INDEPENDENCE OF JUDICIARY VIS-À-VIS FREEDOM OF SPEECH: EVALUATING THE ROLE OF MEDIA

  • Written by Saksham Dwivedi
  • This article was first published in the E-Magazine “Let me Speak.”

With the arrival of 24-hour news channels and the ever-increasing Social Media, the desire and obsession for being the top and providing the breaking news at earliest has reached an alarming height. The media has brought the Indian Judiciary under its scanner. It has assigned itself to the adjudicatory task and has started holding parallel trials outside the courtrooms. Be it police/armed forces encounters, murders, a celebrity wedding or a constitutional law case, the eagerness to be first has led to unhealthy competition in the field of journalism resulting in obliteration of norms or commitment to the noble profession. On one instance, Hon’ble Supreme Court was set to pronounce a very important judgment, one of the dissenting judges started reading his judgment and with live tweets and coverage, that was flashed as the Verdict without realizing or perhaps caring about the judgment of the majority. Only later would they correct their position attributing it to an error. The problem gets compounded when the matter is sub judice.

The media swinging to sensationalism virtually leaves very little space for the prosecution or the Courts to examine the matter. It has assumed dangerous proportions and freedom of speech and expression which is the bed rock of journalism is being subjected to gross misuse. Thus the question is whether the media and public opinion affects the Judges and consequently, the judicial process subconsciously or unconsciously?[1]

As Justice Frankfurter once stated, “No Judge fit to be one is likely to be influenced consciously, except by what he sees or hears in Court and by what is judicially appropriate for his deliberations. However, Judges are also human and we know better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process”[2].  Freedom of speech and expression is sacrosanct and In Re: Harijai Singh and Anr. And In Re: Vijay Kumar[3], the Supreme Court had the occasion to decide on the scope of the freedom of press, recognizing it as “an essential prerequisite of a democratic form of government” and regarded it as “the mother of all other liberties in a democratic society”.  But on the same hand, whenever administration of justice is subordinated to liberty of press, grave consequences ensue. It was well seen in the sensational Arushi Talwar’s case[4] where the media went deranged speculating and reaching conclusions, pointing fingers and creating quite a confusing and turbulent atmosphere. Many believe that the convicts in Nirbhaya Gangrape case had death sentence as their sole future from the first day they were caught and accused of the offence. Earlier this year, when four rape accused were killed in police encounters, without paying heed to their right to life and fair trial, Media was busy hailing the policemen as heroes. These are larger issues and ensuing questions that a not-so-nascent democracy like ours has to think, ponder and debate.

Public opinion and media’s role in creating it is no doubt important in a democracy but what is questioned here is whether it is right if such public opinion affect the mind of the judges. The essential qualifications of a judge, in the words of the celebrated Greek philosopher Socrates, are that he should be able to hear courteously, answer wisely, consider soberly and decide impartially[5]. One of the hallmarks of a civilised, developed community is an independent judiciary.

In Zahira Habibullah Sheikh v. State of Gujarat[6], Hon’ble Supreme Court explained, “Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.” The freedom of speech and expression and the other rights conferred on the press also places a heavy burden of responsibility on them. After all with great power comes great responsibility too. Therefore, it is imperative for the media to exercise due care and caution before publication of a potentially damaging piece is published. As wisely put in the Arushi’s case, “They (Media) must play a responsible role. By investigation, the media must not do anything which will prejudice either the prosecution or the accused. Sometimes the entire focus is lost. A person is found guilty even before the trial takes place.  We will lay down guidelines on media coverage. We are not concerned about media criticizing us. What we are saying is there is no absolute freedom”[7]

The Supreme Court has enunciated in State of Maharashtra v Rajendra Jawanmal Gandhi[8]that a trial by press, electronic media or by way of a public agitation is the very anti-thesis of rule of law and leads to miscarriage of justice. A Judge is to guard himself against such pressure”. In Attorney General v. BBC [9] Thomas J. had remarked, “This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard or read outside the court and he will not knowingly let himself be influenced in any way by the media but he may be subconsciously affected by it. The possibility that the media might be able to influence the judges is horrifying for an accused. It is no doubt a derailment of one’s right to get a fair trial. ”

On to the other spectrum, as a disseminator of public opinion, however, media has been instrumental in helping victims of crimes getting justice, when opaque bureaucracy and rampant corruption stifles prosecution of the powerful. The media’s role in the Jessica lal murder case was noteworthy. The coverage put forth by the media and the public response resulted in pressurising the court to deliver justice. The media was successful in criticising the trial court’s acquittal of the son of a police inspector who raped and killed Priyadarshini Mattoo. In this murder case[10], when the Delhi High Court convicted Santosh Singh, the father of deceased, Chaman Lal Mattoo, the woman’s father, wrote in the Indian Express newspaper “I can’t thank the media enough. If it was not for the media, we would have lost the spirit and the battle”[11]. In Praful Kumar Sinha v. State of Orissa[12], a writ against sexual exploitation of blind girls in school was filed before the Supreme Court on the basis of an article published in a newspaper. Even though sexual assault was difficult to prove, the Apex Court, on the basis report submitted, gave directions to the institution for proper management. Also, in D.K Basu v State of West Bengal[13], the sensitive issues of custodial violence were taken into account after a sensational revelation in a newspaper. Another commendable case is of Sheila Barse (II) v. Union of India[14], wherejournalist Sheela Barse was highly praised for her work in the field of juvenile justice. Media activism also brings out the weakness and stagnancy of our system. It is because of the media to a very large extent, that the general public is more aware of their rights and constitutional status.

With the increase of its reach, media ended up blurring the boundaries of freedom of speech and right to fair trial.  The voice of the media would be more effective if it can resist the temptation of needless sensationalisation of news. Bonafide mistakes in reporting are condonable because to err is human, but not deliberate exposure of private lives of public figures without full verification of facts. Reputations made over a life time can be destroyed overnight.  A reputation once destroyed cannot be fully restored by making amends or by belated censure of peers in the Press Council or even by court decrees. There have also been instances where the watchdog of democracy behaved like the lapdog of the business house concerned. It affects credibility. Freedom without responsibility degenerates into license. The media gives wide coverage to court proceedings in all important cases. The reports ought to be accurate for it will go to the masses. The temptation to promote readership and sales should not be at the cost of journalistic ethics. Unhealthy competition in the field of journalism results in obliteration of norms or commitment to the noble profession. Thus, it will be apposite to conclude that to shield judicial outcomes from subconscious or unconscious effect of public opinion, the media needs to conduct itself with a greater sense of responsibility and the Judiciary with even more insulation from Public Opinion.  To be able to play effective and constructive role in strengthening democracy, the media, like any other public functionary, have to rise above self-interest and be guided by national interest, the constitutional values and journalistic ethics.


[1] Brian Z. Tamanaha, The realism of Judges Past and Present’, 57:77 CLEV. St. L. Rev 83-84

[2] Pennekamp v. State Of Florida, 328 U.S. 331 (1946)

[3] (1996) 6 SCC 466

[4] 2011 (4) ALJ 682

[5] Jethmalani, Ram, Judging The Judges, in JUDGING THE JUDGES (K. Mahesh & Biswajit Bhattacharya eds ,Gyan Publishing House 1999)

[6] (2004) 4 SCC 158

[7] J. Venkatesan, Apex Court to lay down coverage norms, sourced from http://www.thehindu.com/2008/08/19/stories/2008081957360100.htm ((Last visited on 13.05.2020).

[8] 1997 (8) SCC 386

[9] (1981) 3 All ER 161

[10] 2007 Cri LJ 964

[11]Palash Kumar, India Media plays judge as justice system fails, sourced from http://www.asiamedia.ucla.edu/articlesouthasia. Asp?parentid=56828 (Last visited on 13.05.2020).

[12] AIR 1989 SC 1783

[13] (1997) 1 SCC 416

[14] (1986) 3 SCC 632

Published by Raj Krishna

A Law Student

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