Media trials relating to sensational cases have come to periodically dominate prime-time television news recently. The race for TRPs and the influence of political parties over the media are often blamed as causes. The negative impact of these media trials raises the question as to whether it is time to impose stricter restrictions regulating them. To answer this question, an understanding of the constitutional framework and existing legislative framework is paramount.
Legal framework and balancing of rights: Balancing of fundamental rights, on most occasions, involves tight-rope walking. On the present topic, multiple fundamental rights need to be balanced—the right to freedom of expression of the media, enshrined in Article 19(1)(a) of the Constitution, on the one hand with the right to privacy of the accused, witnesses and victims (which has been read into Article 21) and the right to free and fair trial of the accused, which is guaranteed by a conjoint reading of Articles 20-22, on the other. The former is subject to some reasonable restrictions including restrictions “in relation to contempt of court”. Such restrictions will have to be imposed only by legislative law.
The restrictions currently in force are a combination of self-regulation, in the form of Guidelines issued by the Press Council of India and some provisions under the Contempt of Courts Act (“CCA”) that implicitly deem a publication “which interferes with or tends to interfere with, or obstructs or tends to obstruct, the course of justice” in connection with a “pending” civil or criminal proceeding contemptuous. A criminal proceeding is “pending” in so far as the accused is concerned when the charge sheet or challan is filed or when a court issues a summons or a warrant; and in relation to any other person, when the court takes cognisance of the matter to which the proceedings relate.
Analysing the various fundamental rights and the provisions of the CCA, the Supreme Court, in the Media Guidelines case, has declared that “excessive prejudicial publicity leading to usurpation of functions of the court” would interfere with the administration of justice. The Supreme Court has also upheld the right of an affected person to file a writ petition seeking a “postponement order”, postponing the publication/broadcast in cases where there is “real and substantial risk of prejudice” to the trial process.
Shortcoming of the existing framework and suggested solution: The restrictions imposed by the CCA apply only to “pending” proceedings. This statutory provision was enacted without considering a prior finding of the Supreme Court in A K Gopalan v Noordeen (A K Gopalan) that the trigger point should be the arrest of an individual in relation to the case. The standard in England is similar to the test set out in A K Gopalan. The Law Commission of India, in its 200th Report, has suggested legislative amendments to bring the CCA in tune with the A K Gopalan test. This report, however, has not been acted upon.
The A K Gopalan trigger, though far preferable to the existing standard, is still inadequate considering the recent downward spiral in reporting standards on television. Perhaps a more appropriate test to adopt is the test of “imminent legal proceedings” that is applied in Australia and New Zealand. Such a standard would mean that media coverage would come under the scanner right from the time legal proceedings are imminent.
Such a standard is necessary because a media trial can impede the administration of justice in many ways. While the most popular argument against a media trial is the fact that it could have a psychological impact on the judge hearing the case, a possibly even more important facet is the impact on the investigation process itself. In many investigations, the truth comes out when hard questions are put to the witnesses/accused for the first time during the investigation.
However, where the witnesses/accused have a trial run before a news channel or are given an opportunity to analyse the various permutations and combinations and viewpoints provided by rival television channels, the person gets an idea about the trajectory of the investigation and prepares himself/herself accordingly. At the end of the day, justice suffers. The “imminent legal proceedings” standard would cover the entire investigation process, including investigation prior to arrest, whereas neither the present standard nor the A K Gopalan standard would cover it.
An equally important factor is the presumption of innocence until proven guilty and the court’s duty to protect this presumption. This role of the court can be best performed if the “imminent legal proceeding” standard is adopted. This would also provide legal recourse to a person whose right to privacy is trampled upon by the media prior to the commencement of legal proceedings. Conclusion: Restrictions placed on fundamental rights cannot be static and need to change with developments in society. The standard currently in place is reflective of society and the media in 1971, when the CCA was enacted.
The abject failure of television media to regulate itself has necessitated greater stringency in the restrictions on the freedom of the press. Continuance of legislative status quo on the issue of media trials will itself result in trampling of the rights of accused, witnesses and victims. (Anirudh Krishnan is co-author of Law of Reservation and Anti-Discrimination and chief editor of Justice R S Bachawat’s Law of Arbitration and Conciliation)
Anirudh Krishnan
Advocate, Madras High Court
(anirudh@aklawchambers.com)