The media, which is regarded as the fourth pillar of democracy, has been in the spotlight ever since the pandemic started. However, there have been several allegations against the media for spreading fake news and inflammatory coverage, conducting media trials, and violating the right to privacy, honor, and reputation of individuals. This causes an infringement on the fundamental rights of innocent victims and thus, raises legitimate questions on the responsibility and accountability of the media. Presently, the Indian media is governed by independent self-regulatory bodies, which the Supreme Court of India has condemned for being toothless and for failing to serve their function. If not addressed adequately, the situation can worsen to the extent where these malpractices become a common occurrence. Therefore, the ongoing situation calls for an effective approach that ensures harmony between the right to information and the right to dignity of an individual, as well as the concomitant right to freedom of speech and expression of media.
The freedom of the media cannot impede and overtake the perception of truth and news in the minds of people by broadcasting reprobate material, thereby impinging on a free and reasonable inquiry. However, there have been several instances, such as the Sushant Singh Rajput, Arushi Talwar, Sheena Bohra, and Pradyuman Thakur Murder cases, where the media has assumed the role of judges. This has done more harm than good to society, as highlighted by the Kerala High court in the State of Kerala v. Poothala Aboobacker. Media trial is excessive usage of the right to freedom of speech enshrined under Article 19(1)(a) of the Constitution of India as the media has no authority to challenge the innocence of an accused until the investigation and trial have not concluded.
Moreover, this goes against the golden principle of “presumption of innocence until proven guilty” and thereby obstructs the administration of justice, as even observed by the Supreme Court of India in M. P. Lohia v. State of West Bengal. Further, it affects the right of an accused to get a fair trial as guaranteed under Article 21 of the Constitution, thus ultimately eroding an individual’s faith in the Indian Judicial System. Moreover, deciding someone’s liability when the matter is sub-judice causes irreparable damage to the accused’s life and reputation, as happened in the case of Saravjeet Singh. However, in Express Newspapers v. The Union of India, the Supreme Court of India upheld that the right to freedom and expression is not an absolute right and is subject to reasonable restrictions under Article 19 (2) of the Constitution. A similar sentiment was resonated in the Harijai Singh Case, where the Supreme Court of India said that unrestricted freedom would lead to chaos and disorder in the society as one’s freedom must not infringe the liberty of others.
Therefore, to secure faith in the administration of law and justice and to further ensure dignity and independence of the judiciary, the Supreme Court and the High Courts of India have the power to punish anyone for contempt of the Court as enshrined under Article 129 and Article 215 of the Constitution, respectively. Thus, the freedom of the media is also bound by certain obligations, especially when it affects the rights of others or their peaceful coexistence in society.
In India, broadcast media is mainly governed by self-regulatory bodies such as the News Broadcast Federation and the News Broadcasters Association since there is no government-appointed regulatory body like the Press Council of India. These bodies have a self-determined code of ethics that serves as guiding principles to ensure impartiality in reporting and the protection of an individual’s privacy. Additionally, the Cable Television Networks (Regulation) Act, 1995 provides that any programme that offends against decency or contains an attack on religions or communities or includes obscene, defamatory, deliberately false, and suggestive innuendos should not be broadcast on television.
However, the fierce competition in the media industry has led to a race for raising the Television Rating Points, due to which media channels broadcast misleading information at the expense of accuracy, merely to provoke the viewer’s interest. This sacrifices the authenticity of the information and puts a blindfold in the eyes of the public. There are a plethora of instances where it has been observed that leaving the regulation to the media itself has led to subverting the regulatory goals to their own business targets. Since the members of the self-regulatory bodies are often the office bearers of leading news channels themselves and the complaints are handled by the committee appointed by them, all the powers eventually rest in the hands of the news channels themselves. Additionally, the framework and guidelines of the NBSA do not apply to non-members, thus leaving many channels out of their scope. As even remarked by Justice G S Kulkarni in the Mr Nilesh Navalakha and others vs Union of India and others (“Sushant Singh Rajput Case”), “we are in that situation, where the self-regulation [of media] has failed.” In furtherance of the same, the Court laid down specific indicative guidelines to exercise restraint on media. The guidelines include any coverage that may cause prejudice, character assassination, or leakage of any confidential information amongst various other facets.
Since the current self-regulatory framework has failed, the present time calls for a more effective and efficient regulatory framework that is capable of ascertaining the liability and wrongs of the media before the situation gets any worse. One such alternative could be introducing a media tribunal that would indeed keep a check on the malicious acts of the media. In pursuance of this, a petition was filed by Nilesh Navalakha in the Hon’ble Supreme Court of India seeking the establishment of an independent media tribunal to bring an end to the sheer abuse of power by the media. Other common law countries like the United Kingdom follow a government-approved regulatory framework, where the Office of Communications (Ofcom) acts as a watchdog and provides ethical guidelines for the proper regulation of media channels. Their main objective is to protect people’s privacy, protect them from being treated unfairly, and prohibit the broadcast of any programme that can incite crime or disorder. It also seeks to ensure that news is reported with due accuracy and is presented without any partiality. Additionally, they have the power to impose a sanction if any broadcaster breaches their ethical guidelines. Thus by working on similar lines, India may also adopt the UK model to ensure the transparency, accountability, and accuracy of the news without jeopardizing the right to freedom of the press.
Furthermore, India has ratified the International Covenant on Civil and Political Rights (ICCPR) and also adopted the Universal Declaration of Human Rights (UDHR), which calls for a balance between the right to freedom of speech of the media and the right to privacy, honor, and reputation of an individual. Specifically, Article 14 of ICCPR provides that the press and the public may be excluded from the trial if interests of the private lives require that to avoid any prejudice on the path to justice. The concept of media trial goes against the idea behind this article, i.e., to prevent injustice at the hands of preconceived notions or prejudice caused by the media, as observed in the aforementioned cases. Additionally, Article 17 of ICCPR and Article 12 of UDHR protect individuals from any attacks on their honor and reputation or any arbitrary or unlawful interference with their privacy.
Media has often infringed upon the right to privacy, honor, and reputation of individuals by declaring the accused as convicts even before the pronouncement of judgment. Thus, the present framework in the country fails to address the ideas established by these treaties. Therefore, there is an imperative need to establish a statutory regulatory body that accommodates the interests and ideals of the international treaties and further strengthens the role of the media in the largest democracy of the world. This regulatory body would not curb the freedom of media but would instead enhance the fundamental rights of the media house by bringing more accountability and authenticity to the news.
It is essential to understand that free and fair media is the cornerstone of sound democracy. Freedom of media is a blessing to the public. However, this blessing can turn out to be unpleasant if the news broadcasted is distorted and manipulated because the viewers often have strong faith in what the media broadcasts. Therefore, it is the responsibility of the media houses to double-check every report and broadcast it without any distortion of actual events. Further, no broadcasts shall be presented, which could be detrimental to the image of an accused or a victim in a matter pending before a court.
However, as highlighted above, self-regulation has failed to effectively address the issue at hand, thus calling the appropriate authority to come forward and lay down specific guidelines which ensure universal and uniform ethical norms in the media industry. A detailed and uniformly applicable code of ethical norms would provide more clarity on specific key terms like “ensuring privacy, neutrality, and impartiality”, thus ruling out any subjectivity of their adherence. Most significantly, to effectively address the proposed solutions, there is a need for a practical and efficient legal framework that prioritizes public interests over private interests in order to prevent the arbitrary exercise of the media channels as enjoyed by them under a self-regulatory framework. The framework may involve a body or council that reviews the news, adjudicates upon the complaints, and ensures strict adherence to the ethical norms by the media houses. Consequently, there is a need to inform individuals of their right to complain in cases of violation by the media channels. In a nutshell, the continuance of blatant misuse of power by the media would act against the public interest, which might even lead to a situation of disharmony and conflict at the drop of a hat, thus requiring a massive overhaul on an immediate basis.
Anurag Singh is a student at National Law University Delhi, India. Astutya Prakhar is a student at the National University of Study and Research in Law, Ranchi, India.
Suggested Citation: Anurag Singh and Astutya Prakhar, The Conundrum of Media Trial: Is There a Need for a Paradigm Shift From Self-Regulation?, JURIST – Student Commentary, May 27th, 2021, https://www.jurist.org/commentary/2021/05/singh-prakhar-media-regulation/.
This article was prepared for publication by Vishwajeet Deshmukh. Please direct any questions or comments to her at commentary@jurist.org
