The ground norm of our criminal justice system is that an accused is innocent until proven guilty. It has been held by the apex court, that, presumption of innocence preserves confidence in the enduring integrity and security of a legal system. Article 21 of the Constitution is explicit. Entitled ‘Protection of life and personal liberty’, it states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This is also called the due process clause. It is supplemented by Article 22 that lays down the safeguards when a person is arrested or preventively detained.
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But trials by media, made notorious by the O.J. Simpson case, have turned this hallowed principle on its head. Our media studios have literally been morphed into mock courtrooms. You have witnesses, evidence, investigations and, top of it, breathless anchors as judges, jury, prosecuter and executioner all rolled into one. A trial is started and a verdict given. Invariably, an accused is proven guilty in the dock of public opinion after being virtually mauled and even lynched before a formal trial can even commence. All this scandalises what should otherwise have been a fair trial in a court of law. The ramifications of such mind numbing sensation are severe to say the least and can result in grave miscarrige of justice, for judges are also human and are subject to the same gamut of emotions, biases, opinions and information processing that every other human being is.
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The thriller-grade Nanavati case, which sparked an unparalleled public uproar and ended the jury system in India, was the first case of trial by media in India. With media becoming the judge and jury, and the street the arbiter, Captain K.M. Nanavati was feted as an unalloyed hero. Even when he allegedly confessed to his crime, the jury let him off. A verdict deliberated by media and delivered by the jury. This was the beginning of a dangerous precedent.
Subsequently, with the advent of TV and broadcast news, media trials became the staple of sensational journalism. In the Aarushi Talwar case, media ruled that her father, Rajesh Talwar, and probably her mother, Nupur Talwar, had been involved in her murder, speculating and pointing fingers based on hollow evidence and incomplete investigations. Conversely there are several other cases like the Jessica Lal case and the Priyadarshini Mattoo case where it is believed that the media with their “on ground” investigations helped galvanise the cause of justice. Where does the balance therefore lie?
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It, therefore, becomes pertinent to understand what is the law that the Supreme Court has laid down while considering freedom of press (Article 19(1)) in the context of fair trial (Article 21). In the State of Maharashtra vs Rajendra Jawanmal Gandhi case, the apex court expressed its displeasure over the phenomenon, which it called “trial by press, electronic media or public agitation” and it took a similar view in the M.P. Lohia vs State of West Bengal case.
Similarly, in the State of Kerala vs Poothala Aboobacker case, the Kerala High Court observed: “The Fourth Estate does not seem to realise the irreparable damage inflicted on the victims of crimes and the alleged culprits and those close to them through the sensationalised journalistic adventures. Truth is very often surpassed, exaggerated or distorted to add flavour and spice to the stories. Trial by media can do more harm than good to society at large.”
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In addition, former Supreme Court judge G.N. Ray had written: “In a conflict between fair trial and freedom of speech, fair trial has to necessarily prevail, because any compromise of fair trial for an accused will cause immense harm and defeat the justice delivery system.”
While the precedents have been set by the Supreme Court, the reforms to prevent these scandalous media trials have been a placebo. There has been no real change on the ground. Therefore, a real medicine is needed to counter this disease—correcting the revenue model of these media houses and creating a Media Regulatory Authority of India.
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Indian revenue model
The Indian broadcast media houses were liberalised in 1992. However, liberalisation led to market fragmentation of the Indian media industry. It has resulted in a revenue model that is 100 per cent advertisement-dependent. Making news and other forms of intellectual property such as information sharing is copiously subsidised for the consumer. The Indian market unfortunately is comfortable with this phenomenon because consumers feel that paying for intangible goods and services is nothing short of a preposterous idea.
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But as popular folklore goes, “if you are not paying for it, you’re the product”. A revenue model dependent totally on advertisements, combined with the fact that there are nearly 390 news channels competing for the share of the big pie, means that everything boils down to TRP. The more the TRP the greater the advertising revenue. Thus the sensationalism, the unabashed breach of all kinds of moral as well as legal codes of conduct, the bombardment of breaking news and utter disregard to any kind of ethical journalism based on facts and sound arguments.
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What is the solution? A transparent subscription-based revenue model with the scope of subscription portability for consumers. This will solve two problems. One, the media industry would not be seated on a fickle revenue model, which looks hunky dory from the outside, but suffers enormously if there is an economic crisis like the Covid pandemic. Thereby giving more space to free, independent and unbiased journalism. Two, it will help consumers reap the actual benefits of the Fourth Estate, because when they pay for it, it will put pressure on the content providers to curate better content.
Media regulation
The Press Council of India (PCI) was formed under the Press Council Act of 1978. It is the principal authority in India to regulate and monitor print and broadcast media. The objects of the council are to preserve freedom of the press and to maintain and improve the standard of newspapers and news agencies in India.
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However, the PCI has remained a toothless tiger. While it does establish norms for journalistic conduct, these norms cannot be legally enforced. Lack of punitive powers with the PCI has tied its hands in exercising control over erring publications. The maximum the PCI can do is “warn, admonish or censure the newspaper”. Moreover, while the PCI has contempt powers to restrict publication of media reports, it can exercise its contempt powers with respect to pending civil or criminal cases only, overlooking the extent to which pre-trial reporting can impact the administration of justice. These shortcomings were also highlighted in the Ajay Goswami vs Union of India case. The self-regulatory structures in the broadcast space are a chimera if not a self-serving template.
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Therefore, what we need is an omnibus Media Regulatory Authority of India, through a parliamentary enactment, with adequate powers in place to regulate and monitor both the business and editorial verticals of journalism.
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(The author is a lawyer and MP, and ex-Union information and broadcasting minister. Views expressed are personal)
