“Freedom of the press is a precious privilege that no country can forego.”
– Mahatma Gandhi
The term ‘media’ was derived from the word ‘medium’, which means mode or carrier. The term was first used only in respect of print media, i.e. books, newspapers etc,. However, with the advent of technology, media now encompasses television, radio, cinema and the internet. Freedom of press is the essence of any democratic country.
Democracy is a system of government in which the citizens of the country have the power to elect their representative to form a government, and freedom of press is the cornerstone of democracy. The media plays an important role in a democracy like ours. In today’s world, media has become as essential as our daily needs.
Asia’s first newspaper, ‘Bengal Gazette’, was published in Kolkata (then Calcutta) in 1780. Media, thus, became prevalent in India long before it gained Independence and became a democratic nation. Over centuries, media has constantly evolved and emerged in various forms, playing a vital role in shaping the minds of the country’s citizens.
A democracy cannot be successful without free press. Emphasising on it, the first Prime Minister of independent India, Pandit Jawaharlal Nehru once said, “I should rather have a completely free press, with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.”
Freedom of press under the Constitution of India
Although our Constitution does not recognise the freedom of press as unambiguously as the Constitution of the United States, Article 19(1) (a) of the Constitution, which guarantees citizens the right to freedom of speech and expression, includes freedom of press within its ambit. Explaining freedom of press in the Indian Express Newspapers (P) Ltd. Vs Union of India, the Supreme Court observed that freedom of press has not been used in Article 19, but it is comprehended within Article 19 (1)(a).
The existence of a free, fair, independent and powerful media is the foundation of a democracy, especially in a vast and diverse country like ours. Considering this significant role of media in strengthening democracy, it is often referred to as the fourth pillar of democracy – besides the executive, the legislature and the judiciary.
In Romesh Thappar Vs State of Madras, the Apex Court struck down the ban imposed by the Government of Madras on the entry and circulation ofnewspaper. The Court held that Section 9(l-A) of the Madras Maintenance of Public Order Act, 1949 was violative of Article 19(1)(a) and does not fall within the ambit of any of the exceptions specified in Article 19(2).
It was also held that the right to freedom of speech and expression is of paramount importance, and that nothing short of a danger to the foundations of the state or a threat to its overthrow could justify a curtailment of the right to freedom of speech and expression. However, it’s worth mentioning here that like any other freedom under Article 19, the freedom of speech and expression is not absolute and is always subject to reasonable restrictions.
Trial by media vs right to fair trial
The term‘criminal trial’ generally means the examination of evidence by a court of competent jurisdiction in order to prove the guilt of an accused in connection with the commission of an offence. The fundamental principle of criminal jurisprudence in India is based on the theory that an accused is innocent until the guilt is proven beyond any reasonable doubt and an accused is entitled to fair trial.
In India, even an accused of any heinous crime cannot be denied his right to life and personal liberty except in accordance to the procedure established by law.
Through its Article 21, the Indian Constitution renders fair trial a part of life and personal liberty. Right to fair trial is an absolute right of every individual within the territorial limits of India vide Articles 14, 20, 21 and 22 of the Constitution. Needless to say that the right to fair trial is more important, as it is an absolute right guaranteed in Article 21 of the Constitution.
On the other hand, the freedom of speech and expression, as incorporated under Article 19 (1)(a), has been put under ‘reasonable restriction’ subject to Article 19 (2) of the Constitution. Thus, under the Constitution, one’s life with dignity is always given priority over one’s right to freedom of speech and expression.
Whenever a crime is reported, the procedure to be followed by investigating agencies during the investigation and by the courts during trial is provided in the Code of Criminal Procedure, 1973. A crime is considered as an offence against the society at large and as such, after inquiry by the investigating agency, the accused is produced before a court of competent jurisdiction for trial along with the evidence collected during the investigation.
Thereafter, the court proceeds with the trial of the case in the manner prescribed. The matter relating to the relevancy and admissibility of the evidence is provided in the Indian Evidence Act, 1872. During trial, the witnesses are examined and cross examined and if proven guilty beyond reasonable doubt, the accused is convicted of such offence and the court imposes the quantum of punishment as mandated under law.
On the contrary, trial by media means the impact of print and television coverage of a person’s reputation by creating widespread perception of the guilt regardless of any verdict by the court of law. The history of media trials dates back to the 20th Century in the case of Roscoe Conkling Arbuckle (1921), who was charged with the murder of a woman. Although he was eventually acquitted by the court, he had lost his job and suffered a huge blow to his reputation after being declared guilty by the media.
There is no judicial system in this world where the media is given the power to try cases. But there are quite a few infamous instances in India, where media took the liberty to mobilise public opinion even before a verdict is announced. The Jessica Lalmurder case, the Priyadarshini Mattoo rape and murder case, the Bijal Joshi rape case and the Aarushi Talwar murder case were among the trials that garnered a lot of public attention, due to widespread media coverage.
News reporting has undergone tremendous change since the advent of broadcast journalism and online media. From a time when Doordarshan was regarded as one of the only credible sources of news and entertainment, viewers are now spoilt for choice when it comes to news outlets in print, television and the web. And while the competition among these contemporaries kept increasing, the quality of neutral and fact-based reportage took a beating.
The urge to put every detail of a case under trial, verified or otherwise, out there first meant that common people were sometimes served what can be described as ‘half-baked news’. Of late, media has been found to unnecessarily ‘sensationalise’ stories that, in extreme cases, can manipulate perspectives and cause irreparable damage to a person’s life and career.
The recent incident of Bollywood actor Sushant Singh Rajput’s death in 2020 is a glaring example of how irresponsible news reporting can blow things out of proportions. In a bid to cover the developing story, news outlets published interviews with the deceased’s friends and relatives, and even recorded comments from members of the legal fraternity, incriminating his alleged girlfriend, actress Rhea Chakraborty, while the case was still under investigation and the charge sheet was yet to be filed.
A similar tendency was felt when superstar Sridevi was found dead in a hotel in Dubai and media associated her husband, film producer Boney Kapoor, with the untimely death of the actress.
That said, the effective role played by media in awakening and uniting the nation during the Nirbhaya case cannot be overlooked. It was commendable and managed to set a positive example. The strong stand taken by media triggered one of the nation’s biggest people’s movements in recent times, demanding the government to pay attention and take effective action. This also resulted in the amendment of the criminal law in 2013.
Although media acts as a watchdog ofsociety, trials by media have often led to wrong portrayal of the alleged accused and have damaged their professional life merely for the fact that they were accused, even though they have not been convicted in the court of law. In some cases, media has been found to potentially influence the mind of the judges, pressurising lawyers not to take up a particular case where media has already declared certain individual guilty.
For instance, in the Jessica Lal murder case, when criminal lawyer and senior advocate Ram Jethmalani had defended accused Manu Sharma, one of the senior editor of a TV news channel stated it to be a “defence of the indefensible”, thereby, declaring that the accused was already guilty of the crime he had not yet been proven of.
The effect of media trial is such that it clearly encroaches upon the right of the alleged accused to have a fair trial as well as his/her right to have a lawyer of his/her choice.
In the past decade or so, we have witnessed rapid growth of media influence in the process of access to justice in a number of cases relating to murder, rape, corruption, sexual harassment and terrorist activities. While reporting such cases, the media overlooks the cardinal principle that governs the criminal jurisprudence in India which is “guilty beyond reasonable doubt” and “innocent until proven guilty”.
In order to attract more readership or to gain more TRP, media sometimes end up maligning and tarnishing the image of the suspects and label them as guilty even before them being convicted. Thus, trial by media is the antithesis to the rule of law, which can only lead to miscarriage of justice. It is improper to publish interviews with the suspect or with any potential witness, because it may not only cause prejudice to the trial but also amount to interference with the administration of justice.
Such is the power of forming opinion by media that Napoleon Bonaparte once said, “Four hostile newspapers are more to be feared than a thousand bayonets”. While speaking about the importance of media in modern times, the Supreme Court of India in the Indian Express Newspapers (P) Ltd. Vs Union of India case had observed that:
“In today’s free world, freedom of the press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”
The above statement of the Supreme Court clearly illustrates that freedom of the press is essential for proper functioning of the democratic process. This explains the constitutional views of the freedom of the press in India. With the increased role and importance attached to media, the need for its accountability and professionalism in reporting has gained more relevance now than ever before.
In any civilised society, no freedom, however invaluable it might be, can be considered absolute, unlimited and unqualified. As the famous Spider-Man phrase goes, “with great power comes great responsibility”, the freedom of media must be required to be exercised within the permissible limits and with a great sense of responsibility. A free and healthy press is indispensable to the functioning of a democracy.
In a vibrant democratic set-up, there must be active participation of the people in all spheres and the media plays a significant role in enriching the masses with knowledge and information. The press was the source of information for citizens of Colonial India, which made them aware of the arbitrariness of the British Raj, which eventually led to the Independence of India.
Today, media also plays a significant rolein forming public opinionduring elections. But unfortunately, in present times, some newspapers and television channels have become the mouthpiece of some political parties and being used as means to gain political power or to fulfil some agenda by maligning some people or organisations.
It is high time that the media should restrain itself from getting into the shoes of the judiciary by conducting parallel media trials of sensational cases, and instead should regulate itself for the sake of democracy.
- Trial by Media: A Need to Regulate Freedom of Press by Mr. Justice G. S. Singhvi
- Freedom of Press & Media and its Role in a Democratic Country by Debabrata Roy
- Role of Media in Indian Democracy, by Vaibhav Chakraborty
- [Images from different sources. Heading image from- Youth Ki Awaz; Writer’s e-mail: firstname.lastname@example.org. This article is published in the Mahabahu‘s historical book 175 Years of media in Assam & Beyond]
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