, the accused will live the rest of their life under intense public scrutiny.

The question is, can the media preserve its freedom and respect the judicial process at the same time?

Can a trial by the media be permitted if it risks trampling on the fundamental rights of an accused and interfering with free and fair decision-making?

Guilty as charged?

Media trials in newspapers, online and on 24-hour news channels risk tearing apart the reputation of individuals and entities, judging them to be guilty, even before a real trial has begun.

The media usually play down or do not report court judgments in headline-grabbing cases. In many instances, these judgments contradict what was contained in earlier reports.

It is rare for the media to voluntarily publish or broadcast an apology for misreporting a legal case.

The Press Council of India, which regulates the print media, is not equipped with the judicial or quasi-judicial powers required to promote fair journalism and penalize inaccurate and misleading reports. It lacks the power to issue injunctions and restraining orders and cannot award compensation to those affected. It can only issue warnings, and admonish or censure those who have violated the code of conduct prescribed by the council.

As a result, we are often faced with highly speculative, saucy and coloured reporting.

The 200th report of the Law Commission, on free speech and fair trial under the Criminal Procedure Code, 1973, states: “We are aware that unregulated freedom in publishing information about a criminal case prejudices the mind of the public and those who are to adjudicate on the guilt of the accused … In fact, even if ultimately the person is acquitted after the due process in courts, such an acquittal may not help the accused to rebuild his lost image in society.”

Press Council guidelines

The Press Council of India has prescribed the following norms on media reporting of judicial proceedings:

Excepting where the court sits in camera or directs otherwise, newspapers may report pending judicial proceedings in a fair, accurate and reasonable manner. However, they must not publish anything which, in its direct and immediate effect, creates a substantial risk of obstructing, impeding or prejudicing seriously the due administration of justice. In addition, reporting which is in the nature of a running commentary or debate, or records the paper’s own findings, conjectures, reflections or comments on issues sub judice and which may amount to assuming the functions of the court, is prohibited.

Newspapers are also prohibited from reporting on the personal character of the accused standing trial on a charge of committing a crime; publishing or commenting on evidence collected as a result of investigative journalism when, after the accused is arrested and charged, the court is dealing with the case. Nor should a newspaper reveal, comment on or evaluate a confession allegedly made by the accused.

While newspapers may, in the public interest, make reasonable criticism of a judicial act or the judgment of a court for the public good, they must not cast scurrilous aspersions on, or impute improper motives or personal bias to, a judge. They are also forbidden from scandalizing the court or the judiciary as a whole, or making personal allegations of lack of ability or integrity against a judge.

Newspapers are expected to avoid unfair and unwarranted criticism which, by innuendo, attributes to a judge extraneous consideration for performing an act in due course of their judicial functions, even if such criticism does not strictly amount to criminal contempt of court.

Before publishing a news item about court proceedings, the recipient of the item and the editor are expected to ascertain its genuineness, correctness and authenticity to ensure the concerned person can be held accountable if their report is found to contain incorrect facts or information.

Contempt of court

Under the Contempt of Courts Act, 1971, “criminal contempt” means the publication (whether by words, spoken or written, by signs, visible representation, or otherwise) of any matter, or act which: (i) scandalizes or lowers the authority of any court; (ii) prejudices or interferes with any judicial proceeding; or (iii) interferes with or obstructs the administration of justice in any other manner.

The exceptions to contempt of court include: (i) innocent publication and distribution of a matter (a person having no knowledge of the pending proceedings); and (ii) publication in respect of proceedings which are not pending before the court or not commenced before the court.

In State of Haryana v Ch Bhajanlal (1992), the Supreme Court held that: “Speech or writings misrepresenting the proceedings of the court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to contempt.”

A five-member bench of the Supreme Court in Sahara India Real Estate Corp Ltd & Ors v SEBI & Others (2011) laid down a constitutional principle under which aggrieved parties could seek postponement of the publication of court hearings. The bench said the concerned court would decide the question of postponement of publication on a case-by-case basis, adding that this was a preventive measure and not a prohibitive or punitive one. It further said that the temporary ban on publication of court proceedings was necessary to maintain the balance between freedom of speech and fair trial for proper administration of justice.

Meddling and misreporting

Two examples of cases where media trials have wreaked havoc are discussed below.

The murder of Aarushi Talwar: In 2008, 14-year-old Aarushi Talwar, the daughter of a prominent dentist, was found murdered in mysterious circumstances in her home in Delhi. The media grossly misreported the events after investigations and interviews with senior police officials. Scurrilous insinuations were cast on the character and motives of the Talwar family. Words such as “relation”, “affair”, “nexus”, “closeness” and “friendship” were used out of context to give rise to further suspicion and speculation.

The character assassination of the murdered girl and her entire family by the media along with the speculation over whether Aarushi was murdered by her father offers insights into the brutal nature of misreporting. Due to media uproar, Aarushi’s father, Rajesh Talwar, was arrested. He was later freed for lack of evidence after being held for 50 days. However, after several twists and turns in 2013 Rajesh Talwar and his wife were convicted of the murder.

This murder case has raised several issues pertaining to the leaking of information, the rights of a victim’s family, journalistic ethics, police and media liability for defamation, and the people’s right to know.

The Supreme Court intervened in August 2010 to caution the media against irresponsible reporting affecting the honour of a crime victim. The court stated that it was not against “gagging irresponsible press”, and termed the sensationalist reports as lacking in “sensitivity, taste and decorum” and in complete violation of the court’s direction in 2008 to exercise restraint.

The court further explained that it would not prohibit publication of information which did not interfere with the investigation, damage reputation or prejudice the accused. “The press is important in a democracy. But it must observe self-restraint. When it fails to self-regulate, what can be done? No one says do not report. But do it in a manner so that none of the parties’ reputation is tarnished. What is involved here is a young girl’s reputation. Have some sensibility while reporting.”

Jayendra Saraswathi case: Jayendra Saraswathi is the pontiff of Kanchi Kamakoti Peetham, a Hindu monastic institution in Kanchipuram, Tamil Nadu. He was linked with the murder in 1998 of two female workers of a mill in Andhra Pradesh, based solely on newspaper reports. The reports that appeared in November and December 2004 suggested that Jayendra Saraswathi had performed certain religious ceremonies at the mill at the same time and that the two women’s murder had been as a religious sacrifice. However, the high courts of Madras and Andhra Pradesh and the Supreme Court of India repeatedly found that there was no material evidence against him and came down heavily on the media and the Tamil Nadu government for misuse of government machinery.

Fighting for justice

There are several arguments in favour of media trials, despite the negative sentiments associated with them. Some argue that the media merely provide a voice for public opinion and take up people’s calls for justice.

Due to the tardiness of legal systems in India, justice is often delayed and denied. Media pressure on governments, regulators, investigative agencies and the courts has in some instances helped raise awareness of this inefficiency and led to the delivery of justice.

By shedding light on corruption within investigative agencies, among regulators and even in the lower ranks of the judiciary, the media help bring offenders and criminals to justice.

By exposing flaws within the system and the nexus between guilty parties and investigative agencies and regulators, the media have prompted the enactment of more effective laws.

Much news reporting is based on information received from sources within investigative agencies and so instead of acting against the media, the government could strengthen the internal mechanisms among regulators to prevent the leakage of vital information.

Some prominent criminal cases would have gone unpunished if it were not for media activism. For example:

The murder of Priyadarshini Mattoo: 25-year old Priyadarshini Mattoo, was found raped and murdered at her home in New Delhi in January 1996. Santosh Kumar Singh, the son of a police inspector general, who Mattoo had earlier told police was stalking her, was suspected of the crime, but acquitted by the trial court. Media reports on the case led to a massive public outcry, leading to an investigation by the Central Bureau of Investigation (CBI). The CBI, under considerable pressure, challenged the judgment in Delhi High Court in February 2000. In August 2006, justices RS Sodhi and PK Bhasin took up the case on a rare daily hearing basis and reached a judgment within 42 days. They found that the facts were not presented correctly in the lower court and convicted Singh of murder. The intense media spotlight had led to an accelerated trial, unprecedented in the tangled Indian court system.

The murder of Jessica Lal: 34-year-old Jessica Lal, was shot dead in April 1999. Dozens of witnesses pointed to Manu Sharma, the son of Venod Sharma, a wealthy Congress politician, as the murderer. After a trial that took seven years, Manu Sharma and a number of others were acquitted in February 2006.

Following intense media and public pressure, the prosecution appealed (a rare step) and Delhi High Court conducted proceedings on a fast-track basis with daily hearings over 25 days. The lower court judgment was found faulty in law, and Manu Sharma was found guilty of murdering Lal.

The 2012 Delhi gang rape: A 23-year-old woman was beaten and gang raped on a private bus in which she was travelling with a male friend. There were six others on the bus, including the driver, all of whom raped the woman and beat her friend. The incident generated widespread national and international coverage due to aggressive media intervention and was widely condemned, both in India and abroad. Media reports also generated a mass uprising in Delhi and public protests against the state and central governments for failing to provide adequate security for women. Similar protests took place in major cities throughout India. All the accused were arrested and charged with sexual assault and murder. One died in custody and the rest went on trial in a fast-track court and were found guilty within a year of the commencement of the proceedings.

Due to aggressive media intervention and wide coverage the government formed a judicial committee to study suggested amendments to provide quicker investigation and prosecution of sex offenders. After considering 80,000 suggestions, the committee submitted a report which indicated that failures on the part of the government and police were the root cause behind crimes against women. In 2013, President Pranab Mukherjee promulgated the Criminal Law (Amendment) Ordinance, 2013, several new laws were passed, and six new fast-track courts were created to hear rape cases. This case resulted in a tremendous increase in the public discussion of crimes against women and statistics show that there has been an improvement in the number of women willing to file a crime report.

The latest developments

A three-judge bench of the Supreme Court, led by Chief Justice RM Lodha, recently said the court would consider framing guidelines for the media on covering criminal cases and briefings by investigative agencies. Describing this issue as “very serious” the court said such guidelines could serve to balance the rights and interests of all stakeholders.

Information and Broadcasting Minister Arun Jaitley asked the media to avoid conducting parallel trials while reporting matters that are before the courts. He said the challenge for the media was to ensure quality and credibility while playing the role of an educator in handling sensitive issues responsibly. Maintaining high ethical standards on the issue of conflict of interest was an added challenge, he said.

Responsible journalism

In light of the above, the author has drawn the following conclusions:

It is time to convert the Press Council of India into a quasi-judicial body with powers and teeth to punish irresponsible journalists and their publications/channels, etc., instead of merely reprimanding them.

Investigative journalists should be given access to leads and facts which are crucial to clamp down on wrongdoers. As a matter of principle, headlines and news reports should not pass judgment on a case or direct the needle of suspicion in a manner which paints suspects as the criminals in the eyes of the public.

Public prosecutors and defence counsel should be prohibited from providing media interviews on the merits of cases they are fighting in a criminal court. The Bar Council of India needs to drive this point home vigorously.

Investigative agencies and regulatory bodies such as the police and the CBI should take strict departmental action against any leakage of sensitive information or public interviews on sensitive cases which could lead to contempt of court or defamation.

There must be a balance between informing the public and making police officers accountable for excessive disclosures. This requires a degree of introspection by agencies as the existing guidelines on interaction with the media have not been codified. We live in times when civil rights activists go to police stations for information and then pass it on to the media. The police at times feel that it is better to hold press meetings in order to brief the media themselves.

The way forward

While freedom of expression remains an important facilitator for widespread engagement within a democratic society, it needs to be balanced against the right to a fair trial and privacy.

As eminent jurist Fali Nariman once stated: “A responsible press is the handmaiden of effective judicial administration. The press does not simply publish information about cases and trials but subjects the entire justice hierarchy (police, prosecutors, lawyers, judges, courts), as well as the judicial processes, to public scrutiny. Free and robust reporting, criticism and debate contribute to public understanding of the rule of law, and to a better comprehension of the entire justice system. It also helps improve the quality of that system by subjecting it to the cleansing effect of exposure and public accountability.”

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Amit Vyas is the vice president of legal at Mahyco in Mumbai. The views expressed in this article are strictly personal.