Judicial Approach On Freedom Of Media And Media Trial
Muskaan Sharma, Student, Asian law college
What is media?
Media is a collective communication tool which includes publishing, broadcasting and the Internet through several mediums like radio, television, newspaper etc. Among all other duties the main duty of media is to create sense of awareness among general public regarding the democratic and social duties and responsibilities. Media is termed as the “fourth pillar” of democracy and it makes accountable the other three pillars of democracy i.e. “executive, legislature and judiciary”. It is expected that the information provided by media will be impartial and unbiased and media should transmit information to us rather than making personal views or opinions on that subject because media has utter prominence over the minds of public and public get easily influenced by the media streaming. But sometimes media misuses its power by making it a concoction of news, information and own opinions, which is often termed as media trial.
What does that trial mean?
According to Oxford English Dictionary, “trial” means, a formal examination of evidence by judge, typically before a jury, in order to decide guilt in a case of criminal or civil proceedings. This definition clearly reflect that media is not eligible enough to conduct a trial.
In this exponentially evolving competitive market, the media often misconstrues and misrepresents the original facts and engages in tabloid journalism to get high target rating point (TRP) and to grab the attention of the public. There are many incidences and high profile cases where media conducts a trial of an accused even before the verdict is passed by the court. Thus it infuriated the atmosphere around, which makes public reckless about their opinions and makes the accused look like guilty in public perception. This is the sole reason why Media trial is not accepted and appreciated in a democratic society.
The Delhi High Court in a suo motu case observed that in our slow judicial system of conducting trials, the accused many a time is subjected to media trial and there is no legal remedy to it. And in such case no one claims any relief to this by “injunction” or for “damages”. Here the Court has no other option to protect the aggrieved individual’s rights and reputation from except” by being more vigilant and pro-active. We know that “Right to fair trial” in a “criminal prosecution” is impliedly mentioned under the “right to life” guaranteed by Article 21 of the Constitution of India. It is proven that if the criminal proceedings are not just and fair, then judicial fairness cannot be achieved.
Fair trial involves independent judges, public hearing, the presumption of innocence, right to counsel and many other factors. The proceedings of a case are expected to be conducted by impartial, independent and competent Judges to ensure the fair trial. Public hearing is also included under the concept of fair trial.
Role of Media in Democratic Society
As per the Constitution of India “right to know” falls under fundamental principle. Although the freedom of press is not explicitly mentioned anywhere but the Supreme Court of India explained through cases that this “right to know” forms the base of the “freedom of the press”. The Supreme Court declared that the primary objective of the press is to provide all-inclusive and exhaustive information on all kinds of political, social, economic and cultural situations in the country. It also stated that the primary motive of media in a democracy will be promoting transparency.
Media and Freedom of Speech and Expression
As it is said earlier that freedom of media is not deliberately mentioned anywhere in the Part Ⅲ of the Indian Constitution which contains fundamental rights and freedoms. But it finds its root to Article 19 (1) (a) of the Constitution of India which validates “freedom of speech and expression”.
Why Is Freedom of Media/ Press Not Markedly Stated in the Indian Constitution?
To answer this question we have to go back to the earlier debates of the Constituent Assembly, where Dr. B. R. Ambedkar said that Press does not enjoy any special rights which are not devoted to individual citizens to handle and operate in their regular lives. The editor of a press or the manager just exercises the right of the expression, and this the main reason why freedom of press is not specially mentioned in the Constitution.
Freedom of media is not unconditional and absolute and like any other platform, free press is also restricted with the shackled of some limitations stated in Article 19 (2) of the Constitution and those “limits” flow from the “right to privacy”, “right to reputation”, the law of “contempt of court” etc. So, the press cannot use its “freedom of speech and expression” as an excuse to infringe anyone’s privacy and it has to be accountable to Court if it excoriates a person in a libelous manner. In the same way, the press should not indulge in “contempt of court” by taking up parallel trials when a trial is going on before a court of law. Media does not have a clear idea about the rules and regulations of citing evidence and does not know which evidences are enough to declare an accused as a convict.
There is a famous Latin maxim: Audi alteram partem, which means no side of a case will be unheard and both parties will be given a chance to defend themselves but while the media is just concerned about their prime time breaking news, an accused doesn’t get the chance to speak for himself usually and it hampers the principle of natural justice.
Starting from the age of “Bengal Gazette”, “Sambad Koumudi”, “Yugantar”, “Amritabajar Patrika” journalism merged as a noble profession where journalists used to work with braveness, integrity and impartially to serve the nation but in this current era of obtaining highest TRP, accused often goes through mental turmoil, his reputation gets shattered and the whole family suffers with him/her too. And thus the “media trial” has moved to “media verdict” which clearly indicates the misuse of freedom of speech.
An Analysis of The Effect of Media Trial on Some Prominent Cases and Developments In Recent Times
JESSICA LAL MURDER CASE
Facts of the case
On April 29, 1999; a model named Jessica Lal was murdered. On a Thursday night when Jessica Lal was working as a “bartender” at the “Tamarind Court” restaurant situated in Delhi was shot by a gun which resulted in her death. Her friend and an actor Shayan Munshi was also working with her. Manu Sharma, who is the son of Minister Venod Sharma, ordered a drink in that bar, to which Jessica Lal refused. After being offered of Rs. 1000 for a single drink, Jessica refused to serve again. After this, Manu Sharma took out his revolver fired at the ceiling and then at her. She was taken to the hospital immediately but died after some time due to excessive blood loss. Manu Sharma swiftly went out of the bar after shooting Jessica. Though many witnesses pointed Sharma as the culprit, Police could not arrest Manu Sharma immediately because he was hidden with the help of his friends and also destroyed the prime evidence i.e. revolver. But to the great shock, when the trial finally began in the month of August, 1999; the main witnesses Shayan Munshi became hostile. Afterwards other witnesses also turned indifferent to the case by the year 2000 and the trial court released Manu Sharma because the police could not recover the gun used in the act as the main event and the ballistic report was also not submitted.
Role of media
The media actively sincerely started to publish and broadcast the issue and also directly claimed that Manu Sharma’s father was influencing the police by misusing his power. The High Court of New Delhi in December, 2006, declared Sharma. In the meanwhile, it was revealed by a sting operation conducted by a newspaper “TEHELKA” that Venod Sharma bribed Shayan Munshi to keep them away from the case. The channels also inveigled the common public throughout the country to send texts and mails concerning their views about the trial and media started a parallel trial. Manu Sharma’s defense lawyer Ram Jethmalani argued in the Supreme Court that the media scorned and maligned his client “before and during the proceedings”.
The Court admitted that although the accused was getting influenced due to the remarks of “trial by media” regardless of the fact that the impact was not spreaded to a great extent. The Court also held that in this media is not affecting the accused as such but if this role of media is not regulated and restricted in a positive boundary then it may lead to a serious risk in future causing “contempt of court” where the media will not even set back from forging false evidences.
So the law and governance need to check that the “trial by media” does not act as a hindrance to fair investigation and does not infringe the right of defense of the accused.
NOIDA DOUBLE MURDER CASE
Facts of the case
This case is well known by another name i.e. Aarushi Talwar murder case where a fourteen-year-old girl Aarushi Talwar and a forty-five-year-old Hemraj Baanjade was murdered and the case is still unsolved. Aarushi was the only child of Dr. Rajesh Talwar and Dr. Nupur Talwar and Hemraj was their domestic worker who lived with them. On 16 May 2008, Aarushi’s parents found her body and the main accused of the event, servant Hemraj who was missing. But on the next day itself, Hemraj was found dead on the terrace. Failure to secure the crime scene brought heavy criticism to the police.
When Hemraj was found dead, the police accused Rajesh Talwar as the prime suspect because they thought that Rajesh has killed both of them after seeing them in a “compromising” position.
Afterwards the case was transferred to the CBI, which initially declared the parents innocent and suspected Krishna Thadarai, the compounder in Rajesh Talwar’s clinic, Rajkumar, the domestic help of Talwar’s friends based on the narcotest but they were also released due to scarcity of evidence. In 2009 again, the case was referred to a new CBI team but they proposed to close it due to the same reason.
Rajesh Talwar was contemplated as the sole suspect due to the circumstantial evidence and the CBI Court declared the parents guilty and they were sentenced to life imprisonment. In 2017, Allahabad High Court acquitted the Talwar couple giving them benefit of doubt. 
Role of media
Afterwards this, the print and electronic media started their outcry by encumbering all the newspapers and channels with the news of Aarushi Talwar’s murder. It was very unfortunate to see the insensitivity of media in reporting this case. The dramatizations in several channels objectified and defamed a dead minor girl and showed simulating objectionable scenes of Aarushi and Hemraj together and Rajesh coming with a golf club and hitting them. All such acts of media completely distraught the reputation of the dead girl, her parents and all those people whose names were mentioned in several shows.
Aggrieved and shocked to see the role played by media here, Dr. Surat Singh, an advocate, filed a PIL and the Supreme Court took this very seriously. The Court reprimanded both print and electronic media to be aware of the prejudicial steps they are taking because it was meddling with the “right to defence of the accused”.
The Supreme Court ordered restraint on "published material which may interfere with the investigation process in respect of all cases." 104 And this whole event was strongly lambasted by many as “trial by media”.
SUNANDA PUSHKAR DEATH CASE
Facts of the case
Sunanda Pushkar, the wife of renowned politician Shashi Tharoor, was found dead in a hotel at Delhi on January 17, 2014. After recovering the body, Delhi police informed Shashi Tharoor about the death. In the initial reports claimed that she committed suicide but later on it was found out that there were also injury marks on the body and ultimately the autopsy report depicted drugs were consumed in high quantity and it resulted into death. By October 2014, the medical team concluded that the death was due to poisoning. After receiving the final report the police filed an FIR for this murder case against an anonymous person on January, 2015.
Role of media
On the very same day of the death of Sunanda Pushkar, without any delay, the media reached the scene and started its trial and when the Delhi Police Commissioner refused to label Tharoor as the prime suspect, the media declared Shashi Tharoor as the murderer. Some of the media houses were using confidential medical reports and some forged statement made by any distant cousin of Pushkar claiming Tharoor was the murderer. Here the journalists were playing almost every part like that of an autopsy surgeon, cop, scientist, investigator, forensic expert to validate their stance.
In 2017, after suffering from such media trial, Shashi Tharoor filed a defamation suit in Delhi High Court against a well known media house. The Court held that the media houses and journalists are free to state facts and information related to the investigation, maintaining the balance between media trial and freedom of expression but cannot declare Shashi Tharoor to be the murderer.109 The Court also declared that after a criminal investigation starts, the media needs to be more cautious and sensitive and the “press” cannot declare anyone convict or insinuate anyone guilty or make any kind of unsubstantiated claims.
TARUN TEJPAL SEXUAL ASSAULT CASE
Facts of the case
In 2017, the chief editor of “Tehelka” Mr. Tarun Tejpal was accused of raping by a woman journalist who worked with Tejpal and accused him of sexually assaulting her in an elevator in a five-star hotel in Goa during conference named “Think Fest” which was organized by “Tehelka”. In June 2017, a trial court in Goa restricted the publication of the court proceedings and it held that the proceedings will take place in-camera.
Role of media
On 28 May 2018, a famous news channel broadcasted CCTV footage in prime time show, clearly depicting Tarun Tejpal and the complainant together. The channel did not comprehend for a sector that this kind of move can infringe the “rights of the accused” or the “privacy of the complainant”. It is one of the various evidences in the trial and to determine any party’s guilt or innocence from that tape was gross guesswork.
Supreme Court lawyer Rebecca Mammen responded that such intentional violation of some rights and duties by media can manipulate people’s mind negatively and she also stated that Section 327 (2) and (3) of The Code of Criminal Procedure commends to conduct Rape trials in camera. So it shall not be lawful for any person to print or publish any matter in relation to that matter, except with the previous permission of the court of public viewing of the footage.
After a lot of criticism, the media house deleted all the debates, discussions and other online videos from its website. Though all these actions of media made it almost impossible to run the trial smoothly and it caused havoc damage to the reputation the parties of the case held in society.
From all the cases discussed above, not only judicial approach is clear but it is also clear that media has huge power to influence the subconscious thinking and perception power of general public and it is clear from the following percentage statistics.
There are over 100,000 publications registered with the Registrar of Newspapers for India with a combined circulation of over 240 million copies in the whole country. And almost 87% of the population of India is connected through electronic media.
We are sure that journalism, as a whole, is not decaying and there are ample chances to direct it in the right way. In the recent past, some big frauds and criminal rackets came to notice due to the efforts of media only. But the media needs to keep in mind that the freedom it is enjoying, has to be utilized for greater public good rather than clouding their perception and thoughts with the target of snagging utmost attention on news items which may not be of public interest, only for the purpose of excelling in the competition to be on the top.
 Ayesha Khalid, Media as a Fourth Pillar of Democracy (2016), https://www.voj.news/media-as-a-fourth-pillar-of-democracy/.  R. K. Anand v. Delhi High Court, (2009) 8 SCC 106.  K. Anbazhagan v. Superintendent of Police, AIR 2004 SC 524.  In Re: Harijai Singh and Anr.; In Re: Vijay Kumar, (1996) 6 SCC 466.  B.R. Ambedkar, CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VII (1948), http://22.214.171.124/loksabha/writereaddata/cadebatefiles/C04111948.pdf.  J. Venkatesan, Supreme Court confirms life term to Manu Sharma (2010), The Hindu.  Ibid.  Sidhartha Vashisht v. State (NCT of Delhi), AIR 2010 SC 2352.  Aniruddha Ghosal & Kaunain Sheriff M., Aarushi Talwar murder case: Key evidences that caught attention (2018), The Indian Express.  Shoma Chaudhury, Aarushi Talwar murder case verdict is a chance for cops, courts and media to say: never again (2017), DailyO  Marco Margaritoff, Inside The Still-Unsolved Murder Of 13-Year-Old Aarushi Talwar (2019), https://allthatsinteresting.com/aarushi-talwar  Raj Sekhar, Sunanda Pushkar was murdered: Delhi Police (2015), The Times Of India.  Republic TV can report on Tharoor, can’t compel him to speak on Pushkar death: HC, (2017), The News Minute.  Manu Sebastian, Times Now’s Parallel Trial In Tejpal Case Blatantly Interfered With Justice (2018), The Wire.
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