DISSERTATION

School of Law

University of Petroleum and Energy Studies

THIS DISSERTATION IS SUBMITTED IN PARTIAL FULFILLMENT OF THE DEGREE OF

B.A.LL.B.(HONS.) WITH SPECIALIZATION IN Energy LAWS

B.A.LL.B.(HONS.) WITH SPECIALIZATION IN Energy LAWS

ACADEMIC YEAR: 2017-2022

“CONCEPT OF MEDIA TRIAL AND INDIAN CRIMINAL JUSTICE SYSTEM”

Submitted Under the Guidance of: Ms.Ishita Sharma

NAME: PINTU RAM

SAP ID: 500060941

ENROLLMENT NO: R450217075

 DECLARATION/UNDERTAKING OF ORIGINALITY

I, Pintu Ram having Enrolment No R450217075 SAP ID 500060941 declare that the
Dissertation /Synopsis titled is “CONCEPT OF MEDIA TRIAL AND INDIAN CRIMINAL
JUSTICE SYSTEM” the outcome of my original work conducted under the supervision of
Ms.Ishita Sharma at School of Law, University of Petroleum and Energy Studies, Dehradun.
I undertake full responsibility of the contents of this Dissertation Synopsis complying with
the ‘Academic Integrity’ policy of UPES and I understand that if this work is found in
violation of the same, this may result in rejection of Synopsis and entail appropriate
disciplinary proceedings as per Rules of the University.

Signature [Name of the Student] – Pintu Ram

Endorsement by the Mentor:

Date of final Submission. 29/04/2021

Antiplagiarism Check /Similarity found:

Late Submission N/A

Signature [Name of the Mentor] – Ms.Ishita Sharma

TITLE: “CONCEPT OF MEDIA TRIAL AND INDIAN CRIMINAL JUSTICE
SYSTEM”

1. INTRODUCTION:- India is world’s largest democracy. The Government of the

Union of India constitutes of four pillars. These are Executive, Legislature, Judiciary
and the fourth estate. This fourth estate is the media. The Indian Constitution does not
contain any specific provision for the freedom of media and press. The media derives
its rights from the right to freedom of speech and expression available to the citizens
under Article 19(1) (a) of the Indian Constitution1. Thus, the media has the same
rights—no more, no less than any individual to write, publish, circulate or broadcast.
In a case that arose in pre independent India, the Privy Council held- “The freedom of
the journalist is an ordinary part of the freedom of the subject and to whether lengths
the subject in general may go, so also may the journalist, apart from the statute law,
his privilege is no other and no higher. No privilege attaches to his position.”2
Although no special provision was made to safeguard the rights of the media, the
Hon’ble court has time and again confirmed that the rights of the press are implicit in
the guarantee of freedom of speech and expression under Article 19(1) (a) of the
Indian Constitution.
The Supreme Court in Romesh Thapper v. State of Madras 3 stated that freedom of
speech and expression includes freedom of press. It stated “Turning now to the merits
there can be no doubt that freedom of speech and expression includes propagation of
ideas, and that freedom is enshrined by the freedom of circulation”.
At present, sec. 3(2) of the Contempt of Courts Act, 1971 grants full immunity 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 is not issued. Such publications would be contempt only if a criminal
proceeding is actually pending i.e., if charge sheet or challan is filed or summons or
warrant have been issued by the Court by the date of publication. 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 it plays an active role in bringing the accused
to hook. Especially in the last two decades, the advent of cable television, local radio
1
Article 19(1) (a) - Every citizen shall have the Right to Freedom of Speech and Expression
2
Channing Arnold v. Emperor, AIR 1914 PC 116
3
(1950) SCC 594
 networks, the internet and the social media 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. Trial by Media: In India, the media has played a historical role in informing the
public about social and economic evils. The media have informed the public about
the tremendous poverty in the country, the suicide of farmers in various States, the so
called honour killing in many places by Khap Panchayats, corruption and so on.
However, the media also have a great responsibility to see that the news they present
is accurate and serve the interest of the people. If the media convey false news that
may harm the reputation of a person or a section of society, it may do great damage
since reputation is a valuable asset for a person. Even if the media subsequently
corrects a statement, the damage done by it may be irreparable. Hence, the media
should take care and carefully investigate any news item before reporting it.
Media comments on pending cases, especially on criminal cases involving life and
liberty of a citizen, are a delicate issue and should be carefully considered. Sometimes
it may become difficult for the judges not to get influenced by such news and thereby
deprive a citizen of this valuable right. Also, often the media publish correct news but
place too much emphasis on the frivolous news such as those concerning the
activities of the film stars, models, cricketers, and so on, while giving very little
prominence to much more important issues that are basically socio-economic in
nature.4
It has been argued that it is pertinent to recognize the role of media vis- à-vis the
judiciary. George Gerbner states, “Popular entertainment and news via mass media
represent the convention cultural pressures of the social order. The judicial process,
however, represents an effort to adjudicate individual cases according to law.” Trial
by media revolves around the mantra ‘feed what the public is interested in’ and not
‘what is in public interest’. The expression ‘trial-by-media’ describes the impact of
4
Kauser Husain and Srishti Singh, Trial by Media: A Threat to the Administration of Justice, 3 SAJMS 198,
available at: http://sajms.com/wp-content/uploads/2016/07/MEDIA_TRAIL (last visited on April 5, 2018).
 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.5
Trial by media emerged as a term of colloquial origin, indicating perhaps the media’s
assignment to itself the adjudicatory process. The media is often found publishing
opinion and spreading prejudice under the grab of ‘news’. Owing to the colloquial
origin of the term, there exists no comprehensive definition. The Hon’ble Supreme
Court has made an attempt in R.K Anand v. Registrar, Delhi High Court 6to define
the term in the following manner: “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. 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, in public perception the accused is already held guilty and would not be able to
live the rest of their life without intense public scrutiny.” A trial by media amounts to
travesty of justice if it causes impediments in the accepted judicious and fair
investigation and trial.7
Excessive publicity in the media about a suspect or an accused before trial prejudices
a fair trial or results in characterizing him as a person who had indeed committed the
crime, amounting to undue interference with the “administration of justice”. Other
issues about the privacy rights of individuals or defendants may also arise. Public
figures, with slender rights against defamation are more in danger and more
vulnerable in the hands of the media.8
The UN Special Reporter on Freedom of Expression and Opinion received a
submission from the British Irish Watch (now known as Rights Watch UK) against a
very sustained attack by the press on Mrs. Bernadette and Mr. Michael McKevitt who
had been advocating national sovereignty for Ireland and who were claiming the Irish
people’s right to self-determination through a Committee. The media started linking
these two persons to the Oath bombing of 15th August,1998 in which 29 people were
killed. The media attack started even before the police interrogated them. The

5
Zehra Khan, Trial-By-Media: Derailing Judicial Process In India, 1 MLR 91 (2010), available at:
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010 (last visited on April 6, 2018).
6
(2009) 8 SCC 106
7
Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352
8
Law Commission of India, 200th Report on Trial by Media: Free Speech and Fair Trial under Criminal
Procedure Code, 1973 (August 2006), available at: http://lawcommissionofindia.nic.in/reports/rep200. (last
visited on April 6, 2018).
 contents of the representation to the U.N. Reporters by the British Irish Watch quoted
below, fits well into what is happening with the media in our own country.

The representation stated:9 “Guilt by association is an invidious device. In the case of

Bernadette and Michael Mc Kevitt, the media have created a situation where almost
no one in Ireland is prepared to countenance the possibility that they may be innocent,
notwithstanding the fact that neither of them has even been questioned by the police
in connection with the Oath bombing. They have been demonized … such media
campaigns are self-defeating. If the media repeatedly accuses people of crimes
without producing any evidence against them, they create such certainty of their guilt
in the minds of the public that, if these persons are even actually charged and tried,
they have no hope of obtaining a fair trial. When such trials collapse, the victims of
the crime are left without redress. Equally, defendants may be acquitted but they have
lost their good name”.
Not only suspects and accused but victims and witnesses also 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 cue’. Then, whatever gossip 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.
The media also creates other problems for witnesses. If the identity of witnesses is
published, there is danger of the witnesses coming under pressure both from the
accused or his associates as well as from the police. At the earliest stage, the
witnesses want to retract and get out of the 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

9
Rights Watch UK, Submission to UN Human Rights Committee Concerning UK’s Compliance with the Intl.
Covenant on Civil & Political Rights: June 2001, available at: http://www.rwuk.org/advocacy/submission-to-
the-united-nations-human-rights-committee-concerningthe-uks-compliance-with-the-international-covenant-on-
civil-political-rights/ (last visited on April 6, 2018).
 arise during ‘identification parades’ conducted under the Code of Criminal Procedure
for identifying the accused.10

3. Evolution of Media Trials: Although a recently coined phrase, the idea that
popular media asserts a strong influence on the legal process goes back certainly to
the advent of the printing press and probably much further. This is not mean to
include 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. 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. 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. The case is historically important
due to 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

10
Law Commission of India, 200th Report on Trial by Media: Free Speech and Fair Trial under Criminal
Procedure Code, 1973 (August 2006), available at: http://lawcommissionofindia.nic.in/reports/rep200. (last
visited on April 7, 2018).
 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, and
subsequently the jury’s false conviction of her.
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 Hat fill allegedly sending anthrax
through the U.S. mail as a terrorist attack, which resulted in no conviction, but Hat fill
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. 11In the recent past, in India
too, trial by media has assumed significant proportions. Some famous cases that
would have gone unpunished but for the intervention of media are Priyadarshini
Mattoo case, Jessica Lal case, Nitish Katara case to name a few. However, in the
present era of 24X7 news cycles that feed the ratings-driven economics of
commercial TV channels, the more easily a polarizing opinion can be captured in a
hashtag, the greater its likelihood of spinning into the gargantuan numbers that drive
the new media politics of news production and dissemination. This is especially the
case now as news channels compete for eyes, social media shares, and engagement,
the buzzwords for measurement of news value in the new media environment. The
heat index of a media story is proportionate to the amount of controversy it whips up,
capturing the buzz for the next spin cycle. Engagement is the new buzzword in the
24/7 media scape, captured in public callins, comments, and tweets that are live cast
on the show. In this media frenzy for numbers, ratings, and engagement, media trials
have emerged in India as a salient genre for driving public discourse. This genre of
media trials depends on the powerful role of news anchors in shaping the
conversation, replete with hashtags and subtitles. Fashioned as reality shows, the

11
Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, November 13, 2015, available
at: https://www.lawctopus.com/academike/media-trials-india/ (last visited on April 4, 2018)
 trials are replete with multiple screens, multiple camera angles, comments screens,
and floating headlines. The genre looks somewhat like this, with some variances in
format and modality: The news anchor introduces a topic of debate, identifies the
problem, and holds a trial with pundits offering different views around the trial. At
the heart of the media trial format is an issue or an individual that is being tried.
The performance of the news anchor in this genre depends upon his/her mastery at
whipping up the story, making up the controversy and spinning it to cater to public
emotions. The power of media trials as a genre to speak to public emotions also limits
the possibilities of debate, argumentation, and dialogue. Small snippets of
conversations, eked out from broader events, are framed and flashed onto the screen,
anchoring the shouting matches that build around them. The conclusions of these
trials are foreclosed, the judgment already having been decided upon even before the
trial is set in motion. In this sense then, media trials in new media cycles are staged
performances, tied to sentiment analysis, audience moods, and market assessment of
ratings.12

It seems that media has now reincarnated itself into a ‘public court’ and has started
interfering into court proceedings.

4. Legality of Trial by Media:

Freedom of Speech and Expression: The Constitution of India does not separately
refer to the freedom of the press or of the electronic media as a fundamental right in
Part III but through various judicial pronouncements these rights are said to be treated
as part of the ‘Freedom of speech and expression’ guaranteed by Article 19 (1)(a) of
the Indian constitution. The guarantee is subject to ‘reasonable restrictions’ which can
be made by legislation to the extent permitted by Article 19(2).

The print media and the broadcast media has taken the responsibility to inform the
public about the functioning of the elected government. This includes all other
matters in which public have a right to know. Right to discussion and criticize forms

12
Mohan J Dutta, Frenzied Media Trials Are All About Audience Numbers, The Wire, February 8, 2016,
available at: https://thewire.in/media/frenzied-media-trials-are-all-about-audience-numbers (last visited on April
8, 2018)
 an active part of this right. In Romesh Thappar v. State of Madras13, the Supreme
Court has included press in the definition of freedom of speech or expression.

Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers

(Bombay) (P) Ltd. v. Union of India 14has 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 right of making a choice, free and general discussion
of public matters is absolutely essential.15 This explains the constitutional viewpoint
of the freedom of press in India.

In Printers (Mysore) Ltd. v. CTO16 the Supreme Court 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.

Freedom of press 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.
All national courts have a primary duty to uphold this freedom and invalidate all laws
13
(1950) SCR 594
14
(1958)1SCC 641
15
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
16
(1994) 2 SCC 434
 or administrative actions which interfere with this freedom, as contrary to the
constitutional mandate.17
In R. Rajagopal v. State of T.N18 the Supreme Court of India has held that freedom of
the press extends to engaging in uninhibited debate about the involvement of public
figures in public issues and events.
In L.I.C. v. Manubhai Shah19the Supreme Court reiterated that freedom to circulate
ones views can be by word of mouth or in writing or through audio-visual media.
This right to circulate also includes the right to determine the volume of circulation.20

The press enjoys the privilege of sitting in the Courts on behalf of the general public
to keep them informed on matters of public importance. The journalist therefore may
attend proceedings in Court and publish fair reports. This right is available in respect
of Judicial and Quasi-Judicial tribunals.21 However this is not an absolute right. There
are also other important considerations, for instance the reporting of names of rape
victims, children, juvenile, woman is prohibited. This restriction is placed because of
their weak position in the society that makes them vulnerable to exploitation.
Therefore in the interests of justice, the court may restrict the publicity of Court
proceedings.22 The court can order a trial to be held in camera exercising its inherent
power under sec. 151 of the Civil Procedure Code, 1908.

A democratic society necessitates that the public shall be a part of the discussions on
policy matters. They need to know the details of debates, as transparency in
governance is a must for the proper functioning of a democratic society. The press
therefore also enjoys the right to report legislative proceedings. This right of the press
to true reporting of parliamentary proceedings is protected by the Constitution. 23 It
also gives protection to true reporting of the proceedings of State Assemblies. A
similar protection is provided in the Parliamentary Proceedings (Protection of
Publication) Act, 1977.

17
Indian Express Newspapers (Bombay) (P) Ltd. V. Union of India, (1985) 1 SCC 641
18
(1994) 6 SCC 632
19
(1992) 3 SCC 637
20
Sakal Papers v. Union of India, AIR 1962 SC 305
21
Saroj Iyer v. Maharashtra Medical (Council) of Indian Medicine, AIR 2002 Bom .95
22
Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1
23
Article 361-A of the Constitution of India
 Immunity under the 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 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 threat 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. This was recommended by the Law
Commission in its 200th report.

It is because of such loopholes that 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.24

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. 25
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

24
Zehra Khan, Trial-By-Media: Derailing Judicial Process In India, 1 MLR 93 (2010), available at:
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010
25
A.G. v. Times Newspaper, (1973) 3 All ER 54
 political, social, economic and cultural life. It has an educative and mobilising role to
play. It plays an important role in moulding public opinion”.26

However, K G Balakrishnan, the then 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”.27 In the Before Case28, 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.”
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.29

Public participation: Some scholars justify a ‘trail-by-media’ by proposing that the

mob mentality exists independently of the media which merely voices the opinions
which the public already has.30 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.31 Stifling this voice will
amount to stifling democracy.

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

26
In Re: Vijay Kumar, (1996) 6 SCC 466.
27
https://timesofindia.indiatimes.com/city/mumbai/Media-must-not-run-parallel-trials
28
Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693
29
G.N. Ray, “Should there be a Lakshman Rekha for the Press”, available at:
http://presscouncil.nic.in/speech7.htm (last visited on April 8, 2018).
30
Navajyoti Samanta, “Trial by Media-Jessica Lall Case”, available at: http://ssrn.com/abstract=1003644
31
Prabhsahay Kaur, “Freedom of Press vis-à-vis Responsible Journalism”, available at:
www.legalserviceindia.com /articles/fre_pre_v.htm
 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.”32
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”.33 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”34and “encourage the growth of a sense of responsibility and public
service among all those engaged in the profession of journalism”35.

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. 36 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 India37, 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

32
K.G. Balakrishnan, The Constitution, The Media and the Courts, The Fourth K.S. Rajamony Memorial Public
Law Lecture, Kerala
33
Press Council Act, 1978, Section 13(1)
34
Press Council Act, 1978, Section 13(2) (c)
35
Press Council Act, 1978, Section 13(2) (d).
36
Section 14(1) of the Press Council Act, 1978
37
(2007) 1 SCC 143
 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 India 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.

5. Media Activism: Justice Katju and P. Sainath have attacked the media for
focusing attention on “nonissues” and “trying to divert attention of the people from
the real issues to nonissues”38and “stifling of smaller voices”.39 Who will watch the
watchdog as it abdicates its role as an educator in favour of being an entertainer? 40 A
line between informing and entertaining must be drawn. 41 Due to extensive media
propaganda, justice and rule of law are no longer about the process but the outcome.

Public opinion exercises an indirect influence over the criminal justice system.
“Justice should not only be done, it should manifestly and undoubtedly be seen to be
done”42. Scrutiny by the media may give rise to psychological pressures and could
possibly taint verdicts to conform to public opinion rather than the evidence offered at

38
Markandey Katju, “Ideal and reality: Media’s role in India”, The Hindu, Aug. 19, 2008
39
P. Sainath, “Lost the Compass?” Outlook India, Oct. 17, 2005
40
Ramachandra Guha, “Watching the Watchdog-Time for the press to look within”, The Telegraph, May 10,
2008, available at: https://www.telegraphindia.com/1080510/jsp/opinion/story_9244220.jsp (last visited on
April 6, 2018)
41
Nancy L. Trueblood, “Curbing The Media: Should Reporters Pay When Police Rides Along Violate
Privacy?”, 84 Marq. L. Rev. 541 (2000),
42
R v. Sussex Justices: Ex parte McCarthy, 1924(1) KB 256
 trial.43 Justice Bilal Nazki said that the credibility of a judge is at stake when a trial by
media declares a person guilty but the judge gives a differing opinion based on facts.

In Labour Liberation Front v. State of Andhra Pradesh 44, the High Court of
Andhra Pradesh indicated the abyssal levels, to which the norms of journalism have
drifted. Justice L. Narasimha Reddy frowning upon the practice of ‘trial by media’
stated: “…the freedom of the prosecuting agency, and that of the Courts, to deal with
the cases before them freely and objectively, is substantially eroded, on account of the
overactive or proactive stances taken in the presentations made by the print and
electronic media. Once an incident involving prominent person or institution takes
place, the media is swinging into action and virtually leaving very little for the
prosecution or the Courts to examine the matter. Recently, it has assumed dangerous
proportions, to the extent of intruding into the very privacy of individuals. Gross
misuse of technological advancements, and the unhealthy competition in the field of
journalism resulted in obliteration of norms or commitment to the noble profession.
The freedom of speech and expression which is the bed rock of journalism, is
subjected to gross misuse. It must not be forgotten that only those who maintain
restraint can exercise rights and freedoms effectively.”

6. 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

43
Breheny, Brian V. and Kelly, Elizabeth M., "Maintaining Impartiality: Does Media Coverage of Trials Need
to Be Curtailed?”,10 Journal of Civil Rights and Economic Development 383 (1995),
44
2005 (1) ALD 740.
 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.45

The power of press can also be understood in the basis of how the people respond and
react to the news. In few cases media has been quite powerful in forming public
opinion. Jessica Lal and Priyadarshini Mattoo cases are the positive example of role
of media in order to meet with ends of justice. There was widespread outrage and
protests after both the murder cases were reported. People had realized that justice
had been denied and it was necessary to protest and speak aloud. Both the cases
involved highprofile people and this fact made the people all the more interested and
aware of the proceedings of the cases. We see that media interference helped in the
rightful and proper closure of the case. The two murder cases are classic examples of
reactive and responsible journalism which helped citizens get their right.

Jessica Lal Murder case is one of the best examples of how investigative journalism,
if done right can change the whole case. The incident took place on the night of April
29, 1999 during a party thrown by one of the high profile socialite, Bina Ramani at
Tamarind Court where the model Jessica Lal used to work as a bartender. The night
concluded with an intoxicated Sidharth Vashisht better known as Manu Sharma
shooting Jessica Lal at point blank range as she refused to serve him a during after the
closing hours. The important fact which could not be ignored here in this case was
that Manu Sharma was the son of Vinod Sharma, a prominent Congress leader in
Haryana.46

45
Trial by Media: Looking beyond the pale of legality, July 12, 2011
46
Kathakali Nandi, Investigative Role of Media: Responsibility To The Society, Global Media Journal
 The murder was a high profile murder case which involved some influential people as
well as. But the sad part of the case was that all the witnesses were influenced by the
father of Manu Sharma and a total of 32 witnesses became hostile. Manu Sharma
requested to the court that someone from his family was ailing and after coming out
form the jail he was seen partying in a night club in Delhi. The case was considered
close as per the conclusion of judicial process and passing of a verdict. However, this
thing did not seem to agree with the public. The public decided to use the pull of
media to express their dissatisfaction with the verdict. There were protests in every
part of the country and media acted like the most indispensible mouth piece to carry
the momentum which changed the waves of injustice happened in the Jessica Lal
case.

The drastic effect of media intervention led to pressuring the reopening of the case.
Subsequently the case was reopened and the verdict was reversed with Manu Sharma
being convicted for the murder of Jessica Lal. The whole case was driven by the
media and had it not been for them, Jessica Lal’s plea for justice would have gone
unnoticed. It stands as an example of media intervention bringing about a positive
impact.

The case of S.K. Singh vs. State through CBI47 popularly known as the
Priyadarshani Matto murder case was similar to the Jessica Lal murder case. The case
started with Santosh Kumar harassing and following a 25 year old law student. Even
after regular filing of complaints against him, no strict action was taken against him
as his father was soon to be Additional Commissioner of Police in Delhi. Not being
held for stalking or harassment, Santosh Kumar entered the house of Priyadarshini
and brutally murdered her after raping her. The accused was earlier acquitted by the
trial court.

The whole case took place at the time when an order for acquittal had been passed for
the Jessica Lal Murder case. At that point of time, the public outrage was at its peak
and media decided to intervene to settle the matter. In the midst of all this, CBI
appealed against the verdict and the case was reopened. The judgement delivered by
the trial court was revered and the Delhi High Court found Santosh Kumar guilty and
47
Santosh Kumar Singh v. State through the CBI, Criminal Appeal No. 87 of 2007, Supreme Court of India.
 sentenced him to death. The High Court decision was widely perceived in India as a
landmark reversal.

In State of Maharashtra v. Rajendra Jawanmal Gandhi 48 Supreme Court held that

a trial by press, electronic media or by way of a public agitation is the very anti-thesis
of rule of law and can lead to miscarriage of justice. A Judge is to guard himself
against such pressure.

In Anukul Chandra Pradhan v. Union of India49, the Supreme Court observed that
“No occasion should arise for an impression that the publicity attached to 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”.

In Saibal v. B.K. Sen50 it is said by apex court that “It would be mischievous for a
newspaper to systematically conduct an independent investigation into a crime for
which a man has been arrested and to publish the results of the investigation. This is
because, trial by newspapers, when a trial by one of the regular tribunal is going on,
must be prevented.

7. Media Trial and Criminal Justice System: According to our law, a

suspect/accused is entitled to a fair procedure and is presumed to be innocent till
proved guilty in a Court of law. None can be allowed to prejudge or prejudice his
case by the time it goes to trial. There is today a 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 prejudicial impact on the
suspects, accused, witnesses and even judges and in general, on the administration of
justice.

 Media and Right to Fair Trial: The Right to Fair Trial flows from the wider
sense of the Right to Life and Personal Liberty and is an integral part of the

48
(1997) 8 SCC 386
49
(1996) 6 SCC 354
50
AIR 1961 SC 633
 criminal judicial system in India. The Right to Fair Trial covers many other
rights that include the right to be presumed innocent unless proved guilty, not
being compelled to be a witness against oneself and the doctrine of Double
Jeopardy, and this right is no less important than the other six Fundamental
Rights. Therefore, the Right to a fair trial is an absolute right of every
individual within the territory of India vide Articles 14, 20, 21 and 22 of the
Constitution of India. The prominent status of the Article 20, that is, Right to
Protection in respect of conviction for offences, and Article 21, can be
understood from the fact that these crucial rights cannot be suspended even
during an Emergency.51
In the specific case of Zahira Habibullah Sheikh v. State of Gujarat52, the
Supreme Court explained that a “Fair trial would obviously 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.”
In context to the aforementioned principle of ‘Fair Trial’, the provision of the ‘24
Hour Rule’ mentioned under Article 22(2) of the Indian Constitution is of great
relevance. It states that every person who is arrested and detained in custody shall be
produced, within 24 hours, to the nearest Magistrate. The arrest of the accused is
fixed in the beginning itself. This is because if any media publication is made after
the arrest, pertaining to the person’s character, his previous convictions or his
confessions (if any), the person’s case will be prejudiced. It will be discriminatory
even in the bail proceedings when issues arise as to whether bail is to be granted or
rejected, or as to what conditions are to be imposed and whether there is a need for
police or judicial remand. Such publications may also affect the subsequent trial that
takes place. This point of view was broadly emphasized by the Supreme Court in
Maneka Gandhi v. Union of India.53 It was stated that so far as liberty is referred to
in Art. 21, the ‘procedure established by law’ in Art. 21 must be a fair, just and done
by a reasonable procedure.
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

51
Gisborne Herald Co. Ltd. v. Solicitor General, 1995 (3) NZLR 563 (CA)
52
Zahira Habibullah Sheikh v. State of Gujarat (2004) 4 SCC 158
53
Maneka Gandhi v. Union of India, AIR 1978 SC 597
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. The Press Council
of India issues guidelines from time to time and in some cases, it does take action.
But, even if ‘apologies’ are directed to be published; they are published in such a way
that either they are not apologies or the apologies are published in the papers at places
which are not very prominent. The most objectionable part, and unfortunate too, of
the recently incarnated role of media is that the coverage of a sensational crime and
its adducing of ‘evidence’ begins very early, mostly even before the person who will
eventually preside over the trial even takes cognizance of the offence, and secondly
that the media is not bound by the traditional rules of evidence which regulate what
material can, and cannot be used to convict an accused. In fact, the Right to Justice of
a victim can often be compromised in other ways as well, especially in Rape and
Sexual Assault cases, in which often, the past sexual history of a prosecutrix may find
its way into newspapers. Also, the media treats seasoned criminal and the ordinary
one, sometimes even the innocents, alike without any reasonable discrimination. They
are treated as a ‘television item’ keeping at stake the reputation and image. Even if
they are acquitted by the court on the grounds of proof beyond reasonable doubt, they
cannot resurrect their previous image. Such kind of exposure provided to them is
likely to jeopardize all these cherished rights accompanying liberty.

 Media Trial and the Right to be Legally Represented: Another perturbing

consequence of media trial that goes unmarked is the enormous amount of
pressure put on the lawyers to not take up the case of the accused, thus forcing
these accused to go to trial without any defence. This is in complete violation
of the Principles of Natural Justice. Every person has a right to be legally
represented by a lawyer of his choice and, through the same, put his point
before the adjudicating court and no one can debar him from doing so. Once
the lawyer decides to advocate the trial for the accused, especially in a
sensational case, the pressure on the lawyer only multiplies; he has to take the
plunge with his reputation. In an interesting case, the media was questioning
the morality of celebrated senior lawyer Mr. Ram Jethmalani in having
accepted the brief and for having appeared for accused Manu Sharma in
Jessica Lal Case, clearly failing to understand its own role and that of other
 stake holders in criminal justice system. A senior editor of the 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 a result of this, one of the most celebrated
lawyer of the country Mr. Gopal Subramaniam appeared on behalf of the state
and the case from Manu Sharma’s side was handed over to a mediocre lawyer.
Have we lost all faith in the judiciary that we dread the thought of giving
equal opportunity to defend? During the 26/11 trial, Abbas Kazmi, the lawyer
of Ajmal Kasab, who was the main suspect in the case, said that he was
deeply hurt and distressed with the harassment meted out to him, by the media
(largely) and the Public Prosecutor. The media and the prosecutor
foregrounded the fact that Mr. Kazmi and the accused belonged to the same
religious sect, and made it work in their benefit by calling him a “Terrorist
Lawyer” and equating him to the main conspirators in the case.

Another example of this would be the serial-killings in Noida. Due to

extensive media coverage of police investigations, the owner of the house
where the corpses were found, Mohinder Singh Pandher, and his domestic
help Surendra Kohli, the prime suspects of having committed these crimes
bore the brunt of sensational journalism. Influenced by media coverage, much
of it proclaiming that the two men had already confessed to the killings, the
local Bar Association announced that it had decided that no advocate from
Noida would defend Pandher and Kohli in court. 54 The media forgets that
right to have a lawyer of one’s choice is a fundamental right under the Indian
Constitution.55

 Media Trial and the Right to Privacy: Article 12 of Universal Declaration

of Human Right enunciates, “No one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence or to attacks
upon his honour and reputation. Everyone has the right to the protection of the
law against such interference or attacks.” The following observations of the

54
“Trial by Media”, Human Rights Feature, April 27, 2007,
55
Ranchod Mathur Wasawa v. State of Gujarat (1974) 3 SCC 581
 Supreme Court in R. Rajagopal v. State of Tamil Nadu56 are true
reminiscences of the limits of freedom of press with respect to the right to
privacy: “A citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child bearing and education among other
matters. No one can publish anything concerning the above matters without
his consent, whether truthful or otherwise and whether laudatory or critical. If
he does so, he would be violating the right to privacy of the person concerned
and would be liable in an action for damages. Position may, however, be
different, if a person voluntarily thrusts himself into controversy or voluntarily
invites or raises a controversy.”

In the Aarushi murder case, the newspapers were flooded with the transcripts
of the deceased girl’s emails and casting aspersions on her character.

In Parshuram Babaram Sawant v. Times Global Broadcasting Co. Ltd. 57,

Retd. Justice P.B. Sawant‘s photograph was flashed as Justice P.K. Samantha,
Retd. Justice of Calcutta High Court, who was alleged to be involved in the
famous Provident Fund scam of 2008. It gave a false impression among
viewers that the plaintiff was involved in the scam. Though the said channel
stopped publishing the photograph, when the mistake was brought to their
notice, no corrective or remedial steps to undo the damage were taken by the
channel on their own. The plaintiff by his letter dated 15/9/2008 called the
defendant to apologize publicly with damages of Rs 50 crores. By its reply the
defendant apologized but no mention of damages was there. It was a belated
action hence plaintiff demanded Rs 100 crores. The Court held that the
defendant was entitled to pay Rs 100 crores to the plaintiff. The Bombay High
Court ordered the Times to deposit 20 crores in cash and 80 crores in bank
guarantee, before taking up its appeal against the Pune trial Court in the
defamation case.58 This was upheld by the Supreme Court.

56
AIR 1995 SC 264.
57
Special Civil Suit No. 1984/2008 in Pune trial court
58
‘S.C. asks Times Now to deposit Rs 100 crores before H.C.takes up its appeal in defamation case’, The Times
of India, November 15, 2011,
 In November 2013, Tarun Tejpal then the editor of the news magazine
Tehelka, offered to “recuse” himself for six months over a “bad lapse of
judgement” that, allegedly, involved sexual harassment of a female colleague.
The media pursued the story so relentlessly that the police acted considerably
faster than usual to investigate the case. Tejpal was arrested on rape charges in
early December, and has been behind bars since.

Also in November 2013, The Times of India drew attention to a blog on

which a legal intern claimed to have been sexually harassed by an unnamed
former Supreme Court judge. The papers’s report was seen by the Chief
Justice of the Supreme Court, who started an enquiry that, in December,
named AK Ganguly as the alleged offender. After the Chief Justice’s
committee found that the intern’s testimony prima facie disclosed “an act of
unwelcome behaviour” on the former judge’s part, Ganguly and his associates
tried to rebut the findings by alleging that he was being framed by “powerful
interests”. To counter his narrative, Additional Solicitor General Indira
Jaising, with the intern’s consent, published excerpts from her affidavit in the
Indian Express, which outlined the alleged assault in considerable detail. The
release of those details led to media demands for a criminal investigation,
prompting the police to contact the intern. In response to the pressure on her
to file a police complaint, the intern told the media, “I request that it be
acknowledged that I have the discernment to pursue appropriate proceedings
at appropriate times. I ask that my autonomy be respected fully.” The ensuing
furore, however led Justice Ganguly eventually resigning from his position as
the head of West Bengal’s human rights commission.59

In each of these cases, what began as an asymmetrical fight—with the men

immeasurably more powerful than the women—became a more equal battle
after the media decided to back the women making the allegations. But while
this might have encouraged some women with similar allegations to speak
out, the subsequent fallouts might have deterred others.

59
Supriya Sharma, Trial and Error, The Caravan, February 1, 2014, available at:
http://www.caravanmagazine.in/perspectives/trial-and-error (last visited on April 9, 2018)
 Complications arose from the manner in which these events were covered.
Take, for instance, the Tehelka case, in which the female journalist’s private
complaint to the magazine’s management was leaked and quickly posted on
news websites in full detail. The victim was distressed at this violation of her
privacy. Was it not possible, to expose the perpetrators of sexual violence
without infringing upon a victim’s wishes, or upon journalistic injunctions
against bias? Should the media privilege a victim’s right to privacy over the
need to inform the public of all available facts? Would measured restraint
keep the horrors of sexual violence hidden from public view? Obviously the
readers could be informed of “the nature and seriousness of the allegations in
as much detail as possible not just without violating the law but also without
intruding into the privacy of the victim. Violations of privacy by the media
could create even more silence around sexual assault, since women “just
wouldn’t come out and complain” if it seemed that their complaint might
indiscriminately be made public.
Reporters are trained to see details as an unmitigated good: the greater the
density of detail, the better the report. But in cases of sexual violence, the
journalistic challenge lies not in the simple accumulation of details, but in
their careful selection. A news report that relays only the essential details of
an alleged assault might make for less riveting copy, but it is also less likely to
impinge on the privacy of a victim or unfairly denounce an alleged assailant.

There may well be exceptions to this. For instance, in cases where the police
have failed to act or there has been a miscarriage of justice, it might become
incumbent on the media to delve into greater detail. But the truth is that
restraint in reporting does not amount to a conspiracy of silence. Editors are
right to withhold the explicit details of sexual assaults even as they give
prominence to the allegations and subsequent prosecution of such crimes. If
their larger project is to raise public awareness about sexual violence, they
might accomplish more by presenting narratives of proven crimes rather than
sensitive details of cases still under investigation or trial. Sobriety in news
reporting can serve the cause of justice.60

60
Supriya Sharma, Trial and Error, The Caravan, February 1, 2014, available at:
http://www.caravanmagazine.in/perspectives/trial-and-error (last visited on April 9, 2018)
  Influence of Media Trial on Judges: With the sudden vicious
onslaught of verdicts by the activist media in matters that are sub judice, one
wonders its impact on the administration of justice and the judicial personnel.

Article 10 of the Universal Declaration of Human Rights (1948), deals with

the right of an accused “in full equality to a fair and public hearing by an
independent and impartial tribunal in the determination of his rights and
obligations and of any criminal charge against him”. 61 Judges from various
jurisdictions have not denied the influence of media on the judges. In Re. P.C.
Sen62, it was stated that the real danger of prejudicial comments in newspapers
or by other media of mass communication that must be guarded against is the
“impression that such comments might have on the Judge’s mind or even on
the minds of witnesses for a litigant”.

The frailty of the judicial system stems from the fact that judges are human
beings and undue influence of irresponsible expression may taint the rational
process of adjudication.

This limitation has been admitted by the Supreme Court of India, wherein it
ruled, “prejudice, a state of mind, cannot be proved by direct and positive
evidence. Therefore, it cannot be judged on the basis of an objective
standard.”63 The practice of ‘trial-by-media’ has been deprecated by the
Courts, “No journalist can assume the role of an investigator, in a pending
case, and then attempt to influence the mind of the Court”.64 But in the recent
past, the Indian judiciary has tacitly denied any influence of media, both print
and electronic, upon the judges. In Balakrishna Pillai v. State of Kerala 65,
the Apex Court stated, “the grievance relating to trial by press would stand on
a different footing. Judges do not get influenced by propaganda or adverse

61
Article 10 of the Universal Declaration of Human Rights, UNGA Res. 217 (LXIII), 1948
62
AIR 1970 SC 1821
63
Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd., (1994) 6 SCC 19
64
Rao Harnarain v. Gumori Ram, AIR 1958 Punjab 273
65
AIR 2000 SC 2778
 publicity.” Another example is the case of Zee News v. Navjot Sandhu 66 in
which the Supreme Court held that media interviews do not prejudice judges.

The possibility to gauge the extent of the media influence in the outcome of
the judicial process is often precluded because of the contempt proceedings
under these jurisdictions. Additionally, no judge is likely to attribute the
eventual ruling in any matter to the reports printed by the media. Therefore,
any attempt to conduct any empirical exploration to determine the influence of
media on judges is nipped in the bud. Most scholars have admitted that the
erosion of judicial independence is hard to track and difficult to measure.

Since most of the documentation of criminal justice system available to the

public is based on media reports available, it will resonant the inherent bias of
the reporter.67 The disparity between the reality and the public knowledge of
that reality can be attributed to the media. The light will determine the
shadows cast. Some accused persons are lovable, some are martyrs and some
turn out to be criminals.68

Even if one discounts the bias created by the media, the accuracy of media
reportage comes under the microscope. Media dependency theory suggests
that people who have little or no direct experience with certain social
phenomenon rely more heavily on the media for their picture of reality.

Another important aspect is that a charge-sheet is filed in the court of first

jurisdiction which is a magistrate’s court the youngest member of the
judiciary with the least experience. Although the author does not suggest that
these judges are in anyway amenable to be influenced by pressures from the
media. But their experience may be limited as they are young members of the
judiciary, and when they take cognisance of an offence, this kind of pressure
surrounding a case can affect their thought processes. The potential for
miscarriage of justice is always there. When the potential is there, we have to
66
(2005) 11 SCC 600
67
Julian V. Roberts, Public Opinion, Crime, and Criminal Justice 161 (The University of Chicago Press,
Chicago, 1st edn., 1997)
68
Navajyoti Samanta, “Trial by Media-Jessica Lall Case”, March 19, 2008
 deal with its fallout. This is not about determining the guilt or innocence of a
particular accused person. It is about upholding constitutionally enshrined
principles of fair trial and fair investigation.

Investigative agencies may not have a case which is sustainable in a court of

law they may not have a case which is backed by solid evidence. However,
they put out insinuations and make tall claims to the media which faithfully
reports such claims. And therefore, everybody glosses over the inadequacies
of the case because they have created this atmosphere around the case
wherein, on occasions, it becomes difficult to separate from fact.69

8. Article 19 and Article(s) 14, 21: Balancing Rights of Free Speech and

Due Process: In Express Newspapers v. Union of India,70 the Supreme Court

exhaustively dealt with freedom of the press but stated that it cannot be unbridled.
Like other freedoms, it can also suffer reasonable restrictions. Balancing between the
rights of people to know and presumption of the accused to be innocent till he is
found guilty by a competent court has become inevitable. Neck to neck competition
regarding publication and coverage among various media houses having a tendency
to interfere with administration of justice has become matter of concern for
legislature as well as judiciary. 71 Under Article 19(1) (a) of the Constitution, the
rights of the freedom of Press have been recognized as Fundamental Rights and under
Article 21 of the Constitution the suspect and under trial and the civil litigant have
Fundamental Right to have a free and fair trial. 72 Therefore balancing between these
two fundamental rights has become inevitable and the time has come that Courts
should give appropriate directions with regard to reporting of matters, in electronic
and print Media, which are sub judice. When rights of equal weight clash, Courts
have to evolve balancing measures based on re-calibration under which both the
rights are given equal space in the Constitutional Scheme.73 The Hon'ble Supreme of

69
Rebecca Mammen John in an interview to The Hoot, Trial by media: how journalists are used, October 27,
2014,
70
AIR 1958 SC 578
71
Rights Watch UK, Submission to UN Human Rights Committee Concerning UK’s Compliance with the Intl.
Covenant on Civil & Political Rights: June 2001
72
Maneka Gandhi v. Union of India, 1978 SCR (2) 621
73
Tony Rogers, “The Meaning of the First Amendment: Freedom of Press”, April 10, 2017
 India in the matter, Sahara India Real Estate Corporation Ltd. and Ors. v. Securities
and Exchange Board of India and Anr 74, constituted a five judge Constitution Bench
when during the pendency of appeal, despite the interim order of the Court, some of
the newspapers published the proceedings of the judgment. The Court laid down
appropriate guidelines with regard to reporting media of matters which is sub judice
including public disclosure of documents forming part of Court proceedings and also
the manner and extent of publicity to be given by media of pleadings filed in
proceeding in Court which are pending. The court suggested following measures:-

A. Prior restraint: Open Justice is the cornerstone of our judicial system. It in stills
faith in the judicial and legal system. However, the right to open justice is not
absolute. It can be restricted by the court in its inherent jurisdiction as done in
Mirajkar's75 case if the necessities of administration of justice so demand. The
court said that orders prohibiting publication for a temporary period during the
course of trial are permissible under the inherent powers of the court whenever
the court is satisfied that interest of justice so requires. Such a temporary
prohibition of publication of court proceedings cannot be said to offend Article
19(1) (a).
B. Contempt of Court Act, 1971: The media has a right to know what is happening
in courts and to disseminate the information to the public which enhances the
public confidence in the transparency of court proceedings. However at times, fair
and accurate reporting of the trial would nonetheless give rise to substantial risk
of prejudice not only in the pending trial but also in any later or connected trial. In
such cases, there is no other practical means other than postponement orders that
is capable of avoiding such risk of prejudice to the trial. The inaccuracy of
reporting of court proceedings will be contempt only if it can be said on the facts
of a particular case, to amount to substantial interference with the administration
of justice.
C. Order of Postponement of publication: Right to freedom of expression under
the First Amendment in US is absolute which is not so under Indian Constitution.
In India the right is restricted by the test of reasonableness and in view of the
Heads of Restrictions under Article 19(2). The absence of any such restrictions
74
(2012)10 SCC 603
75
Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1
 has led the American Courts to evolve techniques or methods to be applied in
cases where on account of excessive prejudicial publicity there is usurpation of
court's functions.

These are techniques such as retrials being ordered, change of venue, ordering
acquittals even at the Appellate stage, etc. The Supreme Court viewed such orders
of postponement of publications/ publicity in appropriate cases, as indicated
above just a neutralizing device, when no other alternative such as change of
venue or postponement of trial is available, evolved by courts as a preventive
measure to protect the press from getting prosecuted for contempt and also to
prevent administration of justice from getting perverted or prejudiced.

In December 2017, a special Central Bureau of Investigation (CBI) Court, hearing

the Sohrabuddin Sheikh and Tulsiram Prajapati fake encounter cases, issued a gag
order prohibiting the press from reporting on the court proceedings. This order
was allegedly issued at the behest of the lawyers for the defence.76

A group of journalists from Mumbai and an association of reporters had then

challenged the gag order. The Bombay High Court, in January 2018, held that the
ban was unjustified and breached the constitutional right to freedom of speech
and expression of journalists.

The judge said the Criminal Procedure Code empowers only high courts and the
Supreme Court to issue such orders and that, too, only in rare cases, and for a
limited period of time….the special Central Bureau of Investigation (CBI) court
had overreached its powers. Such an order could not have been passed merely on
the basis of apprehension of sensationalism expressed by some of the accused.
“The rights of the press are intrinsic with the constitutional right that guarantees
freedom of speech and expression….In reporting on an open trial, the press not

76
Gautam Bhatia, The Gag on Free Speech, The Hindu, December 4, 2017, available at:
http://www.thehindu.com/opinion/lead/the-gag-on-free-speech/article21255129.ece (last visited on April 10,
2018)
 only makes use of its own right, but serves the larger purpose of making such
information available to the general public,” said the judge.77

D. Right to approach the High Court/ Supreme Court: The Supreme Court held
that any person, whether an accused or an aggrieved person, who genuinely
apprehends on the basis of the content of the publication and its effect, an
infringement of his/ her rights under Article 21 to a fair trial and all that it
comprehends, would be entitled to approach the Court and seek an order of
postponement of the offending publication/broadcast or postponement of
reporting of certain phases of the trial (including identity of the victim or the
witness or the complainant). It also held that the Court may grant such preventive
relief, on a balancing of the right to a fair trial and freedom of press, bearing in
mind the principles of necessity and proportionality. Also, such orders of
postponement should be for short duration and should be applied only in cases of
real and substantial risk of prejudice to the proper administration of justice or to
the fairness of trial.
9. Media Trial and 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 civil and criminal.
Criminal contempt has further been divided into three types:
i. Scandalizing
ii. Prejudicing trial, and
iii. Hindering the administration of justice.
One of the most important principles of natural justice is that ‘every accused has a
right to a fair trial’. This principle clubbed with the principle that ‘Justice may not
only be done it must also seem to be done’ gave rise to the provision that media
publications which prejudice trial by courts or otherwise interfere with the
administration of justice amount to contempt of court. There are multiple ways in
which trials are prejudiced. If such cases are allowed to be successful the result 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.78 Commenting on the pending
cases or abuse of party may amount to contempt only when a case is triable by a
77
Bombay HC quashes order gagging media in Sohrabuddin fake encounter case trial, Hindustan Times,
January 24, 2018, available at: https://www.hindustantimes.com/india-news/bombay-hc-quashes-ordergagging-
media-in-sohrabuddin-fake-encounter-case-trial/story-yujtlqWEVGYXm0KlCMfHoJ.html (last visited on April
9, 2018).
78
AIR 1943 Lah. 329
 judge.79 No editor has the right to assume the role of an investigator to try to prejudice
the court against any person.80
The law as to interference with the due course of justice has been well stated by the
then Chief Justice Gopal Rao Ekkbote of Andhra Pradesh High Court in the case of
Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr.81, wherein 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.”

Parties have a constitutional right to have a fait trial in the court of law, by an
impartial tribunal which is not influenced by newspaper dictation or popular
clamour.82 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 democracy
demands fair play and transparency, if these are curtailed on flimsiest of grounds then
the very concept of democracy is at stake.

The obstruction or interference in the administration of justice a person facing trial is

actually ‘denial of fair trial’. The prejudicial publication affecting public which in
term affects the accused amount to denial of fair trial. Prejudicial publication is one
that affects the mind of the judge and suggests the court as to the manner in which 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.83 Our law of contempt however does not prevent
comments before the litigation is started nor after it has ended. In re P.C.Sen 84 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
79
Subhash Chandra v. S.M. Agarwal, 1984 Cri LJ 481
80
Dm v. MA Hamid Ali Gardish, AIR 1940
81
AIR 1975 AP 30
82
Cooper v. People Ex Rel Wyatt, (1889) 13 Colo. 337
83
Leo Roy Frey v. R. Prasad and Ors., AIR 1958 P&H 377
84
AIR 1970 SC 1821
 contempt of Court. In R. v. Gray85, it was stated that 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 contemnor as whether it is calculated to
interfere with the administration of justice.”

In case Sushil Sharma v. The State (Delhi Administration) and Ors 86 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. 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.”

In this case Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr 87, 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

85
(1900) 2 QBD 36
86
1996 Cri LJ 3944
87
AIR 1961 SC 633
 to prejudice the accused or the prosecution. There is no comparison between a trial by
a newspaper and what has happened in this case.”

10. Law Commission Report on Trial by Media: The ‘right to fair trial' is an
integral part of the Indian criminal justice system. Along with the right to privacy, the
right to fair trial flows from the broader fundamental right to life guaranteed by
Article 21 of the Indian Constitution. The right to fair trial comprises many other
rights that include the right to be presumed innocent unless or until proved guilty.
These rights are no less important than the freedom of speech and expression
guaranteed by Article 19(1)(a).

The Law Commission of India in its 200th report, released in August 2006, under the
title “Trial by Media: Free Speech and Fair Trial Under Criminal Procedure Code,
1973” elaborately deals with several aspects of the rights relating to freedom of
speech, freedom of the press, and freedom of fair trial. Law Commission Chairman
Justice M. Jagannadha Rao says that the subject was taken up by the Commission suo
motu, “having regard to the extensive prejudicial coverage of crime and information
about suspects and accused, both in the print and electronic media.”

He explains, “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 prejudicial impact on the suspects, witnesses and even Judges and
in general, on the administration of justice.” He points out that under the Indian
criminal justice system, a suspect or accused is entitled to a fair procedure and is
“presumed to be innocent till proved guilty in a court” and no one “can be allowed to
prejudge or prejudice his case by the time it goes to trial.”

The Law Commission's report expresses concern over the fact that there is very little
restraint in the media insofar as the administration of criminal justice is concerned. It
reminds the media that while freedom of speech and expression is an important right,
it is not absolute inasmuch as the Constitution itself has placed “reasonable
restrictions” on it, with the restrictions encompassing the fair administration of justice
as protected by the Contempt of Courts Act, 1971. Explaining how media actions
affect the administration of justice, the report says that “excessive publicity” about a
suspect or an accused before trial prejudices a fair trial or results in characterising
him as a person who has committed the crime; and that this amounts to undue
interference with the administration of justice, inviting proceedings for contempt of
court against the media.88

The Report recommended various amendments to address the damaging effect of

sensationalized news reports, and accused victimization by media, on the
administration of justice and measures of postponement of proceedings and further
88
S. Vishwanathan, “Freedom of Press and Fair Trial”, The Hindu, May 17, 2010, available at:
http://www.thehindu.com/todays-paper/tp-opinion/Online-Freedom-of-the-press-and-fairtrial/
article16036511.ece (last visited on April 7, 2018).
 said that such powers cannot be vested in the subordinate courts where the criminal
proceedings are 'active'. This is because under the Contempt of Court 1971 Act, the
subordinate courts have no power to take action for contempt. Under Section 15(2),
they can only make a 'reference' to the High Court.

It also reportedly recommends that the High Court be empowered to direct

postponement of publication or telecast in criminal cases. The report noted that at
present, under Section 3 (2) of the Contempt of Court Act, such publications would
be contempt only if a charge sheet had been filed in a criminal case. The Commission
has suggested that the starting point of a criminal case should be from the time of
arrest of an accused and not from the time of filing of the charge sheet. In the
perception of the Commission such an amendment would prevent the media from
prejudging or prejudicing the case.

On November 3, 2006, former Chief Justice of India YK 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?”

The Law Commission of India, in Chapter IX of its above mentioned report has stated
various forms of conduct by the press which constitutes interference in the due course
of administration of justice. These include:
1). Publications concerning the character of accused or previous conclusions;
2). Publication of Confessions;
3). Publications which comment or reflect upon the merits of the case;
4). Photographs related to the case which may interfere with the identification of the
accused;
5). Direct imputations of the accused innocence;
6). Creating an atmosphere of prejudice;
7). Criticism of witnesses;
8). Premature publication of evidence;
9). Publication of interviews with witnesses.

It is pertinent to mention that most of these ingredients have been culled out from
Borrie and Lowe‘s commentary on Contempt law and are not reflected either in statue
or judicial pronouncements in India. The Law Commission states, “There are also a
large number of decisions of the Indian Courts falling under these very headings.”89

11. The Judiciary is not free from human follies:

89
Devika Singh, Shashank Singh, Media Trial: Freedom of Speech VS. Fair Trail, 05 IOSR-JHSS 93 (2015),
available at: http://www.iosrjournals.org/iosr-jhss/papers/Vol20-issue5/Version-4/N020548894. (last visited on
April 8, 2018).
 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 Express90 in the light of the judgment of P.C. Sen91 , 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.92

Justice Frankfurter in the case of John D. Pennekamp v. State of Florida 93 has

observed: “No Judge fit to be one likely to be influenced consciously except by what
he sees or hears in Court and by what is judicially appropriate for his deliberations.
However, judges are also human and we know better than did not forbear how
powerful the pull of the unconscious and how treacherous is the rational process…
and since Judges, however stalwart, are human, the delicate task of administering
justice ought not to be made unduly difficult by irresponsible print. The power to
punish for contempt of court is a safeguard not for judges as persons but for functions
which they exercise. It is a condition of that function indispensible in a free society
that in particular controversy pending before a court and awaiting judgment, human
being, however strong, should not be torn from their mooring of impartiality by the
undertone of extraneous influence. In securing freedom of speech, the Constitution
hardly meant to create the right to influence Judges.”

Several other Reports have also suggested that the judges are likely to get influenced
by the stories published and broadcasted by the media houses. Cardozo, one of the
greatest Judges of the American Supreme Court, in his Nature of the Judicial
Process94 referring to the forces which enter into the conclusion of the judges
observed “the great tides and currents which engulf the rest of the men do not turn
aside and pass the Judges by”. The Canadian Law Reform Commission 95 has taken
the view that while judges may generally be impervious to influence, the possibility
of such influence could not be ruled out altogether, and in the case of judicial officers,
the sub-judice rule served an important function of protecting public perception of
impartiality.

90
1988(4) SCC 592
91
AIR 1970 SC 1821
92
Attorney General v. BBC, 1981
93
(1946) 328 US 331
94
Lecture IV, Adherance to Precedent . The Subconscious Element in the Judicial Process (1921) Yale
University Press.
95
Canadian Law Reform Commission, Contempt of Court : Offences against Administration of Justice
{Working Paper 20, 1977,p 42-43} and Report 17 (1982) at p 30.
 In a case96 where a woman committed suicide in Calcutta in her parents’ house, the
husband of the deceased woman and his family were charged with dowry death under
the Indian Penal Code. The husband subsequently filed a number of documents to
prove that the woman was a schizophrenic psychotic patient, while the parents of the
woman filed documents to prove their allegations of demand of dowry by the
husband and his family. The trial was yet to commence. The lower courts refused to
grant bail. Later the Supreme Court granted interim bail to the accused and while
passing the final orders referred very critically to certain news items in a magazine.
The Court deprecated two articles published in the magazine in a onesided manner
setting out only the allegations made by the woman’s parents but not referring to the
documents filed by the accused to prove that the lady was a schizophrenic. The apex
Court observed, “These types of articles appearing in the media would certainly
interfere with the course of administration of justice”.

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. Sussex Justices: Ex parte McCarthy that97 “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 Ltd98 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 the Supreme Court has considered the view taken by
Frankfurter, J. in Pennekamp v. Florida99 in which Judge of the United States
observed: “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.”

96
M.P. Lohia v. State of West Bengal, 2005(2) SCC 686
97
1924 (1) KB 256
98
(1995) 1 SCC 501
99
328 US 331 : 90 L Ed 1295 (1946)
 In Rajendra Sail v. M.P. High Court Bar Assn100 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 101 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 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.

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.102

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. The PCI also has criminal contempt powers to restrict

100
(2005) 6 SCC 109 per Y.K. Sabharwal, J
101
(1996) 5 SCC 216
102
http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf
 the publication of prejudicial media reports. However, the PCI can only exercise its
contempt powers with respect to pending civil or criminal cases.

12. International Perspective:

A). Universal Declaration on Human Rights: The Universal Declaration of Human
Rights, 1948, also recognises certain rights which should be taken note of. Article 10
deals with the right of an accused ―in full equality to a fair and public hearing by an
independent and impartial tribunal in the determination of his rights and obligations and
of any criminal charge against him.
Article 11 of the Universal Declaration deals with the right to be presumed innocent
and reads thus:
Article 11 (1) Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which he has all the
guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission
which did not constitute a penal offence, under national or international law, at the time it
was committed. Nor shall a heavier penalty be imposed than the one that is applicable at
the time the penal offence is committed.

Article 12 deals with the person’s privacy rights and reads thus:
Article 12: No one shall be subject to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to protection of the law against such interference and attacks.

B). The American Supreme Court and the Circuit Courts, which are akin to our High
Court as they, too, are superior appellate courts& have taken an ambivalent position on
this controversy. Caught between the two warring fundamental rights, the American
Supreme Court began with protecting the rights of the accused, but slowly shifted to
protecting the rights of the media. But in the process, it laid down certain tests for dealing
with the effects of pre-trial publicity and prescribed certain remedies for dealing with
such adverse effects. These tests and remedies could be useful to us as well.

In Sheppard v. Maxwell the Supreme Court of United States was asked to consider
whether Sheppard was deprived of a fair trial in his state conviction for the second-
degree murder of his wife because of the trial judge& failure to protect Sheppard
sufficiently from the massive, pervasive and prejudicial publicity that attended his
prosecution. Speaking for the Court, Clark, J. concluded that Sheppard did not receive a
fair trial consistent with the due process clause of the Fourteenth Amendment and,
therefore, reverse the judgment. The Court laid down the test of; reasonable likelihood; of
prejudicial news prior to the trial preventing a fair trial. If such reasonable likelihood
exists, then the conviction should be overturned. The Court, hence, shifted from the test
of &presumed prejudice to the test of reasonable likelihood of the family of the deceased,
giving version of the tragedy and extensively quoting the father of the deceased as to his
version of the case.

The Indian judiciary has not dealt substantially with the issue of freedom of press versus
the right to fair trial. But this issue has taxed the imagination of the media, both the world
over and in India. In 1994, thirty-nine distinguished legal experts and media
representatives met for three days in Madrid. One of the basic principles, enunciated in
the Madrid Principles on the Relationship between the Media and Judicial Independence.
It is the function and right of the media to gather and convey information to the public
and to comment on the administration of justice, including cases before, during and after
trial, without violating the presumption of innocence. Thus, even the Madrid Principles
do place a limit on the media not to violate the presumption of innocence.

13. Cases:
 In the landmark judgement in R.K Anand vs Delhi High Court:
The Supreme Court examined the important question relating to Trial by Media.
The case arose out of a sting operation carried out by a private television channel,
NDTV to expose the unholy nexus between the prosecution , its witness and the
defence in the famous BMW hit and run case resulting in the death of six persons
by a speeding BMW car driven by the scion of Healthy and influential family.
While the trial was pending from eight years, NDTV telecast a sting operation to
expose the manner in which a senior advocate appearing for the accused was
negotiating, with the help of Special Public Prosecutor, a sell out in favour of
defence. The Special Public Prosecutor and the Defence were held guilty of
contempt of Court and debarred from appearing in the Delhi High Court and its
subordinate court for four months.
In appeal before the Supreme Court, it was contended on behalf of the appellant
that the TV channel had indulged in a trial by media and that it could have
telecasted the sting only after operating permission from the Media. The Supreme
Court rejected this contention holding that Such a course would not be an exercise
in journalism but in that case the media would be acting as some sort of special
vigilance agency for the court. On little consideration the idea appears to the quite
repugnant both from the point of view of the court and the media.

Judgement: The Court held that NDTV was not guilty of indulging in trial by
Media. The Court dismissed R.K Ananad’s appeal and issued notice to him for
enhance of punishment. Public prosecutor appeal was however allowed, quashing
his conviction for criminal contempt but finding him guilty for the misconduct.

 Aarushi Murder Case: The famous double murder case of Noida where
parents were accused of killing daughter and servant hemraj. The media played a
very important role in this case after every high profile case is solved, the media
engages in a intra-industry introspection session on their role in the case. Media
 houses run amok to take credits for the firsts. Blame-storming is the name of the
game.
With the Arushi murder case allegedly solved, the media is engaging in a similar
exercise. This time a debate is ripe on how the media botched up the case. Even
before evidence could have been presented in the courts, the media was already
out with the verdict; not once, but quite a few times. However, since handing out
justice is not the core competency of the media fortunately, they obviously erred.
Of course, they were assisted by the faulty evidence gathering of the Noida police
(the police are too thick-skinned to accept their fault).
The culprits (as discovered by the media) were many. First was Hemraj, the
domestic help (who was later found to be one of the dead). Next was Dr. Rajesh
Talwar (the father of Arushi). Stories about Dr. Talwar‘s illicit relationship with a
colleague and neighbour floated around adding to media‘s masala. Arushi too was
linked with Hemraj. There were a slew of servants and employees who continued
to fall into the net. Targeting innocent people continued like a detective serial on
the tube making for eye-catching headlines until the compounder Krishna, finally
admitted to having killed Arushi, avenging his mistreatment by Dr. Talwar.The
Media was involved to such an extent that the Supreme Court of India on 6 th
August 2008 sharply criticized the media for acting as if it was a super
investigating agency and for tarnishing the reputation of the doctor couple (Rajesh
and Nupur Talwar) whose daughter Arushi Talwar had been murdered.

 Delhi Gang Rape Case: The Delhi gang rape case is once again hogged
media limelight. The reason being the juvenile court is going to give the shocking
case‘s first verdict on one of the six accused – then a minor. In fact, the incident
that took place in December 2012 is etched in the minds of people across the
globe as a horrific event that once again brought to the public debate the issues of
women safety and growing sexual assaults on them. The brutal rape by six men
on a moving bus, which led to the death of the victim, brought people out on
streets, not just demanding safety laws but forcing every home to mull on the
otherwise tabooed issue of gender violence.

There were calls for social reform that were not based on clichés of being holistic
but on equality for men and women in opportunity and access, in education and
familial structures. An important part in raising this debate was played by the
media, both national and foreign. As the news of the rape broke, the media went
into frenzy, not just in tracking the case but in leading people to introspect. A
responsible section of the media asked people to be part of radical reforms the
country required while it continued to give expression to the public grief, the
mourning and reconciliation as people watched in horror the victim‘s final
moments.

However, the media was also accused of activism and leading a trial of its own
while covering the case. As the movement to bring the gang rape victim to justice
went viral, the nation saw widespread protest that spilled on streets across the
country. The media covered the demonstrations day and night, following the
 protesters to every street and corner, giving a voice to their demands for justice
and bringing them to the centre of political debate. Moreover, it exposed the
growing crime statistics, especially in the national capital, against women.
Basically, the media led bare the growing frustrations of an entire emerging
aspiration urban class and generation.

It was amid these reverberations that the media, including print, electronic and
social, was accused of activism. As it catalysed anger among the civil society
groups, prominent dailies such as The Hindu, The Times of India, The Indian
Express, Hindustan Times, and others, continuously published protesters
movement and promoted the movement among masses not only through print but
also through their electronic version.

As the media created a momentum within society and government to focus

on criminal acts and take immediate steps towards preventing such brutal crimes,
there is however no doubt that it got carried away into the usual bickering about
the political parties, bureaucrats and lawyers. There was also an onslaught of
irresponsible story-telling that thrived on indifference, manufactured revolt,
incompetence and lack of transparency in some sections. As the debate around the
rape laws gained momentum, the media itself turned out like a dictator, who
believed every man was a potential rapist and thus, called for stricter punishment,
including capital sentence. There is no doubt that a large section of the media
getting carried away with the heat of the rage that followed the rape, forgot that
laws have to work equally for all rather than take shape according to the popular
narrative.

One is assured that the December 16 gang rape incident will continue to be a
touchstone when covering issues related to women‘s safety and that the
democracy‘s fourth pillar can transform incidents of national shame to national
justice by espousing confidence in institutions that have been created to protect
the citizens of the country.

14. Conclusion: Media has wide reach and a more effective and a more direct
approach to the people. That is why it is called as a fourth pillar of a democratic
society. On the power of media, a U.S. appellate Court judge Learned Hand observed,
“The hand that rules the press, the radio, the screen, and the far-spread magazine,
rules the country.”103 The judicial system should not dismiss, without reflection,
complaints that it is uncreative, close-minded and technophobic concerning the free
press/fair trial issue. Nor should it decline any opportunity to reach out to
communicate to the media and the public, merely because it resents criticism or is
critical of press performance. The media often act and should act as the alter ego of
the society and should therefore faithfully reflect its mood, its thinking and its
problems and report events which affect public interest. While presenting facts it
103
Gary A. Hengstler, The Media’s Role in Changing the Face of U.S. Courts, available at:
http://usinfo.state.gov/journals/itdhr/0503/ijde/hengstler.htm (last visited on April 2, 2018)
 must give their context and discuss their pros and cons to enable people to grasp
properly their significance and to form their informed views to them.

The courts are obliged to respect the freedom of the press because of the essential
societal interests this principle serves: the enhancement of democracy, the vigour of
the marketplace of ideas, self-expression and the public scrutiny of the administration
of justice. However, by doing so, the courts do not endorse those aspects of the media
which tend towards the commercial, the sensational, the shallow or the prurient.

The right to a fair trial does not per se supersede the press right to free speech. The
right to fair trial though read under Article 21 of the Constitution of India is more
concerned with the conduct of the State in affording a fair trial to the accused rather
than a private publisher or a journalist. The view taken by the courts in New Zealand
is laudable: “In the event of conflict between the concept of freedom of speech and
the requirements of a fair trial, all other things being equal, the latter should
prevail.”104 The courts in India have taken a similar view. The Punjab High Court in
Rao Harnarain v. Gumori Ram105 stated that “Liberty of the press is subordinate to
the administration of justice. The plain duty of a journalist is the reporting and not the
adjudication of cases.” The Orissa High Court in Bijoyananda v. Bala Kush106
observed that – “the responsibility of the press is greater than the responsibility of an
individual because the press has a larger audience. The freedom of the press should
not degenerate into a licence to attack litigants and close the door of justice nor can it
include any unrestricted liberty to damage the reputation of respectable persons.” It
would be ideal if the Supreme Court of India gives a stamp to approval to this
harmonious construction.

The media must also understand that although the courts support it out of respect for
the societal interests it promotes, just as the courts must accept all manner of fair
criticism, the media must accept and act on criticism. It must also acknowledge that it
has considerable potential to interfere with the proper administration of justice
because of the nature of its institution.

A fair trial is one of the tenets of a jurisprudential system which is based on the rule
of law. Whenever there is a conflict of fair trial with the freedom of speech, it is
likely that the former will prevail unless adequate grounds can be shown that justify
the expression or the need for the same. It is pertinent to mention that, the right of the
press is drawn from the right to speech and expression which is limited by the
reasonable restrictions as enumerated under Article 19(2). Article 19(2), expressly
contains, ‘contempt of court’ as a ground under which the Contempt of Courts Act,
1971 falls. This law expressly limits the right of the press to free speech. This
reasoning has even been adopted by the Law Commission of India, in its 200th
Report titled as, Trial by Media: Free Speech and Fair Trial under the Criminal
Procedure. In order to prevent the rights of equal weight clash it becomes necessary

104
Solicitor General v. Wellington Newspapers Ltd., 1995 (1) NZLR 45
105
AIR 1958 Punjab 273
106
AIR 1953 Orissa 249.
for both sides of the issue to seek to develop greater mutual understanding and
respect.

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.