The Author, Manoj Sharma, is a practising advocate in the Supreme Court of India and the High Court of Delhi at New Delhi for more than 25 years and also a trained Mediator in the Delhi High Court Mediation and Conciliation Centre (“SAMADHAN”).
For an Effective Governance of a democratic setup in our Country, there are three known and established pillars, the legislature, the executive and the judiciary. However, with a passage of time, the Press and Media has also been recognized as a fourth pillar of Democracy. The importance of the Media and Press has been equally realized, not less than the other three wings of Democracy. It is often said who will govern the Governance. The Media and Press had played a very crucial role as a WATCHDOG over all three wings of the Democracy.
The Media and Press have become one of the most effective bridges between the Government, its wings and the general public of the Country. The three wings work within the framework of the Constitution of India and have their respective limitations and Jurisdiction. The Parliament and Judicial Proceedings are held and conducted as per the Statutes setup by the Constitution. They ensure that they do not encroach upon each other's jurisdiction in order to avoid any constitutional conflict or dispute.
The Government Policies and the Judicial Pronouncements/Judgments of public importance and interest, by the Courts of law are made accessible to the General Public through the Press and Media. The press and media played a crucial role after independence and, more particularly, after the adoption of our Constitution in 1950. The Media became the mouthpiece for the Government and the Public, through visual prints and audio, the entire Country and its Citizens gained knowledge and information by sitting miles away from the centre of Governance. During the time of an unfortunate example of encroachment by one pillar of Governance on all others which brought constitutional crisis, the Emergency in 1975, the importance of the Speech and Expression including the Press and Media was felt a lot and needed as during the time of Emergency, the entire Nation was disconnected from the Government and Judicial system was under shadow as the Press and Media was completely gagged-up or reported as per the whims of the Government.
The Hon’ble Supreme Court of India and various High Courts in the catena of the Judgments held that the Right of Speech and Expression are one of the most important Fundamental Rights as provided by the Constitution. The Supreme Court of India in the case of “Bennett Coleman Versus Union of India, AIR 1972 SC 106” described the freedom of the press as “ARK of the Covenant of Democracy” and held that the restrictions on newsprint in import amounted to a direct violation of the Freedom of Speech and Expression.
Further, the Hon’ble Supreme Court in the case of “Brij Bhushan Versus State of Delhi, AIR 1950 SC 129” decided the constitutionality of Pre–Censorship and held that the order of pre Pre–Censorship on a journal was unconstitutional and such Censorship cannot be justified on the ground of maintaining the public order, unless there is a clear and immediate threat of violence and disorder. In the case of “Romesh Thappar Vs. State of Madras, AIR 1950 SC 124” it was held by the Hon’ble Supreme Court that the Freedom of Speech and Expression includes not just the right to express one’s views but also the Right to Circulate those views to a wider audience and the Court struck down the Madras Maintenance of Public Order Act for violating the Right to Free Speech and Expression.
Further, the Hon’ble Supreme Court in the case of “Kameshwar Prasad Vs. State of Bihar, AIR 1962 SC 116” held that the disqualification imposed on Government Servants from participating in demonstrations constituted an unreasonable restrictions on their freedom of speech and struck down the relevant provisions of the Bihar Government Servants Conduct Rules, 1956 that restricted the freedom of speech of Government Servants. In the case of “Prabha Dutt Vs. Union of India, AIR 1982 SC 6”, it was held by the Court that the right of a journalist seeking permission to interview a death row convict in not an absolute right under the Freedom of Press and the State has the authority to deny such request based on reasonable grounds.
The Media became one of the strongest medium of expression and speech of the Society. The Hon’ble Supreme Court of India in one of its Judgments held that the Media undoubtedly is a very vital part of the Democracy and has right to fair criticism of Courts Order/Judgments, however subject to reasonable restrictions as provided by the Constitution keeping in mind that freedom is a precious gift, however, uncontrolled and absolute freedom may be equally dangerous to the Democratic-Setup.
With the revolution in the Communication Sector, the Press and Media became more effective mode not only to reach to the people of the Country at far-flung distance at no time but to reach to the Globe and billions of people around the World. The impact of the media during the pandemic has a cascading effect. The more communication, the more news, and so therefore more responsibilities on the Media.
Over time, the media has been reacting at the speed of light to the general public. The Trials are not confined to the courtrooms only but are discussed and debated more through the Media. The Media-Trial begins from the date of reporting of the incident and in many cases even before the completion of the investigation by the Investigating Agencies and in no time the public opinions are formed and the Judgment/Verdict is delivered through the Media.
The Media-Trials are so fast track that even much before the framing of Charges by the Court of law, the verdict is delivered through the Media in public domain. The Media Trial in many cases are based on incomplete, unverified facts and on incomplete investigation and reports. It is based on more sensation and mood of the public and in some cases politically and religiously motivated. The impact of Media Trial is so much that it affects the proceedings of the court directly or indirectly. After all, the Judges and the Judicial officers are human being and vulnerable to the public opinion based on Media-Trial. The pressure on the Courts and the Judges is so immense beyond control that it may affect the Trial and consequently the Verdicts. Though, it is always said Justice delayed is Justice denied, seldom, it is absolute true that justice hurried leads to miscarriage of justice.
Therefore, the Media-Trial should be subject to certain restrictions to the extent and especially when the matter is sub-judice before the Court of law or subject to a courtroom Trial. Further, the Press and Media should refrain from commenting or setting up their own investigation/probe parallel to the Government Investigating Agencies. It is imperative for all four pillars to realize their respective limitations and to ensure that their conduct in any way does not encroach upon the Jurisdiction of other democracies and must respect the mutual authority and independence as guaranteed by the Constitution.
In the recent past, the Courts have to step in to stop the Media and Press from reporting personal details in public, especially in the cases of sexual harassment against highly placed individuals sitting on the Constitutional Posts. Without losing time, the Media Reports render its Judgment and even before a case is open and the case is closed with the Media’s own opinion and judgment. The consequences of such Media Trials are not only dangerous, but it completely devastates the reputation of the victim as well as the alleged Accused.
The role of the media is expected not to be sponsored and controlled by the government, and it would have to have more responsibility on its shoulders. It has also been observed that in today’s time, the Audio and Visual effects of reporting is like serving dinner on a dining table and such reporting feed the General Public to form an opinion instantly, which is so reflected in the behaviors and values in the Society.
To mention one example when the Media-Trial was based on public opinion which activated the Government and the Judiciary on a fastest mode, was the Famous case of “NIRBHAYA” when the entire Nation came together to seek justice for the victim and on the basis of mood and sentiments of the public, the Trial was setup on the fastest mode by setting up Fast-Track Court. The role played by the Media in the case of “NIRBHAYA”, united the entire Nation against the sexual harassment cases which led to the steps including serious and time bound investigation by the Investigating Agencies and setting-up the Fast-Track court to hear the matter on day-to-day basis to deliver justice to the victim and her family who suffered from conventional system of conducting Trial which takes years to conclude.
However, the balance needs to be maintained and the Media must not assume the role to hold the Trials and overreach the Procedure set up by the Rule of Law. The restrictions should firstly be self-imposed that the Trial by the Media does not become a drawing room Trial but the Trial/Verdict is to be delivered by the Court of law in accordance with the Procedure, which is to be respected and honoured.
In the time of alarming state of affairs, there is an urgent need of formulation of strong Regulatory Authority and Guidelines with more effective teeth to strike the balance between the Freedom of Speech of the Media as well as that of the individual and group of the people who are subjected to Media-Trial, In order to effectively minimize the menace of the Media-Trial in undermining the Authorities of the Court of Law.
