Is Media doing ‘Contempt of Court?’

Presumption of innocence is the core of criminal jurisprudence. The presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that every person is presumed to be innocent unless he is proved to be guilty by a competent court of law[1]. An accused person is given a chance for a fair trial before he could be held acquitted or convicted which is in the consonance with principles of natural justice.

Media is the fourth estate of our democracy. It is the media which is executing the fundamental right of freedom of speech and expression envisaged in Article 19 of our constitution. But right under article 19 is not absolute. It comes with restrictions which are reasonable in nature as envisaged in Article 19(2)-19(6) of our constitution.  Art. 19(2) permit ‘reasonable restrictions’ to be imposed by statute for the purposes of various matters including ‘Contempt of Court’.[2] Therefore media broadcasting capabilities are limited when it comes to subject matter that could lead to ‘Contempt of Court’. These are the ‘reasonable restrictions’ imposed on media by the constitution when it comes to dispensing of justice. Art. 19(2) do not refer to ‘administration of justice’ but interference of the administration of justice. It is clearly referred to in the definition of ‘criminal contempt’ in sec. 2 of the Contempt of Courts Act, 1971 and in sec. 3 thereof as amounting to ‘Contempt of Court’. Therefore, publications which interfere or tend to interfere with the administration of justice amount to criminal contempt under that Act. In order to preclude such interference, the provisions of that Act impose ‘reasonable restrictions’ on freedom of speech and such restrictions would be valid.[3] Thus media reports which comes in the way of administration of justice are impliedly covered under Art .19(2).

Today we are observing clear flouting of above mentioned restrictions especially in the cases of rapes. Today media is covering every aspect of a trial in such a manner that even the FIR’s are happening on the basis of media reports! When we know that media reports are not to be treated as evidence the why is this happening? Even the newspaper is not admissible in evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act by which an allegation of fact can be proved.[4] What is the credibility of a FIR based on such reports? In the recent case of Tarun Tejpal where Goa police took Suo Moto cognizance based on reports in media. This is an example as to how State justice administration system is put on motion as soon as some report is aired on television. Is this not a violation of ‘reasonable restrictions’ as imposed by the constitution, is this not a clear intervention of media in the administration of justice? The media covers the accused as if he is a guilty person giving false impression to the audience at large thus tarnishing his image by repeatedly airing the news and violating Article 21 of accused person. The media by constantly airing such subject matters related to accusation destroys the person’s freedom of living a dignified life. Right to life is enshrined under Article 21 of the Constitution which embodies in itself the right to live with dignity. The State is not only expected but is under a constitutional command to treat every citizen with human dignity and ensure equal treatment to all. [5] This is the situation of the accused person in India even before an investigation has been initiated. What if such an accusation is false? Who would be liable for the lost dignity of the accused person? These are the questions which should be considered while airing such type of news that is related to the accusation of the accused person. The situation of the accused is so horrible that even before he is arrested by police he is arrested by the media.

The identity of the victim is protected in the cases of rape, but who gives the right to tarnish the image of the accused and why is there no law to protect the image of the accused person from media. This clearly shows gender inequality in rape trials which is contrary to Article 14 of the constitution and it is against fair trial. Even before the trial has begun, the accused person gets punishment of a tarnished reputation. Then how is the rape trial fair? Isn’t this intervening in the ‘administration of justice’ and therefore ‘Contempt of Court’? Even if the accused is guilty, he is not liable for this extra punishment as imposed and administered by the media. One such countervailing interest is due process of law. Freedom of speech ought not to take precedence over the proper administration of justice, particularly in criminal trials where an individual’s liberty and/or reputation are at stake, and where the public have an interest in securing the conviction of persons guilty of serious crime. Indeed, the belief that the public interest in a fair trial will always outweigh the public interest in freedom of expression which generally goes unchallenged. Therefore, a discussion is necessary on how to reconcile these competing public interests proceeds on the basis of acceptance of this notion.[6]

Even the witnesses are not spared, Media constantly reveals the identity of witnesses and the content they would dispose in the public domain before the court of law is available. If the identity of witnesses is published, there is danger of the witnesses coming under pressure both from the accused or his associates as well as from the police. At the earliest stage, the witnesses will want to retract and get out of the muddle. Witness protection is then a serious casualty.[7] The media plays a dominating role in influencing witnesses. What the media is doing whether intentional or not, it is turning a credible witness to a hostile one thus again isn’t this intervening in the ‘administration of justice’ and therefore ‘Contempt of Court’? Should the media be tried for ‘Contempt of Court’?

Not just the accused is affected by constant media coverage the victim also feels more victimized by constant airing of his cause repeatedly whether he likes it or not. The victim fears for his/her life which made him to abandon a credible case, constant media coverage affect witnesses who are supporting the victim case. If the media repeatedly accuses people of crimes without producing any evidence against them, they create such certainty of their guilt in the minds of the public that, if these persons are even actually charged and tried, they have no hope of obtaining a fair trial. When such trials collapse, the victims of the crime are left without redress.[8]

In the recent media reports which are constantly aired by media on sexual harassment by renowned Judge AK Ganguly, the media is pressurizing the accused judge to leave a prominent post in Human Rights Commission of West Bengal. If he leaves the place it would again infringe his source of livelihood affecting Article 21 which envisages life and personal liberty, which includes livelihood.[9] The Article 21 is only affected by the “process established by law” which means in this case only when the person is arrested or convicted. What media is doing today is that it is playing a role of both judge and the police. Media is creating a virtual jail in these types of cases. Let it be clear a person under accusation, the accused person can only resign out of moral grounds and moral grounds are based on personal opinion of the person and not by public opinion or media perception. The media appears insensitive to this aspect.

Isn’t there a grave need to curtail the coverage power of media related to accusation by the accused? Today media is abridging the fundamental rights under Article21, 19 and 14 which are the heart and soul of our constitution. In fact virtually media is acting like a parallel judicial system. It has the power to move police, influencing the witnesses, accused victims and perhaps there is a high probability that judicial opinion may be affected by public reactions caused by irresponsible presentations of a happening by the media. It gives punishment to the accused person even before the trial has begun. This is grave injustice happening in the society. Again the media is either forgetting or not knowing or is ignorant of the fact that it is intervening in the ‘administration of justice’ and thus doing ‘Contempt of Court’.

A solution to this issue is the need of today. A possible solution is that the State must now enforce strict guidelines when reporting subject matters related to accusation and such guidelines must be reasonable with respect to Art 19(6) and 19(2) of the constitution. It is only then that the society will be able to see a fair trial based on material facts and evidences without any prejudice or ‘stories’ caused/created by the media and the action/reaction of the public caused by what the media presented to them.

Nitish Banka

Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997