While freedom of expression remains an important facilitator for widespread engagement within a democratic society, it must be balanced against the right to a fair trial and the right to privacy. Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent the encroachment of civil rights. 

Article 19(1) (a) of the Constitution of India guarantees the fundamental right to freedom of speech and expression. In accordance with Article 19(2), this right can be restricted by law only in the “interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” 

The Indian Supreme Court has concluded that the fundamental rights to privacy and a fair trial flow out of the broader right to life contained in Article 21 of the Constitution. In Kharak Singh v. State of Uttar Pradesh, the Supreme Court held that the right to privacy was an “essential ingredient of personal liberty” which is “a right to be free from restrictions or encroachments”. 

The right to a fair trial is at the heart of the Indian criminal justice system. It encompasses several other rights including the right to be presumed innocent until proven guilty, the right not to be compelled to be a witness against oneself, the right to a public trial, the right to legal representation, the right to speedy trial, the right to be present during trial and examine witnesses, etc. In Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court explained that a “[f]air trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.” 

However, sensationalised news stories circulated by the media have steadily gnawed at the guarantees of a right to a fair trial and posed a grave threat to the presumption of innocence. What is more, the pervasive influence of the press is increasingly proving to be detrimental to the impartial decision-making process of the judiciary. Such news stories cannot easily be defended under the auspices of freedom of expression. 

Impact of pre-trial publicity

Sensationalised journalism has also had an impact on the judiciary. For example, in upholding the imposition of the death penalty on Mohammed Afzal for the December 2001 attack on the Indian Parliament, Justice P. Venkatarama Reddi stated, “(t)he incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender.” 

A ‘media trial’ began almost immediately after Afzal’s arrest. Only one week after the attack, on 20 December 2001, the police called a press conference during the course of which Afzal ‘incriminated himself’ in front of the national media. The media played an excessive and negative role in shaping the public conscience before Afzal was even tried. 

Similarly, S.A.R. Geelani, one of Afzal’s co-defendants in the Parliament attack case, was initially sentenced to death for his alleged involvement despite an overwhelming lack of evidence. Large sections of the Indian media portrayed him as a dangerous and trained terrorist. On appeal, the Delhi High Court overturned Geelani’s conviction and described the prosecution’s case as “at best, absurd and tragic”.

Jayendra Saraswati, head abbott of Kanchi Kamakoti, was accused of killing two mill-workers as sacrifice, based solely on newspaper reports. The Andhra Pradesh High Court in Labour Liberation Front v. State of Andhra Pradesh held that the writ petition filed to force the authorities to investigate relied upon incorrect facts that should have been verified. The court observed that “(o)nce an incident involving prominent person or institution takes place, the media is swinging into action and virtually leaving very little for the prosecution or the Courts…”

 Impact on the right to legal representation

There has been extensive media coverage of police investigations of ‘serial-killings’ in Noida in the outskirts of New Delhi. The owner of the house where the corpses were found, Mohinder Singh Pandher, and his domestic help Surendra Kohli, are suspected of having committed these crimes. Influenced by media coverage, much of it proclaiming that the two men had already confessed to the killings, the local Bar Association announced that it had decided that no advocate from Noida would defend Pandher and Kohli in court. 

Likewise, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused in a murder case, he was subject to public derision. A senior editor of the television news channel CNN-IBN called the decision to represent Sharma an attempt to “defend the indefensible”. This was only one example of the media-instigated campaign against the accused.  

The media assumption of guilt clearly encroaches upon the right to legal representation — a critical component of the right to fair trial — and may also intimidate lawyers into refusing to represent accused persons.

Regulatory measures

The Press Council of India (PCI) was established to preserve the freedom of the press and to improve the standards of news reporting in India. Under the Press Council Act 1978, if someone believes that a news agency has committed any professional misconduct, the PCI can, if they agree with the complainant, “warn, admonish or censure the newspaper”, or direct the newspaper to, “publish the contradiction of the complainant in its forthcoming issue.” Given that these measures can only be enforced after the publication of news materials, and do not involve particularly harsh punishments, their effectiveness in preventing the publication of prejudicial reports appears to be limited. 

Along with these powers, the PCI has established a set of suggested norms for journalistic conduct. These norms emphasise the importance of accuracy and fairness and encourages the press to “eschew publication of inaccurate, baseless, graceless, misleading or distorted material.” The norms urge that any criticism of the judiciary should be published with great caution. These norms further recommend that reporters should avoid one-sided inferences, and attempt to maintain an impartial and sober tone at all times. But significantly, these norms cannot be legally enforced, and are largely observed in breach. 

Lastly, the PCI also has criminal contempt powers to restrict the publication of prejudicial media reports. However, the PCI can only exercise its contempt powers with respect to pending civil or criminal cases. This limitation overlooks the extent to which pre-trial reporting can impact the administration of justice. 

Conclusion  

Heinous crimes must be condemned and the media would be justified in calling for the perpetrators to be punished in accordance with the law. However, the media cannot usurp the function of the judiciary and deviate from objective and unbiased reporting. 

While a media shackled by government regulation is unhealthy for democracy, the implications of continued unaccountability are even more damaging. Steps need to be taken in order to prevent media trials from eroding the civil rights of citizens, whereby the media have a clearer definition of their rights and duties, and the courts are given the power to punish those who flagrantly disregard them. 

The judiciary has been critical of the overactive and prejudicial reporting by the media. In the Labour Liberation Front case, Justice L. Narasimha Reddy lamented the “abysmal levels to which the norms of journalism have drifted.” In M.P. Lohia v. State of West Bengal, the Supreme Court cautioned the publisher, editor and journalist of a magazine that had reported the facts of a case that was sub-judice, thus “interfering with the administration of justice.” 

The Indian Law Commission’s recent report entitled Trial by Media: Free Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) has made recommendations to address the damaging effect of sensationalised news reports on the administration of justice. While the report has yet to be made public, news reports indicate that the Commission has recommended prohibiting publication of anything that is prejudicial towards the accused — a restriction that shall operate from the time of arrest. It also reportedly recommends that the High Court be empowered to direct postponement of publication or telecast in criminal cases. 

The credibility of news media rests on unbiased, objective reporting. It is in the media’s interest to ensure that the administration of justice is not undermined.

 Human Rights Features