Constitutional Law

How Free Should Free Speech be?

Ankita Amarnath Kamath

Media trials have existed in India since the 20th century. Be it the 2008 Noida Double Murder case or in a more recent context, the investigations surrounding Bollywood actor Sushant Singh Rajput’s death – the role of mass media in shaping the opinion of the general public is undeniable. It is rightly said that the media is the fourth pillar of democracy, acting as a watchdog to keep a check on legislative, executive and judicial activities thereby bringing such activities under public scrutiny and engaging public participation. But the media is no stranger to such rampant sensationalization of information in a race to garner a wider viewership base, boost TRPs and beat other news channels to emerge at the top. With no accountability for its actions, there is one question that needs answering – how free should free speech be? The author, pursuantly, aims to analyse the extent of free speech in light of media trials and explore the constant tussle between media houses’ freedom of expression and the right of an individual to a fair trial.

Balancing the Scale

As upheld by the Supreme Court in Romesh Thapar v. State of Madras, freedom of press is a right encompassed within the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. However, this right is not unbridled or unfettered. Article 19(2) imposes certain reasonable restrictions which includes within its ambit, contempt of court. In order to understand how media trials constitute contempt of court, we must delve deeper into its definition. Criminal contempt has been defined as any publication which scandalizes, prejudices any judicial proceeding or interferes in the administration of justice.

It may be argued that such trials conducted through extensive media campaigns are launched in the name of ‘seeking justice’, but at what cost? The Supreme Court, in Zahira Habibulla Sheikh v. State of Gujarat, defined a fair trial as one that involves an impartial judge, a fair prosecutor and an atmosphere of judicial calm and eliminates any prejudice against the parties or the cause itself. 

Media campaigns tend to create, in the minds of the general public, a widespread perception of guilt of the accused even before the pronouncement of the court verdict while tarnishing their reputation in the eyes of the people. This results in violating the basic tenet of presumption of innocence of the accused. Mounting public pressure and subconscious biases moulded by opinionated media coverage may also influence the judgments of courts by putting immense pressure on judges to rule a certain way thereby compromising on the impartiality of the judiciary. Needless to say, the accused’s right to a fair trial guaranteed by Article 21 of the Indian Constitution is gravely jeopardized. Thus, media trials that were aimed at seeking justice, in reality end up interfering in the administration of justice which, consequently results in contempt of court. 

The Arushi Talwar – Hemraj murders in 2008, for instance, threw the press into a frenzy. The media constructed various narratives and declared the deceased 14-year-old girl’s parents to be guilty of their own daughter’s murder demonising them in the eyes of the public. Day in and day out, the media relentlessly portrayed the accused Rajesh and Nupur Talwar as immoral, scheming and remorseless murderers. The power of the media to influence the public was witnessed in an incident wherein Rajesh Talwar was attacked by a vigilante with a meat cleaver. The Supreme Court had to intervene twice and pass orders to restrain the media from scandalous reporting.

Another aspect of media trials is in relation to privacy rights. Sensationalized accounts of every intimate detail of both the victim and the accused’s private lives being broadcast for the world to see blatantly disregards their right to privacy under Article 21 of the Indian Constitution. In highly sensitive cases, such details can not only cause mental trauma to the victim who is forced to relive the horror but can also destroy the accused’s reputation permanently. 

The media hysteria in the ongoing investigations in the wake of Bollywood actor Sushant Singh Rajput’s death is another case in point. From the accused Rhea Chakrobarty’s private messages being flashed all over news channels to the victim Sushant Singh Rajput’s medical history, drug use and intimate details of his family life all thrown out in the public domain is in clear violation of the parties’ right to privacy. 

This conflict between the media’s right to freedom of speech on one hand and the parties’ right to fair trial and privacy on the other calls for balancing the scale. A harmonious interpretation of the rights in question yields the conclusion that the media may exercise its right to free speech as long as it does not encroach upon the parties’ rights to fair trial and privacy. This signifies the need for a more responsible and sensitive media that does not exceed its legitimate jurisdiction by passing judgments and pointing fingers on the character of the parties involved. 

The Way Ahead

It is clear that a comprehensive policy framework targeted at balancing these rights is the need of the hour. Even though a regulatory body such as the Press Council of India [“PCI”] already exists to ensure high standards of journalism for print media, its powers to prevent prejudicial reporting are narrow. As per Section 14(1) of the Press Council Act 1978, the PCI can warn, admonish and censure newspaper agencies in case of any professional misconduct. However, these powers can be exercised only after the report in question has been published and the damage already done. 

Further, the PCI prescribes certain norms of journalistic conduct that urge newspaper agencies to employ a sober tone as opposed to sensationalization, publish all sides of an issue as opposed to one-sided reporting and disseminate information backed by verifiable facts and irrefutable evidence as opposed to rumours and surmises. Even though such norms are indispensable to prevent prejudicial reporting at every stage, they are more in the nature of guidelines and have no legal enforceability. Thus, the media continues to operate in opposition to PCI’s instructions, with no accountability whatsoever for these actions. The Supreme Court, in Ajay Goswami v. Union of India observed that the absence of punitive powers with the PCI restricts its ability to control prejudicial publications. 

Lastly, the PCI possesses contempt powers to restrict prejudicial publications only with respect to cases that are sub judice i.e. only after a charge sheet or challan has been filed or summons or warrant has been issued. This still leaves room for prejudicial reporting during the pre-trial phase. 

In the author’s opinion, the PCI must be granted wider powers to issue mandatory directions in instances of prejudiced reporting commencing from the pre-trial phase. This can be done by empowering the PCI to impose penalties on media houses for non-compliance with the norms of journalistic conduct. Further, the PCI’s ambit can be broadened to include electronic media so as to bring both print and electronic media under one umbrella thereby ensuring uniformity in the application of these norms. 

The 200th report of the Law Commission recommended that the media be restrained from publishing anything that causes prejudice towards the accused from the time of arrest and into investigation and trial. Pinning the starting point of a pending case from the time of arrest would prevent any prejudicial reporting in the pre-trial phase as well. In Sahara India Real Estate Corporation. Ltd. v SEBI, the Supreme Court issued guidelines empowering High Courts to direct the media to postpone publications or telecasts in certain criminal cases when there is a real risk of serious prejudice either suo motu or at the request of parties concerned. This measure is followed in the UK and has proved to be effective. 

While a shackled media threatens democracy, a transparent and accountable media is the very essence of democracy. Self-regulation can be strengthened through an independent ombudsman for lodging complaints. For instance, NDTV appointed former Attorney General Soli S. Sorabjee as an ombudsman. Such an ombudsman would serve to investigate viewer complaints and maintain high standards of integrity, credibility and ethical journalistic conduct. Increased accountability and prescription of penal consequences shall provide added impetus to media houses to report responsibly and ethically. 

Hence, the media must respect an individual’s right to fair trial and privacy by practicing self-restraint. 

Truth is never black or white. It is often found in shades of grey. As observed by the Supreme Court in Express Newspapers v. Union of India, Liberty does corrupt into license and is prone to be abused. 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.” 

The author is a student of the National Law University, Odisha.

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