EVOLVING NOTIONS OF FREEDOM OF PRESS AND MEDIA TRIAL
On the occasion of Constitution Day, 2020, the Legal Aid Society, Campus Law Centre and Awaaz- The Blog organised an article writing competition for students of all disciplines across universities in India. This article won the first prize.
By Yashdeep Lakra
[Yashdeep Lakra is a student of B.A. LL.B. (Hons.) at University School of Law and Legal Studies, GGSIPU, New Delhi.]
History is brimming with examples of progress in society steered by people’s movements, for they function as the ‘wheels in running of a democratic nation’. The very essence of a democracy is the right to dissent and disagree, in order to facilitate its growth in a holistic manner. The role of the media in this regard is summarized succinctly in the words of the father of our nation, Mahatma Gandhi, “Freedom of the press is a precious privilege that no country can forego.” A society where the free flow of opinions and dialogue is curbed turns redundant. The role of the media in shaping public opinion is hidden to none and serves as a channel for the populace to perceive the incidents around them.
The dissemination of news to empower the masses is a function of multicultural democracies. It has been a tool for the advancement of democratic principles. Juggling between various avenues, a common person views the freedom of the press as a beacon of hope for the attainment of self-fulfillment and a tool for strengthening their capability to participate in decision-making. It is part of the right to freedom of speech and expression vested in them. The very foundation of a democracy is the will of the people, marking a fundamental divergence from the rule of a few. This democratic apparatus entitles its citizens to call on the authorities to air their grievances and the media serves as means of doing so. It mobilizes the masses to act as natural channels in upholding the democratic edifice. The publication of news is driven by various elements such as social, political, moral, environmental and religious, to name a few. Freedom of the press needs to be looked at as an emblem of individual and collective freedom indispensable to the exercise of personal liberty characteristic of a democracy.
Under Article 19(1)(a), the Constitution of India recognizes the right to freedom of speech and expression as intrinsic to the very existence of humankind and includes within its ambit the freedom of press. From this standpoint, it would not be wrong to say that the democratic maturity of a state may be perceived by the extent up to which the state facilitates or curbs the freedom of the press. A state levying unjust restraints on the dissemination of information is a grotesque mockery of fundamental values. It reveals itself as being an authoritarian state. Just like the executive, the legislature and the judiciary, the press or media is an important pillar of democracy, known as the ‘fourth pillar’, and has since then served as a corrective measure to fix the inherent flaws in the system.
In Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, the Hon’ble Supreme Court held:
“Freedom of 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.”
It is rightly said that with great power comes great responsibility. While it is crucial to mobilize the thinking process of millions of people, it is also imperative to be accountable and responsible to the same populace. Circulation of information which is prima facie unjust and palpably unfair, and prejudices the masses against someone defeats the purpose and makes a travesty of social and moral justice. Distortion of facts and manipulation for the sake of viewership tends to diminish the credibility of the media and faith reposed by people in it.
The origin of media trials can be traced to the advent of print media, cable television and radio networks, and has persisted ever since. Such mala fide practices result in the subversion of justice and chips away at the right to a fair trial guaranteed to every individual. Every person is presumed to be innocent until proven guilty. When, for the sake of sensationalization, the media interferes with the ideal of impartiality in justice delivery, it breaches the threshold and calls for the imposition of reasonable restrictions. It is a well-established postulate that sub judice matters ought not to be subjected to media trials as such coverage results in unfairly tilting public opinion and interferes with the administration of justice. No liberty can be left unbridled, none is allowed to exercise absolute powers and the same applies to the freedom of press. Hence, equilibrium needs to be established. In the contemporary world, we witness cases wherein the media passes its dictum even before the matter reaches the courts of law. While the death of Sushant Singh Rajput is still under investigation, the media has come up with several conspiracy theories and has also politicised the matter. This has led to growing apprehensions amongst the people of India. Moreover, the service of sensational conspiracy theories daily at dinner tables has led to the courts handing out an aide-memoire to the media houses on the determination of the ‘lakshman-rekha’. Such instances from time to time have prompted the Law Commission of India to finally address the question of “Trial by Media: Free Speech versus Fair Speech Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971)”, wherein it recommended the introduction of a law aimed at debarring the media from reporting anything which is prejudicial to the rights of the accused in criminal cases, right from the time of the arrest to the investigation phase and completion of the trial.
On the other hand, investigative journalism has also been successful in holding the state apparatus accountable by exposing the evident loopholes and thereby strengthening the judicial arm. Genuine scrutiny of judicial pronouncement bolsters the faith of the populace in democratic principles, and is a must for a healthy democracy. The media has played a pivotal role in the delivery of justice in matters where recourse seemed gloomy. The Nirbhaya,[i] Priyadarshini Mattoo[ii] and Jessica Lal[iii] cases constitute a few of the cases where the media fulfilled its mandate of being a responsible State organ and became the voice of the victims and the oppressed. However, the opposite happened in the Aarushi Talwar and KM Nanavati cases, and the importance of balanced reported cannot be overemphasised. In the words of Justice Learned Hand of the U.S. Supreme Court, “The hand that rules the press, the radio, the screen and the far-spread magazine, rules the country”. Therefore, the freedom of press and the concomitant responsibilities need to go hand-in-hand to prevent abuse.
The contempt jurisdiction of the courts appears to be a viable solution to address the arbitrary actions of the media resulting in scandalous and prejudicial media trials. However, the public is the ultimate judge, and the power vests in the public to ensure that this ‘fourth pillar’ of democracy stands tall and maintains its integrity. For any change in the legal system, its corollary social factors always play a significant role. Criminal liability is not against an individual, but society at large. The genuine interests of all sections of the society ought to be taken into consideration whilst pondering upon any advancement in the legal framework. The need has arisen to revisit the provisions on media trial and push for long-term solutions.
(The views and opinions expressed in this article are author’s own and do not necessarily reflect the official policy or position of the Legal Aid Society, Campus Law Centre, University of Delhi.)
[i] Dr. Tanushri Mukherjee, “Role of Social Media in Showcasing Women Atrocities: A Study on Jaipur Youth” 6 Amity Journal of Media & Communication Studies 32,34 (2016).
[ii] Monisha Gade, “Media- A Valuable Means to Justice” 2 Journal of Legal Studies and Research 93-95 (2019).