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Media Trial: The Time to Regulate the 4th Pillar

The clean chit by Narcotics Bureau to Aaryan Khan , son of famous Bollywood star Shahrukh Khan, once again invites the attention of public in general and criminal justice system in particular towards the encroachment of media in decency to administration of justice. This case was tried by media even before investigation was started.

Aryan Khan was arrested on October 3, 2021 and was in custody for over three weeks for having possession and using the narcotic drugs. But the subsequently constituted SIT didn't find sufficient evidences against him and didn't name him in chargesheet.

The NCB chief SN Pradhan also admitted that there were "irregularities" in the initial investigation and Action will be taken against those responsible for the lapses. But till the time, Aryan Khan got clean chit from investigating agency, a lot of water had flown and he suffered an irreparable and irreversible injury to mind and reputation.

Not only the case of Aryan Khan but recently many other cases had to pass through this rough trial in TV news studio. There is a long list of such cases which faced media trial, a few of them includes Sanjay Dutt case under TADA, Sheena Bora , Jessica Lal, Aarushi Talwar & Sunanda Pushkar murder case, Nithari Kand and Ayodhya dispute among others. Through this article, it is attempted to understand the media trial, its adverse effects and need of its regulation.

What is Media Trial & how it affects administration of justice:

The "trial by media" is a phrase which got popularity in late 20th century. In media trial a wide spread perception is created by television and newspapers about the innocence or guilt of a person or accused. It cannot be denied that it effects the mind of those concerned with investigation and adjudication. It is specially more prominent when person involved is of high profile and stature.

The cumulative perception created by media by supplying extraneous information is sufficient to alter the impartiality of jury or judge. It eventually disturbs the due process and leads to unfair investigation and trial. In high profile and dramatic cases, the media often provoke an atmosphere of public hysteria akin to a lynch mob which not only makes the fair trial an impossibility but also forces the accused to live his rest of life under public scrutiny. Sometime, it also emerges in new format where the state-controlled media demonises political opponent. Both the formats are against the idea of justice.

No doubt, media is mighty and named as fourth pillar of democracy. The rapidly changing socio-economic scenario of India has given prominence to media and now it has acquired so much of strength that it is capable to alter the public sentiment and opinion.

Influence of media trial on accused:

  • The prejudice reporting of media based on popular perception about any suspect or accused is against the well settled doctrine of Indian jurisprudence that a person is innocent unless proved guilty. If such person is projected by the media as guilty even before the trial in the Court, then there are possibilities of serious prejudice to the accused at all levels including investigation and adjudication.
  • As mentioned above, if any accused is acquitted by court of law after due procedure, then also he or she shall remain under intense public scrutiny. In era of internet technology, the past events of his life would be easily available on single click. Therefore, even the acquittal may not prove to be helpful for the accused to rebuild his image in the society.
  • Exaggerated and unreasonable publicity in the media, labelling the suspect as guilty tantamount to undue influence in fair proceedings, as the investigators and judges are also human being and subject to influence by mass perception.

Influence of media on witnesses:

  • Due to the continuous reporting and live coverage by media, the identity of witness is revealed and because of this, the witnesses come under pressure from the police as well as the accused or his associates. Some time, this pressure on witness leads to turning him hostile.
  • The witness at an earliest possible opportunity wants to withdraw and get out of this chaos which ultimately affects the fair trial of case.
  • One of the major issues is protection of witness. When the witness protection laws are already weak, the medial trial makes the witness more susceptible to danger.

Influence of Media Trial on Judges:

  • The judges are human beings and may be influenced unconsciously by public perception created by media trial. As rightly said by Supreme court in the case of State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997, that trial by electronic media, press or by way of public agitation is anti-thesis to the rule of law and can lead to a miscarriage of justice.
  • The judges are not immune to public perception and social norms. The trend in society greatly affects the conduct of a judge because after all judges are also inseparable part of same society.

Judicial Opinions on Media Trial:

It is true that freedom of speech and expression is most important aspect of Indian constitution and this freedom of speech includes the freedom of Press. The apex court at different occasions has come forward to protect this freedom of speech enjoyed by media. But it is equally true that the same apex court has cautioned and rebuked the media when it tried to encroach the space meant for administrator of justice.

In the case of People Union of Civil Liberties (PUCL) vs UOI, a three-judge bench led by Chief Justice of India R M Lodha observed that:
"In the wake of growing instances of media trials, there is a need that the Supreme Court should delve into the issue as it leads to public condemnation of the accused on the basis of information provided by prosecutors and police, though the trial before the court of law has still not been initiated. The Courts have taken a serious note on the reports of a media briefing by the police and other investigating agencies. Nothing should be done in order to hamper the investigation process and secrecy of the inquiry. All of these need certain checks as they all fall within the purview of Article 21 of the Constitution."

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr., 1961, the Supreme Court held, there's no doubt that it would be mischievous for a newspaper to intrude into a crime and execute an independent investigation for which the accused or suspect has been arrested and then to publish the outcomes of that investigation.

This is mischievous because when there is an ongoing trial by one of the regular tribunals of the country then trial by newspapers must be prohibited. This is based upon the view that such action by the newspaper of doing an investigation tends to interfere with the course of justice, whether the investigation tends to prejudice the accused or the prosecution.

In Sushil Sharma v. The State (Delhi Administration) and Ors, 1996, the Delhi High Court held that no conviction will be based upon the media report but upon the facts that have been placed on record. It is supposed that the Judge dealing with the case should be neutral. If the decision is based upon the accepted news items, the petitioner will insist upon denial of a fair trial because it would cause aspiration on the Judge of being not neutral. Even if there is less report or no report available, the charge should be framed on the basis of material available on record.

Regulation of Media Trial:

Media trial is not protected under article 19(1)(a) of constitution as it is excessive usage of freedom provided under this article. Even, the freedom of speech and expression is not absolute and unqualified. Media has no authority to assassinate the character of any accused unless proved guilty by court of law. In worst form of media trial, the anchors in studio have assumed the role of police and judge. This causes more harm than good to society and individual. The time therefore, has ripen to regulate the media trial for larger benefit to society and criminal justice system.

Some vague laws are present in India to regulate the excesses of media when it tries to infringe the dignity of courts. Article 129 and 215 of constitution empowers the supreme court and high courts respectively under purview of contempt of courts against any sort of encroachment to their dignity. The contempt of Court Act can also be used against the unscrupulous news channels or other media houses.

Presently, as far as regulation of media is concerned, it is governed by self-regulatory bodies such as News Broadcast Federation in which the officer bearers are mostly selected from within the media houses. The self-regulatory bodies are supposed to make some guiding principles to ensure the fair and fact-based proper reporting. Besides this, the Cable Television Networks (regulation) Act 1955 provides that any programme that offends against the decency or contains an attack on religion or provides any obscene, defamatory or deliberately false information should be prohibited broadcasting.

But due to the fierce and sheer competition in media industry for TRPs (Television rating Points) these self-made regulatory frameworks are often sacrificed. The media houses at the cost of accuracy and with full impunity on name of freedom of speech and expression assassinate the character of any suspect.

Moreover, due to partition of media houses on the basis of political ideologies, this kind of behaviour has become more pertinent and obvious. The regulatory goals are subverted in order to achieve the commercial targets. The self-regulation is no more functional. As said by Justice GS Kulakarani in the case of Nilesh Navlakha Vs UOI that "�..we are in that situation, where self-regulation of media has failed."

Now it is appropriate time to frame rule and regulation to prohibit the media trial. The legislation should come forward and rule may be framed following the footsteps of other common law countries like United Kingdom where government approved regulatory framework works perfectly.

The authors suggest some guidelines to deter the media houses from deprecating the suspected person by media trial:

  1. A National Regulatory Authority for Media may be constituted and be presided by retired Judge of Supreme Court of India. This regulating authority may be empowered with penal provision of monetary values subject to further appeal in High Courts.
  2. The media houses should take care not to publish inaccurate, misleading and distorted information. If such information is published, then an opportunity should be given to media house to explain it. If the media house accepts the mistake, then loud and clear apology should be published
  3. The media should not encroach the private or family space including the health status of any individual without his express or implied consent. The use of long lens photography to take picture of people without consent should be prohibited.
  4. The reporters/photographers should not obtain information or photographs through intimidation, harassment or persistent pursuit.
  5. The reporters/ photographers should not seek information or takes photograph/videography from private places after having been asked to desist. They must not remain in their property after having been asked to leave. They must not follow any person just to seek direct information without his express or implied consent.
  6. The head of the media houses must ensure that only authentic information is to be published.
  7. In cases involving personal grief and shock, the approach of reporters should be with utmost sympathy and public must be handled sensitively at such occasions.
  8. The children below 16 years of age should not be interviewed at the school without the consent of their parents or teachers. The children should not be videographed/photographed in their school or other training institute without permission.
  9. In cases of sexual offence, the identity of victim should not be disclosed by any way. The identity of minor accused should also be not published.
  10. The journalist should identify them when reporting from inside the hospital and should be acted like a responsible executive. The visuals of wards should not be taken without the permission of person visualised.
  11. The media should avoid all sorts of discrimination based on caste, custom, creed, race, colour, gender, religion or any other difference of like nature.

This is illustrative list and other provisions may be added to ensure that the media trial are regulated and media houses should not be allowed to become unruly horse.
Author is Delhi Based Legal Consultant.

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