Inquisition By The Media: The Newsroom Is Not A Court Room

• Soli J. Sorabjee

India, like many other common law jurisdictions, has adopted an adversarial system that governs criminal procedure. The duty to prosecute vests with the State whilst the accused has got the right to defend himself against all the charges that have been levelled against him. There is always a presumption of innocence on the accused, until such an accused is proven guilty beyond reasonable doubt, the burden of which lies heavily on the prosecution. Furthermore, it is a well-settled position that the right to a fair trial comes under the umbrella of fundamental rights that are guaranteed by the Constitution.

Evolution of Media: The Advent of the Information Age

The freedom of press is of paramount importance and is a fundamental right under the ambit of freedom of speech and expression that is enshrined in Article 19 (1) (a) of our Constitution. In any functional democracy, the media described as the fourth pillar of Democracy is often perceived to be a watchdog that keeps an eye on the traditional organs of the State and its duty is to keep the citizens aware and informed of local and global developments. The past few decades has seen an evolution in the dissemination of information – from news being traditionally obtained through print or radio to the broadcast of news channels that emerged with the advent of electronic media through the introduction of television and satellite networks. Moreover, the internet has played a revolutionizing role, with the invention of social media by which billions across the world voice their thoughts and opinions through various social networking and streaming platforms that thrive on the internet.

Inquisitions by Newsrooms

The past bears witness to several incidents that have been potentially subject to a phenomenon that is commonly referred to as a Media Trial. The unnatural death of a citizen in the most gruesome or unexplained circumstances or even alleged scams that were suspected to have enjoyed political patronage in regimes across the world have often come under intense media gaze and scrutiny. The famous case of K.M. Nanavati, which is over half a century old but yet continues to be a favourite amongst aspiring law students was a classic example of a media trial. Russi Karanjia, the editor of Blitz, a Bombay-based tabloid (as it was then), had vociferously developed positive public opinion in favour of the accused and in fact, portrayed the victim to be the actual villain in this episode of murder, so much so that it actually influenced the jury members in the trial to find the accused not guilty! However, this verdict was eventually rejected and the Bombay High Court subsequently found the accused guilty and convicted him, which conviction was upheld by the Supreme Court.

Today, we watch news channels on prime time television establish panel debates that witnesses participation from eminent lawyers, activists, politicians, film stars, to even a serving Director-General of Police, each competing to express their views and offer their opinion on the matter. The anchor who moderates these panel debates begins to play the role of an inquisitorial judge, by directly cross-examining the participants in his discussion, whilst his team undertakes to unearth 'material evidence' that is critical to the investigation, which is eventually brought on live television.

More often than not, enough aspersions have already been cast on certain characters related to such incidents that are subject of these panel discussions, so as to label them as an accused even before the agencies have formally completed the investigation process from all angles. The tone and tenor of these debates manage to attract enough public attention and often become the focal point of discussion in society, developing pre-conceived notions against certain individuals, due to the heavy influence on public opinion.

Two Hundredth Report of the Law Commission

The Law Commission, under the Chairmanship of Justice M. Jagganadha Rao in its Two Hundredth Report titled 'Trial by Media: Free Speech v. Free Trial under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971)'[ii] ("Report") which came out in August 2006 examined several issues concerning the prejudiced coverage of criminal matters against a suspect and an accused, even in the pre-trial stage. It was pointed out in the Report that though the freedom of speech and expression is a fundamental right, the same is not absolute and is subject to certain reasonable restrictions under Article 19 (2) of the Constitution. The Report inter alia examined provisions under contempt law in India which typically grant immunity for publications that have taken place before the commencement of proceedings, although such publications could affect the rights of the accused to have a fair trial and could interfere in the administration of justice. The Report further discussed a number of precedents rendered by Indian courts and courts in other jurisdictions on the possibility of a Judge being subconsciously affected by publications issued by media houses. The Report inter alia further highlighted certain categories of media publications that would be recognized as prejudicial to a suspect or an accused, such as the publications concerning the character of the accused, publication of confessions, publications that comment or reflect upon the merits of the case, et al. It was recommended by the Law Commission to suitably amend the Contempt of Courts Act, 1971 and even a draft Bill was incorporated in the Report to amend the legislation. However, the said draft Bill has still not enjoyed sanction of Parliament.

Observations of the Supreme Court

The Supreme Court of India has constantly emphasized on the role of media in a democracy and the importance to uphold the freedom of speech and expression and the freedom of press. However, the Supreme Court has also highlighted the need for journalists to undertake responsible coverage in exercise of its fundamental rights.

In Santosh Kumar Shashibhushan Bariyar v. State of Maharashtra[iii], the Supreme Court opined that public opinion may run counter to the rule of law and constitutionalism, taking into account the dangers of capital sentencing becoming a spectacle before the media and that if a media trial was possible, then sentencing by the media could not be ruled out.

The Supreme Court in R.K. Anand v. Delhi High Court[iv] considered that commercial considerations of a media house may assume greater significance over higher standards of professionalism. However, it was made explicitly clear by the Supreme Court that any attempt to control the media from outside would likely cause more harm than good and that the norms to regulate the media and to raise professional standards should come from within itself.

A Three-Judges Bench of the Supreme Court in S.Kushboo v. Kanniammal & Anr.[v] observed[MP1] that it was imperative that the electronic and news media should play a positive role in presenting to the public what actually transpired during the course of a hearing, which should not be publicized in a manner so as to garner publicity for its own paper or news channel.

In Siddhartha Vashisht v. State (NCT of Delhi)[vi], the Supreme Court inter alia observed that there was a danger of a serious risk of prejudice if the media published statements which would outrightly hold the suspect or accused guilty even before such an order had been passed by a court. Furthermore, the Supreme Court also stated that it was expected from persons at the helm of affairs to ensure that a trial by media would not hamper fair investigations by the investigating agency and would not prejudice the right of defence of an accused in any manner whatsoever. The Bench, whilst upholding the conviction in this case, also held that although the trial by media had to a limited extent affected the rights of the accused, it did not tantamount to a prejudice permitting the court to take a different view.

It is indeed extremely relevant to note the dissent of Chandrachud, J in Romila Thapar v. Union of India[vii] which held that the use of the electronic media by the executive would not only subvert a fair investigation but would also influence and manipulate public opinion, which would soon be followed by a trial by media. This dissent strongly resonates with a quote by John Grisham:

"Why bother with a Trial? If the cops can't convict with evidence, they use the media to convict with suspicion."

Conclusion

The media has always been in the forefront and has played a pivotal role in keeping the citizen informed. Moreover, investigative journalism throughout the years has brought into the limelight several instances of irregularities and wrongdoings which has set the criminal justice mechanism into motion. At the same time one must never forget how the media was instrumental in highlighting gross injustice that had been meted out by the trial courts in cases such as Priyadarshani Matoo and Jessica Lal, wherein acquittals were accorded despite overwhelming evidence against the accused, which were subsequently reversed by the High Court and upheld by the Supreme Court. However, despite the hype and sensationalism adopted by the media, due care must be taken so as to ensure responsible reportage. There is a very thin line that exists between the freedom of speech and expression that is exercised by the media and the right to life of an individual who comes under intense public scrutiny. The media must ensure that whilst it works to keep the people informed, it should not transgress the boundaries so as to influence an investigation and interfere with the administration of justice.