“Journalism in India: Once a profession, now a trade.”Dr. Babasaheb Ambedkar
Media and journalism are an integral part of any democratic nation and the presumption of it being considered synonymous with politics manifests the practice of each power-seeking political party needing its own media banner to thrive and survive. This practice is primarily essential for parties to mobilize votes and psychologically influence people. Media platforms, in pursuit of ‘TRP’, fail to be responsible messengers and instead indulge in unethical and biased coverage of issues and trials. This gives birth to innumerable conspiracy theories and therefore, does not present to us the unfettered truth and transparency, which is the essence of democracy. Therefore, a regulating/censoring mechanism, independent of the legislature, executive and judiciary are vital for truth and justice to prevail.
TRIAL BY MEDIA: A BOON OR BANE?
Trial by media is a phrase popularly used to describe the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt or innocence before a verdict in a court of law. The subject of ‘Trial by Media’ has been a topic of discussion for a long time. With the advent of social media platforms in addition to television media channels, the topic has garnered a lot of attention for its impactful and influential nature.
The argument propounded by people who support trial by media, consider it an inherent part of freedom of speech and expression and hence, an essential part of democracy itself. They opine that any effort to curb, censor or restrict the coverage, would lead to a violation of not only the rights guaranteed under Art. 19(1)but would also lead to the violation of democratic principles of right to freedom, thereby disrupting the fundamental structure of the Constitution.
The argument propounded by people who condemn trial by media and its illegitimate role in the administration of justice is that, despite media platforms being necessary for the system of checks and balances to remain intact, more often than not, because of political propaganda and misuse of social psychology, the boon of media trial falls into the hands of wrong people or even worse, into the hands of ignorant people, who fail to fulfill the principle of ‘Audi Alteram Partem’. Their opinions and ideology would have been formed solely based on what they see and hear on television and social media platforms. This is problematic because, if a person doesn’t get a free and fair trial, democratic principles and hence, the fundamental structure of the constitution would be violated. With the amount of publicity which any suspect or accused gets in the media exponentially rising, the media, as a medium for information, has been useful to lend our voice for justice by putting pressure on the government officials. The perfect example of this is the Sathankulam ‘Police Brutality’ Case. In such cases, the voice of the media has been useful to garner the attention of the government in order to initiate and administer a legal proceeding. In such cases, the media proves to be a functional medium.
There is a second scenario where a media trial offers to be a bane. Innocent people may be scrutinized for no reason or those who are guilty may end up with a higher sentence than what they deserved or at times, may not be given a trial. This not only taints the accused’s image, but fundamentally fails to administer justice. The 2008 Noida ‘Double Murder Case’ is the quintessential example of such a scenario where the Press Council of India was established to monitor the legitimacy of news published and to regulate content in order to prevent hindrance in the administration of justice. One contemporary example of this is the alleged ‘Boys Locker Room’ Casewhich is pending before the court of law, wherein, even though all the parties involved in the conversation were allegedly at fault, without having an investigation, social media platforms erupted, relying only on a screen recording even before an investigation was initiated and reports were released. The principle of ‘audi alteram partum was grossly violated, and the issue acted as a catalyst for sexist conflicts, diverting the attention away from the primary issue at hand i.e. normalization of rape culture.
Media trial often involves a presumption of guilt. This is against the nature of the judicial system in our country, which follows the adversarial system, wherein the accused is innocent until proven guilty. This often happens due to negligent/ignorant ‘performative activism’, which is essentially a consequence of a plethora of misinformation, proliferated with the intention of political manipulation, intellectual imperialism or ‘slacktivism’.
In Anil Kumar v. M/S I Sky B & Ors, it was held that:
“Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution. [Anukul Chandra Pradhan v. Union of India] It is essential for the maintenance of dignity of the courts and is one of the cardinal principles of the rule of law in a free democratic country that the criticism or even the reporting particularly, in sub judice matters must be subjected to checks and balances so as not to interfere with the administration of justice.”
ART 19(1) (A) AND MEDIA TRIAL
In a democratic country like ours, freedom of expression is an important right but such a right is not an absolute right. While it grants the freedom under Article 19(1)(a), it also permits the legislature to impose a reasonable restriction in the interests of various matters, one such restriction being for the fair administration of justice as protected by the Contempt of Courts Act, 1971. Art. 19(2) does not refer to ‘administration of justice’ but the interference of the administration of justice is referred to in the definition of ‘criminal contempt’ in Sec. 2 of the Contempt of Courts Act, 1971and in Sec. 3 thereof as amounting to contempt. Thus publications and articles which interfere or tend to interfere with the administration of justice amount to criminal contempt under the Act. If excessive publicity in the media about a suspect or an accused before trial prejudices a fair trial, by pressurizing/influencing the justices by characterizing the accused as a person who had indeed committed the crime, it tampers with the justice’s mind and may prevent fair administration of justice. Such publications, therefore, call for a proceeding against the publishers for contempt of court. Apart from that, the privacy rights of the accused might also be violated. Therefore, the concept of free and fair trial and right to livelihood as envisaged in Art.21 might be grossly violated. Even though the Law Commission’s 200th Report has given a detailed study on the shortcomings of media trial and has recommended a law to debar the media from reporting anything prejudicial to the rights of the accused in criminal cases from the time of the arrest to investigation and trial, no proper law has been implemented to strengthen the same.
In the name of institutional funding, many religious outfits and groups with vested interest invest in Mass Media, thereby having control over the narrative that is published. This is essentially the media losing its integrity by being bribed. A solution for this is to ban media entities that have any political affiliation. Media censorship should not only refer to the political agenda but must refer also to the sensitivity of the matter at hand. The country’s elite media channels displaying the images of Late Sushant Singh Rajput’s corpse without any disclaimer has disturbed a lot of people mentally. It also gave birth to a lot of conspiracy theories, without the backing of evidence. This is another field where television media and social media can be more sensitive and responsible for the content they publish. Another infamous example of the media being misused which cost the loss of lives is the coverage of The Taj Hotel Attack by journalists while a rescue operation was being carried out by the armed forces. All these events make media regulation, a necessity for peace and democracy to prevail.
The Media is nifty in bringing unsung and inhumane events to light. But once legal proceedings have been initiated, if the rendering of justice is going to happen in social media platforms by unqualified people and in the courts by qualified judges who have access to all the facts relevant to the case, there is bound to arise a lot of social instability and unrest if the conclusions arrived in both platforms are contradictory to each other. It will also question the sovereignty of the courts to which all citizens are subordinate. To avert this, transparency in courts to allow streaming of cases of national significance, will present to people the arguments, facts, evidence and judgements, with no bias.
In an era where everything is done for political propaganda, financial exploitation and lust of fame, media is unfortunately misused for manipulation. An undisputed fact remains that the success of any democracy lies in the scale of its participative nature. But if this participation was to predominantly consist of ill-informed people who rely on unreliable and unauthentic social media posts and biased and fixed ‘debates’, it will tend to hinder not only fair administration of justice but also fair democracy. Everything man creates based on his experiences and conviction is an Art and everything based on factual reasoning is Science. Journalism should be professional science, for if it is to be either an art or a commercial transaction or else, social order and pursuit of truth would become a distant dream. Media as many say is the fourth pillar of democracy, the pillar which holds together and monitors the executive, legislature and the judiciary. If the holding pillar falls or fails, democracy fails.
Rahul S. Kunzarkar, What is TRP and how it is calculated?, TIMES OF INDIA (June 8, 2003, 00:02AM), https://timesofindia.indiatimes.com/What-is-TRP-and-how-it-is-calculated/articleshow/11816.cms.
What is the Meaning of Audi Alteram Partem, AAPTAXLAW.COM, http://www.aaptaxlaw.com/Supreme-Court/Audi-alteram-partem-meaning-hear-the-other-side.html.
Arun Janardhanan, Explained: How Tamil Nadu Police’s brutal act of revenge claimed lives of a father and son, THE INDIAN EXPRESS, (July 4, 2020, 10:09 AM), https://indianexpress.com/article/explained/explained-tamil-nadu-police-custodial-torture-father-son-killed-thoothukudi-6479190/.
Nupur Talwar v. CBI, (2012) 11 S.C.C. 465 (India).
Nilashish Chaudhary, Boys Locker Room: Letter Petition before SC seeks Criminal Action, LIVE LAW,(May 05, 2020, 06:58 PM), https://www.livelaw.in/top-stories/bois-locker-room-letter-petition-before-sc-seeks-criminal-action-156262?infinitescroll=1.
Nicole Rogosky, The Issue of Performative Activism, VALLEY MAGAZINE,(June 11, 2020),http://www.valleymagazinepsu.com/the-issue-of-performative-activism/.
Syed Hussein Alatas, Intellectual Imperialism: Definition, Traits, and Problems, Vol.28 No.1 SOUTHEAST ASIAN J. OF SOCIAL SCIENCE 23, 23-45 (2000).
Slacktivism, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/dictionary/english/slacktivism.
Inspector Anil Kumar v. M/S. I Sky B, CS No. 323/13 in Delhi District Court (2016) p.42.
 INDIA CONST. art 21.
 Anukul Chandra Pradhan v. Union of India A.I.R. 1997 S.C. 2814 (India).
Law Commission Report No. 200- Trial by Media, Free Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971), 2006, LATEST LAWS, https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-200-trial-media-free-speech-vs-fair-trial-criminal-procedure-amendments-contempt-court-act-1971-2006/.
Tanishka Sodhi, Media most foul: How Sushant Singh Rajput’s death was turned into a spectacle, NEWS LAUNDRY (June 16, 2020, 05:15 PM), https://www.newslaundry.com/2020/06/16/media-most-foul-how-sushant-singh-rajputs-suicide-was-turned-into-a-spectacle.
T.G.Gokul, Covering Crises: Indian news channels and the Mumbai Terror Attacks, SAGE JOURNALS (December 08, 2011), https://journals.sagepub.com/doi/10.1177/1742766511427501.
Nakul Madhan, Media: Misinformation, Misuse and Manipulation, Ex Gratia Law Journal, (October 1, 2020), https://exgratialawjournal.in/journal/volume-1/vol1-issue2-oct2020/media-misinformation-misuse-and-manipulation-by-nakul-madhavan/.