Acknowledgement I would like to take this opportunity to extend a word of my gratitude to my esteemed ‘Human Rights’ faculty Mr. P.P. Rao, who had been a constant source of inspiration for me in the pursuance of this project. Sir has been gracious enough to guide me on the right path which has enabled me to strengthen my efforts. May I also take this opportunity to wish the reader of my project a knowledgeable experience. The project has been made with utmost care & with utmost finesse to see that the information mentioned is to the best of the accuracy and correctness.
The method of research adopted in this project is doctrinal and non doctrinal in nature. The library facilities of Chanakya National Law University have been duly availed of by the researcher. The books available in the library have greatly helped in collecting relevant data for the project. Due to constraint of space, the topic has been covered in a brief and candid way. The research plan adopted was that the researcher first read about the topic from different sources then brought the material together and then critically analyzed it in the conclusion.
The aim of the project was to look at the various legislations in India in regards to the Labour Laws and different acts and the amendments. The researcher has adopted the chapterization method and used the continuous format for footnoting. Sources of Data:
The following secondary sources of data have been used in the project- 1. Articles 2. Books 3. Websites Method of Writing: The method of writing followed in the course of this research paper is primarily analytical. Mode of Citation: The researcher has followed a uniform mode of citation throughout the course of this research paper.
table of contents.
INTRODUCTION 5 HUMAN RIGHTS, FREEDOM OF PRESS AND THE CONSTITUTION OF INDIA 8 TRIAL BY MEDIA: THE REAL SCENARIO 17 RIGHT TO PRIVACY AND MEDIA 23 CONCLUSION 30 BIBLIOGRAPHY 32
It has been rightly said by Alexander Solzhenitsyn “Justice is conscience, not a personal conscience but the conscience of the whole of the Humanity.” The name of the justice should not be allowed to be invoked only for the prolongation of the pursuit of vindictive retaliation. The world is really in the need of generous magnanimity and understanding charity. Our world is becoming smaller and ever more interdependent with the rapid growth in population and increasing contact between people and governments. In this light, it is important to reassess the rights and responsibilities of individuals, peoples and nations in relation to each other and to the planet as a whole. Men are born and remain free and equal in Rights. Social distinctions may be based only on common utility.
The truth has to be holding self-evident, that all men are created equal, that their creator endows them with certain in alienable Rights that among these are life, liberty and the pursuit of happiness. The concept of Human Rights is as old as Human civilizations; the origin of the contemporary conception of Human Rights can be traced to the period of the Renaissance and later of the enlightenment of which Humanism may be said to be the heart and soul. The promotion and protection of human rights has been a major preoccupation for the United Nations since 1945, when the Organization's founding nations resolved that the horrors of The Second World War should never be allowed to recur.
The history of mankind is marked by the efforts to ensure respect for the dignity of Human beings. The struggle for the recognition of Human Rights and the struggle against political, social, economic, social and cultural oppression, against injustice and inequalities, have been an integral part of the Human societies. Human Rights are generally defined as the Rights, which every Human being is entitled to enjoy and to have protected. It means the right relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the international covenants and enforced by the courts in India.
Human Rights are internationally agreed values, standard or rules, regulating the conduct of states towards their own citizens and non-citizens. Human Rights are “the common standard of achievement for all peoples and all nations”. Human Right is a birthright. Everyone born possesses such inherent Rights, irrespective of the, sex, caste, creed, race and religion. It is an integral Right of the Human being and also it has been incorporated in almost all the constitutions across the globe. It is immaterial that you call these Rights as inherent Rights, Fundamental Rights or by any other name. In the modern world the perception of Human Rights has assumed universal proportion, and now it is a subject of international diplomacy, law and institutions. The ‘World Conference on Human Rights’ held in 1993 marks a crucial stage in UN Policy in the field of human rights.
The Vienna Declaration encouraged the United Nations to pursue and strengthen its activities to make respect for human rights a priority objective on the same level as development and democracy and to work for the concurrent achievement of these three objectives. It is interesting to note that the United Nations Commission on Human Rights also created in 1947, a sub-commission on Freedom of Information and of the Press to report to the Commission on Human Rights on what rights, obligations and practices should constitute the freedom of information. This necessarily had to be juxtaposed with the human rights.
The Universalization of Human Rights is now a political fact. Democracy, development and the respect for the Human Rights and Fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, cultural and social systems and their full participation in all aspects of their lives.
In the context of the above, the promotion and protection of Human Rights and Fundamental freedoms at the national and international levels should be universal and conducted without conditions attached. The international community should support the strengthening and promoting of democracy, development and respect of Human Rights and Fundamental Rights in the entire world. Justice Patanjali Shastri in one of the earliest cases on the press freedom, namely, Romesh Thapper v. State of Madras underlined the special role of the press in a democratic organisation. The World Conference on Human Rights reaffirms the Right to Development, as established in the Declaration on the Right to Development, as a universal, unassailable and an integral part of Fundamental Human Rights.
While development facilitates the enjoyment of all Human Rights, the lack of development may not be invoked to justify the abridgement of internationally recognized Human Righ. The radical movements which materialized at the later half of the 18th century marked the beginning or recognizing the Rights of the man which was considered to be unassailable and hallowed as the Fundamental foundation of their resist which was followed by socialist movement in 19th century which ruled out the class system and propounded the establishment of social and economic equality.
The notion of Human Rights, its universal nature and recognition which is based on the rich heritage of the past can be seen specifically in the twentieth century as it also experienced the two most devastating wars in Human history after which this concept was reflected in various declarations of war aims proclaimed by the countries. It was the United Nations Charter of 1945, which initiated the recognition of the notion of Human Rights universally, and it affirmed faith in “Fundamental Human Rights” and “in the dignity and worth of the Human person”.
Article 14 to 17 deals respectively with protection of the Right to life, protection from arbitrary arrest and detention, protection from freedom of movement and protection from inhumane treatment. Article 24 of the charter of the United Nations confers on the Security Council “primary responsibility for the maintenance of international peace and security.”
HUMAN RIGHTS, FREEDOM OF PRESS AND THE CONSTITUTION OF INDIA
Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right. "Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers" proclaims the Universal Declaration of Human Rights (1948).
The people of India declared in the Preamble of the Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in Article 19(1) (a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.
Man as rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger interest of the community. Freedom of Press carries different meanings for different people. But freedom of press can not be absolute. There must be boundaries to it and realistic discussion concerns where these boundaries ought to be set. The right to freedom of speech and expression is subject to limitations imposed under Article 19(2).
Freedom of speech is the concept of being able to speak freely without censorship. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The right to freedom of speech is guaranteed under international law through numerous human-rights instruments, notably under Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights, although implementation remains lacking in many countries.
The synonymous term freedom of expression is sometimes preferred, since the right is not confined to verbal speech but is understood to protect any act of seeking, receiving and imparting information or ideas, regardless of the medium used. Freedom of expression is a sacred right well accepted over the globe. In Indian Constitution, it finds place as a guaranteed fundamental right. The Government of India in tune with Constitutional mandate professes its anxiety to protect and safeguard this fundamental right.
But no right and for that matter right to freedom of expression is absolute and unfettered in all circumstance but bound by duty to maintain peace and harmony of the body polity by exercising prudence and restraint in the exercise of right to freedom of speech. If exercise of this right is likely to inflame passion which in turn may lead to further violation of human rights and promote more bloodshed of the innocent, the right to freedom of expression needs circumspection and consequential restraint for greater good of the society.
Furthermore, the media whether print or electronic, should be guided by the compulsion of self imposed restraint and anxiety to prevent further violation of human right and loss of more life on account of media reporting. In practice, the right to freedom of speech is not absolute in any country, although the degree of freedom varies greatly. Industrialized countries also have varying approaches to balance freedom with order.
For instance, the United States First Amendment theoretically grants absolute freedom, placing the burden upon the state to demonstrate when (if) a limitation of this freedom is necessary. In almost all liberal democracies, it is generally recognized that restrictions should be the exception and free expression the rule; nevertheless, compliance with this principle is often lacking.
The abuse of the Human Rights has been recognized as one of the root causes of contemporary armed conflicts and, at the same time, the protection of Human Rights is considered as one of essential elements of peace-making and peace-building. It was tracked by a remarkable step towards shaping the Human Rights i.e. the adoption of Universal Declaration of Human Rights, 1948 which declared that “everyone is entitled to all the Rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it is independent, trust, non-self-government or under any other limitation of sovereignty”. It is imperative that the members of the international community fulfill their solemn obligation to promote and encourage admiration for Human Rights and Fundamental freedoms.
The most important is the non-derogability of the Right to life, the prohibition on torture, cruel, inhumane or humiliating treatment and punishment and the Right to freedom of thought, conscience and religion. If the act amounts to inhumane and degrading treatment, it attracts grave violation of Human Rights. Whereas disregard and contempt for Human Rights have resulted in barbarous acts, which have outraged the conscience of mankind and the advent of the world, in which Human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspirations for the common people.
Free speech is the cornerstone of a free society as it is an inherent, inalienable right of the citizens of a democratic country. It is a basic human right enjoyed by all such citizens, regardless of cultural, religious, ethnic, political formation or other backgrounds and is the foundation over which other basic human rights are built.
Often regarded as an integral concept in a democratic set up, without free speech no justice is possible and no resistance to injustice and oppression is possible. Thus freedom of speech is significant at all levels in society. It is also equally important to governments because when criticisms of a government are freely voiced, the government has an opportunity to respond to the grievances of the citizens.
On the other hand, when freedom of speech is restricted, rumours, unfair criticisms, comments and downright falsehoods are circulated through private conversations and surreptitiously circulated writings. In that context, the government is in no position to counter such views, because they are not publicly stated. It is in the government's interest to allow criticisms in the public arena where it can answer its critics and correct its mistakes if any. Now, due to the surge of Information Technology, the governments have wider and faster access to electronic media far in excess of past communication channels.
Though the concept of 'freedom of speech and expression' has been accepted throughout the globe, human rights activists remark that new threats hang over freedom of expression in the context of the criticism of any religion. It is felt that freedom of speech should not be equated with freedom to assail and ridicule another person's belief. It should not also be equated with the right to instigate hatred and violence. The hurting of religious sensibilities is something that every group alleges when someone says or writes on a religious theme, which is not to the liking of the religious group concerned.
Those who claim that their religious freedom has been affected, attempt to agitate against it. As a consequence, this paves the way for stifling the freedom of speech and expression. Banning of the book Satanic Verses authored by Salman Rushide in India, and Pradip Dalvi's play Godse are some cases in point. This freedom has been under attack in a variety of ways particularly under the guise of censorship. In India, freedom of speech and expression is guaranteed under Article 19(1) (a) of the Constitution of India. Article 19(1) (a) says that all citizens shall have the right to freedom of speech and expression.
But this right is subject to reasonable restrictions imposed on the expression of this right for certain purposes under Article 19(2). The First Amendment of the Constitution of the United States, guaranteeing freedom of speech, is regarded as the root for the development of this concept in western countries. It can be observed that Article 19(1) (a) of the Constitution of India corresponds to the First Amendment of the United States Constitution, which says, "congress shall make no law… abridging the freedom of speech or of the press".
According to the provisions in the US Constitution a notable feature is that no restrictions are mentioned on the freedom of speech. It is reported that since the adoption of the New Communication Strategy by the General Conference in 1989, United Nations Educational, Scientific and Cultural Organization (UNESCO) has contributed to a wider recognition and public awareness of the importance of freedom of speech and expression as a fundamental human right. It emphasizes that the governments have a duty to eliminate barriers to freedom of speech and expression and take steps to ensure an environment in which free speech and expression flourish. In addition to this, the freedom of speech is recognized as a human right under Article 19 of Universal Declaration of Human Rights.
The International Human Rights Law in the International Covenant on Civil and Political Rights (ICCPR) recognizes the right to freedom of speech as "the right to hold opinions without interference. Everyone shall have the right to freedom of expression". Furthermore, freedom of speech is recognized in European, inter-American and African regional human rights law. A balance may have to be struck between the ability of individuals to be unrestricted in the free expression of thoughts and ideas, and the need to ensure that governments are able to efficiently carry out their function of administration, law and order, and preserving the rights of individuals vis-a-vis each other.
Finally it can be concluded by introspection by remembering the words of Benjamin Franklin, one of the most prominent of Founders and early political figures and statesmen of the United States - "Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech". “In a free society which boasts of democracy, it is the Constitution that should be the supreme law.”
Media for social justice: The role of legislators and the courts in their efforts to maintain “rule of law”, usher in “economic and social justice” and administrative apparatus needed for securing the advantages and benefits to weaker sections have been described at length. However, the media in the country has been playing a very significant role to the cause of social justice in a variety of ways. Despite the criticism that the media is not playing its rightful role and engaging himself in politics of the day to the neglect of portraying the good work done by all the sectors concerned with the task of promoting social justice, it is necessary to point out the good work done by the media and its potentialities and capabilities to play a more vital role in future.
The right of a citizen to exhibit films on Doordarshan is similar to the right of a citizen to publish his views through any other magazines, advertisement hoardings, etc. subject to the terms and conditions of the owners of the media. In Odyssey Communications Pvt. Ltd. V Lokvidayan Sanghatana while considering a citizens’ right to exhibit films, the Supreme court held as follows: -
“The right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right f the freedom of expression guaranteed under article 19(1) (a) of the constitution of India, which can be curtailed only under circumstances which are set out in clause (2) of article 19 of the Constitution of India.
The right is similar to the right of citizen to publish his views through any other media such as newspapers magazines, advertisement hoarding etc. subject to the terms and conditions of the owners of the media…” In Indian Express Newspapers (Bombay) Pvt. Ltd. v Union of India this court after pointing out that communication needs in a democratic society should be met by the extension as specific right to inform, the right e.g., the right to be informed, the right to inform, the right to privacy, the right to participate in public communication, the right to communicate, etc. proceeded to observe as follows:-
“In today’s fine world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in large scale particularly in the developing world where television and other kind of modern communication are not still available for all sections of society.
The purpose of the press is to advance the pubic interest by publishing facts and opinions without which democratic electorate cannot make responsible judgments. Newspaper being purveyors of news and views have a bearing on public administration, very often carry material which would not be palatable to Governments and other authorities. The authors of the articles, which are published in the newspapers, have to be critical of the auction of the government in order to expose its weaknesses. Such articles tend to become on irritant or even a threat to power.”
Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is therefore, a basic human right. “Everyone has the right to freedom of opinion and expression; the right includes the freedom to hold opinions without interference and to seek and to receive and impart information and ideas through any media and regardless of frontiers” proclaims the universal declaration of Human rights, 1948. The people of India declared in the preamble of the constitution, which they gave unto themselves their resolve to secure all citizens, liberty of thought and expression.
This resolve is reflected in article 19(1) (a) which is one of the Articles found in part III of the constitution which enumerates the Fundamental Rights. The article reads as under: “19 (1) All citizens shall have right,--(a) to freedom of speech and expression;” Article 19(2) Nothing in sub clause (a)of clause (1), shall affect the operation of any existing law, or prevent the state from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interest of (the sovereignty and integrity of India), the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence.”
The words “freedom of speech and expression” must, therefore, be broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. It therefore, includes the right to propagate one’s views through the print media or through any other media channel, e.g., the radio and the television. Every citizen of this free country therefore has the right to air his or her views through the printing and or the electronic media subject to course to permissible restrictions imposed under Article 19(2) of the constitution.
The print media, the radio and the tiny screen play the role of public educators so, vital to the growth of the healthy democracy. Freedom to air ones views is the lifetime of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. It cannot be gain said that modern communication medium advances public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy.
Therefore in any set up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article19 (2) of the constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media, since it is well known that these communication channels are a great purveyors of news and views and make considerable impacts on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance.
Once it is conceded and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagation of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism leveled against the view propagated by him.
Every free citizen has an undoubted right to lie what sentiments he pleases before the public: to forbid this, except to the extent permitted by Article 19(2), would be an inroad on his freedom. This freedom must however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to prejudice public interest. It is a manifest form Article 19(2) that the right conferred by article 19(a) to subject to imposition of reasonable restrictions in the interest of, amongst others public order, decency or morality or in relation to defamation or incitement to an offence. It is therefore, obvious that subject to reasonable restrictions placed under Article 19(2) (a) citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(a).
A constitutional provision is never static; it is ever evolving and ever changing and therefore, does not admit of a narrow, pedantic or syllogistic approach. It was the broad approach adopted by the Court, which enabled them to chart out the contours ever expanding notions of press freedoms. In Dennis v. United States, Justice Frankfurt, observed: - “…
The language of the first amendment is to be read not as a barren words found in a dictionary but as symbols of historic experience illuminated by the presuppositions of those who employed them.” It also inter alia recommends that "the media should play a role in peace-building activities, by making use of anything that may foster such activities, advocating reconciliation and upholding the values of tolerance and non-violence and the call for human communities to live together, for example by developing innovative programmes that allow peoples affected by armed conflict or terrorism to express themselves, and which can create a space for dialogue by highlighting mutual respect, collaboration and reconciliation" and emphasizes that "in order for society to address the issues that create an environment conducive to terrorism, the media should play a role in facilitating the open debates and discussions that are fundamental elements of democracy."
TRIAL BY MEDIA: THE REAL SCENARIO
One of the fundamental rights that are guaranteed to every citizen of India (and most democratic countries, for that matter) is the right to a free and fair trial. It is considered to not merely be a modern legal right, but also an essential principle of natural justice and, thus, has certain connotations and implications that extend beyond its strict legal character. In short, the right to a free and fair trial is considered sacrosanct and inviolable in most modern democracies, and is an essential part of modern democratic justice systems.
If this fundamental right is not ensured to all individuals and entities that are indicted in a court of law, then the integrity of the court and the legal system itself will have been effectively compromised. Right to a fair trial is an absolute right of every individual within the territorial limits of India vides Articles 14 and 20, 21 and 22 of the Constitution. The right to a fair trial effectively flows from Article 21 of the constitution to be read with Article 14. It must be noted here that the legal concept of fair trial is not purely for the private benefit for an the Supreme Court explained that a “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.” accused – the publics’ confidence in the integrity of the justice system is crucial, as stated in Gisborne Herald Co. Ltd. V. Solicitor General. The right to a fair trial is at the heart of the Indian criminal justice system. It encompasses several other rights including the right to be presumed innocent until proven guilty, the right not to be compelled to be a witness against oneself, the right to a public trial, the right to legal representation, the right to speedy trial, the right to be present during trial and examine witnesses, etc. In the case of Zahira Habibullah Sheikh v. State of Gujarat.
The basic point of contention here is to what extent the Freedom of the Press (as implied in the Constitution of India), and the right to a free and fair trial can co-exist in modern Indian society. Freedom of speech and expression incorporated under Article 19 (1) (a) has been put under ‘reasonable restriction’ subject to Article 19 (2) and Section 2 (c) of the Contempt of Court Act. Of special note here, however, is the rise of electronic media in recent times, which has changed the landscape of media coverage entirely.
The rise of sensationalist news reporting on criminal issues is unmistakable, and its effect on the judicial process, however subtle and insidious, cannot be ignored. The changing trends of media coverage have their root in the digital age, which has led to the rise of enormous numbers of television and web-based news service providers, and has bred fierce competition between them. The pressure on each news network to raise and maintain their TRP ratings and/or sales indexes in relation to their competitors causes editors and journalists to pursue sensationalist stories (or sensationalist approaches to news stories) in order to capture and maintain public attention.
Thus, journalistic integrity, neutrality and detachment have all had to take a back-seat to bold, eye-catching headlines and arresting, engaging and live news coverage that presents the raciest and most appealing point of view on a crime, without any regard for how such coverage stands to affect court proceedings and the lives of the parties involved in the case.
The media trial has now essentially moved on to media verdict and media punishment that is no doubt an illegitimate use of freedom and transgressing the prudent demarcation of legal boundaries. It is necessary to check prejudicial publicity of the subject matter pending before a court. It should be legally permissible to pass restraint order on the media. Nowadays, what we observe is media trial where the media itself effectively does a separate ‘investigation’ of its own, thus constructing public opinion against the accused even before the court takes cognizance of the case.
By this way, it prejudices the public and sometimes even judges and as a result the accused person, who should be assumed innocent until proven guilty under the aegis of the principle of Free Trial, is presumed as a convicted criminal, endangering his rights and personal liberty. If excessive publicity in the media about a suspect or an accused before trial prejudices a fair trial or results in characterizing him as a person who had indeed committed the crime and thus has a significant chance of colouring the proceedings of the case, it amounts to undue interference with the “administration of justice”, calling for proceedings for contempt of court against the media.
Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent the encroachment of civil rights. An example of trial by media was the murder case of Aarushi Talwar, in which extensive media reports laid the blame for the murder first on her father, Dr. Rajesh Talwar, and then on her mother, Nupur Talwar, despite the fact that there was no substantial forensic evidence to suggest that either had been involved in the crime. In fact, these reports were made even before a thorough police investigation into the crime had commenced.
These reckless media reports painted the formerly respectable Dr. Talwar as a public hate figure, and incited public opinion against him. Later on, an official CBI forensic report confirmed neither Dr. Talwar nor his wife had anything to do with the crime, but the damage to their reputation had already been done.
This was highly reminiscent of the murder case of Jon Benet Ramsey, in which the media strongly suggested that her parents had been responsible for the young girl’s killing, despite the lack of compelling forensic evidence to support this claim. Years later, a thorough DNA test vindicated the couple from all blame and dismissed them as viable suspects, but not before they had been subjected to a keen and humiliating trial by media. In the criminal justice system, which we have been following, the guilt is to be proved beyond reasonable doubt and the law is governed by senses and not by emotions.
While displaying our emotions, the media and the masses forget that it puts tremendous pressure on the judge presiding over the case. How can one expect a fair and well-reasoned judgment from a judge who is under such tremendous pressure from all sections of the society?
A person is presumed to be innocent unless he is held guilty by the competent court, but here the trend on the part of the media is to declare a person guilty right at the time of arrest. The media’s express duty and function is to report facts or news and raise public issues for constructive analysis and debate; passing judgments on a judicial matter is not part of the media’s sphere of activity, but that is effectively what the modern-day media does on a regular basis.
Perhaps the most objectionable (and certainly the most unfortunate) part of this recently realised role of media is that the coverage of a sensational crime and its adducing of ‘evidence’ begins at the nascent stage of the investigation, mostly even before the person who will eventually preside over the trial even takes cognizance of the offence.
On a related point, it is important to note here that the media is not bound by the traditional rules of evidence which regulate what material can, and cannot be used to convict an accused. In fact, the Right to Justice of a victim can often be compromised in other ways as well, especially in rape and sexual assault cases, in which often, the past sexual history of a prosecutrix may find its way into newspapers, thus having a possible effect on the outcome of the case in question.
This is an obvious restriction on the person’s right to a free trial, and is clearly illegal. Even if the accused are acquitted by the court on the grounds of proof beyond reasonable doubt, they cannot resurrect their previous image. Such kind of exposure provided to them is likely to jeopardize all these cherished rights accompanying liberty, and their right to personal liberty and a life of dignity stands to be adversely affected by the social stigma they are forced to bear for the rest of their lives on account of the exaggerated and occasionally blatantly untruthful reports presented in the media.
This point of view was propounded by Jagannadha Rao. Through media trail, we have started to create pressure on the lawyers even — to not take up cases of accused, thus forcing these accused to go to trial without any defense. This is clearly a blatant violation of the accused party’s natural rights, and this violation occurs only because of the media’s coverage of the matter. Every person has a right to get himself represented by a lawyer of his choice and put his point before the adjudicating court and no one has the right to debar him from doing so, or to influence proceedings to such an extent that it becomes inordinately difficult for the accused to obtain a defence attorney. For an instance, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, the prime accused in the Jessica Lal case, he was subjected to public derision.
A senior editor of the television news channel CNN-IBN described the decision to represent Sharma as an attempt to “defend the indefensible”. The State had appointed one of the best lawyers of the country, Gopal Subramaniam, to handle its case, and Mr. Sharma’s case was handed to a far more inexperienced lawyer.
The media severely criticized Mr. Jethmalani for attempting to take the case and portrayed him as a villain motivated by personal gain. Regardless of the amount of evidence that had been brought to bear against Mr. Sharma and the likelihood of his being found guilty, the fact remains that he was entitled to the attorney of his choice and a free and fair trial by the Constitution – a right that was effectively denied to him by the media coverage of the case. The media also tends to create varied problems for witnesses in a case subjected to excessive media speculation. If the identity of witnesses is published, there is an imminent danger of the witnesses coming under pressure both from the accused or his associates as well as from the police.
At the earliest possible stage, the witnesses tend to retract their statements and, understandably, try their best to protect their own privacy and self-interest. Witness protection is then under threat. Cardozo, one of the greatest Judges of the American Supreme Court, referring to the “forces which enter into the conclusions of Judges” observed that “the great tides and currents which engulf the rest of men do not turn aside in their curse and pass the Judges by”.
Therefore, though Lord Denning stated in the Court of Appeal that Judges will not be influenced by the media publicity, his view, which was later, rejected in the House of Lords. Thus, it is a commonly accepted notion that judges can, sub-consciously, be subjected to unnatural pressures from excessive media speculation about an ongoing case, which is clearly an infringement on the accused party’s right to a free trial. To prevent this from happening, there exists in our legal methodology the rule of monitoring and restricting media reports on matters that are sub judice.
The media, however, tends to strongly resent this sub judice rule and complains that Courts during the course of a hearing tend to interpret the sub judice rule quite strictly to prohibit any discussion of the issues before the Court even if they are engaging public attention. In the opinion of the media, such a restriction could be applied more legitimately to situations where a jury of lay people is involved. After the abolition of the jury system, decisions are now made by professional judges who are trained not to be influenced by happenings outside the Court there is less of a justification for a strict application of the rule.
The most comprehensive research on the positive and negative aspects of media trial has been elaborated in 200th report of the Law Commission entitled Trial by Media: Free Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) that has made recommendations to address the damaging effect of sensationalized news reports on the administration of justice.
While the report has yet to be made public and has not yet been subjected to the inevitable media scrutiny, preliminary news reports indicate that the Commission has recommended prohibiting publication of anything that is prejudicial towards the accused — a restriction that shall operate from the time of arrest. It also reportedly recommends that the High Court be empowered to direct postponement of publication or telecast in criminal cases.
The report noted that at present, under Section 3 (2) of the Contempt of Court Act, such publications would be contempt only if a charge sheet had been filed in a criminal case. The Commission has suggested that the starting point of a criminal case should be from the time of arrest of an accused and not from the time of filing of the charge sheet. In the perception of the Commission such an amendment would prevent the media from prejudging or prejudicing the case.
Another controversial recommendation suggested was to empower the High Court to direct a print or an electronic media to postpone publication or telecast pertaining to a criminal case and to restrain the media from resorting to such publication or telecast.
The 17th Law Commission has made recommendations to the Centre to enact a law to prevent the media from reporting anything prejudicial to the rights of the accused in criminal cases from the time of arrest, during investigation and trial. Herein lays the crux of the issue, and the fundamental problem that legislators face in their attempts to pose reasonable restrictions on the freedom of the press to protect the interests of the parties involved in a case and prevent the infringement of their fundamental rights.
The measures proposed by the Law Commission would essentially impose certain terms of pre-censorship on the media of the country, as it would prevent them from broadcasting and propagating coverage of certain sub judice matters that the Court considers to be sensitive in nature. Pre-censoring of media (especially newspapers) is considered to be expressly illegal in India, with several significant legal precedents like the case of Reliance Petrochemicals Ltd. v. Indian Express.
Thus, it would be exceptionally difficult to introduce such measures and restrictions on the sphere of activity of the Indian press, even though such restrictions would, in this particular case, be necessary to protect the basic human rights of the parties involved in any number of cases that can be sensationalized by the present-day media. Thus, there is a lengthy and difficult road that must be tread before the blatant and flagrant infringement of human rights to free and fair trials by the media can be remedied and prevented.
RIGHT TO PRIVACY AND MEDIA
Privacy as defined in Black’s Law Dictionary is “right of a person and the person’s property to be free from unwarranted and undesired public scrutiny and exposure. Privacy as a right has changed by leaps and bounds in recent times. The theory that an action may lie for the invasion of the right of privacy or as it has been said, the right to be let alone was propounded in 1890 by two American lawyers- Samuel D. Warren and Louis D. Brandeis.
Right to privacy as an independent and distinctive concept originated in the field of Law of Torts, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. This right has two aspects, which are but two faces of the same coin: (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy; and (2) the constitutional recognition given to the right of privacy which protects personal privacy from unlawful governmental invasion.
If interference with privacy is of such a nature as to amount to a recognised tort, resort to that tort action may be taken to prevent interference. Article 12 of Universal Declaration of Human Rights (1948) defines Right to Privacy as—No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence not to attack upon his honour and reputation. Everyone has the right to protection of law against such interference or attack.
Sting Operation vis-à-vis Right to Privacy Article 19(2) of the Constitution of India provides for nothing in sub-clause (a) that shall affect the operation of any existing law in so far as it relates to, or prevents the state from, making any law relating to libel, slander, defamation, contempt of court or any matter which offends decency or morality or which determines the security of, or tends to overthrow the state.
On the other hand, ‘Freedom of Press’ has been held to be a part of the Fundamental Right of ‘Freedom of Speech and expression’ guaranteed by article 19(1)(a) to the citizens of India. It has been held that ‘Freedom of Press’ is necessary for exercise of fundamental freedom of citizens of ‘speech and expression’, and so ‘Freedom of Press’ cannot be termed as unconstitutional and void. As the Constitution expressly states, this can only be exercised till it does not harm the decency/morality of a person.
The Constitution of India gives full liberty to press but with definite strings attached, which are classified and specifically denoted by the ‘reasonable restrictions’ described by Article 19(2) of Part III of the Constitution. In the case of Sakal Papers, the Supreme Court held that Article 19(2) of the Constitution permits imposition of reasonable restrictions on the heads specified in Article 19(2) and on no other grounds. It is, therefore, not open for the state to curtail the Freedom of Speech and Expression for promoting the general welfare of a section or a group of people unless its action can be justified by the law falling under clause 2 of Article 19.
And moreover it is an entirely valid contention that at a certain point all Sting Operations do violate Right to Privacy in some degree because during a Sting Operation, in nearly all its instances in recent history, the person being filmed is not aware of the presence of a hidden camera. This means that he does not consent to be filmed, without which, in ordinary course, no one has the right to film anyone. However, it may be argued that a illegal act being committed by a public servant during his office hours and in abuse of spirit of his office are not worthy of protection under Right to Privacy law. Right to Privacy is implicit in Article 21.
According to Subba Rao, J., ‘liberty’ in Article 21 is comprehensive enough to include privacy. His Lordship said that although it is true that he does not explicitly declare the Right to Privacy as a Fundamental Right but the right is an essential ingredient of personal liberty. It is regarded as a Fundamental Right but cannot be called absolute. It can be restricted on the basis of compelling public interest. The court, however, has expressly limited this right to personal intimacies of the family, marriage, motherhood, procreation and child bearing. On the other side, in the Sting Operations done by the media in India, only the working of the public servants in their offices is covered and explored in detail.
The official work of the public servant should be transparent and open to all as it is in the public interest. But according to the court’s decision, the Right to Privacy does not cover this official work in the purview of its definition. Thus, Sting Operations were begun by the media with a laudable objective of exposing corruption in high places. However, it can be deduced from the mitigating circumstances that one of the basic reasons to carry out Sting Operation is to increase TRP ratings or to ‘interest the public’ rather than ‘public interest’. Hence the 17th Law Commission in its 200th report has made recommendations to the centre to enact a law to prevent the media from interfering with the privacy rights of the individuals.
INDIAN PERSPECTIVE The Indian Constitution has not yet granted but only reasoned this right through implication, as an implicit part of the aegis of certain other fundamental rights. The existing law just affords a principle which if properly invoked may protect the privacy of the individual and Indian judiciary has been using judicial activism to widen the ambit of the Constitution of India, 1950, Article 21, where the seeds of the privacy rights may be .
The Question was whether Right to Privacy might be implied from existing Fundamental Rights in the Constitution of India, 1950, Articles 19(1)(d), 19(1)(e) and 21. The Majority opinion was that our Constitution does not in express terms confer any such right on the citizens. Minority opinion (SUBBA RAO, J.) was in favour of inferring right to privacy found and extending the protection granted by it. In recent times, however, this right has acquired a constitutional status.
This journey began in 1963, when for the first time the issue regarding Right to Privacy was raised in Kharak Singh v. State of Uttar Pradesh from right to personal liberty under the Constitution of India, 1950, Article 21. This right again came for examination before the Supreme Court of India in Govind v. State of Madhya Pradesh, and this time Supreme Court took a more elaborate view and accepted a limited right to privacy as an emanation from Articles 19 (1)(a), 19 (1)(d) and 21. It was also said that the right is not absolute. So, reasonable restriction may be imposed on this right. These restrictions must be the same as are provided under the Constitution of India, 1950, Article 19, clause 2.
NEW FACETS OF PRIVACY 'Privacy' has been defined as "the rightful claim of an individual to determine to which he wishes to share himself with others and control over the time, place and circumstances to communicate with others". It means the individual's right to control dissemination of information about him. It is his own personal possession. It is well certain cases. accepted that one person's right to know and be informed may violate another's right of privacy. In other words, disclosure of certain facts, events, actions, photographs, videotapes, in any form of media, print or celluloid, internet would cause embarrassment, agony emotional stress, to a person of reasonable sensitiveness.
'Right of Privacy' in other words can be said "to be let alone". What is information to others according to a journalist could be a personal and sensitive information to an individual in a litigation relating to matrimonial dispute. The boundary between freedom of press and privacy of individual is the "Lakshman Rekha" and if the media crosses the line of boundary, the invasion starts. Privacy provisions have just worsened due to the recent rage of sting operations.
The false and fabricated sting operations have raised questions on accountability of media47. Starting from 2001 Tehelka exposure, which compelled the defence minister and others to resign, the present sting operation just exposed the new facets endangering the right to privacy. Unlike in the West, Indian news organisations have no internal rules and defined code of ethics governing the undercover investigations.
Considering the recent trend of ready-to-hire stings, the credibility of sting operations delivering evidentiary value has been questioned, which essentially makes the concept of sting operations self-defeating in In a recent case, a 40-year-old schoolteacher in Delhi was labelled as a pimp by a sting operation conducted by a TV news channel. She was beaten up and stripped in public after the channel telecast a sting operation showing her negotiating a deal with a decoy customer.
Later it was proved that it was a false sting operation that not only defamed the schoolteacher and infringed upon her right to privacy, but also caused public humiliation and grievous bodily harm to her person.. What is required under these circumstances is responsible media. Hence it may be said whether there is the crossing of the thin line, which is between the private interest and public interest is the litmus test for accepting the credibility of any of the sting operations.
RIGHT TO INFORMATION Enacted in the year 2005, the Right to Information Act, 2005 tries to strike a balance between public interest and private interest. It has led the information from the public authorities out of the ambit of the right to privacy. It facilitates citizens to secure access to the information under the control of public authorities, which in a way results in transparency and accountability. The concept of the democratic ideas being paramount is maintained.
OTHER ASPECTS OF MEDIA INFRINGEMENT ON PRIVACY Aside from sting operations, there are also other organised means employed by the media to obtain information about private persons that can amount to an infringement of an individual’s right to privacy. Many significant legal precedents for this are found in U.S. legal history. For instance, in the case of Dietemann, the plaintiff was a plumber who practiced medicine at home without a license.
A Life Magazine reporter, accompanied by a photographer and working with the local district attorney, posed as a couple to get into his living room to obtain information for criminal prosecution. They used a hidden tape recorder and camera. The plumber was arrested and pleaded no contest. However, he sued for invasion of privacy. Life's defense was First Amendment right to gather information.
A federal district court, however, awarded $1,000 in damages. The Ninth Circuit upheld the decision, stating the reason as use of false identity. The judge also expressly stated as follows: "The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office. It does not become a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime."
In the case of Stephens’s v West Australian Newspapers Ltd. a similar conclusion was reached by the High Court of Australia. McHugh J explained: “The quality of life and freedom of the ordinary individual...are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public monies. How, when, why and where those functions and powers are or are not exercised are matters of real and legitimate concern to every member of the community, so is the performance of the public representatives and officials who are invested with them?
In several cases the Supreme Court has held that "where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order." In some extreme cases of media speculation and sensationalized news coverage, images and video is taken of private persons (particularly celebrity figures and/or people who might be of public interest) in their private homes or in other private areas.
This is clearly illegal, and is punishable by law as an infringement of the right to privacy. However, it must be remembered here that even if a news organization arguably violates a subject’s right to privacy, the subject’s remedy usually will not include the ability to bar the publication of the picture. Hence, the redressal that the plaintiff can receive is usually strictly monetary in nature, and he/she cannot usually gain an injunction against the use of the disagreeable photographic or video graphic material.
Thus, regardless of the Court’s action, the plaintiff’s right to privacy will have been infringed upon by the media’s actions, without proper compensation. Another instance of the media’s infringement on the right to privacy in the U.S. was the controversy over the matter of “reality-based journalism” in the last decade. In this case, news crews were allowed to accompany law enforcement officials into private homes while delivering warrants or completing arrests, ostensibly to illustrate to the public the methods of real-life law enforcement and spread public awareness and education. In fact, several television shows were designed around the raw footage obtained from such. law enforcement operations.
However, several cases were filed before the U.S. Supreme Court by private persons, alleging that the presence of media crews in their private homes, taking photos and videos and recording their observations, compromised the privacy to which they were constitutionally entitled. The Supreme Court ruled unanimously in favour of the plaintiffs in both cases, stating that though the presence of the news crews inside the private homes had been authorised by state authorities, it still amounted to a breach of personal privacy.
The European Court of Human Rights in Jersild v. Denmark held thus: “Whilst the press must not overstep the bounds set, inter alia, in the interest of 'the protection of the reputation and rights of others', it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog.”
The approval of Universal Declaration of Human Rights by the United Nations on 10th November 2008 marked the culmination of Human struggle for freedom and liberty. It can be accomplished that Human Rights are claim, made by virtue of the fact that we are Human beings with an inalienable Right to Human dignity. The term “Human Rights” are very significant for every democratic society. Economic, social and cultural Rights are indispensable components of sustainable expansion and therefore not possible without respect for Human Rights. No matter what country or continent we come from we are all basically the same human beings.
We have the common human needs and concerns. We all seek happiness and try to avoid suffering regardless of our race, religion, sex or political status. Human beings, indeed all-sentient beings, have the right to pursue happiness and live in peace and in freedom. As free human beings we can use our unique intelligence to try to understand our world and ourselves.
But if we are prevented from using our creative potential, we are deprived of one of the basic characteristics of a human being. It is very often the most gifted, dedicated and creative members of our society who become victims of human rights abuses. Thus the political, social, cultural and economic developments of a society are obstructed by the violations of human rights. Therefore, the protection of these rights and freedoms are of immense importance both for the individuals affected and for the development of the society as a whole.
United Nations shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” We have to remember that fundamental right of free expression also includes fair comment and criticism and as has been pointed out by Chief Justice (retd.) P.B.
Gajendragadkar the freedom of expression of opinion “does not mean tolerance of the expression of opinions with which one agrees but tolerance of the expression of opinions which one positively dislikes or even abhors.” Scrutiny of public figures by the fourth estate is a stipulation, which cannot be done away with. It should not be forgotten that the press has a duty to show that it serves public interest at large. It is also the essential duty of press to strike that proper balance between citizens right to privacy and public’s right to information vis-à-vis the role of media i.e. the press. The press should show their functional accountability.
It has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an unrestricted freedom of the speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be mis-understood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists. In a