Friday, December 24, 2010

The Trail by Media : Overview

The Trail by Media : Overview  

John Milton :  “Give me the liberty to know, to utter and argue freely according to conscience above all liberties.”

The 'News' is an integral part of life in the 21st century.There is no universal definition of the term 'News'.Due to advancement of technologies that lead to the spread of new avenues of sharing of news i.e T.V ,Radio,Internet.The students of Journalism -Mass communication might be very familiar with Media.The word 'media' comes from Latin word 'medium' which in singular form means ,method or way of doing some thing ,in the plural form ,media in modern context ,signifies ways or means of communication .The word 'media' wider connotation, it includes both  news paper[news paper,magazines&books] , Electronic media[radio,T.V,cable satellite ],audio visual media[film,audio cassette &video].To regulate the media ,various acts/provisions of  law  were enacted by all countries known as Media laws to regulate the media and ensure that they function under legal parameters.

"The media includes both the traditional means of mass communication, such as books and pamphlets; nautankies, puppet shows, street plays, ballads, kirtans, pulpit and platform and the modern stage; small and big screen motion pictures; radio, print and the electronic media; SMS; Internet etc"-Justice P B Sawant Former Judge of the Supreme Court of India and a Former Chairman of the Press Council of India.

Late Nani Palkhivala: “Freedom is to the Press what oxygen is to the human being; it is the essential condition of its survival. To talk of a democracy without a free press is a contradiction in terms. A free press is not an optional extra in a democracy.” at The Golden Jubilee Valedictory Function of the Indian Newspaper Society, Delhi, September 29, 1989 .

Justice Jeevan Reddy in R. Rajagopal Vs. Tamil Nadu[AIR 1995 SC 264] :“But what is called for today, in the present times, is a proper balancing of the freedom of press and said laws consistent with the democratic way of life ordained by the Constitution. Over the last few decades, press and electronic media have emerged as major factors in our nation’s life. They are still expanding and in the process becoming more inquisitive. Our system of government demands as do the systems of government of the United States of America and United Kingdom-constant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good Government."

The Laws enacted in India prior to Independence:
  •  First Press Regulation was in  1799 by Lord Wellesley

  •  The government passed the ‘Gagging Act’ in the year 1857,

  •  The ‘Press and Registration of Books Act’  in 1867

  •  The ‘Vernacular Press Act’ of 1878 by Governor General Lord Lytton

  •  Lord Minto promulgated the ‘Newspapers (Incitement to Offences) Act, 1908 in  In 1908

Post -Independence era:

Post independence -era lead to various enactments in India.

  •   Article 19  ,Part-III- Fundamental Rights, Constitution of India,1950  ;expressly guarantees Freedom of Speech and Expression,  The ‘freedom of press’ is an extension of the fundamental right to ‘freedom of speech and expression’ provided for under Article 19(1)(a) of the Constitution.  It is however pertinent to mention that, such freedom is not absolute but is qualified by certain clearly defined limitations under Article 19(2) in the interests of the public.
  •  The Press (Objectionable Matters) Act, 1951 – This enactment provides bar against the printing and publication of incitement to crime and other objectionable matters. 

  •  The Newspaper (Prices and Pages) Act, 1956 – The Central Government under this statue has power to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter. 

  • Press Council Act, 1978 – Under this Act, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India. 

  •  Cable Television Networks (Regulation) Act, 1995& Direct-to-Home Broadcasting –

  •  The Copyright Act, 1957

  • Contempt of Courts Act, 1971 and The Official Secrets Act, 1923.

  • Delivery of Books and Newspapers (Public Libraries) Act, 1954

  • News Broadcasting Association (NBA)

Apart from that  above enactments, Indian Penal Code and Criminal Procedure Code are also applicable for media.

Trial by media :

The trail by media is new term in the field of law and journalism.According  to Wikipedia "Trial by Media is a phrase popular in the late 20th century and early 21st century to describe the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law."There has been intense debate about the role of media  and how media should act with in the ambit and parameters of law of the land  ,when reporting court cases[sub-judice]and where cases ,which are being investigated by investigating agencies prior/after the lodging of  First Information Report[FIR] ,prior to filing of charge sheet in criminal cases giving due credence to the principle "Presumption of  Innocence ,until proven guilty" by the prosecution in the court of  law and respecting basic principles of Fair Trial ,according to due procedure established by law as enshrined in the Article 21 of Constitution of India and  International treaties like Universal Declaration of Human Rights ,Principles of Natural Justice,Equity and Fair play.

    * Roscoe 'Fatty' Arbuckle

    * Trial of O.J. Simpson

    * Rodney King

    *Azaria Chantel Loren Chamberlain

    *Chris Hurley

Trail By media in India

In India, trial by media has assumed importance and attracted lots of criticism . Some famous criminal cases [including the cases "that would have gone unpunished but for the intervention of media "]

Priyadarshini Mattoo case
Jessica Lal case
Nitish Katara murder case
BMW Run over case[Nanda]

Negative of Role of Media:

Aarushi Talwar:The father of Aarushi,Mr.Rajesh Talwar was shown as culprit &media also questioned the character of Aarushi

Sri Jayendra Saraswathi Swamigal: projected as guilty before full trial

Khushboo: was misquoted by electronic and print media on live-in relationships lead to filling of 22 cases against her

Sanjay Dutt :shown in media as someone who is innocent before commencement of trial.

T Raja Case-media coverage of Telecommunication 2 G spectrum: "I stand condemned, charge-sheeted, tried and convicted by the media. My stock is so low that anything I say does not redeem my position," said T.R. Andhyarujina ,Senior counsel ,appearing for Raja before an apex court bench of Justice G.S. Singhvi and Justice Ashok Kumar Ganguly in December 2010.

Ratan Tata : Tata filed a writ petition in Supreme Court of India alleging that Nira Radia tape leaks to media amounts violation of Right to Privacy under Article 21 of Constitution of India.

Family Disputes :ALL INDIA Forgotten Women’s Association (AIFWA), Andhra Pradesh Mothers-in-law Protection Association (APMPA), Save Indian Family Foundation (SIFF), All India Men’s Welfare Association (AIMWA) submitted a petition to the A.P. State Human Rights Commission regarding print and electronic media "telecasting/publishing lies and half-truths about family disputes between husbands and wives in the name of news, and resorting to defamation of husbands and their family members by calling them criminals, crooks, cheats, frauds, blood-thirsty demons, money-hungry wolves, and similar terms merely based on the self-serving statements of a complainant wife, thus damaging the dignity of accused persons".

Law Reform -Media :

The  200th Report of the Law Commission on “Trial by Media: Free Speech Vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)”.The subject was taken up suo -motu having regard to the extensive prejudicial coverage of crime and information about suspects and accused, both in the print and electronic media. There is today a feeling that in view of the extensive use of the television and cable services, the whole pattern of publication of news has changed and several such publications are likely to have prejudicial impact on the suspects, accused, witnesses and even Judges and in general, on the administration of justice. According to our law, a suspect/accused is entitled to a fair procedure and is presumed to be innocent till proved guilty in a Court of law. None can be allowed to prejudge or prejudice his case by the time it goes to trial.


We need to balance between Freedom of Press and Fair trial ,so that all organs of the government function smoothly without any hindrance and interference .We should not expect our Judiciary to pronounce any one guilty or innocent merely basing on reports in press or media.This trend will bring dangerous results and untold miseries to people .The press and media has right act as checks-balance in democratic society ,but it can not intrude someone else roles and functions.  

"The interface between the news-media and the legal system obviously touches on many issues that merit a rigorous discussion-K.G. Balakrishnan,former Chief Justice of India, at the Ramnath Goenka awards"

Wednesday, December 22, 2010

The Law and Legal System in India

The Law and Legal System in India.

Courts in India

The courts,law and lawyers play important role in the society ,you can not imagine a society without government and judiciary.They are indispensable part of state or society.The state in other words can defined as "society organized for law".If there is no rule of law in  the society,that society is not peaceful and stable and the anarchism prevails in that society.
The Indian legal system inherited English Common law system with written constitution and written laws,unlike English system with unwritten constitution.The laws in India are as old as 1836 and Indian Constitution is lengthiest and longest living document in the world with more than 100 amendments since 1951.There are more than 10,000 courts in India with one Supreme Court,21 High Courts and other courts ,which are called lower courts or sub- ordinate judiciary [sub-ordinate to High Courts].

The division of law into criminal and civil is purely for administration of justice[terms are not defined any where],courts ,where civil cases are dealt are known as civil courts and courts,where criminal cases are dealt are known as 'Criminal Courts[Munsif level courts deal both cases ]The proceeding in civil courts are known as 'civil proceeding' and governed by procedure prescribed in 'Civil Procedure Code' .The proceeding in criminal courts are known as 'Criminal Proceeding governed by procedure prescribed in the 'Criminal Procedure Code'.

There are certain proceeding which can be categorized both 'Civil 'and 'Criminal' proceeding',but it is difficult to differentiate between 'Civil' and 'Criminal proceeding'.The Supreme Court once observed that "the character of the proceeding depends not upon the nature of the tribunal ,which is invested with the authority to grant relief ,but upon the nature of right violated and the appropriate relief which may be claimed and ultimately may be granted.........."  
Some of the cases under  Motor Vehicles Act ,laws relating to Weights&Measures,Petty Thefts and offences under Cattle Trespass Act are tried summarily and disposed off with out adhering to any lengthy procedure.

The Quasi -judicial bodies[MRTP/Competition Commission of India ,Consumer Commission/forum's etc] and specific tribunals like industrial,labour,service,tax,company law boards,water,electricity or armed forces tribunal don't necessarily follow the rigid procedural laws like regular courts.
The Commissions under statutory law were set up for specific purposes like Human Rights Commission[both national &state],S.C&ST Commission,B.C Commission,Minorities Commission,National Commission for children,National Women's Commission&State Women Commission etc.

Laws in India

There are about 3000-3500 central statues in India[see Indiacode] and state enactment around 25000 to 30,000.The most laws are outdated more and needs to be revisited and repealed.The Jain Commission on Review of Administrative Law identified around 1300 statues for outright repeal. Some laws have become out- dated in view of changes in society and needs to be revisited,some sections needs to be deleted or changed in some laws.The purpose of Law commission is study the existing laws and suggest necessary changes as per prevailing circumstances in the society.There is considerable criticism by experts that most laws are not being implemented effectively or some laws are being  misused.In some states ,there are state law commissions ,who are also working on areas of law reform.

There are no effective laws in many areas  to regulate Credit Cards/Debit Cards ,ATM,hire purchase,electronic data exchanges,government liability in tort cases ,certain areas in IPR, discrimination to HIV / Homosexuals ,certain labour laws violations in private sector,online pornography and child pornography ,satellite TV regulations[showing excessive violence &sexual visuals] etc.There is a need for statutory reform to fill up gaps in the existing laws.

There are more 20-25 million cases pending in various courts in India[35 millions if we include quasi judicial forums].The ratio of judges population very poor ,when compared to other countries.There about 27 judges in Supreme Court ,about 530 High Court judges and 900 sub-ordinate judges[about 335 District judges] [figures may not be accurate].It is misnomer to say citizens are largest litigant ,ironically government is largest litigant in country [with amount of cases filed by government in various courts]
There are  more 4,50,000[ as  2009-10] practicing in various courts in India and all of them regulated by Advocate Act ,1961.There is intense competition among lawyer's fraternity and standards of lawyers is not encouraging and there is feeling there is dearth of quality lawyers in the country.There is concern that lawyers profession is not attracting talented law graduates and most law  graduates of National Law schools not showing any inclination to practice in courts of law,rather more inclined to take up jobs in corporate sector and foreign law firms, due to attractive pay-packages.
The Bar Council of India proposes to hold All India Bar Examination for fresh law graduates to enter the profession of law on the ground that present standard of legal education is not satisfactory and poor .The said exam is challenged in courts of law and necessity of such exam is still debated by experts.The Supreme Court also examining the issue of conducting Bar examination as several writ petitions were filed in High Courts and Supreme Court.

There is debate about the entry of foreign law firms in view of WTO regulation  ,where signatory state has to open the service sector .Most experts are opposing the entry of foreign law firms.It is alleged that some law foreign law firms have already opened their off-shore offices  in the name of LPO[Legal process outsourcing] and the issue is being examined by the High Court of Chennai.

"Hundreds of lawyers are practising in this country. I know many of them do not have sufficient work. Some of the young members of the Bar still face several difficulties. I can only wish them all success in their career. My only advice is - what is required for the young lawyers at the Bar is clear head, a good memory, strong commonsense and aptitude of analysis and arrangement. If you possess these qualities, difficulties in your profession would vanish, like the morning mist before the Sun." - Hon’ble Mr. K.G. Balakrishnan, Chief Justice of India in  Supreme Court Bar Association Farewell  Function.(New Delhi, May 11, 2010)

"I wonder what a lawyer practicing in 1950 would feel if he were today to enter the Supreme Court premises on a Monday or a Friday. He would be appalled at the huge crowd of lawyers and clients thronging the corridors, where one finds it extremely difficult to push one’s way through the crowd to reach the Court hall. When he enters the Court hall he finds an equally heavy crowd of lawyers blocking his way.I do not think that any of the senior counsel practicing in the Supreme Court, during the first 3-4 decades of the existence of the court, would be able to relate to the manner in which we as counsel argue cases today. In matters involving very heavy stakes, 4-5 Senior Advocates should be briefed on either side, all of whom would be standing up at the same time and addressing the court, sometimes at the highest pitch possible."-K.K Venugopal  ,while addressing R.K.Jain  Memorial Lecture,Jan,2010.

Sources : The article is based on information gathered through various websites and above mentioned facts/figures  may not be accurate and meant for reference purpose only. 

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