Author: Elgiva Sarkar Student, Vellore Institute of Technology, Chennai
“An independent and free media is essential to ensure democracy.” – Warren Christopher
In all democratic countries, press freedom has long been a prized privilege, and the press is appropriately referred to as the Fourth Pillar of Democracy. Democratic nations deal with bureaucracy and lack of transparency, in such circumstances the media is considered a daily requirement because the day begins and finishes with the media, whether it is social media, print media, or electronic media.
What started with the Swedish parliament enacting legislation supporting press and information freedom in 1766[1] is today the fundamental human right of freedom of expression enshrined in Article 19 of the Universal Declaration of Human Rights[2]. Albeit the fact that the word “press” doesn’t find any mention, the Indian Constitution too guarantees “the right to freedom of speech and expression” under Article 19(1)(a)[3]. That being said, this right is subject to limitations under subclause (2), which states that this freedom can be limited for reasons of sovereignty and integrity, State security, cordial alliances with foreign entities, maintenance of peace and decency, retention of morality, in relation to contempt of court, vilification, or incitement to an offence[4]. The media plays a critical role in shaping societal opinion, and it has the power to influence people’s perspectives on diverse topics. The media has played a crucial role in pushing for the punishment of those who commit terrible crimes, in compliance with the law. The media, on the other hand, cannot be allowed to hijack the judiciary’s powers and veer from the objective of balanced reporting. The judiciary has been referred to as the dispenser of justice and the impetus for social reforms, while the media has been referred to as the handmaiden of justice and the watchdog of society. As a result, both are necessary for the advancement of civic society[5].
Press Freedom in India
India ranked 142 in the 2021 “World Press Freedom Index” released by Reporters Without Borders and has been classified as a “bad” country for the press[6].
Romesh Thappar vs The State of Madras[7] was one of the earliest cases of “Press Freedom” in independent India where the Supreme Court observed the fact that press freedom was a necessary component of the right to freedom of speech and expression, and also held that the Constitution has various metrics for acceptable constrictions on freedom of speech and expression, and it distinguishes serious and adversely affecting forms of public disorder. A greater level of threat to the state’s foundations may exclusively justify restrictions on freedom of speech and expression. This judgement instilled widespread faith of people in the judiciary’s high levels of integrity, by limiting the state’s ability to interfere with individual rights.
The Supreme Court ruled in the case of The Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal (CAB)[8] that the government does not have a monopoly on electronic media and that a citizen has the right under Article 19(1)(a)[9] to telecast and broadcast to the viewers or listeners via media any significant incident or event transpiring anywhere in the world. It also stated that the public, not the government, should have control of the broadcasting media. In the case of Bennett Coleman & Co. vs Union of India[10] the Supreme Court stated that a free press was to be seen as a necessary component of overall freedom of expression, additionally the court ultimately upheld the Newsprint Control Order 1962, which set the minimum number of pages in a newspaper, because it directly affected the right to freedom of speech and expression guaranteed under Article 19 (1) (a)[11] of the Indian Constitution.
The justices in the case of Indian express Newspapers (Bombay) Private Ltd. vs Union of India [12]stated that “press freedom lies at the centre of social and political discourse,” highlighting the importance of invalidating any statute or administrative action by the government that suppresses freedom of speech and expression. They also highlighted the duty of the press to reveal the government’s flaws and be critical of the government’s actions in order to serve public interest so as to enable a democratic audience to make informed decisions.
In the recent landmark case of Vinod Dua vs Union of India[13], the Supreme Court dismissed sedition and other charges filed by a BJP leader from Himachal Pradesh against journalist Vinod Dua for making expository comments about Prime Minister Narendra Modi and the central government, while invoking another landmark judgement of Kedar Nath Singh vs State of Bihar[14] under which every journalist is entitled to protection.
Of late the journalists have increasingly been accused of publishing pieces that are deleterious to the tranquillity of the society and have been charged with defamation and sedition.
Media Trail in India
The Indian media has morphed into Janta Adalats for decades now, and influenced many judicial decisions by conducting separate investigations which have many a times brought to light crucial facts of the case. Their influence has not always been unbiased and thus resulted in the public being prejudiced against the accused resulting in restriction of the rights of the accused.
K.M. Nanavati vs State of Maharashtra[15] was one of the first cases of media trial in India, which as a result of receiving tremendous media attention influenced the opinion of the jurors in favour of the accused by painting a glorious image of K.M. Nanavati as an honourable Naval officer who committed the act of murder to safeguard his wife’s honor. Over the years many such instances of media trials have come to the fore in India and in some cases even led to the amendment of laws.
In the case of Jessica Lal’s murder[16], media activism was vital. The bravery and courage shown by the media to expose the rich and powerful who misuse their powers and money to distort the facts of the case to get the accused acquitted. Community pressure and the media persuaded the justice system to reconsider the case and ensured that the accused in the case were punished for their crimes.
The famous Nirbhaya gangrape case[17] of 2012 is one such example of media trial which led to the amendment of the Juvenile Justice Act, and also led to the implementation of tougher anti-rape law- Criminal Law (Amendment) Act, 2013. The media’s attention to the case was critical in ensuring that the perpetrators of the heinous crime were brought to justice.
“The media’s the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses.” – Malcom X
Media trials have been in practice in India for decades, and influenced many decisions. The Press Council of India, in its 2010 edition of “Norms of Journalistic Conduct”[18] wrote that when a conflict arises between the right to a fair trial and freedom of speech, the right to a fair trial must always prevail since any compromise of a defendant’s right to a fair trial will cause significant injury and undermine the legal system.
In contemporary society, media interference in cases that are still pending is a common occurrence. Media trials have the potential to sabotage the administration of justice throughout the investigation, trial, and sentencing stages. There is a subtle but clearly defined border that should not be crossed in today’s age of click-bait journalism geared at pleasing viewers’ increasingly short attention spans[19]. Judges today are obligated in some way to make decisions based on the media’s criticism. As a result, in many cases, the media’s declaration of verdict becomes the final verdict in trial courts. In light of this, the factual narration is safe in and of itself, but when done with a preconceived notion of culpability in absence of any official indictment, is a clear case of media abuse[20].
In an emerging and developing democracy like India, the press has a unique role to play in the nation’s long-term planning. Notwithstanding, provisions must be designed to mitigate media trials from diminishing peoples’ civil rights, including a clearer description of the media’s rights and responsibilities, as well as the ability for courts to penalise those who flagrantly disrespect them.
[1] John M. Cunningham, A Brief History of Press Freedom, ENCYLOPEDIA BRITANNICA (Feb. 18,2022, 11:07 PM), https://www.britannica.com/story/250-years-of-press-freedom.
[2] JAMES, BARRY, PRESS FREEDOM: SAFETY OF JOURNALISTS AND IMPUNITY 4 (UNESCO 2007).
[3] India Const. art. 19, cl. 1(a).
[4] India Const. art. 19, cl. 2.
[5] Justice R.S. Chauhan, Trial by Media: An International Perspective, SCC Online (Feb. 19, 2022, 0:12 AM), https://www.scconline.com/blog/?p=235735.
[6] Reporters Without Borders, World Press Freedom Index – 2021, Reporters Without Borders (Feb. 20, 2022, 11:21 PM), https://rsf.org/en/ranking_table.
[7] Romesh Thappar vs The Sate of Madras, AIR 124 SCR 594.
[8] The Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal (CAB), AIR 1995 SCC (2) 161.
[9] Supra note 3.
[10] Bennett Coleman & Co. vs Union of India, AIR 1973 SC 106.
[11] Supra note 3.
[12] Indian Express Newspapers (Bombay) Private Ltd. vs Union of India, AIR 1985 SCR (2) 287.
[13] Vinod Dua vs Union of India, LL 2021 SC 266.
[14] Kedar Nath Singh vs State of Bihar, AIR 1962 Supp. (2) SCR 769.
[15] K.M. Nanavati vs State of Maharashtra, AIR 1962 SC 605.
[16] Siddharth Vashisht @ Manu Sharma vs State NCT of Delhi, AIR 2010 SCC 1.
[17] Mukesh & Anr. vs State For Nct of Delhi & Ors, AIR 2017 SCC 1
[18] Press Council of India, Norms of Journalistic Conduct, Edition 1, PCI. 7, 37 (2010), https://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf.
[19] Debmalya Banerjee, Aman Singh, India: Supreme Court Of India On Trial By Media, MONDAQ (Feb. 20, 2022, 10:36 AM), https://www.mondaq.com/india/trials-appeals-compensation/1006762/supreme-court-of-india-on-trial-by-media.
[20] Supra note 6.