Media plays a significant role in the development of a country. It makes people aware of the happenings taking place around them. Media educates people. As far as India is concerned, media holds the position of being the fourth pillar of democracy or the fourth estate, which means it is of vital importance when it comes to a democratic country. By spreading the news about the situation of the country, it helps people make informed decisions so that they can elect their representatives on the basis of the news they hear.
There are certain rules and principles that the media community is expected to follow. But nowadays, like many other sectors, media is also suffering from corruption and from the want of extreme monetisation. It has now become less of a news platform, but more of an entertainment platform. This research paper has tried to explain the whole scenario revolving around the evolution of unethical practices in the media. It has also been further explained how the judiciary is tackling these practices and the stance of the judiciary with the help of case laws.
The literal meaning of media is a means through which something is transferred or shared. In the context of the present paper, media is referred to such a platform from which any information is shared. The main work of media, in simple terms, is to gather the information from the original source and then spread it to the public. Some very common media are:
- Press/print media,
- Broadcast media which include TV,
- Internet is also a kind of media that subdivides into social media, websites, blogs, etc. social media includes popular platforms like Facebook, WhatsApp, Twitter, etc.
The above three are the most dominant media in today’s time from where the public can gather any kind of information. Print media is the oldest one amongst the lot and covers newspapers, magazines, etc. The very first newspaper to be printed in India was “Gazette Bengal” which was published by James Augustus Hicky, in the year 1780. Therefore, it is said that the 18th century was the period in which India saw the advent of print media in the country.
After the print media became popular, on 15th September 1959, Television, for the first time began in India and this huge step caused the emergence of broadcast media. The Indian government had dominance in the early stages, but then slowly the private broadcasters also started to enter the space. With different categories of channels like news channels, movie channels, entertainment channels, etc. broadcast media is playing a very vital role in the country in making people aware of the happenings around them.
The newest category of media is the internet/social media. Social media is a platform where people can share their things and connect with other people. This is the basic idea of social media. Lately, social media has become the largest medium through which information is gathered by users. One thing that creates a difference between social media and other mediums is that in social media, even the information of the least value can be made viral and can take the shape of breaking news. In social media, people share their opinions on a topic which can eventually create polarising opinions of the users.
Code of Conduct To Be Followed By Mass Media
Like any other sector, a Code of Conduct to be followed by the mass media has been established at national as well as international levels. In 1968, the All-India Newspaper Editors’ Conference (AINEC) formulated a code of ethics, according to which, It is the duty of the press to help promote unity and cohesion in the hearts and minds of the people and refrain from publishing material tending to excite communal passions or inflame communal hatred.
Rajya Sabha, in 1976, adopted a code of ethics for journalists and newspapers.
1991, at the Stockholm Symposium, an International Code of Ethics was drafted and adopted.
If we look to compile all the rules and principles that they established, then it can be stated on the following given points:
- Fair and unbiased commentary
- Respect for privacy
- Stating only the facts
- Marking the difference between facts and opinions
- No discrimination on the basis of race, nationality, gender, religion, etc.
- To state the source of information
Importance In Democracy (Good Governance And Media)
The media is called the fourth estate or the fourth pillar of democracy along with the legislative, executive, and judiciary. India declared itself as the Democratic Republic and has emerged as the largest democracy in the world. Media, but most importantly, free media, is very important for a democratic country. Democracy is the rule of the people, by the people and for the people, in the words of Abraham Lincoln. The purpose of media is to make the public aware of the circumstances of their country. Through media, the public gets information about the working of the government of their country and its administration. It spreads awareness of the capabilities of the in power party, the opposite party, the development taking place in the country, along with all the mishaps and disasters. To sum up, ideal media uncovers both good and bad facts and aspects of any incident and lets the public decide what to extract from that information. On the basis of that information and news, the public makes an informed decision as to whom to vote for and whom not to vote within the upcoming elections.
Good Governance, as the name suggests, is the most accurate possible way of governing a nation, the purpose being the overall development of the nation. As per a report of the World Bank, called the ‘Governance and Development, 1992’, Good Governance was defined as the manner in which power is exercised in the management of a country’s economic and social resources for development. The United Nations has also laid down eight principles of Good Governance. They are:
- Equitability and Inclusivity
- Effective and Efficiency
- Compliance with Rule of Law
- Consensus Oriented
Good Governance is very significant for a large yet developing country like India, which is still shadowed by evils like casteism, corruption, poverty, unemployment, etc. The role of the media is to uncover the reality of the situation that the country is in, break down the boastful statements of the politicians and show the correct statistical reports.
Secondly, in a large and populous country like India, Media plays a significant role in bringing news from every nook and corner of the country. With the help of advancing technology, the Media is able to track down even the most far-fetched areas, examples being live reporting from war zones, or from extreme habitats, places hit by some natural disaster, etc.
A very stark difference can be seen in the role of media in a democratic country like India and that of a totalitarian dictatorship of North Korea. The media of North Korea is completely under the control of the Dictator. They are only allowed to sing praises of the Dictator and are also completely banned from showing news from outside of the country. The people of North Korea are completely cut off from the outside world.
On the other hand, media, in India connects its people to the outside world, people here become enlightened and aware by virtue of the role played by the media.
Media Laws in India
Some of the Laws that regulate the media in India are as follows:
- The Press and Registration of Books Act, 1867
- Press Council Act, 1978
- The Right to Information Act, 2005
- The Cinematograph Act, 1952
- The Prasar Bharati (Broadcasting Corporation of India ) Act, 1990
- The Information Technology Act, 2000
Article 19(1)(a) states that all citizens shall have the right to freedom of speech and expression, the media exercises its right to freedom of speech.
Media Trial in India
As stated above, media actually has a very important and positive role to play in the development of a nation. But the problem starts when they start taking the matters into their own hands and start acting like a court. The function of media is to merely state facts, but nowadays, these news channels and social media and even the print media tend to be biased while reporting any news, in order to make the news more flashy and attract the viewership of the public. Some of the unethical conduct of the media include the following.
- Creating flashy headlines.
- Clickbait title of the videos and news.
- Arranging controversial debates.
- Inviting controversial personalities in the debate.
- News channels throw such questions to the panel so as to spark some kind of fuss, etc.
- Media plays a significant role in inciting communal violence.
Talking about social media, a very significant example is that of the WhatsApp mob lynching case wherein fake news was forwarded and spread via WhatsApp which eventually led to the massacre of mob lynching. These incidents were at their peak in the year 2018 to 2019. After these incidences, Whatsapp re-evaluated its policies.
The media went into an abyss in the recent Sushant Singh Rajput death case. It was clearly seen how the news was being reported and the biases and prejudice with which the reporting was being made were actually apparent.
Thereafter, during the period of the initial stage of COVID-19, it was seen that the media were reporting prejudicially against the foreigners who came to India during those times, which caused communal hatred amongst the public. In the case of Konan Kodio Ganstone and Ors. v. State of Maharashtra, the court stated, “There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading COVID-19 virus in India. There was virtually persecution against these foreigners.”
Case Laws Related To Media Trial In India
The Courts of India have also passed many judgements along with obitur dictum with relevance to the conduct of India Media lately.
In the case of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, the court cited the importance of press media in the following words:
“freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible on a large scale, particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspapers being surveyors of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities. The authors of the articles which are published in newspapers have to be critical of the action of the government in order to expose its weaknesses. Such articles tend to become an irritant or even a threat to power. Governments naturally take recourse to suppress newspapers publishing such articles in different ways.”
Media And the Right to Fair Trial
Media and Right to Privacy
It is seen that in order to provide the latest and breaking news so as to intensely monetise the programmes and attract the attention of the viewers so as to increase their TRP, the media houses used to dive deep into the private lives of the involved figures. For example, in the matter of the Sheena Bora murder case, the private life of the accused was heavily discussed by the media. Similarly in the tragic Sushant Singh Rajput death case, the related convicts had to suffer a violation of their right to privacy.
In the matter of freedom of media in relation to the right to privacy, the Supreme Court of India, in the case of R. Rajagopal v. State of T.N1994) 6 SCC 632 has held, “freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right to privacy and maintained defamation has to be performed in terms of the democratic way of life laid down in the Constitution.
Parallel Trial is a term that is used to refer to two or more trials going on concurrently for the same case. In the context of media trials, the term parallel trial is heavily used because nowadays, it has become a huge cause of concern where the media conducts its own informal trial, while the court trial is going on. This creates a hindrance to a fair trial in the following ways:
- Conflicts the notion of “innocent until proven guilty”
- Audi Alteram Partem is not complied with.
- Causes defamation
- Non-compliance with natural justice.
Article 6 of the UN Basic Principles on the Independence of the Judiciary states that the judiciary is entitled to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. Similarly, the International Covenant on Civil and Political Rights (ICCPR) also provides that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal.
Under the constitution of India, Article 129 and Article 215 provide for the Supreme Court and the High Court to be a Court of Record and they can punish the offender for any kind of contempt against them. A journalist may thus be liable for contempt of Court if he publishes anything which might prejudice a ‘fair trial under the above two Articles.
The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971) also emphasized the limitations as reasonable restrictions enshrined under Article 19 (2) and stated that the article created a circumference and the media need to use its right of free speech within the circumference.
In Re M.V. Jayarajan, it was held by the court that media trials can lead to the violation of the following rights:
- the right to reputation
- the right to privacy (decency and morality)
- the law of contempt of Court etc.
In the case of Jitesh vs. State of Kerala, the court condemned yet another action indulged by the police. It stated, “It is our considered opinion, no police officer conducting an investigation into a crime shall be authorised to divulge the facts ascertained during an investigation through media. They should remember that a criminal case has to be finally decided in a court of law.”
Supreme Court Guidelines For Media Trial In India
In order to battle the mushrooming trials by the media, the Supreme Court, in its landmark judgement in the case of Mr. Nilesh Navalakha and Ors. v. UOI Andors., laid down the following guidelines:
- “we hold that any act done or publication made which is presumed by the appropriate court (having the 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 Act depending upon the circumstances and be dealt with in accordance with the law. Press/ media ought to avoid discussions, debates relating to criminal investigation and should confine only to informative reports on such matters in the public interest. Publishing a confession alleged to have been made by an accused as if it is admissible evidence without letting the public know about its inadmissibility should be avoided;
- While reporting suicide, suggesting that the person was of weak character, should be avoided;
- Reconstructing of crime scenes, interviews with potential witnesses and leaking sensitive and confidential information should be avoided;
- Investigative agencies are entitled to keep secrecy about the ongoing investigation and they are under no obligation to divulge information.
- The judgment laid down a list of ‘indicative but not exhaustive list of reports which tend to cause prejudice to the ongoing investigation.
- The instances are as follows:-
a. 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;
b. 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) Analyzing 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) Criticizing 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;
c. Acting in any manner so as to violate the provisions of the Programme Code as prescribed under section 5 of the Cable TV Network Act read with rule 6 of the CTVN Rules and thereby inviting contempt of court; and
d. Indulging in character assassination of any individual and thereby mar his reputation.
It was further observed “If indeed the channel is in possession of information that could assist the investigator, it ought not to be part of a news coverage but it would be the duty of such channel to provide the information that it has to the police under sections 37 to 39 of the Cr.P.C. to facilitate a proper investigation.”
Gag Orders Used In The USA
Gag Orders are such orders which are a judge’s directive which forbids the public disclosure of certain information on a particular matter. It prevents an individual from making public comments. A judge issues injunction orders to individuals related to a case, for example, the parties or the counsels to comment or make trial related discussions outside the courtroom.
In the case of Nebraska Press Association v. Stuart, the judge of the case issued a gag order barring the media from reporting anything on the accused’s confession.
The object behind these gag orders is to ensure and establish fair trial and justice and prevent any prejudice or impartiality.
In India, similar kinds of orders were made by the Supreme Court while the trial of Sushant Singh Rajput’s case was going on. But in India, it is not as predominant and widely used as they are in the USA. India can also implement such orders to ensure a fair trial, as that would come under reasonable restriction to freedom of speech and expression, and also ensure justice.
The media has undoubtedly played a very significant role in the development of the country. From busting various infamous corruption cases to scams, the media has certainly aided in investigation. But the recent unethical approach of the media and its tendency to monetise and scandalise every piece of news is creating a downfall for them as well as the system of justice. The media must return to its ethical ways and comply with the guidelines given by the court. It has been truly saying in the case of Venkatesh @ Chandra & Anr. Etc. Versus State of Karnataka , “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.”
This article is written and submitted by Varsha Kumari Mishra during her course of internship at B&B Associates LLP. Varsha is a law student from Law College Dehradun, Uttaranchal University.