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What is fair and what is unfair are not absolute and immutable ideas. They change according to time and place. What was unfair few hundred years ago may become fair now. The trial by media is one such concept. However it has been condemned by civil rights activists, lawyers, judges and academicians.

The media is a powerful tool for social engineering. It draws its power from Article 19(1)a of the Constitution which guarantees freedom of speech and expression. As a pillar of democracy it has the duty to use this right judiciously. The burden becomes heavier because it has the power to mould public opinions and change the way people perceive the justice system.

The problem of unfettered use of this freedom becomes apparent if we look at the interference of media in "administration of justice". This interference can be summed up in the phrase "trial by media" which basically means the impact that media has on a trial proceedings. This impact can be through prejudicing, forming perception or characterising person in a certain way.

An accused is declared guilty by the media at the time of arrest, blatantly ignoring the doctrine of presumption of innocence of the accused until proven guilty beyond reasonable doubt. For example in the Aarushi murder case the Talwars were declared murderers by media even before the judgment. Another example is of Asaram Bapu. Though just charged under Protection of Children from Sexual offences Act, 2012, he was declared guilty by the media. Media portrays the accused in such a way, by using assertive style of writing, which the public is made to believe the story of the media.

The trial by media is not legal in any way. The interference can have serious effect on the life of the person who is directly impacted. It makes difficult for such persons to restore their life when they are found not to be guilty without societal scrutiny which is the result of the pre-judgments by the media.

Moreover it is very well recognised that a judge presiding over a matter that has gained media hype is likely to be effected subconsciously if not consciously. This may manifest in either the judge being apprehensive about public reaction after he passes a judgment against the "media verdict" or when he feels pressurised to act according to the story of the media, gravely wrecking the impartiality that he/she is expected to uphold. Such impact on judges is affirmed by 'Aarushi', an investigative book by journalist Avirook Sen which claims that the judge wrote the 'verdict' even before the defence finished its argument. Not only accused but sometimes other functionaries like police are shown in a bad light which degrades their reputation.

Law Commission of India in its 200th Report on TRIAL BY MEDIA FREE SPEECH AND FAIR TRIAL UNDER CRIMINAL PROCEDURE CODE, 1973 analysed the relation of trial by media with freedom of speech under Article 19(1)a, reasonable restrictions and Contempt of Court laws. Section 2 of the Contempt of Courts Act, 1971 defines criminal contempt. It includes publication of any matter which prejudices or interferes in any way in the judicial proceedings or administration of justice. Two recommendations of the Commission are worth pondering. Firstly, the High Court should be given power to postpone publication of any news that has the potential to prejudice. Secondly, the contempt should be from the date of arrest and not from the date of filing the charge sheet.

The justification by media is that they act as catalysts to the otherwise sluggish judiciary. They say that they merely represent the views of the society and not shape them.Though there are a lot of vulnerabilities attached to trial by media it would be incorrect not to give media due credit for exposing various scams and its work in bringing justice in cases where it was under the influence and pressure of the rich and powerful. For example the Jessica Lal case. Therefore the need of the hour is to put reasonable restriction on media so that it not only is able to exercise its right of speech but at the same is prevented from exceeding its arena of legitimate jurisdiction.

Bhishm Khanna

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