“Talwars responsible for murdering daughter Aarushi.”, “Unanimous Congregation: Rabi needs Justice, likely innocent.”, “Madeleine’s mother to be charged with her killing.” These are not just mere headlines extracted from an Indian, Nepali and English media respectively but some cases out of numerous such instances, where media has been accused of conducting a trial of the accused and passing the verdict before the court passed its judgment, thereby, making undue interference in the justice delivery process. Dr Rajesh Talwar and Nupur Talwar were announced guilty of their daughter’s murder by the media, not the court. Rabi Lamichhane was already declared ‘innocent’ by the media before the court passed its judgement. Mrs McCann was held responsible for the disappearance and the murder of her three-year-old daughter by the media while formal confirmation of her innocence was given by the investigation authority. Here, ‘Trial by media’ can be defined as a media-led, impact-driven process by which individuals are tried and sometimes also sentenced in the ‘court of public opinion.’

It is certain that where there’s no media, there’s no justice. Media has been serving as the watchdog of society, the fourth pillar of a democratic setup and the voice of the voiceless. It must be appreciated for having successfully advocated cases that would have gone unsolved in the absence of effective media. In the case of Delhi gang rape and murder, whose guilty were executed last year, the media took up its strongest stand against the government demanding effective action. In The Priyadarshini Matoo case, the case that had been closed due to political interference was compelled to reopen due to numerous lapses in the murder case exposed by a media investigation. The witness for the case was also traced by journalists. Justice was delivered and the guilty was sentenced due to media-led public pressure on the judicial authorities. The then Chief Justice of India had also given credits to the media for having engaged the judiciary in this case. Similarly, in Jessica Lal’s murder case, the case in which the accused was set free due to lack of evidence was reopened following public outcry led by extensive publicity in the media. Proceedings were conducted on the fast track and the accused was found guilty. These are some visibly remembered incidents where the media had aroused the public to voice out and had made the sluggish authorities act through consistent reporting. Such media activism is acceptable and is a must in a democratic setup.

However, the situation of the present is no more as it was a few decades back when online media didn’t exist and the competition wasn’t fierce. Today’s media that compromises journalist’s ethics to gain views, meet deadlines and catch up with the cut-throat competition can be easily manipulated as per the media’s convenience, and what we actually observe under a trial by such media is where the media conducts its own investigation, builds a public opinion against the accused and interferes into court proceedings so much so that it pronounces its own verdict before the court does. A famous saying by Will Rogers, “all I know is just what I read in the papers and that’s an alibi for my ignorance”, suggests the power of the media to control the minds of the masses. It holds power to shape their opinions and it can make a guilty look innocent and an innocent look guilty. Media that aim to serve something different and appeal to the media consumers, overlook the difference between an accused and a convicted, impeding the ‘presumption of innocence until proven guilty’ principle of natural justice. Media when it publishes or broadcasts unverified reports on a trial or a case creates public pressure and public biasness instead of public opinion. Moreover, a media trial puts the burden on the witnesses, lawyers, judges and the case in a bigger scenario, hampering a fair judicial process. Two teenage girls were on trial for murder in the UK. Some newspapers shared links to their reports of the trial on social media platforms. Numerous adverse comments were posted beneath those articles, including threats to the teenage girls and attacks on the court process. The trial judge had to discharge the jury and order a retrial at a different venue several months later due to threats imposed on the accused and attacks made on the court process by the media consumers. Reporting restriction was imposed to protect the integrity of the retrial.

Regardless of the court’s verdict, an accused who is already held guilty by the media and as per the public opinion will perhaps have a hard time restoring themselves back in society. Irresponsible reporting also jeopardizes the security of the witnesses. The identities of witnesses once revealed, are bound to face pressure and even threat from the accused. According to the UN special rapporteur on freedom of expression and opinion, the criminal can escape a crime due to unnecessary pressure of the media on police compelling them to say something to defend themselves. The police introduce a story that they have nabbed a suspect who has confessed in order to escape the pressure. The media that ignores the fact that confession to the police is not counted in a courtroom uses invalid information. The real fact sometimes gets hidden and the whole incident distorts.

Article 14 of ICCPR talks about fair and public hearing but further states that “The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. There is freedom of the press but it is not absolute and is limited by a person’s right to fair trial, right to live with dignity and contempt of court. Pandit Jawaharlal Nehru said, “I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press”. But the press cannot get involved in something beyond its limit that hinders the ‘administration of justice’, the very essence of the rule of law and natural justice. If the media is the fourth organ of a democratic setup, it must not interfere in judicial proceedings but should live by the check and balance rule the other three organs live by.

Media can make a body answerable for its acts but arriving at a conclusion of a case cannot be justified. There is freedom of press but we also have a judiciary that is independent. As Felix Frankfurter said “Freedom of press, however, is not an end in itself but a means to the end of a free society”, the media should act as the facilitator, the end to which shall be decided by the judiciary. The trial is a process to be carried out by courts and to announce a person guilty or innocent is the function of the third organ, not of the fourth.