The Supreme Court recently asked Union Ministry of Home Affairs (MHA) to come up with a comprehensive manual on how the fourth estate should be briefed by the police, with a view to preventing media trials.
A Bench headed by Chief Justice of India DY Chandrachud highlighted the importance of fair media reportage and dissemination of correct information so that public perception and investigations remain unbiased.
In the recent past, the Indian mainstream media has not exactly covered itself in glory when it comes to reporting on cases that attract the public eye.
TRP-driven narratives often cause prejudice against the accused, deeming them guilty before the courts have their say.
Another allied concern, as highlighted by the apex court, is the leaking of information by the police to the media.
So how do we strike a balance between press freedom and the rights of accused? What are the existing norms followed by the media and how can the mechanism be strengthened?
In order to get a clearer picture, we look at some recent cases where the media went overboard in its coverage, the existing guidelines on media reporting and the opinions of experts who have experience in defending people who have been subjected to rather undue media scrutiny.
What the courts have said on recent media trials
A few recent cases garnered over-the-top coverage, especially by television news channels.
One such case was that of actor Rhea Chakraborty, who was embroiled in a drug possession case after the death of actor Sushant Singh Rajput.
The media went to great lengths and breadths to cover “all angles” of the incident, as well as Chakraborty’s purported involvement in the same. Prime-time debates turned into jury trials even before the investigation was complete.
The situation prompted criticism and even litigation before the courts. A PIL in the Bombay High Court termed the media coverage as “prejudging” under the garb of reporting.
“Trial by media interferes with criminal investigation and runs counter to programme code under the Cable TV Act.”
It even went to the extent of describing certain aspects of reporting in the Sushant Singh Rajput case by Times Now and Republic TV as contemptuous.
"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," the Court said in a scathing remark.
The clamour surrounding the episode eventually faded after Chakraborty was granted bail.
Another recent illustration is the cruise ship drugs case, involving actor Shah Rukh Khan’s son, Aryan Khan. Once again, this case became the subject matter of high-decibel daily debates and conjectural theatrics on news channels.
On May 27, 2022, the Narcotics Control Bureau (NCB) gave a clean chit to Khan and five others in the case due to lack of evidence.
In 2021, when climate activist Disha Ravi was arrested in a conspiracy case related to the farmers’ protests, her purported WhatsApp chats were published all across the media.
Ravi approached the Delhi High Court seeking protection of her right to privacy, and accusing the Delhi Police’s Special Cell of leaking such information to the media.
Observing that the matter raises issues of public importance, the Delhi High Court in an interim order passed on February 19, 2021, directed the Delhi Police to strictly abide by the MHA advisory of 2010 on press briefings.
The Court also directed the media to only broadcast verified information. The matter is still pending and is likely to be heard next on December 18.
In April this year, the Delhi Police itself approached the Delhi High Court seeking directions to restrain media agencies from publishing or broadcasting the contents of the chargesheet filed in the Shraddha Walkar murder case.
While hearing a case in 2022, the Kerala High Court observed that publication of leaks by the investigation agencies are not protected by the freedom of press under Article 19 (a) of the Constitution. Decrying such leaks in no uncertain terms, the Court said,
"Media cannot usurp the jurisdiction of the courts which alone has the constitutional authority to decide the guilt/innocence of a person or decide on the content, quality or the width of any right available to any citizen/accused/suspect."
In August 2020, student activist Asif Iqbal Tanha, who is an accused in the conspiracy case related to the Delhi Riots, moved the Delhi High Court against news reports claiming that he had confessed to his role in the case.
The news reports were based on his alleged disclosure statements, which he said were not given voluntarily and are inadmissible as evidence.
While the police denied leaking the alleged confessional statement and launched an inquiry to probe the leak, the High Court went on to direct Zee News, one of the respondents in the case, to disclose the source from where it got the document in question.
The trial court in March 2021 also took note of what it called a “disturbing trend” of reporting the exact contents of chargesheet even before cognisance is taken or counsel for accused are provided copies of it. It said that news reports should contain a disclaimer making it clear that it is a version of the prosecution or the accused.
When police officers in Madhya Pradesh took custody of an accused in 2020, they purportedly uncovered his face before the media. The next day, photographs appeared in the newspapers and on social media describing him as a hardcore criminal.
Taking exception to this, the Madhya Pradesh High Court held that disclosure of personal information of suspects to the media or display of their photographs in newspapers or on any digital platform were violative of the right to life and personal liberty guaranteed under Article 21 of the Constitution of India.
The Indian media follows self-regulatory norms framed by associations liked the Press Council of India, the News Broadcasters & Digital Association (NBDA) and the News Broadcasters Federation (NBF).
However, while dealing with the Sushant Singh Rajput case, the Bombay High Court had noted that the self-regulatory mechanism of the NBDA and the NBF does not have any statutory recognition or sanctity in law.
In the appeal against the Bombay High Court verdict, which is now pending before the Supreme Court, the NBDA the NBF were asked to produce a revised self-regulatory mechanism.
The apex court had underlined the need to strengthen the regulatory mechanism and said that the existing fine of ₹1 lakh for violation of norms, as fixed in 2008, was ineffective.
Besides the self-regulatory mechanism, news channels are also mandatorily required to follow the Programme Code under The Cable Television Networks (Regulation) Act.
The Programme Code specifically requires that television channels do not carry a programme that contains anything "defamatory, deliberate, false and suggestive innuendos and half truths".
It also prohibits broadcasting anything that "criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country". Anything amounting to contempt of court is also not allowed.
The Central government can prohibit transmission of a programme if it is found violative of the Programme Code. The Policy Guidelines for Uplinking and Downlinking of Television Channels also state that a channel "shall be liable for penal action" if in violation of the Programme Code.
News channels have been issued advisories from time to time by the Ministry of Information & Broadcasting under the Cable TV Act, including one on the recent coverage of an incident involving The Dalai Lama and a child.
In an advisory issued to states on media engagement in 2010, the MHA had called for sharing of only authentic information without hampering the process of investigation. While it advised against sharing of half-baked information, it also said that only designated officers should interact with the media. The advisory further said that the rights of accused and victims should be respected.
But, as is the norm in journalistic practice, the flow of information doesn’t always follow the designated channels.
The Law Commission of India, in its 200th report in 2006, noted the difficulty in maintaining a balance between freedom of speech and expression on the one hand and undue interference with administration of justice within the framework of the Contempt of Courts Act, 1971 on the other.
The Commission, as a result, recommended an amendment to the Contempt of Courts Act to include a provision for a division bench of a High Court to issue an ex parte general direction for postponement of a possible prejudicial publication by the media.
While issuing directions to the MHA recently, the Supreme Court had echoed a similar sentiment. It emphasised on the right to press freedom as a facet of the fundamental right to free speech and expression and said,
“There is no gainsaying of the fact that both the media and consumers have a right to produce and receive fair and unbiased information.”
The accused persons, however, were also entitled to fair and unbiased investigation and presumption of innocence, it added.
'In the end, society fails'
Senior criminal lawyer Amit Desai has appeared in a number of high-profile cases such as Salman Khan’s appeal in the 2002 hit-and-run case and the Aryan Khan cruise ship drug case.
Post the Aryan Khan bail verdict in October 2021, Desai had emphasised that the issue hinged on the responsibility of investigating agencies and some sections of the media.
On the fact that courts have stepped in to prevent media trials, he said,
“These court guidelines have not been effective enough and I suspect that the courts are looking to the government to suggest and issue guidelines, as the courts can more easily enforce the same. Media hearings can be biased and based on untested facts. They impact the victim as much as the suspect. Both have rights. In the end, society fails."
As someone who has seen many cases falling prey to media trials, he added,
“Which is not to say it is always wrong. They (media) too have a duty to society. But that duty is to report. These cases reported by media are those which have a high emotional content and impact on society. That’s what tends to generate good TRPs. But they don’t necessarily generate good outcomes."
'Clients suffer from depression'
Criminal lawyer Satish Maneshinde is regularly roped in by celebrities to fight their courts battles.
He points out that one of the biggest drawbacks of “press leaks” is the prosecution getting diluted, as it makes witnesses vulnerable to tampering and influence.
“If witnesses are kept confidential and screened from any exposure and no story comes out in the press, prosecution will be in a position to prove a larger number of cases. Whereas when it comes to the defence, if some people keep leaking stories in the press, the accused’s rights get curtailed in the sense that the police will try and put those loopholes in a tight corner. They'll close all the loopholes."
At the time of fighting Sanjay Dutt’s arms possession case, Maneshinde personally witnessed how media coverage had penetrated into the minds of the general public, and helped form a one-sided opinion on the Bollywood actor's involvement in the case.
“He was so badly written about and the press initially said a lot of things — not only about him, but his family, his father. They called them anti-nationals. I remember once Dutt saab and I were in the car and he normally would roll down his windows for fresh air. When we stopped at a signal, one motorcyclist said, ‘dekho, dekho, terrorist ka baap aur vakil baitha hai’ (Look, the terrorist is sitting in the car with his lawyer). So, these were the prejudices people had because of the reporting of the press,” he says.
Decades later, when he appeared for Rhea Chakraborty, he noticed little difference when it came to media reporting.
“She was pronounced guilty even before she was questioned by the police. The kind of stories, information and narrative that were circulated,” he said.
Maneshinde pointed out the fact that Chakraborty had not even lived with the late Sushant Singh Rajput when he died by suicide, and was asked by Rajput to leave the house six days prior he was found dead. He said it was obvious that there was no proximate connection between Rhea and Rajput’s death.
“So, he could not have been, in any case, influenced or coerced or goaded to die by suicide. Or there could be nothing as far as he was concerned, in relation to Chakraborty. Apart from all that, what actually happened, nobody knows,” he added.
According to the lawyer, Chakraborty was pronounced guilty in the media due to selective "digging" of stories .
"Till she got a proper hearing in the High Court, there was no chance that she would have got bail. It was a blessing in disguise that she approached the High Court and she could put her in defence," he recollected.
Being subjected to media trials can take a toll on people, says Maneshinde, who has noticed his clients suffering from depression.
During Chakraborty's case, a news channel went to the extent of discussing how much he had charged her and how she had managed to pay it.
“It was none of their business. Why are they concerned what my client does about my fees? As far as I am concerned, it was totally a privileged issue between a client and a lawyer. I must salute Rhea for being strong. She was not scared. She fought her battle single-handedly. Even Sanjay Dutt was a very strong man. He fought the battle all by himself."
'Empower judges to pass gag orders'
Advocate Hiten Venegaonkar has been representing investigation agencies such as the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) for almost a decade now. He has appeared in the Jiah Khan death case, the Yes Bank-DHFL bank fraud case and other high-profile matters.
He believes that preventing criminal cases from turning into media trials requires combinations of various factors, such as legal reforms, responsible journalism and public awareness.
Venegaonkar, therefore, suggested strengthening and enforcing of contempt laws to discourage the media from sensationalising cases and holding an accused guilty before any court of law does.
“Empowering judges to issue gag orders when necessary will prohibit the media from reporting specific aspects of the case that would prejudice the trial. Enacting new legislation will restrict the publication of certain details such as accused's identity in certain cases, especially those involving minors, sexual offences or sensitive national security issues,” said Venegaonkar.
Venegaonkar, however, proposes a self-regulatory mechanism for the media to promote responsible reporting, avoid media trials and most importantly, respect the principle of "innocent until proven guilty".
"To establish an independent media ombudsman or regulatory body to investigate complaint of irresponsible reporting and impose penalty wherever necessary,” is another suggestion Venegaokar feels will curb biased reportage.
Promoting legal literacy among the general public to understand the importance of due process and the potential harm of media trials would also be beneficial, he suggests.
A former Delhi High Court judge, who did not wish to be named, pointed out that there was a very thin line between a factual press briefing and sensational news.
"You must have seen a number of incidents where the so-called experts are called to debate, which is important. You call these so-called experts, which may be even lawyers. They are experts in their own right. But unless you have the complete knowledge of the facts of the case, you can never give a proper opinion," said the former judge, who has also been a prosecutor.
According to the former judge, even media briefings by the police are held during the initial stages of a criminal case, which means that the complete facts are still unknown.
"So at that stage, to go overboard is never the right thing, whether it is police, whether it's any official or whether it is lawyers or media."
The retired judge believes that media trials are not restricted only to celebrities, but happened across the societal spectrum.
"It happens to celebrities, but it also happens across the spectrum. But the elite and the high ups are more targeted, because then that becomes a sensational niche."