TRIAL BY MEDIA: A HUMAN RIGHTS

PERSPECTIVE

Submitted by: Ms Ruchi Lal Assistant Professor, Amity Law School, Noida,U.P

Ph.no- 9868068650 E-mail-lal.ruchi1@gmail.com

Address- Amity Law School, I-2 Block, Amity University, Sec.125, Noida, U.P

Ms. Dipanwita Biswas Assistant Professor, Amity Law School,Noida,U.P Ph.no- E-mail-

Address- Amity Law School, I-2 Block, Amity University, Sec.125, Noida, U.P

Abstract

Trial by Media: A Human Rights Perspective(Key words)

Ms.Ruchi Lal* Ms. Dipanwita Biswas**

The violation of rights is not confined to cases where violence is at the root of violation of

human rights. Violation of human rights has many dimensions and one such dimension finds

expression in the form of media trial. Trial by media is a phrase that became popular at the

threshold of the 21st Century to assert the impact of television and newspaper coverage on the

minds of the people irrespective of the fact that it may transgress the reputation of a person

involved due to widespread public perception of guilt regardless of any verdict in a court of

law.

Media, today, is globalised and commercialised and in its primary endeavour to increase

profit/TRPs ratings, media has reincarnated itself into a ‘public court’. It completely

overlooks the vital gap between an accused and a convict keeping at stake the golden

principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable

doubt’. The media itself does a separate investigation, builds a public opinion against the

accused even before the court takes cognizance of the case. By this way, it prejudices the

public and sometimes even judges and as a result the accused who is presumed as a criminal

even before trial by the court, thereby violating his right to fair trial, right to privacy, right to

be legally represented and right to dignity which are a violation of his basic human rights

guaranteed not only by Constitution of India but also by international instruments such as

Universal Declaration of Human Rights 1948, International Covenant on Civil and Political

Rights 1966 and European Convention on Protection of Human Rights and Fundamental

Freedoms 1950.

Media trial or investigative journalism is not wrong in its end but in its approach and the

methods to which it resorts. Infact, media trial along with the revolutionary sting operations is

an appreciable effort as it keeps a close watch over the investigations and makes the

government institutions more accountable. But it must not be done in irresponsible way

without paying heed towards the basic norms and principles of civilized democratic society.

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*Assistant Professor, Amity Law School, Amity University, Noida, Uttar Pradesh.** Assistant Professor, Amity Law School, Amity University, Noida, Uttar Pradesh.

TRIAL BY MEDIA: A HUMAN RIGHTS PERSPECTIVE

Ms Ruchi Lal*

Ms. Dipanwita Biswas**

“Reporters thrive on the world’s misfortunes. For this reason they often take an indecent

pleasure in events that dismay the rest of the humanity.”

Russell Baker, The Good Times, 1989

Preliminary reflections

“Historically the growth and development of representative democracy is so much

intertwined with the growth of press that the press has come to be recognised as an

institutional limb of modern democracy.”1 Infact press and media forms the backbone of a

democratic society. Together they subject the functioning of all public institutions to public

scrutiny and makes them answerable and accountable to the people. It also plays an important

role in administration of justice. The Indian Press Commission has expressed the view that

“democracy can thrive not only under the vigilant eye of its legislature, but also under the

care and guidance of public opinion and the press is par excellence, the vehicle through

which opinion can become articulate.”2

In recent times, media has variously contributed to the society. As the watchdog on

government; as the champion of vulnerable section of society; as a whistle-blower against the

perpetrator of wrong and above all, as a frontrunner in publishing the information of public

interest. Also, media has significantly promoted social causes like literacy, discouraging

female feticide, health management, AIDS awareness, etc.

1* Assistant Professor, Amity Law School, Amity University, Noida, Uttar Pradesh.** Assistant Professor, Amity Law School, Amity University, Noida, Uttar Pradesh.? D.D Basu, Commentary on the Constitution of India,6th ed., Vol.C,2008, p.952 First Press Commission Report, 1982.

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Notwithstanding such wonderful sagacity and honesty on the part of media and media

personnel, certain reporting of recent past has brought it into the spot light. One such stark

illustration remains the case of ‘media trial’.

Meaning of Media Trial

Media trial is a term used for those cases which are still under consideration in courts. The

verdicts on these cases have not been given yet by the courts but widespread coverage is

given by the media which by adding a pinch of sensation, try to influence the decisions made

by the judges involved. It is nothing but a pre trial by the media based on materials collected

by it, without scrutinizing its evidentiary value required under law for its acceptance, and

pronouncing judgment before the law takes its course. 3 Such trial by media can cause

irreparable, irreversible and incalculable harm not only to the person subjected to trial but

also to the institution administering justice.4 The evils that might possibly result from such

media trial are:

Media trial may influence the minds of prospective witnesses.

It may compel the parties to discontinue litigation.

It may prejudice the public as a whole by evoking adverse reactions and thereby

impair the public confidence in the administration of justice.

It may inhibit other potential litigants from resorting to the courts of law.

Further, the media treats seasoned criminals and the ordinary one, sometimes even

the innocents, alike without any reasonable discrimination. Even if they are acquitted

by the court it becomes practically impossible for them to resurrect their previous

image. Such kind of exposure provided to them is likely to jeopardize all the

3 Abhitosh Pratap Singh and Madan Mohan, Media: Facilitating Justice or Hampering Justice? , Indian Bar Review, Vol.XXXIII, 2006, P.239.4 A.Raghunadha Reddy, Trial by Media- A Critique From Human Rights Angle, Nyaya Deep, Vol. XI, Janauary 2010,p.31

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cherished human rights which every individual is entitled to merely by virtue of being

born a human being.5

In this paper an attempt is made to critically analyse the impact of trial by media on human

rights of accused, suspects and witnesses particularly right to privacy, dignity, right to legal

representation and the right to fair trial.

Locating the Right to Freedom of Expression of Media

a) Constitutional Law Framework

The Preamble to the Constitution of India gives explicit prominence to the concept of liberty

of thought and expression among other liberties. Further Article 19(1)(a) of the Indian

Constitution guarantees to all its citizens the fundamental right to freedom of speech and

expression which includes within its ambit freedom of media.

In Romesh Thapar v. State of Madras6, it was held that the freedom of speech and expression

guaranteed under Article 19(1)(a) includes the freedom of ideas, their publication and

circulation. It was stated in Hamdard Dawakhana v. Union of India7, that the right includes

the right to acquire and impart ideas and information about matters of common interest.

Further the Supreme Court of India, in Life Insurance Corporation of India v. Manubhai D

Shah8 has stated that the “freedom of speech and expression” in Article 19(1)(a) means the

right to express one’s convictions and opinions freely, by word of mouth, writing, printing,

pictures or electronic media or in any other manner.

5 Jagganadha Rao, Fair Trial and Free Press? : Law’s response to Trial by Media, Constitutionalism Human Rights and Rule of Law, Universal Law Publishing Co.,p.266 1950 SCR 594 7 1960 (2) SCR 6718 1992 (3) SCC 637

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The press is a manifestation of collectivity: it reflects people’s hopes and aspirations and also

their agonies and afflictions. However, in a civil society, no right or freedom, however

invaluable it might be, can be always considered absolute, unlimited or unqualified in all

circumstances. The sweep of all rights or freedoms is therefore, always controlled and

regulated so that the like rights or freedoms of others are not jeopardized.9 Realizing, the truth

of this fact of social life- the Constitution of India envisages the regulation of fundamental

right to freedom of speech and expression guaranteed under Article 19 (1) (a) by imposing

reasonable restriction U/A 19(2). This means that freedom of press is not absolute and is

subject to reasonable restrictions which can be imposed by the legislature on the grounds

specified in Article 19(2) of the Constitution.

b) International Law Framework

Article 19 of the Universal Declaration of Human Rights 1948 guarantees the right to

freedom of expression in following terms:

‘Everyone has the right to freedom of opinion and expression and this right includes the right

to hold opinions without interference and to seek, receive and impart information and ideas

through any media and regardless of frontiers.’

Also Article 19 of the International Covenant on Civil and Political Rights 1966

guarantees freedom of expression by explicitly conferring following rights:

An unfettered right to hold opinions;

A right to express and disseminate any information or ideas;

A right to have access to media;

A right to seek information and ideas.

Locating Human Rights of Accused Affected by Media Trial

9 Virendra Kumar, Free Press and Independent Judiciary : Their Juxtaposition in the Law of Contempt of Courts, Indian Law Journal, Vol. 47, No. 4, Oct- Dec 2005, p.49

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Right to fair trial, legal representation, right to privacy and dignity are basic human rights

guaranteed to the accused, suspects and witnesses by the various international instruments as

well as by the Constitution of India.

Article 3 of Universal Declaration of Human Rights 1948 declares that everyone has right to

life, liberty and security of person. Article 11 of UDHR deals with the right to be presumed

innocent until proven guilty. Further Article 12 deals with privacy rights and reads: No one

shall be subject to arbitrary interference with his privacy, family, home or correspondence,

nor to attacks upon his honour and reputation. Everyone has the right to protection of the law

against such interference and attacks.”

The European Convention for the Protection of Human Rights and Fundamental Freedoms

1950 guarantees right to life, right to liberty and security, right to fair trial, right to respect for

private and family life. There are similar provisions in the International Covenant on Civil

and Political Rights 1966, American Convention on Human Rights, 1969 and the African

Charter of Human Rights and People’s Rights, 1981.

In India, Art 21 of the Constitution is crucial which guarantees the right to life and personal

liberty. It reads: No person shall be deprived of his life or personal liberty except according to

procedure established by law’. Right to privacy, legal representation and right to human

dignity have been held by the Supreme Court to be implicit in Article 21.

Impact of Trial by Media on Human Rights

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Media trial is an illegal invasion into the terrain reserved for judiciary and it is not only

theoretically wrong but also a blatant infraction of basic human rights guaranteed to the

accused.

Right to Fair Trial

Every accused person has a right to fair trial guaranteed to him both by national and

international legal framework clubbed with the principles of natural justice that justice must

not only be done but must manifestly and undoubtedly be seen to be done.

Trial is a word associated with the process of justice and to be carried out strictly by the

courts. In Zahira Habibullah Sheikh v. State of Gujarat,10 the Supreme Court explained that a

“fair trial would mean a trial before an impartial Judge, a fair prosecutor and in an

atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against

the accused, the witnesses, or the cause which is being tried is eliminated.” It encompasses

several other rights including the right to be presumed innocent until proven guilty, the right

not to be compelled to be a witness against oneself and the right to a public trial.

Trial by media obscures the chances of fair trial being given to an accused. By doing

investigative journalism, media builds a public opinion against the accused even before the

court takes cognizance of the case. It prejudices the public and judges and as a result the

accused is presumed as a criminal.11 All this is a clear negation of the constituents of fair trial.

In addition to this if , years later, the court proceeding end in a clean acquittal or acquittal for

lack of proof, there is no way the affected person can resurrect his or her lost image in the

society and the person remains uncompensated for loss of reputation. 12

10 2004 4 SCC 15811 Supra note 412 Supra note 9

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Presumption of innocence till proven guilty is a human right and one of the elements of fair

trial. In Narendra Singh v. State of M. P13, Supreme Court in this context stated that: “in

media trial this human right find no place as it proceed to establish guilt determinedly. Right

after the incident, the media begins its trial and the story is presented as if the accused is the

real culprit. The news is celebrated and the price of the time slot for advertisement shoots up

and media harvest money at the cost of one’s dignity, honour and right to life and liberty as

guaranteed under Article 21 of the Constitution of India.” Further, in the criminal justice

system, which we have been following, the guilt is to be proved beyond reasonable doubt and

the law is governed by senses and not by emotions. Under this premises, media’s

presumption regarding anyone’s guilt at the outset is an example of its callous behaviour.

“The right to a fair trial is a norm of international human rights law designed to protect

individuals from the unlawful and arbitrary curtailment or deprivation of their basic rights

and freedoms, the most prominent of which are the right to life and liberty of a person. Media

should take in to account the significance of these basic human rights and the implications

incase of its violation and negation.”14 For this standards cannot be imposed from outside

rather it is the obligation of the media to introspect on these issues and mend its ways.

Right to privacy

Often over-inquisitive media encroaches upon the individual’s right to privacy by crossing

the boundaries of its freedom. In the name investigative journalism, media goes into the

domain of right to privacy of persons and reveals that what they are doing and what is private

in their life.

13 AIR 2004 SC 324914 http://www.humanrightsfirst.orgpubsdescriptionsfairtrial.pdf visited on 28th December 2010

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The following observations of the Supreme Court in R. Rajagopal and Another v.

State of Tamil Nadu and Others15 are true reminiscence of the limits of freedom of press with

respect to the right to privacy: A citizen has a right to safeguard the privacy of his own, his

family, marriage, procreation, motherhood, child bearing and education among other matters.

No one can publish anything concerning the above matters without his consent - whether

truthful or otherwise and whether laudatory or critical. If he does so, he would be violating

the right to privacy of the person concerned and would be liable in an action for damages.

Position may, however, be different, if a person voluntarily thrusts himself into controversy

or voluntarily invites or raises a controversy.

Right to privacy of rape victims:

Women hesitate to report rape because of the fear of the consequences. As a result of trial by

media, the real issue of rape can been receded in the background. The identity of the victim is

not always protected by the media. Further, a woman who is a victim of a sexual offence may

give written consent to the publication of the matter which would be likely to lead to her

identification. Also the past sexual history of the victim may also find its way into the

newspapers.

In cases of public disclosure of private facts, there are three interests involved which must

be protected; the privacy of victims of sexual offences, the physical safety of such victims,

who may be targeted for retaliation if their names become known to their assailants; and the

goal of encouraging victims of such crimes to report these offences without the fear of

exposure.16

In an attempt to encourage women to report to the police details of sexual offences

committed against them, British Parliament has provided anonymity for the rape victims. It is

15 1994, JT 1994 (6) SC 51416 Cox Broadcasting Corporation V. Cohn,420 US 469 (1975)

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an offence to publish or broadcast the name, address or pictures of once she or any other

person has made an allegation of a rape offence against her.17 This restriction remains in force

for the lifetime of the victim. Once a person has been accused of rape, the restrictions on

publication become more stringent. No matter or an article likely to lead members of the

public to identify a woman as a complainant in relation to that accusation shall be published

or broadcasted.

In India, the law is very clear that it would be a crime to reveal the identity of the rape

victim. Section 228A of Indian Penal Code, which is introduced in 1983, prescribed 2 years

of imprisonment and fine for this offence. Also The Press Council of India’s norms for

journalistic conduct say that in reporting sexual assault on children, names, photos and

particulars of their identity shall not be published. Norm 14 laid down by Press Council of

India states that: “Caution against identification: While reporting crime involving rape,

abduction or kidnap of women/females or sexual assault on children, or raising doubts and

questions touching the chastity, personal character and privacy of women, the names,

photographs of the victims or other particulars leading to their identity shall not be

published.”18

In the above circumstances, the right to privacy or anonymity conflicts with the

freedom of the media to report the proceedings of the court but in the light of the travesties

involved for the victim such restriction is justified.

Right to be Legally Represented

The media assumption of guilt clearly crouches upon the right to legal representation. This is

in turn a critical component of the right to fair trial and it may also intimidate lawyers into

refusing to represent accused persons. Trial by media creates a pressure upon lawyers not to

17 Supra note 318 http://indiacurrentaffairs.org/the-park-wood-episode-new-media-new-tool-to-victimize-rape-victims-prof- madabhushi-sridhar/ visited on 28th December 2010.

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take up the case of a person who is the subject of such trial thereby creating a situation where

such a person may have to go to trial without defence. This is a clear violation of principles

of natural justice. Every person has a right to get himself represented by a lawyer of his

choice and no one has the right to debar him from doing so. For instance, when eminent

lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused in a murder case,

he was subject to public derision. A senior editor of the television news channel CNN-IBN

called the decision to represent Sharma an attempt to “defend the indefensible”. This was

only one example of the media-instigated campaign against the accused.19

Prominent cases on Media Trial

Trial of Roscoe Arbuckle

One of the first celebrities in the 20th century to be tried by media was Roscoe 'Fatty'

Arbuckle who was acquitted by the courts but nevertheless lost his career and reputation due

to the media coverage.

In 1921 Arbuckle threw a party during which Bit player Virginia Rappe became ill and died

days later. Roscoe ‘Fatty’ Arbuckle was charged with murder.  Immediately the press was all

over the story and sensationalized that Arbuckle had caused the rupture by crushing Rappe

while on top of her.  Even more lurid accounts suggested that Fatty Arbuckle had violated her

Virginia using a champagne bottle. Two days later voluntary and state mandated bans were

imposed on Arbuckle’s movies. Rappe, endured three widely publicized trials for murder. His

films were subsequently banned and he was publicly ostracized. Though he was acquitted by

a jury and received a written apology, the trial's scandal has mostly overshadowed his legacy

as a pioneering comedian. Though the ban on his films was eventually lifted, Arbuckle only

19 http://www.hrdc.net/sahrdc/hrfeatures/HRF164.htm visited on 29th December 2010.

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worked sparingly through the 1920s. In 1932 he began a successful comeback, which he

briefly enjoyed before his death in 1933.

O. J. Simpson murder case

One of the most publicized criminal trial in American history has been the case of People of

the State of California v. Orenthal James Simpson20 popularly known as the O. J. Simpson

murder case in which former American football star and actor O. J. Simpson was tried for the

offence of murder of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman.

Simpson was acquitted after a lengthy trial that lasted over nine months.

The trial received extensive media coverage. The media coverage was itself at times

controversial; the issue of whether or not to allow any video cameras into the courtroom was

among the first issues Judge Ito had to decide, ultimately ruling that live camera coverage

was warranted.this decision was later criticized by other legal professionals. Judge Ito

himself, along with others related to the case were said to have been influenced to some

degree by the media presence, and the publicity that came with it. The trial was covered in

2,237 news segments from 1994 through 1997.

On June 27, 1994, Time published a cover story "An American Tragedy" with a mugshot

image of O. J. Simpson on the cover. The image was darker than a typical magazine image,

and the Time photo was darker than the original, as shown on a Newsweek cover released at

the same time. Time itself was now the object of a media scandal, and it was found it had

employed photo manipulation to darken the photo, for the purpose of, as commentators have

claimed, making Simpson appear more "menacing." The publication of the cover photo drew

widespread criticism of racist editorializing, and yellow journalism. Subsequently time

publicly apologized.

20 43 Cal.2D 553

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Chamberlain Murder Trial

Alice Lynne (Lindy) Chamberlain-Creighton was at the centre of one of Australia's most

publicised murder trials, in which she was convicted of killing her baby daughter, Azaria.

The conviction was later overturned. When Azaria was two months old, Michael and Lindy

Chamberlain took their three children on a camping trip toUluru, arriving on 16 August 1980.

On the night of 17 August, Chamberlain reported that the child had been taken from her tent

by a dingo. A massive search was organised, but all that was found were remains of some of

the bloody clothes, which confirmed the death of baby Azaria. Her body has never been

discovered.

Although the initial coronal inquiry supported the Chamberlains' account of Azaria's

disappearance, Lindy Chamberlain was later prosecuted for the murder of her child on the

basis of the finding of the baby's jumpsuit and of tests that appeared to indicate the presence

of blood found in the Chamberlains' car. This forensic gathering convicted her of murder on

29 October 1982, and sentenced her to life imprisonment.

New evidence emerged on 2 February 1986 when a remaining item of Azaria's clothing was

found partially buried near Uluru in an isolated location, adjacent to a dingo lair. This was the

matinee jacket which the police had maintained for years did not exist. Five days later,

Chamberlain was released.

This was trial by media and prejudice of the worst kind. Many Australians simply took a

dislike to her as a person and did not care whether she was guilty or not - they just wanted her

punished anyway, regardless of the truth. Lindy Chamberlain was judged because of her

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religious beliefs (Seventh Day Adventist) and because she apparently didn't behave according

to some perceptions of how a grieving mother should behave.

Cases on Media Trial in India

In, India, trial by media has assumed significant proportions in the last decade. Some famous

criminal cases that would have gone unpunished but for the intervention of the media are

Priyadarshini Mattoo case, Jessica Lal murder case and Nitish Katara murder case. But the

media recently drew flak in the reporting of Aarushi and Hemraj murder case.

Priyadarshini Mattoo Case

Priyadarshini, a 23-year-old student of Delhi University, was raped and brutally murdered, at

her uncle’s residence in Delhi, by Santosh Kumar Singh, the son of JP Singh, an IPS officer

in 1996.

The trial court acquitted Santosh Singh.Delivering the judgment ,in 1999, the Additional

Sessions Judge. G.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.

In a 450 page judgment the judge came down heavily on the role of Delhi Police; “There has

been particular inaction by Delhi Police”, he said, while commenting that the accused’s father

may have used his official position to influence the agencies. “The influence of the father has

been there in the matter and there was deliberate inaction” (at the time his father was second

in command of the police forces in Delhi).

The helmet was found with a shattered safety glass - however the evidence was so poorly

presented that the defense was able to discount it. He further stated that the rule of law

doesn’t seem to apply to the children of those who enforce it. The release of the accused led

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to a public outcry which was supported by the media.21 It pressured the CBI to challenge the

verdict in High Court in 2000.

However till 2006, nothing productive happened. . A massive public chorus of disapproval

swung the media into action, exposing the weaknesses of the judiciary and CBI. Media

covered the public protests, providing a platform to voice opinions. Journalists campaigned

with the public demanding justice.

The excessive media coverage influenced the verdict positively. Priyadarshini’s father,

Chaman Mattoo, made frequent appearances on television, bringing the judiciary under

intense pressure. There were discussions, special shows, opinion polls conducted on news

channels. Newspapers and news sites reported the in-depth case study and questioned the

judicial system for their unacceptable approach to the case. It worked as a wake up alarm for

the legal system. The intense media spotlight accelerated the trial.

In August 2006, the case was taken up on a day-to-day hearing basis which is rare in India.

The judgment was delivered within 42 days, awarding the death penalty to Santosh Singh in

October.

Santosh Singh appealed against the death penalty sentence to the Supreme Court of India on

19th Feb 07In October 2010, the Supreme Court upheld the conviction of Santosh Kumar

Singh but reduced the death sentence to life imprisonment.Priyadarshini's father expressed

disappointment with the CBI for failing to appeal against this decision.

Jessica Lal murder case

 On the night of 30 April, 2010 at 2 AM, when the bar was closed for drink, Manu Sharma

ordered Jessica Lal to serve the drink. The refusal of drink led to their conflict. Manu Sharma

21 http://firstterm.acjnewsline.org/upload%20for%20groupC/media%20watch/Priyadarshini%20page.htm visited on 5th February, 2011.

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fired the first bullet in the air with his gun. The second round of bullet was on Jessica Lal and

with that round she died instantly. After extensive hearings with nearly a hundred witnesses,

a Delhi trial court headed by Additional Sessions Judge S. L. Bhayana, acquitted Manu

Sharma and a number of others were acquitted on 21 February 2006. in Jessica Lall Murder

case, on 21 February 2006.

In the immense uproar, hundreds of thousands of people e-mailed and SMS-ed their outrage

on petitions forwarded by media channels and newspapers to the President and others seeking

remedies for the alleged miscarriage of justice. Soon, NDTV, a news channel, received more

than 200,000 cellphone text messages urging retrial. A poll conducted by the

newspaper Hindustan Times showed that on a scale of 1 to 10, the public's faith in law

enforcement in India was about 2.7 Public pressure built up with newspapers splashing

headlines such as "No one killed Jessica", and TV channels running SMS polls. Models,

fashion designers, friends, relatives and others held candle-light vigils at India Gate in New

Delhi to protest the verdict, followed by an even bigger candle light protest accompanied by a

unique week long t-shirt campaign (slogan: we support re-investigation of Jessica Lal's

murder, let the truth come out) in Manu Sharma's hometown, Chandigarh. Hundreds of

students, MNC executives along with retired IAS and Army officers participated in the

protest.

On 25 March 2006, the Delhi High Court admitted an appeal by the police against the Jessica

Lal murder acquittals, issuing non-bailable warrants against prime accused Manu Sharma and

eight others and restraining them from leaving the country. A sting operation by the news

magazine Tehelka was shown on the TV channel STAR News, which stated how the

witnesses had been bribed and coerced into retracting their initial testimony.

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On 15 December 2006, the Delhi High Court held Manu Sharma guilty based on existing

evidence and was awarded life imprisonment. In April 2010, the Supreme Court of India

affirmed the life sentence for the guilty. 

Aarushi Talwar and Hemraj murder case.

Aarushi Talwar, a 14-year-old girl was found dead with her throat slit. Suspicion immediately

fell on the missing servant Hemraj, however subsequently his body was recovered from the

terrace of the house. The case received nationwide attention due to extensive coverage by the

media which eventually took the shape of trial-by-media. . Media reported the case without

having any concern for the honour of the family in general and the character of the victim and

her father in particular. Every effort was made by the media to highlight the elements of illicit

relationships, adultery, fornication, mystery and honour killing in a bid to challenge the

popularity of daily soaps.

Expressing its annoyance at the way things turned out in the Aarushi murder case, the

Supreme Court asked the media to exercise restraint in reportage of such sub-judice matters.

It observed “extreme caution and care in reporting such cases was required, as it is not only

the reputation of a person but a person is held guilty even before the trial in the case is over,”

Although the court acknowledged the crucial role played by the media, it indicated that some

guidelines are still required. “The media has a powerful influence. Not only the print media,

even television has reached all blocks and villages,” the bench said in a balancing act, while

expressing the need for having some kind of regulation in place.

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These observations came during the hearing of a public interest litigation filed by advocate

Surat Singh, seeking the court’s intervention to avoid increasing instances of media trial and

recurrences of what happened to Talwar’s family.

Conclusion

Though media enjoys the fundamental right of free speech on par with individual citizen, it is

more powerful than that of ordinary citizens because it is organised. The media rightly enjoys

the free speech right. But there are also certain negative aspects, which cannot be ignored.

Today the press and media instead of being a noble profession is largely being considered a

business. This commercialises the press and thereof arises the danger of media eroding the

civil rights of the citizens. It is here that law assumes importance which must find out ways

and means to restrict the monopoly trends in the media business and also look into the

problem of media violation of individual’s rights. Law must also endeavour to restore public

debate and free flow of information through the media. To quote Nani Palkhivala:

“Openness is a concomitant of a free society. Men in power try to control and corrupt the

press because they would not like anything to be known by the public which would detract

from the respect, the acclaim and adulation to which they think they are entitled. This creates

a conflict between rulers who are keepers of secrets and the press who are the tellers of

tales.”

If press freedom is attacked, it will result in the jeopardising of human rights because

press reports human rights violations of authorities and powerful sections of the society.

However, free press does not mean that the State should not intervene in its functioning; it

should intervene when the situation warrants. This intervention should only be in the interest

of the public at large. But in the name of legal intervention, the State should not impede the

free flow of information that will go a long way in protecting and promoting human rights.22

22 Andrew Vandenberg, Citizenship and Democracy in a Global Era, Mac Millan Press, 2000, p.245

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Amnesty International has rightfully stated that:

“States have a duty to protect journalists and not to prosecute them in an effort to control the

free flow of information. A free media is not only beneficial but necessary in a free society…

When faced with unjust restrictions and the threat of attack, self-censorship in the media can

have the opposite effect, aiding the covering up of abuses and fostering frustration in

marginalized communities.” 23

Thus media and journalists carry heavy responsibility in any society and are supposed to

behave as a votary of human rights and democracy and not as violators of these canons. By

indulging in media trial, press violates the basic human rights of the accused. Infact media

trial has now moved on to media verdict and media punishment which is an illegitimate use

of freedom. Having said that it is imperative to mention here that media trial is also an

appreciable effort as along with the sting operations it keeps a close watch over the

investigations and activities of police administration and executive. But there must be a

reasonable self-restriction and due emphasis should be given to the fair trial and court

procedures must be respected with adequate sense of responsibility. Throwing light on the

limitation of investigative journalism, P.M Bakshi says that “these limits primarily flow from

the right to reputation, the right to privacy and the law of contempt of court.”24

Today, there is greater need to device a delicate balance between freedom of speech of media

on the one hand and the due process rights of the suspect and accused on the other. There is a

need to balance right to privacy and freedom of speech and expression of media for “privacy

is an important right; it is an aspect of human dignity. But freedom of expression and

particularly expression by the media are cornerstone of democracy. These two powerful

23 http://web.amnsty.org/web.nsf/ visited on 29th December 2010.24 P.M Bakshi, Constitution of India, Universal Law Publication, 2008.p.43.

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human rights are often in conflict, the resolution of which can mean limiting of one right in

favour of other. Right to privacy protects fundamental aspects of the self: autonomy,

individuality, integrity. Freedom of expression, like privacy, is often seen as essential to

democracy and some see it as the most important human right. Freedom of expression applies

to the dissemination of information and ideas, including those which maybe offensive or even

harmful. It also extends to the right to receive information and ideas. It is of vital importance

in sustaining a free and impartial press, the medium by which society learns about matters of

public and political interest....The interplay between freedom of expression and privacy

shows that these rights are not necessarily in diametric opposition. Whilst the protection of

one right may limit the other, both are underpinned by the values of control and

independence. Society needs a clear, fair and effective reconciliation of these rights.”25

The 17th Law Commission in its 200th report, titled Trial by Media: Free Speech V. Fair

Trial under Criminal Procedure (Amendments to the contempt of Courts Act, 1971)26 has

recommended a law to debar the media from reporting anything prejudicial to the rights of

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

Commission has said that 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 prejudicial impact on the suspects, accused,

witnesses and judges and in general, on the administration of justice.

Media should acknowledge the fact that whatever they publish has a great impact over the

spectator. Therefore, it is the moral duty of media to show the truth and that too at the right

time and also to ensure that its way of functioning does not result in the violation of the rights

of the people which are succinctly referred to as human rights.

25 Supra note 1626 http://lawcommissionofindia.nic.in/reports/rep200.pd visited on 2nd January, 2011.

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References

1. Abhitosh Pratap Singh and Madan Mohan, (2006), Media: Facilitating Justice or

Hampering Justice? , Indian Bar Review, Vol.XXXIII, P.239.

2. Andrew Vandenberg, (2000), Citizenship and Democracy in a Global Era, Mac Millan

Press, p.245

3.A.Raghunadha Reddy,(2010) Trial by Media- A Critique From Human Rights Angle,

Nyaya Deep, Vol. X,p.31

4. D.D Basu, (2008), Commentary on the Constitution of India, 6th ed., Vol.C, p.95

5. First Press Commission Report, 1982.

6. Jagganadha Rao, Fair Trial and Free Press?, (2005), : Law’s response to Trial by Media,

Constitutionalism Human Rights and Rule of Law, Universal Law Publishing Co.,p.26

7.P.M Bakshi, (2008), Constitution of India, Universal Law Publication, Delhi.p.43.

8.http://firstterm.acjnewsline.org/upload%20for%20groupC/media%20watch/Priyadarshini

%20page.htm visited on 5th February, 2011.

9. http://indiacurrentaffairs.org/the-park-wood-episode-new-media-new-tool-to-victimize-

rape-victims-prof- madabhushi-sridhar/ visited on 28th December 2010.

10. http://www.hrdc.net/sahrdc/hrfeatures/HRF164.htm visited on 29th December 2010.

11. http://www.humanrightsfirst.orgpubsdescriptionsfairtrial.pdf visited on 28th December

2010.

12. http:// lawcommissionofindia.nic.in/reports/rep200.pd visited on 2nd January, 2011.

13.Virendra Kumar,(2005), Free Press and Independent Judiciary : Their Juxtaposition in the

Law of Contempt of Courts, Indian Law Journal, Vol. 47, No. 4, p.49

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