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The exponential growth of media, particularly electronic media, has

resulted in a corresponding decline in an individuals privacy. The right to
privacy, not specifically enshrined in the Constitution of India, has been held to
be implicit in Article 21.1Though the freedom of speech and expression, as
guaranteed in the Constitution of India, empower the press to disclose
information vital to public interest, it often results in intrusion of privacy. In
2012, a news channel aired the molestation of a girl in Guwahati, filmed by one
of its reporters. In several instances, sting operations have been used as a
medium to exact retribution or have sought to expose information within the
realm of an individuals private domain having no bearing on public interest. In
2008, the Delhi High Court took suomotu cognizance of a manipulated sting
operation on a schoolteacher resulting in her suspension and assault by a mob
and directed the government to consider adopting guidelines for sting


There is a widespread view that the difference between an accused and a

convict and the basic underlying principle of innocent until proven guilty are
regularly overlooked by sections of the media in its coverage of ongoing
trials. By conducting parallel trials, the media, it is felt, not only puts undue
pressure on the judge but also creates pressure on lawyers to not take up cases
of accused. Further once a matter comes under intense media glare, there is an
added pressure on the prosecution to secure evidence which must incriminate an
accused, lest the media build negative public opinion against the prosecution. A
fair trial and investigation, which are foremost constitutional guarantees, are as
much a right of the accused as they are of the victim.


The exponential growth and reach of media has shown unhealthy trends of
competition, leading to sensationalised reporting giving the well-established
rule of sub-judice a go-by. While this is certainly not true across the board to all
media publications, the problem is certainly extensive. Some form of restriction
on such media trials has been suggested so as to preserve the administration of
justice as also to protect privacy of individual.

1Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.

2(2008) 146 DLT 429.


In response, the Supreme Court in Sahara India Real Estate Corporation v.

Securities and Exchange Board of India,3 gave judges the power to order
postponement of publication on a case-by-case basis, the test being, where
there is a real and substantial risk of prejudice to fairness of the trial or to proper
administration of justice. However, this is a very general test which does not
clarify what publications would fall within this category, leaving it entirely
contingent on the content and context of the offending publication. This leaves
the higher judiciary with wide discretionary powers to decide what amounts to
legitimate restraints on media reporting. Due to the possibility of such
subjective interpretation, postponement orders could be used by influential
parties as a tool to abuse the process of law. Therefore, the jurisprudence of
postponement might be transported into defamations suits, when the application
of such order should be sought strictly as a constitutional remedy.

In Brij Bhushan v. State of Delhi [AIR 1950 SC 129], this

Court was called upon to balance exercise of freedom of
expression and pre-censorship. This Court declared the
statutory provision as unconstitutional inasmuch as the
restrictions imposed by it were outside Article 19(2), as it then
stood. However, this Court did not say that pre-censorship per
se is unconstitutional.
In Virendra v. State of Punjab [AIR 1957 SC 896], this
Court upheld pre-censorship imposed for a limited period and
right of representation to the government against such restraint
3(2012) 10 SCC 603.

under Punjab Special Powers (Press) Act, 1956. However, in

the same judgment, another provision imposing pre-censorship
but without providing for any time limit or right to represent
against pre-censorship was struck down as unconstitutional.
In the case of K.A. Abbas v. Union of India [AIR 1971 SC
481], this Court upheld prior restraint on exhibition of motion
pictures subject to Government setting up a corrective
machinery and an independent Tribunal and reasonable time
limit within which the decision had to be taken by the
censoring authorities.
Reliance Petrochemicals Ltd. v. Proprietors
of Indian Express Newspapers Bombay (P) Ltd. [AIR 1989 SC
190] in the context of publication in one of the national dailies of certain articles
which contained adverse comments on the
proposed issue of debentures by a public limited company. The
validity of the debenture was sub judice in this Court. Initially,
the court granted injunction against the press restraining
publication of articles on the legality of the debenture issue.

The test formulated was that any preventive injunction against

the press must be based on reasonable grounds for keeping
the administration of justice unimpaired and that, there must
be reasonable ground to believe that the danger apprehended is
real and imminent. The Court went by the doctrine
propounded by Holmes J of clear and present danger. This
Court treated the said doctrine as the basis of balance of
convenience test. Later on, the injunction was lifted after
subscription to debentures had closed.
Naresh Shridhar Mirajkar v. State of
Maharashtra [AIR 1967 SC 1], this Court dealt with the power
of a court to conduct court proceedings in camera under its
inherent powers and also to incidentally prohibit publication
of the court proceedings or evidence of the cases outside the court by the media. It
may be stated that open Justice is the
cornerstone of our judicial system. It instills faith in the
judicial and legal system. However, the right to open justice is
not absolute. It can be restricted by the court in its inherent

jurisdiction as done in Mirajkars case if the necessities of

administration of justice so demand [see Kehar Singh v. State
(Delhi Administration), AIR 1988 SC 1883]. Even in US, the
said principle of open justice yields to the said necessities of
administration of justice [see: Globe Newspaper Co. v. Superior
Court, 457 US 596]. The entire law has been reiterated once
again in the judgment of this Court in Mohd. Shahabuddin v.
State of Bihar [(2010) 4 SCC 653], affirming judgment of this
Court in Mirajkars case.
A.K. Gopalan v. Noordeen [(1969) 2 SCC 734], such
statements which could be prohibited temporarily would
include statements in the media which would prejudice the
right to a fair trial of a suspect or accused under Article 21
from the time when the criminal proceedings in a subordinate
court are imminent or where suspect is arrested.
Presumption of innocence is
held to be a human right. [See : Ranjitsing Brahmajeetsing

Sharma v. State of Maharashtra (2005) 5 SCC 294]. If in a given

case the appropriate Court finds infringement of such
presumption by excessive prejudicial publicity by the
newspapers (in general), then under inherent powers, the
Courts of Record suo motu or on being approached or on report
being filed before it by subordinate court can under its inherent
powers under Article 129 or Article 215 pass orders of postponement of publication
for a limited period if the applicant
is able to demonstrate substantial risk of prejudice to the
pending trial and provided he is able to displace the
presumption of open Justice and to that extent the burden will
be on the applicant who seeks such postponement of offending
The question is - whether such postponement orders
constitute restriction under Article 19(1)(a) and whether such
restriction is saved under Article 19(2)?
42. At the outset, we must understand the nature of such
orders of postponement. Publicity postponement orders should

be seen, in the context of Article 19(1)(a) not being an absolute

right. But, what happens
when courts are required to balance important public interests
placed side by side. For example, in cases where presumption
of open justice has to be balanced with presumption of
innocence, which as stated above, is now recognized as a
human right.
The constitutional
protection in Article 21 which protects the rights of the person
for a fair trial is, in law, a valid restriction operating on the right to free speech under
Article 19(1)(a), by virtue of force of it
being a constitutional provision. Given that the postponement
orders curtail the freedom of expression of third parties, such
orders have to be passed only in cases in which there is real
and substantial risk of prejudice to fairness of the trial or to the
proper administration of justice which in the words of Justice
Cardozo is the end and purpose of all laws
Excessive prejudicial publicity

leading to usurpation of functions of the Court not only

interferes with administration of justice which is sought to be
protected under Article 19(2), it also prejudices or interferes
with a particular legal proceedings. In such case, Courts are
duty bound under inherent jurisdiction, subject to above
parameters, to protect the presumption of innocence which is
now recognised by this Court as a human right under Article
21, subject to the applicant proving displacement of such a presumption in appropriate
the petitioner states is because, he argues, movie has a very powerful visual
medium, and that ten thousands of people will view the said movie and form an
opinion which will lower the prestige and authority of the court which tries the said
case and thereby Indian Judicial System as a whole. The public dissemination of the
film would therefore amount to contempt of court, as statutorily defined, being a
publication that lowers or tends to lower the authority of any court or prejudices,
or interferes or tends to interfere with the due course of any judicial proceeding.
Besides the petitioner argued that because the accused are presumed to be innocent
until proved guilty by a court and that was not yet the case as the accused might well
be acquitted, the movies release before the trial ended would defame the accused.

That media trial violates the rights of the accused

Our criminal law and criminal jurisprudence are based on the premise that the guilt of
any person charged in a court of law has to be proved beyond reasonable doubt and

that the accused is presumed to be innocent unless the contrary is proved in public, in
a court of law, observing all the legal safeguards to an accused.
Universal Declaration of Human Rights (1948)
There are certain rights of suspects and accused which are basic human rights. They
are expressly referred to in various articles of the Universal Declaration of Human
Rights (1948).
Article 3 of that Declaration states that
everyone has right to life, liberty and security of person.
Article 10 deals with the right of an accused
in full equality to a fair and public hearing by an independent and impartial tribunal
in the determination of his rights and obligations and of any criminal charge against
Article 11 of the Universal Declaration deals with the right to bepresumed innocent
and reads thus:
Article 11 (1) Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which he has all the
guarantees necessary for his defence.
So far as freedom of expression is concerned, Article 19 of the Universal Declaration
of Human Rights reads:
Article 19: Everyone has the right to freedom of opinion and expression : this right
includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers.
International Covenant on Civil and Political Rights, 1966
The International Covenant on Civil and Political Rights, 1966 (ICCPR) was ratified
by India in 1976 and it states in Article 14(2) as follows:

Article 14(2) : Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law.
Article 14(3) clause (g) refers to the important right of a person Not to be compelled
to testify against himself or to confess guilt.
Article 14(3) : In the determination of any criminal charge against him, everyone
shall be entitled to the followingminimum guarantees, in full equality:
(g) not to be compelled to testify against himself or to confess
The European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950 declares in Article 6: Right to Fair Trial : It reads:
(1) In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
The Madrid Principles on the Relationship Between the Media and Judicial
Independence (1994)
A group of 40 distinguished Legal Experts and Media representatives, convened by
the International Commission of Jurists (ICJ), at its Centre for the Independence of
Judges and Lawyers (CIJL) and the Spanish Committee of UNICEF met in Madrid,
Spain between 18-20, January 1994. The objectives of the meeting were:
(1) to examine the relationship between the media and judicial independence as
guaranteed by the 1985 UN Principles on the Independence of Judiciary.
(2) To formulate principles addressing the relationship between freedom of expression
and judicial independence.

The group of media representatives and jurists stated in the

Preamble that
The media have an obligation to respect the rights of individuals, protected by the
International Covenant and the independence of the judiciary
The Basic Principle :
(1) Freedom of expression (as defined in Article 19 of the Covenant), including the
freedom of the media constitutes one of the essential foundations of every society
which claims to be democratic. It is the function and right of the media to gather and
convey information to the public and to comment on the administration of justice,
including cases before, during and after trial, without violating the presumption of
(2) This principle can only be departed from in the circumstances envisaged in the
International Covenant on Civil and Political Rights, as interpreted by the 1984
Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights (U.N. Document E/CN/4/1984/4).
(3) The right to comment on the administration of justice shall not be subject to any
special restrictions.
(4) The Basic Principle does not exclude the preservation by law of secrecy during the
investigation of crime even when investigation forms part of the judicial process.
Secrecy in such circumstances must be regarded as being mainly for the benefit of
persons who are suspected or accused and to preserve the presumption of innocence.
Indian constitution
Our Constitution does not separately refer to the freedom of the press or of the
electronic media in Part III but these rights are treated by the law as part of the
Freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution
of India. The guarantee is subject to reasonable restrictions which can be made by
legislation to the extent permitted by Article 19(2).
The Article reads thus:

Article 19(1): All citizens shall have the right

(a) to freedom of speech and expression;
(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, in so far 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.
Contempt of Court law deals with non-interference with the administration of
justice and that is how the due course of justice that is required for a fair trial, can
require imposition of limitations on the freedom of speech and expression.
Art 21 is the crucial article which guarantees the right to life and liberty. It reads:
Art. 21: No person shall be deprived of his life or personal liberty except according
to procedure established by law.
The Supreme Court in Maneka Gandhis case (AIR 1978 SC 597 has interpreted the
words according to procedure established by law in Art 21as requiring a procedure
which is fair, just and equitable and not arbitrary.
The Supreme Court of India, in Life Insurance Corporation of India v. Manubhai D
Shah (1992 (3) SCC 637) has stated that the freedom of speech and expression in
Article 19(1)(a) means the right to express ones convictions and opinions freely, by
word of mouth, writing, printing, pictures or electronic media or in any other manner.
In Romesh Thapar v. State of Madras : 1950 SCR 594, it was held that the freedom
includes the freedom of ideas, their publication and circulation. It was stated in
Hamdard Dawakhana v. Union of India : 1960(2) SCR 671, that the right includes the
right to acquire and impart ideas and information about matters of common interest.

The Supreme Court has held that a trial by press, electronic media or by way of a
public agitation is the very anti-thesis of rule of law and can lead to miscarriage of
justice. A Judge is to guard himself against such pressure (State of Maharashtra v.
Rajendra Jawanmal Gandhi : 1997 (8) SCC 386
In Anukul Chandra Pradhan vs. Union of India, 1996(6) SCC 354, the Supreme Court
observed that No occasion should arise for an impression that the publicity attached
to these matters (the hawala transactions) has tended to dilute the emphasis on the
essentials of a fair trial and the basic principles of jurisprudence including the
presumption of innocence of the accused unless found guilty at the end of the trial
Contempt of Courts Act, 1971:
So far as interference with criminal law is concerned, Sections 2 and 3 of the
Contempt of Courts Act, 1971 are relevant Section 2(c) defines Criminal Contempt
Section 2(c): Criminal contempt means the publication, (whether by words, spoken
or written or by signs, or by visible representations, or otherwise), of any matter or the
doing of any other act whatsoever which
(ii) prejudices or interferes or tends to interfere with the due course of any judicial
proceedings; or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the
administration of justice in any manner.
We shall refer to the provisions of sec 3 in extenso.
3. Innocent publication and distribution of matter not contempt.(1) A person shall not be guilty of contempt of Court on the ground that he has
published (whether by words spoken or written or by signs or by visible
representations or otherwise) any matter which interferes or tends to interfere with, or
obstructs or tends to obstruct, the course of justice in connection with any civil or

criminal proceeding pending at the time of publication, if at that time he had no

reasonable grounds for believing that the proceeding was pending.
(2) Notwithstanding anything to the contrary contained in this Act or any other law for
the time being in force, the publication of any such matter as is mentioned in subsection (1) in connection with any civil or criminal proceedings which is not pending
at the time of publication and shall not be deemed to constitute contempt of Court.
Explanation.- For the purposes of this section, a judicial proceedings is said to be
(A) in case of a civil proceeding, when it is instituted by the filing of a plaint or
(B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1898,
or any other law(i) where it relates to the commission of an offence, when the charge-sheet or challan
is filed , or when the Court issues summons or warrant, as the case may be, against the
It will be seen from the Explanation below sec 3, the starting point for deeming a
criminal proceeding as pending, it is sufficient if a charge sheet or challan is filed or
Court summons or warrant are issued. Thus so far as criminal contempt is concerned,
the pre-trial period has not been given the required importance under the Court of
Contempts Act, 1971.
Pendency under the Explanation to sec 3 starts, in a criminal case, only from the
time when the charge sheet or challan is filed or summon or warrant is issued by the
criminal Court and not even from date of arrest.
In the context of a parallel investigation which was undertaken pending arrest and
trial in the court, the Supreme Court referred to trial by press. This was, of course,
before 1971 Act was enacted. In Saibal v. B.K. Sen (AIR 1961 SC 633) it said:
It would be mischievous for a newspaper to systematically conduct an independent
investigation into a crime for which a man has been arrested and to publish the results
of the investigation. This is because, trial by newspapers, when a trial by one of the

regular tribunal is going on, must be prevented. The basis for this view is that such
action on the part of the newspaper tends to interfere with the course of justice.
The words tends to interfere with the course of justice used by the Supreme Court
in the above case are quite significant.
How does it affect the mind of judges
There is a full discussion of the subject in Borrie and Lowe, Law of Contempt, 3rd
Ed (1996)(Ch 5)(pp 132 to 179) as to what publications are accepted as resulting in
prejudice to criminal proceedings. We shall refer to the cases quoted there. (Article by
Ms Vismai Rao, on Trial by Media, 5thYear, USLSS, Indraprastha University, 2006).
(1) Publications concerning the character of accused or previous conclusions:
Pigot CB stated in R v. ODogherty (1848) 5 Cox C.C 348 (354)(Ireland) that
Observations calculated to excite feelings of hostility towards any individual who is
under a charge amount to a contempt of court.
Publication of past criminal record is recognized as a serious contempt, satisfying the
substantial risk of serious prejudice test used in Section 4(2) of the U.K Act of 1981
as well as under Common Law. The above authors quote Moffit P in AG(NSW) v.
Willisee : (1980) (2) NSWLR 143 (150) that there is
popular and deeply rooted belief that it is more likely that an accused person
committed the crime charged if he has a criminal record, and less likely if he has no
In Solicitor General v. Henry and News Group Newspapers Ltd :1990 COD 307, a
person was arrested for robbery and an article was published that he had a previous
conviction of rape and it was held to be contempt even under the strict rule in Section
2 of UK Act, 1981 as creating a substantial risk of serious prejudice and the
newspaper was fined 15,000Pounds.
Borrie and Lowe (ibid p. 156) state that a newspaper conducting its own private
investigation and publishing the results before or during the trial is perhaps the most
blatant example of trial by newspaper. Such publications hider the Courts
determination of facts and might otherwise beprejudicial.