Lord Macaulay (British Member of Parliament) once called the media “the fourth pillar of democracy”. However, as evident by the Sushant Singh Rajput (“SSR”) media trial of 2020, television media seems to be the judge, jury and executioner of this democracy.
In a recent judgement (Nilesh Navalakha and others v Union of India and others and 4 other Public Interest Litigation applications), the Bombay High Court directed the print and electronic media to exercise restraint and to refrain from publishing any news items, debates, discussions, interviews while reporting certain cases or at a particular stage of investigation especially during a pre-trial stage. The PILs filed by (i) eight retired IPS officers, (ii) filmmaker Nilesh Navalkha and others, (iii) Advocate Asim Suhas Sarode; (iv) an NGO named ‘In Pursuit of Justice’ and (v) beleaguered film producer Prerna Arora, prayed for, amongst other things, guidelines for “ethical reporting and responsible journalism,” by all form of media, especially at the investigation stage.
The background of these PILs was the unnatural death of SSR in Mumbai on June 14, 2020 that became a sensational topic of discussion in every other household during the pandemic as well as a staple part of every media channel’s prime time news cycle. Various TV channels initiated intense discussions on the probable cause of death of SSR and some also resorted to “investigative journalism”, and sought to spread the message among its viewers that Mumbai Police has been passing off a homicidal death as a suicidal death. Some channels insinuated that a close acquaintance of SSR, who herself is an actress (“Actress”), had orchestrated his death. On the heels of such reporting was the First Information Report (“FIR”) filed by SSR’s father at Patna, Bihar naming the actress as an accused for his son’s homicidal death. The Actress applied before the Supreme Court for transfer of a FIRat a police station in Patna and all consequential proceedings from the jurisdictional court at Patna to the jurisdictional court at Mumbai. The Supreme Court passed an order entrusting the Central Bureau of Investigation (“CBI”) with investigation into the complaint of the actor’s father. In compliance with such order, the CBI took over investigation. In due course of time, the Enforcement Directorate (“ED”) and the Narcotics Control Bureau (“NCB”) too joined the fray by launching separate prosecution suspecting offences under the Prevention of Money Laundering Act, 2002 and the Narcotics Drugs and Psychotropic Substances Act, 1985 “NDPS Act”, for short), respectively.
Television News Reports
After the intervention of the Supreme Court, some TV channels claimed that Mumbai Police’s vicious attempt to suppress the homicidal death of SSR, which had been unearthed by “investigative journalism”, stands validated by reason of the order of the Supreme Court. It had also been the claim of one of the TV channels that because of its persistent vigorous demands for divesting Mumbai Police of investigative powers in the case that truth had triumphed, with the CBI being entrusted with the investigation by the Supreme Court. A couple of TV channels aired several programmes questioning the manner of investigation by Mumbai Police and also as to why the Actress had not been arrested in view of materials that such channels had gathered through “investigative journalism”. One of them even went to the extent of obtaining opinion from the viewers on whether the Actress should be arrested. One other channel flashed that the actor had been murdered. The persistent efforts of the channels for arrest of the Actress did bear fruit in that although the CBI did not find reason to arrest her, she came to be arrested by the NCB. After a monthlong incarceration, this Court granted the Actress bail upon recording a finding that materials collected thus far by the NCB prima facie did not suggest that she had committed any offence. The insensitivity of such TV channels is writ large in that the headlines/questions were displayed/posed knowing fully well that the same would never be rebutted by the individual to whom it is directed.
These 5 PILs came to be presented before the Bombay High Court between June 25, 2020 and September 10, 2020 seeking multifarious relief. All but one of the writ petitions raise common issues in regard to the role of the electronic media in reporting matters concerning investigation into the unnatural death of the actor, thus amounting to a ‘media trial’. The petitioners urge that the electronic media in derogation of their legitimate media rights are broadcasting irresponsible and unethical news programmes of a nature amounting to slander as also amounting to a direct interference in the course of investigation, as undertaken by the investigating agencies, of a highly prejudicial nature.
The individual petitioners had several similar contentions and in this article, we have summarised a few below. The Petitioners contended that:
- Some of the television channels have televised interviews with material witnesses and in fact indulged in cross-examining these witnesses. They have taken upon themselves the role of the investigating agencies, prosecutors and adjudicators in pronouncing persons guilty of committing an offence, even before the lawful investigation is completed by the investigating agencies.
- The news channels have resorted to a reckless reporting against the State agencies on whom the powers of investigation are conferred by law and such interference by the electronic media in the course of lawful investigation of any alleged crime defies all cannons of legal legitimacy.
- The telecasts on the suicide, contained photographs of the dead body of SSR was insensitive.
- The actions of the media by use of derogatory and irresponsible language against Mumbai Police and its Police Commissioner has tarnished the image and good name of the entire police force and damaged the valuable reputation of Mumbai Police.
- Media trial, which has resulted into parallel investigation being undertaken by private individuals, amounts to gross violation of the rights of the accused and the witnesses guaranteed under Articles 14 and 21 of the Constitution, as right to a fair trial including a fair investigation is a Fundamental Right of an accused in the Indian criminal justice system.
- That media trials during the pre-trial investigation stage by reportage and exposure of key witnesses and evidence, clearly undermines the concept of free and fair trial. The freedom of the media, especially of the TV channels, cannot be allowed to super stretch to a point that impinges upon free and fair investigation.
In light of the above background the PILs were filed before the Bombay High Court and heard by the Bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni. The Bench during the hearings made several strong oral remarks criticizing the pattern of reporting a few media houses followed in the SSR death case and observed that they would like the media not to cross boundaries.
Findings of the Court
There were 5 questions of law and other incidental questions placed before the Bench, which the Bench discussed and deliberated in detail while relying on several other precedents.
Answering one such question the Bench held that a ‘fair investigation of crime’ and fair trial of the accused’ were essential steps for “administration of justice”. It further held that any act done or publication made which is presumed by the appropriate court (having 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 could be considered as criminal contempt.
With respect to another question placed before the Bench, it observed that broadcasters and the persons involved with the cable television network are required to abide by the provisions of the Cable Television Networks (Regulation) Act, 1995 and rules thereunder. Particularly Rule 6 that imposes several restrictions, and restricts airing of tv programmes: (i) that is against good taste or decency; (ii) contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; (iii) contains anything amounting to contempt of Court; (iv) criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country; (v) denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals; or (vi) contravenes the provisions of the Cinematograph Act,1952.
The Bench emphatically held that while the right of a fair trial has to be zealously guarded, equally important is the right of the press/media to keep the public informed of matters of public interest. These could include reporting of court proceedings involving people belonging to the top echelons of society, legislators, judges, bureaucrats, celebrities, etc. It added however that it can safely be concluded that to amount to a trial by media, the impact of the press/media coverage on the reputation of the person targeted as an accused must be such that it is sufficient to create a widespread perception of his guilt, prior to pronouncement of verdict by the court, thus making him the subject of intense public scrutiny for the rest of his life.
The Bench during the course of the hearings, illustrated how unregulated media reporting could adversely affect investigations that are in progress. These illustrations were as follows:
- Impact, qua the accused, is that, he could be put on guard. If an accused is not being trailed by the police, it does not mean that the investigator is turning a blind eye towards him. The essence of a police investigation is skillful inquiry and collection of material and evidence in a manner by which the potential culpable individuals are not forewarned. Because of unnecessary meddling by the media, the accused can destroy evidence and avoid arrest by absconding, making the task of the investigator difficult in searching for the truth.
- Impact, qua an innocent person, if he were projected as an accused along with the principal accused and hounded by the investigator based on media reporting, is that he stands the risk of his reputation, built up on years of sincere efforts and good work, being damaged beyond imagination and may, in rare cases, lead to suicide or attempts in relation thereto. It does not take much time for the viewers of the media report to forget the past good deeds of such person and to accept as gospel truth what has been reported by the media, but insofar as the targeted individual is concerned, the loss, injury and prejudice could be irreparable. This would be against a just social order.
- Impact, qua a vital witness, is that he could be won over, threatened or even physically harmed to ensure that he does not tender evidence. Nothing can be more damaging in the pursuit of truth if a vital witness does not turn up for tendering evidence or even if he turns up, is declared hostile by the prosecution for reasons too obvious. The prosecution theory would fall into pieces, unless of course there is other credible evidence to nail the accused.
- Impact, qua the investigator, could be equally pernicious and cause miscarriage of justice. On account of human failing, the investigator could be influenced by the media reports; although he may be following a particular track, which in fact is the right track, he could abandon the right track and follow a different track leading him to nowhere. On the contrary, if the investigator, instead of changing tracks as suggested by the media follows the track chosen by him, he could be maligned by the media and accused of improper investigation creating an adverse opinion in the minds of the viewers which, in any circumstance, is undesirable and unwarranted.
- Impact, qua the investigation, is that publicity in respect of certain aspects of a case by media reporting that the investigator is indulging in secrecy can hamper the course of due investigation. Although trials in court are open proceedings to which each member of the public can have access unless proceedings are held in-camera, there is no law requiring the investigator to conduct investigation openly and to lay before the public, at different stages of investigation, evidence that he has collected in course thereof. Thus noticed, without much debate, an area can be carved out for corrective action. Given the circumstance that the press/media has the ability to mould the opinion of the society by publicity of certain facets of an investigative process, which could give rise to strong public emotions and prejudice the case of one party or the other, it ought to refrain from taking stances in its presentations which are biased and show a predilection for a particular point of view having enormous potential of deflecting the course of justice.
The Bench while giving due recognition to the press/media as the fourth pillar of democracy and the vital role it plays in not only disseminating information to the public but also in urging the justice delivery system to set right a wrong, expressed that there have been several decisions of the Supreme Court expressing hope and trust that the media would cover and report events and incidents accurately and by exercising a degree of restraint so as not to impinge on others’ rights and even if it does cross the line, the self-regulatory mechanism would spring in to keep the media under check. The Bench held that it now however believed that there is good enough reason to conclude that the hope and trust are belied and the self-regulatory mechanism has failed to deliver in adequate measure in keeping erring media houses under check. Corrective action is the need of the hour.
The Bench concluded that the press/media ought to avoid/regulate certain reports/ discussions/debates/interviews in respect of any on-going inquiry/investigation into a criminal offence and that only those items be presented for reading/viewing and for otherwise perceiving through the senses, which are merely informative and in public interest instead of what, according to the media, the public is interested in. No reportage should be presented by the press/media which could harm the interests of the accused being investigated or a witness in the case or any such person who may be relevant for any investigation, with a view to satiate the thirst of stealing a march over competitors in the field of reporting. Accordingly, the Bench via a non-exhaustive list directed the press/media to exercise restraint and refrain from disseminating any news item and/or initiating any discussion/debate/interview of the nature, as indicated hereunder:
- 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;
- That causes prejudice to an ongoing inquiry/investigation by:
- Referring to the character of the accused/victim and creating an atmosphere of prejudice;
- Holding interviews with the victim, the witnesses and/or any of their family members and displaying it on screen;
- Analyzing versions of witnesses, whose evidence could be vital at the stage of trial;
- 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;
- Printing photographs of an accused and thereby facilitating his identification;
- Criticizing the investigative agency based on half-baked information without proper research;
- 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;
- Recreating/reconstructing a crime scene and depicting how the accused committed the crime;
- Predicting the proposed/future course of action including steps that ought to be taken in a particular direction to complete the investigation; and
- Leaking sensitive/confidential information from materials collected by the investigating agency.
(iii) Acting in any manner so as to violate the provisions of the Programme Code as prescribed under the CTVN Act and thereby inviting contempt of court; and
(iv) Indulging in character assassination of any individual and thereby mar his reputation.