Report No. 200

Trial by Media free speech and Fair Trial under Criminal Procedure Code, 1973

Chapter I

Introductory

The subject of 'Trial by Media' is discussed by civil rights activists, constitutional lawyers, judges and academics almost everyday in recent times. With the coming into being of the television and cable-channels, the amount of publicity which any crime or suspect or accused gets in the media has reached alarming proportions. Innocents may be condemned for no reason or those who are guilty may not get a fair trial or may get a higher sentence after trial than they deserved. There appears to be very little restraint in the media in so far as the administration of criminal justice is concerned.

We are aware that in a democratic country like ours, freedom of expression is an important right but such aright is not absolute in as much as the Constitution itself, while it grants the freedom under Article 19(1)(a), permitted the legislature to impose reasonable restriction on the right, in the interests of various matters, one of which is the fair administration of justice as protected by the Contempt of Courts Act, 1971.

If media exercises an unrestricted or rather unregulated freedom in publishing information about a criminal case and prejudices the mind of the 11public and those who are to adjudicate on the guilt of the accused and if it projects a suspect or an accused as if he has already been adjudged guilty well before the trial in court, there can be serious prejudice to the accused. In fact, even if ultimately the person is acquitted after the due process in courts, such an acquittal may not help the accused to rebuild his lost image in society.

If excessive publicity in the media about a suspect or an accused before trial prejudices a fair trial or results in characterizing him as a person who had indeed committed the crime, it amounts to undue interference with the "administration of justice", calling for proceedings for contempt of court against the media. Other issues about the privacy rights of individuals or defendants may also arise. Public figures, with slender rights against defamation are more in danger and more vulnerable in the hands of the media. after the judgment in R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.

The UN Special Rapporteur on Freedom of Expression and Opinion received a submission from the British Irish Watch against a very sustained attack by the press on Mrs. Bernadette and Mr. Michael McKevitt who had been advocating national sovereignty for Ireland and who were claiming 12the Irish people's right to self-determination through a Committee. It was the media which started linking these two persons to the Omagh bombing of 15th August,1998 which killed 29 people. The media attack started even before the police questioned these two persons. The contents of the representation to the U.N.Rapporteur by the British Irish Watch quoted below, fits well into what is happening with the media in our own country. The representation stated:

"Guilt by association is an invidious device. In the case of Bernadette and Michael McKevitt, the media have created a situation where almost no one in Ireland is prepared to countenance the possibility that they may be innocent, notwithstanding the fact that neither of them has even been questioned by the police in connection with the Omagh bombing.

They have demonized, such media campaigns are self-defeating. If the media repeatedly accuses people of crimes without producing any evidence against them, they create such certainty of their guilt in the minds of the public that, if these persons are even actually charged and tried, they have no hope of obtaining a fair trial. When such trials collapse, the victims of the crime are left without redress. Equally, defendants may be acquitted 13but they have lost their good name". (see The Blanket, Journal of Protest and Dissent, November 2000).

The observations of Mr. Andrew Belsey in his article 'Journalism and Ethics, can they co-exist' (published in Media Ethics: A Philosophical Approach, edited by Mathew Kieran) quoted by the Delhi High Court in Mother Dairy Foods & Processing Ltd v. Zee Telefilms, (IA 8185/2003 in Suit No. 1543/2003 dated 24.1.2005) aptly describe the state of affairs of today's media. He says that journalism and ethics stand apart. While journalists are distinctive facilitators for the democratic process to function without hindrance the media has to follow the virtues of 'accuracy, honesty, truth, objectivity, fairness, balanced reporting, respect or autonomy of ordinary people'.

These are all part of the democratic process. But practical considerations, namely, pursuit of successful career, promotion to be obtained, compulsion of meeting deadlines and satisfying Media Managers by meeting growth targets, are recognized as factors for the 'temptation to print trivial stories salaciously presented'. In the temptation to sell stories, what is presented is what 'public is interested in' rather than 'what is in public interest'.

Suspects and accused apart, even victims and witnesses suffer from excessive publicity and invasion of their privacy rights. Police are presented in poor light by the media and their morale too suffers. The day after the report of crime is published, media says 'Police have no cue'. Then, whatever gossip the media gathers about the line of investigation by the official agencies, it gives such publicity in respect of the information that the person who has indeed committed the crime, can move away to safer places. The pressure on the police from media day by day builds up and reaches a stage where police feel compelled to say something or the other in public to protect their reputation.

Sometimes when, under such pressure, police come forward with a story that they have nabbed a suspect and that he has confessed, the 'Breaking News' items start and few in the media appear to know that under the law, confession to police is not admissible in a criminal trial. Once the confession is published by both the police and the media, the suspect's future is finished. When he retracts from the confession before the Magistrate, the public imagine that the person is a liar. The whole procedure of due process is thus getting distorted and confused.

The media also creates other problems for witnesses. If the identity of witnesses is published, there is danger of the witnesses coming under pressure both from the accused or his associates as well as from the police. At the earliest stage, the witnesses want to retract and get out of the muddle. Witness protection is then a serious casualty. This leads to the question about the admissibility of hostile witness evidence and whether the law should be amended to prevent witnesses changing their statements.

Again, if the suspect's pictures are shown in the media, problems can arise during 'identification parades' conducted under the Code of Criminal Procedure for identifying the accused. Sometimes, the media conducts parallel investigations and points its finger at persons who may indeed be innocent. It tries to find fault with the investigation process even before it is completed and this raises suspicions in the minds of the public about the efficiency of the official investigation machinery.

The print and electronic media have gone into fierce competition, that a multitude of cameras are flashed at the suspects or the accused and the police are not even allowed to take the suspects or accused from their transport vehicles into the courts or vice versa. The Press Council of India issues guidelines from time to time and in some cases, it does take action. But, even if apologies are directed to be published, they are published in such a way that either they are not apologies or the apologies are published in the papers at places which are not very prominent.

Apart from these circumstances, basically there is greater need to strike a right balance between freedom of speech and expression of the media on the one hand and the due process rights of the suspect and accused. Art 19(1)(a), 19(2), Art 21 and Art 14 of the Constitution play a very important role in striking an even balance.

As we shall be showing in the ensuing chapters, the present Contempt of Court Act, 1971 requires some changes in view of the law that has been declared by the Supreme Court at least in two leading cases, one is A.K. Gopalan v. Noordeen, 1969 (2) SCC 734 and the other is Maneka Gandhi v. Union of India, AIR 1978 SC 597. These judgments have struck a balance between competing fundamental rights which were not noticed or available at the time when the Joint Parliament Committee (1969) made some drastic changes in the Bill prepared by the Sanyal Committee (1963). These issues fall for consideration.

In addition, we have the judgment in Sunday Times case decided by the European Court on prior restraint on press publications, the (UK) Contempt of Court Act, 1981 and the Reports of Law Commissions in Canada, Australia, New Zealand and other countries which have tried to strike an even balance between competing fundamental rights.

It is in the light of the problems mentioned, the drastic changes in the interpretation of Arts 14, 19, 21 of the Constitution of India that have come about on account of judgments of the Supreme Court and the reforms brought in or proposed in other jurisdictions, that we have taken up the subject suo motu.

We shall be discussing a number of important issues relating to the freedom of speech and expression and the right to due process for a fair trial under the criminal law, in the ensuing chapters.

(In this Chapter and in the ensuing Chapters, wherever we use the word 'due process' for fair trial in a criminal proceeding, we mean a procedure established by law under Art 21 which is fair, just and reasonable and not arbitrary or violative of Art 14 of the Constitution of India as decided by the Supreme Court in (Maneka Gandhi's case above referred to).

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