“The tension between the courts and the media revolves around two general concerns. The first is that there should be no ‘trial by media’; and the second is that it is not for the press or anyone else to ‘prejudge’ a case. Justice demands that people should be tried by courts of law and not be pilloried by the press.”
Rajeev Dhavan in his “Publish and be damned – Censorship and Intolerance in India”
Key concepts such as free speech, freedom of the press, the right to life, the right to fair trial, and contempt of court have once again come to centre stage, thanks to a recent judgment and incidents of legal and judicial significance across the country. Three weeks ago, when the Supreme Court of India quashed criminal proceedings against Tamil film actor Kushboo for her remarks on pre-marital sex, live-in relationships, and the need for sex education in schools in a 2005 interview to a Tamil weekly, human rights activists and progressive writers hailed the verdict.
Understandably, the judgment came as a big relief to the actor, against whom as many as 23 complaints had been filed in several courts across the State under Sections 499 and 500 (criminal defamation) of the Indian Penal Code, obviously with the intention of harassing the popular actor. A couple of regional parties organised a demonstration in which women participated with brooms in hand. This forced Kushboo to come out with an apology to Tamils in a television broadcast. Several Tamil publications saw Kushboo's stand as an affront to Tamil sentiments.
What was Kushboo's alleged offence? All she did was comment on certain findings of a survey the magazine had conducted. Asked about her views on a contention that there was increasing incidence of pre-marital sex among young girls, she cautioned them against sexually transmitted diseases. This perfectly sensible advice was misinterpreted by her detractors as a licence for immoral action and, believe it or not, an insult to the dignity of Tamil women. The judges rejected the complaints and upheld her right to free speech.
The IPL issue
Another event that attracted intense media coverage was the IPL scandal that saw the ouster of a Union Minister of State and culminated in the suspension of IPL Commissioner and chairman Lalit Modi. With high news potential provided by the presence of a ‘mysterious' woman player among the stakeholders of the Kochi franchise, the TV channels had a field day, with the print media not lagging far behind. All sorts of speculative stories revolving round the relationship between the Minister, Shashi Tharoor, and Sunanda Pushkar did the rounds in air and in print. The accent was on denigrating the character and competence of the businesswoman. This kind of ‘investigative journalism' has nothing to do with the truth-telling function of the news media. What it does is to prejudice the course of public judgment and eventually justice.
The ‘right to fair trial' is an integral part of the Indian criminal justice system. Along with the right to privacy, the right to fair trial flows from the broader fundamental right to life guaranteed by Article 21 of the Indian Constitution. The right to fair trial comprises many other rights that include the right to be presumed innocent unless or until proved guilty. These rights are no less important than the freedom of speech and expression guaranteed by Article 19(1)(a).
The Law Commission of India in its 200th report, released in August 2006, under the title “Trial by Media: Free Speech and Fair Trial Under Criminal Procedure Code, 1973” elaborately deals with several aspects of the rights relating to freedom of speech, freedom of the press, and freedom of fair trial. Law Commission Chairman Justice M. Jagannadha Rao says that the subject was taken up by the Commission suo motu,”having regard to the extensive prejudicial coverage of crime and information about suspects and accused, both in the print and electronic media.”
“There is today a feeling,” he explains, “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, witnesses and even Judges and in general, on the administration of justice.” He points out that under the Indian criminal justice system, a suspect or accused is entitled to a fair procedure and is “presumed to be innocent till proved guilty in a court” and no one “can be allowed to prejudge or prejudice his case by the time it goes to trial.”
The Law Commission's report expresses concern over the fact that there is very little restraint in the media insofar as the administration of criminal justice is concerned. It reminds the media that while freedom of speech and expression is an important right, it is not absolute inasmuch as the Constitution itself has placed “reasonable restrictions” on it, with the restrictions encompassing the fair administration of justice as protected by the Contempt of Courts Act, 1971.
Explaining how media actions affect the administration of justice, the report says that “excessive publicity” about a suspect or an accused before trial prejudices a fair trial or results in characterising him as a person who has committed the crime; and that this amounts to undue interference with the administration of justice, inviting proceedings for contempt of court against the media.
The underlying issue here is this: the media, while zealously protecting their entitlements and space, must accept social responsibility – the onerous obligation of upholding the larger interests of democracy, which means journalists do not have a licence to trample on the rights and dignity of others.