FREEDOM OF SPEECH: FUNDAMENTAL OR ABSOLUTE RIGHT? ANALYZING MEDIA TRIAL.

AKARSHANA S AND YAZHINI
Author:

Abstract:

The transformation of the world into a global-village has exponentially rocketed the need for a global communicative method that rooted the importance of media. Media, for the past two decades, has converted every individual’s idea into communication. It has been a powerful weapon towards a mass audience to address every happening around the world in a very short period of time. The invasion of media into each aspect of the world has presented numerous outcomes. One of the results that the invasion has formed in the subject of law and judiciary is the “Media Trial”. The growth of media has hit the sky by making itself the fourth pillar of democracy. Media trial describes the impact of various opinions the communicative methods have on the whole society in a judicial case even before or after the court trials. Media has made its presence inevitable in the judicial system and has reidentified itself as a ‘Public Court’ which leads to its interference in the court proceedings. In India, the principle of ‘innocent until proven guilty’ is followed, which is completely overlooked when the media conducts a separate trial themselves and forms a negative reputation over the accused, even before the start of the court proceedings. This prejudice the public and destroys the judicial concept of belief in innocent until proven. The total viewpoint of society’s opinion on an event can be moulded. Thus, media trial has become pivotal in this comprehensive world, which has a strain over its understanding. This article discusses the overall facet of the subject matter, the benefits and shortcomings of media involvement in the judiciary, along with the endowment of Freedom of Speech and Expression in various countries around the world, including India, and regulations regarding the constitutional grant to protect the Right to Privacy of the people involved.

Keywords: Journalism, Privacy, Judiciary, Contempt, Public Opinion.

Introduction:

The term “trial by media” is new-born; but the concept of media involvement in court trials goes way back. The popularity of print media in the 20th century made the idea of media trial an absolute notion. However, the United States of America has faced a few cases involving the subject. The famous O.J. Simpson case (1995) clearly established the pull that the media has over court cases. The infamous People of the State of California v. Orenthal James Simpson

was considered as the ‘trial of the century’ due to its massive media coverage. This double murder trial was watched by around 135 million people in the CNN coverage. In India, the Jessica Lal case, Bijal Joshi rape case, Aarushi Talwar murder case, Sushant Singh Rajput death case are examples of famous cases for their mass media coverage and its involvement in the objective. The publicity of the case will be generally high compared to other cases if the people involved in the trial are famous or the case is very gruesome; sensationalism over the trial is very important.

A diminutive need for mass communication:

In a republic like India, finding loopholes out of a problem is very easy. Rich and influential people easily get away from the court trials. In such cases, the media plays an incredible role by exploring misdemeanours. As quoted by a lot of authors, media is the ‘eyes and ears of the general public’. It works as the watchdog of society and helps in presenting the criminal to the people. The Priyadarshini Matoo case is the best example. In the case of Santosh Kumar Singh v. State through CBI[1], the accused, Santosh Kumar Singh, who raped and murdered Priyadarshini Matoo was acquitted from charges by the trial court. It was very obvious at that time that the pieces of evidence provided were disrupted, which was because the accused was the son of the Inspector General of Delhi during the time of the crime. Later, in the year 2006, due to media’s pressure, the court was made to reopen the case. There was a landmark verdict reversal and the accused was sentenced to death by the High Court. Thus, the involvement of media has had a mixed bag of success and failures.

The blight of media trial:

In a country like India, where a considerable portion of the citizenry is illiterate or semi-literate and most of the population is rural, who get very few opportunities to know the affairs happening in and around the world, radio and TV plays a vital role in shaping and influencing the thinking and attitude of every individual towards a particular issue. In such case, considering the fact that the Indian criminal jurisprudence works based on the philosophy “innocent till proven guilty beyond any reasonable doubt”, the media over steps and breaks into the space of Judiciary, takes up law into their hands, influences the public at large, goes behind the settled position of criminal jurisprudence and brands a person ‘criminal’ even before the proceedings end in court. Hence, it has the tendency to influence citizens even before the

court has reached a verdict. Moreover, judges are also part of this citizenry, one of the greatest Judges of the Supreme Court of America, Cardozo[2], observed that “judges tend to get influenced subconsciously by several forces.” In such a situation, when a judge ends the verdict stating that ‘it will meet the ends of justice’, regrettably none of them would contain ingredients of justice but would be of pure injustice.

Investigative journalism:

One of the best examples that could be used to explain the overstepping of media into court cases is the Aruna Shanbaug case. The accused was charged with assault and was imprisoned for 7 years. The victim remained in a vegetative state for years and died in 2015. After her death, the media traced back the accused to his village of residence and it was made a breaking news due to which he lost his job and the whole livelihood; and, as the victim died because of the assault, the media pressurized the court that he had to be charged with murder and sent back to jail. The court denied stating that double jeopardy is not allowed in India.

When a person is convicted and sent to prison, only the right to adequate means of livelihood is being deprived and it is done in just. However, in the above-discussed case, the media had invaded the Right to Privacy of the convict along with his Right to Life and Liberty even after 35 years of his release. The restrain regarding this irresponsible journalism has to be implemented in the Penal Code against the media and prosecution should be conducted for defaming a rehabilitated offender by triggering the public. Media should realize that the Freedom of Speech and Expression is a fundamental right, not an absolute right.

Similarly, another case of media invading privacy was observed in the recent death of Sushant Singh Rajput. The Press Council of India slammed the media for its coverage of the whole case and conducting a parallel trial, which is a case of violation of the Journalistic Conduct Norms. The PCI said, “Media is advised not to conduct its own parallel trial foretell the decision to avoid pressure during investigation and trial.” The PCI also warned the media for inducing the public and invading the privacy of the people involved in the actor’s death. “The media is advised to refrain from giving excessive publicity to the victim, witnesses, suspects, and accused as it will amount to an invasion of their privacy rights. The reporting of the alleged

suicide by the actor by some of the newspapers are also in violation of the norms formulated by the council for reporting suicide”.

The grant of Freedom of Speech across the world:

· Freedom of Speech and the United States of America - Though the United States of America has written its Constitution like Canada and India, the United States prefers to give more protection to speech as an absolute right under their Constitution after when the Chief Justice, Charles Evans Hughes, in his common estimation, called the very commandment “the essence of censorship” and declared the law going against this rule as unconstitutional, along with which the incorporation of the first amendment freedom of the press into their due process clause of the fourteenth amendment was made, again which made it to be applicable to all the states. The Constitution of the US does not have any restrictions on the freedom of speech like in India. Even the ground ‘national security interest’ did not do the magic when President Richard Nixon’s Government pursued to avert the Washington Post and The New York Times from publishing a classified study on the history as to how the US was involved in Vietnam, for which the court held the actions of the Nixon’s Government unconstitutional.[3] Even prior restraints are wholly banned in the US approach. Yet again, the defence of ‘national security interest’ failed when the federal government obtained a preliminary injunction against the publication of an article, which had explained the process involved in the making of hydrogen bomb until a hearing for a permanent injunction could even be held, to which the court allowed the publication of the article.[4] The Court has even annulled a gag order given by the state trial Judge, which prevented the broadcasting or publishing of any admissions or confessions of any person related to the trial and also actualities that muscularly incriminate the party charged with a gruesome mass murder.[5] In exceptional settings, the courts might deviate from the doctrine of prior restraint. In Hazelwood School District v. Kuhlmeier[6],the Supreme Court of US upheld the decision of the Principal of Hazelwood School to remove certain controversial articles regarding teen pregnancy and divorce from the school’s magazine reasoning that it does not offend the amendment that guarantees freedom of the press as long as it is related to genuine pedagogical concerns; and, also, the Hon’ble Supreme Court has upheld a Colorado law that required anti-abortion activists to stay at least eight feet away from any person who enters or leaves the abortion medical facilities stating that the Colorado law applies on in the case where “pedestrian does not consent to the approach” and also eight feet away from the clinics is not in close proximity, so here the visitor to the clinic can feel free to exercise their right not to listen to the protestors.[7]

The contempt laws are, most of the time, considered dissenting with the power granted to freedom of speech under the US Constitution. In many stellar cases, the courts have aimed at neutralizing the effect of prejudicial publicity caused by media by changing the location, ordering de novo trial, and using other neutralizing devices to ensure justice for the parties.

· Freedom of Speech and English Courts - In England, the Parliament is the Supreme Power, the absence of a written Constitution gives a free pass to the parliament and courts to decide upon granting rights to the citizens. In this particular issue, both the parliament and courts have decided to take up protecting justice as their approach. Fair trials and public confidence gained by the courts have been considered as the right forum for settlement of conflicts as a part of the pure administration of the concept of justice under common law. Hence, heavy weightage has been given to justice rather than freedom of the press. However, after the judgment of ECHR in Sunday Times v. United Kingdom[8], in which Contempt Courts Act, 1981 was enacted to strike the balance between fair trial and free media rights. Under the said Act, the courts are empowered expressly to postpone publication of the annual report of the proceedings or any part of the proceedings for such period as the court thinks fit for avoiding a substantial risk of prejudice to the administration of justice in those proceedings.[9] The concept of strict liability contempt was incorporated[10]for which the ground is ‘publication of prejudicial material’. In other words, for an act to be considered as contempt of court, it should have interfered with or without the intention of the wrongdoer in the court proceedings while delivering justice to the citizens. The UK parliament has incorporated this particular section to make the media understand where they stand when it comes to reporting cases and, also, along with that, it has clearly rubbed balance among the two rights, viz., freedom of expression, and fair trial. In the case Home Office v. Harman[11], the counsel furnished the documents to the media, with a specific undertaking not to disclose the documents, which resulted in the Court to declare contempt to jeopardize the right of the accused to secure himself in a trial and also to the right to negotiate a settlement in confidence.[12]

The concept of postponement orders needs a clear mention in this issue, which not only safeguards fairness of the future or connected trials but also avoids contempt. This concept is put in use when the publication of any sort is published about the past trials or facts, which might further affect the upcoming trials in line.

· Freedom of Speech and Other Courts - The Continental courts give more preference to safeguarding one’s privacy, personal dignity, and presumption of innocence, which has been mandated for protection by Article 6(2) of the European Convention of Human Rights rather than a fair trial. Hence, media coverage is allowed to a level, with having other individual and societal concerns in mind.

The Australian contempt laws personify the notion of ‘sub judice contempt’, which is parallel to laws present in other countries that are correlated to the material publication that has the tendency to disturb the pending proceedings. The New Zealand Courts recognize ‘open justice principle’ but is not purely absolute in nature and is to be balanced with other principles to maintain public order and peace in society.

The Canadian Courts have always trusted in a more practical approach, the Court of Canada, in Dagenais v. Canadian Broadcasting Corporation[13], voiced out saying that right to free press can be curtailed in order to prevent serious risk and to do proper administration of the mighty justice when all the alternative measures, including the postponement of trial or change of location, which are considered as necessity tests, are exhausted and failed to prevent the risk and, also, the issue must be subjected to proportionality test among the right to free expression and right to a fair trial of the accused, and the courts strongly believed that it is the duty of the court to balance between two conflicting rights.[14]

Constitutional position of media involvement in India:

Our Indian Government follows the ideology “of the people, by the people and for the people”. Following this motto, freedoms and rights have been distributed with the consent of the government to everyone present in this democratic country; but at the same time, it is also notable that such consent is not only free consent but it is also grounded on adequate information, discussion and should be broadcasted in a way that it does not offend or shock a particular sector or jeopardize national security. Hence in that essence, Part III of the Indian Constitution was manufactured in a way that it strikes the balance between freedom of speech and expression guaranteed under Art. 19(1) and restrictions guaranteed under 19(2). So, this concept made it clear that even ‘open justice’ is not absolute.[15]

The print and broadcast media are given sole responsibility to help the public to know about the functioning of the nominated regime. This work in matters where the public has the right to know, guaranteed under our Constitution with respect to the Right to Information Act. In the case Romesh Thappar v. State of Madras[16], the court verified that even though explicitly Art.19(1)(a) does not address the very Freedom of the Press but freedom guaranteed under 19(1)(a) embraces press also. The journalists have also been given the right to attend the proceedings on behalf of the public in the courtrooms, including judicial as well as quasi-judicial proceedings, and publish fair reports with their own opinions.[17] Media, being the firm pillar among the four, has stepped in most of the circumstances where the breakdown of the Indian Governmental circuits has been witnessed by the public. Incidents like Nitish Katara murder, Priyadarshini Matoo case, Bijal Joshi rape, etc, can attest in support of the media. The Indian Courts can sometimes restrict the publicity of the court proceedings[18] in the name of public interest that includes revealing the identity of rape victims, which further attracts Section 228A of the Penal Code and juveniles.

When ‘prior restraint’ is considered, Indian courts have never mentioned explicitly that prior restraints are unconstitutional.[19] In the case of Reliance Petrochemicals Limited v. Proprietors of Indian Express Newspapers Bombay (P) Limited[20], the court chose to go by the doctrine of clear and present danger promulgated by Holmes J as the basis of a balance of convenience test to declare whether prior restraint, in this case prior injunction, should be lifted or not.

Freedom of Speech - interfering with the judiciary:

The freedom guaranteed to media under Article 19(1)(a) must be exhausted very prudently, so as to avoid interference in the administration of justice. In Sidhartha Vashisht v. State[21], the court specified that print and electronic media are obligated to make effort to guarantee that the line between media trial and informative media must be always sustained. It is imperative to note that media should stick with its duty to perform journalism, not to act as the court’s special agency.[22]

Sometimes the accused who gets acquitted becomes the victim as a result of the stunt pulled by media, even before the court reaches its verdict. It is very unfair that the media takes advantage of the right guaranteed to them under Art. 19 by means of maligning a person’s reputation by fashioning a widespread perception of guilt in the mind of viewers, regardless of the verdict delivered in a court of law. Presumption of the innocence of an accused before a verdict cannot be destroyed at a very threshold by the process of trial by media. It would further go against the rights guaranteed to a citizen under Article 21 of our Constitution.[23]Another modern prejudicial thing happening over media trial is when a person refuses to talk or reply within a reasonable time, the story mostly will be aired with the disclosure that the person refused to defend and, hence, the person is the culprit. Here, the media goes against the settled position as to the guaranteed right to remain silent as enumerated in the famous Nandini Sathpathy v. P.L.Dani.[24] Furthermore, every citizen under our Constitution has the right to have a fair trial enshrined under Articles 14, 19, 20, 21, and 22, which gets disrupted by the stunts performed, ultra vires, by the media.

The media’s interference with justice was stated by Justice Gopal Rao Ekkbote in the case of Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr,[25]“When a litigation is pending before a Court, no one shall comment on it in such a way that there is a real and substantial danger of prejudice to the trial of the action, as for instance by influence on the Judge, the witnesses or by prejudicing mankind in general against a party to the cause. Even if the person making the comment honestly believes it to be true, still it is a contempt of court if he prejudices the truth before it is ascertained in the proceedings. To this general rule of fair trial, one may add a further rule and that is that none shall, by misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a cause so as to force him to drop his complaint or defence. It is always regarded as of the first importance that the law that we have just stated should be maintained in its full integrity. But in so stating the law, we must bear in mind that there must appear to be ‘a real and substantial danger of prejudice’.”

Free press and contempt of court:

Even though media is one of the pillars of egalitarianism, any shot made to sabotage the other pillars must be held to be contempt, and, also, which attempts to bring down the court’s authority by interfering with the proceedings as stated by law is also called as contempt.[26] Under Article 19(2), the law of contempt is a ground for reasonable restriction. In both civil and criminal matters, which are sub judice in that status quo, interference of mass media by means of making inappropriate commentaries is considered as disruption of justice. This very stable position of commandment is exemplified in Section 3 of the Contempt of Courts Act, which has well-defined criminal contempt as the act, when done, would prejudice or interfere or incline to interfere with the course of judicial proceedings or thwart the administration of justice. When the issue is present before the Hon’ble Court, the court only has all the authority to try the case, calling all the witnesses and accused but the recent trend of media taking up law in its own hands and interfering in the process of administration of justice is bad in the eyes of law and causes contempt to court. Considering the fact that the reach of the media is very immense and a hefty number of populations have confidence in its reportage to be true, it is significant for the media to have a system of self-regulation.[27]

The publishing of interview with the potential witnesses as well as the accused is even considered as the contempt in R. v. Savundranayagan[28]. Even under Contempt of Courts Act, 1971, any publication that interferes with any judicial proceedings (civil or criminal) and the course of justice, which is pending before the court, constitutes as contempt of the court. Moreover, media trials in many cases have pressurized advocates not to take up certain cases favouring the accused as the media has already passed a verdict even before the court started in that particular issue, which leads to the withdrawal of the accused’s right to have an advocate.

Conclusion:

As discussed, the subject matter possesses both positive and negative effects. However, the downside of media power is relatively high. In order to curtail the adverse effects, certain guidelines can be implemented. The right to public trials is a needed weapon to a certain extent. Freehand regarding the grant of this right has to be minimized. The scope of this law has to be reduced to a limit where media is used to present only a certain amount of required news to the public and nothing more. The regulation would help the courts to do their work in peace. The disadvantages on the matter can only be rectified by regulating the freehand grant that the media has over the court cases. Besides, media should have moral control over the issue they bring forth to the society. The impact the media have over its spectators deserves only the truth. The entrusted reliance by the general public on media should be taken into consideration by implementing certain norms while reporting a crime. For example, there should be no invasion of the right to privacy unless there is an overseeing need of public interest, the accuracy of the news should be promised, news based on suspicion should not be published until verifying the factual accuracy, etc.

The power of media is being manipulated to serve a personal interest, which has to be regulated. On the bright side, a lot of unnoticed issues and heinous crime condemnation definitely requires the help of media but the media should not be allowed to deviate from their objective by usurping the functioning of the court. Thus, media being an unshakable power all over the world, it has to ensure that the deliverance of justice will not be disrupted. Therefore, the media’s outreach must be curtailed to an extent where it does not interfere with the state’s obligations.

[1] (2010) 9 SCC 47

[2] Nature of the Judicial Process; P.C. Sen in Re, AIR 1970 SC 1821; Reliance Petrochemicals Ltd. v. Proprietors of Indian Express, 1988 (4) SCC 592.

[3]New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822.

[4]United States v. Progressive, Inc., 467 F. Supp. 990 [W.D. Wis. 1979].

[5]Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.ct. 2792, 49 L. Ed. 2d 683 (1976).

[6]484 U.S. 260, 108 S.Ct. 562, 98 L.Ed. 2d 592 (1988).

[7]Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).

[8](1979) 2 EHRR 245.

[9]The Contempt of Courts Act, 1981, s. 4(2).

[10]The Contempt of Courts Act, 1981, s. 2.

[11](1983) 1 A.C. 280.

[12]Globe and Mail v. Canada (Procureur general), 2008 QCCA 2516.

[13](1994) 3 SCR 835.

[14] R. v. Mentuck, (2001) 3 SCR 442.

[15]Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

[16]1950 SCR 594.

[17]Saroj Iyer v. Maharashtra Medical (Council) of Indian Medicine, AIR 2002 Bom. 95.

[18]Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

[19]Brij Bhushan v. State of Delhi, MANU/SC/0007/1950.

[20]AIR 1989 SC 190.

[21] (2010) 6 SCC 1.

[22]R.K. Anand v. Delhi High Court, (2009) 8 SCC 106.

[23]Anukul Chandra Pradhan v. Union of India (1996) 6 SCC 354.

[24]1978 AIR 1025, 1978 SCR (3) 608.

[25] AIR 1975 AP 30

[26] Re P.C. Sen, 1968.

[27]Rajendra Sail v. M.P. High Court Bar Association, (2005) 6 SCC 109.

[28](1968) 3 All ER 439n