Author : Vasundhara John Toppo, Student at NUSRL, Ranchi
Co-Author : Shivangi Priya, Student at NUSRL, Ranchi
The importance of freedom of press, as such exercise of freedom of speech and expression by the press, cannot be stressed enough, especially in the functioning of democracy wherein its presence ensures that the rule of law is upheld, people are aware of the socio-politico-economic facts and information, equipping them to make sound, rational decisions based on it.
In the initial days when the press made a slight shift from the role of presenter of facts and information, to investigative journalism, the move was applauded and the whistle blowing effect earned press influence for helping investigative agencies solve some key cases. However, in the recent times it has taken up the role of not just carrying forth its own investigation but also conducting a trial, declaring a person as culprit or not, essentially uprooting and usurping the function of judiciary. This is all mostly for purposes of TRP and sensationalisation and commercialisation of the news.
This, at times even leads to police encounters due to excessive pressure as was the scenario in Hyderabad rape case and culpritisation of the wrong person as in Arushi Talwar murder case. It also creates exceptional pressure on the judiciary and judges to conduct the trial of the accused in particular way and pronounce a certain type of judgment and sentence which essentially takes away the natural justice virtue of fair trial from the accused and thereafter ‘innocent until proven guilty’ has no practical application. In the presence of laws such as Press Council Act, 1078, is thus extremely essential that the legislature enacts an effective law to regulate the functioning of press, where the body is granted actual plenary powers.
At the end of three years of debates of the Constituent Assembly, a set of rights was evolved which transcended all national, cultural and social boundaries. The rights are virtually absolute, subject to certain exceptions based on grounds of sovereignty, territorial integrity, and security of the State etc.
The freedom of speech and expression enshrined in Article 19(1)(a), has been assumed to include freedom of press, press understood as an individual, with no special rights. In his address, PM Nehru expressly stated that he would rather take freedom of press with all the accompanying dangers and abuses than suppression or regulation of the press. It has thus been accorded the status of ‘the fourth pillar’ and ‘cornerstone’ of democracy and the importance of the freedom has been emphasized again and again by the Supreme Court itself and violation of freedom of press has been held to be a ground for annulling legislative and administrative actions and that the curtailment, as is the curtailment of freedom of speech and expression, would threaten the core and foundation of the nation.
The primary function of the press, as per SC is to provide a comprehensive and objective information regarding the political, social, economic and cultural aspects in the country so as to educate and mobilize the public for the specific roles entrusted. The freedom of press meant the public’s right to know but that cannot be tweaked with ‘sensationalism, entertainment and anxiety’. While carrying out investigative journalism, the press must make sure that the subject is of public importance for the reader to know and that any attempt is being made to hide the truth from the public, and no other.
EFFECT ON INVESTIGATION
Media not only sways the perception of the police effectiveness but also the investigation itself. The media houses seeking quick justice for the aggrieved tend to disregard the due process of law. In an attempt to gain viewers and to garner higher TRPs and social media following, press has indulged in sensational journalism and creation of the media industry and commercialization of fact finding, wherein the sensitive details of matters and cases are divulged to the public, resulting in abrogation of right to privacy of the victim as well as the accused and their families, raising questions on integrity and morals of the witnesses or the accused in question which influences the opinion of the general public creating rage among them and unfair denunciation of alleged accused, as explicitly happened in the Hyderabad rape case in December 2020, wherein the alleged assailant in police custody, were encountered by the police due to the public outrage created by the media. In the Aarushi Talwar murder case, it completely demolished the reputation of a dead girl and dramatically led to arrest of the father Rajesh Talwar who was later acquitted by court.
Sometimes media achieves triumph by identifying problems in investigation procedure like or do the needful investigation themselves in the form of sting operation where police investigation seemed inadequate as in Jessica Lal case. This practice of parallel investigation is however considered mischievous by the Supreme Court as it tends to hinder the course of justice.
Very often these media trials encompass sensational criminal cases of people in power. Police officers involved in these cases are intimidated by such people in high places and the constant media speculation. They are compelled by the media to reveal important information and sometimes they give in to this pressure to protect their reputation. Hence the Ministry of Home Affairs issued a list of guidelines which must be scrupulously adhered to by the State police while dealing with media. Although this is not an exhaustive list and the power to enact legislations in relation to the police falls within List II of Schedule VII of the constitution of India and hence the burden shift on the State. The 239th Law Commission of India’s report suggests that one of the reasons for delay in investigation before the trial is the hesitance of the police to proceed with the investigation against influential persons. Another reason is the pressure to not take any speedy action in cases involving people in power or an active member of the ruling party. Thus such investigative journalism creates departmental or public pressure on police officials which leads to exercises of complete impunity on investigations and police vigilantism such as encounter killings. Often encounters are claimed to be fake and their genuineness is a topic for constant debate. In Prakash Kadam and Etc v. Ramprasad Vishwanath Gupta the SC observed that fake encounters are cold blooded murder by people who have the authority to uphold the law and therefore if a fake encounter is proved against policemen in a trial, they must be given death sentence. The apex court in People’s Union for Civil Liberties v. State of Maharashtra, also laid down guidelines which must be followed during an encounter killing investigation by the police including maintenance of a case diary, registration of a FIR under section 157 of the CrPC and an independent investigation carried out by CID or police team of a different police station.
JUDICIARY AND MEDIA TRIALS
In light of recent instances relating to CBI inquiry in the Shushant Singh Rajput death case, actor Rhea Chakroborty had approached the Supreme Court over ‘unfair media trial’. Again, while hearing the Muzaffarpur shelter home case, wherein multiple women were allegedly raped and abused, the SC said that the press needs to ‘draw a line’ and strike balance as it could not allow media trial of cases. The victims have a right to fair trial, even in cases of crimes against women and thus the media cannot run “parallel trials” in matters that are sub-judice.
Our criminal justice system is based in the principle of “innocent until proven guilty”, which has completely been uprooted and twisted by the media and they now have indulged in passing premature judgments of guilt and innocence, determining which is the sole task of the judiciary, taking away the basic feature of fair trial from the justice system. The possibility of media influencing the outcome of the trails by the court, is a major threat. In the Parliamnet Attack case, the accused Md. Afzal incriminated himself during the course of the press conference called by the police after the attack, due to the negative portrayal of the accused and the shaping of public consciousness even before the case went to trail, while another accused, Md. Geelani was sentenced to death for alleged involvement, even though there was a glaring lack of evidence, although the conviction was later on reversed and the Delhi HC even called the prosecution absurd and tragic.
There is an urgent need to maintain the balance between the independence of judiciary which is a part of the basic structure of the constitution and the freedom of press, especially in the context of protection of individual rights. In the Anand Chinatamani case, the SC said that the right of newspapers to publish stories regarding any scam cannot be curtailed, even if it would affect the image of superior judiciary as it is the right of the newspapers to bring forth the truth before the public.
The legislature incorporated section 3 in the Contempt of Court Act, 1971, which granted the pre-trial publications immunity under section 3(2) after the Swatanter Kumar case where the SC imposed restriction on pre-trial media coverage, keeping in mind the dignity of the judiciary. During the Priyadarshani Matoo case in 2010, wherein media channels conducted a public poll to endorse their views in order to determine what justice should be. It even went to the extent of asking questions like, whether the public believed in the judiciary or does it need media to give it a push or intervene in matters.
Judges, howsoever dignified, are humans and prone to being swayed by the emotional undercurrents, public and political pressure, the personal attributes, biases, pressure from family and friends which clouds their judgment through paid and fake media in the digital age which tries to ensure that the will of the executive prevails and the decision is taken in a certain way. If somehow the judges escape these traps and make a decision based on facts, evidences and law, it may not be well received by the public due to media created perceptions and people may lose faith in judiciary.
Media cannot usurp judiciary or the police and sabotage the entire justice delivery system, opposed to the principles of rule of law in a constitutional democracy. This also makes the civil and political rights of individuals a pawn in the hands of media as this kind of journalism instigates mob lynching in high profile cases, creating communal tensions, or communalization of mob lynching, which happened in Palghar mob lyching case. When there is trial by media, in effect it is mob lynching without consequences, as it nearly moulds the outcome of the case, depleting all chances of fair trial and makes the trial devoid of principles of natural justice.
INEFFECTIVE LEGAL CONTROL
There is no effective law in India which can put a check on media and its practices and it becomes an exercise of self-control. Section 14 of the Press Council of India Act of 1978, the Act which seeks to preserve and protect the freedom of press and maintain the standards of journalism, only empowers the Press Council to admonish or censure the news agency or newspaper and does not have any jurisdiction over electronic media and thus can only give directions and nothing more. The Information Technology Act, 2005 also does not include any provision to control electronic media. However, the Press Council of India has established a set of norms to organize journalistic conduct, meant to ensure the accuracy and fairness of information without misleading and distorting facts. Criticism of the judiciary cannot be heedless as per the norms, It also has criminal contempt powers to restrict prejudicial media reports but that can only be exercised while the cases are pending and not in pre-trial stages. However, under Article 125 and 215 of the Constitution of India, the SC and the HC can still punish for its contempt, especially if the actions of media go against ‘free trial’.
It is thus extremely essential that the legislature enact and effectively implement a law on regulating press and all its forms, with a central regulatory authority in place which is given plenary powers to authoritatively control and punish the actions of press when needed. Presence and functioning of media is essential to ensure information disbursement and that the justice delivery mechanism remains well-functional, but anything beyond measure and beyond control is will only bend the weight of democracy, resulting in the collapse of the entire structure and induce anarchy. Therefore freedom of press cannot be absolute, even beyond Article 19(2) restrictions.
 Hon’ble Mr. J. G.S. Singhvi, Trial by Media: A Need to Regulate Freedom of Press, Bharati Law Review, Oct-Dec, 2002, pp. 1-10.
 Article 19(2) to 19(6) of The Constitution of India, 1950.
 Sansar Singh, Media Trial and The Freedom of Speech and Expression under Indian Constitution: A Study, International Journal of Information Movement, September 2016, vol. 1, Issue V, pp. 40-45.
 Romesh Thappar v. State of Madras, AIR 1950 SC 124.
 In Re: Vijay Kumar, (1996) 6 SCC 466, para 10.
 Kartongen Kemi Och Forvanltning AB v. State through CBI, 2004 (72) DRJ 693.
 State of Maharastra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.
 Supra note 3.
 Saibal v. B.K. Sen (AIR 1961 SC 633)
 200th Law Commission of India Report, Trial by Media: Free Speech v. Fair Trial under Criminal Procedure” Amendment to the Contempt of Court Act, 1971 , p. 15, 2006.
 Office memorandum, April 1, 2010, Ministry of Home Affairs, Government of India .
 239 Law Commission of India Report, Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities, p. 8 , 2012
 (2011) 6 SCC 189
 (2014) 10 SCC 635
 Press Trust of India, Media Trial Can’t be Allowed; Press Needs to Draw a Line: Top Court (September 11,2018), NDTV India News, available at https://www.ndtv.com/india-news/media-trial-cant-be-allowed-press-needs-to-draw-a-line-top-court-1915041, accessed on August 24, 2020.
 Devika Singh, Shashank Singh, Media Trial: Freedom of Speech VS. Fair Trial, IOSR Journal of Humanities And Social Science, May 2015, Vol. 20, Issue 5, pp. 88-94.
 Supra note 3.
 Anand Chintamani v. State of Maharastra, (2002) 2 Mah L J 14.
 Swatanter Kumar v. Indian Express, (2014) 1 HCC (Del) 572.
 Santosh Kumar Singh v. State through CBI, 2010 (9) SCC 747.
 Contemporary media trials on social media has an influence on how a judge decides a case: Justice Sikri (February 10, 2019), DNA, available at https://www.dnaindia.com/india/photo-gallery-contemporary-media-trials-on-social-media-has-an-influence-how-a-judge-decides-a-case-justice-sikri-2718374, accessed on August 26, 2020.
 Ajay Goswami v. Union of India, (2007) 1 SCC 143.
 K.G. Balakrishnan, The Constitution, The Media and The Courts, The Fourth K.S. Rajamony Memorial Public Law Lecture, Kerala, available at www.supremecourtofindia.nic.in/new_links/9%5B1%5D.8.08.rajamony.pdf, accessed on, August 25, 2020.
 Diva Rai, Constitutionality of Media Trials (June 29, 2002), iPleaders, available at https://blog.ipleaders.in/constitutionality-of-media-trials-and-landmark-cases/, accessed on August 25, 2020.