Leashing the Watchdog
Sunlight is said to be the best of disinfectants, electric light, most dreaded goon. The Media is to provide sunlight, not become the dreaded goon. The demi-world of journalism is like the fun house of mirrors that one finds in carnivals. In one reflection you are too fat; in another you are absurdly thin; there you are, standing in front of these bizarre reflections, The difference is, however, that unlike the fun house of mirrors, the distortions of the media are rarely a joke, scarring the victim for life. The Supreme Court recognized freedom of press under the umbrella right of freedom of speech and expression as envisaged under Article 19(1) (a) but trial by press, electronic media is the very anthesis if the rule of law and leads to miscarriage of justice.
Nonetheless, this freedom comes with a rider that the exercise of this right comes with “special duties and responsibilities” and is subject to “the rights or reputations of others” which media has definitely failed to realize. While a media shackled by government regulations is unhealthy for democracy, the implications of continued unaccountability are even more damaging, saddled by money minting, high TRP'S & abominable content taking the form of media trials, paid news, interference in the administration of justice, infringing the right to privacy and other unsanctioned discourses. It's high time for media to follow a limiting and definitive role and the courts shall punish those who flagrantly disregard the laid down law.
In 2008, the group of terrorists which attacked Hotel Taj in which Indian as well as foreign nationals sending chills down the spine that was fully covered to the extent of streaming live the ground situation. After attack in one of press conference chief of Navy Staff bursted on media for creating cordon in security situation and also accused media for staking NSG commando life on risk by giving terrorist information of all possible route from which NSG were entering. In January when 2 Indian soldiers were badly mutilated and decapitated. While army still was investigating the situation media within 2 hours of incident reported that it was Pakistani soldiers who crossed LoC and killed both of them. Media kept high pressure on Army by aggressive coverage and sensitizing common viewers all over the world, hence not giving enough time to army for in depth investigation. The sensationalism led to the Indian Army‟s initial raid, which actually escalated tensions along the LoC. Media today is the entity that makes life easier, bridges the gap, fills all voids and makes communication at all levels extremely simple, remarkable and substantial but these small bits of swindle for sensationalising ,are these really "necessities"? „The fourth estate‟ is what journalists are designated as. That indeed leaves little for us to say to what extent the media is indispensable. Media plays a vital role in moulding the opinion of the society and it is capable of changing the whole viewpoint through which people perceive various events.
Media reporting fends essentiality and power in the type of work it does, should not be affected by any opinion, be very objective and cautious while exercising its immense power" No occasion should arise for an impression that the publicity attached to the matters like for e.g.,(the hawala transactions) has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of accused unless found guilty at the end of the trial. If there is excessive publicity in the media about a suspect or an accused before trial prejudices a fair trial or results in characterising him as a person who had indeed committed the crime, it amounts to undue interference with the administration of justice calling for proceedings for contempt of court against the media.
Interference in Administration of Justice: Publications Being Prejudicial!
A dowry death case registered against the husband who filed a number of documents contending to prove that his wife was schizophrenic, while issuing interim bail the court examined critically certain news items in the Calcutta magazine, calling them one-sided, the allegations of parents of deceased wife were solely published and it did not disclose about the documents filed by the husband, such articles published interfere with the course of administration of justice, court deprecated articles and cautioned the publisher ,editor and the journalist, such trial by media when the issue is sub-judice. Observations calculated to excite feelings of hostility towards any individual who is under a charge amount to contempt of court." 8Accused charged for forgery, The Star published articles that he had admitted an earlier conviction for forgery and that he had been sentenced to imprisonment, held that was "unquestionably calculated to produce the impression that, apart from the charges then under enquiry, he was a man of bad and dissolute character".A woman was arrested on a charge of abandoning her child and the publication in a newspaper that she was convicted of fraud on more than one occasion, was treated highly prejudicial.
Re: Publications commenting on the merits: This is indeed extreme form of trial by media where it usurps the function of court, right to cross-examine etc., the paper described a person who was accused for brothel-keeping that he was 'in the foul business' of 'purveying vice and managing street women'.An article was published in a magazine pending an appeal against conviction for murder expressing opinion on the merits of the case. The High court held that it amounts serious contempt of court because it is an interference into the court of justice
Re: Photograph: A man who was charged of causing serious injuries to his baby and the baby's mother. The caption was "Baby was blinded by Dad" amounted to serious reputational damage. "that juxtaposition of the photograph undoubtedly carried with it the risk that the accused, who had pleaded not guilty, might be regarded in a very unpleasant light by those who saw this particular photograph and headline. In a peck on the cheek given by the accused to the groom appeared as a mouth to mouth kiss accompanied by the headline cheats kiss, a complete prejudicial publication.
Re: Creating an atmosphere of pre-judice: Tried for murder by his wife, coroner inquest held in a school with live broadcasting, in the courtroom, a press table erected so close to the accused that he could not consult his lawyer without being overheard. The jurors subjected to constant publicity, conviction set aside by US SC.
Criticism of Witnesses: Truth is deterred if they become the object of public criticism. A publication that a witness was being paid in the national newspaper, the amount contingent upon the final outcome of the case was unlawful,any adverse comment upon a witness adds to the general reluctance of witnesses to appear in the court.Discrediting witnesses, articles published attacking them and even discredited their character, "the purpose of the publication is to imply that Cowen the witness should not be relied upon and whose conduct was to be condemned "causes prejudice to the mind of the juryman.
Publication of Evidence: Newspaper conducting its own private investigation and publishing the results before or during the trial is perhaps the most blatant example of 'trial by newspaper‟; they hinder the determination of facts by court. There is no guarantee that what is published is true, no opportunity to cross-examine or to have the evidence corroborated. There is no guarantee that the published facts shall be admitted at the trial, if it amounted to hearsay.
Publication of interviews with witnesses: Statements of witness not cross-examined, presents one-sided picture of the matter, only bare-facts are stated to satisfy public curiosity and even in-depth interviews create problems, can give inaccurate recollection of facts and out of obligation sticks to them while giving evidence. Payments to witnesses for their stories, such arrangements would amount to contempt as it seems to induce the witness to 'tailor' his evidence to ensure a more financially lucrative result.
There should be absence of disfavour or pressure. Judges are also human, forbearing how powerful is the power of unconscious, task of administering justice shouldn't be made difficult by irresponsible print, not to be torn from their moorings of impartiality by the undertone of extraneous influence. A prejudicial publication made for a person arrested, then right to freedom of speech and expression, must give way to right of the person to a fair trial to be conducted without any prejudice, any prejudicial publication in the press that cause substantial prejudice in the criminal proceedings irrespective of the decisionRespondent gave interview to the newspaper "Economic Times", when publication made on the internet anyone at a remote place in the country, at the stroke of a button may come across the statement and form opinion against the petitioner Such publication prejudicial to the suspect or accused, offends the principle of due process rights of a suspect or accused as applicable in criminal cases and as declared by Supreme Court.
"Just as one does not have the freedom to falsely shout 'fire' in a crowded theatre, one should not have the right to proclaim 'guilty' in the arena of public opinion, trampling the fair trial rights of the accused in the ensuing stampede.”While dealing with the Arushi Talwar‟s case Justice Dalbeer Bhandari observed “though what authority spoke to media is not admissible in court, but people believed it and the father become the most hated man in the world” infect prima facie criminal before the verdict. Media presents the case in such a manner to the public that if a judge passes an order against the “media verdict” ,he or she may appear either as corrupt or biased. Justice demands that people should be tried by courts of law and not be pilloried by the press.The magnitude of the coverage and the filter through which the media reports on litigation can create a "clear plaintiff bias in civil cases”. In India, more than newspapers, it is television that‟s often been accused of going overboard, hyping things and sometimes, being instrumental in media losing credibility. It feels as if the anchors tend to behave as prosecutors and judges and the heated debates (very often between the same people) resemble charged-up courtroom scenes.
U.S. Supreme court observed that judges are "subject to the same psychological reactions as laymen. It is difficult to remain oblivious to the pressures that the news media can bring to bear on them both directly and through the shaping of public opinion”.There is increased role of the media in today‟s globalized and tech-savvy world, “The hand that rules the press, the radio, the screen and the far spread magazine, rules the country”.As the media goes wild with speculation, the only code of conduct appears to be that all is fair in love, war and breaking news. The fate of victims and witnesses appears to be no better, perhaps worse. The publicity they are subject to makes it impossible for the identity of victims of crime and witnesses to be protected.Supreme Court explained that a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm.Public becoming accustomed to the regular spectacle of pseudo-trials in the media in the long run have nefarious consequences for the acceptance of the courts as the proper forum for settlement of disputes.
There is a whole nexus of the on screen (media) and off screen(politicians) stakeholders to whom the limelight shall be given and who deserves public attention according to the tariff decided by them, cash transferred from politicians to journalists, as exposed by P Sainath the news coverage packages in 2009 Maharashtra Assembly elections, candidates paid newspapers different rates for well-differentiated and streamlined packages of coverage, who didn't were blacked out, Newspapers across the state netted nearly 400 crores through editorial coverage sold to candidates during 2009 LokSabha and assembly elections, recorded editorial coverage in their official accounts submitted to Election commission, the new fangled cash transfer scheme. Almost 700 cases of paid media detected by Election Commission in 2014 Lok sabha elections, out of 3053 cases, commission issued notices on foul play in which 694 genuine of paid news. The Thakurta-Reddy report linked paid news and private treaties one in political and other of business and commerce, shocking breach of reader's trust fortifies argument in favour of framing a code of conduct, similarly in want of punitive mechanism to discipline media, should be shown their place in society, not allowed to run amok. The leaked telephonic conversations of Niira Radia ebullient influence peddler, phone lines tapped by IT department, telephone conversations of Radia with senior journalists, politicians, corporate houses, Radia attempted to use media persons to influence the decision to appoint A Raja, the kingpin in the controversial sale of 2G airwaves spectrum as telecom minister, exposed fatal nexus between journalists, lobbyists and industrialists tapes revealed mainstream media and senior journalists amenable and gullible to corporate pressure, credibility of media reached its nadir buttressed by paid news syndrome. A dangerous collapse of the elemental separation between media, politics and business
Court can deny access of public and publication of proceeding on the primary function of the judiciary to do justice between the parties who brought the causes ,media is refrained from publishing evidence and proceedings in such cases, to affirm the private interest of the litigants. The Constitution Bench, in Sahara case, desisted media reporting on sub judice matters, the case arose from unsolicited publicity given by a TV channel to private communication between the appellant and the respondent while the case going on in Supreme Court, held that the postponement of reporting for a short duration under reasonableness of Art 19(2).
Right to privacy and Sting Operations
Overhype and aggressive coverage is the new phenomenon of selling news these days as it increases Target Rating Point (TRP) giving more business to media houses. Every news story resembles a Tehelka like expose- corruption, sex and violence and there is always a doctored videotape. While all other critical issues are left out which indeed might necessitate more significant spotlight, such actions pierce the thin line between privacy and genuine media reporting destroying the very essence of The Media.Public interest, justifying publications and inquiries into a matter within the preserve of personal privacy must be legitimate public interest and not a prurient or morbid curiosity, public interest is not synonymous within the public interest if no public purpose is being served, publicity brings social opprobrium, shame and embarrassment of the concerned to the family, friends and community the targeted belongs.
Kerala newspapers guilty of transgressing the ethical norms of journalism and guidelines issued, published name and photographs of three missing girls, pointing that certain vulnerable categories require certain added protection like women and children, rape, molestation, sexual abuse are cases names, photographs, sordid details leading to identity shouldn't be published to those unconcerned.A juvenile court imposed fine of Rs.10,000 each on 2 prominent TV channels, NDTV and Zee TV and a national English Daily-Times Of India for contravening section 21 of JJ Act,2000 revealing identity of a minor boy involved in an obscene MMS scandal case, held that no labelling of children who are in conflict with the lawRight to privacy requires that state or any media source which would form the former's part not to make public any private information about an individual which would violate her privacy.Approval of Stings not acceptable principle of law enforcement, a crime does not stand obliterated merely because it's commission is to be claimed in public interest, abhorrers to criminal jurisprudence, this was allegedly done by the son of CM of Chhattisgarh, receipt of bribe by the then Union Minister of State for Forest and EnvironmentA citizen has a right to safeguard the privacy of his own, his family, marriage procreation, motherhood, child bearing and education among other matters, none can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical, if he does he would be violating the right to privacy of the person concerned and would be liable for an action on damages. Right to life and personal liberty includes right to privacy which includes telephonic conversation privacy of home, office, consequently telephone tapping by any authority of any type is violative of Art 21
Balancing Right of Free speech and Due Process of Law
"With great power comes great responsibility" , therefore balancing right of free speech and due process of law, it was held that before placing criticism of a judgment in public, all concerned in its publication have to see whether any such criticism has crossed limits of fair criticism, right to freedom of media has to be exercised responsibly and any publication bringing disrepute, such proclivity of sensationalism is to be curbed. Media has to refrain from using scurrilous aspersions on or impute improper motives or make personal allegations of lack of integrity and ability of a judge or the accused, the scrutiny of public documents of the court have to be dignified without attributing motives.The freedom is not to be misunderstood to be a press free to disregard its duty to be responsible, the protection given should be thrown away for wrong-doings, if a publication is improper, mischievously, false, illegal and abuses it's liberty it is punishable by court of law.Freedom of expression cannot be equated with a licence to make unfounded and irresponsible allegations against the judiciary
The basic problem that arises of the scandalizing cases, disgruntled litigants attacking newspapers is the unverified market place gossips, the language used in the stories expresses frustrations of the author, they indicate coloured flare of language which origins from an injured state of mind and unhealthy expression of personal sense of animosity In the wake of the great controversy surrounded by the appointment of CJI, The Times Of India carried a news item in which a group of Bombay Lawyers accused the judges who had decided the Habeas Corpus case during the emergency of behaving in a cowardly manner. Chief Justice Beg explained and defended the judgment in that case and took the view that the newspaper should be held of guilty of contempt.
In freedom of speech versus due process if law measures which are necessary for the due process of the law to take precedence over freedom of speech, integrity of the administration of criminal justice is fundamental. When a conflict arises between fair trial and freedom of speech, the former prevails because the compromise of fair trial for a particular accused will cause them permanent harm whereas the inhibition of media freedom ends with the conclusion of legal proceedings.Distasteful speech, even outside the restrictions imposed under art 19(2) must be avoided unless required in public interest, there is no compulsion to indulge in any distasteful expression by media which may not be even prohibited by law, this is necessary in a pluralistic society divided into segments on myriad factors, the sphere of it is outside the ambit of art 19(2) and keeping in view the greater impact of dissemination from this mode
The Law Commission Reports
At present under section 3(2)77 of the Contempt of Courts Act, 1971 read with the explanation there under, gives full immunity to publications even if they prejudicially interfere with the course of justice in a criminal case, if by the date of publication, a charge sheet, or challan is not filed or if summons or warrant are not issued. Such publications would be contempt only if a criminal proceeding is pending.
The dispute regarding when the case is said to be „pending‟ had caused a lot of controversy. There report stated that Indian Supreme Court holds publication, prejudicial after „arrest‟ as criminal contempt. It was settled in A.K. Gopalan wherein the Supreme Court stated that it is from the point of arrest that contempt arises. This report also agrees with this decision. India is signatory to the Madrid Principles on the Relationship between the Media and Judicial independence 1994 wherein the basic principle stated was that though it is the function and right of the media together to convey information to the public and to comment on the administration of justice including cases before during and after trial, it should be done without violating the principle of presumption of innocence. Therefore the yardstick is whether media reporting has violated the basic principle that an accused is presumed to be innocent till pronounced guilty by the court.
Conclusion and Suggestions- Leashing The Watchdog
“When your case is weak, take it to the media, instead of the courts” Sensationalism as is evident in the current scenario should be curbed lest it gives the impression of distortion of the course of justice, presumption of innocence of the accused until it is displaced on conviction at the end of the trial must be honoured and should remain unaffected, anything violative of this is unfair and against public interest. The media, in the current state of society has a significant role in the implementation of 'rule of law' and proper functioning of democracy for the health of the nation, this is the touchstone to indicate the true role of media and to test it's performance, "Eternal vigilance is the price of liberty, it is more so for preservation of democracy".Media has to while realising this propagate, motivate people of their participatory role in the governance of the nation, preserve public confidence in all institutions and not aggravate the existing tensions. Improper and intemperate attack by the media causes incalculable damage to every element of the society and the nation as a whole and individually.
Journalism and ethics stand apart, while journalists are distinctive facilitators for the democratic process , should function without hindrance but the temptation to print trivial stories which are salaciously presented, what is displayed is what 'public is interested in' rather than what is in 'public interest'Since right to comment on matters of public interest is recognised by law the journalist obviously owes an obligation to the public to have his facts right. Where the journalist himself makes an investigation, he must make sure that all his facts are accurate and true so that if challenged he would be able to prove the same.Any journalist can very well be presumed to know or to have reason to believe that the imputation published by him would harm the complainant's dignified life.
The media can be commended for starting a trend where the media plays an active role in bringing the accused to hook but lack of a properly defined system of law regulating the media has given way to increasing incidences of infraction of privacy to individuals and derailment of the true purpose of media in the society, We barely debate on international issues and Indian foreign policies, such as India‟s stand in Middle East and on Arab Spring, increasing violence in Syria, Indus river water conflict with Pakistan, China‟s dam on Brahmaputra River, current political churn in Pakistan and implication to India etc. “There tends to be fulsome coverage in the news media of the lifestyles of the fortunate, and little notice of the concerns of the less fortunate. The problem here does not, of course, originate in the media, for it is social division that feeds this bias in coverage.” While insinuations made by media should be given protection, the wrongful wielding of pen and power should be strongly and vehemently condemned.
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