With the coming of the television and cable-channels, the innocents may be condemned for no reason or those who are guilty may not get a fair trial and may get a higher sentence than they deserved. Find out more…
India Pandit Jawaharlal Nehru, the first Prime Minister of independent India, said: “I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.” But the great statesman could not foresee the danger involved in the administration of justice. Little did he know that the press would one day get involved into something which was beyond its limit? Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become a license which would lead to disorder and anarchy, as has been expressed by the court in a judgment.
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.
Our criminal law and criminal jurisprudence are based on the premise that the guilt of any person charged in a court of law has to be proved beyond reasonable doubt and that the accused is presumed to be innocent unless the contrary is proved in public, in a court of law, observing all the legal safeguards to an accused.
Let’s look at the fundamental concepts relating to human rights as contained in International Conventions, the Madrid Principles and our Constitution.
Article 11 of the Universal Declaration deals with the right to be presumed innocent and reads thus:
“Article 11 (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time it was committed. Nor shall a heavier penalty be imposed than the one that is applicable at the time the penal offence is committed.”
The International Covenant on Civil and Political Rights, 1966 (ICCPR) was ratified by India in 1976 and it states in Article 14(2) as follows: “Article 14(2): Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”
A group of 40 distinguished legal experts and media representativesmet in Madrid, Spain, between the 18th and the 20th of January 1994, convened by the International Commission of Jurists (ICJ), at its Centre for the Independence of Judges and Lawyers (CIJL) and the Spanish Committee of UNICEF. The objectives of the meeting were:
Our Constitution does not separately refer to the freedom of the press or of the electronic media in Part III but these rights are treated by the law as part of the ‘Freedom of speech and expression’ guaranteed by Article 19 (1)(a) of the Constitution of India.
The Supreme Court in Maneka Gandhi’s case (AIR 1978 SC 597)has interpreted the words ‘according to procedure established by law’ in Art.21as requiring a procedure which is fair, just and equitable and notarbitrary. The Supreme Court of India, in Life Insurance Corporation of India v. Manubhai D Shahhas stated that the “freedom of speech and expression” in Article 19(1)(a) means the right to express one’s convictions and opinions freely, by word of mouth, writing, printing,pictures or electronic media or in any other manner.
In Romesh Thapar v. State of Madras it was held that the freedom includes the freedom of ideas, their publication and circulation. It was stated in Hamdard Dawakhana v. Union of Indiathat the right includes the right to acquire and impart ideas and information about matters of common interest.
Right to a fair trial is absolute right of every individual within the territorial limits of India vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is more important as it is an absolute right which flows from Article 21 of the constitution to be read with Article 14. Freedom of speech and expression incorporated under Article 19 (1)(a) has been put under ‘reasonable restriction’ subject to Article 19 (2) and Section 2 (c) of the Contempt of Court Act. One’s life with dignity is always given a priority in comparison to one’s right to freedom of speech and expression. Media should also ponder upon these facts. Fair trial is not purely private benefit for an accused – the publics’ confidence in the integrity of the justice system is crucial.
The right to a fair trial is at the heart of the Indian criminal justice system. It encompasses several other rights including the right to be presumed innocent until proven guilty, the right not to be compelled to be a witness against oneself, the right to a public trial, the right to legal representation, the right to speedy trial, the right to be present during trial and examine witnesses, etc. In the case of Zahira Habibullah Sheikh v. State of Gujarat the Supreme Court explained that a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.”
The dominant view among jury researchers is indeed that pretrial publicity has negative, anti-defendant effects in high profile cases. There is, however, a dispute about the magnitude of those effects. Pessimists tend to find dramatic effects, while optimists tend to find them minimal. Lawyers and judges tend to believe that remedial measures, such as careful jury selection procedures, jury instructions, and venue change, can effectively counter media-induced bias.
There is then the question whether a media publication can ‘unconsciously’ influence Judges or Juries and whether Judges, as human beings are not susceptible to such indirect influences, at least subconsciously or unconsciously?
The American view appears to be that Jurors and Judges are not liable to be influenced by media publication, while the Anglo-Saxon view is that Judges, at any rate may still be subconsciously (though not consciously) influenced and members of the public may think that Judges are influenced by such publications and such a situation, it has been held, attracts the principle that ‘justice must not only be done but must be seen to be done’. The Anglo-Saxon view appears to have been accepted by the Supreme Court as can be seen by a close reading of the Judgment in Reliance Petrochemicals v. Proprietor of Indian Express. If one carefully analyses that judgment, in the light of an earlier judgment of the Court in P.C. Sen (in Re), this view of the Supreme Court appears to be clear.
It appears that it was accepted by the Supreme Court that Judges are likely to be “subconsciously” influenced. That was also the view of Justice Frankfurter of U.S Supreme Court (in his dissent) and of Lord Scarman and Lord Dilhorne of the House of Lords. We shall presently refer to these views.
Summarizing the position, it will be seen that the right to free speech in US is absolute and no restraint order against publication is possible unless there is ‘clear and present danger’ to the right itself.
But, the position in India is different. The right to free speech is not absolute as in US but is conditional and restricted by Article 19(2). Treating a publication as criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971 where the Court comes to the conclusion that the publication as to matters pending in Court ‘tends’ to interfere {vide Section 2(c)(iii)} with the administration of justice, amounts to a reasonable restriction on free speech. The view obtaining in USA that trained Judges or even jurors are not influenced by publication in the media as stated by the majority in Nebraskawas not accepted in England in Attorney General v. BBC by Lord Dilhorne who stated that Judges and Jurors may be influenced subconsciously and Judges could not claim to be super human was quoted by the Supreme Court in Reliance Petrochemicals. In what manner they are so influenced may not be visible from their judgment, but they may be influenced subconsciously. Even in US, Justice Frankfurter has accepted that Judges and Jurors are likely to be influenced. The view of the Indian Supreme Court even earlier in P.C. Sen In rewas that Judges and Jurors are likely to be influenced and that view in the Anglo- Saxon law appears to have been preferred by the Supreme Court in Reliance case. That Judges are subconsciously influenced by several forces was also the view of Justice Cardozo and of the various Law Commissions referred to above.
We have a rich tradition of fiercely independent journalism. In fact, all the big scams were busted by the press. The law enforcers merely followed them up. The poorly paid journalist must be credited for extracting those information which looked inaccessible for the top vigilance teams of the country. That is how HDW (Howaldswerske) marine case and Bofors hit the headlines. That is how we found out that Narasimha Rao had bribed the Jharkhand Mukti Morcha MPs and Satish Sharma and Buta Singh had brokered the deal. The media did us proud at every juncture of our political juncture.
There is increasing and intense public focus on Courts and the cases filed therein. Whether reported in daily newspaper or in electronic media, Indians avidly devour this information, since they are curious about what happens in Court. Now that the Courts have come under the media’s microscope, they are likely to remain there forever. As with most changes both positive and negative consequences have flowed from this. A Positive by-product of changes spurred by the media and addressed by the Courts is that more Indians are aware of their constitutional rights than ever before. The media strongly resents this sub judice rule and complains that Courts during the course of a hearing tend to interpret the sub judice rule quite strictly to prohibit any discussion of the issues before the Court even if they are engaging public attention. In their opinion such a restriction could be applied more legitimately to situations where a jury of lay people is involved. After the abolition of the jury system when decisions are made by professional judges who are trained not to be influenced by happenings outside the Court there is less of a justification for a strict application of the rule. There is, therefore, an urgent need to liberalize the sub judicerule, invoking it only in cases of an obvious intent to influence the trial and not to any act that might have the remote possibility of influencing it.
Any institution, be it legislature, executive, judiciary or bureaucracy, is liable to be abused if it exceeds its legitimate jurisdiction and functions. But sometimes these ultra vires activities are blessing in disguise, as is the case with the judicial activism. Media reporting is good as it keeps a close watch over the investigations and the activities of police administration and executive. But there must be a reasonable self-restriction and due emphasis should be given to the fair trial, and the court procedures must be respected with adequate sense of responsibility. While the print media is aware of legal guidelines and ethical limits, the electronic media is experimenting and is relying upon ‘trial and error’ method. The time will come when electronic media will also be well regulated by self-censored guidelines and we shall have a ‘completely free press’, the dream of our first Prime Minister, and that too without any danger involved.
There is increasing and intense public focus on Courts and the cases filed therein. Whether reported in daily newspaper or in electronic media, Indians avidly devour this information, since they are curious about what happens in Court.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
