Events & Issues

New Delhi, 17 September 2020

Media Trial

A MISNOMER

By Dr.S.Saraswathi

(Former Director, ICSSR, New Delhi)

‘The Pros and Cons of Media Trial’ was the topic for the first Ram Jethmalani Memorial Lecture organised in Delhi in which renowned lawyers participated. Media activism going strong, it has become necessary to define its place in the rule of law.

One of the latest additions to most common journalist language – meaning terms used by and used for media reports –  is “Trial by Media” .  It is  generally  used as a derogatory term by sections of society affected by or  questioning   concerned reports while neutral   public  prefer to enjoy concerned audio, visual, or print messages as an entertainment programme.  

Authors, reporters, and performers do not call their product as media trial. Its introduction in media, its popularity, status, and possible future deserve special attention to  help assess  its informative and educative value necessary to decide its future.

Trial by Media is indeed  a  misnomer  for  findings  of  investigative journalism  that has grown as a special branch of journalism enthusiastically chosen and  practised  by   young,  energetic and bold journalists having interest and ability to do research on real life stories of public concern and  interest.  They  profess   to unearth hidden facts behind events.    As such,  their  task  requires  absolute commitment to truth  and  unbiased coverage. 

News pertaining to grievous crimes, multiple crimes mixed up in one major crime,  high level corruption, cover up of crimes, crimes involving celebrities and persons  in positions of high power and influence are chosen for  private investigation  by  media houses while official authorities  -  courts and police  -  carry on their  work.  The more complicated the crime, the greater is the scope for  investigation  and  more intense  the public interest.

As  the  general public  are curious to follow criminal cases handled by public and private authorities,   media  pick up such incidents to satisfy their audience.  Publicity is  a  crucial factor that  differentiates   the  so-called “media trial” and trial by tribunals.  Unfortunately,  many of the  high level crimes reflect political divisions that is  perplexing and inexplicable.

Media trial entered journalism in India in a big way with reference to some criminal cases.  Bijal Joshi Rape case (2005), Priyadarshini Mattoo Case (2006), and Jessica Lal case (2010) and more recently, the  Aarushi murder case  were typical  examples  of media trial that accompanied court trial. 

What is called “media trial” is possible only on the basis of investigative journalism which is not prohibited  in India.  Nor is it patronised or encouraged. Readers and viewers  are  by  and  large    thrilled with real life crime  stories. Former  Chief Justice of India,  R.M.Lodha,  once remarked that it  was    “very serious” and  that courts could  consider providing some guidelines.

Investigative work is mostly undertaken voluntarily by a media house. Hence,  the  investigator,  the facilitator, the publisher, and the sponsor are duty bound to search and find out the truth from authentic sources and reveal it without distortions. They are accountable for errors, biased reporting, partial coverage, and distorted disclosure. The task calls for a high level of social and moral  responsibility and accountability besides professional integrity.

Journals and television are no longer passive recipients and communicators of incoming newsroom reports. They are not post offices. Today, they are active explorers of truth hidden  beneath the visible surface. In this transformation, journalists have become “creators” of news   revealing the inside of events and incidents and do not remain mere reporters of what is visible to the naked eye.  It is in the course of evolution of journalism. 

Washington-based International Consortium of Investigative Journalists (ICIJ) launched in 1997 is a network of reporters and organisations of about 267 investigative journalists in over 100 countries   probing  into serious cases of international  crimes, corruption, and abuse of power at a global level in the belief that journalism can bring about positive changes. It is a global movement.

The  most stunning piece of investigative journalism  so far which seems to have led to its growth is the Watergate revelations by Woodward and Bernstein (1974) that led to the  resignation  of the American President,  Richard Nixon.

Popular kings in olden days  adopted  the  practice of   sending  trusted  secret agents to mix with people and  ascertain   what their subjects think and do.    Some rulers  themselves  used  to go  round their kingdom incognito for this purpose.   In modern free democracies,  media  acts  as people’s agents and takes upon the onerous job of unraveling the truth behind complicated crimes.  In this endeavour,  even rulers  and power holders  come under scrutiny and exposure.

UN Basic principles on the Independence of the Judiciary states in Article 6 that the judiciary is  required “to ensure that judicial proceedings are conducted  fairly and that the right of the parties are respected”. This principle is also in the International Covenant on Civil and Political Rights (ICCPR) which provides that “everyone  shall  be entitled to fair and public hearing by a competent, independent, and impartial tribunal in the determination of any criminal charge or a suit at law.” ICCPR acknowledges that right to  public trial is not absolute and that certain limitations on public access are necessary.

ICCPR also confirms freedom of expression as a fundamental feature of democratic society and includes under it freedom of the press. This right, under Article 19 of the ICCPR includes “freedom to seek, receive, and impart information and ideas of all kinds regardless of frontiers, either orally or in writing or in print in the form of art or through any other media of his choice”.  European Convention on Human Rights also admits freedom of press as paramount with exceptions only when “necessary in a democratic society” for “a pressing social need” and “proportionate to the end to be achieved”.

However, freedom loving USA’s Supreme Court has confirmed the potential danger the impact of media could have on trials. This must be due to the continuance of jury system. The increasing tendency to use media when a matter is sub-judice is a subject of discussion among lawyers and laymen in India. In England, the court held that it is important to understand that any other authority cannot usurp the function of the court in a civilised society.

On the other hand, it is hard to believe that media exposure before court trial can prejudice a case. Courts and judges go by written documents and evidence and cannot be influenced by media or public reaction. Even to suggest that judges can be influenced amounts to contempt of court. If media investigations expose  evidence relevant for a case, it has to be welcomed as an  aid towards justice. Therefore, adherence  to truth must be the foundation of media investigation.   Media in India seems to be reporting only findings of their investigation and not conducting trials. They are naturally answerable under our law  to any falsehood  they circulate.

All these point to the need to maintain balance between the rule of law and orderly society and free press.  Media  cannot publicise rumours and half truths that may prejudice a case while it cannot be prevented from speaking the truth however appalling it may be. The test is truth that is  verifiable.---INFA

(Copyright, India News & Feature Alliance)