Trial by media is a phrase that is often associated with the impact that media reporting of court cases – particularly criminal cases – has on public perceptions.
The media are often lauded for their positive role in drawing public attention and ire to an imminent miscarriage of justice.
Responding to the public interest in issues of injustice, the media often raise questions and mobilize support for just causes. At such times, the influence of the media is hailed as a victory for democracy in the country and the useful exercise of the right of free speech granted by India’s constitution.
However, there are questions about the limits on reporting of ongoing court proceedings. Where is the line to be drawn, if it should be drawn at all? When does the right of free speech impinge on the right to a fair trial by an accused? And is it in the interests of the public and society to put restrictions on the ability of the media to report court proceedings? These questions apply in civil cases and cases where the actions (or inactions) of authorities result in misuse of the law and oppression, as well as in criminal cases.
The Supreme Court of India recently heard arguments on these questions and has now reserved its verdict. The media have reported that the court intends to frame guidelines or principles on media reporting in relation to ongoing court proceedings.
The need for such guidelines is apparent in light of the acknowledged ability of the media to influence the perceptions of the public, judges being no exception.
It remains to be seen how such guidelines can be framed so that they do not infringe on the freedom of speech of the media, granted to all citizens under article 19 of the constitution, while remaining “reasonable”, as also required by the constitution.
Taking up the question of the powers of the media in 1959, in the case of Express Newspapers v Union of India, the Supreme Court stated that the freedom of the press is not unbridled. Like other freedoms, it can suffer reasonable restrictions.
To formulate a “reasonable” restriction, the need to report facts and bring to light cases of miscarriage of justice has to be balanced against the need to maintain fairness and impartiality in proceedings. As the 200th Report of the Law Commission of India said in 2006: “The basic issue is about balancing the freedom of speech and expression on the one hand and undue interference with administration of justice within the framework of the Contempt of Courts Act, 1971, as permitted by Article 19(2). That should be done without unduly restricting the rights of suspects/accused under Article 21 of the Constitution of India for a fair trial.”
Contempt of court
The Contempt of Courts Act, 1971, along with court pronouncements and constitutional provisions, spell out the law for the media. Section 2(c) of the act defines criminal contempt.
Most relevant to the media are the sections which state that there is no contempt of court where the person was unaware that the proceeding was pending (section 3); where the publishing is of a fair and accurate description of the proceeding (section 4); or where it amounts to fair criticism (section 5).
An aspect of media reporting that remains unaddressed by the present law is the undue influence that prejudicial media reporting, even of facts on record, may have on the proceedings.
In the 1974 case of Narain Das v Government of Madhya Pradesh and Ors, the court ruled that an unfavourable projection of one of the parties in a pending litigation merely affected the reputation of that party and did not amount to contempt. The law also clearly states that if a report is based only on facts, it cannot amount to contempt.
The need for some restraint in reporting court proceedings is clear. As stated in the 200th Report of the Law Commission of India: “Freedom of speech ought not to take precedence over the proper administration of justice, particularly in criminal trials where an individual’s liberty and/or reputation are at stake, and where the public have an interest in securing the conviction of persons guilty of serious crime.”
The Supreme Court’s task is to draw the thin line between prejudicial reporting, even of facts, and public access to information.
At the same time, the media need to self-regulate to ensure that reporting does not create a public attitude of hostility to one party and that it advances the cause of justice, rather than interfering with it.
Leoni Mahanta is an associate at Lall Lahiri & Salhotra, which is an IP boutique based in Gurgaon.
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