This Article has been authored by Aryan Bhat, a second-year law student at National Law University, Delhi.
This year in June, celebrated actor Sushant Singh Rajput was found hanging in his apartment, presumably having committed suicide. The news of his death led to many personalities being accused of having compelled him to take this extreme step and the news media speculating over many possibilities causing his death. In recent days, the media attention has particularly shifted towards Rhea Chakraborty, an actress. She has since then been subject to extreme media scrutiny and reporting, accusing her of having caused the deterioration of the deceased actor’s mental health, much of which is tantamount to her character assassination and also reflective of entrenched misogyny. The Press Council of India issued a statement to news channels to not run a “parallel trial” in the sensational case and not to give excessive publicity to the witnesses, suspects as well as victim as the same amounts to blatant violation of one’s right to publicity. On September 3, the Bombay High Court too passed an order urging the media to show restraint in the case and not to report the facts in a way that hampers the ongoing investigation by authorities.
Simultaneously, Mehul Chowksi, a businessman accused of money laundering in the infamous PNB Scam, moved Delhi High Court , asking for an injunction against the release of a Netflix documentary based upon him, Bad Boy Billionaires, on grounds that its release might interfere and prejudice the ongoing judicial trial against him and sought a pre-screening of the documentary, though the petition was dismissed by the High Court. These episodes call for a fresh discussion on how the fundamental rights of one’s freedom of speech and expression and one’s right to a fair trial and reputation often clash and have been found incompatible with each other on numerous occasions. Another businessman, Ramalinga Raju too challenged the same documentary on grounds that its release would damage his reputation and also prejudice the opinion of the people as well as the judiciary before a civil court in Hyderabad. The court, granted relief to the petitioner and passed an order of injunction against release of the impugned documentary.
This article sheds light on the potential of media trials and excessive publicity to harm one’s right to a free and fair trail by judiciary and reputation and argues in favour of a legislation or set of guidelines by the State to impose reasonable restrictions on the media reportage of sensational matters which is consistent with India’s constitutional jurisprudence.
Miscarriage of Justice by Media Reportage
Media is widely regarded as the Fourth Pillar of democracy and plays a vital role in spreading information among the masses and even shaping public opinion. The freedom of press, though not explicitly recognised as a fundamental right unlike First Amendment of the US Constitution, has been read as a part of the right to free speech and expression under article 19(1)(a) of the Constitution of India in Indian Express Newspapers v Union of India and Sakal Papers (P) Ltd v Union of India. The advent of information and broadcast technology has further increased the role and influence of media in ensuring a public which is well-informed and acting as a watchdog over the organs of the State. However, media houses have often indulged in excessive publicity of individuals and events and in acts of sensationalism which has interfered with the fair administration of justice and also in many cases, the inherent dignity, reputation and liberty of a person.
In the infamous Uma Khurrana case, the Delhi High Court took suo moto cognisance of a fake sting operation aired by a news channel which showed the accused, a school teacher forcing a student into prostitution. The sting operation led to the accused being almost lynched by a mob. However, it was later discovered that the student was not a really a school student but a budding journalist and that the whole operation was stage managed by a person who had monetary dispute with the accused. Action was taken against the news channel for having infringed upon Khurrana’s right to privacy and dignity.
In Sidhartha Vashisht v State(NCT of Delhi), the Supreme Court cautioned against the unrestrained and unregulated power of the media to publish statements which declares an accused guilty even before an order is passed by the court, which would impede the fairness of investigation and trial . The court also emphasized upon the need to exercise one’s right of freedom of speech and expression in a manner that does not interfere with the impartial administration of justice in any manner.
The concern also found mention by the Apex Court in Reliance Petrochemicals v Proprietors of Indian Express, where the petitioner wanted to make a public issue for its debentures. Writ petitions were, however filed challenging the legality of the consent obtained for its public issue. While the matter was pending before the Supreme Court, the petitioner also sought contempt proceedings for publications made by the Express Group of newspapers for grossly interfering with the judicial trial and that the threat of interference shall be prevented by an order of criminal contempt as well as injunction against any further publication in this regard.
The Court passed an order of injunction restraining the respondents from publishing any further article, report or editorial on the matter as the same was likely to subvert the petitioner’s right to a free and fair trial. In MP Lohia v State of West Bengal, the case involved a woman who had committed suicide at her parents’ house. The deceased’s family alleged her in-laws to have demanded dowry from her which caused her depression. The Supreme Court, while granting anticipatory bail to the appellants, decried the newspapers for having published articles supporting the allegations of the deceased’s family which were prejudicial to the trial and would interfere in the course of judicial proceedings.
The Law Commission of India, too had endorsed this position in its 200th report, and cited various precedents to highlight many forms of publications which are prejudicial to the trail of the suspect. These publications include commenting by media upon the past criminal history, character and the overall personality of the person. Any confessions/statements made by any suspect, witness, victim’s relatives are also likely to prejudice the facts of the case in the minds of the judge and the police even before the actual trial. Similarly, there have been instances of media commenting upon the merits of the case. While journalists are free to report facts, making statements which point towards the guilt or innocence of a person, publicly questioning the assertions of the eye witnesses and even premature publication and discussions of the evidence related to the case are all instances which substantially interfere with the impartial administration of justice.
It can thus, be safely said that Indian judiciary has time and again expressed concerns over the excessive publicity, reportage and the amount of speculation and conjectures by media in subjudice matters which usurps the functions of the criminal justice system by running an almost parallel investigation of its own in the name of “investigative journalism”.
The Lack of Regulatory Framework
The problem of media trials discussed above is further exacerbated by the lack of legal framework which governs India’s media industry and draws distinction between objective reporting and the sensational journalism which impinges upon one’s right to privacy, reputation and to a fair trial. Media in India is primarily self-governed by two major bodies- Press Council of India and the News Broadcasters Association.
These bodies can supervise the functioning of the media industry and receive complaints of any violation of journalistic ethics but suffer from many limitations. Press Council of India, for instance can only supervise the working of print media and not the electronic media, as per the provisions of the Press Council Act,1978. Also, it hasn’t been provided any penal powers to deal with any violation by any news agency, newspaper or journalist.
The News Broadcasters Association(NBA), adjudicates upon complaints filed against the news broadcasters and has devised a Code of Conduct for the broadcast media but the same too, is merely recommendatory and not binding upon the news channels. The NBA, is also like the Press Council of India incapable of enforcing this Code through any penal powers.
There is therefore, a need for more stringent regulations and safeguards so as to prevent the media from misusing its constitutional protection to negatively impact the free and fair administration of justice of a suspect and also to stain the reputation or undermine the dignity and liberty of the suspect. This is however, easier said than done, even though the same could be considered highly necessary in light of the present circumstances. In RK Anand v Delhi High Court, the Supreme Court while discussing the fallacies and omissions of a news channel conducting a sting operation on a subjudice matter, pointed out the ethical dilemma the media finds itself in between maintaining professionalism and securing its commercial interests. The Court stated that while commercial considerations often prevail over professionalism, any regulation of media would only do more harm than good and therefore, the norms to regulate the media shall come from within.
Last year, a PIL was filed to seek the constitution of an independent Broadcast Regulatory Authority in India to regulate the content broadcasted by news channels in the time of proliferation of fake news and hate speeches which has made them platforms to assassinate the dignity of an individual and/or religious and political organisations. The Supreme Court has sought the reply of the Centre on the matter.
Limitations on Press Freedom
The freedom of press has been recognised as a part of the fundamental right to freedom of speech and expression. It is also pertinent to note that media, as an industry enjoys no special privileges or right of freedom and expression but is on par with that of any other citizen of the country. Thus, the press cannot claim any special immunity of law, as per the ruling of Supreme Court in Harijai Singh v Vijay Kumar. The freedom of the press too, can be restrained on the grounds mentioned in Article 19(2) of the Constitution.
Defamation is one of such grounds on which any law can restrain the freedom of press. However, adequate safeguards also need to be installed to ensure that no frivolous lawsuits are filed by powerful litigants simply to curb factual reportage, as the threat of defamation lawsuits to silence dissent has become one of the most vehement criticisms of defamation as a legitimate restriction upon free speech. One way of ensuring this could be by incorporating a higher standard of proving defamation against the speaker, as was established in the famous case of New York Times and Co V Sullivan. Second ground could be the administration of justice. While administration of justice is not explicitly covered as one of the grounds, it can be said to be included under the heading of “Contempt of Court”, specially in light of section 3 of the Contempt of Court Act,1971 which treats the publication by media on proceedings pending before the court as criminal contempt.
Therefore, the Parliament is fully competent to bring about a law or establish an independent regulatory authority with an enforcement mechanism to govern the conduct of media in sensational cases which find enormous interest among the public on grounds of preserving the inherent reputation and dignity of the individual and also to respect the individual’s right to a fair trial. It shall be borne in mind that right to freedom of speech and expression and free and fair trial are two sacrosanct values of a democratic society and no criminal investigation shall cause either of them to be sacrificed.