Media Trials in India: A Critical Analysis

Profile of the Author: Sakshi Srivastav is a law student pursuing B.A.LL.B (Hons) from Rajiv Gandhi National University of Law, Punjab.

Introduction

In common parlance, media is referred to as the “fourth pillar” of democracy. Considering the role media plays in a democratic country, calling it so seems quite just. Its outreach in the public helps create a vigilant and informative society. Media acts as a watchdog over the Government, reporting all its actions to the public, the real sovereign.

However, with time, the cut-throat competition between media houses has changed the very paradigm of information dissemination. The emphasis these days is on selling sensational news, which might as well be modified to appear sensational, and not on true reportage. Media trials are one of the by-products of this paradigm shift.

Media Trials in India

Media Trials, a form of unethical journalism, take place when media takes certain cases into their own hands and starts giving verdicts on the accused’s liability, way before a Judicial court has given its decision. The Sushant Singh Suicide case is a recent case in point. While the case is still under investigation, media and through media, people, seem to have already concluded that the victim was murdered and his girlfriend was involved. Interestingly, a case, which is in the initial stages of inquiry, is being covered widely by several media houses; while real news that are concrete and undoubtedly more useful are being compromised at the former’s cost. Sheena Bora and Ayushi Talwar cases are some other prominent examples of unabashed media intervention in the judicial process.

A close examination reveals that most cases that are subjected to media trials either involve high profile personalities or are very heinous or unusual. Taking advantage of people’s interest in the cases of the aforementioned nature, media houses in a bid to gain high Television Rating Points (TRP), become the judge themselves. By doing so, they not only ignore their primary duty as the fourth estate of democracy but also tread upon an unfair and unethical track.

Why is it a bane?

Media trials are a bane to the democratic set up of our nation. Media, owing to its outreach, plays a significant part in moulding people’s opinions as it is a psychological phenomenon that we generally start believing what we are repeatedly told. Now, in this scenario when media starts delivering verdicts, declaring the accused to be convicts, then viewers or readers start believing the same, which in turn leads to prejudicial image shaming of the accused in the eyes of his friends, colleagues and the society per se. In the Indian Criminal Justice system, an accused is believed to be innocent until proven guilty. The impact of media trials is in strong contravention to this underlining principle of our justice system. Further, such public tarring of the image causes immense mental trauma to the accused and in some circumstances forces him to take extreme steps. The 2013 case of Khurshid Anwar Suicide can be considered here. In this case, rape allegations surfaced against Khurshid Anwar, a social activist. [1] The unabashed media trial that began thereafter forced him into committing suicide.

Secondly, the principle of “fair trial” is yet another underlining principle of our criminal justice system. Every person, be it the accused or the victim, has the fundamental right to a fair trial vested in him by way of various articles under part III of the Indian Constitution especially Article 20 [2] and Article 21 [3] read with 14 [4]. [5] This right is further safeguarded under Articles 129 [6] and 215 [7] of the Constitution. [8] As to what constitutes a fair trial, it was explained in the case of Zahira Habibullah Sheikh v. State of Gujarat [9], that it involves an impartial judge, a fair prosecutor, and a judicial atmosphere of calm. From what has been stated in this article so far, it is quite clear that media trials steal away the atmosphere of judicial calm, but in addition to it, they also subconsciously influence a judge’s mind. Recently, A.K Sikri, a former Supreme Court Judge, was quoted as saying that the practice of media and social media trials, tends to influence how a judge decides a case. [10] It is believed that such actions subconsciously affect the judges and prevent them from carrying out justice. Media trials are thus in serious contravention of fair trials.

Thirdly, as the cornerstone of democracy, it is the responsibility of media to bring out the truth. By running assumption based media trials with a materialistic bent of mind, media houses are not only not performing their primary functions but are also betraying the trust of the people by feeding them nonsense in the form of news.

The validity of Media Trials

While it is true that Article 19(1) (a) of the Indian Constitution [11] that guarantees the freedom to speech and expression also includes freedom of the press, there are reasonable restrictions imposed on every freedom. Free media must act responsibly or such restrictions may be applied. In the cases of media trials, the reasonable restriction of contempt of court, mentioned under Article 19(2) [12] comes handy.

Section 2(c) (ii) of the Contempt of Court Act, 1971 [13] enlists every publication that interferes with or tries to interfere with the due course of judicial proceedings as criminal contempt and therefore renders media trials that so diligently interfere with the administration of Justice to be contempt of court.

However, such contempt is only applicable to those publications that have been made after the criminal proceeding in a case has been initiated i.e. if charge sheet or challan is filed or summons or warrant have been issued by the Court. [14] Section 3(2) of the said Act [15] has provided immunity to all such publications that are made before criminal proceedings are initiated.

The way out

From the provisions of the Contempt of Courts Act, 1971, it is clear that any media trial prior to the initiation of criminal proceedings is not contempt and thus there is no provision to control them. But is it fair? No, it is not. If we take the on-going media trial of Sushant Singh Suicide case into consideration, then the matter is under pre-trial investigation and proceeding has not started yet. But from what we know, the reputation of the parties involved has been already marred due to the prejudicial reporting of media.

To overcome this limitation in the Act, the Law Commission of India in it 200th report, which is in relation to media trials, has made a recommendation to amend the Contempt of Courts act by making way for a law that would prevent media from reporting what is prejudicial to the rights of the accused in criminal cases, from the very moment the investigation begins. [16]

Further, in 2017, the former Chief Justice of India, J S Khehar, while expressing his dejection at media trials, indicated that to prevent reportage that undermines free and fair trials, the Supreme Court may make rules to limit the extent of information that Police will provide to media while a case is under pre-trial investigation. [17]

If the aforesaid is met with, then India will be well equipped to make way for a completely free and fair system of trial by ending the unethical practice of media trial.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

FAQs

Q. Cite an early example for the use of media trial.

Ans. Its first inception was the phrase Trial by Television which found light in the response to the 3 February 1967 television broadcast of The Frost Programme, host David Frost.

References

[1] Campaign to seek ‘Justice for Khurshid Anwar’, THE HINDU (May 12th, 2016), https://www.thehindu.com/news/cities/Delhi/campaign-to-seek-justice-for-khurshid-anwar/article5507488.ece.

[2] INDIA CONST. art. 20.

[3] Id. art.21.

[4] Id. art. 14.

[5] Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, LAWOCTOPUS ( Nov. 13th, 2015), https://www.lawctopus.com/academike/media-trials-india/.

[6] INDIA CONST. art. 129.

[7] Id. art. 215.

[8] Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, LAWOCTOPUS ( Nov. 13th, 2015), https://www.lawctopus.com/academike/media-trials-india/.

[9] Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 S.C.C. 158.

[10] Contemporary media trials on social media has an influence how a judge decides a case: Justice Sikri, DNA (Feb. 10th, 2019), https://www.dnaindia.com/india/photo-gallery-contemporary-media-trials-on-social-media-has-an-influence-how-a-judge-decides-a-case-justice-sikri-2718374.

[11] INDIA CONST. art. 19, cl. 1.

[12] INDIA CONST. art. 19, cl. 2.

[13] The Contempt of Courts Act, 1972, No. 70, Acts of Parliament, 1971 (India).

[14] Law Commission Report, Trial by Media: Free Speech versus Fair Trial Under Criminal, LAW COMMISSION OF INDIA (Aug. 31st, 2006), http://lawcommissionofindia.nic.in/reports/rep200.pdf.

[15] The Contempt of Courts Act, 1972, No. 70, Acts of Parliament, 1971 (India).

[16] Sudhanshu Ranjan, Media on Trial, THE TIMES OF INDIA (Jan. 26th, 2007), https://timesofindia.indiatimes.com/edit-page/Media-on-trial/articleshow/1460248.cms#:~:text=The%20Law%20Commission%20in%20its,the%20time%20of%20arrest%20to.

[17] Samanwaya Rautray, Supreme Court hints at end to ‘media trial’, THE ECONOMIC TIMES ( Feb. 8th, 2017),https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-hints-at-end-to-media-trial/articleshow/57028827.cms.