Media Trial: Guilty Until Proven Innocent?

“Despite the significance of the print and electronic media in the present day, it is not only desirable but the least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial. Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution. It is essential for the maintenance of dignity of the courts and is one of the cardinal principles of the rule of law in a free democratic country, that the criticism or even the reporting particularly, in sub judice matters must be subjected to check and balances so as not to interfere with the administration of justice.” – Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1.

The recent death of an actor belonging to the Hindi-language film industry, known as Bollywood, sent shock waves through the country. The sudden death of the actor has brought the negative results of the trial by media to light. Some of the media outlets have dishonourably and openly declared a Bollywood actress to be guilty, profusely ignoring the principle of criminal law, which is the principle of presumption of innocence. The phrase ‘Trial by media’ gained popularity in the late 20th century and early 21st century for describing the impact of television and newspaper coverage on a person’s reputation by creating a popular perception of guilt regardless of any judgment in a court of law. Trial by media definitely interferes with the administration of justice and leads to undesirable results in the matters which are sub judice before the courts of law.

While drafting the Criminal Procedure Code (CrPC), 1973, the Authors had kept three considerations in mind, which were, an accused person should get a fair trial in accordance with the accepted principles of natural justice, every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to the society, and the procedure should, to the utmost extent possible, ensure a fair deal to the poorer sections of the society. The Criminal Procedure Code (CrPC), 1973, which came into force from 1st April, 1974, provides the machinery for the detection of crime, apprehension of suspected criminals, determination of the guilt or innocence of the suspected person, and the imposition of suitable punishment on the person found guilty. The principal object of criminal law is to protect the society by punishing the wrongdoers although no person should be punished without a fair trial. A person is presumed to be innocent until his/her guilt is proved beyond reasonable doubt in a trial before an impartial and competent court of law. It is very important, in the administration of justice, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

The media has often been called the handmaiden of justice, the watchdog of society, and the fourth pillar of democracy. It has a very significant role to play in a democratic society by making the society aware of the happenings of public interest, by acting as a tool for achieving justice, and by not making any conclusions whatsoever. A media advisory was released by the Press Council of India on 28th August, 2020, which stated: –

“The Council has noted with distress that coverage of the alleged suicide by film actor by many media outlets is in violation of the Norms of Journalistic Conduct, and therefore, advises Media to adhere to the Norms framed by the Press Council of India. The Media should not narrate the story in a manner so as to induce the general public to believe in the complicity of the person indicted. Publishing information based on gossip about the line of investigation by the official agencies on the crime committed is not desirable. It is not advisable to vigorously report crime related issues on a day to day basis and comment on the evidence without ascertaining the factual matrix. Such reporting brings undue pressure in the course of fair investigation and trial. The Media is advised to refrain from giving excessive publicity to the victim, witnesses, suspects, and accused as it will amount to invasion of their privacy rights, identification of witnesses by the Media needs to be avoided as it endangers them to come under pressure from the accused or his associates as well as Investigating agencies. The Media is advised not to conduct its own parallel trial or foretell the decision to avoid pressure during investigation and trial.”

Recently, Senior Advocates Kapil Sibal, Harish Salve, Dr Abhishek Manu Singhvi, and Aryama Sundaram discussed the problems of media trial in a virtual debate hosted by News X on the topic pros and cons of media trial as part of Ram Jethmalani Memorial Lecture. They made some strong observations and enunciated that media can make a hero turn into a villain in no time and the rule of noise has replaced the rule of law. It was also observed that media aberrations are getting bigger, with the efflux of time, and loss of faith in institutions reasons for the emergence of media as the court of public opinion.

According to the Norms of Journalistic Conduct of the Press Council of India, the fundamental objective of journalism is to serve the people with news, views, comments and information on matters of public interest in a fair, accurate, unbiased, sober and decent manner. To this end, the Press is expected to conduct itself in keeping with certain norms of professionalism, universally recognised. The norms, when applied with due discernment and adaptation to the varying circumstance of each case, will help the journalist to self-regulate his or her conduct. Norm 1 states accuracy and fairness in which the Press shall eschew publication of inaccurate, baseless, graceless, misleading or distorted material. All sides of the core issue or subject should be reported. Unjustified rumours and surmises should not be set forth as facts. Norm 26 (f) states that the reporter must not approach the matter or the issue under investigation, in a manner as though he were the prosecutor or counsel for the prosecution. The reporter’s approach should be fair, accurate and balanced. All facts properly checked up, both for and against the core issues, should be distinctly and separately stated, free from any one-sided inferences or unfair comments. The tone and tenor of the report and its language should be sober, decent and dignified, and not needlessly offensive, barbed, derisive or castigatory, particularly while commenting on the version of the person whose alleged activity or misconduct is being investigated. Nor should the investigative reporter conduct the proceedings and pronounce his verdict of guilt or innocence against the person whose alleged criminal acts and conduct were investigated, in a manner as if he were a court trying the accused. Norm 26 (g) states that in all proceedings including the investigation, presentation and publication of the report, the investigative journalist newspaper should be guided by the paramount principle of criminal jurisprudence, that a person is innocent unless the offence alleged against him is proved beyond doubt by independent, reliable evidence.

The Press Council of India, News Broadcaster’s Association, and News Broadcasting Standards Authority have a vital role to play by effectively implementing the norms of journalistic conduct and by issuing guidelines to restrain media from publishing or broadcasting any content that may jeopardize the administration of justice or put a person’s reputation in danger by creating a popular perception of guilt even before a decision is pronounced by a court of law. A Judge, in a court of law, has to guard himself against any pressure created by the media and he has to follow the rule of law. The purpose of the media is news reporting and not news making which has to be kept in mind by the media at all times while discharging its duties. The freedom of speech protected under Article 19 (1) (a) of the Constitution has to be carefully and cautiously used, so as to avoid interference with the administration of justice and leading to undesirable results in the matters sub judice before the courts. A trial by press, electronic media or public agitation is the very antithesis of the rule of law. It can well lead to miscarriage of justice. The media must always work to keep the people informed about the daily happenings and matters of public interest in a fair and accurate manner. It must never try to influence any investigation or matter which is sub judice so that administration of justice is not hindered. In the words of Justice K. G. Balakrishnan, Former Chief Justice of India: –

“The influential media agencies must promote the best practices for newsgathering and emphasise the importance of maintaining ethical standards for the coverage of judicial proceedings…In many cases, such as M.P. Lohia v. State of W.B. (2005) 2 SCC 686, the Supreme Court has warned the media against indulging in public trials when the matter is sub judice. In the absence of a prompt legislative intervention, the judiciary can take the lead in framing guidelines for reporting on sub-judice matters.”

Muneeb Rashid Malik is a student of law.