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Free Trial v/s Freedom Of Speech

Recently Supreme Court sought responses from the Centre, Press Council of India and News Broadcasters Association on a Public Interest Litigation seeking for the setting of the Media Tribunal on complaints against media, channels, and networks and also plea stated that the electronic media particularly has become like an unruly horse which needs to be tamed.

It sought the framing of the guidelines on the power of media which is to be exercised within the ambit of Article 19(1)(a) of the Constitution of India. The self regulatory mechanism that the media has exercising make them a judge in their own case so the same must be regulated by the constitutional norms and principles and also the PIL stated that:

“The establishment of an independent, regulatory tribunal or judicial-body, known can hear and expeditiously adjudicate upon complaint petitions against the media-businesses filed by the viewers/ citizens. The tribunal can bring about consequences for acting in a fashion that is contrary to constitutional goals and morality”

In India, Media is regarded as the fourth pillar of Indian Democracy and enjoys rights mentioned in Part III of the Constitution of India as Freedom of Press recognized under Article 19(1)(a) that freedom of speech and expression also includes Freedom of Press which is also stated by Hon’ble Supreme Court in various cases.

As a matter of right enshrined in Article 21, a suspect or an accused is entitled to a free and fair trial and is presumed to be innocent until proven guilty by the court and no one can be allowed to prejudice his case till the completion of the trail. In India, as of now media creates excessive coverage while the matter in Court of law and made media trail before the judgment of the court and even before the investigation is completed in some cases, for which they publish and covers interviews beyond their domain and starts their own trail which may have the potential to prejudice the mind of the Court and Society.

In the unnatural death of Sushant Singh Rajput television media seems to be the judge and started their media trail by way of taking interviews from the relatives, close friends, workers and other people who may have related to the case. Public Interest Litigation is also filed in relation to this case and a judgment is pronounced namely Nilesh Navalakha and others v.Union of India[1], in which the Bombay High Court directed print and electronic media to refrain from a publishing news item, discussion in a panel, articles and interviews in relation to certain cases especially during a pre-trail stage.

Investigative Journalism also sought to spread messages for the probable cause of death and alleged that Mumbai Police considers homicidal death as suicidal death. Some channels also show the close relation of Sushant Singh Rajput with an actress against whom his father reports a First Information Report at Patna naming the actress accused of an offense.

After the passing of the order by the Supreme Court for investigation of the case by the Central Bureau of Investigation, after order being passed the channels who claimed that Police attempts to declare death as suicidal death which was homicidal death according to the media which is validated by the order of the Supreme Court.

Many news channels asked several questions from the police about their investigation, some channels collect evidences through investigative journalism for the arrest of the actress and one of them goes to the extent to obtain an opinion from the viewers on whether the actress should be arrested. Central Bureau of Investigation does not find any evidence by which she came to be arrested and she was arrested by NCB and after sometime the actress granted bail after recording a finding that material collected by NCB does not disclose that she has committed an offense.

Also, in this case, various PIL have been filled which raise a common question about the role of media in media trail and The Petitioners urges that media publish and telecast this news in derogation of their legitimate rights are broadcasting this as irresponsible new program which amounts to interference in the course of an investigation and makes the process conducted for prosecution prejudice.

Constitution of India enshrines the right under Article 19(1)(a) with respect to reasonable restriction and it does not refer to the administration of justice but someone who creates interference with the interference with justice then it will refer to criminal contempt under the Contempt of Courts Act 1971 and Section 3 of this act thereof as contempt. Hence from this, we can say that the publication, coverage, articles and debates which interfere or tend to interfere with the administration of justice amount to criminal contempt and this act also provide with a reasonable restriction on freedom of speech and these restrictions are regarded as valid.

On the task of presumption of innocence, the Supreme Court in the matter of Anukul Chandra Pradhan V. Union of India[2] 1996 6 SCC 354 stated that innocence should not be destroyed especially due to media trial especially during the course of an investigation and such process of interference would in derogation with the rule of law and such process should be in check and balance within the administration of justice.

Law Commission of India in his 200th report dated August 2006[3] expressed concern about rights related to freedom of speech, freedom of press and freedom of free trial. Media involved in investigation and law commission deferred media from reporting anything prejudicial to the rights of the accused in a criminal case and to be a judge in their case from the time from arrest to investigation.

Law Commission also concern about infringement of the right to press by following the self regulatory code which is made by them and no right can overcome the right to free and fair administration of justice and media has only the right to show the content in the appropriate manner and right to press can run concurrently with right of free and fair administration of justice but cannot suppress the right of free and fair administration of justice.

Freedom of press v. Free Trail

It is well expressed in the judgment of the Supreme Court in matters of R.K. Anand v. Delhi High Court [4]2009 8 SCC 106 and also in M.P. Lohia v. State of West Bengal 2005 2 SCC 686 that the media and court are separate in their function and their function will not overlap and should not provide any interference with the administration of justice. Also, media stated to stick to the act of journalism and not being the special agency which administers justice and function of both cannot be interchangeable so one cannot use another for the discharge of other function.

The judgment of Sahara India Real Estate Corporation ltd. v. SEBI[5] 2012 10 SCC 603 is very significant as in this the Supreme Court discussed about postponement orders which refers to the judicial orders restraining media on reporting over a particular case and this done with a motive to provide with better administration of justice which enshrined in Article 21 of Constitution of India.

Also in OJ Simpson case of US attracted a lot of pre media trail which gained a lot of publicity as he was a famous personality since from the time of college and he is also a famous football who was charged with a criminal trial for the murder of his ex-wife and her friend and this trail was very famous and notorious at that time and media tries to downgrade his reputation which he owned by his hard work and dedication in his lifetime and media just defamed him within some minutes and deplete his right of free and fair administration of justice and at last he was acquitted by the US Supreme Court in the criminal trial.

IN case of Best Bakery Case also known as Tulsi Bakery Case involving the burning of Best Bakery outlet in Vadodra in Gujarat in which National Human Rights Commission approached the Supreme Court of India on 31 July 2003 under Article 136 of Constitution of India against the order of Vadodra Fast Track Court in which 21 people accused of killing 14 people in best bakery massacre and they were later acquitted and for a fair trial of the case which is constitutional imperative and is highly recognized under Article 14, 19, 21, 22 and 39 A of Constitution of India as well as various provisions of Crpc.

The Supreme Court also felt displeasure in acquittal of the accused. Majority of Indian media expressing anger against the wrong period of acquittal and play a key role in creating sympathy against those who has given false evidence in the court of law and also there are many questions unanswered which to be answered like the role of media in judging a case and do they have right to judge a person without the knowledge of the law.

Self Regulation by Media

Media is regarded as a very very important part for Indian Democracy as it suppresses the various major scandals which occurs and which is shown by a sting operation by a news organization called Cobrapost which stated that media showed biasness towards the ruling party and cost of a journalist taking money in return for pushing a political agenda. This organization is known for stings and also reference in taken of India ranking in 2017 World Press Freedom Index and also put some serious allegation on the media organizations.

Kovind, not Covid, did it's article published by the author which has nothing to do with coronavirus but has to mock that with the pandemic situation and the thing that he insulted a national leader who is President of India and a respected leader coming from a Dalit background and has many followers on the social media sites and someone tries to downgrade reputation with the article.

Some things which not Telecast by media platform:

  1. News channels who interview the witness concerning a particular case and sometimes even cross-examine the same and at this time they function as an adjudicator, prosecutor and the court and sometimes even before the investigation is completed, these should be prohibited when we concerning about proper administration of justice.
  2. Media also frequently came in way of investigative agencies and results in the prohibition of their work and they are keen that they got some news from that officer that results in misscarge of justice.
  3. Past some time media shows the dead body of Sushant Singh Rajput which is insensitive in nature
  4. Media trail which results in investigative nature which was done before taking the evidence by the authority result in the mass violation of rights and which impairs the rights of free and fair adjudication and right to freedom of press is valid upto the mark upto which it does not impair with the right to fair and free adjudicatory process.

Cable Television Networks (Regulations) Act 1995 also stated several restrictions and has to abide by the rules under this act as:

  1. Against decency
  2. Against obscene, defamatory, false and half truth which may also result in contempt of court
  3. Against critique against someone and against certain groups
  4. Depiction of Women in manner of decency or indecency as defined in Indecent Representation of Women Act 1986
  5. Against provisions of the Cinematograph Act, 1952

How it is affecting the administration of the trail

  1. While considering the accused side, the media guarded them and prevent the investigative agency from collecting the evidence for the prosecution and by preventing them they start their own investigation and collect evidence without regarding the authenticity of the evidence and show them like it being certified.
  2. While g innocent person side, media after getting information of accusation against an innocent person they start their trail by themselves without an investigation being completed and they show their evidence collected by them and try to prove them guilty without the interference from the court which results in the risk of reputation which is made after several years of efforts and they destroys it within a day.
  3. While considering the witness side, the investigative agencies try to prevent the disclosure of identity and media by way of their network try to disclose their identity which might result in the risk of the life of witness and if the witness is vital for the proper prosecution of the same then the trail may be affected and by this right of free and fair administration of trail is also affected.
  4. While considering the investigator side, media follows the track as followed by investigating officer and tries to prevent their way in the course of examination and also creates unnecessary pressure during the course of the investigation which is considered to be crucial and also sometimes media takes interviews of them tried to accept them with loopholes which is made during the investigation which are undesirable and results in an improper investigation.

As we all know that media is called the fouth pillar of democracy and plays a vital role;e in democracy by raising important issues among government and draws national attention. Article 19 of the Constitution of India grants right to freedom of expression to all citizen which also include freedom of the press as a fundamental right and does not give right in interference of administration of justice which has been faced by the accused in recent times.

The Supreme Court has taken the matter very serious in the case of Rajendra Sain that for rule of law and orderly society, freedom of the press and an independent judiciary are both indispensables.

Written By:
  1. Prijwal Kumar
  2. Amartya Raj


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