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Media trial vis-à-vis right to privacy: A comparative Analysis

Mrs. Sharada KS
Assistant Professor of Law
KLE Law College Bengaluru.

Abstract

Media is considered as one of the main pillars of democracy, it plays a

pivotal role in forming an opinion in society. The media claims the right to
investigate, to reveal, to expose, and to highlight the cases as their fundamental
right under freedom of speech and expression. The media has been very
enthusiastic in reporting the information even before the police. The process of
media trial showed its power in many cases and succeeded in proving the events
that were kept as secret and helping in solving cases. But many times these trials
declared the accused guilty even before the court declares them and caused harm to
the privacy right, fame, and reputation of an accused in society. This article tries
to recognize the advantage and disadvantages of media trials and examines the
position of this controversy in the United States of America and India.

Keywords: Media trial, Privacy, fundamental rights, American Constitution

and Indian Constitution.
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In the 19th Century media is referred as to the Fourth Estate and it is important
because it counterbalances the other three organs of authority, the legislature, the
executive, and the judiciary. In India we are no longer dependent on the
opposition as a watchdog of authority, media is playing the intermediary role.
Media functions as the watchdog role to safeguard the democracy and defend the
public interest, to expose corruption. Media serves have a two-fold purpose, it
carries information to the public and carries back public responses to the
government.

Advanced technology transformed the quantum, quality, and content of

information and entertainment level, and enhanced the transparency and
accountability in public life. The advanced medium of audio-visual technology is
offering live coverage and provides a wider platform for public participation,
debate, and to form an opinion on issues of national or social concern1.

Media plays another revolutionary role in the preoccupation of sensational

information which is called investigative journalism. Investigative journalism is
not prohibited in India. It started the separate investigation by itself which is called
‘media trial’, and publishes its interpretation on fact. Media trial is the trending
topic in this movement. This expression refers to the media acting as judge, jury,
and executioner. In media, the trial is conducted in parallel to the police
investigation and declares verdict before the court passes its judgment. Cardinal
principles of ‘presumption of innocence until proven guilty ‘ and ‘guilty beyond a
reasonable doubt are at stake by the media trials.

The media has been very enthusiastic to grab and report it the even before Police
do. Investigative journalism is good but in the name of ‘breaking stories’, media
reporters often make a story indulge without the slightest notion of individual
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Madhavi goradia
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privacy or sensitivity and compromise their journalistic ethics and propriety.

Media publishes photographs of the suspects or the accused, or if it publishes
statements that hold the suspect or accused guilty before the court passes any
order. Media exercises unrestricted and uncontrolled freedom it leads to danger
and serious risk of prejudice. Despite the significance of media it is desirable and
expected to ensure that trial by media shall not hamper the fair investigation2.

The Press Council of India (PCI) laid down guidelines for journalistic conduct, to
address the issue of privacy. It also lay down the guidelines for reporting cases and
avoiding trial by media. These Norms recognize privacy as an inviolable human
right but the degree of privacy depends on the circumstances and the persons
concerned. Journalists should not give excessive publicity to victims, witnesses,
accused and suspected, because it amounts to an invasion of privacy.
Identification of witnesses may force them to turn hostile or sometimes it may
endanger the lives of witnesses also.

In the Gujarath Best Bakery3 case, the key witness Zaheera Sheikh was the victim
of excessive media coverage and sympathy. Excessive exposure resulted in
endangered her life. The privacy right of the accused or suspect is recognized by
the PCI norms against the media trials.

Section 228 A of the IPC prohibits the disclosure of the identity of a rape victim is
prohibited and it is punishable. In fact “ names of the victims of sexual crime
cannot be reported”. But media spent enough newsprints about the crime in many
cases and violated the PCI norms. In the Aarushi Talwar 4 murder case media
reports Rajesh Talwar and Nupur Talwar as the key accusers based on
circumstantial evidence and suspicion even before the court pronounced any
2
Ram jet malani page no 1562
3

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verdict. Media coverage was criticized on the salacious allegations against

Aarushi and suspects. Aarushi’s character was questioned even though there was
no provident evidence to prove her affair with Domestic helper Hemraj. Aarushi’s
parents Rajesh and Nupur convicted for the double murder and sentenced to life
imprisonment by a special CRI Court in Ghaziabad. After nine years Allahabad
High Court has acquitted the Talwars in all the charges. This reporting violated the
privacy right of the family and its reputation and caused irreparable damages to
human sensibilities.

Another famous case is the Jessica Lal5 case, it was a cold-blooded murder case in
1999. When a young woman refused to serve the son of a wealthy and powerful
politician, at a restaurant so she was shot dead.

PCI norms also state that the visual representation in moments of personal grief
should be avoided.

An international student studying at Tata Institute of Social Science 6 (TISS) was

raped. In this case, the media did not reveal the girl's name but the name of the
university and the course she was pursuing was revealed. The media reported
sordid details of how the rape took place and PCI norms were violated by the
media. A senior journalist Abishek Kumar( name changed) agreed that in the
TISS case media crossed its boundaries in reporting. In media trials, media
reporting has been relied on the information collected from the police source but
creates an impression that its independent investigation wing has found the
particular fact.

5
Sidhartha Vashisht v. State (NCT of Delhi), AIR 2010 SC 2352
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The Juvenile Justice ( Care and Protection of Children) Act prohibits media from
identification and disclosing the names, addresses, or schools of juveniles or that of
a child in need of care and protection7.

Freedom of expression and the right to privacy both are constitutionally recognized
fundamental rights in India and USA. Almost all the countries in the world include
a right to privacy in their Constitution explicitly or implicitly.

In the Sushant Singh8 case news channels were provocative in the name of news.
Media blindly declared Rhea Chakraborty as an accused with shameless headlines
like “ Sushanth par Rhea ka kaala jaadu”( Rhea’s black magic on Sushant) and “
Rhea ke jhooth par kya kehta hai India?”( what does India have to say about
Rhea’s lies?)9. She was dragged into the case unnecessarily and made her prime
accused without any substantiative evidence. News channels showed her chats with
Sushanth, and between other people as well, and showed her as the villain in the
case. Media in the name of investigative journalism infringe the privacy right of
the victim, the witnesses, the accused, and the suspects. In the Sushanth Singh
Rajput case, the media violated the norms of Journalism conduct. The Press
Council of India advised the media not to carry out their own ‘parallel trials’ and
refrained from infringing privacy. In Kurshid Anwar 10 a social activist committed

7
https://cis-india.org/internet-governance/blog/privacy/privacy-media-law
8

9
https://thewire.in/media/rhea-chakraborty-sushant-singh-rajput-aarushi-talwar-media-trial
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suicide by jumping from the third floor. Mr. Anwar was labeled as a rapist by the
news agency.

The media trial was started in the year 1967, David Frost, UK TV host interviewed
an insurance crook named Emil Savundra. The debate was started in an accusatory
way and was tried by the media.

Constitutionality of Media Trials

Right to Privacy is an important aspect of fundamental right under Article 21 of ‘

right to life and personal liberty11. Article 21 of the Constitution guarantees the
right to a fair trial12. Article 19(1)(a) guarantees freedom of speech and expression
it includes media, the right to publish disseminated information. Article 19(2)
permits reasonable restrictions to be imposed by the statute, but privacy is not the
ground under reasonable restriction13. In addition to this, there is no specific
legislation to protect the right to privacy against excessive publicity by the press,
including media trials in India. Even ‘administration of justice is also not explicitly
defined as the restriction but section 2 of the Contempt of Courts Act 1971, clearly
referred to the interference of the administration of justice in the definition of
‘criminal contempt14. Publications that interfere or tend to interfere with the
administration of justice amounts to criminal contempt under the Act, reasonable
restrictions on freedom of speech and expression can be imposed and it is valid.
Freedom of speech and expression is an important right but not absolute.

11
M. P Jain
12
Gifty Oommen, “ Privacy as a human right and media trial in India “ the Age of Human Rights Journal, 3
(December 2014) pp. 102-121, ISSN: 2340-9592,
13
https://iapp.org/news/a/media-trials-in-india-an-unwritten-carve-out-to-the-right-to-privacy/
14
https://lawcommissionofindia.nic.in/reports/rep200.pdf
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In many cases like the Priyadarshini Mattoo case, the Media forms a public
opinion and succeeded in ensuring justice to the common man. In Manu Sharma's
case, the media acted as a facilitator of justice. Freedom of speech should be
exercised very carefully and cautiously. Freedom has to be used to avoid
interference in the administration of justice 15. The word media trial is defined in
the Constitution but media derives its power under Article 19 (1) (a) of the
Constitution. Through the power, the media disclosed several scams, scandals, and
cases and ensured justice to the common man.

Pros and Cons of Media Trial

Media trial has a good and bad impact. People raise their voices against the
injustice done by the authorities and check and balance the activities of the
government. The media should be sensible enough in reporting matters. But in
many cases media interferes and declares a person guilty even before the court
decides who is the culprit. This increased interference of media in the
investigation has a huge impact on the person’s right to life and violates the
privacy of the person. Through media trials, we achieved justice in many cases,
but on the side, it manipulates the mind of the audience, sometimes fake news
provokes people16, and the information which the media reports may not be the
authentic one. Mainly in the name of investigative journalism media interferes in
the court proceedings, and declares the person guilty but in India, we have the
judiciary to give the judgment on the cases. It should not report the cases just for
sensationalism and TRPs17.

15
Sonakshi Pandey & Snigdha Srivastava, Right to Privacy as a Fundamental Right and Media Trials in India, 10
INDIAN J.L. & Just. 91 (2019).
16
https://blog.ipleaders.in/media-trial-boon-or-bane/
17
Arun Kumar Singh and Anil Kumar “Media trials in India” available at : http://ssrn.com/abstract=2552426
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In the absence of statutory regulatory mechanism, media is governed by several

self -regulatory bodies. The Press Council of India, News Broadcasters
Association, Broadcast Editors Association, News Broadcast Federation 18, these
authorities have set their own guidelines, and these advisory in nature. Media must
have ethical and social responsibility while reporting, “with great power comes
with great responsibility’’, One codified law on media and exclusive regulatory
authority is the need of the day for proper regulation and to safeguard the right to
privacy.

Trial is an essential process associated with the proceedings of the court in the
administration of justice. Every accused as the right to receive fair trial.

USA and India

In Estes v. Texas19case, the Supreme Court of US referred the right to a fair trial as
“the most fundamental of all freedom” and held that “the life or liberty of any
individual in this land should not be put in jeopardy because of the actions of any
news media”20.

Commentators opinion in USA is media coverage adversely affects the fairness of

trial, freedom of speech would be served better by restricting rather than
encouraging an unrestricted media.

Conclusion

18
https://iapp.org/news/a/media-trials-in-india-an-unwritten-carve-out-to-the-right-to-privacy/
19
Estes v Texas, 381 U.S. 532, 540 (1965).
20
Estes v Texas, 381 U.S. 532, 540 (1965).
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When media is carrying proper function in a democracy, its freedom should be

strongly upheld and protected, but when it is not doing so, and conflicting by
attacking the basic freedoms of others, courts should not hesitate to restraint it.
media restraint on freedom must have the legitimate aim of protecting another
individual Constitutional right, and do not infringe the basic value of free speech
in the name of restrictions21.

21
https://www.jstor.org/stable/pdf/27654682.pdf?
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