Media Trial in Criminal Cases

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433)

VOLUME 2 ISSUE I (May 2021)

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EDITORIAL TEAM

EDITORS Ms. Ezhiloviya S.P. Nalsar Passout

Ms. Priya Singh West Bengal National University of Juridical Science

Mr. Ritesh Kumar Nalsar Passout

Mrs. Pooja Kothari Practicing Advocate

Dr. Shweta Dhand Assistant Professor

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MEDIA TRIAL IN CRIMINAL CASES: A BOON OR A BANE By : Shivani ABSTRACT In India, Media is said to be the fourth pillar of Democracy, and for the smooth running of democracy, it is important to have free media with a healthy functionary system. By the virtue of Article 19(1) (a) of the constitution of India, the media enjoys the freedom of the press. However, it is not the absolute freedom and liable for some restrictions to it which are given under Article 19(2). Media through its reporting influence the public at large, therefore, it interferes with court proceedings when justice is totally denied or delayed. Although the media contributes to social and political changes, it is often seen getting involved in the business of making money. Now, it is more like the media makes the news instead of covering it with ethics just to gain some TRP. Media organizations, whether it is print media, electronic media, or new media, in order to gain more audiences, no longer care about the credibility of the source but try to make a sensation in the news, even if they do so to distort the facts. This is evident from the number of defamatory media organizations' pending cases against them in court. The purpose of this article is to study the impact of media trials on the Indian criminal justice system. KEYWORDS: Media Trial, Judiciary, Fair Trial, Freedom of speech, Contempt of court. INTRODUCTION Freedom of speech and expression is an essential element of a democratic country and so is the freedom of the press.1 The media plays a vital role in shaping public opinion, and it can change people's overall perception of various events.2 From the past two decades, we have witnessed the rapid growth of media influence in the process of access to justice in numerous cases related to corruption, rape, murder, sexual harassment, terrorist activities, etc.3 Jeremy Bentham also once said: "There is

1 Arunav Talukdar, “MEDIA TRIAL AND RIGHT TO FREEDOM OF SPEECH AND EXPRESSION: AN ANALYSIS”, National Law University, Assam, (2018) Available at http://www.dlnluassam.ndl.iitkgp.ac.in/bitstream/handle/123456789/171/Arunav%20talukdar%20Diss%202018.pdf ?sequence=1&isAllowed=y, (last visited on 26th, December, 2020). 2 Nimisha Jha, “Constitutionality of Media Trials in India: A Detailed Analysis”, Lawctopus, Available at https://www.lawctopus.com/academike/media-trials-india/, (Last Visited on 27th, December, 2020). 3 Sanatan Deshpande, Priyank Jagawanshi, “A critical analysis of media trial and its effect on Indian judiciary”, 6(1) International Journal of Research and Analytical Reviews 20 (2019), Available at http://ijrar.com/upload_issue/ijrar_issue_20543141.pdf, ( Last Visited on 27th, December, 2020). 5 www.ijlra.com Volume 2 Issue I| May 2021 ISSN: 2582-6433

no justice without propaganda. Propaganda is the soul of justice." It is in this situation that the issue of media trials arises. The Supreme Court described the media’s trial as “the influence of television and newspaper reports on personal reputation through the establishment of a broad sense of perception, independent of any court ruling”. When reporting court cases, the media described the defendants as villains, calling them criminals, scammers, fraud, and similar words. These words are not based on facts, but only to incite news and cause Damage to the dignity of the defendant.4 Media basically indirectly pressurize the judges to provides justice to the victim, which may interfere with the trial process, may prejudice the defendant and may prove his innocence. Media trial refers to the establishment of a broad sense of internal creativity without considering any court rulings, the impact of newspaper and television reports on a person’s reputation.5 Media trials often affect a fair trial of the accused. This is a worldwide phenomenon, that cannot be ignored because it interferes with the court proceedings and it completely failed in understanding the substantial gap between an “accused” and a “convict”.6 There is no denying that media is acting as a great influencer for the public and therefore, trial by it may have a negative impact. This problem needs to be resolved in order to maintain social order and not to mislead anyone in the name of spreading information.7 Media invasion is a moral dilemma in developing countries around the world. It has now become a trend for the media to come forward and investigate the truth.8this may influence the criminal trial either negatively or positively based on the circumstances.9

LAW COMMISSION REPORT ON MEDIA TRIAL

4 Nitesh Tripathi, “Media Trial: An Impediment in Fair Trial”, 4(10) Journal on Contemporary Issue 65, Available at https://jcil.lsyndicate.com/wp-content/uploads/2018/11/Media-Trail-4.pdf 5 Supra Note 3. 6 Supra Note 1. 7 Ibid. 8 Ankuran Dutta, “Media Glare or Media Trial: Ethical Dilemma between two Estates of India Democracy”, Research Gate, Available at https://www.researchgate.net/publication/274633662_Media_Glare_or_Media_Trial_Ethical_Dilemma_between_tw o_Estates_of_India_Democracy, (Last Visited on 26th, December, 2020). 9 V.V.L.N. Sastry, “Influence of Trial by Media on the Criminal Justice System in India”, Walden University, Available at https://scholarworks.waldenu.edu/cgi/viewcontent.cgi?article=8084&context=dissertations, (Last Visited on 27th, December, 2020). 6 www.ijlra.com Volume 2 Issue I| May 2021 ISSN: 2582-6433

In its 200th report,10 the Law Commission recommended a law that prohibits the media from reporting anything that is detrimental to the rights of defendants or accused in criminal cases from arrest to investigation and trial.11 The commission has said, “Today there is feeling that in view of the extensive use of the television and cable services, the whole pattern of publication of news has changed and several such publications are likely to have a prejudicial impact on the suspects, accused, witnesses and even judges and in general on the administration of justice”.12 The commission in its report recommended some changes in the Contempt of Courts Act. According to this act, such publications of media trial will only fall under the definition of contempt when a charge sheet is submitted in a criminal case, and the law commission suggested that the publication by media trial should be looked up from the date of arrest. In another controversial proposal, it recommended that the High Court be authorized to direct the print or electronic media to postpone or process television programs related to criminal cases.13

FAIR TRIAL V. MEDIA TRIAL A trial conducted by a judge in a fair manner is called a fair trial. In India, even the defendant cannot deprive him of his right to life and personal freedom. Article 21 of the Constitution of India regards a fair trial as part of life and personal freedom. The right to a fair trial includes the right to be tried without prejudice or prejudiced judges. Rejection of a fair trial is a rejection of human rights.14 The media has now reintegrated into the image of a "public court", also known as Janta Adalat, and even before the court pronounces its verdict, it declared the person guilty.15 It ignores the significant gap between the defendant and the convict, and the golden principle of the law "presumption of innocence until proven guilty" and "irrefutable guilt". It poses a threat to the principles of natural justice.16 Every defendant has the right to a fair trial, based on the principle that "not only can justice

10 Law commission of India, “200th report on Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971)” (August,2006), Available at https://lawcommissionofindia.nic.in/reports/rep200.pdf, (Last visited on 29th, December, 2021). 11 Ibid. 12 Ibid. 13 Ibid. 14 Mohd. Aqib, Utkarsh Dwivedi, “Judiciary and Media Trial: A Need for Balance”, 5(2) Indian Journal of Law and Human Behavior 156 (August 2019), Available at https://journals.indexcopernicus.com/api/file/viewByFileId/783284.pdf, (Last Visited on 2nd, January, 2021). 15 Maninder Gill Sudhir, Rhea Sudhir, “Fair and Free Trial vs Media Trial”, 4(5) International Journal Advances in Social Science and Humanities 21 (May,2016), Available at: www.ijassh.com, (Last Visited on 2nd, January, 2021). 16 Ibid. 7 www.ijlra.com Volume 2 Issue I| May 2021 ISSN: 2582-6433

be done, but it seems that it must be done too." In many cases, the media was accused of conducting separate investigations to establish public opinion against the defendants even before the court was aware of the case. No editor has the right to assume the role of investigator in order to damage the court's rights against anyone. However, only when the case is in a state of obedience, Con can see the law to prevent comments. If the case is not in court, it will not help. The media exerts unconscious pressure on jurors-they know they are being watched; lawyers are also under pressure and do not want to accept the defendant's case, which violates the principle of natural justice. The identification of the suspects and defendants and witnesses constitutes an invasion of their privacy and further endangers their lives, especially in the case of witnesses, and forced them to change their hostile attitude through excessive publicity. This is usually another accusation against the media. The media must also acknowledge the fact that any content they publish will have a significant impact on viewers/readers. If the report is designed to disrupt judicial minds, the courts will not function properly and may cause judgments to become biased. The defendant’s right to a fair trial must be protected at any cost.17

JUDICIAL CASES IN WHICH MEDIA PLAYED A CRUCIAL ROLE In recent years, there have been many cases in which the media tried the defendant and passed the verdict even before the court. “Without media intervention, some famous criminal cases will not be punished, including Priyadarshini Matto, Jessica Lal, Nitish Katara murder and Bijal Joshi rape.”18 In the Nitesh Katara murder case, NDTV managed to obtain a videotape where the defendant confessed to kidnapping and then murdered Nitesh to save the family honor. In the Nirbhaya rape case, the media also aroused great sympathy and anger from the Indian and foreign people and the authorities.19 But, the media ignored the murder of Arushi Talwar when it seized the court and reported that her own parents were involved in her murder. The CBI subsequently announced: Rajesh Not a killer.20 The same thing happened in the Sushant Singh Rajput case too. Priyadarshini Matto case Priyadarshini Mattoo was a 25-year-old law student at the University of Delhi. Her senior in the college raped and murdered her at her home in New Delhi. She had

17 Ibid. 18 “Effect on Trial by media before courts”, Law Teacher, Available at https://www.lawteacher.net/free-law- essays/commercial-law/effect-of-trial-by-media-before-courts-law-essay.php, (Last Visited on 3rd, January, 2021). 19 Supra Note 15 at 23. 20 Supra Note 2 at 4. 8 www.ijlra.com Volume 2 Issue I| May 2021 ISSN: 2582-6433

lodged several complaints of harassment, intimidation, and stalking against the accused, but since the accused's father was serving as a commission of police in Delhi at that time, the police did not take any severe action. Though the Delhi police filed the FIR, the case was transferred to the Central Bureau of Investigation at the request of the victim’s father. The session court acquitted the accused giving him the benefit of doubt. Shortly after the verdict, Priyadarshini's father frequently appeared on news channels. The case has stimulated widespread public attention. The media accepted interviews, which put great pressure on the judiciary. After the public outcry, an appeal filed through CBI in the Delhi High Court. The high court overturned the trial court judgement and sentenced him to death. In 2007, the defendant preferred an appeal in the Supreme Court. In 2010, the bench upheld the conviction of the defendant. But, reducing the punishment from the death penalty to life Imprisonment. Jessica Lal Murder case Jessica Lal was working as a bar-maid in south Delhi. After midnight, the defendant walked in with three friends and asked for liquor. She refused, and the defendant fired two bullets at the ceiling to threaten her. The second bullet hit her in the head and she has died. The shooting took place in the presence of more than 80 people in the party, but Only ten people came forward and testified that Jessica was hit by a bullet shot by the defendant. Because the defendant came from an influential political party. This led to widespread public protests, and News Magazines like Tehelka did many sting operations on the people who were present at that party. Many witnesses admitted that they were bribed during the trial to turn into hostile behavior. The recordings he made to the main defendant during bail were also leaked in the media. As a result of these stinging actions, the SMS campaign to bring justice to Jessica Lal, and public pressure, the police entered the High Court and filed an appeal against the case. The High Court overturned the trial court decision and sentenced the defendant to life imprisonment and a fine of 50,000 rupees. In 2010, the Supreme Court of India approved the verdict in the murder of Jessica Lal.21 Arushi Talwar Murder case This case is an unsolved mystery of the murder of a 13-year-old girl Arushi Talwar and a 45-year-old male Hemraj, a domestic servant. On the face of it, the case appears to be a case of honor killings, because there is evidence that the murder was carried out precisely through surgery. In the investigation conducted by CBI, a Narco

21 Diva Rai, “The Jessica Lal Murder Case”, iBlog pleader, Available at https://blog.ipleaders.in/jessica-lal-murder- case-the-epitome-of-judicial-and-media-activism-in-india/, (last visited on 30th, December, 2020). 9 www.ijlra.com Volume 2 Issue I| May 2021 ISSN: 2582-6433

analysis test, polygraph test, and brain mapping were used. However, in its closing report, CBI held that there is insufficient evidence based only on circumstantial evidence and with no direct evidence. “Finally, Allahabad High Court acquitted the victim’s parents giving them the benefit of doubt. While the investigation was on, media channels were busy asking viewers to send SMSs guessing who the murderer was. In this case, too, the media played up different angles like honour killing, her father’s alleged extra-marital affair, fake news that Arushi was an adopted child, demonized the Talwars for not crying enough on TV.”22 Sunanda Pushkar Death Case The case involved the mysterious death of the wife of the famous politician Shashi Tharoor. After investigation, the medical team concluded that the cause of death was poisoning. Then, the police registered a murder case against an unknown person. However, the media started its media trial on the same day that Sunanda Pushkar died, and declared Shashi Tharoor as the murderer by revealing the half-truths, twisting statements and distorting facts. Shashi Tharoor filed a defamation case against a well-known media company in the Delhi High Court. The court pointed out that during the pending investigation of the case, reporters and their channels must respect Shashi Tharoor’s “right to silence”. The court further stated that journalists and their channels are free to state facts related to the investigation, but cannot declare Shashi Tharoor as the murderer. The reason for filing the case was that Shashi Tharoor was convicted at the time of Sunanda Pushkar's death, which may harm the investigation and subsequent trials. The case also raised concerns about the balance between freedom of speech and media trials.23 Sushant Singh Rajput murder case Bollywood actor Sushant Singh Rajput was found dead in his house on the morning of June 14. But within a few days, the attention after his death shifted to Chakraborty. In the same week, the actor's father filed a suit against his girlfriend Rhea Chakraborty, accusing her of abetment of suicide. What followed were false reports of facts, fabricated lies, and a whirlpool of pure entertainment in the name of news. She has become the subject of gossip, innuendo, and abuse of women's rights. Every little detail of her life and relationships is openly and publicly discussed. While the Mumbai police were investigating the death of the actor, the

22 Prerna Lidhoo, “Arushi Talwar to Rhea Chakraborty: A tale of two media trial and zero lesion learnt”, The Wire, Available at https://thewire.in/media/rhea-chakraborty-sushant-singh-rajput-aarushi-talwar-media-trial, (last visited on 31st, December, 2020). 23 Supra Note 14 at 24. 10 www.ijlra.com Volume 2 Issue I| May 2021 ISSN: 2582-6433

TV channel was busy conducting parallel investigations in the newsroom. First, they condemned the "Bollywood Mafia" for their conspiracy against him, and then they increased their connection with the underworld. However, once the case was handed over to the CBI, the situation got worse, and the news channel casually regarded Chakraborty as the perfect villain. Driven by these media channels, Rhea has suffered a widespread social media hatred campaign. Chakraborty has filed a case in the Supreme Court, saying that the "media trial" tried to convict her of Sushant's death.24 She claimed that the media had "convicted" her. She also said that she was worried that she would become a “scapegoat for the political agenda” and asked the court to protect her from “extreme trauma and invasion of privacy”. SUGGESTIONS  It is necessary to make certain changes to the contempt of Court Act 1971. The starting point for the "pending criminal procedure" should start from the date of "arrest."  The aggressive media trial simply based on allegations should be covered under the contempt of the court.  The Press Council Act of 1978 only deals with print media, so it is necessary to include electronic media in its scope.  Exemplary damages should be imposed on media outlets for infringing the privacy of the parties involved in the case and their families.  The inaccuracy of the scope of litigation can be ignored only when it involves serious interference with justice.  For any responsible media, the real question is to ask how the news anchor gets access to confidential call records, bank statements, and personal messages of parties and witnesses involved in cases. CONCLUSION The media is a means of communication that helps to disseminate information about social, political, and economic activities happening around the world to the public. The Media is supposed to give fair information and state the facts instead of making any judgments. But sometimes the media even tried to distort the facts and make judgments before the court. In a highly competitive environment, participants in the media industry will do their best to attract more audiences and readers. They are not limited to statements of fact, but also use many innovative techniques. The news that caused the sensation is not a new phenomenon, but considering themselves in the

24 Ibid. 11 www.ijlra.com Volume 2 Issue I| May 2021 ISSN: 2582-6433

role of the police and judges through investigations, collecting evidence and making decisions is a major issue. Indian criminal justice system is based on the theory that the defendant is innocent until proven guilty without any reasonable doubt. However, in a democratic society, media trials sometimes show their positive side. In a democratic society, the media ultimately helps victims to get justice. It also holds the government accountable for its actions and makes the public aware of government activities. The media has not only increased transparency but also raised public opinions on important public issues. A strong independent media can help bring positive changes to society. But at the same time, it is accepted from media that it will not go beyond its scope and participate in sensational news, distort facts, damage reputation, make judgments, etc. The media prefers to limit itself to dissemination to provide information to the public in a neutral manner, rather than to conduct trials through the media.