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

TOPIC

“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

1
 DECLARATION/UNDERTAKING OF ORIGINALITY

I, Pintu Ram having Enrolment No R450217075 SAP ID 500060941 declare that the
Dissertation 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 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 Dissertation 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. 16/11/2021

Antiplagiarism Check /Similarity found:

Late Submission N/A

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

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Contents
INTRODUCTION...........................................................................................................................................4
Trial by Media..............................................................................................................................................6
International Efforts to curb Trial by Media..............................................................................................11
The Basic Principle:................................................................................................................................11
Restrictions:...........................................................................................................................................12
Legality of Trial by Media..........................................................................................................................13
Media Activism..........................................................................................................................................18
Media Trials: A Necessary Evil?.................................................................................................................19
Media Trial and Criminal Justice System...................................................................................................22
Article 19 and Article(s) 14, 21: Balancing Rights of Free Speech and Due Process:..................................29
The court suggested following measures:.............................................................................................29
Media Trial and Contempt of Court...........................................................................................................32
Law Commission Report on Trial by Media...............................................................................................35
It's worth noting that the majority of these ingredients were collected from Borrie and Lowe's
commentary on contempt law and are not represented in Indian statutes or court rulings. "There are
also a huge number of judgements of the Indian Courts falling under these very topics," the Law
Commission said........................................................................................................................................37
The Judiciary is not free from human follies..............................................................................................37
12. International Perspective.....................................................................................................................41
Judicial Pronouncement............................................................................................................................43
Conclusion.................................................................................................................................................46

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 1. INTRODUCTION
India is the world's most populous democracy. The Union of India's government is built on four
pillars. The Executive, Legislative, Judicial, and Fourth Estate are the four branches of
government. The media is the fourth estate. There is no specific provision in the Indian
Constitution for media and press freedom. The freedom of speech and expression guaranteed to
citizens under Article 19(1)(a) of the Indian Constitution 1 gives the media their rights. As a
result, the media has the same rights to write, publish, distribute, and transmit as any other
people. "The freedom of the journalist is an ordinary component of the freedom of the subject,
and to whatever lengths the subject in general may go, so may the journalist, apart from the
statute law, his privilege is no other and no higher," the Privy Council said in a case from pre-
independence India. His status carries no privileges."2

Despite the fact that no specific provision was established to protect media rights, the Hon'ble
court has repeatedly held that the rights of the press are implicit in the protection of freedom of
speech and expression under Article 19(1)(a) of the Indian Constitution.

In Romesh Thapper v. State of Madras3, the Supreme Court declared that freedom of speech
and expression includes freedom of the press. "Turning now to the merits," it stated, "there can
be no doubt that freedom of speech and expression involves idea propagation, and that freedom
is established by freedom of circulation."

Currently, section 3(2) of the Contempt of Courts Act, 1971 affords full immunity to
publications even if they prejudicially interfere with the course of justice in a criminal matter if a
charge sheet or challan has not been filed or a summons or warrant has not been issued by the
date of publication. Only if a criminal proceeding is truly pending, i.e., if a charge sheet or
challan has been filed or a summons or warrant has been issued by the Court by the date of
publication, would such publications be considered contemptuous. The media plays a critical
part in shaping societal opinion, and it has the power to shift people's entire perspectives on
certain events. The media should be applauded for initiating a trend in which it actively
participates in catching the accused. The introduction of cable television, local radio networks,
the internet, and social media, particularly in the last two decades, has dramatically increased the
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

4
reach and impact of the mass media. In our country, the circulation of newspapers and
publications in both English and numerous vernacular languages has been steadily increasing.
The combination of an ever-increasing readership and viewership, as well as the use of current
technologies for newsgathering, has given media organisations an unparalleled influence in
influencing public opinion. However, media independence comes with a certain amount of
responsibility.

The media is seen as one of democracy's cornerstones. In a democratic country, press freedom is
recognised as "the mother of all liberty." The handmaiden of good judicial administration is a
responsible press. 'Trial by media' is a term that has only lately been developed to describe a part
of'media activism.' It refers to "the impact of television and newspaper coverage on a person's
reputation by creating a public perception of guilt, regardless of the outcome of any legal
proceedings." There is no legal structure in place that allows the media to try a case. The process
of justice is related with trial, which is fundamentally a process to be carried out by the courts.
The right to a fair trial is an essential component of any judicial system.

Trial by media has taken on serious proportions in India. There have been countless cases in
which the media has been accused of conducting the accused's trial and delivering the'verdict'
before the court has rendered its decision.

The term "trial by media" was common in the late twentieth and early twenty-first centuries to
characterise the impact of television and newspaper coverage on a person's reputation by
generating a broad sense of guilt or innocence prior to, or after, a court of law judgement. The
Law Commission of India, in its 200th Report4 submitted on August 31, 2006, recommended
various amendments to the Contempt of Court Act 1971 and measures of postponement of
proceedings in order to harmonise the aforementioned two rights, Freedom of Press Versus Right
to a Free and Fair Trial. It also stated that such powers cannot be vested in subordinate courts
where criminal proceedings are 'active.'

 During high-profile court cases, the media is frequently accused of inciting public
hysteria akin to a lynch mob, which not only makes a fair trial nearly impossible, but also
means that the accused will be subjected to intense public scrutiny for the rest of their
lives, regardless of the outcome of the trial.

5
 In recent years, civil rights advocates, constitutional lawyers, judges, and academics have
debated the topic of "Trial by Media." The amount of publicity that every crime, suspect,
or accused receives in the media has increased dramatically since the invention of
television and cable networks.
 We recognise that freedom of expression is an important right in a democratic country
like ours, but it is not absolute in the sense that the Constitution, while granting it under
Article 19(1)(a), allows the legislature to impose reasonable restrictions on the right in
the interests of various things, one of which is the fair administration of justice, as
protected by the Contempt of Courts Act, 1971.

6
 2. Trial by Media
The media in India has a long history of enlightening the people about social and economic
injustices. The media has educated the people about the country's extreme poverty, farmer
suicides in several states, so-called honour killings by Khap Panchayats in numerous places,
corruption, and so on. The media, on the other hand, bears a significant obligation to ensure that
the news they broadcast is truthful and serves the public interest. If the media spreads incorrect
information that can hurt a person's or a group's reputation, it can cause significant harm because
a person's reputation is a valued asset. Even if the media later retracts a statement, the damage it
has caused may be irreversible. As a result, the media should investigate any news item
thoroughly before reporting it.

Commentary by the media on ongoing trials, particularly criminal proceedings endangering a

citizen's life and liberty, is a delicate matter that should be carefully considered. It can be
difficult for judges not to be swayed by such news and, as a result, deprive a person of this
important privilege. Furthermore, the media frequently publish accurate news while placing an
excessive amount of emphasis on frivolous news such as the activities of movie stars, models,
cricketers, and other celebrities, while giving little attention to far more important issues that are
primarily socio-economic in nature.4

It has been suggested that the media's function in relation to the judiciary should be recognised.
"Popular entertainment and news via mass media symbolise the convention cultural forces of the
social order," writes George Gerbner. The judicial procedure, on the other hand, is an attempt to
resolve particular situations in accordance with the law." The slogan of the media trial is to "feed
what the audience is interested in," not "what is in the public interest." The term 'trial-by-media'
refers to the effect of media coverage on a person's reputation, which creates a public sense of
guilt regardless of a court of law's judgement.5

The term "trial by media" developed as a colloquial expression, implying that the media took on
the role of adjudicator. Under the guise of 'news,' the media is frequently found broadcasting
opinion and propagating bias. There is no thorough definition due to the term's informal origins.
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).
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).

7
In R.K Anand v. Registrar, Delhi High Court 6, the Hon'ble Supreme Court attempted to define
the term as follows: "The impact of television and newspaper coverage on a person's reputation
by generating a broad perception of guilt regardless of any judgement in a court of law." The
media is frequently accused of inciting public hysteria akin to a lynch mob during high-profile
court cases, which not only makes a fair trial nearly impossible but also means that, regardless of
the outcome of the trial, the accused is already presumed guilty and would be unable to live the
rest of their lives without intense public scrutiny." If it presents barriers to the acknowledged
wise and fair inquiry and trial, a media trial is a farce of justice. 7

Excessive media coverage of a suspect or accused individual before a trial hampers a fair trial or
portrays him as a person who committed the crime, resulting in undue interference with the
"administration of justice." Other concerns about people' or defendants' privacy rights may arise.
In the hands of the media, public personalities with limited rights against defamation are more in
risk and susceptible.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) in response to a sustained press attack
on Mrs. Bernadette and Mr. Michael McKevitt, who were advocating for Irish national
sovereignty and claiming the Irish people's right to self-determination through a Committee. The
media began to link these two individuals to the Oath bombing on August 15, 1998, which killed
29 people. Even before the police interrogated them, the media assault began. The contents of
the British Irish Watch's representation to the United Nations Reporters, which is quoted below,
are very similar to what is going on with the media in our own country.

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).

8
"Guilt by association is an invidious tactic," the representation stated 9. The media has created a
climate in which nearly no one in Ireland is willing to consider the notion that Bernadette and
Michael Mc Kevitt are innocent, despite the fact that neither of them has been questioned by the
police in connection with the Oath bombing. They've been vilified Such public relations tactics
are ineffective. If the media continuously accuses someone of crimes without presenting any
proof against them, the public will be so convinced of their guilt that if they are charged and
convicted, they will have no chance of receiving a fair trial. When such cases fail, the crime
victims are left without recourse. Defendants may also be acquitted, but their good name has
been tarnished."

Excessive publicity and breach of privacy rights affect not only suspects and accused, but also
victims and witnesses. The media portrays police in a negative manner, and their morale suffers
as a result. The day after a crime report is issued, the media reports that "Police have no cue."
Then, whatever rumour the media acquires about the official agencies' line of investigation, it
publicises the information to the point where the individual who has committed the crime can
flee to safer areas. The media's pressure on the police grows day by day, to the point that officers
feel obligated to say something in public to safeguard their reputation.

Witnesses have additional challenges as a result of the media. If the identities of witnesses are
revealed, the witnesses may face pressure from the accused and his associates, as well as the
authorities. The witnesses want to withdraw and get out of the mess as soon as possible. Witness
protection becomes a severe casualty as a result. This raises the question of whether hostile
witness evidence is admissible and whether the law should be changed to prohibit witnesses
from changing their testimonies. If the suspect's photograph is published in the media,
complications may occur during the 'identification parades' required by the Code of Criminal
Procedure to identify the accused.10

3. Evolution of Media Trials

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).
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).

9
Although it is a relatively new expression, the idea that popular media has a significant impact
on the judicial process dates back at least to the invention of the printing press, if not much
further. This does not mean that a state-controlled press can be used to punish political
opponents, but it does cover all instances in which purportedly non-political publications have
had a significant impact on a person's reputation. Roscoe 'Fatty' Arbuckle, who was exonerated
by the courts but lost his career and reputation as a result of the media coverage, was one of the
first celebrities in the twentieth century to be arguably tried by the media. The link is less about
guilt or innocence than it is about elevating media coverage above the status of the court in the
public mind. The Rodney King incident in the United States, and the ensuing trial of the officers
involved, was another fascinating case. The media has once again disputed an acquittal, this time
with violent results. Because it was amateur video footage that provided the crucial proof of
perceived guilt, the case is historically significant. This type of "caught on camera" scenario is
becoming increasingly regular as video cameras and their digital successors, as well as CCTV,
become more widely used. This can cause serious problems for the court system because the
evidence they present may be inadmissible due to technological reasons (e.g., inability to specify
specific timeframes), yet they provide highly strong visuals for the media (and public) to latch
onto and the potential to alter through editing. Even if a criminal court finds someone guilty, the
media can appear to pass judgement on their punishment. Myra Hindley, whose intended release
from jail after thirty years was heavily denounced by the British press (the matter became moot
when she died in 2002); Maxine Carr, who was released after serving her term and is now being
"demonised by the press," according to some critics. The murder trial of Lindy Chamberlain in
Australia was popularised by the media between 1980 and 1982, however she was eventually
released in 1986 after new evidence revealed that a dingo, not Chamberlain, had done the crime.
Chamberlain, as played by actress Meryl Streep in the film A Cry in the Dark, was caught in a
"trial by media" that fed the public, resulting in the jury's wrongful conviction of her.

The press's role to verify reports and leaks concerning people who are being tried has come
under increased scrutiny, and journalists are demanding for tighter standards. The impeachment
trial of US President Bill Clinton and prosecutor Kenneth Starr's inquiry, as well as how the
media handled the trial by reporting legal commentary that impacted public opinion, sparked
great discussion. Another example is the inquiry of biologist Steven Hatfill, who was accused of

10
transmitting anthrax through the mail as a terrorist assault. Although Hatfill was not found
guilty, his reputation was seriously harmed and his career was wrecked.

Families and friends of those convicted of crimes have reportedly utilised the media's power to
reopen cases, such as the Stephen Downing case in Derbyshire, when a local newspaper editor's
campaign culminated in a successful appeal and his release after twenty-seven years in jail 11. In
recent years, media trials have taken on important proportions in India as well. Priyadarshini
Mattoo, Jessica Lal, and Nitish Katara, to name a few, are prominent cases that might have gone
unpunished if not for the intervention of the media. The more easily a polarising 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 in today's era of 24X7 news
cycles that feed the ratings-driven economics of commercial TV channels. This is especially true
now, as news outlets compete for eyeballs, social media shares, and engagement, which are the
buzzwords for determining the worth of news in the new media landscape. A media story's heat
index is proportional to how much debate it generates, capturing the buzz for the next spin cycle.
The current buzzword in the 24/7 media sphere is engagement, which is recorded through public
call-ins, comments, and tweets that are shown live on the show. In India's current media frenzy
for statistics, ratings, and engagement, media trials have emerged as a key genre for influencing
public opinion. The powerful role of news anchors in directing the debate, complete with
hashtags and subtitles, is central to this genre of media trials. The trials are set up like reality
shows, with many screens, camera angles, comments screens, and floating headlines. With
certain differences in format and manner, the genre resembles this: The news host offers a debate
topic, identifies the issue, then holds a trial with pundits providing opposing viewpoints. A trial
of an issue or an individual is at the centre of the media trial model.

In this type, the news anchor's performance is determined on his or her ability to create a
narrative, fabricate a controversy, and twist it to appeal to public emotions. The ability of media
trials as a genre to elicit strong emotions in the public sphere also limits debate, reasoning, and
dialogue. Small bits of conversations, gleaned from larger events, are framed and flashed onto
the screen, anchoring the ensuing yelling contests. The outcomes of these cases are
predetermined, as the verdict has already been reached before the trial has ever begun. In this
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)

11
sense then, media trials in new media cycles are staged performances, tied to sentiment analysis,
audience moods, and market assessment of ratings.12

It appears that the media has resurrected as a "public court" and is now meddling with legal
processes.

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)

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13
 4. International Efforts to curb Trial by Media
The International Commission of Jurists, its Centre for the Independence of Judges and
Lawyers, and the Spanish Committee of UNICEF assembled a gathering of 39 eminent legal
professionals and media representatives in Madrid, Spain, for three days in 1994. The
meeting's goals were to examine the relationship between the media and judicial
independence, as well as to develop principles to assist the media and the judiciary in
developing a relationship that promotes both freedom of expression and judicial
independence. Brazil, Sri Lanka, the United Kingdom, Sweden, Jordan, Australia, Ghana,
France, India, Spain, Germany, Austria, the Netherlands, Norway, Poland, Portugal,
Switzerland, Senegal, Palestine, Bulgaria, Croatia, and Slovakia were among the participants.
The following are the principles that were developed during the meeting:

1. The Madrid Principles on the Media's Relationship with Judicial Independence

2. In a democratic society, media freedom, which is a component of freedom of expression,

is critical. Judges must recognise and give effect to media freedom by using a basic
presumption in their favour and allowing only those restrictions on media freedom that are
authorised by the International Covenant on Civil and Political Rights ("International
Covenant") and are stipulated in specific statutes.

3. The media has a responsibility to respect individual rights guaranteed by the International
Covenant on Civil and Political Rights, as well as the independence of the judiciary.

These principles are intended to serve as a guideline rather than a replacement for current
higher standards of protection for freedom of expression.13

The Basic Principle:

1. One of the essential foundations of any society that claims to be democratic is freedom of
expression (including freedom of the press). The media has the responsibility and right to
gather and disseminate information to the public, as well as to comment on the

13
G.N. Ray, Tabloidization and Page 3 Syndrome: Unethical Practices in Media, 1 MLR 4 (2010), available at:
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010 (last visited on April 5, 2018)

14
 administration of justice, including cases before, during, and after trial, without
jeopardising the presumption of innocence.
2. Only in the circumstances set forth in the International Covenant on Civil and Political
Rights, as interpreted by the 1984 Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, can this principle
be broken.14
3. There shall be no limits on the ability to speak on the administration of justice.
4. Even when the inquiry is part of the judicial process, the basic principle does not exclude
the retention of confidentiality by law during the investigation of a crime. In such cases,
secrecy must be viewed as primarily serving the interests of those who are suspected or
accused, as well as maintaining the presumption of innocence. It does not limit a person's
right to provide information to the press concerning the inquiry of the circumstances
under investigation.
5. The underlying concept does not exclude proceedings in camera for the purpose of
resolving or settling a private dispute.
6. A right to broadcast live or recorded court hearings is not required by the basic premise.
The essential idea will still apply where this is authorised.

Restrictions:
1) Any limitation on the fundamental concept must be rigorously regulated by law. If a law
grants a judge discretion or power, that power or discretion must be exercised solely by a
judge.
2) Where a judge has the authority to limit the fundamental principle and is considering
exercising that authority, the media (as well as any other person affected) shall have the
right to be heard in order to object to the exercise of that authority and, if that authority is
exercised, a right of appeal.
3) Laws may allow for restrictions on the basic principle to the degree that they are required
in a democratic society to safeguard minors and members of other vulnerable groups.
4) In the interest of the administration of justice, laws may limit the basic principle in
criminal proceedings to the amount necessary in a democratic society to avoid substantial

14
UN Document E/CN.4/1984/4

15
 harm to a defendant and to protect the public. Preventing catastrophic injury to a person
or incorrect pressure being applied to a person a witness, a jury member, or a victim.
5) When a restriction of the fundamental principle is requested on the basis of national
security, the parties' rights, particularly the rights of the defence, should not be
jeopardised. The defence and the media shall have the right to know the basis for the
restriction (subject, if required, to a duty of confidentiality if the restriction is imposed)
and the right to oppose the restriction to the maximum degree practicable.
6) Restrictions on the basic principle may be applied in civil actions if authorised by law to
the amount necessary in a democratic society to prevent substantial injury to a private
party's legitimate interest.
7) No restriction shall be imposed arbitrarily or on the basis of discrimination.
8) No restriction shall be imposed except to the extent and for the duration required to
achieve its purpose, and no restriction shall be imposed if a more restricted restriction
would be more likely to accomplish that goal. The party requesting the restriction bears
the burden of evidence.

5. Legality of Trial by Media

 Freedom of Speech and Expression: The Indian Constitution does not specifically
mention freedom of the press or of the electronic media as a fundamental right in Part III,
but 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 by various judicial
pronouncements. To the degree permissible by Article 19(2), the guarantee is subject to
"reasonable constraints" imposed by legislation.

The print and broadcast media have taken on the task of informing the people about the elected
government's operations. This includes all other topics about which the general public has a right
to know. The right to debate and criticise is an active component of this right. The Supreme

16
Court, in Romesh Thappar v. State of Madras15, includes the press in the notion of freedom of
speech or expression.

"Freedom of the press lies at the heart of social and political discourse," wrote Venkataramiah, J.
of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of
India16. The press has now taken on the role of public educator, enabling large-scale formal and
non-formal education, particularly in developing countries where television and other forms of
modern communication are not yet available to all members of society. The press's aim is to
advance the public interest by publicising facts and opinions that a democratic electorate
government would be unable to make reasonable decisions without. Newspapers, as distributors
of news and viewpoints with an impact on government management, frequently publish content
that is unpalatable to governments and other authorities."

The Supreme Court's comment above demonstrates that press freedom is critical to the
democratic process's proper functioning. Democracy means government of the people, by the
people, and for the people; it is self-evident that every citizen must have the right to participate
in the democratic process, and that free and open discussion of public issues is absolutely
necessary to enable him to intelligently exercise his right to vote. This clarifies India's
constitutional perspective on press freedom.17

The Supreme Court maintained in Printers (Mysore) Ltd. v. CTO18 that, while freedom of the
press is not explicitly guaranteed as a fundamental right, it is implied in freedom of speech and
expression. In all democratic countries, press freedom has long been a prized privilege.

As a result, all those who believe in the free flow of information and citizen engagement in
government have generously supported journalistic freedom. All national courts have a
fundamental responsibility to defend this right and declare all laws or administrative measures
that infringe on it to be unconstitutional.19

15
(1950) SCR 594
16
(1958)1SCC 641
17
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
18
(1994) 2 SCC 434
19
Indian Express Newspapers (Bombay) (P) Ltd. V. Union of India, (1985) 1 SCC 641

17
The Supreme Court of India ruled in R. Rajagopal v. State of Tamil Nadu 20 that freedom of the
press includes unrestricted discourse concerning public individuals' engagement in public issues
and events.

The Supreme Court reaffirmed in L.I.C. v. Manubhai Shah21 that the freedom to spread one's
opinions can be done by word of mouth, writing, or audio-visual means. This right to circulate
also includes the right to control circulation volume.22

The press has the prerogative of appearing in court on behalf of the general public in order to
keep them informed about important public issues. As a result, the journalist is free to attend
court procedures and publish accurate reports. In the case of judicial and quasi-judicial courts,
this privilege is available23. This is not, however, an absolute right. Other key factors include the
prohibition on reporting the names of rape victims, minors, juveniles, and women. This
restriction is imposed because to their low social status, which puts them prone to exploitation.
As a result, the court may limit the public disclosure of judicial proceedings in the interests of
justice24. Using its inherent power under section 151 of the Civil Procedure Code, 1908, the court
can order a trial to be held in camera.

A democratic society requires that the general people participate in policy discussions. They
need to know the specifics of discussions because transparency in government is essential for a
democratic society to function properly. As a result, the press has the right to report on
parliamentary processes. The Constitution protects the press's right to accurate reporting of
parliamentary proceedings25. It also safeguards accurate reporting of State Assemblies'
proceedings. The Parliamentary Proceedings (Protection of Publication) Act of 1977 provides a
similar level of protection.

 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
20
(1994) 6 SCC 632
21
(1992) 3 SCC 637
22
Sakal Papers v. Union of India, AIR 1962 SC 305

23
Saroj Iyer v. Maharashtra Medical (Council) of Indian Medicine, AIR 2002 Bom
24
Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1

25
Article 361-A of the Constitution of India

18
 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. "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," says Section 3(2), sub clause (B) of
clause (a) of Explanation.

During the pre-trial stage, certain media reports can have an impact on the accused right to a fair
trial. Such articles could be on the accused previous convictions, his general character, or his
supposed confessions to the police. Despite the grave threat such publications pose to the
administration of justice, media reportage is granted immunity under the existing framework of
the Contempt of Court Act, 1971, as seen during the Aarushi Talwar case, where the press went
berserk, speculating and pointing fingers even before any arrests were made. If there is no legal
intervention, such publications may go unchecked. For example, the Contempt of Court Act,
1971, might be amended to widen the definition of "pending" to include "from the time the arrest
is made." The Law Commission suggested this in its 200th report.

The press has a free hand in printing colourful stories without fear of repercussions because of
such loopholes. It feeds on the crime's brutality and public anger without any accountability, like
a parasite.26

 The public’s right to know: The essential principle of press freedom, according to the
Supreme Court, is the public's right to know.27 "The basic purpose, therefore, of the press
is to offer full and objective knowledge about all elements of the country's political,
social, economic, and cultural life," the Supreme Court explained. It serves an
educational and mobilising purpose. It has a significant influence on popular opinion."28

However, as then Indian Chief Justice K G Balakrishnan put it, "press freedom involves people's
right to receive the correct news," but he also agreed that newspapers can't read like an official
26
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

27
A.G. v. Times Newspaper, (1973) 3 All ER 54
28
In Re: Vijay Kumar, (1996) 6 SCC 466

19
gazette and must have a touch of "sensationalism, entertainment, and worry." 29 "Those who
know about the incident may come forward with information, it prevents perjury by placing
witnesses under public scrutiny, it reduces crime through the public expression of disapproval
for crime, and last but not least, it promotes the public discussion of important issues," the
Supreme Court wrote in the Before Case 30. Two crucial basic characteristics of investigative
journalism are that

(a) the issue should be of public importance for the reader to be aware of, and

(b) The truth is being concealed from the public.31

 Public participation: Some academics defend a 'trail-by-media' by claiming that the

mob mentality existing independently of the media, which only expresses what the public
already believes.32 Transparency is essential in a democracy. We will return to the dark
times of the Star Chambers without a free press, when court sessions were conducted in
secret. All of these ubiquitous SMS campaigns and public polls do is provide the public a
place to express their opinions.33 It encourages people to talk about important topics in
their communities. Suffocating this voice is suffocating democracy.

"In the darkness of secrecy, sinister interest and evil in every shape are in full swing," Jeremy
Bentham said of concealment in the administration of justice. Any of the constraints on judicial
injustice can only work in proportion to the amount of publicity. There is no justice if there is no
publicity. Publicity is the lifeblood of the legal system. It is the most powerful motivator for
action and the most reliable safeguard against improbability. It keeps the judge in custody while
he is on trial.34

29
https://timesofindia.indiatimes.com/city/mumbai/Media-must-not-run-parallel-trials

30
Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693

31
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).

32
Navajyoti Samanta, “Trial by Media-Jessica Lall Case”, available at: http://ssrn.com/abstract
33
Prabhsahay Kaur, “Freedom of Press vis-à-vis Responsible Journalism”, available at:
www.legalserviceindia.com /articles/fre_pre_v.htm
34
K.G. Balakrishnan, The Constitution, The Media and the Courts, The Fourth K.S. Rajamony Memorial Public
Law Lecture, Kerala

20
  Ineffective legal norms governing journalistic conduct: The Press Council of India
was created in 1978 under the Press Council Act, with the mission of "preserving the
freedom of the press and maintaining and improving the standards of newspapers and
news organisations in India."35 It must "ensure the maintenance of high standards of
public taste on the part of newspapers, news agencies, and journalists, and foster a due
sense of both the rights and responsibilities of citizenship" 36 and "encourage the growth
of a sense of responsibility and public service among all those engaged in the profession
of journalism" to achieve these goals.37

The Council also has the ability to impose sanctions. Under Section 14(1) of the Press Council
Act, 197838, if a complainant believes a news agency has engaged in professional misconduct,
the Council can "warn, admonish, or censure the newspaper," or direct the newspaper to "publish
the complainant's contradiction in its forthcoming issue" if they agree with the complainant.
Given that these procedures can only be used after news materials have been published and that
they do not entail particularly severe penalties, their effectiveness in preventing the
dissemination of unfair information appears to be limited.

In Ajay Goswami v. Union of India39, 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, on the other hand, has no
additional jurisdiction to guarantee that its orders are followed and that its observations are
applied by the wrongdoers. The Press Council of India's lack of punitive powers has limited its
ability to oversee errant publications."

35
Press Council Act, 1978, Section 13(1)

36
Press Council Act, 1978, Section 13(2) (c)

37
Press Council Act, 1978, Section 13(2) (d).
38
Section 14(1) of the Press Council Act, 1978
39
(2007) 1 SCC 143

21
The Press Council of India has produced a set of suggested journalistic behaviour guidelines to
go along with these powers. The press is encouraged to "eschew publication of false, unfounded,
graceless, misleading, or distorted content" under these standards, which emphasise the
significance of accuracy and fairness. Any criticism of the judiciary should be published with
extreme discretion, according to the rules. Reporters should also avoid making one-sided
inferences and try to maintain an objective and sober tone at all times, according to these
standards. However, because these standards cannot be legally enforced, they are frequently
disobeyed. Finally, the PCI has criminal contempt powers to prevent unfavourable media reports
from being published. The PCI, on the other hand, can only use its contempt powers in relation
to pending civil or criminal matters. This limitation ignores the potential influence of pre-trial
reporting on the administration of justice.

6. Media Activism
Justice Katju and P. Sainath have criticised the media for focusing on "nonissues" and "seeking
to redirect people's attention away from actual problems to nonissues"40 as well as "suffocating
lesser voices."41 Who will keep an eye on the watchdog as it relinquishes its job as an educator in

40
Markandey Katju, “Ideal and reality: Media’s role in India”, The Hindu, Aug. 19, 2008
41
P. Sainath, “Lost the Compass?” Outlook India, Oct. 17, 2005

22
favour of becoming a performer? 42 A distinction must be made between informing and
entertaining. Justice and the rule of law are no longer about the process but about the conclusion,
thanks to widespread media manipulation.

The criminal justice system is influenced by public opinion in an indirect way. "Justice should
not only be done, but also clearly and unmistakably seen to be done" 43. The media's scrutiny
could lead to psychological pressures, causing verdicts to be tainted by public opinion rather
than the evidence presented at trial. When a media trial proclaims a person guilty, but the judge
delivers a different opinion based on evidence, the judge's credibility is jeopardised, according to
Justice Bilal Nazki.44

The High Court of Andhra Pradesh, in Labour Liberation Front v. State of Andhra
Pradesh45, highlighted the abysmal lengths to which journalism norms had sunk. "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," Justice L. Narasimha Reddy said,
criticising the practise of "trial by media." When a notable person or institution is involved in an
incident, the media goes into overdrive, leaving little time for the prosecution or the courts to
investigate the situation. It has recently grown to alarming dimensions, to the point where it is
invading people's privacy. The blatant misuse of technical breakthroughs, as well as the
unhealthy competition in the field of journalism, led in the obliteration of norms and dedication
to the noble profession. The freedom of speech and expression, which is the foundation of
journalism, is routinely abused. It must not be forgotten that only those who show restraint may
properly exercise their rights and liberties."

42
Ramachandra Guha, “Watching the Watchdog-Time for the press to look within”, The Telegraph, May 10, 2008,
43
R v. Sussex Justices: Ex parte McCarthy, 1924(1) KB 256

44
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),
45
2005 (1) ALD 740

23
24
 7. Media Trials: A Necessary Evil?
We have a long history of fiercely independent reporting. In reality, the press exposed the
majority of the major scams. The cops simply followed them around. The low-paid journalist
deserves credit for obtaining material that appeared to be unreachable to the country's elite
vigilance squads. That's how the marine case of HDW (Howaldswerske) and Bofors made the
news. That's how we learned that Narasimha Rao bribed MPs from the Jharkhand Mukti Morcha,
and Satish Sharma and Buta Singh facilitated the arrangement. At every stage of our political
journey, the media has done us proud. The public's attention is increasingly focused on courts
and the cases that are filed there. The Courts are likely to remain under the media's scrutiny
indefinitely now that they have come under scrutiny. More Indians are aware of their
constitutional rights than ever before as a result of changes sparked by the media and handled by
the courts. The media despises the sub judice rule and says that during a hearing, courts prefer to
interpret it very rigidly, prohibiting any discussion of the problems before the Court, even if they
are attracting public attention. As a result, there is an urgent need to liberalise the sub judice rule,
allowing it to be invoked only in circumstances where there is a clear purpose to sway the
outcome of the trial, rather than any act that might have a remote chance of doing so. The public
interest is another key restraint on media stings and trials. The media loses its footing and invites
the wrath of the court if public interest is absent and ego or manipulative interests emerge.46

The power of the press can also be interpreted in terms of how people react to and respond to
news. In a few instances, the media has played a significant role in shaping public opinion. The
instances of Jessica Lal and Priyadarshini Mattoo are positive examples of the media's influence
in achieving justice's goals. After both murder incidents were disclosed, there was significant
indignation and protests. People realised that justice had been denied and that protesting and
speaking out was important. Both cases involved high-profile individuals, which heightened
public attention and awareness of the cases' developments. We can see how media interference
aided in the case's correct and timely conclusion. The two murder cases are classic examples of
responsive and responsible journalism that assisted citizens in obtaining their due process rights.

The Jessica Lal murder case is one of the clearest examples of how good investigative journalism
can turn a case around. The event occurred on April 29, 1999, during a party hosted by Bina

46
Trial by Media: Looking beyond the pale of legality, July 12, 2011

25
Ramani, a high-profile socialite, at Tamarind Court, where model Jessica Lal used to work as a
bartender. After Jessica Lal declined to pour him a drink after the closing hours, an inebriated
Sidharth Vashisht, also known as Manu Sharma, shot her at point blank range. The fact that
Manu Sharma was the son of Vinod Sharma, a major Congress leader in Haryana, could not be
overlooked in this case.47

The murder was a high-profile case that implicated a number of powerful individuals. However,
the tragic aspect of the case was that all of the witnesses were swayed by Manu Sharma's father,
and a total of 32 witnesses became hostile. Manu Sharma told the court that a member of his
family was sick, and after being released from prison, he was seen partying in a Delhi nightclub.
As a result of the conclusion of the judicial process and the issuance of a verdict, the matter was
regarded closed. This, however, did not appear to be popular with the general public. The public
chose to use the media to express their displeasure with the decision. There were rallies around
the country, and the media served as an indispensable conduit for carrying the momentum that
altered the tides of injustice in the Jessica Lal case.

The dramatic impact of media engagement prompted the case to be reopened. Following that, the
case was reopened, and the conviction was overturned, with Manu Sharma being found guilty of
Jessica Lal's murder. The media was at the centre of the case, and Jessica Lal's call for justice
would have gone ignored if it hadn't been for them. It serves as an illustration of how media
intervention can have a good effect.

The Priyadarshani Matto murder case, also known as S.K. Singh vs. State48 through CBI, was
comparable to the Jessica Lal murder case. Santosh Kumar began the case by pestering and
following a 25-year-old law student. Despite the fact that his father was going to be appointed as
Additional Commissioner of Police in Delhi, no strict action was taken against him despite the
continuous filing of complaints against him. Santosh Kumar visited Priyadarshini's house
without being arrested for stalking or harassment and brutally murdered her after rapping her.
The accused had previously been found not guilty by the trial court.

47
Kathakali Nandi, Investigative Role of Media: Responsibility To The Society, Global Media Journal

48
Santosh Kumar Singh v. State through the CBI, Criminal Appeal No. 87 of 2007, Supreme Court of India.

26
 The entire case took place at the same time as the Jessica Lal Murder case was being
adjudicated. The public fury was at an all-time high at the time, and the media decided to step in
to help resolve the situation. During this time, CBI filed an appeal against the verdict, and the
case was reopened. Santosh Kumar was found guilty and condemned to death by the Delhi High
Court, which upheld the lower court's decision. In India, the High Court judgement was largely
seen as a watershed moment.

In State of Maharashtra v. Rajendra Jawanmal Gandhi 49 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.

"No occasion should arise for the 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," the Supreme Court said in Anukul Chandra Pradhan v. Union of
India.50

"It would be foolish for a newspaper to systematically conduct an independent inquiry into a
crime for which a man has been arrested and to publish the results of the investigation," the
Supreme Court held in Saibal v. B.K. Sen.51 This is because trials by newspapers must be
avoided when a trial by a regular tribunal is underway.

8. Media Trial and Criminal Justice System

A suspect/accused is entitled to a fair trial and is assumed innocent unless proven guilty in a
court of law, according to our legislation. By the time the case goes to trial, no one can be
49
(1997) 8 SCC 386
50
(1996) 6 SCC 354
51
AIR 1961 SC 633

27
allowed to prejudge or prejudice his case. There is now a widespread belief that, as a result of the
widespread use of television and cable services, the entire pattern of news dissemination has
shifted, and that several such publications are likely to have prejudicial effects on suspects,
accused, witnesses, and even judges, as well as on the administration of justice in general.

Media and Right to Fair Trial: The Right to a Fair Trial stems from the larger concept of the
Right to Life and Personal Liberty, and it is an important component of India's criminal justice
system. The Right to a Fair Trial encompasses a wide range of rights, including the right to be
believed innocent until proven guilty, the right not to be forced to testify against oneself, and the
theory of Double Jeopardy, and it is as vital as the other six Fundamental Rights. As a result,
under Articles 14, 20, 21, and 22 of the Indian Constitution, every individual within India's
territory has an absolute right to a fair trial. The importance of Articles 20 and 21, which deal
with the right to protection against criminal convictions, can be explained by the fact that these
vital rights cannot be interrupted even in an emergency.52

The Supreme Court stated in Zahira Habibullah Sheikh v. State of Gujarat 53 that a "fair trial
would certainly involve a trial before an impartial Judge, a fair prosecutor, and a judicially calm
atmosphere." A fair trial is one in which there is no bias or prejudice for or against the accused,
the witnesses, or the cause being tried."

The provision of the '24 Hour Rule' specified in Article 22(2) of the Indian Constitution is
extremely relevant in relation to the aforementioned ideal of 'Fair Trial.' It specifies that
everyone who is arrested and detained in custody must be brought before the nearest magistrate
within 24 hours. The accused's arrest is predetermined from the start. This is because any media
release referring to the person's reputation, previous convictions, or admissions (if any) made
after the arrest will prejudice the person's case. It will be discriminatory even in bail procedures
when it comes to deciding whether bail should be granted or denied, what restrictions should be
imposed, and if police or judicial remand is required. Such disclosures may have an impact on
the trial that follows. In Maneka Gandhi v. Union of India54, the Supreme Court highlighted

52
Gisborne Herald Co. Ltd. v. Solicitor General, 1995 (3) NZLR 563 (CA)

53
Zahira Habibullah Sheikh v. State of Gujarat (2004) 4 SCC 158
54
Maneka Gandhi v. Union of India, AIR 1978 SC 597

28
this point of view. It was claimed that, in terms of liberty, the 'process established by law' in Art.
21 must be fair, just, and carried out in a reasonable manner.

The print and electronic media have engaged in a fierce and ruthless competition, which we refer
to as "aggressive journalism," in which a slew of cameras are trained on the suspects or accused,
and the police are not even permitted to transport the suspects or accused from their transport
vehicles to the courts or vice versa. The Press Council of India offers guidelines on a regular
basis and takes action in some circumstances. Even if 'apologies' are directed to be published,
they are published in such a way that they are either not apologies or the apologies are published
in obscure locations in the newspaper. 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. Furthermore, the media treats seasoned criminals
and ordinary citizens, sometimes even innocents, in the same manner. They are handled as if
they were a "television item," with their reputation and image on the line. They will not be
allowed to revive their old image, even if they are acquitted by the court on the basis of proof
beyond a reasonable doubt. All of these cherished liberties that come with liberty are likely to be
jeopardised if they are exposed in this way.

A. Media Trial and the Right to be Legally Represented: Another unnoticed side effect
of the media trial is the immense amount of pressure placed on lawyers not to take up the
accused's case, thereby forcing them to go to trial without a defence. This is a direct
breach of Natural Justice Principles. No one can deny a person the right to be legally
represented by a lawyer of his choice and to present his case to the adjudicating court
through such lawyer. When a lawyer decides to represent the accused in court, especially
in a high-profile case, the pressure on the lawyer increases exponentially; he must risk his
reputation. In a fascinating case, the media questioned the morality of celebrated senior
lawyer Mr. Ram Jethmalani accepting the brief and appearing for accused Manu Sharma

29
 in the Jessica Lal case, demonstrating a clear lack of understanding of its own role and
that of other stakeholders in the criminal justice system. The choice to represent Sharma,
according to a senior editor at CNN-IBN, was an attempt to "defend the indefensible."
This was just one example of the media's instigation of a campaign against the
defendants.

As a result, the state was represented by one of the country's most well-known lawyers,
Mr. Gopal Subramaniam, and Manu Sharma's case was handed over to a poor counsel.
Have we lost faith in the judiciary to the point where we fear giving everyone an equal
chance to defend themselves? During the trial of Ajmal Kasab, the main suspect in the
case, Abbas Kazmi, the lawyer for Ajmal Kasab, claimed he was very saddened and
distressed by the harassment he had received from the media (mostly) and the Public
Prosecutor.55 The fact that Mr. Kazmi and the accused belonged to the same religious sect
was exploited by the media and the prosecutor, who dubbed him a "Terrorist Lawyer"
and compared him to the case's principal conspirators.56

B. Media Trial and the Right to Privacy: "No one shall be subjected to arbitrary
interference with his privacy, family, home, or communications, or to attacks on his
honour and reputation," states Article 12 of the Universal Declaration of Human Rights.
Everyone has a legal right to be protected from such interference or attacks." "A citizen
has a right to defend his own, his family, marriage, reproduction, maternity, child
carrying, and education, among other concerns," the Supreme Court said in R. Rajagopal
v. State of Tamil Nadu57. Without his permission, no one can write anything on the
above topics, whether true or false, laudatory or critical. If he does so, he will be
infringing on the person's right to privacy and will be held accountable in a damages
case. However, if a person intentionally enters a controversy or voluntarily invites or
generates a controversy, his or her position may be different.

55
“Trial by Media”, Human Rights Feature, April 27, 2007,

56
Ranchod Mathur Wasawa v. State of Gujarat (1974) 3 SCC 581
57
AIR 1995 SC 264

30
Newspapers were swamped with transcripts of the deceased girl's communications in the Aarushi
murder case, throwing doubt on her character.

Retd. Justice P.B. Sawant's photograph was flashed as Justice P.K. Samantha58, Retd. Justice of
the Calcutta High Court, who was allegedly engaged in the renowned Provident Fund scam of
2008. It provided the appearance to spectators that the plaintiff was a part of the scam. Despite
the fact that the said channel stopped broadcasting the photos after the error was discovered, no
corrective or remedial action was done by the channel on its own to remedy the damage. The
complainant, in a letter dated September 15, 2008, demanded that the defendant publicly
apologise and pay damages of Rs 50 crores. The defendant apologised in its response, but no
mention of damages was made. Because it was a late case, the plaintiff sought Rs 100 crores.
The defendant was entitled to compensate the plaintiff Rs 100 crores, according to the court.
Before taking up its appeal against the Pune trial court in the defamation case, the Bombay High
Court ordered the Times to deposit 20 crores in cash and 80 crores in bank guarantee. The
Supreme Court upheld this decision.

Tarun Tejpal, then the editor of the news magazine Tehelka, volunteered to "recuse" himself for
six months in November 2013 due to a "poor lack of judgement" involving alleged sexual
harassment of a female employee. The media constantly pursued the subject, prompting the
authorities to investigate the matter far more quickly than usual. Tejpal was arrested in early
December on rape charges and has been in custody ever since.59

In November 2013, The Times of India reported on a blog in which a legal intern claimed that an
anonymous former Supreme Court judge had sexually assaulted her. The report of the papers
was received by the Chief Justice of the Supreme Court, who launched an investigation that
implicated AK Ganguly as the alleged perpetrator in December. Ganguly and his allies attempted
to refute the results by claiming that he was being framed by "strong forces" after the Chief
Justice's committee ruled that the intern's testimony prima facie revealed "an act of uninvited
behaviour" on the part of the former judge. To refute his storey, with the intern's permission,
Additional Solicitor General Indira Jaising published extracts from her affidavit in the Indian
Express, which detailed the alleged assault in great detail. When those details were made public,
58
Special Civil Suit No. 1984/2008 in Pune trial court
59
‘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

31
the media demanded a criminal inquiry, causing the cops to contact the intern. "I request that it
be recognised that I have the discernment to take proper proceedings at suitable times," the intern
told the media in response to demands to file a police complaint. I request that my autonomy be
completely honoured." The resulting uproar, on the other hand, forced Justice Ganguly to quit as
the chairman of West Bengal's human rights commission.60

In each of these situations, what began as an asymmetrical war with the males vastly
outnumbering the women evolved into a more balanced conflict after the media decided to
support the women making the charges. While this may have prompted other women with
similar charges to come forward, the backlash may have prevented others.

The method in which these events were covered caused complications. Consider the Tehelka
case, in which a female journalist's private complaint to the magazine's management was leaked
and detailed information was promptly disseminated on news websites. The victim was upset
because her privacy had been invaded. Wasn't it conceivable to reveal sexual assault abusers
without infringing on a victim's requests or journalistic anti-bias injunctions? Should the media
put a victim's right to privacy ahead of the public's right to know all available facts? Would
measured restraint help to keep the horrors of sexual violence out of the public view? Clearly,
readers could be told of "the nature and seriousness of the claims in as much detail as feasible,
not only without breaking the law, but also without invading the victim's privacy." Violations of
privacy by the media could exacerbate the silence surrounding sexual assault, because women
"simply wouldn't come out and complain" if their complaint could be made public
indiscriminately.

Reporters are taught to regard details as an unqualified good: the more details there are, the
better the storey. In cases of sexual violence, however, the journalistic problem is not simply
accumulating data, but carefully selecting them. A news report that merely transmits the most
important elements of an alleged attack may be less exciting to read, but it is also less likely to
invade a victim's privacy or wrongly blame an accused assailant.

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)

32
There could be several exceptions to this rule. For example, in circumstances where the police
have failed to act or when there has been a miscarriage of justice, the media may be required to
dig deeper. But the truth is that reporting restriction does not imply a quiet conspiracy. Editors
are correct in withholding detailed details of sexual assaults while highlighting the charges and
subsequent punishment of such acts. If their wider goal is to increase public awareness of sexual
violence, they might be able to do so more effectively by sharing tales of proven crimes rather
than the sensitive specifics of instances that are still being investigated or tried. In news
reporting, sobriety can help the cause of justice.61

C. Influence of Media Trial on Judges: One wonders what influence the activist
media's sudden violent bombardment of verdicts in pending cases would have on the
administration of justice and judicial personnel.

The right of an accused person to a fair and public hearing by an independent and impartial
tribunal in the determination of his rights and obligations, as well as any criminal charge against
him, is addressed in Article 10 of the Universal Declaration of Human Rights (1948).62 The
media's influence on judges has not been denied by judges from other jurisdictions. The true
danger of biassed statements in newspapers or other forms of mass communication that must be
avoided is the "impression that such comments might have on the Judge's mind or even on the
minds of witnesses for a litigant," as stated in Re. P.C. Sen.63

The legal system's fragility arises from the reality that judges are human, and the undue effect of
irresponsible discourse can corrupt the logical adjudication process.

The Supreme Court of India acknowledged this limitation, ruling that "prejudice, a state of mind,
cannot be shown by direct and unambiguous evidence." As a result, it can't be measured against
an objective criterion." The practise of 'trial-by-media' has been condemned by the courts, who
state that "no journalist can pretend to be an investigator in a pending case and then try to sway
the Court's decision."64 However, the Indian judiciary has recently implied that the media, both

61
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)

62
Article 10 of the Universal Declaration of Human Rights, UNGA Res. 217 (LXIII), 1948
63
AIR 1970 SC 1821
64
Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd., (1994) 6 SCC

33
print and electronic, has little influence on judges. 65 "The grievance relating to trial by press
would stand on a separate basis," the Supreme Court stated in Balakrishna Pillai v. State of
Kerala66. Propaganda and negative publicity have no effect on judges." Another case is Zee
News v. Navjot Sandhu67, in which the Supreme Court ruled that media interviews do not
influence judges' decisions.

Because of the contempt processes in these jurisdictions, determining the level of media
influence on the outcome of the legal process is frequently impossible. Furthermore, no court is
likely to ascribe the final decision in any case to media reporting 68. As a result, any attempt to
conduct an empirical investigation into the media's influence on judges is certain to fail. The
weakening of judicial independence is difficult to observe and measure, according to most
academics.69

Because the majority of public documentation of the criminal justice system is dependent on
media stories, it will reflect the reporter's inherent prejudice. The media is to blame for the
disconnect between reality and popular awareness of that reality. The cast shadows will be
determined by the light. Some of the accused are likeable, some are martyrs, and yet others turn
out to be criminals.

Even if the prejudice established by the media is ignored, the accuracy of media reporting is
scrutinised. People who have little or no firsthand experience with particular social phenomena,
according to media dependence theory, rely more heavily on the media for their vision of reality.

Another key feature is that a charge-sheet is submitted in the court of first jurisdiction, which is a
magistrate's court, which is the youngest and least experienced member of the judiciary.
Although the author does not imply that these judges are susceptible to media pressure.
However, because they are new members of the judiciary, their experience may be limited, and

65
Rao Harnarain v. Gumori Ram, AIR 1958 Punjab 273

66
AIR 2000 SC 2778

67
(2005) 11 SCC 600
68
Julian V. Roberts, Public Opinion, Crime, and Criminal Justice 161 (The University of Chicago Press, Chicago,
1st edn., 1997)

69
Navajyoti Samanta, “Trial by Media-Jessica Lall Case”, March 19, 2008

34
when they take cognizance of an offence, the pressure surrounding a case can alter their mental
processes. There is always the possibility of a miscarriage of justice. When there is potential, we
must deal with the consequences. This isn't about determining a specific accused person's guilt or
innocence. It's all about respecting the values of a fair trial and a fair investigation, which are
both guaranteed in the Constitution.

Investigative agencies may not have a case that can stand up in a court of law, nor do they have a
case that is supported by strong evidence. They do, however, make insinuations and make bold
assertions to the media, which faithfully publishes them. As a result, everyone glosses over the
case's flaws since they've built an aura surrounding it that makes it difficult to distinguish fact
from fiction at times.70

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

Speech and Due Process:
The Supreme Court addressed the issue of press freedom in Express Newspapers v. Union of
India71, but stated that it cannot be unfettered. It, like other liberties, can be subjected to
legitimate limitations. The need to strike a balance between people's right to know and the
70
Rebecca Mammen John in an interview to The Hoot, Trial by media: how journalists are used, October 27, 2014,

71
AIR 1958 SC 578

35
accused's right to be presumed innocent unless proven guilty by a competent court has become
unavoidable. Competition for publication and coverage among diverse media outlets, which has
a tendency to obstruct the administration of justice, has become a source of worry for both the
legislative and the court. The right to freedom of the press has been recognised as a Fundamental
Right under Article 19(1)(a) of the Constitution 72, while the right to a free and fair trial has been
recognised as a Fundamental Right under Article 21 of the Constitution 73. As a result, balancing
these two fundamental rights has become unavoidable, and the time has come for courts to issue
appropriate directives on reporting of things that are under judicial review in electronic and print
media. When equal-weight rights collide, courts must devise balancing mechanisms based on re-
calibration, in which both rights are assigned equal weight in the Constitutional Scheme. 74 In the
case of Sahara India Real Estate Corporation Ltd. and Ors. v. Securities and Exchange
Board of India and Anr75., the Hon'ble Supreme Court of India formed a five-judge
Constitution Bench after some newspapers published the proceedings of the judgement during
the pendency of the appeal, despite the Court's interim order. The Court established suitable
standards for reporting sub judice matters to the media, including public disclosure of papers
forming part of Court proceedings, as well as the manner and extent of publicity to be given by
media to pleadings made in pending Court actions.

The court suggested following measures:

A. Prior restraint: Our judicial system's cornerstone is open justice. It maintains trust in the
legal and judicial systems. The right to open justice, however, is not absolute. The court
can limit it in its inherent jurisdiction, as it did in Mirajkar's case 76, if the administration
of justice requires it. The court stated that orders limiting publication for a limited time
during a trial are admissible under the court's inherent powers if the court is satisfied that
the public interest necessitates it. Article 19(1) cannot be considered to be violated by a
temporary ban on the publication of court proceedings (a).

72
Rights Watch UK, Submission to UN Human Rights Committee Concerning UK’s Compliance with the Intl.
Covenant on Civil & Political Rights: June 2001

73
Maneka Gandhi v. Union of India, 1978 SCR (2) 621
74
Tony Rogers, “The Meaning of the First Amendment: Freedom of Press”, April 10, 2017

75
(2012)10 SCC 603
76
Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1

36
 B. Contempt of Court Act, 1971: The media has a right to know what is going on in the
courts and to share that information with the public, which increases public trust in the
transparency of court procedures. However, there are situations when fair and truthful
reporting of the trial might result in a significant risk of prejudice, not only in the current
trial but also in any subsequent or related trials. In such instances, there are no other
practical options available to reduce the risk of prejudice to the trial other than
postponement orders. Only if the inaccuracy of reporting of court proceedings can be
found to amount to substantial interference with the administration of justice on the facts
of a particular case will it be considered contempt.
C. Order of Postponement of publication: The First Amendment in the United States
guarantees unlimited freedom of expression, whereas the Indian Constitution does not. In
India, the right is limited by the reasonableness test and the Heads of Restrictions under
Article 19(2) of the Constitution. Due to the lack of such prohibitions, American courts
have developed strategies or methods to be used in circumstances where the court's
functions have been usurped due to undue adverse publicity.
These are strategies like ordering retrials, changing the venue, ordering acquittals even at
the Appellate level, and so on. The Supreme Court viewed such orders of postponement
of publications/publicity in appropriate cases, as indicated above, as merely a neutralising
device, used by courts as a preventive measure to protect the press from being prosecuted
for contempt and to prevent the administration of justice from being perverted or
prejudiced when no other option, such as change of venue or postponement of trial, is
available.
In December 2017, a special Central Bureau of Investigation (CBI) court hearing the fake
encounter cases of Sohrabuddin Sheikh and Tulsiram Prajapati issued a gag order barring
the press from commenting on the proceedings. The injunction was supposedly made at
the request of the defence lawyers.77

The gag order was then challenged by a group of Mumbai journalists and a reporter's
association. In January 2018, the Bombay High Court ruled that the restriction was

77
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)

37
 unwarranted and violated journalists' fundamental right to freedom of speech and
expression.

According to the judge, the Criminal Procedure Code only authorises high courts and the
Supreme Court to issue such orders, and only in exceptional circumstances and for a limited
amount of time. The special Central Bureau of Investigation (CBI) court had overstepped its
bounds. Such an injunction could not have been issued solely on the basis of some of the
accused's fears of sensationalism. "The press's rights are inextricably linked to the fundamental
right to freedom of speech and expression. The press not only uses its right to report on an open
trial, but also serves the greater aim of making such material available to the general public,"
noted the judge.78

D. Right to approach the High Court/ Supreme Court: The Supreme Court ruled that any
person, whether an accused or an aggrieved party, who genuinely believes that the
content of the publication and its effect constitutes an infringement of his or her rights
under Article 21 to a fair trial and all that it entails, may petition the Court for an order
postponing 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
further stated that the Court has the authority to award such preventive relief based on a
balance of the right to a fair trial and the right to freedom of the press, as well as the
considerations of necessity and proportionality. Furthermore, such postponement orders
should only be issued for a limited time and only in circumstances where there is a
genuine and serious risk of damage to the effective administration of justice or the
fairness of the trial.

10. Media Trial and Contempt of Court

The use of the media to conduct a trial is a kind of contempt of court that should be
penalised. The Contempt of Court Act distinguishes between civil and criminal contempt.

There are three different categories of criminal contempt:

I. Scandalizing,
78
Bombay HC quashes order gagging media in Sohrabuddin fake encounter case trial, Hindustan Times, January 24,
2018

38
 II. Prejudicing trial, and
III. Obstructing the administration of justice.

"Every accused has a right to a fair trial," according to one of the most essential principles of
natural justice. This idea, when combined with the principle that "justice must not only be
done, but must also appear to be done," resulted in the provision that media articles that
influence court trials or otherwise interfere with the administration of justice are considered
contempt of court. Trials can be prejudicial in a variety of ways. If such cases are permitted
to succeed, the people involved will be found guilty of crimes they did not commit. To
prevent such arbitrary and unfair trials, the concept of contempt of court was developed.
Contempt is defined as any publication intended to poison the minds of jurors, frighten
witnesses or parties, or create an environment in which the administration of justice would be
difficult or impossible.79 Only when a matter is triable by a court can comments on pending
cases or abuse of party be considered contempt.80 No editor has the authority to act as an
investigator in order to influence the outcome of a case.81

In the case of Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr82., the law of
interference with the due course of justice was well stated by the then Chief Justice Gopal
Rao Ekkbote of the Andhra Pradesh High Court, who stated: "When litigation is pending
before a Court, no one shall comment on it in such a way that there is a real and substantial
danger of prejudice to the trial of the action, as for example. Even if the individual making
the comment honestly thinks it to be accurate, it is still a form of contempt of court if he
prejudices the truth before it is established in the proceedings. To this broad norm of fair
trial, one might add a second rule: no one may unfairly pressure one of the parties to a case to
dismiss his complaint or defence by misrepresentation or otherwise. It is always viewed as of
paramount importance that the law that we have just stated be upheld in its entirety.
However, while expressing the rule in this manner, it is important to remember that there
must appear to be a "real and substantial threat of discrimination."

79
AIR 1943 Lah. 329
80
Subhash Chandra v. S.M. Agarwal, 1984 Cri LJ 481
81
Dm v. MA Hamid Ali Gardish, AIR 1940
82
AIR 1975 AP 30

39
Parties have a fundamental right to a fair trial in a court of law, conducted by an impartial
tribunal unaffected by newspaper dictation or public outcry83. What would happen to this right if
the press could use language like this to influence and control the legal system? It is important to
remember that democracy necessitates fairness and openness; if these are restricted on the
flimsiest of grounds, the very concept of democracy is jeopardised.

The act of obstructing or interfering with the administration of justice by a defendant is known as
"denial of a fair trial." The publication of prejudiced information that affects the public and, as a
result, the accused, amounts to a denial of a fair trial. A prejudicial publication is one that
influences the judge's mind and advises to the court how the matter should be handled.

The publisher of an infringing item cannot hide behind the claim that the trial to which the article
pertains isn't currently underway or about to begin, but will be at a later date. 84 Our contempt
law, on the other hand, does not prohibit statements made before or after the case has begun. In
re P.C85., Justice Shah, speaking for the court, stated succinctly: "The law relating to contempt
of court is well settled." Contempt of Court is defined as any act or publication that is intended to
bring a Court or a Judge into disrepute, diminish his authority, or interfere with the due course of
justice or the authorised process of the Court. Contempt by speech or writing may be defined as
scandalising the Court, abusing parties to actions, or prejudicing humanity in favour of or against
a party before the cause is considered, according to R. v. Gray86. It is the responsibility of courts
of justice to ensure that their processes are not distorted, because prejudicing the public's
perception of those involved as parties in cases before the case is eventually heard has poisonous
implications. Contempt is demonstrated by speeches or writings that distort the Court's
procedures, prejudice the public for or against a party, or involve remarks on parties to a
proceeding. Making a remark with the intent of influencing the outcome of a pending trial,
whether civil or criminal, is a serious offence. Comments on pending proceedings made by the
parties or their lawyers are often held in higher regard than those made by third parties. In all
circumstances of public comment on pending proceedings, the question is not whether the
publication interferes with the due course of justice, but whether it tries to interfere. The concern
83
Cooper v. People Ex Rel Wyatt, (1889) 13 Colo. 337
84
Leo Roy Frey v. R. Prasad and Ors., AIR 1958 P&H 377
85
AIR 1970 SC 1821

86
(1900) 2 QBD 36

40
isn't so much about the contemnor's intent as it is about whether it is meant to obstruct the
administration of justice."

The Delhi High Court declared in Sushil Sharma v. The State (Delhi Administration) and
Ors87 that "conviction, if any, would be founded not on media reports but on the facts brought on
record." The judge presiding over the case is intended to be impartial. If the petitioner's claim of
a denial of a fair trial as a result of these news items is accepted, it will be assumed that the
Judge is not impartial. Whether there is a press report or not, the accusation must be formed on
the basis of the evidence available. The charge cannot be based on circumstances or facts that are
not part of the public record. The Court will frame the charge based on the evidence available on
the record. The petitioner's fear that he would not receive a fair trial is, in my opinion, irrational
and unfounded. The right perspective as a whole leads to the conclusion that there has been any
interference in the administration of justice or that the Court's authority has been weakened in
any way. The Trial Court correctly recognised that if the Press published the contents of the
charge sheet after it was filed, that does not, by any stretch of the imagination, constitute
interference in the administration of justice."

"No doubt it would be foolish for a newspaper to systematically conduct an independent

investigation into a crime for which a man has been arrested and publish the results of such
inquiry," the Supreme Court stated in Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr 88.
This is because trials by newspapers must be avoided when a trial by one of the country's
established tribunals is underway. This viewpoint is based on the belief that such actions by a
newspaper tend to obstruct the course of justice, regardless of whether the inquiry prejudices the
accused or the prosecution. There is no analogy between a newspaper trial and what has occurred
in this instance.

87
1996 Cri LJ 3944
88
AIR 1961 SC 633

41
 11.Law Commission Report on Trial by Media
In India, the 'right to a fair trial' is an essential component of the criminal justice system. Along
with the right to privacy, the right to a fair trial is derived from Article 21 of the Indian
Constitution, which guarantees the fundamental right to life. Many other rights are included in
the right to a fair trial, including the right to be presumed innocent until and unless proven guilty.
These rights are just as vital as Article 19(1)(a)'s protection of freedom of speech and expression.

The Law Commission of India's 200th report, "Trial by Media: Free Speech and Fair Trial Under
the Criminal Procedure Code, 1973," elaborates on numerous areas of the rights relating to
freedom of speech, freedom of the press, and freedom of fair trial, which was released in August

42
2006. The topic was taken up by the Law Commission suo motu, according to Chairman Justice
M. Jagannadha Rao, "having respect to the broad prejudicial coverage of crime and information
on suspects and accused, both in the print and electronic media."

"In light of the widespread use of television and cable services, the entire pattern of news
publication has changed," he says, "and various such articles are likely to have detrimental
impact on suspects, witnesses, and even Judges, as well as on the administration of justice in
general." He adds out that in India's criminal justice system, a suspect or accused is entitled to a
fair trial and is "presumed innocent until proven guilty in court," and that no one "can be allowed
to prejudge or bias his case by the time it goes to trial."

The report of the Law Commission raises worry about the lack of restraint in the media when it
comes to the administration of criminal justice. It reminds the media that, while freedom of
speech and expression is a valuable value, it is not absolute because the Constitution places
"reasonable constraints" on it, including the fair administration of justice protected by the
Contempt of Courts Act of 1971. The report explains how media actions affect the
administration of justice, stating that "excessive publicity" about a suspect or accused before trial
prejudices a fair trial or leads to him being labelled as a criminal; and that this amounts to undue
interference with the administration of justice, resulting in contempt of court proceedings against
the media.89

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 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 is also said to suggest
that the High Court be given the authority to order the postponement of publication or telecast in
criminal cases. According to the article, such disclosures are only considered contempt under
Section 3 (2) of the Contempt of Court Act if a charge sheet has been filed in a criminal
prosecution. The Commission has proposed that a criminal case should begin at the time of an
89
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).

43
accused's arrest, rather than at the time the charge sheet is filed. Such an amendment, according
to the Commission, would bar the media from prejudging or prejudicing the case.

Former Chief Justice of India YK Sabharwal expressed concern on November 3, 2006, about the
recent trend of the media conducting 'trials' of cases before courts issue judgments, warning:
"According to law, an accused is presumed innocent until proven guilty in a court of law, and is
entitled to a fair trial." Is it therefore reasonable to require that no one prejudge or prejudice one's
case? "Why should public opinion sway judges?"

The Law Commission of India has said in Chapter IX of the above-mentioned report that the
press engages in many forms of behaviour that interfere with the proper administration of justice.
These are some of them:

1) Publications about the accused's character or past conclusions;

2) Confessions are published;

3). Publications that comment on or reflect on the case's merits;

4). Photographs relating to the case that could jeopardise the accused's identification;

5). Creating an atmosphere of prejudice;

6). Direct imputations of the accused's innocence;

7). Witness criticism;

8). Evidence disclosure before it is due;

9) Publication of witness interviews

44
It's worth noting that the majority of these ingredients were collected from Borrie and Lowe's
commentary on contempt law and are not represented in Indian statutes or court rulings. "There
are also a huge number of judgements of the Indian Courts falling under these very topics," the
Law Commission said.90

12. The Judiciary is not free from human follies

True, every judge does his best not to be influenced by what he sees, hears, or reads outside the
courtroom, and he will not intentionally allow himself to be influenced in any manner by the
media. It is also important to remember that judges, like all people, have flaws. A guy may not
be able to completely forget what he has seen, heard, or read, and he may be affected by it. The

90
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).

45
judiciary is not independent unless the Courts of Justice can apply the law without being
influenced by public opinion.

When reading the Supreme Court's decision in Reliance Petrochemicals v. Proprietor of

Indian Express91 in light of the P.C. Sen92 decision, it's clear that the Court believes judges are
likely to be "subconsciously affected" by media coverage. Justice Frankfurter of the United
States Supreme Court, as well as Lord Scarman and Lord Dilhorne of the House of Lords, share
this viewpoint.

"No Judge fit to be one likely to be affected consciously but by what he sees or hears in Court
and by what is judicially proper for his deliberations," wrote Justice Frankfurter in the case of
John D. Pennekamp v. State of Florida93. Judges, on the other hand, are human, and we know
better than anybody else how powerful the unconscious is, and how treacherous the rational
process may be Because judges, no matter how steadfast, are human, the delicate duty of
dispensing justice should not be made any more difficult by reckless printing. The ability to
punish for contempt of court is a safeguard for the responsibilities that judges do, not for judges
as individuals. It is a condition of that essential function in a democratic society that human
beings, no matter how powerful, should not be pulled from their mooring of impartiality by the
undertone of extraneous influence in a particular controversy pending before a court and
awaiting judgement. The Constitution did not intend to provide the right to sway judges in order
to protect freedom of speech.

Several other reports have revealed that the tales published and broadcast by the media have the
potential to influence judges. "The tremendous tides and currents that engulf the rest of the men
do not turn aside and pass the Judges by," noted Cardozo, one of the finest judges of the
American Supreme Court, in his Nature of the Judicial Process, alluding to the influences that
enter into the conclusion of the judges 94. While judges may be impervious to influence in
general, the possibility of such influence cannot be ruled out entirely, according to the Canadian

91
1988(4) SCC 592
92
AIR 1970 SC 1821
93
Attorney General v. BBC, 1981

94
(1946) 328 US 331

46
Law Reform Commission95, and the sub-judice rule served an important function in protecting
the public's perception of impartiality in the case of judicial officers.

The husband of the deceased woman and his family were charged with dowry death under the
Indian Penal Code in a case96 where a woman committed suicide in her parents' house in
Calcutta. Following that, the husband filed a number of documents claiming that the woman was
a schizophrenic psychotic patient, while the woman's parents filed documents claiming that the
husband and his family demanded dowry. The trial had not yet begun. Bail was denied by the
lower courts. Later, the Supreme Court granted interim bail to the accused and, in issuing final
orders, alluded to certain news articles in a magazine with great disdain. The Court found two
pieces in the magazine to be biassed, stating only the claims made by the woman's parents and
omitting to mention the documents provided by the accused to indicate that the lady was
schizophrenic. "These types of articles appearing in the media would undoubtedly interfere with
the administration of justice," the Supreme Court said.

While a trial is underway, there must be restrictions on publications and news broadcasts. It is
just as critical to safeguard the public's image of judges' impartiality as it is to safeguard the risk
of prejudice. After all, as stated in R v. Sussex Justices: Ex parte McCarthy97, "justice should
not only be done, but it should obviously and unmistakably be seen to be done."

In the case of media restrictions, it is obvious from the preceding that a court examining the
appropriateness of a restriction placed on a fundamental right provided by Article 19 has a great
deal of discretion. All courts have a constitutional obligation to determine that the limits imposed
by a law on the media are reasonable and related to the objects established in Article 19(2) of the
Constitution.

The Supreme Court in Papnasam Labour Union v. Madura Coats Ltd 98 established some
principles and guidelines to be considered when determining the constitutionality of a statutory

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.

96
M.P. Lohia v. State of West Bengal, 2005(2) SCC 686
97
1924 (1) KB 256
98
(1995) 1 SCC 501

47
provision restricting fundamental rights guaranteed by Articles 19(1)(a) to (g) when challenged
on the basis of unreasonableness of the restriction imposed.

In Arundhati Roy, the Supreme Court addressed Frankfurter, J.'s opinion in Pennekamp v.
Florida99, in which the United States Judge stated: "If men, including judges and journalists,
were angels, there would be no problem with contempt of court." Extraneous influences would
have no effect on angelic judges, and angelic journalists would not try to sway them. Judges do
not have the ability to punish for contempt as a means of ensuring that they make decisions on
behalf of the society as impartially as the lot of men do. The ability to punish for contempt of
court is a protection for the role that judges do, not for judges as individuals."

The editor, printer, and publisher of a newspaper, as well as the petitioner, a labour union leader,
were summarily penalised and sentenced to six months in prison by the High Court in Rajendra
Sail v. M.P. High Court Bar Assn 100. Their error was that they published insulting remarks
against justices of the High Court made by a union activist during a workers' rally based on a
report filed by a trainee journalist. The remarks were to the effect that the High Court's
judgement was a waste of time and should be thrown away. The contempt charge against them
was affirmed by the Supreme Court on appeal, but the punishment was adjusted and decreased.

The Supreme Court ruled in D.C. Saxena (Dr.) v. Chief Justice of India101 that no one else has
the authority to accuse a judge of misconduct, partiality, or incapacity. The goal of such a
safeguard is to guarantee the independence of the judiciary, so that judges can determine matters
without fear or favour, as the courts were established by the Constitution to administer justice.

The restrictions imposed by Article 19(2) on the freedoms of speech and expression guaranteed
by Article 19(1)(a), including the freedom of the press, serve a two-fold purpose: on the one
hand, they specify that this freedom is not absolute and is subject to regulation, and on the other
hand, they limit the power of a legislature to restrict this freedom of press/media. However, the
legislature cannot limit this freedom beyond the limitations set forth in Article 19(2), and any
restriction must be justified and imposed only by or under the authority of a law, not by
executive action alone.
99
328 US 331 : 90 L Ed 1295 (1946)
100
(2005) 6 SCC 109 per Y.K. Sabharwal, J

101
(1996) 5 SCC 216

48
The Press Council of India (PCI) was founded to safeguard press freedom and promote news
reporting standards in India. Under the Press Council Act of 1978, if a person believes a news
organisation has engaged in professional misconduct, the PCI can "warn, rebuke, or condemn the
newspaper," or order the newspaper to "publish the complainant's contradiction in its next issue"
if they agree with the complainant. Given that these procedures can only be used after news
materials have been published and that they do not entail particularly severe penalties, their
effectiveness in preventing the dissemination of unfair information appears to be limited.102

The PCI has also produced a set of suggested journalistic conduct guidelines to go along with
these capabilities. The press is encouraged to "eschew publication of false, unfounded, graceless,
misleading, or distorted content" under these standards, which emphasise the significance of
accuracy and fairness. Any criticism of the judiciary should be published with extreme
discretion, according to the rules. Reporters should also avoid making one-sided inferences and
try to maintain an objective and sober tone at all times, according to these standards. However,
because these standards cannot be legally enforced, they are frequently disobeyed. The PCI also
has criminal contempt powers to prevent unfavourable media reports from being published. The
PCI, on the other hand, can only use its contempt powers in relation to pending civil or criminal
matters.

13.International Perspective
A). Universal Declaration on Human Rights: The 1948 Universal Declaration of Human
Rights recognises a number of rights that should be noted. Article 10 addresses an accused
person's right to a fair and public hearing before an independent and impartial tribunal in the
determination of his rights and obligations, as well as any criminal charge brought against him.

102
http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf

49
Article 11 of the Universal Declaration deals with the right to be presumed innocent
and reads thus:

Article 11 (1) Everyone charged with a criminal offence has the right to be believed
innocent unless proven guilty in a public trial in which he is given all the protections he
needs to defend himself.
(2) No one shall be judged guilty of a criminal offence for an act or omission that did not,
at the time, constitute a criminal offence under national or international law. No penalty
may be imposed that is greater than the one in effect at the time the criminal offence is
committed.

Article 12 deals with the person’s privacy rights and reads thus:

Article 12: No one should be subjected to arbitrary invasions of his or her private, family,
home, or correspondence, or attacks on his or her honour or reputation. Everyone has a
legal right to be protected from such intrusions and attacks.

B). The American Supreme Court and the Circuit Courts: Our Superior Appellate
Courts, which are similar to our High Court in that they, too, are superior appellate
courts, have taken a split decision on this issue. The American Supreme Court, caught
between two fundamental rights at odds, began by preserving the rights of the accused,
but gradually changed to protecting the rights of the media. However, it established some
tests for dealing with the consequences of pre-trial publicity, as well as remedies for
dealing with such negative effects. These testing and treatments may be beneficial to us
as well.

The Supreme Court of the United States was asked in Sheppard v. Maxwell to consider
whether Sheppard was denied a fair trial in his state conviction for the second-degree
murder of his wife because the trial judge failed to adequately protect Sheppard from the
massive, pervasive, and prejudicial publicity surrounding his prosecution. Clark, J., spoke
for the Court and found that Sheppard did not receive a fair trial as required by the
Fourteenth Amendment's due process provision, and that the verdict should be reversed.

50
 The Court established the realistic risk of adverse information being released prior to the
trial, impeding a fair trial. The conviction should be overturned if such a realistic
likelihood arises. As a result, the Court changed from the presumption of prejudice to the
reasonable likelihood of the deceased's family, offering their account of the tragedy and
extensively quoting the deceased's father's version of the case.

The Indian judiciary has largely ignored the conflict between press freedom and the right
to a fair trial. However, this issue has piqued the interest of the media around the world,
as well as in India. Thirty-nine eminent legal experts and media professionals met in
Madrid for three days in 1994. One of the fundamental concepts enshrined in the Madrid
Principles on the Media's Relationship with Judicial Independence. The media has the
responsibility and right to gather and disseminate information to the public, as well as to
comment on the administration of justice, including cases before, during, and after trial,
without jeopardising the presumption of innocence. As a result, even the Madrid
Principles impose a restriction on the media in terms of not violating the presumption of
innocence.

14.Judicial Pronouncements
I. In the landmark judgement in R.K Anand vs Delhi High Court:

The Supreme Court looked at the significant issue of Trial by Media. The case arose from 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 in

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which six people were killed by a speeding BMW car driven by the scion of a wealthy and
powerful family. While the case was still pending after eight years, NDTV aired a sting
operation to uncover how a senior lawyer representing the accused was negotiating a sell out in
favour of the defence with the cooperation of the Special Public Prosecutor. The Special Public
Prosecutor and the Defense were found guilty of contempt of court and forbidden for four
months from appearing in the Delhi High Court and its subordinate courts.

The appellant argued in the Supreme Court that the TV station had engaged in a media trial and
that it could only have telecast the sting after receiving operational licence from the Media. The
Supreme Court dismissed this argument, stating that such a course would not be an exercise in
journalism, but rather would serve as a special vigilance agency for the court. After a brief
examination, the concept appears to be highly revolting, both to the court and to the media.

Judgement: The court ruled that NDTV was not guilty of engaging in a media trial. R.K
Ananad's appeal was dismissed, and he was given notice that his sentence will be increased.
However, the public prosecutor's appeal was permitted, and his conviction for criminal contempt
was overturned, but he was found guilty of the wrongdoing.

II. Aarushi Murder Case: The famous Noida double murder case, in which parents
were accused of murdering their daughter and a servant. After every high-profile case is
solved, the media engages in an intra-industry introspection session on their participation
in the case. To claim credit for the firsts, media houses have gone berserk. The name of
the game is blame-storming.

The media is performing a similar exercise now that the Arushi murder case has reportedly been
solved. This time, a discussion about how the media handled the case is ripe. Even before the
evidence could be presented in court, the media had already declared the outcome; not once, but
several times. Fortunately, since dispensing justice is not the media's core function, they clearly
erred. Of course, they were aided by the Noida police's shoddy evidence collecting (the police
are too thick-skinned to accept their fault).

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The perpetrators (as revealed by the media) were numerous. Hemraj, the domestic helper, was
the first (who was later found to be one of the dead). Dr. Rajesh Talwar was the next speaker (the
father of Arushi). Rumors about Dr. Talwar's extramarital affair with a colleague and neighbour
circulated, adding to the media's hysteria. Hemraj was also tied to Arushi. A swarm of maids and
labourers proceeded to get caught in the net. Targeting innocent people went on like a detective
show on TV, with eye-catching headlines, until the compounder Krishna ultimately
acknowledged to killing Arushi in retaliation for Dr. Talwar's abuse. The media was so interested
that the Supreme Court of India harshly chastised the media on August 6, 2008, for acting as if it
were a super investigative agency and ruining the character of the doctor couple (Rajesh and
Nupur Talwar) whose daughter Arushi Talwar was murdered.

III. Delhi Gang Rape Case: The gang rape case in Delhi has resurfaced in the news. The
reason for this is that the tragic case's first verdict will be handed down by a juvenile
court on one of the six accused a youngster. In reality, the incident in December 2012 is
imprinted in the minds of people all around the world as a tragic tragedy that once again
brought the problem of women's safety and increasing sexual assaults on them to the
forefront of public debate. The horrific rape by six men on a moving bus, which resulted
in the victim's death, drew people to the streets, not only to demand safety laws, but also
to force everyone in their homes to consider the ordinarily taboo subject of gender
violence.

There were proposals for social transformation focused on equality for men and women in
opportunity and access, education, and family structures, rather than on clichés of being holistic.
The media, both domestic and international, had a crucial role in igniting this controversy. As
soon as the news of the rape became public, the media flew into a frenzy, not only tracking the
case but also encouraging people to reflect. As people watched in horror the victim's final
moments, a responsible sector of the media implored people to be a part of the country's
dramatic reforms while continuing to express public pain, mourning, and reconciliation.

However, when covering the case, the media was accused of being activist and leading its own
trial. As the movement to bring the gang rape victim to justice gained traction, the country
witnessed enormous protests that spilled out onto the streets. The protests were covered by the

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media day and night, with reporters following demonstrators to every street and corner, giving
voice to their demands for justice and putting them to the forefront of political debate.
Furthermore, it highlighted the rising crime statistics against women, particularly in the nation's
capital. In essence, the media exposed the mounting dissatisfactions of an entire aspirational
urban class and age.

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

While the media created a momentum among society and government to focus on criminal
activities and take prompt steps to prevent such heinous crimes, it is undeniable that it became
engrossed in the typical squabbling over political parties, bureaucrats, and attorneys. In other
places, there was also an onslaught of reckless story-telling fueled by indifference, manufactured
revolt, incompetence, and a lack of openness. As the discussion over rape laws gained traction,
the media acted as if it were a dictator, believing that every male was a potential rapist and hence
calling for harsher punishment, including the death penalty. There is little doubt that a big
segment of the media, swept up in the wrath that followed the rape, forgot that laws must work
equally for all people, not just those who fit the popular narrative.

One can be certain that the December 16 gang rape incident will continue to be a touchstone
when discussing issues concerning women's safety, and that democracy's fourth pillar can
transform national shame into national justice by instilling trust in institutions designed to
protect the country's citizens.

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 15.Conclusion
The media has a larger audience and a more effective and direct approach to the public. It is for
this reason that it is referred to as the fourth pillar of a democratic society. "The hand that
dominates the press, the radio, the television, and the widely circulated magazine, rules the
country," a US appellate court judge Learned Hand said of the media's dominance. 103 Concerns
that the legal system is uncreative, closed-minded, and technophobic about the free press/fair
trial issue should not be dismissed without consideration. It should not turn down any
opportunity to connect with the media and the public simply because it dislikes or criticises press
performance. The media frequently plays the role of society's alter ego, and hence should
accurately reflect its attitude, thinking, and concerns, as well as report on events of public
interest. While presenting facts, it is necessary to provide context and analyse their benefits and
drawbacks in order for people to understand their relevance and make informed opinions about
them.

The courts must uphold press freedom because of the vital societal interests it serves: the
advancement of democracy, the vitality of the marketplace of ideas, self-expression, and public
scrutiny of the administration of justice. However, the courts are not endorsing features of the
media that lean toward commercialism, sensationalism, shallowness, or prurient behaviour.

The right to a fair trial does not preempt the press's right to freedom of expression. Though read
under Article 21 of the Indian Constitution, the right to a fair trial is more concerned with the
State's conduct in providing a fair trial to the accused rather than a private publisher or journalist.
The New Zealand courts' position is admirable: "In the event of a conflict between the notion of
freedom of speech and the standards of a fair trial, the latter should prevail, all other things being
equal." In India, the courts have taken a similar stance.104 "Liberty of the press is secondary to the
administration of justice," the Punjab High Court stated in Rao Harnarain v. Gumori Ram105.
A journalist's primary responsibility is to report, not to judge cases." "The responsibility of the
press is more than the obligation of an individual since the press has a broader audience," the

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)

104
Solicitor General v. Wellington Newspapers Ltd., 1995 (1) NZLR 45

105
AIR 1958 Punjab 273

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Orissa High Court stated in Bijoyananda v. Bala Kush106. The freedom of the press must neither
devolve into a licence to attack litigants and shut down the courts, nor can it entail an
unrestrained right to smear the reputations of decent people." It would be fantastic if the
Supreme Court of India gave this harmonious structure its seal of approval.

The media must also realise that, while the courts support it because of the societal interests it
advances, it must accept and act on all forms of reasonable criticism, just as the courts must
accept and act on all forms of fair criticism. It must also accept that, due to the nature of its
institution, it has a significant capacity to obstruct the proper administration of justice.

One of the pillars of a rule-of-law jurisprudential system is the right to a fair trial. When there is
a conflict between the right to a fair trial and the right to free speech, the former is likely to win
until sufficient grounds can be demonstrated to justify the expression or the need for it. It is
important to note that the right to freedom of the press is derived from the right to freedom of
speech and expression, which is subject to reasonable restrictions as outlined in Article 19. (2).
The Contempt of Courts Act, 1971 falls under Article 19(2), which clearly mentions "contempt
of court" as a reason. This statute specifically restricts the press's right to free expression. The
Law Commission of India, in its 200th Report, Trial by Media: Free Speech and Fair Trial under
the Criminal Procedure, endorsed this premise. To avoid a conflict of equal-weight rights, it is
vital for both sides of the issue to work toward greater mutual understanding and respect.

It's important to keep in mind that freedom of expression isn't ultimate, limitless, or unrestricted.
The judiciary is made up of human beings, and as such, they are sometimes driven by factors
other than an objective perspective of law and justice. There is no judge who is fully immune to
the media's frenzy. The media needs to be more self-regulatory. Persons in charge of media
affairs are supposed to guarantee that the media trial does not obstruct a fair investigation by the
investigative agency, and, more crucially, does not bias the accused defence in any way. If each
of these things prevents a judicious and impartial inquiry and trial, it will be a farce of justice.
Even an occasional exercise of the court's power to punish the condemners is enough to prevent
most people from saying anything that would prejudice a trial proceeding or tend to violate
natural justice principles. The entire goal would be destroyed if the government began to regulate

106
AIR 1953 Orissa 249.

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the media. Instead, a vigorous and civic engagement by the people with their polity and political
class would be a superior option. To put it another way, a conflict that is both antagonistic and
cooperative. Civil society that is informed developed, and involved may be the best watchdog
over governments and the media. This would restore and balance the polity, as well as
reestablish some sense of normalcy among the country's institutions.

BIBLOGRAPHY

Books:

a. Madhavi Goradia Divan, Facts upon Media Law (Eastern Book Company LKO, 1st Edn.
2010)
b. Durga Das Basu , Law of the Press
c. Divan Goradia Madhavi, Facts of media law, First Edition, 2006, Eastern Book
Company, Lucknow

Articles:

a. Trial By Media: A Legal Dilemma Resolved With Reference To Jessica Lal at legal
services India
b. Trial by Media Prejudice and the Sub judice
c. 200th Law Commission Report
d. https://www.lawctopus.com/academike/media-trials-india/
e. https://www.lawctopus.com/academike/fair-trial-judiciary-media-needbalance
f. https://www.lawteacher.net/free-law-essays/commercial-law/effect-oftrial-by-media-
before-courts-law-essay.php
g. http://www.legalserviceindia.com/article/l237-Trial-By-Media.html

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