MEDIA TRIAL AND JUDICIARY

PROJECT ON:MEDIA TRIAL AND JUDICIARY

SUBJECT:MEDIA RIGHTS AND REGULATIONS IN THE

CONSTITUTIONAL FRAMEWORK

Submitted To:

Dr. Jyoti Yadav

Assistant Professor

Submitted By:

Shalini

ENROLLMENT NO:A8101820236

RTI AND MEDIA LAW Page 1

 MEDIA TRIAL AND JUDICIARY

Programme: LL.M. (Master of Laws), Batch: 2020-21

ACKNOWLEDGEMENT

I am obliged to our assistant professor Dr Jyoti yadav , who has given me golden chance for
this research project. I would also like to thank the almighty and my parents for their moral
support and my friends who are always there to extend the helping hand whenever and
wherever required.

I further extend my thanks to library staff of Amity University who helped me in

getting all the materials necessary for the project.

SHALINI

INDEX
SR. NO. TITLE PAGE NO.
1 INTRODUCTION 4
2 MEDIA-THE WATCHDOG OF DEMOCRACY 5
3 IMPACT OF MEDIA TRIAL 6-12
(a) Media Trials vs. Freedom Of Speech and Expression 6-7

(b) Media Trials vs. Fair Trials 7-9

( c ) Violation of Human Rights 9-10

10-12
(d) Is media trial a contempt of court
4 REGULATORY MEASURES 12-16
5 RESTRICTION ON REPORTING 16-17
6 CONCLUSION 17-19
7 BIBLIOGRAPHY 19

RTI AND MEDIA LAW Page 2

 MEDIA TRIAL AND JUDICIARY

1. INTRODUCTION

Media is regarded as one of the pillars of democracy. The freedom of press is regarded as
“the mother of all liberties in a democratic society.” 1 A responsible press is a handmaiden of
effective judicial administration. ‘Trial by media’ is a recently coined term and is used to
denote a facet of ‘media activism.’ It means “the impact of television and newspaper
coverage on a person’s reputation by creating widespread perception of guilt regardless of
any verdict in a Court of law. There is no legal system where the media is given the authority
to try a case. Trial is essentially a process to be carried out by the courts and is associated
with the process of justice. It is the indispensable component on any judicial system that the
accused should receive a fair trial.

In India, trial by media has assumed significant proportions. 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.

1
In re Harijai Singh, AIR 1997 SC 73.

RTI AND MEDIA LAW Page 3

 MEDIA TRIAL AND JUDICIARY

This paper is concerned with Media Trial and Judiciary.

2. Media: The Watchdog of Democracy

Media has undoubtedly played a tremendous role in bringing justice to the disadvantaged
people. One cannot gag the press due to the heroic role it played in cases which are
commonly known as ‘Billa Ranga case’, ‘Baba Nirankar’, ‘Sudha Gupta’ and of ‘Shalini
Malhotra’.

Without an active media, the cries of the victims of brutal khap killings of Haryana would
have gone unheard. The fear of khap and the backing of police and politicians allowed this
barbaric tradition to continue for long till they came out in front of the world through the
media. Many other cases like the Arushi Murder Case, Jessica Lal Murder Case, Ruchika
Girhotra Case and even the games played in IPL Row was brought out into broad daylight
because of the laudable efforts of media. This is certainly a very positive and welcome act
from the part of the media.

The media is now a full -fledged business. The name of the game is ratings, viewer ship,
eyeballs and advertisements. In the scheme, news is whatever sells. This means anything that
catches and grabs the attention of people, or, in other words, ‘sensationalism’. The present
day trend in news reporting manifestly points out that Journalism and ethics stand apart.
Journalists and media persons are supposed to be distinctive facilitators for the democratic
process to function without hindrance. The ethics that the media must embrace includes
virtues like accuracy, honesty, truth, objectivity, fairness, balanced reporting, respect and
autonomy. These virtues are very much part and parcel of the democratic process. It is
unfortunate that these days the media people are overcome by materialistic considerations

RTI AND MEDIA LAW Page 4

 MEDIA TRIAL AND JUDICIARY

rather than professional ethics and sincerity towards the profession. The journalists and
reporters are compelled to meet deadlines, satisfy media managers by meeting growing
targets and so on. Coupled with this there is also cut throat competition between different
media houses and newspaper organisations. To win the race, they have begun to publish and
present what the ‘public is interested in’ rather that what is for ‘public interest.’

3. IMPACT OF MEDIA TRIALS

(A) MEDIA TRIALS vs. FREEDOM OF SPEECH AND 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.2

Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian
Express Newspapers (Bombay) (P) Ltd. v. Union of India3 has stated:

“freedom of press is the heart of social and political intercourse. The press has now assumed
the role of the public educator making formal and non-formal education possible in 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

2
Freedom of press of India: Constitutional Perspective
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=6752 (last
visited on 21/10/2017 at 00:05)
3
(1985) 1 SCC 641 at p.664, para 32.

RTI AND MEDIA LAW Page 5

 MEDIA TRIAL AND JUDICIARY

right of making a choice, free and general discussion of public matters is absolutely
essential.4 This explains the constitutional viewpoint of the freedom of press in India.

In Printers (Mysore) Ltd. v. CTO5 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.6

In R. Rajagopal v. State of T.N7 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.

(B) 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

4
Maneka Gandhi vs. Union of India
5
(1994) 2 SCC 434
6
Indian Express Newspaper (Bombay)(P) Ltd. vs. Union of India, 1985 1 SCC 641
7
(1994) 6 SCC 632

RTI AND MEDIA LAW Page 6

 MEDIA TRIAL AND JUDICIARY

involved on the issues of the day, which affect them. This is the justification for investigative
and campaign journalism.

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.

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.

In Zahira Habibullah Sheikh v. State of Gujarat8, 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

8
(2005) 2 SCC (Jour) 75

RTI AND MEDIA LAW Page 7

 MEDIA TRIAL AND JUDICIARY

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.”

“In cases of State of Kerela vs. Bhaskarin and Shiva Ji Sahib Rao vs. State of
Maharashtra, by analysing these two cases, one can observe that Criminal law has two
purposes i.e., to suppress, Criminal enterprise and punish the guilty for this purpose, a
requisite procedure should be followed as per Cr.P.C. A miscarriage of justice may arise
from the acquittal of guilty as well as from conviction of the innocent.

One of the cardinal principles, which should always kept in mind is the presumption of
innocence, however it is observed in media trial. Generally, observed in media trials that
near suspicion or hearsay evidence or alleged confession by so called accused to the police
are used as scoops by the journalists served to public as breaking news.”

(C) VIOLATION OF HUMAN RIGHTS.

The responsibility of the media is greater than the responsibility of an individual because the
media has a larger audience. The freedom of press should neither degenerate into a license to
attack litigants and close the door of justice, nor can it include any unrestricted liberty to
damage the reputation of respectable persons.

The infringed privacy and tainted reputation of certain persons has become an inevitable by
product of extra snooping done by media. Suspects and accused apart even the victims and
witnesses suffer from excessive publicity and invasion of privacy rights. In the
famous Jessica Lal Murder case,9 where Manu Sharma was tried and convicted for murder,
the court held that “There is danger, of serious risk of prejudice if media exercises an
unrestricted and unregulated freedom such that it publishes photographs of the suspects or the
accused before the identification parades are constituted or if media publishes statements
which out rightly hold the suspect or accused guilty even before such an order has been
passed by the court.” In the aforementioned case, certain articles immediately after the date of
occurrence caused confusion in the mind of the public as to the description and number of
actual assailants / suspects. It is absolutely not fair to cause taint to the reputation of a person
by creating widespread perception of guilt, regardless of any verdict in a court of law. In the
9
Sidhartha Vasisht v. State (NCT of Delhi), AIR 2010 SC 2352.

RTI AND MEDIA LAW Page 8

 MEDIA TRIAL AND JUDICIARY

recent times, a congress minister in the coalition Government of Jammu and Kashmir had to
resign after revelations of his sexual advances and molestation became public. Tarun Tejpal
and Justice AK Ganguly were in the dock for the same reason. Such kinds of ‘Trial by
Media’ have become common and rife after deregulation of the media and proliferation of
visual media.

It is absolutely not fair to taint the reputation of a person by creating widespread perception
of guilt, regardless of any verdict in a court of law. The suspect gets negative publicity and
later even if the court finds him innocent, his future remains uncertain because of the stories
cooked up by the media.

(D) IS MEDIA TRIAL A CONTEMPT OF COURT?

Trial by Media is Contempt of Court and needs to be punished. The Contempt of Court Act
defines contempt by identifying it as civil10 and criminal11.

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 contempt.12 Commenting on the pending cases or abuse of party
may amount to contempt only when a case is triable by a judge. 13No editor has the right to
assume the role of an investigator to try to prejudice the court against any person.14

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. K.R. Pattabhiram and Anr

Fair trial Parties have a constitutional right to have a fait trial in the court of law, by an
impartial tribunal, uninfluenced by newspaper dictation or popular clamour. 15 What would
10
Section 2(b)
11
Section 2(a)
12
AIR 1943 lah 329(FB)
13
Subhash Chandra v. S. M. Agarwal, 1984 Cri LJ 481(Del)
14
Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137
15
Cooper v. People (1889) 6 Lawyers Report Annotated 430(B)

RTI AND MEDIA LAW Page 9

 MEDIA TRIAL AND JUDICIARY

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 time.16 Our law of contempt however does not prevent comments before the litigation
is started nor after it has ended. In re P.C.Sen,17 Justice Shah who spoke for the court
succinctly put the law as follows:

In Sushil Sharma v. The State (Delhi Administration) and Ors 18 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

16
Leo Roy Frey Vs. R. Prasad and Ors , AIR 1958 P&H 377
17
AIR 1970 SC 1821.
18
1996 CriLJ 3944.

RTI AND MEDIA LAW Page 10

 MEDIA TRIAL AND JUDICIARY

motivated by considerations of their own personal ideology, affiliations, predilections, biases

and indeed even by nepotistic and corrupt considerations19.

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr 20. 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.”

4. REGULATORY MEASURES

The judiciary is not free from human follies

It is true that every holder of judicial office does his utmost not to let his mind be affected
what has seen or heard or read outside the court and he will not knowingly let himself be
influenced in any way by the media. At the same it is to be kept in mind that judges being
humans are not free from faults. A man may not be able to put that which he has seen, heard
or read entirely out of his mind; and he may be affected by it. The judiciary is not
independent unless the Courts of Justice are able to administer law in the absence of pressure
of popular opinion.

If one carefully analyses the judgment in Reliance Petrochemicals v. Proprietor of Indian

Express21 in the light of the judgment of P.C. Sen22 , it can be inferred that the Supreme Court
has accepted that Judges are likely to be “subconsciously influenced” by the media publicity.
The same view has been held by Justice Frankfurter of U.S. Supreme Court and Lord
Scarman and Lord Dilhorne in the House of Lords.23

There must be regulations with regard to publications and news programs while a trial is
going on. It is just as important to protect the public perception of judges’ impartiality as to
protect risk of bias. After all we cannot forget the Common rule Law laid down in R v.

19
Supra note  2

20

21
1988(4) SCC 592.
22
AIR 1970 SC 1821.
23
Attorney General v. BBC, 1981 A.C. 303 (HL).

RTI AND MEDIA LAW Page 11

 MEDIA TRIAL AND JUDICIARY

Sussex Justices: Exparte McCarthythat24 “Justice should not only be done, it should
manifestly and undoubtedly be seen to be done”.

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 25 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 re26 the Supreme Court has considered the view taken by Frankfurter, J.
in Pennekamp v. Florida27 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.”

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.

24
1924 (1) KB 256
25
(1995) 1 SCC 501
26
(2002) 3 SCC 343
27
328 US 331 : 90 L Ed 1295 (1946)

RTI AND MEDIA LAW Page 12

 MEDIA TRIAL AND JUDICIARY

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.

5. RESTRICTION ON REPORTING

Code of Journalist Ethics

This code had been prepared by All India Newspaper Editors Conference and Indian
federation of working journalist as also the code formulated by United Nation Sub-
Committee on freedom of information and press.

India should observe some restrain and on reports and comments.

Publication of news and facts and right of fair comment should be defended.

Factually accurate information.

Unconfirmed news shall be identified and treated as such.

Personal interest should be influence professional conduct.

Inaccurate report should be ratified and publicity of the same done.

Public confidence in integrity and dignity of profession as journalist should be maintained.

Acceptance of bribe or inducement or any such act/demand an exercise of denying or giving

out information should be avoided.

The carrying on of personal controversies, where no public issue is involved should be

considered as derogatory of profession.

Unfounded acquisition should be avoided.

In obtaining news, or pictures, reporters and press photographers, shall not due anything that
will cause, pain or humiliation to innocent or otherwise distressed persons.

RTI AND MEDIA LAW Page 13

 MEDIA TRIAL AND JUDICIARY

6. CONCLUSION

It has to be remembered that freedom of expression is not absolute, unlimited or unfettered.

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. No judge is
completely impervious from the influence of the hype created by the media.

The media must exercise better self-regulation. It is expected of persons at the helm of the
affairs in the field of media to ensure that the trial by media does not hamper fair
investigation by the investigating agency, and more importantly does not prejudice the
defence of accused in any manner whatsoever. It will amount to travesty of justice if either of
this causes impediments in the accepted judicious and fair investigation and trial.

In order to stifle free speech and comments on the court, even an occasional exercise of the
power of court to punish the condemners is enough to deter most persons form saying
anything that might prejudicially affect any trial proceeding or tend to transgress the natural
justice principles.

If government starts regulating the media, the whole purpose would be defeated. Instead the
better option would be robust and civic engagement by the people with their polity and
political class. In other words the engagement that is both adversarial and co-operative. An
educated, cultivated and engaged civil society can be the best watchdog over governments
and the media. This would restore and balance the polity and accord a semblance of normalcy
among the institutions of the country.

7. BIBLIOGRAPHY

1. DIVAN GORADIA MADHAVI, FACETS OF MEDIA LAW, FIRST EDITION,

2006, EASTERN BOOK COMPANY, LUCKNOW.

WEBLIOGRAPHY

2. https://www.lawctopus.com/academike/fair-trial-judiciary-media-need-balance/
access on 26 October at 10:15 a.m.

RTI AND MEDIA LAW Page 14

 MEDIA TRIAL AND JUDICIARY

3. https://www.lawteacher.net/free-law-essays/commercial-law/effect-of-trial-by-media-
before-courts-law-essay.php access on 26 October at 11:00 a.m.

4. http://www.legalserviceindia.com/article/l237-Trial-By-Media.html access on 26
October at 12:00 p.m.

RTI AND MEDIA LAW Page 15