Media Trials Vs. Freedom of Speech and Expression

media trials vs freedom of speech and expression

Our freedom of speech and expression is derived from the constitution of India. Our right to voice our emotions, opinions, and other forms of expression in a free manner into the open space is what defines India as a democratic country. Mass media plays a major role in our lives on both how we express ourselves and how we influence ourselves.

This article briefly discusses the rights and responsibilities of media and its functioning as a fourth pillar in India’s democracy. A major part of this story highlights the free run of Media trials and how fatal it is to the freedom of speech and expression.
Further, a few quotes have been extracted from various judgments of the High Courts and the Supreme Court to bring a common intention of criticism for unwarranted media trials. Lastly, a recommendation on ways to proceed to strengthen the existing structure of the fourth pillar.

About freedom of speech and expression

‘Freedom’ may refer to as being impartial or having any absence of control or lack of inference from any authority sovereign or otherwise. However, no freedom can have a meaning when its totally independent. Therefore, certain ‘reasonable restrictions apply’ in every case.

The right of freedom of speech and expression is incorporated in Article 19 of the Universal Declaration of Human Rights, 1948, and Article 19 of the International Covenants on Civil and Political Rights 1976.

In India, Article 19 (1) (a) states that all citizens have the right to freedom of speech and expression in the Constitution of India. This includes their right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures, or any other mode. It, therefore, includes the expression of one’s idea through any communicable medium or visible representation, such as gestures, signs, and etc.

The Supreme Court of India has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities.

It, therefore, includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television.

However, as stated in Article 19(2) of the Constitution this freedom comes with ‘reasonable restrictions’ such as the in interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence cannot be protected with freedom of Speech and expression under Article 19(1)(a)

Media’s role in democracy

The words press and media has been used interchangably in this article. They have been basically meant to indicate the institutions who have the primary duty of collecting and distributing news and which includes independent journals.

Media as we know is an integral part of every democracy. It is the duty of the media to report on economic, political, social, and cultural aspects in an impartial manner without any state interference. It is a sine qua non of a healthy democracy.

Each of our provisions has been decided with great care and it was an intentional effort to not provide any express powers to the media through the Constitution. The people of India have the same powers as that of the biggest media houses in the country.

“The press is merely another way of stating an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. The editor of a press or the manager is all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression; and in my judgment therefore no special mention is necessary of the freedom of the press at all.”

Dr. B.R Ambedkar in Constituent Assembly

In Printers (Mysore) Ltd. v. CTO11 the Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy.

As regards the history of freedom of speech and expression though press/media, it is believed to be an inalienable right just like the right to live. It is a right that pre-exists the constitution and the legal system.

The first reference of media can be traced back to the Mughal era when rulers used to keep informants in the kingdom so that they are informed about the new developments, the grievance of the masses, and the expectations of the people.

This was, however, sort of an in-house circulation. Later in the British era, James Augustus Hickley in 1780 launched a weekly newspaper named “A Weekly Political and Commercial Paper open to All Parties but Influenced by None”. But due to its impartiality, it was shut down by the state in a short while.

With the passage of time, the media is playing a much larger role. Today’s media is no more only about true reporting but reporting first. Trials by media with angry anchors, political spokespersons, Bollywood celebrities, and a religious guru with a conspiracy theory, bumbling lawyers jumping into the debate box, there are thousands of media channels competing to break the news of who is guilty or innocent.

The more sensation that breaking news is…the more TRPs the channel gets and which directly affects the cash flow of the institution.

In the last 10 years itself, we as viewers have witnessed open media trials held by big channels declaring if a person is guilty or not even before the police have completed the investigation. That’s so to speak just the downside. We’ve also applauded the same channels for running a story over a thousand times and pressurizing the authorities to interfere and take constructive action.

Why is media coverage so important?

Press or media is the voice of the people of the country. Its important that the ruling government aligns its actions as per the mass opinion so that they can occupy their positions for a much longer period of time.

Here’s where the problem begins. If media reports can influence the voting choice and decide the fate of the political party, its salient feature ought to be independent and not inclined to any idealistic view as to left right or center.

“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.”

Pandit Jawaharlal Nehru

Transparent media reporting is a cornerstone of a healthy democracy. But this isn’t the case here in India. Often media trials are influenced by political funding and the rush to gain TRP. Running parallel trials with the court is the new norm.

Often the courts have to directly intervene and ban the media from specific coverage. In Devangana Kalita vs Delhi Police the court held that

”Selective disclosure of information calculated to sway the public opinion to believe that an accused is guilty of the alleged offence; to use electronic or other media to run a campaign to besmirch the reputation or credibility of the person concerned; and to make questionable claims of solving cases and apprehending the guilty while the investigations are at a nascent stage, would clearly be impermissible”.

The issue of Trial by Media was also dealt with by the Hon’ble Supreme Court in the case of R.K. Anand Vs. Delhi High Court, reported in 2009 (8) SCC 106, at page 198 when it observed and I quote as under:

“…… What is trial by media? The expression “trial by media” is defined to mean:
The impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny……”

Therefore, apart from the loosely held Contempt of courts Act,1971 India does not have legislation regarding media trials and fair coverage. A petitioner can move the court and the court may permit such applicants to “… seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial (including the identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the above-mentioned principles of necessity and proportionality and keeping in mind that such orders of postponement should be for a short duration and should be applied only in cases of a real and substantial risk of prejudice to the proper administration of justice or to the fairness of the trial”.

Who regulates press media?

The only pieces of legislation that ‘loosely’ hold the media to some extent are the Contempt of court Act, 1971, and the guidelines by the statutory authority regulating these media houses AKA Press Council of India(PCI) and the News Broadcasters Association(NBA).

PCI’s main functions under section 13 of the Press Council Act, 1978 specifically highlights the body’s mandate to 
(i) maintain high standards of public taste,
(ii) foster “a due sense of both the rights and responsibilities of citizenship” on part of newspapers, news agencies and journalists and
(iii) to “keep under review any development likely to restrict the supply and dissemination of news of public interest and importance”.

The norms of Journalistic Conduct framed by the council for self-regulation in reporting in the matter of “paramount national, social or individual interests” which calls for due restraint and caution in presenting any news, comment, or information that might jeopardize, endanger or harm these paramount interests. 

However, PCI issues only general guidelines and have limited powers to enforce them. News Broadcasters Association, on the other hand, is a private self-regulating body that takes care specifically of the broadcasters, television journalists, and news agencies. It has devised a Code of Ethics to regulate television content. The News Broadcasting Standards Authority (NBSA), a part of the News Broadcasters Association, is empowered to warn, admonish, censure, express disapproval, and fine the broadcaster a sum up to Rs. 1 lakh for violation of the Code.

Contempt of courts Act, 1971 however, states that Criminal Contempt under section 2(c) means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which

(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration
of justice in any other manner;

Therefore, any coverage by press or media that interferes with the judicial proceedings would amount to contempt and may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.

Trial by media interferes with trial by court

One of the ‘torch bearers of trial by media’ cases is the  Aarushi Talwar’s case or more famously known as the Noida double murder case (Nupur Talwar v. Central Bureau of Investigation and Another, AIR 2012 SC 1921). This particular case has seen not only trial but also conviction by media.

Today, ‘Media Studios’ have literally turned to be a courtroom for all purposes. They investigate the case, collect evidence, put witnesses on record, and even bring expert opinions to the screen and come to a conclusion. The same story is then published in all newspapers and websites seeking for a wide public opinion. This process is a lethal attack on any democracy. One would simply ask, What role is the media playing here?

In parallel trials by media the fundamental rights of the accused in a case pending before the courts are killed, and put to the grave. The ‘doctrine of innocence until proven guilty’ is openly flouted and the fundamental right of a fair trial to the accused is snatched away. It is pertinent that the media understands that one’s fundamental right should not be used as a tool to transgress upon those of others.

“The Fourth Estate does not seem to realize the irreparable damage inflicted on the victims of crimes and the alleged culprits and those close to them through the sensationalized journalistic adventures. Truth is very often surpassed, exaggerated or distorted to add flavour and spice to the stories. Trial by media can do more harm the good to the society at large

HC in State of Kerala v. Poothala Aboobacker

The way forward

India needs constructive reforms in press or media functioning, however, necessary measures should be taken so that their freedom of speech and expression are not curtailed. In other words, a legislative enactment replacing the Press Council of India Act or strengthening of the same act and strict measures for uncalled media trials that run parallel to the courts should be adopted and monitored. Political fundings or funding by any political party or a member thereof into any media agency also calls for intense debate.

A responsible media is the handmaiden of effective judicial

Nariman, Fali S., Are Impediments to Free Expression in the Interest
of Justice, CIJL Yearbook, Vol 4, 1995.

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