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CHAPTER 1

INTRODUCTION

ROLE OF MEDIA IN JUSTICE DELIVERY SYSTEM

Historically, the print media emerged in Europe as an organ of the people against

feudal oppression. At that time the established organs were all in the hands of the feudal

despotic authorities like the king and aristocrats. Hence the people had to create new organs

which could represent them. That is why the print media became known as the fourth estate.

In Europe and America it represented the voice of the future, as contrasted to the established

feudal organs which wanted to preserve the status quo. The media thus played an important

role in transforming feudal Europe to modern Europe. India is now passing through such a

transitional periodwhich was prevailed in Europe in 16 th to the 19 th centuries.

In the opinion of Justice Markandeyakatju, chairman of the press council of India is of

the view that the Indian media should be playing a role similar to the progressive role played

by the media in Europe during the transitional period in Europe. In other words, the Indianmedia should help our country get over the transition period and became a modern industrial

state. This it can do by attacking backward, feudal ideas and practices e.g. casteism,

communalism and superstitions and promoting modern scientific and rational ideas. 1

It is the duty of all patriotic people, including the media, to help our society get over

this transition period quickly and with less pain. The media has a very important role to play

in this transition period, as it deals with ideas, not commodities. So by its very nature the

media cannot be like an ordinary business.

If we study the history of Europe when it was passing through its transition period, i.e.

from the 16th to the 19th Centuries, we find that this was a terrible period in Europe, full of

turbulence, turmoil, revolutions, wars, chaos, social churning and intellectual ferment. It was

1 Justice Markandey Katju, (former Judge, Supreme Court of India), Chairman, Press Council of India), The RoleThe Media Should Be Playing In India

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only after passing through this fire that modern society emerged in Europe. India is presently

going through this fire.

Historically, the media were born as organs of the people against feudal oppression.

In Europe, they played a major role in transforming a feudal society into a modern one.

Everyone is aware of the role the print media played in preparing the people for, and during,

the American and French Revolutions, as also in Britain. The only medium at that time was

print, and writers such as Rousseau, Voltaire, Thomas Paine, Junius, and John Wilkes used it

in the fight against feudalism and despotism. We know about the stir created by Thomas

Paines pamphlet Common Sense during the American Revolution, and by Junius letters

during the reign of the despotic George III in England.

The media became powerful tools in the hands of the people at that time. They

could not express themselves through the established organs of power, which were in the

hands of feudal and despotic rulers. Hence the people had to create organs that would serve

them. In Europe and the U.S., the media represented the voice of the future, as against the

feudal or despotic organs that wanted to preserve the status quo in society. In the 20th

century, other types of media have emerged.

Big responsibility is casted upon Media in underdeveloped like India to fight

backward ideas such as casteism and communalism, and help the people in their struggle

against poverty and other social evils. Since a large section of the people is backward and

ignorant, it is all the more necessary that modern ideas should be brought to them and their

backwardness removed so that they become part of enlightened India. The media have a great

responsibility in this.

The media s the most powerful entity on earth. They have thepower to make the innocent guilty and to make the guilty innocent and

that s power. Because they control the minds of the masses - Malcolm X

It is common belief that the fourth estate of a democracy is a free

and independent Media. Medias purpose is clearly that of a mirror that reflects the state of

affairs in the nation. It shows us who we are, where we are currently and where we are

headed. It reveals and makes transparent the inner workings of the other three pillars of

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democracy namely the Judiciary, Legislature and the Executive. This fourth body i.e., media,

is considered more important these days, it plays an important role as an informative bridge

between governing bodies and general public, in absence of media general public cannot

know about what kind of bills and acts are passed in the parliament, and what are their

positive and negative effects in the society. If media person close their eyes the government

officials will do what they want, so media plays a very important and impartial role between

government activities and general public, so much so that it is said that the freedom of media

is the guarantee of success of republic government.

Media plays a crucial role in shaping a healthy democracy. It is the backbone of a

democracy. Media makes us aware of various social, political and economical activities

happening around the world. The media has undoubtedly evolved and become more active

over the years.

In a democratic society, people should know all their options if they are to govern

themselves, and the media is a vehicle for the dissemination of such information. The

assumption in some societies is that the press speaks for the people, thus the Freedom of

Speech and Freedom of the Press Acts in the United States and in many other countries. The

reason for Freedom of the Press is to ensure that democracy is able to function, so it is

important to understand that such legislation does not only protect the functions of the press.

With

press freedom we then know what the differing views in society are, opening the floor to

debate, and discussion, all of which are healthy functions of a democratic society.

With the emergence of the media as a powerful source of information and

education, its role in the dispensation of justice has also become significant. The Judiciary

and the media have rather become partners in the dispensation of justice as the media enjoys

the privilege to investigate crimes and to act as a catalyst in the process of dispensation of

justice while the judiciary is supposed to deliver justice. Winston Churchill attributed

Britains success in the revival of society after the World War II to the upright functioning of

the courts. The media and the judiciary are, in fact, two important pillars of the state, upon

which rests the edifice of the judicial system. The two therefore owe it to the society to

uphold and deliver justice.

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There is no doubt that media has a multidimensional role to play in the promotion of

societys values and virtues as well as in the dispensation of justice. It can be instrumental in

uncovering crime besides playing a key role in projecting a vision of order, justice, stability

and change. The media also has the role of digging out and exposing white collar crimes

that invariably have a direct bearing on the nations political and economic life. 2

The role of Media in highlighting certain cases becomes useful to the society. Though

we may call it as Trial by Media, it often quicker decisions. The need for such media

intervention is therefore necessary to ensure that the judicial system is not rendered more and

more inefficient due to lack of timely delivery of justice.

Trial by media is a phrase made popular in the late 20th century and early 21 st century

to describe the impact of television and newspaper coverage on a person's reputation by

creating a widespread perception of guilt regardless of any verdict in a court of law. In every

democratic country there is a heated debate between those who support a free press which is

largely uncensored and those who place a higher priority on an individual's right to privacy

and fair trial. 3

The media also play a major role in changing the mind of people. The view which is

published in media is reflected in the opinion of common people. A media can publicize the

decisions of a court both positively and negatively. Some restrictions are also imposed upon

these media with regard to publication of decisions. These aspects are discussed in more

details in the following chapters.

2 Syed Faseih Iqbal , President South Asian Editors Forum (SAEF)., The Role Of media in Dispensation of Justice 3 Trial By Media-The Jessica Lal Case , available at: http://ssrn.com/abstract=1003644

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CHAPTER 2

MEDIA AS THE FOURTH PILLAR OF THE

GOVERNMENT

Today, media is considered as the fourth pillar of the state all over the world; first and

foremost British Member of Parliament Lord Macaulay had given this status to the media. In

any republican government system, there must be three administrative bodies, 1-Parliament,

2-Administrative body, 3-Judiciary body. In the absence of any of these three bodies, the

government cannot run systematically, but now it is felt that one body more is necessary to bewith them, that is media. This body is considered more important these days, it plays an

important role as an informative bridge between governing bodies and general public, in

absence of media general public cannot know about what kind of bills and acts are passed in

the parliament, and what are their positive and negative effects in the society. If media person

close their eyes the government officials will do what they want, so media plays a very

important and impartial role between government activities and general public, so much so

that it is said that the freedom of media is the guarantee of success of republic government.

Media plays a crucial role in shaping a healthy democracy. It is the backbone of a

democracy. Media makes us aware of various social, political and economical activities

happening around the world. It is like a mirror, which shows us or strives to show us the bare

truth and harsh realities of life. The media also exposes loopholes in the democratic system,

which ultimately helps government in filling the vacuums of loopholes and making a system

more accountable, responsive and citizen-friendly. A democracy without media is like avehicle without wheels.

Unlike a Communist or Feudal system, where, media is mostly controlled by the state,

and thus, the general public gets to hear only what their government wants them to hear; in a

democracy, the media, apart from informing the public of the latest happenings in the

country, has the added responsibility of being independent of the state in obtaining the correct

data, and also being impartial while presenting it in public.

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highlighted the most important issue for the people of our country, and brought that latent

public discontent to medias attention, and through the media, to the attention of the political

class. The ruling political party is bearing the brunt of this discontent but this is a message for

all representatives that they need to be responsive to peoples concerns even in a non election

year. That the political class has resisted this movement as best as it could, shows the

culpability of the political class in corruption.

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CHAPTER 3

IMPORTANCE OF CASE DECISIONS AND

ROLE OF MEDIA

MEDIA INFLUENCES IN CAPITAL CASES

The media wields tremendous influence in our society. Newspapers, radio,

television, and new media not only spread information, but also help to determine what topics

and stories people talk about. Many crimes receive extensive media coverage, which provides

a challenge for prosecutors, as well as defendants and defense attorneys, when it comes to

trying a case. Juries are supposed to be unbiased when deciding a case, despite the news

coverage they may have come across before trial. Police officers involved in criminal cases

may become entangled with the media in the process of providing information about a case.

Media coverage of a trial, especially television cameras in the courtroom, can affect the

behavior of witnesses and jurors.

PRE - TRIAL PUBLICITY

Under the Sixth Amendment to the Constitution, every defendant is entitled to a trial

by an impartial jury of his or her peers. Due to extensive media coverage, jury selection in a

high profile case can be extremely difficult. Jurors will likely have developed some biases

about the case based on the media coverage to which they have been exposed. The

impartiality of potential jurors is assessed during voir dire, the process of selecting jurors

from the pool of potential jurors. Attorneys for the defense and the prosecution question

members of the jury pool about numerous issues, including their exposure to pre-trial

publicity and their ability to make impartial decisions and follow the judge's instructions.

Social science research has found that exposure to the various media had a prejudicial

impact on people, as they were unaware of their biases. (Ogloff & Vidmar, 1994) Even

potential jurors who say they have not been biased by exposure to publicity may in fact have

been prejudiced. Jurors who say they cannot set aside their bias in a case, or cannot follow a

judge's instructions, are eliminated "for cause." Other jurors can be eliminated by lawyers

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using "peremptory strikes" (or "peremptory challenges"), which allow each side to eliminate

a certain number of jurors without cause.

Capital cases, in particular, often attract extensive, emotionally charged coverage.

These cases also present greater difficulties than other cases because death-qualified jurors

may be more susceptible to pre-trial publicity than other jurors. According to a 2007 study,

participants who passed a simulated death-qualification process were more likely to

recognize the facts of a highly-publicized murder case, and were significantly more likely

than "excludable" jurors to think the defendant was guilty and that he should be sentenced to

death. Researchers found two likely causes for these findings. First, death-qualified

participants were more likely to watch daily news programs, making them more aware of the

facts in the case. Second, death-qualified jurors in other studies have shown pro-prosecution

beliefs, making them more inclined to find the defendant guilty. (Butler, 2007)

Research indicates that judges are also susceptible to media coverage when making

their rulings. A Stanford University study found press coverage magnifies the influence of

voters penal preferences on criminal sentencing decisions of elected judges for severe

violent crimes. (Lim, Snyder & Stromberg, 2010) When a case receives a large amount of

media coverage, elected judges tend to sentence more punitively than if the case is less

publicized.

Little research has been done to date on the possible effects of social media on court

cases. New media, such as blogs, facebook, or twitter, allow the public to share facts and

opinions about court cases. These websites, as well as search engines like Google, present

new challenges for defendants, attorneys, and judges. Information is more widely available

than ever before, and potential jurors who may not come across a case in traditional media

may be influenced by the reactions of others on social media sites.

JUDICIAL REMEDIES

The problems caused by pre-trial publicity can be addressed by the court in a

number of ways. Despite the biasing effect of pre-trial publicity, the Supreme Court has ruled

that courts cannot stop the press from publicizing truthful information about criminal trials, as

doing so would violate the First Amendment right to freedom of the press. Since pre-trial

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publicity cannot be prevented, courts must find ways to minimize its impact on the fairness of

the trial.

The court may postpone trial proceedings in order to allow time for the initial

publicity to dissipate. The judge can also modify jury instructions to specifically instruct

jurors to ignore pre-trial publicity. However, these approaches may not be effective in

eliminating juror bias.

If defense attorneys believe their client will be harmed by pre-trial publicity, they can

request a change of venue, which moves the trial away from the jurisdiction where the crime

occurred. Although the U.S. Constitution guarantees a trial in the district where the crime

took place, the defendant can waive this right by filing a change of venue motion. While thisstrategy can counteract exposure to local media coverage, it does little to reduce the impact of

national coverage. Moreover, change of venue motions are rarely granted, partly due to the

high cost of transporting and housing attorneys, witnesses, and court personnel. Additionally,

judges are hesitant to admit that a defendant can receive a fair trial only in another

jurisdiction, and they may not want to "frustrate the local community's legitimate interests in

resolving the case." (Minow & Cate, 1991) Statistics from the 1990s show that California

courts granted only about 10 change of venue motions per year. (Shahani, 2005) The

Supreme Court has held that, in certain cases, "only a change of venue [is] constitutionally

sufficient to assure the kind of impartial jury that is guaranteed by the Fourteenth

Amendment." (Groppi v. Wisconsin)

PROBLEMS IN PARTICULARLY HIGH-PROFILE CASES

A handful of cases receive such high attention that those involved in the case stand

to profit from books, movies, or television appearances. Such opportunities may createconflicts of interest and distort the ability of key players to perform their roles. As discussed

below, the possibility of fame and profit affected police officers and attorneys involved in the

Aileen Wuornos case. Similarly, Montgomery County, Maryland Police Chief Charles Moose

came under fire for announcing, after the two "DC snipers" (John Allen Muhammad and Lee

Malvo) were caught, that he was going to write a book on the crimes and sell the rights to his

life story to a major motion picture company. As this presented a conflict of interest, Chief

Moose ended up resigning to pursue his book and movie deals.

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CAMERAS IN THE COURTROOM

All trials in the United States are open to the public, but until recently, this meant

only those people who could attend in person. Television broadcasts and internet streaming

have greatly expanded the number of people who are able to watch a trial in progress, raising

questions about how such widespread public scrutiny might alter the court proceedings.

Cameras and media attention may cause a witness to testify differently because they fear

intimidation resulting from their exposure. For example, if a person witnessed a crime by a

gang member, the gang could retaliate against the witness for testifying if the witness'

identity were widely exposed to the public during trial. Jurors may be swayed knowing the

world will be scrutinizing them and their decision, whatever it may be. For example, after ahighly-publicized trial, aired entirely on television, a Florida jury acquitted Casey Anthony of

the murder of her two-year-old daughter. The jury was then widely criticized in the media

and online, leading the judge in the case to "seal" the names of jurors to protect their safety.

Such potential impacts raise serious concerns about whether a defendant will receive a fair

trial.

The Supreme Court of the United States has been divided on the issue of allowing cameras

into their own courtroom. Justice David Souter strongly opposed the idea, saying that

cameras would enter the courtroom over my dead body. However, the public is

overwhelmingly in favor of having cameras broadcast Supreme Court proceedings on a

network such as CSPAN, which already airs coverage of legislative deliberations. The

Justices who have sat on the Supreme Court for a long time, such as Justices Antonin Scalia,

Clarence Thomas, and Anthony Kennedy, oppose cameras because they fear cameras would

reshape the institution of the Court by turning the proceedings into entertainment. Newer

Justices like Justices Sonia Sotomayor, Elena Kagan, and Samuel Alito seem more open to

broadcasting the proceedings, believing it would provide more transparency and allow people

to see a lesser-known governmental function operating at a sophisticated level.

A very interesting phenomenon has emerged lately. As one scans the daily

newspapers, one comes across reports of many crimes which have been committed in the

city. Naturally, one looks into the article to gain information about the person(s) responsible

for this act.

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But is that information authentic? As is quite apparent from the Jessica Lal,

Priyadarshini Mattoo, Nitin Katara and Scarlett Keeling cases, the media has started playing a

very active role in investigation of the crime and the trial that follows it. It is desirable, some

might say, to have the media trailing the investigation of the police as it may lead to greater

transparency in the same. However, one must understand the power of the media and the

enormous effect the coverage has on the impressions and opinions of the people.

In some newspapers, it is even seen that the word alleged is conveniently dropped

and the suspect is freely referred to as the murderer, the accused or the criminal. The media

does not understand that a suspect is different from a person awaiting trial, and even more

different from a person who has been convicted in a trial. Through its sensational articles and

melodramatic language, it effectively distorts the truth and leads the people to believe what

has not yet been proven. Another aspect of the situation is the immense pressure that the

media puts on the executive to work. Indeed, this pressure is justified, since it jolts the

executive into action. But, such a pressure can also force the executive to mobilize itself into

any action, whether wrong or right, as long as they are able to show to the people and the

media that they are taking some action.

Perhaps, the lapses in the investigation of the police can be attributed to this pressure.

The role of the media is to report what is the truth; it is not to influence the authorities

responsible for discovering the truth and the authorities responsible for delivering justice. It is

not up to the media to decide what justice is, what should have been done, what must be done

or what according to them is the truth. The medias role is to inform the people what action

has been taken, by whom, and in what context. In a democracy like India, the media serves as

the factual ground on which one bases ones views and opinions to engage in a healthy

debate. If the facts themselves are tainted and distorted, then the entire structure becomes

precarious.

The jury must have the ability to determine a verdict based on evidence presented to

the court, in accordance with court rules and procedure. Sensational and biased media reports

need to be left completely out of the picture. Maintaining this aspect of our justice system is

essential for fair trials to take place.

It is not the role of the media to influence the outcome of court proceedings. It is simply their

role to report the outcome.

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So, here's what we should keep in mind when chief executives of media companies accuse

the legal and judicial fraternity of undue secrecy:

1. In principle there is no harm in televising opening addresses and sentencing. However, this

should always be subject to the court's discretion, case by case.

2. Real-time access to transcripts is an unreasonable and onerous expectation. The court

system cannot be expected to live-stream every word spoken in "real time". This is not only a

logistical nightmare, but would jeopardise confidentiality and the rules of evidence.

3. Suppression orders are used by judges to protect the rights of those involved in court

proceedings. The judge is the best person to know when these are required.

4. Television is a very intrusive medium, especially in a reality TV format. Live streaming of

evidence and court proceedings can dangerously affect the quality of evidence given to the

court.

Judges are not trying to gag and blindfold the media. The media is not their primary

concern. Protecting society and upholding people's rights is the focus.

THE ROLE OF MEDIA IN ENSURING THE JUSTICE REACHES THE

PEOPLE

Most criminal cases in India get decided after the victim and his relatives are dead and

gone. Even murder cases are often delayed beyond the life time of the immediate kith and kin

of the victim who would have been very keen in the beginning to see that the offender gets

punished. By the time justice is rendered, everybody would be aged enough to have shed the

initial enthusiasm and resign to fate. It is a great way of promoting philosophy that nothing is

in our hands and God sees the truth but waits, sometimes into your next birth.

If this is the fate of criminal cases, one can imagine the fate of Civil cases which

many times go beyond one generation into the next generation or two. If the Grandfather has

filed a property case, it gets settled in favour of the grandchildren. In the meantime the

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Grandfather and the Father would perhaps be reborn somewhere else and fulfilling their

karmic destiny.

All persons who are interested in Judiciary being respected must think on we can

improve the situation. The key to the answer lies in the Judiciary itself. It is the Judges who

grant adjournments without valid reasons who need to hold themselves responsible for the

delays in the Court. Advocates are perhaps doing their duty the clients though they are often

mistaken to be serving the Courts for rendering justice. It is like the Indian Cricket players

who owe allegiance to their Franchise owners more than the Country and their attitude is

understandable.

There is however no compulsion for a judge to grant needless adjournments knowing

fully well that every such adjournment is a pain to the other party. Some Judges may try to

compensate the victim through exemplary damages being given in their favour in the end.

But this is like letting an injury happen and then apply medicine rather than prevent the injury

itself.

Many times the procedures of Civil Procedure Code are blamed for the delay.

However, more than the procedure itself, it is the way it is implemented that causes a delay.

For example, CPC clearly says that no adjournments should be granted without valid reasonsand if adjournments are caused by reasons such as nonappearance of a party, the cost of the

adjournment should be borne by them. It would be interesting to see statistics if this provision

has ever been invoked.

Sometimes Courts admit petitions without examining them in detail and grant interim

stay on proceedings elsewhere. In such cases one judicial authority actually causes delay in

the delivery of justice by a lower judicial authority without even applying its mind. Even

when the Court to which an interim stay application is made is the appeal court which wouldnaturally hear the same case on appeal after the decision of the lower court, the Court

proceeds to admit a petition for stay and issue notices to the other party delaying the process

by 2 to 3 weeks. If the other party submits any reply, time is again given to the petitioner to

reply in the next hearing which may be after a few more weeks. Then there may be arguments

and counter arguments, with adjournments in between and the process gets delayed for nearly

a year before the Court may come to the decision that there was no case for admitting the

petition in the first place.

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It is in this context that the role of Media in highlighting certain cases becomes useful

to the society. Though we may call it as Trial by Media, it often quicker decisions. The

need for such media intervention is therefore necessary to ensure that the judicial system is

not rendered more and more inefficient due to lack of timely delivery of justice.

The need for such intervention is there not only in cases such as the 2G scam but also

in other cases where the victim does not have the resources to fight a long legal battle against

a powerful business entity. Such instances arise frequently in Cyber Crime cases involving

Banks where customers who have lost their funds through frauds in the Bank arising out of

the Banks negligence file cases agai nst the Bank. In the current context where all Banks use

electronic systems for account keeping, all such frauds come under the purview of

Information Technology Act (ITA 2000) (Current version often referred to as ITA 2008),which was designed to provide quick justice through a system of Adjudication and Cyber

Appellate Tribunal (CAT).

If the hands of such honest judicial officers are to be strengthened, there is a need for

media to become more conscious of the cases that are before the Cyber Judiciary.

Unfortunately, despite huge national interests involved, Cyber Crime cases of civil nature

does not attract media attention. Cases where there is pornography attracts media but cases

where a customer of a Bank has lost money due to Phishing does not appear to be as

sensational as the pornography case. Media is therefore losing an opportunity to observing,

reporting and catalyzing developments in the Adjudication Offices across the country and the

CAT. Many Journals send their reporters routinely to Court halls to find out what is going on.

But most of them have no idea of what is going on in Adjudication offices or the Cyber

Appellate Tribunal. If Media was more pro-active and had been reporting the developments

in the Adjudication offices and the Cyber Appellate Tribunal, by this time lot of awareness

would have been created in the public for these institutions.

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CHAPTER 4

TRIAL BY MEDIA

The subject of Trial by Media is discussed by civil rights activists, constitutional

lawyers, judges and academics almost everyday in recent times. With the coming into being

of the television and cable-channels, the amount of publicity which any crime or suspect or

accused gets in the media has reached alarming proportions. Innocents may be condemned

for no reason or those who are guilty may not get a fair trial or may get a higher sentence

after trial than they deserved. There appears to be very little restraint in the media in so far as

the administration of criminal justice is concerned.

We are aware that in a democratic country like ours, freedom of expression is an

important right but such aright is not absolute in as much as the Constitution itself, while it

grants the freedom under Article 19(1)(a), permitted the legislature to impose reasonable

restriction on the right, in the interests of various matters, one of which is the fair

administration of justice as protected by the Contempt of Courts Act, 1971.

If media exercises an unrestricted or rather unregulated freedom in publishinginformation about a criminal case and prejudices the mind of the public and those who are to

adjudicate on the guilt of the accused and if it projects a suspect or an accused as if he has

already been adjudged guilty well before the trial in court, there can be serious prejudice to

the accused. In fact, even if ultimately the person is acquitted after the due process in courts,

such an acquittal may not help the accused to rebuild his lost image in society.

If excessive publicity in the media about a suspect or an accused before trial prejudices a fair trial or results in characterizing him as a person who had indeed committedthe crime, it amounts to undue interference with the administration of justice, calling for

proceedings for contempt of court against the media. Other issues about the privacy rights ofindividuals or defendants may also arise. Public figures, with slender rights against defamation are more in danger and more vulnerable in the hands of the media. after the

judgment in R. Rajagopal v. State of Tamil Nadu 5

5 AIR 1995 SC 264 .

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The observations of Mr. Andrew Belsey in his article Journalism and Ethics, can they

co-exist6 quoted by the Delhi High Court in Mother Dairy Foods & Processing Ltd v. Zee

Telefilms 7 aptly describe the state of affairs of todays media. He says that journalism and

ethics stand apart. While journalists are distinctive facilitators for the democratic process to

function without hindrance the media has to follow the virtues of accuracy, honesty, truth,

objectivity, fairness, balanced reporting, respect or autonomy of ordinary people. These are

all part of the democratic process. But practical considerations, namely, pursuit of successful

career, promotion to be obtained, compulsion of meeting deadlines and satisfying Media

Managers by meeting growth targets, are recognized as factors for the temptation to print

trivial stories salaciously presented. In the temptation to sell stories, what is presented is

what public is interested in rather than what is in public interest.

Suspects and accused apart, even victims and witnesses suffer from excessive

publicity and invasion of their privacy rights. Police are presented in poor light by the media

and their morale too suffers. The day after the report of crime is published, media says

Police have no cue. Then, whatever gossip the media gathers about the line of investigation

by the official agencies, it gives such publicity in respect of the information that the person

who has indeed committed the crime, can move away to safer places. The pressure on the

police from media day by day builds up and reaches a stage where police feel compelled to

say something or the other in public to protect their reputation. Sometimes when, under such

pressure, police come forward with a story that they have nabbed a suspect and that he has

confessed, the Breaking News items start and few in the media appear to know that under

the law, confession to police is not admissible in a criminal trial. Once the confession is

published by both the police and the media, the suspects future is finished. When he retracts

from the confession before the Magistrate, the public imagine that the person is a liar. The

whole procedure of due process is thus getting distorted and confused.

In Anukul Chandra Pradhan vs. Union of India, 8 the Supreme Court observed that

No occasion should arise for an impression that the publicity attached to these matters (the

hawala transactions) has tended to dilute the emphasis on the essentials of a fair trial and the

6

published in Media Ethics : A Philosophical Approach, edited by Mathew Kieran7 IA 8185/2003 in Suit No. 1543/2003 dated 24.1.20058 1996(6) SCC 354

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basic principles of jurisprudence including the presumption of innocence of the accused

unless found guilty at the end of the trial

Subconscious effect on the judges

Another worrying factor and one of the major allegations upon media trial is

prejudicing the judges presiding over a particular case. The American view appears to be that

Jurors and Judges are not liable to be influenced by media publication, while the Anglo-

Saxon view is that Judges, at any rate may still be subconsciously (though not consciously)

influenced and members of the public may think that Judges are influenced by such

publications under such a situation. Therefore, Lord Denning stated in the Court of Appealthat Judges will not be influenced by the media publicity 9, a view which was not accepted in

the House of Lords. Cardozo, one of the greatest Judges of the American Supreme Court,

referring to the forces which enter into the conclusions of Judges observed that the great

tides and currents which engulf the rest of men, do not turn aside in their curse and pass the

Judges by. 10 Honble Justice D. M. Dharmadhikari, Chairman, M. P. Human Rights

Commission also asserted that there is always a chance that judges get influenced by the

flowing air of remarks made upon a particular controversy. The media presents the case insuch a manner to the public that if a judge passes an order against the media verdict, he or

she is deemed either as corrupt or biased.

Justification by Media

We have a rich tradition of fiercely independent journalism. In fact, all the big scams

were busted by the press. The law enforcers merely followed them up. The poorly paid

9 Attorney General v. BBC : 1981 AC 303 (CA), p. 315.10 Nature of the Judicial Process , Lecture IV, Adherence to Precedent. The Subconscious Element in the

Judicial Process , 1921, Yale University Press. The full text of the passage in the above essay of Cardozo readsthus: Even these forces are seldom fully in consciousness. They lie so near the surface, how ever, that their existenceand influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their

power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex instincts and emotion and habits and convictions, which make the man, whether he belitigant or Judge There has be en a certain lack of candor in much of the discussions of the theme orrather perhaps in the refusal to discuss it, as if Judges must lose respect and confidence by the reminder thatthey are subject to human limitations ..

Cardozo then stated in a very famous quotation, None the less, if there is any thing of reality in my analysis ofthe Judicial Process, they do not stand aloof on these chill and distant heights; The great tides and currentswhich engulf the rest of men, do not turn aside in their c ourse, and pass the Judges by.

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journalist must be credited for extracting those information which looked inaccessible for the

top vigilance teams of the country. That is how HDW(Howaldswerske) marine case and

Bofors hit the headlines. That is how we found out that Narasimha Rao had bribed the

Jharkhand Mukti Morcha MPs and Satish Sharma and Buta Singh had brokered the deal. The

media did us proud at every juncture of our political juncture.

There is increasing and intense public focus on Courts and the cases filed therein.

Whether reported in daily newspaper or in electronic media, Indians avidly devour this

information, since they are curious about what happens in Court. Now that the Courts have

come under the medias microscope, they are likely to remain there forever. As with most

changes both positive and negative consequences have flowed from this. A Positive by-

product of changes spurred by the media and addressed by the Courts is that more Indians are

aware of their constitutional rights than ever before. The media strongly resents this sub

judice rule and complains that Courts during the course of a hearing tend to interpret the sub

judice rule quite strictly to prohibit any discussion of the issues before the Court even if they

are engaging public attention. In their opinion such a restriction could be applied more

legitimately to situations where a jury of lay people is involved. After the abolition of the jury

system when decisions are made by professional judges who are trained not to be influenced

by happenings outside the Court there is less of a justification for a strict application of the

rule. There is, therefore, an urgent need to liberalize the sub judice rule, invoking it only in

cases of an obvious intent to influence the trial and not to any act that might have the remote

possibility of influencing it.

Law Commissions 200 th Report

The most reckoning research on the positive and negative aspects of media trial has

been elaborated in 200th report of the Law Commission entitled Trial by Media: Free Speech

vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)

that has made recommendations to address the damaging effect of sensationalized news

reports on the administration of justice. While the report has yet to be made public, news

reports indicate that the Commission has recommended prohibiting publication of anything

that is prejudicial towards the accused a restriction that shall operate from the time of

arrest. It also reportedly recommends that the High Court be empowered to direct

postponement of

publication or telecast in criminal cases. The report noted that at present, under Section 3 (2)

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of the Contempt of Court Act, such publications would be contempt only if a charge sheet

had been filed in a criminal case. The Commission has suggested that the starting point of a

criminal case should be from the time of arrest of an accused and not from the time of filing

of the charge sheet. In the perception of the Commission such an amendment would prevent

the media from prejudging or prejudicing the case. Another controversial recommendation

suggested was to empower the High Court to direct a print or an electronic media to postpone

publication or telecast pertaining to a criminal case and to restrain the media from resorting to

such publication or telecast. The 17th Law Commission has made recommendations to the

Centre to enact a law to prevent the media from reporting anything prejudicial to the rights of

the accused in criminal cases from the time of arrest, during investigation and trial.

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CHAPTER 5

MISUSE OF POWER BY MEDIA IN RESPECT

OF PUBLICATION OF CASE

Today trial has shifted from courtroom to living room. And the result of such a shift is

that rights of people stand to be affected in a manner that has not been seen ever before.

Media today is commercialised and globalised. Their primary aim is to increase their profit /

TRP ratings. One cannot imagine social responsibility on the contemporary commercialised

media. Their primary aim is profit. However, as everything comes for a cost in todaysmodern world, the profit making too has some cost. And the cost is human rights of the

accused.

The role played by media has led to the victimisation of innocent people and violation

of their fundamental human rights. The accused is held guilty even before the beginning of

the trail. For instance, the recent controversies arisen after the Jamia Encounter 11 has raised

many questions regarding the role of the media in such cases. Such irresponsible way offunctioning is a flagrant violation of the ethical principles that form the bedrock of a civil

society. This is reflected in the Arushi Murder Case where the accused has been socially

stigmatised even the case is under consideration before the trial court. It exemplifies the

intrusion by the media into the functioning of agencies of Criminal Justice System. Such

intrusion often robes one of his most basic human rights. Human dignity which forms the

heart and soul of human rights notion stands infringed and frustrated. 12 There are scores of

cases that hogged media attention in not so distant past and led to, in some of the cases,

unwanted, undesired and underserved attention of the public at large. A media trial ensued

Afzals arrest. A week after the attack on Indian Parliament, in a press conference called by

the police, Afzal incriminated himself in front of the media which media played negative

role in influencing the conscience of general public before Afzal was even tried. Similarly,

11 This was one of the most highlighted cases in recent past and generated invigorated debate. It was highly.It was fervently debated in the media- both print and electronic.12 It is noticeable that human dignity occupies a pristine place in the Universal Declaration of Human

Rights, 1948. It talks about a human family where all the members thereof have inherent dignity alongwith equal and inalienable rights . These two factors form the foundation of freedom, justice and p eace inthe world.

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S.A.R. Geelani, one of Afzals co -defendants in the Parliament Attack Case , was initially

sentenced to death for his alleged involvement notwithstanding the stunning paucity of

evidence. He was presented before the public as a dangerous terrorist. The Delhi High Court

while overturning Geelanis conviction described the prosecutions case as at best, absurd

and tragic.

Further, there are many questions that remain to be answered. First of all, are media/

journalists competent to conduct a trial in the way they do? This remains increasingly open to

question. Most of the journalists are not properly trained or acquainted with law. One need

not be a law graduate to become a journalist. For instance, the media as a conclusive

determination of the accuseds guilt represents confession by the accused, even made to the

police. This shows the ignorance of media about the basic principles of law. Sec. 25 of theIndian Evidence Act, 1872 categorically prohibits the confession to the police as admissible

in law. Thus, something, which is inadmissible in law, becomes sufficient to taint the accused

with guilt in the eyes of ordinary people. It is difficult to find a single news channel

explaining the rationale behind such inadmissibility or even a mention about the section in

their reports. It is germane here to refer to the concern of the Law commission of India which

said:

The media also creates other problems for witnesses. If the identity of witnesses is published, there is danger of the witnesses coming under pressure both from the accused or

his associates as well as from the police. At the earliest stage, the witnesses want to retract

and get out of the muddle. Witness protection is then a serious casualty. This leads to the

question about the admissibility of hostile witness evidence and whether the law should be

amended to prevent witnesses changing their statements. Again, if the suspects pictures are

shown in the media, problems can arise during identifica tion parades conducted under the

Code of Criminal Procedure for identifying the accused.

Questions seem to rise also on the fairness of such trials by media. If history is to be

analyzed the media can go horribly wrong at times. One case popularized by the media

between 1980 and 1982 was the murder trial of Lindy Chamberlain in Australia who was

convicted of killing her baby, but later released in 1986 on new evidence showing that a

dingo had in fact committed the act as was originally claimed by Chamberlain. Similar

instances are not far to be traced in India also. In Delhi, in the infamous Khurana Case, a

lady school teacher was vilified and made a villain by the media. There was widespread

outrage against the teacher. Her dignity and life was brutally assaulted. Devastated, she faced

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her ordeal, a creation of medias imagination, and suffered what was a blatant violation of her

basic human rights. She was later found to be innocent. At times, the role played by the

media reminds one of the words written by Samuel Warren and Louis D. Brandeis in their

famous Right to Privacy article (1890): 13

The press is overstepping in every direction the obvious bounds of propriety and of

decency. Gossip is no longer the resource of the idle and of the vicious, but has become a

trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the

details of sexual relations are spread broadcast in the columns of the daily papers. To occupy

the indolent, column upon column is filled with idle gossip, which can only be procured by

intrusion upon the domestic circle.

The growing irresponsibility of the media is a matter of grave concern both for the

lawmen and the laymen, as both are getting affected. It misleads the public and unfairly acts

towards the accused. The question thus remains: How far is it just? Does it not lead to

miscarriage of JUSTICE? Being a part of the civil society media has a constructive role to

play to see that their irresponsible way of functioning does not result in the violation of the

rights of the people, which are succinctly referred to as Human Rights.

Judge Cobb observes:

Liberty includes the right to live as one will, so long as that will does not interfere

with the rights of another or of the public. One may desire to live a life of seclusion; another

may desire to live a life of publicity; still another may desire to live a life of privacy as to

certain matters and publicity as to others. Each is entitled to a liberty or choice as to his

manner of life, and neither an individual nor the public has a right to arbitrarily take away

from him his liberty.

Can a person charged with a crime really get a fair trial while being tried by the

media? Should the media even be discussing this persons trial before that person i s sent to

trial? Should the media even be talking about any person that is going to stand trial? Lastly,

one of the much debated issues has been the influence of the media on the decision making

process of the judges. Sensationalised journalism has also had an impact on the judiciary. For

example, in upholding the imposition of the death penalty on Mohammed Afzal for the

December 2001 attack on the Indian Parliament, Justice P. Venkatarama Reddi stated, (t)he

13 Samuel Warren and Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV . 193,196 (1890).

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incident, which resulted in heavy casualties, had shaken the entire nation and the collective

conscience of the society will only be satisfied if the capital punishment is awarded to the

offender. 14 In Priyadarshini Mattoo case, Mattoo was raped and murdered by Santosh

Kumar Singh, the son of a Police Inspector- General. The trial court acquitted the accused.

Delivering the judgment in the trial court proceedings in 1999, the Additional Sessions Judge,

J.P. Thareja said of Santosh, that though he knew that " he is the man who committed the

crime," he was forced to acquit him, giving him the benefit of doubt .15 These observations are

reminiscent of Jerome Franks formulation of realism. Stir caused by media does not leave

the judges untouched. Undoubtedly, judges are human beings and the pressure created by the

media too influences them. As Justice Cardozo has famously said: The tides and currents

that engulf the rest of men cannot turn aside and pass the judges by emphasising on the

fact that judges too are the product of the society and are not outside it. Thus, their influence

is all too human. The Supreme Court has held that a trial by press, electronic media or by way

of a public agitation is the very anti-thesis of rule of law and can lead to miscarriage of

justice. A Judge is to guard himself against such pressure. 16

However, this fact needs to be balanced with the fact that people also have the Right

to Information. And media plays a vital role in the dissemination of the information. What

need to be seen is that the information must not be misinformation. As Prof. Upendra Baxi

once aptly remarked that I have a basic human right that my mind should not be treated as a

dustbin where gossips or misinformation of people can be thrown. Thus, media needs to be

properly trained in the legal noetics and legal knowledge. This point has also been

recommended in the 200th report of the Law Commission of India, which observed that: 17

Journalists need to be trained in certain aspects of law relating to freedom of

speech in Art. 9(1)(a) and the restrictions which are permissible under Art. 19(2) of the

Constitution, human rights, law of defamation and contempt. We have also suggested that

these subjects be included in the syllabus for journalism and special diploma or degree

courses on journalism and law b e started.

14 See: http://www.hrdc.net/sahrdc / 15 http://www.ourpriyadarshini.org/ on 12/12/06 ( quoted from Trial By Media-The Jessica Lal Case ,available at: http://ssrn.com/abstract=1003644).16

State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.17 Law Commission of India, 200th Report on Trial by Media, Free Speech and Fair Trial underCr.P.C,1973(August 2006) at p.8.

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The commission further observed that:

The subject of Trial by Media is discussed by civil rights activists,

constitutional lawyers, judges and academics almost everyday in recent times. With the

coming into being of the television and cable-channels, the amount of publicity which any

crime or suspect or accused gets in the media has reached alarming proportions. Innocents

may be condemned for no reason or those who are guilty may not get a fair trial or may get a

higher sentence after trial than they deserved. There appears to be very little restraint in the

media in so far as the administration of criminal justice is concerned.

Media criticism and judicial impartiality

I take the question, Do the media influence judges?, to be directed to whether or not

consciously or subliminally, the decisions of judges are nonetheless influenced by the views

of media commentators and in particular may be motivated by the judges concern that his or

her decisions may be either praised or attacked in the media, once delivered. As a general

proposition, I do not believe that they are. Judges, who are creatures of flesh and blood, are

no doubt delighted if their decisions are the subject of approval, publicly expressed. Equally

they may feel frustrated, even wounded, if their decisions are criticized (particularly when

criticism is based on incomplete knowledge, or a misunderstanding, of the facts and issues in

the case). But, historically, judges backs have been broad and they remain so.

Any judge who started life in the law, as I did, as a barrister in the early 1960s, was

appointed in the late 1980s, and has only recently retired, will have seen the stereotype of the

High Court judge transformed in certain organs of the press from that of a portsoaked

reactionary, still secretly resentful of the abolition of the birch and hostile to liberal

influences of any kind, to that of an unashamedly progressive member of the chattering

classes, spiritually if not actually resident in Islington or Hampstead, out of touch with

ordinary people, and diligently engaged in frustrating the intentions of Parliament with

politically correct notions of Human Rights.

Judges are well aware that criticism from unsuccessful parties, interest groups, or

campaigning newspapers may follow any decision of theirs in a matter of high public interest

and they accept it as going with the territory, however much they may fume in private. I do

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not know whether or not Mr Justice Eady fumes in private over the press he receives for

conscientiously applying principles introduced into the law by Parliament under the Human

Rights Act, however I would have every sympathy for him should it be the case.

But, moving from the general to the particular, the topic of media influence may best

be approached by drawing two distinctions: first, between the law as applied in the criminal

courts and the decisions of judges in the civil courts; second, between the substantive law as

applied in individual cases and, on a wider front, the procedures followed under Rules of

Court and Practice Directions, including, in particular, the hearing of cases in open court.

Presence of media in courts can be dangerous in some cases. Instances where court

orders are used to deny the public, and the media, access to information are a minority of

cases. It is crucial to keep in mind that such court orders are made with judicial discretion.

The judge, not the media, is in the best position to determine when suppression and take-

down orders are required. These types of court orders are used to protect the rights of

witnesses, victims and the accused. It must be stressed that they are used only in exceptional

cases.

Suppression orders and take-down orders are used to protect society and people'slegal rights. The court has a responsibility to ensure the safety of the community and protect

legal rights. The media has no such obligation. Allowing increased and unrestricted digital

media presence into the courtroom may threaten the safety of people involved in court cases.

It is the judge's role to make orders that protect those who appear in their courtroom. It is

important to note that the profession and the judiciary embrace the use of technology. In

recent years online access to judgments and court resources has brought dramatic

advancements.

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ethical limits but the electronic media is experimenting and is relying upon trial and error

method for what to show and more importantly what not to. The time will come when

electronic media will also be well regulated by self-censored guidelines and we shall retain a

completely free press , the dream of our first Prime Minister and that too without any danger

involved.

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BIBLIOGRAPHY

1. S. Ganesh, Lectures on Mass Communication, , Indian Publishers and Distributors,

2. M. D. Goradia , Facets of Media Law, Eastern Book Company,

3. J. R. Mudholkar , Press Law, Eastern Law House,

4. Gupta & Sarkar, Laws Relating to Press and Sedition in India, Orient Publishing Company

5. Dr.Uma sama , Law of electronic media

6. Ram Jethmalani & D S Chopra, Cases and Materials on Media Law, Thomson Reuters

Publishers, First Edition, 2012