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Constitutionality of Media Trials in India:

A Detailed Analysis
November 13, 2015 by kanchi — Leave a Comment

By Nimisha Jha, NLIU, Bhopal

“ Editor’s Note: Media plays a vital role in moulding the opinion of the society and
it is capable of changing the whole viewpoint through which people perceive
various events. Heinous crimes must be condemned and the media would be
justified in calling for the perpetrators to be punished in accordance with the law.
However, the media cannot usurp the functions of the judiciary and deviate from
objective and unbiased reporting. While a media shackled by government
regulations is unhealthy for democracy, the implications of continued
unaccountability are even more damaging. Steps need to be taken in order to
prevent media trials from eroding the civil rights of citizens, whereby the media
have a clearer definition of their rights and duties, and the courts are given the
power to punish those who flagrantly disregard them.

INTRODUCTION
The demi-world of journalism is like the fun house of mirrors that one finds in carnivals. In one
reflection you are too fat; in another you are absurdly thin; in another reflection you appear to
have an elongated neck; in another, a flat head,- in still another you have next to nobody. Yet
there you are, standing in front of these bizarre reflections, fully formed and hearing little
resemblance to any of the images before you. The difference is, however, that unlike the fun
house of mirrors, the distortions of the media are rarely a joke[1].

With the case of Sheena Bohra murder, the excruciating eyes of the media have pierced the
personal life of the main accused Indrani Mukherjea which has kicked in a fresh debate on the
issue of media trial of the accused. Every aspect of her personal life and character which have
nothing to do legally with the investigation of the murder are under public lens of scrutiny via the
media. The ethics of journalism have been again in a controversial area due to their prying eyes
on the accused.

Media is regarded as one of the four pillars of democracy. Media plays a vital role in moulding
the opinion of the society and it is capable of changing the whole viewpoint through which
people perceive various events. The media can be commended for starting a trend where the
media plays an active role in bringing the accused to hook. Especially in the last two decades,
the advent of cable television, local radio networks and the internet has greatly enhanced the
reach and impact of the mass media. The circulation of newspapers and magazines in English
as well as the various vernacular languages has also been continuously growing in our country.
This ever-expanding readership and viewership coupled with the use of modern technologies for
newsgathering has given media organizations an unprecedented role in shaping popular
opinions. However, media freedom also entails a certain degree of responsibility[2].

The strength and importance of media in a democracy is well recognized. Article 19(1) (a) of the
Indian Constitution, which gives freedom of speech and expression includes within its ambit,
freedom of press. The existence of a free, independent and powerful media is the cornerstone
of a democracy, especially of a highly mixed society like India. Media is not only a medium to
express one’s feelings, opinions and views, but it is also responsible and instrumental for
building opinions and views on various topics of regional, national and international agenda. The
pivotal role of the media is its ability to mobilize the thinking process of millions. The increased
role of the media in today’s globalized and tech-savvy world was aptly put in the words of Justice
Learned Hand of the United States Supreme Court when he said, “The hand that rules the press,
the radio, the screen and the far spread magazine, rules the country”[3].

Democracy is the rule of the people, a system which has three strong pillars. But as Indian
society today has become somewhat unstable on its 3 legs- the executive, the legislature and
the judiciary, the guarantee of Article 19 (1)(a) has given rise to a fourth pillar known as media or
press. It plays the vital role of a conscious keeper, a watchdog of the functionaries of society and
attempts to attend to the wrongs in our system, by bringing them to the knowledge of all, hoping
for correction. It is indisputable that in many dimensions the unprecedented media revolution has
resulted in great gains for the general public. Even the judicial wing of the state has benefited
from the ethical and fearless journalism and taken suo-moto cognizance of the matters in various
cases after relying on their reports and news highlighting grave violations of human rights[4].

However, there are always two sides of a coin. With this increased role and importance
attached to the media, the need for its accountability and professionalism in reportage cannot
be emphasized enough. In a civil society no right to freedom, howsoever invaluable it might be,
can be considered absolute, unlimited, or unqualified in all circumstances. The freedom of the
media, like any other freedom recognized under the Constitution has to be exercised within
reasonable boundaries. With great power comes great responsibility. Similarly, the freedom
under Article 19(1) (a) is correlative with the duty not to violate any law[5].

In an increasingly competitive market for grabbing the attention of viewers and readers, media
reports often turn to distortion of facts and sensationalisation. The pursuit of commercial
interests also motivates the use of intrusive newsgathering practices which tend to impede the
privacy of the people who are the subject of such coverage. The problem finds its worst
manifestation when the media extensively covers sub judice matters by publishing information
and opinions that are clearly prejudicial to the interests of the parties involved in litigation
pending before the Courts[6].

However, sensationalised news stories circulated by the media have steadily gnawed at the
guarantees of a right to a fair trial and posed a grave threat to the presumption of innocence.
What is more, the pervasive influence of the press is increasingly proving to be detrimental to
the impartial decision making process of the judiciary. Such news stories cannot easily be
defended under the auspices of freedom of expression[7].

Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to
become a license which would lead to disorder and anarchy. This is the threshold on which we
are standing today. Television channels in a bid to increase their Television Rating Point (TRP)
ratings are resorting to sensationalized journalism with a view to earn a competitive edge over
the others[8].

In recent times there have been numerous instances in which media has conducted the trial of
an accused and has passed the verdict even before the court passes its judgment. Some
famous criminal cases that would have gone unpunished but for the intervention of media, are
Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case and Bijal Joshi rape
case. The media however drew flak in the reporting of murder of Aarushi Talwar, when it
preempted the court and reported that her own father Dr. Rajesh Talwar, and possibly her
mother Nupur Talwar were involved in her murder, the CBI later declared that Rajesh was not the
killer.

This phenomenon is popularly called as media trial. Trial by Media it is 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 is a heated debate between those who support
a free press which is largely uncensored and those who place a higher priority on an individual’s
right to privacy and right to a fair trial. During high publicity court cases, the media are often
accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only
makes a fair trial nearly impossible but means that regardless of the result of the trial the
accused persons will not be able to live the rest of their life without intense public scrutiny. The
counter-argument is that the mob mentality exists independently of the media which merely
voices the opinions which the public already has. There are different reasons why the media
attention is particularly intense surrounding a legal case: the first is that the crime itself is in
some way sensational, by being horrific or involving children; the second is that it involves a
celebrity either as victim or accused. Although a recently coined phrase, the idea that popular
media can have a strong influence on the legal process goes back certainly to the advent of the
printing press and probably much beyond. This is not including the use of a state controlled
press to criminalize political opponents, but in its commonly understood meaning covers all
occasions where the reputation of a person has been drastically affected by ostensibly non-
political publications. The problem is more visible when the matters involve big names and
celebrities. In such cases media reporting can swing popular sentiments either way[9].

The practice which has become more of a daily occurrence now is that of media trials.
Something which was started to show to the public at large the truth about cases has now
become a practice interfering dangerously with the justice delivery system. And it highlights the
enormous need of what is called ‘responsible journalism’[10].

A HISTORY OF MEDIA TRIALS

Although a recently coined phrase, the idea that popular media can have a strong influence on
the legal process goes back certainly to the advent of the printing press and probably much
further. This is not including the use of a state controlled press to criminalize political opponents,
but in its commonly understood meaning covers all occasions where the reputation of a person
has been drastically affected by ostensibly non-political publications.

20th century
One of the first celebrities in the 20th century to be arguably tried by media was Roscoe ‘Fatty’
Arbuckle who was acquitted by the courts but nevertheless lost his career and reputation due to
the media coverage.

Parallels can be drawn between these cases and the trial of O.J. Simpson. The connection is
less about guilt or innocence but about the promotion of the media coverage in the public mind
above the status of the court.
Another interesting case in the US was the Rodney King incident and subsequent trial of the
police officers involved. Once again an acquittal is challenged by the media reporting with
violent consequences. What makes this case particularly important historically is the fact that it
was amateur video footage which provided the key evidence of perceived guilt. As video
cameras and their digital successors and CCTV become wider spread, this type of ‘caught on
camera’ incident become more and more common. This can pose real problems for the legal
system as the evidence they provide may be inadmissible for technical reasons (e.g. not being
able to pinpoint exact times) but they give very strong images for the media (and public) to seize
upon and the potential to manipulate by editing.

Even where a criminal court finds somebody guilty the media can still appear to sit in judgement
over their sentence. Examples include Myra Hindley whose proposed release from prison after
thirty years was widely condemned by the British press (the argument became moot when she
died in 2002); Maxine Carr who, having served her sentence, has been released and is,
according to some commentators being “demonised by the press”. One case popularized by the
media between 1980 and 1982 was the murder trial of Lindy Chamberlain in Australia who was,
but later released in 1986 on new evidence showing that a dingo had in fact committed the act
as was originally claimed by Chamberlain. The motion picture A Cry in the Dark depicted
Chamberlain, as played by actress Meryl Streep, caught in a “trial by media” which fed the
public’s, and subsequently the jury’s false conviction of her.

Often the coverage in the press can be said to reflect the views of the person in the street.
However, more credibility is generally given to printed material than ‘water cooler gossip’. The
responsibility of the press to confirm reports and leaks about individuals being tried has come
under increasing scrutiny and journalists are calling for higher standards. There was much
debate over U.S President Bill Clinton’s impeachment trial and prosecutor Kenneth Starr’s
investigation and how the media handled the trial by reporting commentary from lawyers which
influenced public opinion. Another example was the investigation into biologist Steven Hatfill
allegedly sending anthrax through the U.S. mail as a terrorist attack, which resulted in no
conviction, but Hatfill went on to sue as his reputation was severely tarnished and career
destroyed.

Families and friends of persons convicted of crimes have apparently successfully used the
power of the media to reopen cases, such as the Stephen Downing case in Derbyshire where a
campaign by a local newspaper editor resulted in a successful appeal and his release after
twenty seven years in prison.

IMPACT OF MEDIA TRIALS

1. MEDIA TRIALS vs. FREEDOM OF SPEECH AND

EXPRESSION
 EXPRESSION

Freedom of speech plays a crucial role in the formation of public opinion on social, political and
economic matters. Similarly, the persons in power should be able to keep the people informed
about their policies and projects, therefore, it can be said that freedom of speech is the mother
of all other liberties.[11]

Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of India[12] has stated:

“[f]reedom 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 a large scale
particularly in the developing world, where television and other kinds of modern communication
are not still available for all sections of society. The purpose of the press is to advance the public
interest by publishing facts and opinions without which a democratic electorate [Government]
cannot make responsible judgments. Newspapers being purveyors of news and views having a
bearing on public administration very often carry material which would not be palatable to
Governments and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of press is essential for
the proper functioning of the democratic process. Democracy means Government of the people,
by the people and for the people; it is obvious that every citizen must be entitled to participate in
the democratic process and in order to enable him to intelligently exercise his right of making a
choice, free and general discussion of public matters is absolutely essential.[13] This explains
the constitutional viewpoint of the freedom of press in India.

In Printers (Mysore) Ltd. v. CTO[14] the Supreme Court has reiterated that though freedom of
the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of
speech and expression. Freedom of the press has always been a cherished right in all
democratic countries and the press has rightly been described as the fourth chamber of
democracy.

It therefore received a generous support from all those who believe in the free flow of the
information and participation of the people in the administration; it is the primary duty of all
national courts to uphold this freedom and invalidate all laws or administrative actions which
interfere with this freedom, are contrary to the constitutional mandate.[15]

In R. Rajagopal v. State of T.N[16] the Supreme Court of India has held that freedom of the
press extends to engaging in uninhabited debate about the involvement of public figures in
public issues and events. But, as regards their private life, a proper balancing of freedom of the
press as well as the right of privacy and maintained defamation has to be performed in terms of
the democratic way of life laid down in the Constitution.

Therefore, in view of the observations made by the Supreme Court in various judgments and the
views expressed by various jurists, it is crystal clear that the freedom of the press flows from the
freedom of expression which is guaranteed to all citizens by Article 19(1)(a). Press stands on no
higher footing than any other citizen and cannot claim any privilege (unless conferred specifically
by law), as such, as distinct from those of any other citizen. The press cannot be subjected to
any special restrictions which could not be imposed on any citizen of the country.

2. MEDIA TRIAL vs. FAIR TRIAL

Trial by media has created a “problem” because it involves a tug of war between two conflicting
principles – free press and free trial, in both of which the public are vitally interested. The
freedom of the press stems from the right of the public in a democracy to be involved on the
issues of the day, which affect them. This is the justification for investigative and campaign
journalism[17].

At the same time, the “Right to Fair Trial”, i.e., a trial uninfluenced by extraneous pressures is
recognized as a basic tenet of justice in India. Provisions aimed at safeguarding this right are
contained under the Contempt of Courts Act, 1971 and under Articles 129 and 215 (Contempt
Jurisdiction-Power of Supreme Court and High Court to punish for Contempt of itself
respectively) of the Constitution of India. Of particular concern to the media are restrictions which
are imposed on the discussion or publication of matters relating to the merits of a case pending
before a Court. A journalist may thus be liable for contempt of Court if he publishes anything
which might prejudice a ‘fair trial’ or anything which impairs the impartiality of the Court to decide
a cause on its merits, whether the proceedings before the Court be a criminal or civil
proceeding[18].

The media exceeds its right by publications that are recognized as prejudicial to a suspect or
accused like concerning the character of accused, publication of confessions, publications
which comment or reflect upon the merits of the case, photographs, police activities, imputation
of innocence, creating an atmosphere of prejudice, criticism of witnesses, the Indian criminal
justice system. It encompasses several other rights including the right to be presumed innocent
until proven guilty, the guilt is to be proved beyond reasonable doubt and the law is governed by
senses and not by emotions 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[19].

In Zahira Habibullah Sheikh v. State of Gujarat[20], 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.”

Right to a fair trial is absolute right of every individual within the territorial limits of India vide
articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is more
important as it is an absolute right which flows from Article 21 of the constitution to be read with
Article 14. The right to freedom of speech and expression in contained in article 19 of the
constitution. Article 19(1) (a) of the Constitution of India guarantees the fundamental right to
freedom of speech and expression. In accordance with Article 19(2), this right can be restricted
by law only in the “interests 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.”[21]

INTERNATIONAL CONVENTIONS ON FAIR TRIAL:

In the International context, the UN Basic Principles on the Independence of the Judiciary, at
Article 6, which states the judiciary is entitled and required “to ensure that judicial proceedings
are conducted fairly and that the rights of the parties are respected.”[22] The principles
enunciated in this Article are also stated in similar language in the International Covenant on
Civil and Political Rights (ICCPR)[23], which provides that “everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal” in the determination of
any criminal charge or in a suit at law.[24]

The ICCPR acknowledges that the right to a public trial is not absolute and that certain
limitations on public access are necessary.

Article 19 of ICCPR confirms that freedom of expression is also a fundamental part of a

democratic society. It elaborates that freedom of expression includes the freedom of the press
and states that “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.”[25]

Under Article 10 of the European Convention on Human Rights, to which the UK and its other
signatories are morally committed, the freedom of the press is paramount. Exceptions to that
freedom may be made only such as are “necessary in a democratic society”, permissible only to
the extent that they correspond to “a pressing social need”, and are proportionate to the end to
be achieved.[26]

POSITION IN USA:
A number of decisions of the U.S Supreme Court confirm the potential dangerous impact the
media could have upon trials. In the case of Billie Sol Estes[27], the U.S. Supreme Court set
aside the conviction of a Texas financier for denial of his constitutional rights of due process of
law as during the pre-trial hearing extensive and obtrusive television coverage took place. The
Court laid down a rule that televising of notorious criminal trials is indeed prohibited by the “Due
process of Law” clause of Amendment Fourteen.

In another case of Dr.Samuel H.Sheppard[28], the Court held that prejudicial publicity had
denied him a fair trial. Referring to the televised trials of Michael Jackson and O.J.Simpson,
Justice Michael Kirby stated:

“The judiciary which becomes caught up in such entertainment, by the public televising of its
process, will struggle (sometimes successfully, sometimes not) to maintain the dignity and
justice that is the accused’s due. But these are not the media’s concerns. Jurists should be in no
doubt that the media’s concerns are entertainment, money-making and, ultimately, the assertion
of the media’s power.”[29]

POSITION IN UK:
In England too, the House of Lords in the celebrated case of Attorney General vs. British

Broadcasting Corporation (BBC)[30] has agreed that media trials affect the judges despite the
claim of judicial superiority over human frailty and it was observed that a man may not be able to
put that which he has seen, heard or read entirely out of his mind and that he may be
subconsciously affected by it. The Courts and Tribunals have been specially set up to deal with
the cases and they have expertise to decide the matters according to the procedure established
by the law. Media’s trial is just like awarding sentence before giving the verdict at the first
instance. The court held that it is important to understand that any other authority cannot usurp
the functions of the courts in a civilized society.

POSITION IN INDIA:
Similarly there have been a plethora of cases in India on the point. The observations of the Delhi
High Court in Bofors Case or Kartongen Kemi Och Forvaltning AB and Ors. vs. State
through CBI[31] are very much relevant, as the Court weighed in favour of the accused’s right
of fair trial while calculating the role of media in streamlining the criminal justice system:

“It is said and to great extent correctly that through media publicity those who know about the
incident may come forward with information, it prevents perjury by placing witnesses under
public gaze and it reduces crime through the public expression of disapproval for crime and last
but not the least it promotes the public discussion of important issues. All this is done in the
interest of freedom of communication and right of information little realizing that right to a fair trial
is equally valuable.”

Such a right has been emphatically recognized by the European Court of Human Rights:
“Again it cannot be excluded that the public becoming accustomed to the regular spectacle of
pseudo trials in the news media might in the long run have nefarious consequences for the
acceptance of the courts as the proper forum for the settlement of legal disputes.”[32]

The ever-increasing tendency to use media while the matter is sub-judice has been frowned
down by the courts including the Supreme Court of India on the several occasions.

In State of Maharashtra vs. Rajendra Jawanmal Gandhi[33], the Supreme Court observed:

“There is procedure established by law governing the conduct of trial of a person accused of an
offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It
can well lead to miscarriage of justice. A judge has to guard himself against any such pressure
and is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to
address himself to the question of sentence to be awarded to him in accordance with the
provisions of law.”

The position was most aptly summed up in the words of Justice H.R.Khanna: -

“Certain aspects of a case are so much highlighted by the press that the publicity gives rise to
strong public emotions. The inevitable effect of that is to prejudice the case of one party or the
other for a fair trial. We must consider the question as to what extent are restraints necessary
and have to be exercised by the press with a view to preserving the purity of judicial process. At
the same time, we have to guard against another danger. A person cannot, as I said speaking
for a Full Bench of the Delhi High Court in 1969, by starting some kind of judicial proceedings in
respect of matter of vital public importance stifle all public discussions of that matter on pain of
contempt of court. A line to balance the whole thing has to be drawn at some point. It also seems
necessary in exercising the power of contempt of court or legislature vis-à-vis the press that no
hyper-sensitivity is shown and due account is taken of the proper functioning of a free press in a
democratic society. This is vital for ensuring the health of democracy. At the same time the
press must also keep in view its responsibility and see that nothing is done as may bring the
courts or the legislature into disrepute and make the people lose faith in these institutions.”

The Hon’ble Supreme Court in the case of Rajendra Sail Vs. Madhya Pradesh High Court
Bar Association and Others[34], observed that for rule of law and orderly society, a free
responsible press and an independent judiciary are both indispensable and both have to be,
therefore, protected. The aim and duty of both is to bring out the truth. And it is well known that
the truth is often found in shades of grey. Therefore the role of both cannot be but emphasized
enough, especially in a “new India”, where the public is becoming more aware and sensitive to
its surroundings than ever before. The only way of orderly functioning is to maintain the delicate
balance between the two. The country cannot function without two of the pillars its people trust
the most.

MEDIA TRIAL vs. RIGHT TO BE REPRESENTED

 3. MEDIA TRIAL vs. RIGHT TO BE REPRESENTED

Through media trial, we have started to create pressure on the lawyers even — to not take up
cases of accused, thus trying to force these accused to go to trial without any defense. Is this not
against the principles of natural justice? 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. For an instance, when eminent lawyer Ram Jethmalani decided to
defend Manu Sharma, a prime accused in a murder case, he was subject to public derision. A
senior editor of a television news channel CNN-IBN called the decision to represent Sharma an
attempt to “defend the indefensible”. This was only one example of the media instigated
campaign against the accused. As we all knew that in that case we had one of the best lawyers
of the country, Gopal Subramaniam, appearing for the state and the case of Manu was handed
to some mediocre lawyer. The media assumption of guilt clearly encroaches upon the right to
legal representation, a critical component of the right to fair trial and may also intimidate lawyers
into refusing to represent accused persons. Suspects and accused apart, even victims and
witnesses suffer from excessive publicity and invasion of their privacy rights. Police are
presented in poor light by the media and their morale too suffers. The day after the report of
crime is published; media says ‘Police have no clue’. Then, whatever gossips the media gathers
about the line of investigation by the official agencies, it gives such publicity in respect of the
information that the person who has indeed committed the crime, can move away to safer
places. The pressure on the police from media day by day builds up and reaches a stage where
police feel compelled to say something or the other in public to protect their reputation.
Sometimes when, under such pressure, police come forward with a story that they have nabbed
a suspect and that he has confessed, the ‘Breaking News’ items start and few in the media
appear to know that under the law, confession to police is not admissible in a criminal trial. Once
the confession is published by both the police and the media, the suspect’s future is finished
when he retracts from the confession muddle. Witness protection is then a serious casualty. This
leads to the question about the admissibility of hostile witness evidence and whether the law
should be amended to prevent witnesses changing their statements. Again, if the suspect’s
pictures are shown in the media, problems can arise during ‘identification parades’ conducted
under the Code of Criminal Procedure for identifying the accused. Subconscious effect on the
Judge as one of the major allegations upon ‘media trial’ is prejudicing the judges presiding over
a particular case. As there is always a chance judges may get influenced by the flowing air of
remarks made upon a particular controversy. The media presents the case in such a manner to
the public that if a judge passes an order against the “media verdict”, he or she may appear to
many either as corrupt or biased[35].

IS MEDIA TRIAL A CONTEMPT OF

COURT?
Trial by Media is Contempt of Court and needs to be punished. The Contempt of Court Act
[36] [37]
defines contempt by identifying it as civil and criminal .

Criminal contempt has further been divided into three types:

1. Scandalizing
2. Prejudicing trial, and
3. Hindering the administration of justice.

Prejudice or interference with the judicial process: This provision owes its origin to the principle
of natural justice; ‘every accused has a right to a fair trial’ clubbed with the principle that
‘Justice may not only be done it must also seem to be done’. There are multiple ways in
which attempts are made to prejudice trial. If such cases are allowed to be successful will be that
the persons will be convicted of offences which they have not committed. Contempt of court has
been introduced in order to prevent such unjust and unfair trials. No publication, which is
calculated to poison the minds of jurors, intimidate witnesses or parties or to create an
atmosphere in which the administration of justice would be difficult or impossible, amounts to
[38]
contempt. Commenting on the pending cases or abuse of party may amount to contempt only
[39]
when a case is triable by a judge. No editor has the right to assume the role of an investigator
[40]
to try to prejudice the court against any person.

The law as to interference with the due course of justice has been well stated by the chief Justice
Gopal Rao Ekkbote of Andhra Pradesh High Court in the case of Y.V. Hanumantha Rao v.
[41]
K.R. Pattabhiram and Anr. , where in it was observed by the learned judge that:

“ …… When litigation is pending before a Court, no one shall comment on it in such a way
there is a real and substantial danger of prejudice to the trial of the action, as for instance by
influence on the Judge, the witnesses or by prejudicing mankind in general against a party to
the cause. Even if the person making the comment honestly believes it to be true, still it is a
contempt of Court if he prejudices the truth before it is ascertained in the proceedings. To this
general rule of fair trial one may add a further rule and that is that none shall, by
misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a cause
so as to force him to drop his complaint or defence. It is always regarded as of the first
importance that the law which we have just stated should be maintained in its full integrity. But
in so stating the law we must bear in mind that there must appear to be ‘a real and substantial
danger of prejudice.”

Fair trial Parties have a constitutional right to have a fait trial in the court of law, by an impartial
[42]
tribunal, uninfluenced by newspaper dictation or popular clamour. What would happen to this
right if the press may use such a language as to influence and control the judicial process? It is
to be borne in mind that the democracy demands fair play and transparency, if these are
curtailed on flimsiest of grounds then the very concept of democracy is at stake.

The concept of ‘denial of a fair trial’ has been coined by authoritative judicial pronouncements as
a safeguard in a criminal trial. But what does the concept ‘denial of fair trial’ actually mean:

The conclusions of the judicial decisions can be summed as follows:

The obstruction or interference in the administration of justice vis a vis a person facing trial.
The prejudicial publication affecting public which in term affect the accused amount to denial
of fair trial. Prejudicial publication affecting the mind of the judge and Suggesting the court as
to in what manner the case should be preceded.

The publisher of an offending article cannot take shelter behind the plea that the trial to which the
article relates to isn’t then in progress nor immediately to be begun but it has to occur at a future
[43]
time. Our law of contempt however does not prevent comments before the litigation is started
[44]
nor after it has ended. In re P.C.Sen Justice Shah who spoke for the court succinctly put the
law as follows:

“The law relating to contempt of Court is well settled. Any act done or writing published which is
calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere
with the due course of justice or the lawful process of the Court, is a contempt of Court : R. v.
Gray[45],. Contempt by speech or writing may be by scandalizing the Court itself, or by
abusing parties to actions, or by prejudicing mankind in favour of or against a party before the
cause is heard. It is incumbent upon Courts of justice to preserve their proceedings from
being misrepresented, for prejudicing the minds of the public against persons concerned as
parties in causes before the cause is finally heard has pernicious consequences. Speeches
or writings misrepresenting the proceedings of the Court or prejudicing the public for or
against a party or involving reflections on parties to a proceeding amount to contempt. To
make a speech tending to influence the result of a pending trial, whether civil or criminal is a
grave contempt. Comments on pending proceedings, if emanating from the parties or their
lawyers, are generally a more serious contempt than those coming from independent
sources. The question in all cases of comment on pending proceedings is not whether the
publication does interfere, but whether it tends to interfere, with the due course of justice. The
question is not so much of the intention of the contemner as whether it is calculated to
[46]
interfere with the administration of justice.”

[47]
In Sushil Sharma v. The State (Delhi Administration) and Ors it was held by the Delhi
High Court that:

“Conviction, if any, would be based not on media’s report but what facts are placed on record.
Judge dealing .with the case is supposed to be neutral. Now if what petitioner contends
regarding denial of fair trial because of these news items is accepted it would cause aspiration
on the Judge being not neutral. Press report or no reports, the charge to be framed has to be
based on the basis of the material available on record. The charge cannot be framed on
extraneous circumstances or facts dehors the material available on record. While framing the
charge the Court will from prima facie view on the basis of the material available on record. To
my mind, the apprehension of the petitioner that he would not get fair trial is perfunctory and
without foundation. None of the news items, if read in the proper prospective as a whole, lead
to the conclusion that there is any interference in the administration of justice or in any way
has lowered the authority of the Court. The Trial Court has rightly observed that after the
charge sheet has been filed, if the Press revealed the contents of the charge sheet it by itself
by no stretch of imagination amounts to interference in the administration of justice.”

Even in highly sensitive cases, the session trial has been conducted by the courts of Sessions
without fear or favour. The Indian courts have emerged as the most powerful courts in the world
with virtually no accountability. But every institution even the courts can go wrong. Every
institution including the judiciary has its share of black sheep and corrupt judges. The judiciary is
peopled by judges who are human, and being human they are occasionally motivated by
considerations other than an objective view of law and justice. It would be foolhardy to contend
that none of them, at least some of them, at least some times are motivated by considerations of
their own personal ideology, affiliations, predilections, biases and indeed even by nepotistic and
corrupt considerations[48].

In stifling all criticism by the threatened exercise of the power of contempt, the issue in a
democratic society is ultimately one of the accountability of the judiciary itself. In order to stifle
free speech and comments on the court, even an occasional exercise of this power is enough to
deter most persons form saying anything that might annoy their Lordships. Perhaps the most
important reason for the lack of reforms in the judiciary is the reluctance of the Press to write
about and discuss the state of affairs within it for fear of contempt[49].

[50]
In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr . It was held by the Supreme Court
that:
“No doubt 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 that
investigation. This is because trial by newspapers, when a trial by one of the regular tribunals
of the country is going on, must be prevented. The basis for this view is that such action on the
part of a newspaper tends to interfere with the course of justice whether the investigation tends
to prejudice the accused or the prosecution. There is no comparison between a trial by a
newspaper and what has happened in this case.”

REGULATORY MEASURES
As we concern with the restrictions imposed upon the media, it is clear from the above that a
court evaluating the reasonableness of a restriction imposed on a fundamental right guaranteed
by Article 19 enjoys a lot of discretion in the matter. It is the constitutional obligation of all courts
to ensure that the restrictions imposed by a law on the media are reasonable and relate to the
purposes specified in Article 19(2).

In Papnasam Labour Union v. Madura Coats Ltd[51] the Supreme Court has laid down
some principles and guidelines to be kept in view while considering the constitutionality of a
statutory provision imposing restriction on fundamental rights guaranteed by Articles 19(1)(a) to
(g) when challenged on the grounds of unreasonableness of the restriction imposed by it.

In Arundhati Roy, In re[52] the Supreme Court has considered the view taken by Frankfurter, J.
in Pennekamp v. Florida[53] in which Judge of the United States observed: (US p. 366)

“If men, including judges and journalists, were angels, there would be no problem of contempt of
court. Angelic judges would be undisturbed by extraneous influences and angelic journalists
would not seek to influence them. The power to punish for contempt, as a means of
safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of
men to decide, is not a privilege accorded to judges. The power to punish for contempt of court
is a safeguard not for judges as persons but for the function which they exercise.”

In Rajendra Sail v. M.P. High Court Bar Assn.[54]17 the editor, printer and publisher and a
reporter of a newspaper, along with the petitioner who was a labour union activist, were
summarily punished and sent to suffer a six months imprisonment by the High Court. Their fault
was that on the basis of a report filed by a trainee correspondent, they published disparaging
remarks against the judges of a High Court made by a union activist at a rally of workers. The
remarks were to the effect that the decision given by the High Court was rubbish and fit to be
thrown into a dustbin. In appeal the Supreme Court upheld the contempt against them, but
modified and reduced the sentence.

In D.C. Saxena (Dr.) v. Chief Justice of India[55] the Supreme Court has held that no one else
has the power to accuse a judge of his misbehaviour, partiality or incapacity. The purpose of
such a protection is to ensure independence of judiciary so that the judges could decide cases
without fear or favour as the courts are created constitutionally for the dispensation of justice.

By these above observations and the judgment we can say that restrictions imposed by Article
19(2) upon the freedom of speech and expression guaranteed by Article 19(1)(a) including the
freedom of press serve a two-fold purpose viz. on the one hand, they specify that this freedom is
not absolute but are subject to regulation and on the other hand, they put a limitation on the
power of a legislature to restrict this freedom of press/media. But the legislature cannot restrict
this freedom beyond the requirements of Article 19(2) and each of the restrictions must be
reasonable and can be imposed only by or under the authority of a law, not by executive action
alone.[56]

The Press Council of India (PCI) was established to preserve the freedom of the press and to
improve the standards of news reporting in India. Under the Press Council Act 1978, if someone
believes that a news agency has committed any professional misconduct, the PCI can, if they
agree with the complainant, “warn, admonish or censure the newspaper”, or direct the
newspaper to, “publish the contradiction of the complainant in its forthcoming issue.” Given that
these measures can only be enforced after the publication of news materials, and do not involve
particularly harsh punishments, their effectiveness in preventing the publication of prejudicial
reports appears to be limited[57].

Along with these powers, the PCI has established a set of suggested norms for journalistic
conduct. These norms emphasise the importance of accuracy and fairness and encourages the
press to “eschew publication of inaccurate, baseless, graceless, misleading or distorted
material.” The norms urge that any criticism of the judiciary should be published with great
caution. These norms further recommend that reporters should avoid one-sided inferences, and
attempt to maintain an impartial and sober tone at all times. But significantly, these norms
cannot be legally enforced, and are largely observed in breach.

Lastly, the PCI also has criminal contempt powers to restrict the publication of prejudicial media
reports. However, the PCI can only exercise its contempt powers with respect to pending civil or
criminal cases. This limitation overlooks the extent to which pre-trial reporting can impact the
administration of justice.[58]

200th LAW COMMISSION REPORT

Art. 19(1)(a) of the Constitution of India guarantees freedom of speech and expression and Art.
19(2) permits reasonable restrictions to be imposed by statute for the purposes of various
matters including ‘Contempt of Court’. Art.19(2) does not refer to ‘administration of justice’ but
interference of the administration of justice is clearly referred to in the definition of ‘criminal
contempt’[59] in and in Sec.3 thereof as amounting to contempt. Therefore, publications which
interfere or tend to interfere with the administration of justice amount to criminal contempt under
that Act and if in order to preclude such interference, the provisions of that Act impose
reasonable restrictions on freedom of speech, such restrictions would be valid.

At present, under sec. 3(2) of the Contempt of Courts Act, 1971 read with the Explanation below
it, full immunity is granted to publications even if they prejudicially interfere with the course of
justice in a criminal case, if by the date of publication, a charge sheet or challan is not filed or if
summons or warrant are not issued. Such publications would be contempt only if a criminal
proceeding is actually pending i.e. if charges heet or challan is filed or summons or warrant are
issued by the Court by the date of publication.

Question is whether this can be allowed to remain so under our Constitution or whether
publications relating to suspects or accused from the date of their arrest should be regulated?

The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial
Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has
recommended a law to debar the media from reporting anything prejudicial to the rights of the
accused in criminal cases, from the time of arrest to investigation and trial.

The commission has said, “Today there is 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 a prejudicial impact on the suspects, accused,
witnesses and even judges and in general on the administration of justice“.

This is criminal contempt of court, according to the commission; if the provisions of the Act
impose reasonable restrictions on freedom of speech, such restrictions would be valid.

It has suggested an amendment to of the Contempt of Courts Act.[60] Under the present
provision such publications would come within the definition of contempt only after the charge
sheet is filed in a criminal case, whereas it should be invoked from the time of arrest. In another
controversial recommendation, it has suggested that the high court be empowered to direct a
print or electronic medium to postpone publication or telecast pertaining to a criminal case. On
November 3, 2006, former chief justice of India Y K Sabharwal expressed concern over the
recent trend of the media conducting ‘trial’ of cases before courts pronounce judgments, and
cautioned:

“According to law an accused is presumed to be innocent till proved guilty in a court of law,
and is entitled to a fair trial. So, it is legitimate to demand that nobody can be allowed to
prejudge or prejudice one’s case? Why should judges be swayed by public opinion?”

In the US, the O J Simpson case [61]attracted a lot of pre-trial publicity. Some persons even
demonstrated in judges’ robes outside the court and lampooned Etoo, the trial judge. Yet,
Simpson was acquitted. The judge was not prejudiced by media campaign or public opinion.
The Supreme Court has ruled in many cases that freedom of the press is a fundamental right
covered by the right to freedom of expression under Article 19 of the Constitution.

But the right to fair trial has not explicitly been made a fundamental right. That does not mean
that it is a less important right. More than a legal right, it is basic principle of natural justice that
everyone gets a fair trial and an opportunity to defend oneself.
The NHRC, in its special leave petition filed before the Supreme Court against acquittal of the
accused in the Best Bakery case[62], contended that the concept of a fair trial is a constitutional
imperative recognised in Articles 14, 19, 21, 22 and 39-A as well as by the CrPC.

It is true that contempt of court is a ground for restricting the freedom of speech, but the media
has not tried to lower the dignity of the judiciary by exposing loopholes of the investigation and
the prosecution.

And if judicial decisions also appear to be arbitrary, they must be subjected to ruthless scrutiny.
It will be dangerous to gag the press in the name of contempt of court. If the appellate court feels
that the media publicity affected fair trial, it can always reverse the decision of the lower court.

In the US, in 1965, Sam Sheppard[63] was convicted for murder. As this case received an
enormous amount of pre-trial publicity, the US supreme court ruled that Sheppard’s
conviction[64] were violated and overturned the trial court’s decision.

In the 1970s and 1980s, the US supreme court began focusing more on the media’s First
Amendment rights — the right to freedom of the press.

The Supreme Court’s pronouncement in Rajendra Sail case[65], though given in context of
criminal contempt, provides the proper guideline:

“For rule of law and orderly society, a free press and independent judiciary are both
indispensable”.

CONSTITUTIONALITY OF MEDIA
TRIALS
1. FREEDOM OF PRESS:

Article 19 of the International Covenant on Civil and Political Rights, 1966[66], embodies the
right to freedom of speech, that is, “everyone shall have the right to hold opinions without
interference” and the “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.”[67]

Nonetheless, this freedom comes with a rider that the exercise of this right comes with “special
duties and responsibilities” and is subject to “the rights or reputations of others”. The right to
freedom of speech and expression has been guaranteed under Article 19(1) (a) of the
Constitution of India. Even though freedom of press is not a separately guaranteed right in India
unlike the United States of America, the Supreme Court of India has recognized freedom of
press under the umbrella right of freedom of speech and expression as envisaged under Article
19(1)(a) of the Constitution of India[68].

In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar[69], the Supreme Court had the
occasion to decide on the scope of the freedom of press, recognized it as “an essential
prerequisite of a democratic form of government” and regarded it as “the mother of all other
liberties in a democratic society”[70]. The right under Art 19(1) (a) includes the right to
information and the right to disseminate through all types of media, whether print, electronic or
audiovisual means[71]. It was stated in Hamdard Dawakhana v. Union of India[72], that the
right includes the right to acquire and impart ideas and information about matters of common
interest.

The Supreme Court has stated that trial by press, electronic media or trial by way of a public
agitation are instances that can at best be described as the anti-thesis of rule of law as they can
lead to miscarriage of justice. In the opinion of the honourable court, a Judge has to guard
himself against such pressure[73]. In Anukul Chandra Pradhan v. Union of India[74], 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”[75].

2. IMMUNITY UNDER CONTEMPT OF COURT ACT, 1971:

Under the Contempt of Court Act, 1971, pre-trial publications are sheltered against contempt
proceedings. Any publication that interferes with or obstructs or tends to obstruct, the course of
justice in connection with any civil or criminal proceeding, which is actually ‘pending’, only then it
constitutes contempt of court under the Act. Under Section 3(2), sub clause (B) of clause (a) of
Explanation, ‘pending’ has been defined as “In the case of a criminal proceeding, under the
Code of Criminal Procedure, 1898 (5 of 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 accused.”

Certain acts, like publications in the media at the pre-trial stage, can affect the rights of the
accused for a fair trial. Such publications may relate to previous convictions of the accused, or
about his general character or about his alleged confessions to the police. Under the existing
framework of the Contempt of Court Act, 1971, media reportage, as seen during the

Aarushi Talwar case, where the press, had literally gone berserk, speculating and pointing
fingers even before any arrests were made, is granted immunity despite the grave treat such
publications pose to the administration of justice. Such publications may go unchecked if there
is no legislative intervention, by way of redefining the word ‘pending’ to expand to include ‘from
the time the arrest is made’ in the Contempt of Court Act, 1971, or judicial control through gag
orders as employed in United States of America.

Due to such lacunas, the press has a free hand in printing colourful stories without any fear of
consequences. Like a parasite, it hosts itself on the atrocity of the crime and public outrage
devoid of any accountability.

3. THE PUBLIC’s RIGHT TO KNOW:

The Supreme Court has expounded that the fundamental principle behind the freedom of press
is people’s right to know[76]. Elaborating, the Supreme Court opined, “The primary function,
therefore, of the press is to provide comprehensive and objective information of all aspects of
the country’s political, social, economic and cultural life. It has an educative and mobilising
role to play. It plays an important role in moulding public opinion”[77].

However, the Chief Justice of India has remarked, “freedom of press means people’s right to
know the correct news”, but he admitted that newspapers cannot read like an official gazette and
must have a tinge of “sensationalism, entertainment and anxiety”.

In the Bofors Case[78], the Supreme Court recounted the merits of media publicity: “those who
know about the incident may come forward with information, it prevents perjury by placing
witnesses under public gaze and it reduces crime through the public expression of
disapproval for crime and last but not the least it promotes the public discussion of important
issues.”[79]

Two important core elements of investigative journalism envisage that

(a) the subject should be of public importance for the reader to know and

(b) an attempt is being made to hide the truth from the people.[80]

4. PUBLIC PARTICIPATION:

Some scholars justify a ‘trial-by-media’ by proposing that the mob mentality exists independently
of the media which merely voices the opinions which the public already has. In a democracy,
transparency is integral. Without a free press, we will regress into the dark ages of the Star
Chambers, when the judicial proceedings were conducted secretively. All these omnipresent
SMS campaigns and public polls only provide a platform to the public to express its views. It is
generating public dialogue regarding issues of public importance. Stifling this voice will amount
to stifling democracy.[81]
Quoting Jeremy Bentham, on secrecy in the administration of justice,

“In the darkness of secrecy, sinister interest and evil in every shape are in full swing. Only in
proportion as publicity has place can any of the checks applicable to judicial
injustice operate. Where there is no publicity, there is no justice. Publicity is the very soul of
justice. It is the keenest spur to exertion and the surest of all guards against improbity. It
keeps the judge himself while trying under trial.”[82]

5. INEFFECTIVE LEGAL NORMS GOVERNING

JOURNALISTIC CONDUCT:

Under the Press Council Act, 1978, the Press Council of India is established, with the objectives
to “preserve the freedom of the Press and to maintain and improve the standards of
newspapers and news agencies in India”[83].

To achieve these objectives, it must “ensure on the part of newspapers, news agencies and
journalists, the maintenance of high standards of public taste and foster a due sense of both
the rights and responsibilities of citizenship”[84] and “encourage the growth of a sense of
responsibility and public service among all those engaged in the profession of
journalism”[85].

The Council, also, enjoys powers to censure. If someone believes that a news agency has
committed any professional misconduct, the Council can, if they agree with the complainant,
“warn, admonish or censure the newspaper”, or direct the newspaper to, “publish the
contradiction of the complainant in its forthcoming issue” under Section 14(1) of the Press
Council Act, 1978[86].

Given that these measures can only be enforced after the publication of news materials, and do
not involve particularly harsh punishments, their effectiveness in preventing the publication of
prejudicial reports appears to be limited.

In Ajay Goswami v. Union of India[87], the shortcomings of the powers of the Press Council
were highlighted: Section 14 of the Press Council Act, 1978 empowers the Press Council only
to warn, admonish or censure newspapers or news agencies and that it has no jurisdiction over
the electronic media and that the Press Council enjoys only the authority of declaratory
adjudication with its power limited to giving directions to the answering respondents arraigned
before it to publish particulars relating to its enquiry and adjudication. It, however, has no further
authority to ensure that its directions are complied with and its observations implemented by
the erring parties. Lack of punitive powers with the Press Council of India has tied its hands in
exercising control over the erring publications.
Along with these powers, the Press Council of India28 has established a set of suggested
norms for journalistic conduct. These norms emphasize the importance of accuracy and fairness
and encourage the press to “eschew publication of inaccurate, baseless, graceless,
misleading or distorted material.” The norms urge that any criticism of the judiciary should be
published with great caution. These norms further recommend that reporters should avoid one-
sided inferences, and attempt to maintain an impartial and sober tone at all times. But
significantly, these norms cannot be legally enforced, and are largely observed in breach. Lastly,
the PCI also has criminal contempt powers to restrict the publication of prejudicial media
reports. However, the PCI can only exercise its contempt powers with respect to pending civil or
criminal cases. This limitation does not consider the extent to which pre trial reporting can
impact the administration of justice.[88]

MEDIA TRIALS: A NECESSARY EVIL?

We have a rich tradition of fiercely independent journalism. In fact, most of the big scams were
busted by the press. The law enforcers merely followed them up. The poorly paid journalist must
be credited for extracting those information which looked inaccessible for the top vigilance
teams of the country. That is how HDW(Howaldswerske) marine case and Bofors hit the
headlines. That is how we found out that Narasimha Rao had bribed the Jharkhand Mukti
Morcha MPs and Satish Sharma and Buta Singh had brokered the deal. The media did us
proud at every place of our political juncture. There is increasing and intense public focus on
Courts and the cases filed therein. Now that the Courts have come under the media’s
microscope, they are likely to remain there forever. A Positive by product of changes spurred by
the media and addressed by the Courts is that more Indians are aware of their constitutional
rights than ever before. The media strongly resents 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. There
is, therefore, an urgent need to liberalize the sub judice rule, invoking it only in cases of an
obvious intent to influence the trial and not to any act that might have the remote possibility of
influencing it. Another major constraint on stings and trials by media is the public interest. If
public interest is missing and self or manipulative interests surface, the media loses its ground
and invites the wrath of the court.[89]

CONCLUSION
From the above account it becomes clear that the media had a more negative influence rather
than a positive effect (except for a few exceptions here and there). The media has to be properly
regulated by the courts. The media cannot be granted a free hand in the court proceedings as
they are not some sporting event. The law commission also has come up with a report on “Trial
by Media: Free Speech vs. Fair Trial under Criminal Procedure” (Amendments to the
Contempt of Court Act, 1971)’ [Report number 200 prepared in 2006].

The most suitable way to regulate the media will be to exercise the contempt jurisdiction of the
court to punish those who violate the basic code of conduct. The use of contempt powers
against the media channels and newspapers by courts have been approved by the Supreme
Court in a number of cases as has been pointed out earlier. The media cannot be allowed
freedom of speech and expression to an extent as to prejudice the trial itself.

The print and electronic media have gone into fierce and ruthless competition, as we call them
‘aggressive journalism’ that a multitude of cameras are flashed at the suspects or the accused
and the police are not even allowed to take the suspects or accused from their transport vehicles
into the courts or vice versa. Earlier, journalism was not under pressure to push up TRP ratings
or sales. So the journalists did their work with serious intent and conviction, with courage and
integrity. They did not pronounce people guilty without making a serious attempt to study the
charges, investigate them, and come to their own independent conclusions, without fear or
favour. They did not blindly print what law enforcers claimed, what the bureaucracy said or what
politicians planted on to them. That is why people trusted them. But now we are seeing a
different self acquired role of media in form of ‘media trial’.[90]

Everyone manipulates the media to serve their own interests or hurt their rivals. The problem
does not lie in media’s exposing the lacuna of a bad investigation by police, or mal-performance
of the duties ordained to the civil servants but the eye-brows start to raise when the media ultra
vires its legitimate jurisdiction and does what it must not do. Be it highlighting the sub-judice
issues into public keeping at stake the sanctity of judicial procedures and ‘right to life with
dignity’ of accused and suspects. The media trial has now moved on to media verdict and
media punishment which is no doubt an illegitimate use of freedom and transgressing the
prudent demarcation of legal boundaries.[91]

From the above account it becomes clear that the media had a more negative influence rather
than a positive effect. The media has to be properly regulated by the courts. The media cannot
be granted a free hand in the court proceedings as they are not some sporting event. Any
institution, be it legislature, executive, judiciary or bureaucracy, is liable to be abused if it
exceeds its legitimate jurisdiction and functions. Media trial is also an appreciable effort along
with the revolutionary sting operations as it keeps a close watch over the investigations and
activities of police administration and executive. But there must be a reasonable self-restriction
or some sort of regulations over its arena and due emphasis should be given to the fair trial and
court procedures must be respected with adequate sense of responsibility. Media should
acknowledge the fact that whatever they publish has a great impact over the spectator.
Therefore, it is the moral duty of media to show the truth and that too at the right time. The most
suitable way to regulate the media will be to exercise the contempt jurisdiction of the court to
punish those who violate the basic code of conduct. The use of contempt powers against the
media channels and newspapers by courts have been approved by the Supreme Court in a
number of cases as has been pointed out earlier. The media cannot be allowed freedom of
speech and expression to an extent as to prejudice the trial itself. An ideal proposal will be that
the Indian press and the Indian people are not at present democratic enough to allow the press
to intrude in the judicial process. What will an ideal proposition in allowing the media trial at this
moment. It’s definitely an ideal proposition to allow controlled media reporting of the cases once
the media is supposed to come out of the profit and sensational considerations. The media has
to play the role of a facilitator rather than tilting the scales in favour of one or the other party.
Heinous crimes must be condemned and the media would be justified in calling for the
perpetrators to be punished in accordance with the law. However, the media cannot usurp the
function of the judiciary and deviate from objective and unbiased reporting. While a media
shackled by government regulations is unhealthy for democracy, the implications of continued
unaccountability are even more damaging. Steps need to be taken in order to prevent media
trials from eroding the civil rights of citizens, whereby the media have a clearer definition of their
rights and duties, and the courts are given the power to punish those who flagrantly disregard
them[92].

What lessons does the Jessica Lall fiasco teach us? There is definitely a case for intensifying
efforts to upgrade the quality of policing. There is at the same time a need to improve judicial
performance. For instance, the Jessica trial took nearly seven years to get completed. Hardly
anyone has commented on this. Will it be unreasonable to demand that this should be taken up
by the Delhi High Court as a kind of case study to find out why there was such delay? The public
would like to satisfy themselves that the failure was not because of judicial lethargy, but rather
because of several extraneous factors such as police indifference and wanton delaying tactics
on the part of the defence. The current popular perception is that judicial accountability is an
unrealisable dream. It is for the judiciary to prove this perception wrong.

The above analysis reveals us the gravity of the situation as it persists in India. An ideal proposal
will be that the Indian press and the Indian people are not at present democratic enough to allow
the press to intrude in the judicial process. It’s definitely an ideal proposition to allow controlled
media reporting of the cases once the media is supposed to come out of the profit and
sensational considerations. The media has to play the role of a facilitator rather than tilting the
scales in favour of one or the other party.

Heinous crimes must be condemned and the media would be justified in calling for the
perpetrators to be punished in accordance with the law. However, the media cannot usurp the
function of the judiciary and deviate from objective and unbiased reporting.

While a media shackled by government regulation is unhealthy for democracy, the implications
of continued unaccountability are even more damaging. Steps need to be taken in order to
prevent media trials from eroding the civil rights of citizens, whereby the media have a clearer
definition of their rights and duties, and the courts are given the power to punish those who
flagrantly disregard them.

The judiciary has been critical of the overactive and prejudicial reporting by the media. In the
Labour Liberation Front case, Justice L. Narasimha Reddy lamented the “abysmal levels to
which the norms of journalism have drifted.” In M.P. Lohia v. State of West Bengal[93], the
Supreme Court cautioned the publisher, editor and journalist of a magazine that had reported
the facts of a case that was sub-judice, thus “interfering with the administration of justice.”

The observations of Mr. Andrew Belsey in his article ‘Journalism and Ethics, can they co-
exist’[94]) quoted by the Delhi High Court in Mother Dairy Foods & Processing Ltd v. Zee
Telefilms[95] aptly describe the state of affairs of today’s media. He says that journalism and
ethics stand apart. While journalists are distinctive facilitators for the democratic process to
function without hindrance the media has to follow the virtues of ‘accuracy, honesty, truth,
objectivity, fairness, balanced reporting, respect or autonomy of ordinary people’. These are all
part of the democratic process. But practical considerations, namely, pursuit of successful
career, promotion to be obtained, compulsion of meeting deadlines and satisfying Media
Managers by meeting growth targets, are recognized as factors for the ‘temptation to print trivial
stories salaciously presented’. In the temptation to sell stories, what is presented is what ‘public
is interested in’ rather than ‘what is in public interest’.

The Indian Law Commission’s recent report entitled Trial by Media: Free Speech vs. Fair Trial
Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) has made
recommendations to address the damaging effect of sensationalised news reports on the
administration of justice. While the report has yet to be made public, 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 credibility of news media rests on unbiased, objective reporting. It is in the media’s interest
to ensure that the administration of justice is not undermined.

Edited by Kanchi Kaushik

[1] TRIAL BY MEDIA AND TRIAL OF MEDIA

http://www.rrtd.nic.in/MassMediaIndia2009.pdf (last visited on 21/10/2014 at 00:07)

[2]http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-by-media-
looking-beyond-the-pale-of-legality-.html (last visited on 21/10/2014 at 00:08)
[3] Right to Privacy in Sting Operations of Media

http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/57-61.pdf (last visited on

21/10/2014 at 00:09)

[4] Ibid

[5] Id.

[6] Supra note 2

[7] Ibid.

[8] Supra note 3

[9] Supra note 2

[10] Supra note 3

[11] Freedom of press in India : Constitutional Perspectives

http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=1&do_pdf=1&id=6752 (last visited on 21/10/2014 at 00:05)

[12] (1985) 1 SCC 641 at p. 664, para 32.

[13] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[14] (1994) 2 SCC 434

[15] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641

[16] (1994) 6 SCC 632

[17] Supra note 3

[18] Ibid.

[19] Supra note 2

[20] (2005) 2 SCC (Jour) 75

[21] Supra note 2

[22] UN Basic Principles on the Independence of the Judiciary, G.A. Res.146, U.N. GAOR,
40thSess.(1985) art.6.

[23] Adopted and opened for signature, ratification and accession by General Assembly
Resolution 2200 A (XXI) of 16 December 1966. Entered into force on 23 March 1976 in
accordance with article 49.

[24] Art. 14(1), ICCPR, (1966) 999 UNTS 171, 1976 Can. T.S. No. 47, in force, including
Canada, 1976.

[25] Article 14(1) of the ICCPR provides that “[t]he Press and the public may be excluded from
all or part of a trial for reasons of morals, public order (ordre public) or national security in a
democratic society, or when the interests of the private lives of the Parties so requires, or to the
extent necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.”

[26] As well as Article 10 of the European Convention on Human Rights (ECHR).

[27] Estes v Texas 381 US 532 (1965)

[28] Sheppard v Maxwell 346 F.2d 707 (1965)

[29] Supra note 3

[30] [1981] AC 303

[31] 2004 (72) DRJ 693

[32] Supra note 3

[33] 1997 (8) SCC 386

[34] (2005) 6 SCC 109

[35] Supra note 2

[36] Section 2(b).

[37] Section 2 (a)

[38] AIR 1943 lah 329(FB).

[39] Subhash Chandra v. S. M . Agarwal, 1984 Cri LJ 481(Del).

[40] Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137.

[41] AIR1975 AP 30.

[42] Cooper v. People (1889) 6 Lawyers Report Annotated 430(B).

[43] Leo Roy Frey Vs. R. Prasad and Ors , AIR 1958 P&H 377.

[44] AIR 1970 SC 1821.

[45] [1900] 2 Q.B.D. 36 at p. 40

[46] Para 8.

[47] 1996 CriLJ 3944.

[48] Supra note 2

[49] Ibid.

[50] AIR 1961 SC 633.

[51] (1995) 1 SCC 501

[52] (2002) 3 SCC 343

[53] 328 US 331 : 90 L Ed 1295 (1946)

[54] (2005) 6 SCC 109 per Y.K. Sabharwal, J. (for himself and Tarun Chatterjee, J.)

[55] (1996) 5 SCC 216

[56] Supra note 16

[57] http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf (last visited on 21/10/2014 at

00:14)
[58] Ibid.

[59] sec. 2 of the Contempt of Courts Act, 1971

[60] Section 3(2)

[61] Case no. BA097211

[62] (2005) 2 SCC (Jour) 75

[63] Sam Sheppard was convicted for the murder of his pregnant wife in their Cleveland
suburban home

[64] Sixth Amendment rights

[65] (2005) 6 SCC 109

[66] International Covenant on Civil and Political Rights, 1966, Adopted and opened for
signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16
December 1966, entry into force 23 March 1976.

[67] Article 19 of the International Covenant on Civil and Political Rights, 1966:

1. Everyone shall have the right to hold opinions without interference.

2. 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.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these
shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or
morals.

[68] TRIAL-BY-MEDIA: DERAILING JUDICIAL PROCESS IN INDIA

http://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf (last visited on

21/10/2014 at 00:03)
[69] (1996) 6 SCC 466, paras 8, 9 and 10.

[70] Ibid., para 8.

[71] Secretary, Ministry of Information & Broadcasting v. Cricket Association of West Bengal,
1995(2) SCC 161; Romesh Thapar v. State of Madras 1950 SCR 594; See also Life
Insurance Corporation of India v. Manubhai D Shah, (1992 (3) SCC 637.

[72] 1960 (2) SCR 671.

[73] State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.

[74] 1996 (6) SCC 354.

[75] Ibid., para 7.

[76] A.G. v. Times Newspaper, (1973) 3 All ER 54; Express Publications (Madurai) Ltd. v.
Union of India, AIR 2004 SC 1950, para 29; Secretary, Ministry of Information and
Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR 1995 SC 1236, para 4.

[77] In Re: Harijai Singh and Anr.; In Re: Vijay Kumar, (1996) 6 SCC 466, para 10.

[78] Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693.

[79] Ibid., para 10

[80] Supra note 73

[81] Ibid.

[82] K.G. Balakrishnan, The Constitution, The Media And The Courts, The Fourth K.S.
Rajamony Memorial Public Law Lecture, Kerala,
www.supremecourtofindia.nic.in/new_links/9%5B1%5D.8.08.rajamony.pdf

[83] Press Council Act, 1978, Section 13(1).

[84] Press Council Act, 1978, Section 13(2) (c).

[85] Press Council Act, 1978, Section 13(2) (d).

[86] Section 14(1) of the Press Council Act, 1978, states: “Where, on receipt of a complaint
made to it or otherwise, the Council has reason to believe that a newspaper or news agency
has offended against the standards of journalistic ethics or public taste or that an editor or
working journalist has committed any professional misconduct, the Council may, after giving
the newspaper, or news agency, the editor or journalist concerned an opportunity of being
heard, hold an inquiry in such manner as may be provided by regulations made under this
Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in
writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist
or disapprove the conduct of the editor or the journalist, as the case may be.”

[87] (2007) 1 SCC 143

[88] Supra note 73

[89] Supra note 2

[90] Ibid.

[91] Id.

[92] Id.

[93] AIR 2005 SC 790

[94] published in Media Ethics : A Philosophical Approach, edited by Mathew Kieran

[95] IA 8185/2003 Suit No. 1543/2003 dated 24.1.2005

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