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By- Dr.
Shashi Srivastava
Pradeep
Kumar Srivastava
Media is regarded as one of the pillars of democracy. Freedom of
media is the freedom of people to be informed of public matters.
Free and healthy press is indispensable to functioning of the
democracy. Democracy means making of the government by the
people and to have active participation in the community
decision. It is, therefore, needed that the people be informed
about current and burning affairs of society. Duty of the press
and media is to make the people enlightened over issues relating
to public importance. It is why freedom of speech and expression
has been extended to include freedom of press and media. The
right to freedom of expression is contained in Art.19 of the
Indian Constitution. But this freedom is not absolute.
Reasonable restrictions are permitted by sub-clause (2) of the
same article. Freedom of expression does not mean the freedom to
commit contempt of court.
Parties to a litigation have a constitutional right
to have a fair trial in court of law by an impartial tribunal,
free, fair and uninfluenced by any pressure. This right of fair
trial may be defeated if the media while reporting a matter use
such a language which may have an effect to influence the mind
of a Judge and control the judicial processes. With the growth
of Cable Television and Channels, Local Radios, News Papers and
Magazines, Networks and Internet the range and reach of media
has increased a lot. In recent time there have been numerous
instances in which media has conducted the trial of an accused
and has passed the verdict even before the court passes its
judgment. This phenomenon is popularly called as media trial.
Trial is a word, which is associated with the process of
justice. Presumption of innocence is the basis of criminal
jurisprudence and it is the essential component of any judicial
system that the accused should receive a fair trial. Needless
to remind that in recent times, in order to sensationalize the
reporting and to increase its commercial value, the media starts
naming and blaming the suspect or accused. Photographs and other
materials in the form of interview etc. are published and shown
along with public reaction. The problem is more visible when the
matters involve big name and celebrities. In such cases media
reporting can swing popular sentiments either way. It is,
therefore, necessary to make a balance between the
constitutional guarantee of free media on one hand and the
individual right to fair trial on the other.
In Saibal Kumar vs. B.K. Sen,
the Supreme Court tried to discourage the tendency of media
trial and remarked,
“No doubt, it would be mischievous for a newspaper to
systematically conduct an independent investigation into a crime
for which a man has been arrested and to publish the results of
the investigation. This is because trial by newspapers, when a
trial by one of the regular tribunals of the country is going
on, must be prevented. The basis for this view is that such
action on the part of a newspaper tends to interfere with the
course of justice, whether the investigation tends to prejudice
the accused or the prosecution.”
Although our judicial system relies on the
competence, impartiality and fearlessness of the trial judge and
one can argue for unrestrained media converge of court
proceeding on the ground that it will not influence the
judgment. But even in England there has been divergence of
opinion. In view of Lord Denning, a professional judge will not
be influenced by media coverage which affects only common man.
This concept of judicial superiority was not endorsed by Lord
Dilhorne.
Even in United States the judiciary has been of the view that
the court cannot function properly if a reporting is calculated
to disturb the judicial mind. In John D. Pennekamp vs. State
of Florida,
it was observed,
“No Judge fit to be one is likely to be influenced
consciously, except by what he see or hears in court and by what
is judicially appropriate for his deliberations. However, Judges
are also human and we know better than did our forbears how
powerful is the pull of the unconscious and how treacherous the
rational process—and since Judges, however stalwart, are human,
the delicate task of administering justice ought not to be made
unduly difficult by irresponsible print.”
It is correct that contempt of court is one of the
ground on which reasonable restriction can be imposed on the
freedom of speech. The Contempt Of Court Act defines contempt by
identifying it as civil and criminal. Criminal contempt has
further been divided into three types: Scandalizing or
prejudicing trial and hindering the administration of justice.
The provision of contempt has its origin to the principle of
natural justice i.e. every accused has a right to a fair trial
along with the principle that justice should not be done only
but it must also appear to have been done. There may be many
ways to prejudice a trial. If it is allowed, a person may be
held guilty of an offence, which he has not actually committed.
No publication, which is calculated to poison the mind of a
Judge, a witness or a party or cerate an atmosphere in which the
administration of justice would be difficult or impossible,
amounts to contempt. No editor has the right to assume the role
of an investigator so as to prejudice the court against any
person. But law of contempt can only be attracted to prevent
comments when the case is sub-judice. If the case is not pending
in the court, it is of no avail. In our legal system, the courts
do not have any power to impose prior restraints on the
publication of prejudicial material during the pendency of court
proceedings.
In M.P. Lohia vs. State of West Bengal
the Supreme Court has strongly deprecated the media for
interfering with the administration of justice by publishing
one-sided articles touching on merits of cases pending in the
courts.
Pointing out that the article was a one-sided version of the
case, N. Santosh Hedge Justice said that the facts narrated
therein are materials that may be used in the forthcoming trial
in this case and that this type of article appearing in the
media would certainly interfere with the administration of
justice. He remarked-
“We deprecate this practice and caution the Publisher, Editor
and the journalist who are responsible for the said articles
against indulging in such trial by media when the issue is sub-judice.
Others concerned in journalism would take note of this
displeasure expressed by us for interfering with the
administration of justice."
Restriction on media trial is necessary so that the people may
not have a wrong perception of the administration of Justice
system. Some times it is necessary to protect the privacy of
individual. But the major concerned is, and which is the core
issue of this work is the need to check prejudicial effect
caused by a sensational reporting of a sub-judice matter. So far
as a criminal trial is concern media reporting has a more
negative influence rather than a positive effect. The media
cannot be granted a free hand in court proceedings. The media
has to be properly regulated. One way is the recourse to the Law
of Contempt. But, in the interest of democracy, it is better to
have a self-regulated and self disciplined media in comparison
to a media regulated by the court and the state.
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Additional Director, IJTR, Lucknow
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