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Introduction:-
The strength and importance of media in a democracy is well
recognized. Article 19(1)(a) of the Indian Constitution, which
gives freedom of speech and expression includes within its ambit,
freedom of press. The existence of a free, independent and
powerful media is the cornerstone of a democracy, especially of a
highly mixed society like India. Media is not only a medium to
express once feelings, opinions and views, but it is also
responsible and instrumental for building opinions and views on
various topics of regional, national and international agenda. The
pivotal role of the media is its ability to mobilize the thinking
process of millions. The increased role of the media in today’s
globalized and tech-savvy world was aptly put in the words of
Justice Hand of the United States Supreme Court when he said,
"The hand that
rules the press, the radio , the screen and the far spread
magazine, rules the country".
Democracy is the rule of the people. A system which has three
strong pillars. But as Indian society today has become somewhat
unstable on its 3 legs- the executive, the legislature and the
judiciary, the guarantee of Article 19 (1)(a) has given rise to a
fourth pillar- media. It plays the role of a conscious keeper, a
watchdog of the functionaries of society and attempts to attend to
the wrongs in our system, by bringing them to the knowledge of
all, hoping for correction. It is indisputable that in many
dimensions the unprecedented media revolution has resulted in
great gains for the general public. Even the judicial wing of the
state has benefited from the ethical and fearless journalism and
taken suo motu cognizance of the matters in various cases after
relying on their reports and news highlighting grave violations of
human rights. The criminal justice system in this country has many
lacunae which are used by the rich and powerful to go scot-free.
Figures speak for themselves in this case as does the conviction
rate in our country which is abysmally low at 4 percent. In such
circumstances the media plays a crucial role in not only
mobilizing public opinion but bringing to light injustices which
most likely would have gone unnoticed otherwise.
However, there are always two sides to a coin. With this increased
role and importance attached to the media, the need for its
accountability and professionalism in reportage can not be
emphasized enough. In a civil society no right to freedom,
howsoever invaluable it might be, can be considered absolute,
unlimited, or unqualified in all circumstances. The freedom of the
media, like any other freedom recognized under the constitution
has to be exercised within reasonable boundaries. With great power
comes great responsibility. Similarly, the freedom under Article
19(1) (a) is correlative with the duty not to violate any law.
Every institution is liable to be abused, and every liberty, if
left unbridled, has the tendency to become a license which would
lead to disorder and anarchy. This is the threshold on which we
are standing today. Television channels in a bid to increase their
TRP ratings are resorting to sensationalized journalism with a
view to earn a competitive edge over the others. Sting operations
have now become the order of the day. They are a part of the
hectic pace at which the media is evolving, carrying with every
sting as much promise as risk. However, though technology cannot
be thwarted but it has its limits. It can not be denied that it is
of practical importance that a precarious balance between the
fundamental right to expression and the right to ones privacy be
maintained. The second practice which has become more of a daily
occurrence now is that of Media trials. Something which was
started to show to the public at large the truth about cases has
now become a practice interfering dangerously with the justice
delivery system. Both are tools frequented by the media. And both
highlight the enormous need of what is called ‘responsible
journalism’.
Sting operations vs. Right to privacy:
Television channels have started a series of investigative
attempts with hidden cameras and other espionage devices. The
advent of miniaturized audio and video technology, specially the
pinhole camera technology, enables one to clandestinely make a
video/audio recording of a conversation and actions of
individuals. Such equipment generally has four components-- the
miniaturized camera, often of a size of a 25 paisa coin or even
smaller (pin top size), a miniature video recording device, a cord
to transmit the signals and a battery cell. The use of the cord
can be avoided through wireless transmissions.
In law enforcement, a sting operation is an operation designed to
catch a person committing a crime by means of deception. A typical
sting will have a law-enforcement officer or cooperative member of
the public play a role as criminal partner or potential victim and
go along with a suspect's actions to gather evidence of the
suspect's wrongdoing. Now the moot question that arises is whether
it is for the media to act as the ‘law enforcement agency’!
The carrying out of a sting operation may be an expression of the
right to free press but it caries with it an indomitable duty to
respect the privacy of others. The individual who is the subject
of a press or television ‘item’ has his or her personality,
reputation or career dashed to the ground after the media
exposure. He too has a fundamental right to live with dignity and
respect and a right to privacy guaranteed to him under Article 21
of the Constitution.
The movement towards the recognition of right to privacy in India
started with
Kharak Singh v. State of Uttar Pradesh and Others ,
wherein the apex court observed that it is true that our
constitution does not expressly declare a right to privacy as
fundamental right, but the said right is an essential ingredient
of personal liberty. After an elaborate appraisal of this right in
Gobind v. State of Madhya Pradesh and Another , it has been fully
incorporated under the umbrella of right to life and personal
liberty by the humanistic expansion of the Article 21 of the
Constitution.
Today, it is being witnessed that the over-inquisitive media,
which is a product of over-commercialization, is severely
encroaching the individual’s right to privacy by crossing the
boundaries of its freedom. Yet another observation of the court
which touched this aspect of violation of right to privacy of the
individuals, is found in the judgment of the Andhra Pradesh High
Court in
Labour Liberation Front v. State of Andhra Pradesh . The
Court observed as follows:
14.
Once an
incident involving prominent person or institution takes place,
the media is swinging into action and virtually leaving very
little for the prosecution or the Courts to examine the matter.
Recently, it has assumed dangerous proportions, to the extent of
intruding into the very privacy of individuals. Gross misuse of
technological advancements and the unhealthy competition in the
field of journalism resulted in obliteration of norms or
commitment to the noble profession. The freedom of speech and
expression, which is the bedrock of journalism, is subjected to
gross misuse. It must not be forgotten that only those who
maintain restraint can exercise rights and freedoms effectively.
In Mr. X v. Hospital Z the Supreme Court held that the right to
privacy may, apart from contract, also arise out of a particular
specific relationship, which may be commercial, matrimonial or
even political. Public disclosure of even true private facts may
amount to an invasion of the right to privacy.
The following observations of the Supreme Court in
R. Rajagopal
and Another v. State of Tamil Nadu and Others 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. Noone 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.
U.S. law enforcement agencies use sting operations to target any
entry point, which is being knowingly used to introduce proceeds
of crime into the financial system. Sting operations have
therefore been used against such entry points as car dealerships,
restaurants, bookmakers, cheque-cashing services, pawnshops, and
even churches. The justification for undercover operations
generally has been expressed as follows:
Covert
investigative techniques are often the most efficient, effective
and, in the case of the most virulent strains of criminality, such
as organized and major drug related crime, the only practical way
of obtaining evidence for the purposes of prosecuting and
convicting those responsible
However, former U.S. Chief Justice Earl Warren in Sherman v United
States , made an important observation stating that ‘a line must
be drawn between a trap for the unwary innocent and a trap for the
unwary criminal.’
On the other hand, the authorities of the United Kingdom have set
down a defined and set code for the commission of undercover
operations.
The ability to do great good rarely comes without some power to do
harm, and the free press is no exception to this general rule. The
press should do what it can to minimize the abuse of power
(self-scrutiny can help and so can competition), but we should
also try to understand with clarity why and how press freedom can
enrich human lives, enhance public justice, and even help to
promote economic and social development. Technology is being used
by the media to throw light upon ‘truths’ which may never have
been known to the public at large. However, the use of technology
in a rightful manner is what needs to be adequately emphasized
upon and proper guidelines be framed for the same.
Media trial
vs. Right
to free and fair trial:
Trial by media has created a ‘problem’ because it involves a tug
of war between two conflicting principles – free press and free
trial, in both of which the public are vitally interested. The
freedom of the press stems from the right of the public in a
democracy to be involved on the issues of the day, which affect
them. This is the justification for investigative and campaign
journalism.
At the same time, the right to fair trial, i.e., a trial
uninfluenced by extraneous pressures is recognized as a basic
tenet of justice in India. Provisions aimed at safeguarding this
right are contained under the Contempt of Courts Act, 1971 and
under Articles 129 and 215 of the Constitution of India. Of
particular concern to the media are restrictions which are imposed
on the discussion or publication of matters relating to the merits
of a case pending before a Court. A journalist may thus be liable
for contempt of Court if he publishes anything which might
prejudice a ‘fair trial’ or anything which impairs the
impartiality of the Court to decide a cause on its merits, whether
the proceedings before the Court be a criminal or civil
proceeding.
A number of decisions of the U.S
Supreme Court confirm the potential dangerous impact the media
could have upon trials. In the case of Billie Sol Estes , the U.S.
Supreme Court set aside the conviction of a Texas financier for
denial of his constitutional rights of
due process of
law as
during the pre-trial hearing extensive and obtrusive television
coverage took place. The Court laid down a rule that televising of
notorious
criminal trials is indeed prohibited by the “due process of law”
clause of Amendment Fourteen.
In another case of Dr.Samuel H.Sheppard , the Court held that
prejudicial publicity had denied him a fair trial. Referring to
the televised trials of Michael Jackson and O.J.Simpson, Justice
Michael Kirby stated:
The judiciary which becomes caught up in such entertainment, by
the public televising of its process, will struggle (sometimes
successfully, sometimes not) to maintain the dignity and justice
that is the accused's due. But these are not the media's concerns.
Jurists should be in no doubt that the media's concerns are
entertainment, money-making and, ultimately, the assertion of the
media's power.
In England too, the House of Lords in the celebrated case of
Attorney General v. British Broadcasting Corporation has agreed
that media trials affect the judges despite the claim of judicial
superiority over human frailty and it was observed that a man may
not be able to put that which he has seen, heard or read entirely
out of his mind and that he may be subconsciously affected by it.
The Courts and Tribunals have been specially set up to deal with
the cases and they have expertise to decide the matters according
to the procedure established by the law. Media’s trial is just
like awarding sentence before giving the verdict at the first
instance. The court held that it is important to understand that
any other authority cannot usurp the functions of the courts in a
civilized society.
Similarly there have been a plethora of cases in India on the
point. The observations of the Delhi High Court in
Bofors Case or
Kartongen Kemi Och Forvaltning AB and Ors. v. State through CBI
are very much relevant, as the Court weighed in favour of the
accused’s right of fair trial while calculating the role of media
in streamlining the criminal justice system:
10. It is said
and to great extent correctly that through media publicity those
who know about the incident may come forward with information, it
prevents perjury by placing witnesses under public gaze and it
reduces crime through the public expression of disapproval for
crime and last but not the least it promotes the public discussion
of important issues. All this is done in the interest of freedom
of communication and right of information little realizing that
right to a fair trial is equally valuable. Such a right has been
emphatically recognized by the European Court of Human Rights:
...Again
it cannot be excluded that the public becoming accustomed to the
regular spectacle of pseudo trials in the news media might in the
long run have nefarious consequences for the acceptance of the
courts as the proper forum for the settlement of legal disputes.
The ever-increasing tendency to use media while the matter is sub-judice
has been frowned down by the courts including the Supreme Court of
India on the several occasions. In
State of Maharashtra v.
Rajendra Jawanmal Gandhi, the Supreme Court observed:
There is
procedure established by law governing the conduct of trial of a
person accused of an offence. A trial by press, electronic media
or public agitation is very antithesis of rule of law. It can well
lead to miscarriage of justice. A judge has to guard himself
against any such pressure and is to be guided strictly by rules of
law. If he finds the person guilty of an offence he is then to
address himself to the question of sentence to be awarded to him
in accordance with the provisions of law.
The position was most aptly summed up in the words of Justice
H.R.Khanna,: -
Certain
aspects of a case are so much highlighted by the press that the
publicity gives rise to strong public emotions. The inevitable
effect of that is to prejudice the case of one party or the other
for a fair trial. We must consider the question as to what extent
are restraints necessary and have to be exercised by the press
with a view to preserving the purity of judicial process. At the
same time, we have to guard against another danger. A person
cannot, as I said speaking for a Full Bench of the Delhi High
Court in 1969, by starting some kind of judicial proceedings in
respect of matter of vital public importance stifle all public
discussions of that matter on pain of contempt of court. A line to
balance the whole thing has to be drawn at some point. It also
seems necessary in exercising the power of contempt of court or
legislature vis-à-vis the press that no hyper-sensitivity is shown
and due account is taken of the proper functioning of a free press
in a democratic society. This is vital for ensuring the health of
democracy. At the same time the press must also keep in view its
responsibility and see that nothing is done as may bring the
courts or the legislature into disrepute and make the people lose
faith in these institutions.
The Hon’ble Supreme Court in the case of
Rajendra Sail v. Madhya
Pradesh High Court Bar Association and Others,
observed that for rule of law and orderly society, a free
responsible press and an independent judiciary are both
indispensable and both have to be, therefore, protected. The aim
and duty of both is to bring out the truth. And it is well known
that the truth is often found in shades of grey. Therefore the
role of both can not be but emphasized enough, especially in a ‘new
India’,
where the public is becoming more aware and sensitive to its
surroundings then ever before. The only way of functioning orderly
is to maintain the delicate balance between the two. The country
can not function without two of the pillars its people trust the
most.
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The
author can be reached at: sahay@legalserviceindia.com
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