“Media trials are defined as certain regional or national news ‘events’ in which the criminal justice system is co-opted by the media as a source of high drama and entertainment”
– M Nanavati v. State of Maharashtra [1962 AIR 605]
No right guaranteed to the citizens of India, including fundamental freedoms granted by the Constitution of India, are absolute in nature. Press or media, considered the fourth pillar of democracy, derive rights from the right to freedom of speech and expression in Article 19(1)(a) of the Constitution, but the same are also subject to reasonable restriction. Through provisions and judicial precedents, these caveats have evolved over decades. Some guidelines have also been issued to ensure that the conduct of media channels and anchors remain responsible, neutral, unbiased and professional, meeting the Constitutional mandate. Conduct of television channels remains in the breach, however.
Public platforms, especially the commercial “mainstream” channels, have come under serious scrutiny by courts, especially in recent times, for running contentious shows, some amounting to outright media trials. Since these channels play a significant role in affecting the opinions of a wide populace, the courts have, time and again, defined their limits and emphasised upon the media entering the court’s arena by touching upon matters that are sub-judice or criminal in nature, running a parallel media trial.
There have been many judgements delivered by Constitutional Courts where they have laid down the caveats on freedom of speech and expression for the media. The Supreme Courts in the Harijai Singh and Anr [AIR1997SC73], a bench led by Justice Kuldip Singh had held that press freedom is neither total nor infinite.
“But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an unrestricted freedom of the speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists. In an organised society, the rights of the press have to be recognised with its duties and responsibilities towards the society. Public order, decency, morality and such other things must be safeguarded. The protective cover of press freedom must not be thrown open for wrong doings.” (Para 10)
In this judgement the Supreme Court has also emphasised that media discussions on ongoing investigations and cases need to stay within responsible limits to ensure that a thorough investigation and an impartial trial of are conducted. As per the Court, when such media trials and coverage of cases cross the moral, ethical and legal line, and are televised only to generate a sensation and to draw profit out it, the same must be prohibited by law.
“It is the duty of a true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as a news item. The presentation of the news should be truthful, objective and comprehensive without any false and distorted expression.” (Para 10)
In another case of Venkatesh @ Chandra and Anr vs. State of Karnataka [Criminal Appeal Nos. 1476-1477 of 2018], the Supreme Court of India bench of former Justices U.U. Lalit and P S Narasimha had briefly dealt with the issue of media trials while delivering a judgment on conviction on offense of dacoity. In the judgment, the bench had criticised the practice of prosecuting agency recording the entire statement of the accused rather than only that part of the statement which leads to the discovery of facts as per Section 27 of the Evidence Act. The Court observed that only that part of the statement should be covered that leads to discovery as such statements may have a direct tendency to influence and prejudice the mind of the Court.
In the same judgment, the court had emphasised that matters relation to crime, including what forms a conclusive piece of evidence, must be dealt by courts and not by media. According to the Court, holding any debates or discussions that touch upon matters that fall within the domain of Courts “amount to direct interference in administration of Criminal Justice.”
“What has further aggravated the situation is the fact that said statements on DVD recorded by the Investigating Agency were played and published in a program named “Putta Mutta” by Udaya TV. Allowing said DVD to go into the hands of a private TV channel so that it could be played and published in a program is nothing but dereliction of duty and direct interference in the administration of Justice. All matters relating to the crime and whether a particular thing happens to be a conclusive piece of evidence must be dealt with by a Court of Law and not through a TV channel. If at all there was a voluntary statement, the matter would be dealt with by the Court of Law. The public platform is not a place for such debate or proof of what otherwise is the exclusive domain and function of Courts of law. Any such debate or discussion touching upon matters which are in the domain of Courts would amount to direct interference in administration of Criminal Justice.” (Para 21)
While the aforementioned cases briefly touched upon the issue of media trials, they also touched upon the impact on the on minds of viewers and the harm that it causes in the administration of justice.
Finally, the issue of media trials was fully dealt with by the Bombay High Court in the case of Nilesh Navalakha and ors vs Union of India and ors. [PIL (ST) No. 92252 of 2020], wherein the bench led by the then Chief Justice Dipankar Dutta had considered Public Interest Litigations (PILs) filed against the media trials being run by certain TV channels in the name of “investigative journalism” and the role that electronic media played in derogation of characters of those being investigated by police and courts in the Sushant Singh Rajput case. The bench, also comprising Justice Girish Kulkarni, had admonished media houses of indulging in such a media trial while reiterating the role of statutory authorities under the Cable Television Networks Act and directed them to take necessary action in complaints received by them.
Nilesh Navalakha and ors vs Union of India and ors
Facts of the case:
On June 14, 2020, actor Sushant Singh Rajput was reported to have died an unnatural death in his house in Mumbai. Pursuant to the news of his death, various TV channels initiated intense discussion during prime time on the probable cause of death of the actor. Some of such channels, under the guise of “investigative journalism”, spread the message among its viewers that the Mumbai Police has been passing off a homicidal death as a suicidal death. On this premise, the news channel ran their parallel trial and a close acquaintance of the actor, who herself is an actress, was repeatedly accused of orchestrating Rajput’s death. Even as the Supreme Court of India, Central Bureau of Investigation, Enforcement Directorate and the Narcotics Control Bureau were investigating the multiple facets of the case, TV channels were indulging in their own separate trials and theories.
Issues highlighted and relief sought by the petitions filed:
The judgment dealt with four different petitions pertaining to media coverage by certain news channels on the suicide case of actor Sushant Singh Rajput which led to a media trial affecting the rights of the accused as well as maligning the reputation of Mumbai Police. The petitioners included individuals Prerna Arora, Asim Sarode, Nilesh Navalakha and others; Mahesh Narayan Singh (former IPS) and other retired civil servants as well as an NGO named In Pursuit of Justice.
In the petitions moved before the Supreme Court, the issue highlighted with reference to the SSR case was that some of the TV channels in their programmes displayed headlines which, in effect, taunt the actor for dying by suicide and raised question as to whether he was into consumption of drugs. The insensitivity of such TV channels was emphasised upon in the pleas filed, when the petitioners highlighted the headlines/questions that were displayed/posed knowing fully well that the same would/could never be rebutted by the individual to whom it is directed.
The court noted that all but one of the writ petitions raised common issues with regard to the role of the electronic media in reporting matters concerning investigation into the unnatural death of the actor, thus amounting to a ‘media trial’. In view of the same, the petitioners had alleged that the electronic media in derogation of their legitimate media rights were broadcasting irresponsible and unethical news programmes of a nature amounting to slander and also amounting to a direct interference in the course of investigation, as undertaken by the investigating agencies, of a highly prejudicial nature. The petitioners further contended that some of the television channels had televised interviews with material witnesses and even indulged in cross-examining witnesses.
It was mainly asserted by the petitioner that the electronic media took upon themselves the role of the investigating agencies, prosecutors and adjudicators in pronouncing persons guilty of committing an offence, even before the formal investigation was completed by the investigating agencies. Additionally, it was claimed that the news channels had also resorted to reckless reporting against the state agencies on whom the powers of investigation are conferred by law. It is the petitioners’ main contention that such interference by the electronic media in the course of a lawful investigation of any alleged crime defies all cannons of legal legitimacy.
Based on these grounds, the reliefs sought by the petitioners were for the issuance of necessary directions to the media channels by courts urging for temporary postponement of news reporting in any form of a media trial or parallel investigation into the probe being done regarding the alleged unnatural death of the actor. The petitioners had also prayed for the issuance of the writ of mandamus containing directions/guidelines not to allow electronic, radio, internet or any other form of media from publishing any false, derogatory and scandalous news reports which may either jeopardize the reputation of the police and affect administration of justice, and to only indulge in a balanced ethical and objective reporting.
Observations made by the Court on freedom of speech of electronic media:
The 251-page judgment of the Bombay High Court, a constitutional court, is now the most recent jurisprudential marker on established standards for media publications, electronic media and networks when they report ongoing investigations and legal proceedings. While laying down several norms specifying the conduct that needs to be followed by anchors during debates and programmes, the Court noted that the petitioners had not urged the Court for a gag order, but had rather moved the courts to right a wrong in view of the apathy of the Union of India and the Ministry of Information and Broadcasting. (Para 212)
Through the judgment, one of the main questions dealt by the Court was whether media conducting a trial when a police investigation is in progress amounts to obstruction in administration of justice and thus amounts to criminal contempt of court.
“…we hold that any act done or publication made which is presumed by the appropriate court (having power to punish for contempt) to cause prejudice to mankind and affect a fair investigation of crime as well as a fair trial of the accused, being essential steps for “administration of justice”, could attract sub-clause (iii) of section 2(c) of the CoC (Contempt of Court) Act depending upon the circumstances and be dealt with in accordance with law.” (Para 248)
The court also observed that “a person cannot be dehumanized, disreputed, vilified and maligned qua his societal existence at the hands of the media in an attempt to sensationalize any crime which is under investigation.” (Para 247)
In its judgement, the Court had acknowledged that ‘Freedom of speech and expression’ guaranteed by Article 19(1)(a) of the Constitution is indeed the life blood of our democracy. The court had further deemed the said right to be crucial as it ensures free flow of opinions and ideas essential to sustain the collective life of the citizenry. However, the Court had stated that the right to freedom of speech and expression like all other rights in the Constitution is also not absolute; it is subject to imposition of reasonable restrictions. Re-iterating this, the Court had stated that
“Notwithstanding that freedom of speech is the bulwark of a democratic government and the role of the press/media to discover the truth and to ensure proper functioning of the democratic process is undoubtedly salutary, at the same time, the press/media must remember that its concern for discovery of truth and maintenance of purity in all streams of good governance by opening up channels of free discussion of issues should stop short of exceeding the permissible legal and Constitutional means.” (Para 228)
The court also emphasised upon the role that media plays in moulding the opinion of the common person in India, making it all the more essential for them to abide by the rules of responsibility, neutrality and impartiality in their reporting.
“Given the circumstance that the press/media has the ability to mould the opinion of the society by publicity of certain facets of an investigative process, which could give rise to strong public emotions and prejudice the case of one party or the other, it ought to refrain from taking stances in its presentations which are biased and show a predilection for a particular point of view having enormous potential of deflecting the course of justice.” (Para 312)
While the Court recognised the existence of many judgments of the Supreme Court as well as guidelines issued by self-regulatory mechanisms that aims to keep media under check, it emphasised the need for courts to bring in some corrective measures.
“Drawing from experience, there is good enough reason to conclude that the hope and trust are belied and the self-regulatory mechanism has failed to deliver in adequate measure in keeping erring media houses under check. It is now time that some corrective action is taken, lest judicial independence remains only on paper and right-thinking people start losing faith in the justice delivery system and doubt the capacity of the Courts to correct what needs to be corrected.” (Para 316)
Observations made by the Court on media playing the role of investigator(s):
In the judgment, the Court had specifically mentioned the programmes that were run by Times Now and Republic TV. Commenting on the claims made by these channels, the Court remarked upon the various concerns in their coverage, from lack of courtesy toward women, propagation of unfounded theories and uncalled scathing attacks against Mumbai Police.
“In the process, in an attempt to out-smart each other (for reasons which we need not discuss here), these two TV channels started a vicious campaign of masquerading as the crusaders of truth and justice and the saviours of the situation thereby exposing, what in their perception, Mumbai Police had suppressed, caring less for the rights of other stakeholders and throwing the commands of the Cr.P.C. and all sense of propriety to the winds. It amuses us not a little that Republic TV doffed its own hat, in appreciation of what its team had achieved, without realizing that it could be irking and invite adverse comments.” (Para 329)
“These TV channels took upon themselves the role of the investigator, the prosecutor as well as the Judge and delivered the verdict as if, during the pandemic, except they all organs of the State were in slumber.” (Para 329)
On the media deeming the investigation of the Mumbai Police to be shoddy even as the Supreme Court had expressed their prima facie satisfaction of Mumbai Police not having indulged in any wrong doing, the Court stated the same to be disregard of the rule of law. In the judgment, the court held the same to be lacking in bona fides and aimed at interfering with and/or obstructing administration of justice. Furthermore, the court found the same to have the propensity to shake the public confidence in the capability of the police machinery and the efficacy of the judiciary.
“We have no hesitation to record that this sort of reporting by the media is immensely prejudicial to the interests of the accused and could dent the process of a future fair trial and derail due administration of criminal justice, once the matter reaches the appropriate court having jurisdiction.” (Para 329)
On the issue of programmes levying unfounded accusations and allegations, in this case against Mumbai Police, even as the cases await verdict in court, the Court instructed media houses to not display any biased information or incorrect reporting.
“Any biased information or incorrect reporting may damage not only the good and clean reputation of a police officer, built over the years, but also the institution to which he belongs. We need to remind that every journalist/reporter has an overriding duty to the society of educating the masses with fair, accurate, trustworthy and responsible reports relating to reportable events/incidents and above all to the standards of his/her profession. Thus, the temptation to sensationalize should be resisted.” (Para 331)
Specific directions issued by the Court:
The court issued the following specific restrictions on press/media and directed the media to refrain from displaying/printing any news item or initiating debate/discussion in the nature:
- In relation to death by suicide, depicting the deceased as one having a weak character or intruding in any manner on the privacy of the deceased;
- That causes prejudice to an ongoing inquiry/investigation by:
i) Referring to the character of the accused/victim and creating an atmosphere of prejudice for both;
ii) Holding interviews with the victim, the witnesses and/or any of their family members and displaying it on screen;
iii) Analysing versions of witnesses, whose evidence could be vital at the stage of trial;
iv) Publishing a confession allegedly made to a police officer by an accused and trying to make the public believe that the same is a piece of evidence which is admissible before a Court and there is no reason for the Court not to act upon it, without letting the public know the nitty-gritty of the Evidence Act, 1872;
v) Printing photographs of an accused and thereby facilitating his identification;
vi) Criticising the investigative agency based on half-baked information without proper research;
vii) Pronouncing on the merits of the case, including pre-judging the guilt or innocence qua an accused or an individual not yet wanted in a case, as the case may be;
viii) Recreating/reconstructing a crime scene and depicting how the accused committed the crime;
ix) Predicting the proposed/future course of action including steps that ought to be taken in a particular direction to complete the investigation; and
x) Leaking sensitive and confidential information from materials collected by the investigating agency;
- Acting in any manner so as to violate the provisions of the Programme Code as prescribed under section 5 of the CTVN Act read with rule 6 of the CTVN Rules and thereby inviting contempt of court; and
- Indulging in character assassination of any individual and thereby mar his reputation. (Para 349)
The court held that these directions are not exhaustive but indicative and any news report by press/media ought to conform to Programme Code, the norms of journalistic standards and the Code of Ethics and Broadcasting Regulations; and any default would invite not only action from concerned authorities under the law but would also amount to criminal contempt of court under the CoC Act. (Para 350)
Directions for responsibly inviting guests at debates:
In the judgment, the court also took into consideration the contention raised by media houses that when guests are invited to speak, it is difficult to censor their statements. The court held that while that may be true, it does not grant any speaker the license to either abuse or defame any particular individual which would make the channel as well as the individual liable for defamation and in case it amounts to obstruction to administration of justice then both the media house and the speaker can be liable for criminal contempt of court.
“It has been urged on behalf of the media houses that on diverse occasions, the guests are invited to speak and address the audience on a particular topic during programmes which are telecast live and, in such cases, it is difficult for the media houses to censor the statements of such guests. What the media houses say could be true, but that would not grant any speaker the license to either abuse or defame any particular individual, who could be the target of the speech, to tarnish his reputation in the eyes of the viewers or to indulge in interference with and/or obstruction to administration of justice by such public speaking.” (Para 351)
The bench did not limit themselves to only the conduct of the anchors during the programmes, but also issued guidelines for when guests are invited to the programmes for their opinions. The court held that in case a defamatory statement is made, the targeted individual could sue the media as well as the speaker. On the other hand, if any speaker indulges in interference with and/or obstruction to administration of justice by such public speaking, both the media house and the speaker may be proceeded against for criminal contempt.
“It would not be enough for the media house to put up a disclaimer at the end of the programme that it does not associate itself with the views of the speaker and thereby evade liability. To obviate such situation, the media houses would be well advised to inform, guide and advise the guest speakers to refrain from making public utterances which are likely to interfere with and/or obstruct administration of justice and thereby attract contempt.” (Para 351)
The court further emphasised upon the essential role that anchor plays to ensure that debates do not drift away from topics of discussions and drift away from permissible limits.
“The role of the anchor, in such cases, is also important. It is for him/her to apply his/her mind and avoid the programme from drifting beyond the permissible limits. Muting the speaker if he flies off or shows tendency of flying off at a tangent could be one of several ways to avoid embarrassment as well as contempt.” (Para 351)
Furthermore, the following fundamental directives were also issued by the Court:
- The privacy and dignity of the victim must always be respected;
- The sensitive information related to the case should never be made public.
- The confession/admission made in front of an investigator cannot published;
- The interviews of anyone who is connected to the case may not be undertaken when the matter is sub-judice.
Forming the conclusion of the judgment were similar other observations of the Court emphasised that the press must deliver news stories in their genuine and accurate form. The Court further stated that it must include the account of the events as it was honestly recorded, without exaggeration or bias, and any form of distortion and the incidence should not be overemphasised for the sake of gaining more and more viewers.
The complete judgment can be read below:
Bombay High Court reiterates Nilesh Navalakha judgment:
The Bombay High Court was faced with another case where media houses had crossed a line and published objectionable content in a criminal case, harming the reputation of the parties involved.
Facts of the case:
In Pune, a Class 10 student had fallen off the balcony of her house and died. After this incident, various print and electronic media started circulating news alleging that the deceased was having illicit relations with one Y. Around 12 audio clips of alleged conversations of daughter X with some unknown persons were circulated by political parties and media, the contents of which were to defame the name and image of the Petitioner and his family and his daughter.
The Counsel for the petitioner, Shirish Gupte, cited the directions and guidelines issued by the Bombay High Court bench headed by Chief Justice Dipankar Dutta in Nilesh Navalakha v. UOI and ors. The counsel had provided how the High Court bench had reprimanded the media houses and warned them against conducting ‘media trials’ and had said that that if news channels had in fact found any incriminating evidence pertaining to any case, they should provide it to the police.
Order of the Court:
The bench comprising Justices Manish Pitale and SS Shinde issued notice to the respondents and in the interim directed them to scrupulously follow the guidelines in the Nilesh Navlakha case and not to publish or give any unnecessary publicity to the incident of death of the daughter X of the Petitioner and further alleged illicit relationship with Y.
The order can be read here:
Concrete implementation remains lacking, anchors continue with media trials:
“The role of the anchor is very important. Hate speech either takes place in the mainstream television or it takes place in the social media. Social media is largely unregulated. As far as mainstream television channel is concerned, we still hold sway, there the role of anchor is very critical because the moment you see somebody going into hate speech, it’s the duty of the anchor to immediately see that he doesn’t allow that person to say anything further.”
Retired Supreme Court Justice KM Joseph, along with Justice Hrishikesh Roy, had emphasised the importance of press freedom and role of anchor while hearing a clutch of 11 writ petitions seeking the court’s intervention to regulate hate speech. On September 21, 2022 the Supreme Court bench in the matter of Shaheen Abdullah vs. Union of India [W.P.(C) No. 940/2022] had singled out the debates conducted on the electronic media which they held were “the chief medium of hate speech”.
During the hearings of the case, which is still being heard in the Supreme Court albeit by a different bench, had once again brought the issue of the negative role that anchors have been playing and the spread of hate and misinformation through media. Notably, in the said matter the necessity of regulating media and laying down laws for the same was also highlighted.
Justice Joseph observed, “We should have a proper legal framework unless we will have a framework people will continue and the most important point is where is our nation headed, if it is hate speech on which we are feeding on where is our nation headed”.
An additional factor was highlighted in this comment by Justice Roy: “Hate drives TRPs, drives profit.” The said observation had shed light on the issue of media houses picking up contentious issues and thinking of themselves as “profit centres”, enabling and allowing people to make unchecked controversial remarks on television. The court pointed out that while television hosts permit certain panellists to make venomous remarks, they prevent the opposite side from airing its opposing viewpoints by muting their microphones. The bench then ruled that errant news anchors should face stern punishment and be removed from the broadcast.
Justices Joseph and Roy have asked the government to come back with proposals of what can be done to regulate the media on hate speech and suggested that perhaps something along the lines of the Vishaka guidelines, issued by the Supreme Court in 1997 before the law on sexual harassment was enacted in 2013, could be considered.
No such regulations have been issued, to date, by the Union government.
The order can be read here:
Court scrutiny on anchors and media continues:
In August 2023, the Supreme Court had deemed the limit of Rs 1 lakh on imposition of fine on television channels for airing disputed news by the self-regulatory mechanism by News Broadcasters and Digital Association (NBDA) to be ineffective. The said observation was made by the Supreme Court bench while hearing a petition by the NBDA challenging the Bombay high court’s aforementioned judgment in Nilesh Navalakha. The NBDA had challenged the 2021 verdict as it contained adverse observations about the lack of teeth in the self-regulation of TV channels.
A three judged bench of the Supreme Court, led by the Chief Justice of India DY Chandrachud and comprising Justice JB Pardiwala, and Justice Manoj Misra, had questioned the proportionality of the penalties imposed on TV channels for airing disputed news, stating that the same should be equal to the profits earned by the channels, rather than being limited to Rs 1 lakh fine. The court had also noted that the said limitation of 1 lakh on fines was fixed way back in 2008.
During the arguments, the acknowledged NBDA’s stance against pre-censorship or post-censorship on news channels through statutory mechanism, while stressing upon the necessity for an effective self-regulatory mechanism. As highlighted in the order of the Court, the bench urged that there was a need to strengthen the self-regulatory mechanism and stated that it will issue guidelines to strengthen the regulation of TV channels.
Notably, the said guidelines are yet to be issued by the Supreme Court.
The full order of the Court can be viewed here:
Related:
Media fraternity condemns government directed ban of independent media channels
On Women’s Day DUJ Call for a Less Polarized, More Inclusive Media
Social media giants summoned at US Senate hearing for internet safety