By Arifa Khan, Post Graduate College of Law, Osmania University, Hyderabad.

The media is regarded as the fourth pillar of any democracy. An independent media is necessary for keeping a check on the government and its organs. But with the increasing corporatisation of media and the race to grab more eyeballs for higher numbers, the media is overstepping its boundaries. It has been witnessed that the media pronounces its own verdict before the trial begins and ends up violating the principles of a fair trial. The accused persons are held guilty in the eyes of the public before a verdict is delivered in open court. Also, the sensationalism by media affects Judges and the public opinion created by the media is bound to have an effect on them.

The mass media utilizes a wide variety of advertising techniques to get their message out and change the minds of people. Since the 1950s, television has been the main medium for molding public opinion. Media is capable of changing the whole viewpoint through which people perceive various events. Heinous crimes must be condemned and the media would be justified in calling for the perpetrators to be punished in accordance with the law. However, the media cannot usurp the functions of the judiciary and deviate from their objective of unbiased reporting. While a media shackled by government regulations is unhealthy for democracy, the implications of continued unaccountability are even more damaging. Researches show clearly the influence of public opinion on Courts.

A victory of public opinion— to be able to sway a fast-track court into action, in a country where justice is known to be served too late or never at all. The public opinion dominates over the rule of law. Surprisingly, the Court is also getting influenced by the public opinion. Justice Dipak Misra, in his Judgment in the Nirbhaya Case, has written: “It is manifest that the wanton lust, the servility to absolutely unchained carnal desire and slavery to the loathsome bestiality of passion ruled the mindset of the appellants to commit a crime which can summon with immediacy a ‘tsunami’ of shock in the mind of the collective and destroy the civilised marrows of the milieu in entirety.”

How far does the public opinion influence the decision of the Court and how far is it desirable? In “Santosh Kumar Satishbhushan Bariyar vs Maharashtra”, the Supreme Court held that public opinion does play a crucial role during sentencing, and therefore, it is important for the Court to declare that public opinion should not be a relevant factor for punishment, given the dominance of media trials and political considerations while awarding death sentence. However, in “Gurvail Singh v. Punjab”, the SC took a contrary view that public opinion is a relevant factor which influences decisions.

Vibrant journalism in a democracy is watchdog journalism that monitors the exercise of power in the State, stands for the rights and freedoms of citizens, and informs and empowers citizens. Our media, and democracy, are fortunate that we have shining examples of journalists who not only embody the ethical dimension, but sadly also laid down their life for the same.

Before Nirbhaya, Kiran Negi was raped and murdered, perhaps more brutally than Nirbhaya, in the same Delhi but she got the final justice from the Supreme Court after 2 long years. The Nirbhaya Case was fast-tracked as it was in media glare, but the kith & kin of Kiran Negi had to wait for a long time for justice. Kiran was gangraped and then injured fatally in a most barbaric manner. Her breasts were chopped off and a bottle was inserted inside her private parts and she was left in a deserted field wreathing in pain. She died after two days at the spot. Justice in this case was delayed because the media did not campaign for her and so the collective conscience was not shocked. Barely days after the SC’s verdict in the Nirbhaya Case, the rape and grotesque murder of a 23-year-old woman from Rohtak raised many questions about the efficacy of the justice system. It is deeply disturbing, not only for the bestiality of the crime, but also for the baffling silence of the civil society which fulminated to the skies in the case of Nirbhaya. The Rohtak victim suffered almost the same barbarity as rapists pushed a sharp-edged weapon into her private parts and then killed her, smashing her head with a brick. The question is: Will the accused be brought to justice expeditiously? And what about those victims of equally brutal crimes who do not get media coverage, and so no public support? Don’t they deserve justice? Such victims are countless. Will the media and the court think of those victims? Perhaps, this is the impression that gives a sense of impunity to criminals.

Although, many a time media publicity prevents the miscarriage of justice and fast tracks cases. Jessica Lal, Priyadarshini Mattu, Ruchika Girhotra and many others would never have got justice but for the public opinion created by the media. These are positive examples of media activism and pressure of public opinion. But judgments and sentencing should only be on the basis of evidence, otherwise innocents may be arrested to calm down frayed public temper.

The trend is very worrisome that incidents of mob lynching are increasing and that public opinion plays a crucial role in the formal justice delivery system also. The gruesome lynching of Syed Sharifuddin Khan at Dimapur on March 5, 2015, who was taken out of jail by an impetuous mob of 4,000 people and dragged for 7 kms with stones being thrown at him continuously put a serious question mark not only on the role of the administration and the legal system but also that of the media, which is not able to differentiate between patriotism and macho nationalism. Reports of lynching keep pouring in from different parts of the Country.

Under the Constitution of India, freedom of the media is part of the freedom of speech guaranteed by Article 19(1) (a). However, no freedom can be absolute and reasonable restrictions can be placed on it. One of the basic tasks of the media is to provide truthful and objective information to the people that will enable them to form rational opinions, which is a sine qua non in a democracy. But is the Indian media performing this role properly? Nowadays, we have seen that media often twist facts and portray non-issues as real issues, while the real issues are sidelined. The issues of paid news have become prominent.

Gandhi ji, a journalist himself, cautioned that “an uncontrolled pen serves but to destroy.” The sole statutory, quasi-judicial body set up for media regulation in the country is the Press Council of India. While it aims to preserve the freedom of the press and maintain and improve the standards of Press in India, it has no way of imposing punishments or enforcing its direction for professional or ethical violations. In the absence of any other government regulator, individual self-regulation has failed due to personal predilections and the prevailing of personal interest over public interest.

It has to be realized that freedom of expression is not absolute or unlimited. The judiciary is peopled by Judges who are human, and are occasionally motivated by considerations other than an objective view of law and justice. No Judge is completely impervious from the influence of the hype created by the media. Media must exercise better self-regulation. It is expected of persons at the helm of the affairs in the field of media to ensure that trial by media does not affect fair investigation by the investigating agency, and more importantly does not prejudice the defence of accused in any manner. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.

In order to stifle free speech and comments on the Court, even an occasional exercise of the power of Court to punish the condemners is enough to discourage most people from saying anything that might pre-judicially affect any trial proceeding or transgress the principles of natural justice. But if the government starts regulating the media, the whole purpose of Freedom of Speech would be defeated. Instead, a better option would be a setup where media is given enough freedom to bring out the truth and make people aware of things happening around the world and at the same time some restrictions should be placed on the media to not interfere with the Court proceedings which in any way could hurt the accused or the victim. An educated, cultivated and engaged civil society can be the best watchdog over governments and the media. This would restore and balance the polity and accord a semblance of normalcy among the institutions of the Country.