ABSTRACT
Media has undergone from being a simple medium to communicate news to the public to being a harbinger of change. Trial by media refers to pre trial exposure of a case by the media through communication means like television, internet, and radio. Further, this leads us to deliberating over the ongoing clash between the Freedom of the Press guaranteed under Article 19 of the Constitution and Contempt of Court under Contempt of Courts Act, 1961.
This journey has been chalked out with respect to the concept of prior restraint and most recent guidelines for censorship held under Sahara India Real Estate Corporation Ltd., while the role of censorship further being fortified through Bata India Ltd. case. In order to analyse the legality of media intervention, high profile cases like the Arushi murder, Jessica Lal and Tarun Tejpal case have been duly examined.
All these cases have been examined to judge the extent of participation by the media versus the judicial system. The cumulative study shows the ineffectiveness of our police and judicial system and specifically the ambiguity of legal grounds for trial by media. Lastly, suggestions have been drawn so that both media and law confine to their definitive roles to end prejudice caused to a fair trial.
INTRODUCTION
Media, the fourth estate is a force that runs parallel to the administration of justice in the country. Among other factors, the media holds a considerable amount of power to ensure accountability and transparency. The role of the media has been reinforced due to its power to mould the opinion of the general public and influence judicial decisions. It has changed robes over the years in the form of television, publications like newspapers magazines, journals, radio and finally the internet. Today a single click over the internet or the television remote can easily initiate the process of influencing a person’s point of view over varied subject matters.
This is applicable to weighty topics varying between the opinions of a person of a particular political leader which ultimately transforms into his choice of vote to something as trivial as his choice of shampoo. Thus, the media has assumed significant power in almost every sector of life. The media has assumed the role of a watch dog but in its exercise of this role, it has to abide by certain guidelines. It must stand the test of the famous words; “With great power comes great responsibility.” It is thus, the responsibility of the media to ensure that it reports matters of public interest with utmost sincerity and indiscrimination. One tiny slip by the media can reshape the perception of millions of people.
Beyond reporting, the media also plays an important role by acting as a catalyst between the government and the public with reference to law reform, lobbying and other political agendas. In this light, a controversial issue that has been raised in the recent times is that of trial by media. Trial by Media refers to the involvement and impact of media through means of communication like publications, television, radio and internet upon any case to an extent that it moulds the opinion of the public with regards to the case even before the verdict is declared through a sound judicial process.
We cannot ignore the role of media in exposing to the public, scams by our government like the 2G scam, coal block allocation scam, CWG scam and Bofors scandal to name a few. In cases of national importance, the media definitely plays the role of a game changer by constantly keeping the public informed with the developments in the case but sometimes it gets carried away and goes beyond its conventional role of being an informant. This is where the problem arises as the media oversteps its authority of being an informant and carrier of information. It results in the media reporting half truths, sensationalizing of news leading to a violation of rights of an individual in the process.
It would be unfair to single handedly hold the platform of media in its entirety responsible for such acts when they are just the results of news channels competing against each other to grab the highest TRPs. In this chase, they end up causing injury to the reputation of the accused by planting doubts in people’s mind by exaggerating the news to gain competitive edge.
It is the media’s job to inform but the power to decide a case lies solely in the hands of a sound judicial system. In many cases, the interference by the media hampers the administration of justice and misleads the public to form an opinion about a particular case even before it is adjudicated upon by the courts. Time and again we have seen that the media has acquired the role of the judiciary by bringing the accused to the hook.[1] They substitute the role of the judiciary by indulging in concepts of “breaking news”, carrying on investigation of crimes, interfering in police investigation and partial reporting.[2]
How much interference may be passed off as acceptable and at what point does it start to impede the boundary of judicial procedure? The answer to this question lies in arriving at a middle ground between Freedom of Media on one hand and Contempt of the Court on the other. The analysis of a number of media channelled cases may help us to arrive at a benchmark which we can be used to hold the media from pushing its boundaries in pursuit of freedom of speech and expression.
LEGAL IMPLICATIONS – ONGOING BATTLE BETWEEN FREEDOM OF SPEECH AND CONTEMPT OF COURT
India may be the second most populous country in the world but it guarantees to its people, the freedom of speech and expression through its democratic being. Freedom of speech and expression is a fundamental right but the extent of its exercise may not be absolute. Who can exercise this right and to what extent is subject to various restrictions in order to ensure that there is no overlapping between the rights of two parties.
Freedom of speech and expression is guaranteed to the people of India under Article 19(1)(a) of the Constitution. It is regulated or restricted at various steps to ensure its healthy use. This freedom of speech and expression extends its way into the arms of the media as well. Media uses this as a tool to pass on information on burning issues of national importance to the public. This casts responsibility on the media to exercise the granted liberty cautiously.
Freedom of Press is not specifically mentioned in Part III of Indian Constitution, however the Supreme Court in a number of judgments has recognized that freedom of speech and expression also includes freedom of press.[3] When the media oversteps its case, sometimes by reporting certain news to the public in a biased fashion, it would be checked under the bars imposed upon this provision of law. The absoluteness of this provision is curtailed by reasonable restrictions imposed by clauses (2) to (6) of the Article 19. These restrictions are placed in lieu of public order, morality, defamation, obscenity and contempt of court.
There is also a conflict between Article 19(1) (a) which ensures freedom of the press under freedom of speech and expression and Article 21 which implies the right of an individual for a free and fair trial under the fundamental right to live.[4] Thus, it is essential to balance these two rights in order to avoid any conflict. It is time that guidelines are issued for the extent and role of media while a matter is sub judice. In this scenario, United States of America has tilted towards one end and stuck with a no restriction policy with the right of the media to report or comment on a matter of public importance.
The freedom of the press from censorship by the government is strengthened by inclusion of the First Amendment which states that no law shall be made which prohibits or restricts the free exercise of freedom of speech or of the press, thereby granting to its people an absolutely free press.[5]
If we begin to compare the laws governing both these democracies, it can be seen that they both have similar provisions governing them with the exception of America offering the freedom of press as a specific right in its Constitution without any restrictions. They differ as to what is and what is not acceptable free speech. The real difference in freedom of speech enjoyed in the United States and India is a question of degree. This difference in degree is attributable to the reasonable restrictions provision and the moral standard of the communities.[6]
In words of Felix Frankfurter, “Without a free press there can be no free society. Freedom of the press, however, is not an end in itself but a means to the end of a free society.” The scope and nature of the constitutional guarantee of the freedom of the press are to be viewed and applied in that light. [7] In light of the above statement, the 17th Law Commission has made recommendations to enact a law to prevent the media from reporting anything prejudicial to the rights of the accused in criminal cases from the time of arrest, during investigation and trial.[8]
With respect to the extensive prejudicial coverage by the media of the accused and suspects, in its 200th report titled, Trial by Media: Free Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971), the Commission suggested certain steps to check the interference of media reporting with the administration of justice. It started by reiterating the golden principles of criminal law of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. These principles however, are often ignored; the reported information is sensationalised thereby leading to damaging effects upon the case of an accused.
One significant change suggested by the Commission involved a change in the manner in which reporting through a publication, news channel etc. would amount to Contempt of Court under Section 3(2) of the Contempt of Courts Act, 1971. Earlier, a prejudicial publication would amount to contempt of court only if a charge sheet had been filed in criminal cases. This loophole is sought to be amended by any prejudicial publication being held as contempt; the time frame for it to be called contempt to start from the arrest of an accused and not the filing of charge sheet. If implemented, this will reduce the time of the media to carry out any prejudicial reporting and help to protect the rights of the accused at the pre-trial stage.
Another recommendation documented in the report was to empower the High Court to postpone a publication or telecast pertaining to a criminal case. This is already in practise in countries like the UK. Further, it discussed various related issues like interference of the media in interview process of the witnesses, publication about the character of the accused and investigative journalism.[9]
The rights of an accused are protected under Article 21 which guarantees a fair trial under the right to life. Showing pictures of the accused in negative light, publishing information that has a bearing on his character or holding him guilty before the completion of the judicial process hampers the administration of justice. This however, does not take away from the fact that media has successfully played the role of facilitator in various cases and been a responsible communicator to the public at large.
PRIOR RESTRAINT
Censorship or restriction in any form is frowned upon, especially in a country like India which stands tall on fundamental grounds of democracy. It serves as an anti democratic tool in the hands of the legislators when the media crosses its line of jurisdiction. As stated before, the freedom of speech and expression under Article 19(1)(a) is not absolute. This is essentially to hold back the media from communicating more than it may be authorised to and in a manner that may be illegal or prejudicial.
Pre Censorship has been a part of the Indian regime since the British era under the rule of Lord Wellesley where the Secretary served as the censor. It was required for newspaper to submit all materials published in the newspaper to the secretary for his scrutiny. In 1813, General Hastings issued instructions requiring all printing presses to submit proofs of newspaper supplements, extra publications and notices to the Chief Secretary for scrutiny. He did away with press censorship but refrained from publishing anything that would injure public interest. The concept of pre censorship was taken further by Lord Canning who reintroduced licensing under the act of 1857.[10]
After the enactment of the Constitution, the concept of pre censorship was finally regulated through the reasonable restriction imposed under the constitutional provision of Article 19(2). However, the question of censorship still remains a debatable topic in the present day. There lies no provision in the Indian Constitution either permitting or prohibiting censorship.
The Supreme Court has addressed this question through cases like Brij Bhushan v. The State of Delhi[11] and Ramesh Thapar v. State of Madras.[12] In the former case, there was a statutory provision under Section 7(1)(c) of the East Punjab Safety Act 1949 under which there was a requirement of submission of material to the government for scrutiny if it felt that it was necessary in public interest. The court did not hold prior censorship as being unconstitutional per se but declared the statutory provision unconstitutional as it did not fall under the umbrella of reasonable restrictions imposed by the law under Article 19(2). [13]
The emergence of censorship can be attributed to the emergency declared in 1975 when Indira Gandhi was the Prime Minister. Consequently, anything that was moderately critical or offensive was being struck down and important issues being suppressed. This did not hold the Indian judiciary from passing judgments in attacking censorship through cases like Binod Rao v. Masani[14] where it was held that it is not a pre requisite for all publications to hold the same opinion and merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication.
Similarly in the case of R. Rajagopal v. State of TN[15],the court expressed disapproval upon exercising prior restraint upon the publication of the autobiography of a convict named Auto Shankar, which was likely to press on the nexus between criminals and police authorities.
As time passed, there was undue advantage being taken by the media in the name of freedom of press. This led to overturning the judicial precedents established earlier and setting up of newer and more suitable grounds for censorship. The landmark case of Sahara India Real Estate Corporation Ltd. and Ors.Vs. Securities and Exchange Board of India and Anr[16] laid down guidelines with respect to print and electronic matters which are sub judice in court and also the manner and extent of publicity to be given by the media.[17] This was further fortified through the recent case of Bata India Ltd vs A.M. Turaz & Ors[18] where censorship was considered necessary in case of movies as the censor took it upon themselves to filter what was presented to the public. That being said, orders prohibiting temporary publication during the time a matter is in the court can be carried out through inherent powers of the court and will not clash with Article 19(1)(a).
It can thus be seen how a country like India has modified its approach over the concept of prior restraint over the years. There is still no specific standard to determine whether or not censorship may be imposed on a sub judice matter. In most cases, it is judged on factors like reasonability and fairness of censorship. This directs us back to the fact that this approach might be the result of reasonable restrictions that are allowed under Article 19(2)-(6) of our Constitution. In a country like United States of America where the freedom of speech and press is absolute, the basis of a censorship would have to be weightier in comparison to India.
Traditionally, any kind of a restriction in the U.S would have to be at serious odds with the First Amendment in order to be approved. The landmark case of New York Times Co. v. United States[19] popularly known as the Pentagon Papers case proved the dedication of the country towards providing a free press. It permitted publications like New York Times and Washington Post to publish the contents of a confidential report regarding the Vietnam War. There were divergent opinions regarding this issue and in the end no clear verdict was seen but it reinforced the country’s stand on the absolute freedom extended to the press and exceptions to First Amendment.
We can see how the two countries adopt dissimilar approaches on the issue of prior constraint with respect to the extent of freedom they wish to extend constitutionally to the press and public. It would be wrong to classify the approach of one country being better than the other as each country deals with it in accordance with its socio economic, cultural and political values.
IMPACT OF TRIAL BY MEDIA AND MEDIA VICTIMISATION
The media has become the backbone of the news industry and plays the role of the public’s eyes and ears. Any and every information that the public receives regarding an event is looked under the spectacles of media and then conveyed through the mouth piece that is the media itself. What is the authenticity of such information and to what extent should the public get convinced by it lands the public in a rather soupy situation. After all, it is only natural for them to believe what they are sold by an upper hand authority like the media. But what happens when the news supplied to the public through media and subsequently through judicial process is poles apart?
In this context, there lies a minimal expectation by media to confirm to their jurisdiction of affairs and ensure that what they convey is free of bias. In the last few years, the media has not only dared to operate outside its bounds but also reach a point where they assume the role of the judiciary in deciding a case. Once there is a case which is relatively of any public importance, it will start its own investigation process, question witnesses and raise fingers upon the character or morals of the accused. In few cases it may even go to the extent of driving a case to its conclusion.
Although the public may seem content with this cycle of events, it is not legal at any point. It quashes the basic principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. The interference of the media goes to the extent of causing a prejudice in the eyes of the public against the accused even before he is extended a fair trial and this in turn affects his trial. Even if he is acquitted after the trial, it does not change the public’s opinion about him based on what was conveyed by media. This amounts to double victimisation of the accused; by the media as well as the judiciary.
Cases which are driven by the media usually involve high publicity coupled with well staged drama and is targeted at cases that could be sensational due to their horrendous nature or due to the involvement of an influential person. This is becoming a trend and seems to have substituted the lack of daily soaps on news channels. Few media driven cases in the recent past include the Arushi murder case, Jessica Lal murder case, BMW accident case, Nirbhaya rape case, Nira Radia case.
Apart from this there were scams like the 2G scam, Bofors scam, Commonwealth Games scam and Harshad Mehta stock market scam. All these cases pertain to diverse fields but do share a common ground of being driven by the media. This takes us back to the question raised in the very beginning; how much interference may be passed off as the work of a healthy regulator and when does it start to interfere with the process of the court. We will try to assess the impact of media by analysing few of these cases to derive a clearer perspective on this point.
ARUSHI MURDER CASE
Even though the files for the Arushi Murder case may have been closed and stacked in some dusted corner, there still seems to be restlessness; the lingering issue of what exactly happened that fatal day. This is directed at the plethora of information that was dumped upon the public from various authorities like the CBI, media, judiciary and the Uttar Pradesh police within a short span of time. From being a grotesque criminal case which should have ideally been resolved following the established judicial procedure, it became a mockery and a shoddy affair.
Over a span of almost five years, it turned into nothing less than a daily soap with its set of twists and turns. The problem started with the misuse of power by the several authorities and a few blunders committed at the very onset. The first blunder was the way in which police authorities conducted the investigation process. Instead of depending on forensic tests and traces of evidence on site, they relied upon the most novice conclusion of holding the people who were missing as the culprits. This narrow escape of the police from investigation opened the gateway for speculations and unwarranted reporting by the media.
As time elapsed, the media joined in by reporting colourful and baseless assumptions made by the police force and CBI. Few of them were as preposterous as the Talwar couple being involved in wife swapping and alleged affairs. Not only this, the media even went ahead to create a negative image about the victim herself by alleging that since she was purportedly found in a compromising position with the domestic help and was thus having an affair with him.
The rat race between media regulators through its series of hackneyed assumptions only gained pace. It seemed to have become a daily entertainment for the public and a TRP generator for the media. The absurdity of it all did not stop here. It went on to the extent of the media questioning Anita Durrani[20] who was claimed to have been having an illicit affair with Mr. Talwar. Lastly, the Talwar couple were accused of being too composed as they did not cry as per expectations.
This media extravaganza continued and the media took pride in the fact that they were keeping the public abreast of a monstrous event such as this. This was all fed to the public while the matter was sub judice. Not only the media but the CBI and UP Police could be held equally responsible for being the co directors of this trashy script that was being fed to the public in the name of news. It took the shape of a story that the media was reading to the public, day by day splashing it with spiced ingredients to stir the emotions of the public.
There was a wide gap between what was being reported and the judicial process. Legally speaking, the media ought to know that it had overstepped its authority. The freedom of press extended to them had been misused which caused the seed of prejudice to be implanted in the minds of the public and those involved in the adjudication process. This was not only an undue influence but also amounted to interference with the administration of justice. Further this would amount to Criminal Contempt of Court under Section 2(c) of the Contempt of Courts Act, 1971. Lastly, the recommendations of the Law Commissions 200th report were ignored as the balance between freedom of press and rights of the accused were hampered with throughout.
The ongoing conflict between judiciary and media is clearly brought forward by this case. Through the course of almost five years, both seemed to be stifling each other for power and control. In the end, did Arushi get justice? One cannot say for sure but a chance at the truth surely got lost in between.
The verdict held the Talwar couple responsible for the murder of their daughter and awarded life imprisonment after conducting the sound judicial proceedings. If they had been acquitted, would the opinion of the public changed about them? It might just have been better to put them behind bars rather than facing the wrath of living in a world that no longer belongs to them. Such is the power of the media.
JESSICA LAL MURDER CASE
This case is one of the best examples of how investigative journalism, if done right can change the course of a case. The night of April 29, 1999 witnessed the shooting of model Jessica Lal at Tamarind Court where she used to work as a bartender during a party thrown by one of the high profile socialite, Bina Ramani. The night concluded with an intoxicated Siddharth Vashisht better known as Manu Sharma shooting Jessica Lal at point blank range as she had refused to serve him a drink after closing hours. What could not be ignored here was the lineage of Manu Sharma, him being the son of Venod Sharma, a prominent Congress leader in Haryana.[21]
The courts began to try witnesses in order to pass a deserving verdict. We could see a pattern being developed wherein all of the 32 witnesses started to turn hostile. This included three prime witnesses who were present at the party when the shooting took place namely, model-turned actor Shayan Munshi, one Karan Rajput and electrician Shiv Dass. They withdrew the initial statement given to the police. Further, due to the lack of evidence, it became impossible for the court to find grounds on which to hold Manu Sharma responsible for the murder and he along with eight other suspects were acquitted on 21st February, 2006.
The case was considered close as per the culmination of judicial proceedings and passing of a verdict. This however, did not seem to agree with the public. The public decided to use the pull of the media to express their dissatisfaction with the verdict. The country saw public outrage in the form of mass protests, candle light marches at India Gate by people belonging to various sections such as students, activists, NGO representatives etc. who stood for the rights of Jessica Lal. This led to the media taking matters into their own hands and initiating a sting operation against one of the witnesses. It was revealed by Tehelka, a leading magazine, that Venod Sharma has bribed the witnesses with money and asked them to not reveal the truth.
The cumulative effect of media intervention led to pressurising the reopening of the case. Subsequently the case was reopened and a reversal in the verdict with Manu Sharma being convicted for the cold blooded murder of Jessica Lal. This was one of the cases that were purely driven by the media and had it not been for them, Jessica Lal’s plea for justice would have gone unnoticed. It stands as a standard example of media intervention bringing about a positive effect. However, is this sort of media intervention legally justifiable?
Technically, there should not arise a need for the media to go till the extent of having to carry out a sting operation themselves to expose a case. The fact that they had to do so in this case points at the lack of integrity of the Indian police force and judiciary. Just like the Arushi murder case, the police failed to adduce evidence from the site. There were no blood stains, the weapon used was not found and there was hardly even the hint of the celebration of a party there. Thus, the most important piece of the puzzle was conveniently given a miss.
Further, the trial court casually acquitted the accused without exercising its power under Section Section 311 of the Criminal Procedure Court, 1973 that invests in the Judge the prerogative to summon suo moto more material witnesses in addition to those produced by the prosecution. The Judge has also the authority to recall and re-examine any person already examined. It can be used by the judge in cases where the witnesses have changed their statements such as this.[22] Also, the way the judiciary interpreted the statements of various witnesses was quite inefficient, allowing them to be guided by the testimony of Bina Ramani which cannot be held as the correct approach in eyes of the law.
An important angle pertaining to this case was that it involved a lot of high profile celebrities and politicians due to which it was given a differential treatment. It just went on to show how rich people are allowed to buy their freedom at the hands of denied justice. Thus, the media stepped in to expose such loopholes in our system to arrive at the doorstep of justice for Jessica Lal. The decision of the media to carry out its own investigation to address the concerns of the public was an awaited step although if the police and judiciary had accomplished their tasks well, this would not be needed in the first place. If the judiciary does not wish for the media to tell them what to do, as in this case, they must ensure that they fulfil their obligations leaving no loophole to be tugged at.
PRIYADARSHINI MATTOO MURDER CASE AND TARUN TEJPAL SEXUAL ASSAULT CASE
Similar to the Jessica Lal murder case was the case of S.K. Singh vs. State through CBI[23], popularly known as the Priyadarshini Mattoo case. The case began with Santosh Kumar harassing and following a 25 year old law student. Even after regular filing of complaints against him, he was simply warned as his father was soon to be the Additional Commissioner of Police in Delhi. Not being held for stalking or harassment, Santosh Kumar entered the house of Priyadarshini and brutally murdered her after raping her and leaving her body under the bed.
The case was handed over to the CBI who arrested Santosh on the basis of the witness testimonies, DNA and fingerprint samples, broken motorcycle helmet found in the scene of the crime, and other evidence. This saw a turn in events and Santosh Kumar was acquitted as a result of the judgment delivered by Additional Sessions Judge, J.P Thareja due to lack of proper evidence and benefit of doubt. While delivering the judgment he openly criticized the Delhi Police, CBI and the influence of the father of the accused leading to unfair investigation and fabrication of evidence.
The timing of this case could not have been better as it took place around the time when an order for acquittal had been passed for the Jessica Lal case. At this point, public outrage was at its peak and media decided to intervene to settle matters. The media closely observed the reasons as to why a man who was declared a criminal could be living a normal life. It played on the lacunae of the judgment and decided to use its power of investigative journalism to unearth the truth. Vital information that had been overlooked such as the disappearance of the domestic help of Matto who had allowed Santosh Kumar into the residence and ultimately could become a powerful tool for the case was successfully traced.
In the midst of all this, the CBI appealed against the verdict and the case was reopened and tried on a daily basis by justices P.K. Bhasin and R.S. Sodhi.[24] Within 42 days, the earlier judgment was reversed and Santosh Kumar was convicted under Section 302 and 376 of the Indian Penal Code. This helped to restore the faith of the public in the power of a common man and that justice delayed was not justice denied. Here we can see that where the law failed, media pulled up its socks and ensured that justice was not denied.
The role played by the media has been reinforced through their efforts and continues to fill the vital gaps left due to unfair legal proceedings, lack of law enforcement, corruption and bias. A recent case, which involves a 23 year old female journalist being sexually assaulted by her mentor, has been almost single handed brought forth by the media. It attracted attention as the person accused, Tarun Tejpal was the Editor-in-chief of Tehelka placing him on an extremely influential pedestal in the world of media.
The unravelling of the case took place mainly over the web with one of the mails exchanged between the parties finding its way onto the internet. The initial mail accused Tejpal of sexually assaulting her during the India Think festival on two occasions. This was addressed to Shoma Chaudhary who is the managing editor of the Tehelka. This was followed by a chain of mails exchanged between the three parties over a period of time. The mail by the plaintiff clearly mentioned the degree to which Tejpal had outraged her modesty and acted beyond her consent by forcing himself on her and disrobing her while trying to finger her. Even then, this was retorted by absurdities like the interference of alcohol and lapse of judgment.
The chain of mails was exposed one by one by the media, with no scope for ambiguity. The final mail consisted of Tejpal offering to resign from his post for a period of six months. However, what you see is not always what you get. Through all the turbulence, Tejpal attempted to barge into the house of the victim in order to avoid getting his image publicly tarnished and hoping for a settlement out of court. This amounts to tampering of evidence and a serious effort of trying to cover up. Further, through the mails, Tejpal tried to use inebriation as a pillar to lean on while not understanding that this still does not give him the right to touch a woman without her consent.
The in-company dealing of the matter also points towards failure of Tehelka to set up an in house committee abiding by the Vishaka guidelines. The correct approach would have been for the victim to approach such a committee rather than having to fight her way through a chain of mails. Also, Section 19(h) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 requires the employer to inform the police of a criminal offence which was ignored in this case. There was also confusion as there was no formal complaint made by the victim in the form of an FIR which is the most traditional way to initiate further inquiry and investigation.
We can see that the build up of this case was driven entirely by the media. There seems to be no problem with that until it does not interfere with the legal procedure. However, this did bring with itself political unsettlement with questions about the failure of the filing of the case by the victim due to Tejpal’s connections with Congress.[25] Finally, an FIR was lodged in the Goa court where Tejpal has been arrested and kept in prison. Thus, this case was almost left to the mercy of the media before being handed over to the Goa Court for its final verdict.
CONCLUSION
The problem of the absolute right to freedom of speech and expression is yet to find its way in India. On one hand we proudly pull out the right to freedom of speech card under Article 19(1) (a) but on the other hand we succumb to the restrictions under clause (2) of the same article. These restrictions are placed to keep activities which are ultra vires at bay. However, at times, these ultra vires activities may prove to be a blessing in disguise; such as in cases of fruitful media activism and investigation. To put it simply, if law is the lion, then media is its roar. At times just a loud roar is enough to awaken the forest.
From the cases discussed above and others that have seen media interference, it is clear that both law and media have distinct roles to play and there need not be any overlapping of responsibility. By this we could point towards cases like the Jessica Lal case and Ayushi murder case wherein the media assumed greater standing in comparison to enforcement of law. Both these cases were driven more by the breaking news than court procedures. Although the media did a commendable job through reopening of the cases, it only goes to raise questions about the law enforcement in the country. Also, there must be due emphasis placed upon a fair trial and court procedures which the media regularly prejudices.
This brings us to the extent of freedom offered to the Indian Press and the right to privacy of the accused. For instance, in the UK, Sweden, France and Netherlands there is a need to acquire the permission of the person being photographed or published.[26] In India, there are no such guidelines to seek the consent of the person being photographed and published by the media. This results in the media overstepping its boundary and publishing the picture of an accused even before the trial proceedings. Every day the media slips over the boundaries of privacy while leaning on public interest/good and much is left to the discretion of the media especially by the new forms of electronic media where there is more ambiguity than traditional print media.
Currently, there are also no norms set for the conducting of a media trial. A media trial usually consists of involvement of a highly reputed person or company which forms the reason for the media to sensationalise the news even more. For instance, in the rape case incriminating Tejpal, although the chain of emails exposed indicate his crime, it cannot be denied that he must yet be extended the regular process of law till he is proved to be a criminal in the eyes of the law. In other words, the exposing of a case by the media must not be seen as the end. It must be seen as a facilitator, the end to which shall be decided by the judicial system.
Finally, the laces of the legal shoes of the country must be tightened to avoid trips and falls. To start with, the recommendations under the 200th report of law commission titled, Trial by Media: Free Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) must be adhered to. There must be proper regulation of media by the courts in order to avoid the regular clash. Also, instead of blindly adopting the legal provisions of other countries, we must assess our own country with respect to cultural and economic variables and accordingly arrive at a consensus between the extent of freedom of the press and contempt of court.
The above analysis shows us the gravity of the situation as it persists in India and the fact that it is still at a nascent stage. The fact that there is regular clash between the media and law, goes to show that there is ambiguity about their individual roles and powers. Instead of choosing sides and blaming either one, it must be seen as a perfect time to pave the two respective bridges leading to their common road of definitive justice.
[1]Effect of Trial by Media Before Courts, http://www.lawteacher.net/commercial-law/essays/effect-of-trial-by-media-before-courts-law-essay.php
[2] S.L Rao, Trial by Media-Television should have no role when criminal cases are in court, The Telegraph, July 25,2011, available at
http://www.telegraphindia.com/1110725/jsp/opinion/story_14234123.jsp
[3] Indian Express Newspapers V Union of India 1985 SCR (2) 287
[4] Maneka Gandhi Vs Union Of India 1978 SCR (2) 621
[5] Tony Rogers, The First Amendment and Press Freedom, available at http://journalism.about.com/od/ethicsprofessionalism/a/firstamen.htm
[6] Dheerendra Patanjali, Freedom of Speech and Expression India v America – A study, 3 India Law Journal. (2007), available at http://www.indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html
[7] New York Times (November 28, 1954), available at http://en.wikiquote.org/wiki/Felix_Frankfurter
[8]Enact law to regulate trial by media: Law Commission, The Hindu, Sept 3, 2006, available at http://www.hindu.com/2006/09/03/stories/2006090303411000.htm
[9]Id.
[10] Priya Jagadeesh, Pre-Censorship as a Facet of Freedom of Speech, Feb 2, 2010 available at http://documents.jdsupra.com/5307d25e-a02c-4142-a64e-0de01fec49af.pdf
[11] 1950 AIR 129, 1950 SCR 605
[12] 1950 AIR 124, 1950 SCR 594
[13] Prior Restraint on Media, Feb 25, 2011, available at http://www.legallyindia.com/easyblog/prior-restraint-on-media-html#comments
[14](1976) 78 BOMLR 125
[15] 1995 AIR 264 1994 SCC (6) 632
[16] Civil Appeal No(S). 8643 of 2012; W.P. (C) No.527 of 2012
[17] (2012)10SCC603
[18] IA No. 18245/2012 in CS (OS) No. 3010/2012
[19]403 U.S. 713 (1971)
[20] Arushi Murder: Anita Durrani rejects allegations of illicit affair, May 24, 2008, available at http://zeenews.india.com/news/nation/arushi-murder-anita-durrani-rejects-allegations-of-illicit-affair_444776.html
[21] Kathakali Nandi, Investigative Role Of Media: Responsibility To The Society, Global Media Journal – Indian Edition/ Summer Issue (June 2011), p1, available at http://connection.ebscohost.com/c/articles/71947182/investigative-role-media-responsibility-society
[22] Raj Prashar, Trial by Media: A Legal Dilemma resolved with reference to Jessica Lal, available at http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=178
[23] Santosh Kumar Singh vs State Th. Cbi, CRIMINAL APPEAL NO. 87 OF 2007, Supreme Court of India
[24] Kathakali Nandi, Investigative Role Of Media: Responsibility To The Society, Global Media Journal – Indian Edition/ Summer Issue (June 2011), p1, available at http://connection.ebscohost.com/c/articles/71947182/investigative-role-media-responsibility-society
[25] PTI, Indian media on trial in Tarun Tejpal case: Arun Jaitey, Nov 21, 2013, available at http://articles.economictimes.indiatimes.com/2013-11-21/news/44326959_1_indian-media-goa-tarun-tejpal
[26] Sonal Makhija, Privacy and Media Law, July 19, 2011, available at http://cis-india.org/internet-governance/blog/privacy/privacy-media-law