Courts Gagging the Media

Why in news?

 A special CBI Court recently issued a gag order prohibiting the press from reporting on the
court proceedings of a fake encounter case.
 In another case, Allahabad High Court gagged the media from reporting on an ongoing case
concerning hate speech by the CM of Uttar Pradesh.

What is the justification?

 The orders were enabled by the Supreme Court itself.

 In 2012, the Supreme Court held that in certain circumstances, courts could pass
“postponement orders” barring coverage of specific judicial proceedings.
 The court framed the issue as requiring a balancing of two competing rights: the right to free
speech, and the right to a fair trial.
 Observing that sometimes excessive publicity could jeopardise a fair trial, the court held that
to the extent it was reasonable and proportionate, “prior restraints” on court reporting could
be imposed.
 Allahabad High Court cited that the media reports court proceedings inaccurately to justify
the gag order.

Is the justification fair?

 In a Jury system, guilt or innocence is decided by a jury of twelve who do not possess
specialised legal training
 The idea that “media trials” might distort the outcomes of cases makes sense only in such a
system.
 In India we abolished jury trials more than 40 years ago, and it is judges now who decide
cases.
 Judges, by definition, are not only supposed to apply the law but also have to have the
relevant training and temperament to be regardless of the public.
 The 2012 SC order also failed to adequately limit the kinds of cases in which these
exceptional “postponement orders” could be passed.
 It also failed to limit the duration for which they could be passed.
 This has given ample space for abuse as happened in the recent orders.

What should be done?

 Media misreporting of court proceeding can be rectified by making the written transcripts
and recordings of court proceedings available to the public.
 In some situations, a temporary halt on reporting could be justifiable.
 But the bar should be limited to a single hearing, and only in the most exceptional of
situations.

Trial by Media, Is it fair?.

'Trial by media is a term which came into light in late 20th century and used frequently in 21st century.

Actually, Trial by Media means judgment given by media (electronic/ paper) before the pronouncement of

that respective judgment by the honorable court. The issue is very serious since it involves the clash of

two Fundamental Rights. Those freedoms are 'Freedom of Press' and 'Right to have Fair Trial'.

Though in Constitution of India freedom of press is not explicitly provided but with the pronouncement of a

judgment named Indian Newspaper v Union of India (1986 AIR 515). It is provided under Article 19(1) (a)

which says that 'all citizens shall have the right to freedom of speech and expression', but this freedom is

in way is overreaching or clashing with the right to have a fair trial which is again touched upon by various

articles like Article 14(Equality before law), Article 19(Protection of certain rights regarding freedom of

speech etc), Article 21(Protection of life and personal liberty), Article 22(Protection against arrest and

detention in certain cases) of the constitution and also by procedural law (CrPC).

An open and strong media is needed in a democracy for checking the works of every organ as well as

keeping public well informed. In fact a healthy press is indispensable to the functioning of democracy. In a

democratic setup there should be an active participation of people in all affairs, it is their right to be kept

informed about the social political condition prevailing in their country. The media should be commended

for this job but when this job of checking and informing becomes diverted and starts interfering in the

administration of justice; in that case it becomes unhealthy for the working of democracy.

If we go according to criminal jurisprudence, a suspect / accused is entitled a fair trial and is presumed to

be innocent till proven guilty by a court of law, None can be allowed to prejudge or prejudice his case till

the completion of trial, but nowadays since too much coverage is provided by the media, so many things

which should not be told are uttered in the public openly which prejudges the conviction while the matter

is still going on in the court of law. If this particular thing continues there will be confusion regarding the

judgment, since media has already passed the judgment which pushes the honorable judges in a

situation of enigma keeping the judgment at stake. Here comes the idea of reasonable restriction, it is well

known that article 19(1) (a) provides freedom of speech and expression and 19(2) provide the concept of

reasonable restriction where one of the basis is Contempt of Court which means that any interference in
administration of justice will lead to criminal contempt of court as defined in Section 2 of Contempt of

Court 1971(). So logically if there is any kind of interference in the administration of justice that will be

considered as valid restriction.

If we see from another point of view trial by media influence many entities directly or indirectly. Beginning

from the accused to the honorable judge everyone is influenced. It can be i) image of accused, ii) opinion

of public, iii) honorable judges However, the importance of media cannot be ignored, there were some

cases in the past where media played a very important role as in Jessica Lal murder case and many

others. But the whole thing comes to a point that every institution be it The Executive or The Legislature

or The Judiciary or Media must remain within their legislative jurisdiction once they will come out of their

respective domain clashes will arise and the clashes hinders the growth of a democracy. Media is

considered as the fourth pillar of the democracy. So it should not interfere (interference is different from

checking) with other pillars otherwise the base will collapse with frequent imbalance.

Trial by Media Criticism, Trial by Media Pros

and Cons
Here’s a nation, one of the founding pillars was freedom of speech and freedom of expression. And yet we have imposed
upon people restrictions, on what they can say, on what they can think. And the media is the largest proponent of this,
crucifying people who say things really quite innocently.
-Benjamin Carson
Trial by media is a phrase popular in the late 20th century and 21st century to describe the impact of television and
newspaper coverage on a person’s reputation by creating a widespread perception of guilt or innocence before or after the
verdict in a court of law

Media has been the voice of thousands through which a platform is provided for the common man. In rapidly changing
socio economic conditions like in India ( largest democratic country) media has gained prominence and hence referred as a
fourth pillar of democracy. Of course sometimes a drop of ink dropped down from the journalist’s pen might be more
powerful than a bullet from the soldier’s gun. According to criminal jurisprudence a suspect/accused is entitled to a fair trial
until proven guilty/innocent by the court of law.

The right of freedom of speech and expression is contained in article 19 of the constitution. However the freedom is not
absolute as it is bound by the sub clause of the same article stating that the right of freedom of speech and expression does
not embrace the freedom to commit contempt of court.
We live in a society in which spurious realities are manufactured by the media, by governments, by big corporations, by
religious groups, political groups. I ask, in my writing, ‘What is real?’ Media is something which has to properly guide in this.
In India trial by media has attained significant proportions. The media is the most powerful entity of earth. They have the
power to make the innocent guilty and to make the guilty innocent and that’s “POWER “to control the minds of masses. Over
the past years the human entity has been connected so much to the media that even children today speak out through
social media.

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 etc.

Even in the recent case like Aarushi Talwar’s case the media has played a major role pointing towards her parents. Likewise it
can change the whole way of perceiving. The concept of media trial is not new. There have been numerous instances in
which media has been accused of conducting the trial of the accused and passing the ‘verdict’ even before the court passes
its judgment. Trial is essentially a process to be carried out by the courts. It is essential by any judicial system that the
accused should have a fair trial.

Media has almost reincarnated itself as the public court. It has been the voice of the people who can never be heard, the
light to the people who can never see the reality and the guide to the judge affecting the decisions. High-profile civil
litigation is not just decided in the courts; it also is decided in the court of public opinion. The magnitude of the coverage
and the filter through which the media reports on litigation can create a “clear bias in civil cases.” A larger issue is the
complex nature of juror bias and how that bias predisposes a juror toward one side in a case. It is no secret that we all have
biases. The difficulty comes from understanding how those biases may ultimately affect the viewing of evidence and the
deliberations in a case. Judges are also Human Beings they too care about the reputation and promotion and remunerations.
Media is so much into our day to day life that even judges can’t stay away from it. And as a result there is also an additional
pressure on the judges which include trials of high publicity.

Media needs to act as a watchdog and show the society whatever is happening around and also needs to act as the platform
for the voice of the society. But now a day’s even media has been doing things for their salaries and TRP’s. Hence it should
be well regulated by the court to maintain the basic code of conduct.

Tell me, why is the media here so negative? Why are we in India so embarrassed to recognize our own strengths, our
achievements? We are such a great nation. We have so many amazing success stories but we refuse to acknowledge them.
Why? (As quoted by late Dr. A P J Abdul Kalam)

So media should be a missile used to bring a great change and a judge and a public weapon free of corruption.

Trial by Media, Is it fair?.

Media is an important part of the modern world .Today the role of the media is very crucial, it is one of the

pillars of democracy. Media is basically divided into two categories one is electronic media other is printed

media. Example of electronic media are radio, television etc. Example of printed media are magazine,

news paper etc. Today people trust on media blindly, people accept and assume true whatever the media
say. Media put the people voice in front of society and legislative. Media provide a platform on which

anyone can put their thoughts among society. Trial by media may define as a process in which media

investigate any legal case by its own way and put their verdict among society before or after the court

verdict. Trial by media comes into picture at the end of twenty century or the beginning of twenty first

century. Today trial by media increase day by day because, media is aware that people trust on them

completely. It is true that media should be independent by government or any political power, but

sometime media take their independency in a wrong way.

CONTEMPT OF COURT BY MEDIA

The verdict of media on any legal case before the court verdict is the contempt of the court, because

verdict of media before court verdict is not correct. Media has no right to say anything about court verdict,

so media should understand it and do their work properly in society.

FAKE TRIAL
Today it is often seen that the trial by media becomes fake. Now media do their work under political

power. Media can do anything whatever their political leaders say. Media does it because of their self

benefits. They forget about their real duty, this is ridiculous such type of media should be removed from

society. Corrupt face of media came in 2012 when two zee news editors' Sudhir Chaudhary and Sameer

were arrested by crime branch of Delhi, acting on a complaint by congress M.P Naveen Jindal who had

accused the two of trying to extort RS.100 crore worth of advertisements from his company in return for

dropping stories linking the Jindal group Coalgate.

CRITISED TRIAL
In the resent past history media's trials were criticism because there trials were not true but based on

media's personal thought ,for example infamous cases like 'Arushi case', Jessica Lal case in both these

cases media's trials are false and based on their personal views .
TRUE TRIAL
Media's trial is not always wrong but many times their trials appreciated, for example the media trial on

2002 'Gujrat Danga' was really appreciated. The trail of media helped the police to caught the real

accused persons like 'Bajrangi' who was the one of the accused person, in this case media trial also

consider by the supreme court during its verdict.

CONCLUSION
From the above discussion it is clear that the media's trail is true if it is done by honest feeling otherwise it

is false. No doubt that media is an integral part of a democratic county but now the media is more self

centered. They can do anything for their TRP'S, most of the news channels work under the political

powers. It is true that the freedom of media is the freedom of people, But media took it in a wrong way for

example the interference of media in court work. To make media true or clear it should be regulated by

court. The Supreme Court has to pass an order to punish media, if media interfere in jurisdiction of court;

it is the only way which helps to restrict the bad effect of media trial.

Trial by Media, Is it fair?.

India enjoys the largest democracy so does its media, which is infamous today for its role of a watchdog.

Remembering 2006 baby prince in 60 feet deep trench or 2015 international yoga day, how all news

stations switched to cover and telecast the same issue without a pass of breath as if media had a news

deadlock. The media is actually a mix of some positive and negative aspects. Its media whether print or

electronic that strings people who are geographically divided. Media incumbents fourth major pillar of the

world's largest democracy hence, its freedom is the freedom of people as the mass population need to be

well informed of the public matters .It would be no harm to say that media is 21st century's indispensible

expanding resource who is continually watching the functioning of all the tiers of this largest democratic

system and provides a platform to get grievances of people noticed by the society and legislatures

indiscriminately. It's therefore the effective tool today as it not only brings accountability and transparency

in the system but also educates and guides the citizens in many respects. Though it invited scorn from

various agencies for some of its thoughtless coverage but one must not forget the constructive role it
played in exposing the 2g scam, the burning Vayapam scam, Lalit Modi fled and countless such

opprobrious acts of corruption to the public. It was media who brought Aruna Shuanbaugh into light who

died after being in vegetative state for nearly four decades. Media facilitates awareness but is often found

responsible for moulding and distorting the public opinion about the things which are under trial or in

process or state of scrutiny. Though if properly channelized media can be used in enumerate ways to

promote social harmony, combat terrorism, expose snaked scams, eradicate corruption, create

awareness among masses and to achieve that Mr. Nehru envisaged a vision of free press. To experience

freedom of media nations founding fathers realized its importance and hence included it in the constitution

in the form of freedom of speech and expression as articulated in the constitution in Article 19(1) a .Thus

Media was accorded with many freedoms and immunities so that this fourth pillar of democracy stands tall

and strong. However the freedom of speech and expression is not absolute but is limited by scenarios

given in sub clause (2) of the same article. The article says that nothing in the freedom of speech and

expression shall affect the operation of any existing law, or prevent the State from making any law or

public order, decency or morality in relation to contempt of court. But many a times media foretells the

verdict before court passes its judgment thus engaging it in committing contempt of court, defaming the

suspect by showcasing him a culprit. Today media is questioned for its transmigration into a 'public court'

(Janta Adalat) and its interference into court proceedings. Here, I believe media identifies its responsibility

and works cumulatively with court to bring truth to the world leaving no void for injustice. This is for what

actually media is, it can serve as a great force in building the nation. Interference of media is justified as

the largest democratic system working through its numerous departments is not less prone to corruption

and wrongdoings taking advantage of that, culprits may come clean. Scribes conduct investigation into

the crime and publish the accomplished results even before the court takes cognizance of the case only

to aware the citizens of the goriest crimes and other happenings. Media trial and media investigation

brings public closer to the democracy and helps to build an opinion towards the accused. By this way, the

accused is being judged indiscriminately. Though there is a fact to be accepted that sometimes not

properly directed investigation, in some cases, results in encroachment of civil rights of accused leaving

all his liberty unaddressed and presence defamed, maligned. Media understands the visible demarcation

of duties and tasks that are meant to be performed by the legislative, judiciary, executive and media itself.
Concluding on positive note that media trails can't be declared unjustified totally, it's there to look for facts

and information that empowers citizens and strengthens democracy at the time when justice seems out of

reach to a common citizen.

Trial by Media, Is it fair?.

There are two ways of looking at the role of the media, which is a double-edged weapon. Essentially, the

mass media plays an important role in strengthening democracy. However, the same weapon could be

misused by those with vested interest.

A recent phenomenon in this context is the so-called paid news through which politicians seek to destroy

their rivals by planting negative stories through the media. That was how Union Transport Minister Nitin

Gadkari was in the news for wrong reasons following the publication of a report that he and his family

enjoyed a Mediterranean cruise in February this year, for which the Ruias had provided a family-owned

yacht.

Gadkari sought to play down the news by declaring that the trip was just out of curiosity and had no

business angle. It is widely believed that many media companies 'sell' news space as part of a deal with

politicians and business executives. These shady transactions have drawn the attention of the Press

Council of India, which described them as 'advertisements' in the form of 'news.'

In some cases the news media has gone beyond its call of duty by reporting on sensitive matters that

could jeopardise national security. This aspect was highlighted by Union Defence Minister Arun Jaitley

while delivering a lecture on 'Freedom & Responsibility of Media.'

Calling it the "desire of the media to be an actor," Jaitley asked: "How do you report instances where

insurgent action is on where a security operation is in full swing? Should the media go into the midst of

the scene and therefore report from the spot as to what is happening. Or, should the media have some

constraints?"
He observed: "We've have intelligence information to say that because Indian television had decided to

bring the 26/11 reporting almost in real-time as to what action was being taken, the terrorists inside the

hotels were being informed on their satellite phones by their handlers as to what the Indian security forces

were doing."

In the developed countries, too, the press has been accused of playing a negative role in league with

political bigwigs. The situation is more or less the same in India, where business and political interests

have ganged up to promote their own agenda at the cost of public interest.

In this tussle between politicians and the press, says former Press Council of India chairman Markandey

Katju, the losers are the people of India - the hundreds of millions who are economically deprived. Their

problems get sidelined by political rivals crossing swords in the Legislature or Parliament, with the press

giving a sensational account of the unfolding drama.

According to Katju, the Indian media should play a role similar to its counterpart in Europe when it was

going through a transitional period. "In other words, the Indian media should help our country get over the

transition period and become a modern industrial state. This it can do by attacking backward, feudal ideas

and practices e.g. casteism, communalism and superstitions, and promoting modern scientific and

rational ideas."

He points out that a large section of the Indian media (particularly the electronic media) does not serve

public interest, while in some cases it acts against the people's interest. This point was highlighted by

well-known film actor-turned politician Shatrugan Sinha recently when he accused his BJP party of

planting stories in the media against him.

Sinha, BJP MP from Patna Saheb, has been accused of ignoring the needs of people of his constituency-

a charge which he described as the handiwork of some vested interest in his own party.

"I am not fly by night kind of politicians which film stars and other popular personalities who enter into

politics are generally accused of...it's a baseless allegation levelled by some vested interest in my party

BJP for political reasons," Sinha told PTI.

He said he was being ignored within his party because of his personality and popularity which some

leaders would not accept. "But I have never ignored people of Patna Saheb who voted for me heavily in

the last general elections," Sinha observed.

In the ultimate analysis, there is a general perception that Indian media tends to hype up a lot of things

just to boost its readership. Its code of conduct is dictated by what serves it best.

 Trial by Media, Is it fair?.

What is fair and what is unfair are not absolute and immutable ideas. They change according to time and

place. What was unfair few hundred years ago may become fair now. The trial by media is one such

concept. However it has been condemned by civil rights activists, lawyers, judges and academicians.

The media is a powerful tool for social engineering. It draws its power from Article 19(1)a of the

Constitution which guarantees freedom of speech and expression. As a pillar of democracy it has the duty

to use this right judiciously. The burden becomes heavier because it has the power to mould public

opinions and change the way people perceive the justice system.

The problem of unfettered use of this freedom becomes apparent if we look at the interference of media in

"administration of justice". This interference can be summed up in the phrase "trial by media" which

basically means the impact that media has on a trial proceedings. This impact can be through prejudicing,

forming perception or characterising person in a certain way.

An accused is declared guilty by the media at the time of arrest, blatantly ignoring the doctrine of

presumption of innocence of the accused until proven guilty beyond reasonable doubt. For example in the

Aarushi murder case the Talwars were declared murderers by media even before the judgment. Another

example is of Asaram Bapu. Though just charged under Protection of Children from Sexual offences Act,

2012, he was declared guilty by the media. Media portrays the accused in such a way, by using assertive

style of writing, which the public is made to believe the story of the media.
The trial by media is not legal in any way. The interference can have serious effect on the life of the

person who is directly impacted. It makes difficult for such persons to restore their life when they are

found not to be guilty without societal scrutiny which is the result of the pre-judgments by the media.

Moreover it is very well recognised that a judge presiding over a matter that has gained media hype is

likely to be effected subconsciously if not consciously. This may manifest in either the judge being

apprehensive about public reaction after he passes a judgment against the "media verdict" or when he

feels pressurised to act according to the story of the media, gravely wrecking the impartiality that he/she

is expected to uphold. Such impact on judges is affirmed by 'Aarushi', an investigative book by journalist

Avirook Sen which claims that the judge wrote the 'verdict' even before the defence finished its argument.

Not only accused but sometimes other functionaries like police are shown in a bad light which degrades

their reputation.

Law Commission of India in its 200th Report on TRIAL BY MEDIA FREE SPEECH AND FAIR TRIAL

UNDER CRIMINAL PROCEDURE CODE, 1973 analysed the relation of trial by media with freedom of

speech under Article 19(1)a, reasonable restrictions and Contempt of Court laws. Section 2 of the

Contempt of Courts Act, 1971 defines criminal contempt. It includes publication of any matter which

prejudices or interferes in any way in the judicial proceedings or administration of justice. Two

recommendations of the Commission are worth pondering. Firstly, the High Court should be given power

to postpone publication of any news that has the potential to prejudice. Secondly, the contempt should be

from the date of arrest and not from the date of filing the charge sheet.

The justification by media is that they act as catalysts to the otherwise sluggish judiciary. They say that

they merely represent the views of the society and not shape them.Though there are a lot of

vulnerabilities attached to trial by media it would be incorrect not to give media due credit for exposing

various scams and its work in bringing justice in cases where it was under the influence and pressure of

the rich and powerful. For example the Jessica Lal case. Therefore the need of the hour is to put

reasonable restriction on media so that it not only is able to exercise its right of speech but at the same is

prevented from exceeding its arena of legitimate jurisdiction.

Trial by Media, Is it fair?.

Today we are living in the twenty one century which known as "kalyug". In this emerging modern country

in world we should also up date every aspect of life around the society and world. To know anything about

the world and what is happening in the world for this media play very important role in this field. Trial by

media is a popular phrase in 21st century to describe the impact of television and newspaper coverage on

a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict

in a court of law.

Here we are judging the trial of media is fair or not - Media is strong part of India democracy and fourth (4)

pillar democracy republic India country stand as a strong pillar in the constitution of India. What is the trial

and why it is mandatory to accept by media. Because we are unable to get any result without any

comparison and examine any aspect.

To study any case and explore truth in the front of society is not easy task because it depend reputation

of any alive person any department and also connected with society. To find the real truth is mandatory to

use it. Media without any intention it provides real truth to public and also helpful to maintain the law and

order in the country. To get publicity by media is very easy. But is provide real situation , real secret

behind of any crime, scam, drama, conspiracy and other kind of criminal crime and without media trial is

not easy to catch it and stop illegal work, if happening somewhere.

Media is fastest growing field and medium to any information easily. We can easily get any information of

any field like political related, government relate, film industry related and also get the news of urban and

rural area at our home.

Today the Media also connected to government scheme and it promotes the government scheme in

worldwide. It so the every policy and every plan government, which is for the welfare of society. If we

focus on question of media release news public easily trust on news which published by any media

channel and any famous news paper.

The voice of media is very strong unable stop it. Today the range of media available everywhere by the

medium television, radio, FM, internet and news paper which running 24X7 hours for the public and

various social networking site is working to raise the people and connecting people to each other in the

world and also these sites has been made second hand of the media to upload any news instantly in

some moment only ( in short time) and good platform to media organization.

To trail is very important aspect of the media organization because it depend real and original truth of any

aspect. To find reality of any crime and illegal, any scam etc, and the trail is very important part.

In recently incident the journalist akshay singh found mysterious death in the vyapam scam during trial. It

shows that trial is fair because it show reality to the person who are connected with this illegal scam.

Without trial publish any news, such like playing with the feeling and believe of public on media

organization, because they have perception, whatever media it showing by any medium like television

,radio, newspaper, internet and social sites, it would be truth real. To show and publish any wrong news

and information only playing with the trust of public and society. Media should not publish any news for

increase only for TRP to do this is not good.

Conclusion

According to my view trial is fair before to publish any news in the public and society. Media is only able to

get any reality and truth by trial. So it is mandatory and fair.

Media Trial, Media Trial Impact, Trial by

Media
Media- fourth pillar of democracy is the very fabric and mirror of the society. It has the power to influence and revolutionize
the masses. From the ink of its pen to the sound of its mic, Media can build and malign an image of a person simultaneously.
In fact, it can change the governments! A free media is a prerequisite to democracy. Though India has the constitutional right
to freedom of speech and expression along with the freedom of press under the clause 19(1) (a) but, the limitations to its
absolute freedom are stated in its very next clause.

Media Trial- adjudication by media in cases before or after the verdict of court has become a trend in the present scenario to
increase the circulation and TRP of newspapers and news channels. Media has forgotten the fundamental gap between an
accused and a criminal! Today, it influences the masses by making an innocent a culprit thereby changing the perceptions.
Indeed, Various Judges of Court have criticized the trial by media as it leads to psychological variation while giving any
degree. There is No doubt that media trial has exposed many criminals of the high profile cases like Jessica Lal Murder and
Nitish Katara case but it is illegal due to the restrictions mentioned to the freedom of speech and expression in the Indian
Constitution. Media has helped the dejected common man in getting justice. But, at the same time the pre-decision given by
the media in Aarushi Murder case was not praiseworthy. Their manipulations changed every single day and proclaimed
Aarushi’s parents as her murderer’s. However, CBI didn’t found any clue and the court’s final sentence came after many
years!

Media has been termed as a magic bullet that directly hits the mind of the people. We automatically believe what media
show us. ‘Yes! It was her parents who killed Aarushi’, we concluded before the final judgment of the court that put a question
mark on the social responsibility of the media. In the 2002 Godhra riots, Narendra Modi was accused of killing Muslims in
Gujarat. The media declared Narendra Modi as the culprit. Besides in 2014, high court of Gujarat gave clean chit in Godhra
riots to our present Prime Minister but, still most of the people believe that he was the mastermind behind 2002’s killing!
Henceforth, the reputation, respect and dignity suffer even after you have been proven innocent.

Several times the media has overlooked the ‘contempt of court’ that clearly punishes the one who interferes and arbitrates in
the matters of court. If it wasn’t, justice had been delayed & denied to the innocent commoners like Priyadarshani Matoo
rape and murder case.

Media is bold! It is powerful! Media is a callous reality! Media is exposing scams! Media is change! I do not condemn the trial
by media as it hanged the true convicts who proved innocent by corrupt & tampered evidences in the court premises.
Besides, I would criticize the adverse effect of media trial on the reputation of a person in the society. Media should maintain
its code of laws and ethics, social responsibility and credibility by not interfering in the matters of court so early. Instead,
should do the research, keep a check on high profile cases, find the evidences and keep it to them until and unless they find
the truth suppressing. Trial by Media is a requisite in this 21st century where violence, crime & corruption are at its peak and
where human life is not priceless anymore!

Where Does Press Freedom End

and Trial by Media Begin?
When the media either frontally or suggestively pronounces on the
merits of a matter that is sub judice or builds public opinion on guilt
or innocence in criminal trials, it enters the province of courts.
Freedom of speech includes press freedom, as the Supreme Court held in the Express Newspapers case as
far back as in 1958.
Though the Indian constitution does not recognise freedom of the press as unambiguously as the US
constitution, the Supreme Court has read an important status to it, not the least as reflecting the citizens’
right to know.

Pre-censorship of the written medium is impermissible, and even the visual medium cannot be censored
beyond what is a reasonable restriction as per Article 19(2) of the constitution and thus incorporated in the
Cinematograph Act or the Cable TV Networks Act.

Whether the press or media has crossed its legitimate boundaries is a perennial question. Recently, the
Andhra Pradesh high court gagged all forms of media including the social media from publishing anything
that relates to an FIR filed by the Anti-Corruption Bureau (ACB) Guntur.

Freedom of the press also came into focus before the Supreme Court in a case in which it restrained
Sudarshan TV from airing its Bindas Bol programme “UPSC Jihad” on the grounds that it sought to vilify a
community.

A clear and present danger to public health, safety or morals, such as falsely crying “fire” in a crowded
theatre, or incitement to violence in a charged atmosphere, or a deliberate rumour that the village well is
poisoned is like a spark in a powder keg and may warrant an injunction on an emergent basis. Another class
of injunctions is in private civil actions for defamation, where it shall be refused if the defendant claims the
defence of truth. The third class is an injunction given to protect fair trial from unwarranted media comment,
often called ‘trial by media’.

Media freedom reflects the right of citizens to information, further crystalised by the enactment of the Right
to Information Act in 2005. Access to unadulterated information and many shades of opinion is the essence
of democracy.

In Brij Bhushan v the State NCT of Delhi the Supreme Court held that the pre-censorship of a journal was an
unreasonable restriction on the liberty of the press.

In R. Rajagopal v State of Tamil Nadu , the court went on to rule that public officials, public acts and public
record could not be protected from publication by injunctions except on specific points like the identity of a
rape victim.

Having expanded on the right and indeed the duty of the media to inform the citizens, the Supreme Court
has also repeatedly cautioned against media trials which might hamper the administration of justice. In  R.K
Anand v  Registrar, Delhi High Court, it noted with some severity that free speech did not include the right
to publish just any kind of report concerning a matter before the court or to carry out sting operations on
some matter concerning a pending trial.
In Siddhartha Vashisht v State NCT of Delhi, the court made the important distinction between trial by
media and informative media. The case of Sahara vs SEBI is a review of the case law on the point, and it
reinforces the line between legitimate comment, and a usurpation that affects the presumption of innocence.

Is the difference between a legitimate comment and an unwarranted trial by media so vexed a question that
it must repeatedly find its way to courts of law?

How then does the danger of a media trial play out, and what manner of restriction could prevent that?

The essential difference is captured by the terms used in the Sidharth Vashisht judgment, “informative
expression” and “trial by media”. Where the people are informed of news and views, it is a legitimate
expression that cannot be restrained, however unpalatable it may be to some.

When, however, the media either frontally or suggestively pronounces on the merits of a controversy at
large in a court (often called the sub judice rule), it enters the province of courts. In criminal trials, if the
media declares or builds public opinion on the guilt or innocence, it jeopardises the presumption of
innocence, a right as important as free speech. Hence it is “trial” by the media, that it is neither competent
nor permitted to hold.

In Mahmood Moosa Tarani better known as the Black Friday case, a film which was publicised as a “true
account’ of the Bombay blasts was injuncted by the Bombay high court from being screened while the trial
was on. The visual medium has been seen as more potent, and despite their training, judges could not be
expected to remain immune from public opinion, roused to indignation by a purported exposure of those
“truly” guilty”.

In Navin Jindal (2014) a gag order was refused but in Navin Jindal (2015), and Swantantra Kumar a limited
restraint order was passed. These are examples of the Delhi high court issuing limited restraint orders in
order to prevent pending proceedings (including investigation) from media assertions on character. But,
none of these was a universal ban on reporting news, and the orders were issued only after reviewing what
was published, and limited to specific aspects after hearing the publisher.

Most recently the Delhi high court on September 22, 2020 , in the case of Harper Collins Publishers PVT
Ltd v Sanchita Gupta @ shilpi and others was dealing with an ex parte injunction passed against a book on
Asaram Bapu and his co-accused. While recognising the importance of the rights of individuals to
reputation, the court held that if there is fair discussion, which is based on established facts and which is
not ex facie malicious, there can be no bar on the discussion or publication.

Factual reporting of a criminal proceeding and a media trial are not the same. A media ‘trial’ happens when
the media starts conducting parallel proceedings, and asserting its view as the correct view, over those
statutorily entrusted with the task of investigation or adjudication.  Reporting leaked information in ongoing
investigations. if it prejudices the accused is also undesirable as observed in Romila Thapar v Union of
India.
Simply put, a media trial ensues when the media seeks to appropriate the role of the courts in charging,
convicting or acquitting the accused. As the Supreme Court said in Sahara v Sebi, that which affects the
“presumption of innocence” must be injuncted, if there is an ongoing adjudication. However, a factual
reporting is protected even by the Contempt of Courts Act.

The Criminal Procedure Code, 1973 deals with the investigation and prosecution of criminal offences.
Broadly speaking, every criminal proceeding will have the following stages:

 Registration of FIR
 investigation
 Filing of charge-sheet or closure report
 Trial
 Conviction or acquittal.

The Andhra Pradesh high court has interfered at the stage of registration of the FIR by staying the
investigation at its nascent stage and has gone beyond the relief claimed before it by issuing a total ban on
publication in any manner in the public domain. It has interfered with the informative role of the media. In
doing so, the high court acted contrary to the law settled by the Supreme Court. Once the FIR is registered,
it comes into the public domain and becomes a matter of public record. As we have seen, the Supreme Court
has held that there can be no objection to a publication which is based upon public records or court records
and once information is in the public domain there is no right to privacy.

The law is also fairly well settled that an accused cannot seek to interfere with the manner of investigation
or the mode of prosecution. The consequence of blanket gag orders in a democratic society are severe and
have a chilling effect on the freedom of speech. Consequently, staying an investigation even before it starts
and restraining any factual reporting about it is an excessive measure.

In conclusion, the courts must evaluate the consequences of a publication and the present and imminent
danger to a fair trial and if the publication is purely factual in nature and based on public documents, it
cannot constitute such a threat and consequently, blanket gag orders should not be issued.

“There is a dearth of statutory provision to regulate the media. It is not enough to say that courts have
repeatedly warned against media trials. We need specific guidelines for the electronic media. When you
make guidelines for the PCI, why not make similar guidelines for broadcasting media on prejudgments, etc.
This matter should concern the court.”

Bombay High Court on Thursday observed, “is it the duty of the media to suggest anything to the
investigating agencies?”