JUDICIAL STRICTURES PERTAINING TO TRIAL BY MEDIA: A

CRITICAL ANALYSIS

A LONGISH TERM PAPER SUBMITTED TO

SAVITRIBAI PHULE PUNE UNIVERSITY (FACULTY OF LAW)

SUBMITTED BY

ANWAR KHAN

I YEAR LL.M, SEMESTER-I, ROLL NO.06

UNDER THE GUIDANCE OF

DR. GEETANJALI PAYGUDE

(ASST.PROFESSOR)

POST GRADUATION TEACHING DEPARTMENT OF LAW AND

Ph.D. RESEARCH CENTRE

A. K. K. New Law Academy & Ph.D. (Law) Research

Center
2390 B, K. B. Hidayatullah Rd, Azam Campus, Pune, Maharashtra 411001

DECEMBER, 2022
 CERTIFICATE OF THE GUIDE

This is to Certify that the Longish Term Paper-I titled “JUDICIAL STRICTURES
PERTAINING TO TRIAL BY MEDIA: A CRITICAL ANALYSIS” submitted by
Mr. Anwar Khan as a part of internal assessment in Semester-I of the First Year Of
LL.M Course is to the best of my knowledge to his own research work.

The research has been conducted under my supervision and guidance and may be
accepted for consideration.

Place: A.K.K. New Law Academy, Pune (Dr. Geetanjali Paygude)

Asst. Professor
Dated: 08 /12 /2022 Dept. of Law

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 DECLARATION

I, the undersigned, solemnly declare that this Longish Term Paper –I, titled
“JUDICIAL STRICTURES PERTAINING TO TRIAL BY MEDIA: A
CRITICAL ANALYSIS” is based on my own research work, carried out during the
course of my study of Semester-I of the First Year Of LL.M Course for the academic
year 2022-2023 under the supervision and guidance of my faculty advisor DR.
GEETANJALI PAYGUDE.

I assert that the statements made and the conclusions drawn are the outcome of the said
research work. It further declares that, to the best of my knowledge and belief, proper
references have been given and it does not contain any part of any work which has been
submitted for the award of any other degree in this university or any other university.

Place: A.K.K. New Law Academy, Pune

Dated: 09 /12/2022 (Anwar Khan)
Roll. No. 06

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 Acknowledgement

I have taken efforts in this project. However, it would not have been possible without
the kind support and help of many individuals. I would like to extend my sincere thanks
to all of them. I am highly indebted to Dr. Geetanjali Paygude for putting trust on me
and giving me a research topic as such as this and for having the faith in me to deliver.

It is with her guidance and constant supervision and support in completing the project.
I would like to express my gratitude towards the Principal Dr. Rashid Shaikh and
members of A.K.K. New Law Academy, Pune for their kind cooperation and
encouragement which helped me in completion of this project.

My thanks and appreciations also go to my colleagues in developing the research work

and people who have willingly helped me out with their abilities.

(Anwar Khan)
LL.M.
Semester - I
Roll. No. 06

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 Table of Contents
1. INTRODUCTION…………………………………………………………...5

2. RESEARCH METHODOLOGY……………………..……………………..7

2.1 Statement of Problem

2.2 Hypothesis of Research Study
2.3 Objectives of the Study
2.4 Significance of the Study
2.5 Scope of the Study
2.6 Research Methodology
3. CONCEPTULIZATION…………………………………………………….9
3.1 Concept of freedom of Press
3.2 Trial by Media: It’s Effect

4. SCOPE OF THE POWERS OF THE PRESS

AND REASONABLE RESTRICTIONS..………………………………….16

4.1 Scope of the powers of the Press

4.2 Reasonable Restrictions on the Freedom of Press

5. CONFLICTING RIGHTS AND FREEDOM OF SPEECH

AND EXPRESSION………………………………………………………..25

6. VIOLATION OF CONSTITUTIONAL AND

LEGISLATIVE PROVISIONS BY MEDIA TRIAL ………..……………..28

7. REGULATIONS TO CONTROL MEDIA TRIAL………………..…….…31

8. JUDICIAL STRICTURE AND CASE STUDY………………...………….33

8.1 Journey of freedom of press through judicial pronouncement

8.2 Case Study

9. CONCLUSION……………………………………………………………..39

10. SUGGESTIONS……………………………..…………………………......41

11. BIBLIOGRAPHY……………………………..…………………………....43

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CHAPTER- I
INTRODUCTION

Trial by media is a phrase popular in the late 20 th century and early 21st century to
describe the impact of television and newspaper coverage on a person's reputation by
creating a widespread perception of guilt or innocence before, or after, a verdict in a
court of law. The Law Commission of India in order to harmonize the aforesaid two
rights Freedom of Press Versus Right to free and fair trial, in its 200th Report
recommended various amendments to the Contempt of Court Act 1971 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'.

➢ During high-publicity court cases, the media are often accused of provoking an
atmosphere of public hysteria akin to a lynch mob which not only makes a fair
trial nearly impossible but means that regardless of the result of the trial the
accused will not be able to live the rest of their life without intense public
scrutiny.
➢ The subject of Trial by Media is discussed by civil rights activists, constitutional
lawyers, judges and academics almost every day in recent times. With the
coming into being of the television and cable-channels, the amount of publicity
which any crime or suspect or accused gets in the media has reached alarming
proportion.
➢ We are aware that in a democratic country like ours, freedom of expression is
an important right but such aright is not absolute in as much as the Constitution
itself, while it grants the freedom under Article 19(1) (a), permitted the
legislature to impose reasonable restriction on the right, in the interests of
various matters, one of which is the fair administration of justice as protected
by the Contempt of Courts Act, 1971.

In India, freedom of the press is implied from the freedom of speech and expression
guaranteed by Article 19(1) (a). There is no specific provision ensuring freedom of
press as such. The freedom of the press is regarded as a, species of which freedom of
expression is a genius’. Thus, being only a right flowing from the freedom of speech,
the freedom of press in India stands on no higher footing than the freedom of speech of
a citizen, and the press enjoys no privilege as such distinct from the freedom of the
citizen. The Supreme Court had laid emphasis in several cases on the importance of
maintaining freedom of press in a democratic society. The press seeks to advance public
interest by publishing facts and opinions without which an independent voters cannot
make responsible judgments. Articles and News are published in the press from time to
time to expose the weakness of the government. This leads at times to the suppression
of the freedom of the press by the government.

“A Free press stands as one of the great interpreters between the Government and the
people. To allow it to be fettered is to fetter over selves. ‘Freedom’ means absence of
control, interference or restrictions. Hence, the expression ‘Freedom of press’ means

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the right to print and publish without any interference from the state or any other public
authority. But this, Freedom, like other freedoms, cannot be absolute but is subject to
well known exceptions acknowledge in the public interests, which in India are
enumerated in Article 19 of the constitution.

The prime purpose of the free press guarantee is regarded as creating a fourth institution
outside the government as an additional check on the three official branches:-
•Executive
•Legislative
• Judiciary
It is the primary function of the press to provide comprehensive and object information
on all aspects of the country’s social, economic and political life. The press serves as a
powerful solution of power by government officials and as a mean for keeping the
elected officials responsible to the people whom they were elected to serve.

Speaking about the utility of freedom of press in Indian Express Newspapers v. Union
of India the court observes:-
“The expression “freedom of the press” has not been issued in article 19 but it is
comprehended within article 19(1) (a). The expression means freedom from
interference from authority which would have the effect of the interference with the
content and the circulation of the newspapers and, cannot be any interference with that
freedom in the name of public interest. Freedom of press is the heart of social and
political intercourse it is the primary duty of the courts to up hold the freedom of the
press and invalidate all laws or administrative actions which interfere with it contrary
to the constitutional mandate.”

The question of validity of censorship came up for consideration in the case of Brij
Bhushan v. State of Delhi. In that case the Chief Commissioner of Delhi, in pursuance
of Section 7 of the East Punjab Safety Act, 1949 issued an order against the printer,
publisher and the editor of an English Weekly of Delhi, called the Organizer, directing
them to submit for analysis in duplicate before publication till further orders, all
communal matters and news and views, about the Pakistan including the photographs
and cartoons other than those derived from official source of supplied by the news
agencies.

The Court struck down the order, observing that the press which is the essential part of
the freedom of the speech and expression declared by Article 19(1) (a). Similarly,
prohibiting newspaper from the publication of its own views or the views of the
correspondence about the burning topic of the day is the serious encroachment on the
valuable rights of the freedom of speech and expression.1

____________________________
1
Kirti S. Soni, Freedom of Press under Indian Constitution (2010),
http://www.legalserviceindia.com/article/l448-Freedom-of-Press.html.

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CHAPTER – II
RESEARCH METHODOLOGY

2.1 STATEMENT OF PROBLEM

As discussed above, the contrary roles played by media can be clearly noted. In the
Guwahati molestation case and Aarushi Talwar case it can be seen how carelessly
media acted. Whereas, in Jessica Lal murder case, Priyadarshini Matoo and delhi gang
rape case media played a crucial & substantial role and helped conduct media trial.

In the light of above introductory remarks, it is asserted that the existing press
regulatory mechanism is weak and inadequate to deal with the issues of news
dissemination.

In the present research the researcher will critically analyze the concept of media trial,
role played by media in recent cases.

2.2 HYPOTHESIS OF RESEARCH STUDY

• The restriction provided in Article 19(2) is not followed by media.

• Legislature is not playing a substantial role in controlling limitations of media.

2.3 OBJECTIVE OF THE STUDY

• To examine the contrary roles played by media (initially concrete role and in
latter case it crossed it’s limits).

• To suggest the best possible way to government to check & control unlimited
powers given to media.

• To check if media affects the decision of judge by giving its prejudgement.

• To know constitution provision regarding freedom of press.

2.4 SIGNIFICANCE OF THE STUDY

The significance of the topic of study lies in the truth that In India, trial by media causes
a lot of prejudice to the persons who are either being made accused or under trial, whose
guilt still not proved as they find themselves in a pathetic situation with no one to fall
back upon and find themselves powerless. A lot of precious time is wasted in running
from pillar to post for the sake of getting justice and to prove their innocence. As such
this study gains significance in order to find solutions and ensure that the media be
discouraged not to conduct trial parallel to judiciary.

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2.5 SCOPE OF THE STUDY

In the present research, the researcher has limited the scope of research to Article 19
of Indian Constitution. Further the case laws cited have their jurisdiction in India.

2.6 RESEARCH METHODOLOGY

The method adopted for doing this research is doctrinal. The researcher mainly
emphasized on the different kinds of The study conducted by various researcher
wherein secondary data is involved which includes books, articles, journals, newspaper
articles, acts, rules and regulations, judgments and published reports and also have
referred to some of the official sites and articles; Several references have been made,
which have been foot-noted for the convenience.

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CHAPTER III
CONCEPTULIZATION

3.1 CONCEPT OF FREEDOM OF PRESS:-

Freedom of press is essential to political liberty. When man cannot freely convey their
thoughts to one another, no freedom is secured, where freedom of expression exists the
beginning of a free society and means for retention of liberty are already present. Free
expression, therefore, is unique among liberties.2

Article 19(1)(a) of the Indian constitution does not expressly mention the liberty of
press but it has been held that liberty of the press is included in the freedom of speech
and expression. The “press has no special rights which are not to be given or which are
not to be exercised by the citizen in his individual capacity. The editor of a press or the
manager is merely exercising the right of the expression and therefore, no special
mention is necessary of the freedom of the press.3

The expression 'freedom of press' has not been used in Article 19 of the Constitution
but is comprehended within Article 19 (1) (a) which guarantees freedom of speech and
expression. Freedom of press means freedom from interference from authority which
would have the authority of interfering with the content and circulation of newspapers.
There could not be any kind of restriction on the freedom of speech and expression
other than those mentioned in Article 19 (2) and it is clear that there could not be any
interference with that freedom in the name of public interest. Freedom of press is the
heart of social and political intercourse. The press has now assumed the role of the
public educator making formal and non-formal education possible in a large scale
particularly in the developing world, where television and other kinds of modern
communication are not still available for all sections of society.
The purpose of the press is to advance the public interest by publishing facts and
opinions without which a democratic electorate cannot make responsible judgments.
With a view to checking malpractices which interfere with free flow of information,
democratic constitutions all over the world have made provisions guaranteeing the
freedom of speech and expression laying down the limits of interference with it. It is
the primary duty of all the national courts to uphold the said freedom and invalidate all
laws or administrative actions which interfere with it, contrary to the constitutional
mandate.

_________________________________
2
Brij Bhushan v. State of Delhi, AIR 1950 SC 129
3
Dr.J.N. Pandey,“the constitutional law of india”, 48th edition, published by central law agency, pg 195

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Freedom of press has always been a cherished right on all democratic countries. The
newspaper not only survey news but also ideas, opinion and ideologies, besides much
else. They are supposed to guard public interest by bringing to fore the misdeeds,
failings and lapses of the government and other bodies exercising governing power.
Rightly, therefore, it has been described as Fourth Estate as it act as watchdogs that
check and balance the powers of the other three branches of government – the
executive, the legislature and the judiciary. It is the primary function of the press to
provide comprehensive and objective information on all aspects of the social, economic
and political life.4

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

Democracy depends on the free flow of accurate, responsible and trustworthy

information. An informed citizenry is essential in order to build a strong and dependent
society. An informed citizens, need to have access to information. In other words, the
viability of democracy is dependent on citizens seeking out crucial information, having
the ability to access and appraise it, and to engage in public discussions about issues of
importance. Information as we know is power.

In democracy, the Government cannot function unless the people are well informed and
free to participate in public issues by having the widest choice of alternative solutions
of the problems that arise. The daily newspaper and the daily news on electronic media
are practically the only material which most people read and watch. The people can,
therefore, be given the full scope for thought and discussion on public matter, if only
the newspapers and electronic media are freely allowed to represent different points of
views, including those of the opposition, without any control from the Government.

____________________________
4
Indian express newspaper v. Union of India (1985) 1 SCC 641

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The following suggestions are offered in this connection:

• Freedom of press may be inserted as a specific fundamental right under Article 19

of the Constitution of India.
• Parameters of freedom of press should be clearly earmarked.
• Information must be available at an affordable cost within specified, definite and
reasonable time-limits.
• Free press should not violate right to privacy of an individual.
• Free press must be law enforcing and preventive of crime.
• Rule of law must be followed by the free press.
• Influence through free press upon the judiciary should not be exercised.

In Indian Express Newspapers v/s Union of India, it has been held that the press plays
a very significant role in the democratic machinery. The courts have duty to uphold the
freedom of press and invalidate all laws and administrative actions that abridge that
freedom. Freedom of press has three essential elements. They are: freedom of access to
all sources of information, Freedom of publication, and Freedom of circulation.

A citizen’s right to propagate and publish extends not merely to the matter to which he
was entitled to circulate but also to the volume of circulation. Freedom of speech could
not be restricted for the purpose of regulating commercial aspect of the activities of the
newspaper. A newspaper cannot survive and sell itself at a price which is not within the
reach of a common man unless it is allowed to take in advertisement.

In words of the Father of the Nation, Mahatma Gandhi, "The role of journalism should
be service. The Press is a great power, but just as an unchained torrent of water
submerges the whole countryside and devastates crops, even so an uncontrolled pen
serves but to destroy."5

___________________________________
Hima Lawrence, “has the time come to review press freedom” available at
5

<http://www.legalserviceindia.com/articles/press_freedom.htm>

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There are four basic points which form the crux of the concept of press freedom. They
are as follows:

1. Liberty of the press is essential to the state.

2. No previous restraints should be placed on the publications.

3. That does not mean there is press freedom for doing what is prohibited by law.

4. Every freeman has the undoubted right to lay what sentiment he places before
the public, but if he publishes what is improper, mischievous or illegal he must take the
consequence of his own temerity.

Some of the case laws in which the court held the laws restricting the freedom of press
as unreasonable:-

• In Romesh Thapper v State of Madras6, a law banning entry and circulation of

journal in a state was held to be invalid. The Supreme Court struck down as violative
of Article 19(1) (a), the Madras Maintenance of Public Order Act 1949, whose
section 9[1A] sought to impose restrictions on the freedom of press not against
undermining the security of the state or its overthrow but for the wider purpose of
securing public safety or maintenance of public order; as in the opinion of the Court
the law fell outside the scope of Article 19(2). The Court laid down the following
rule that so long as the possibility of a law being applied for purposes not sanctioned
by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional
and void since it is not severable.

• The question of validity of censorship came up for consideration in the case of Brij
Bhushan v. State of Delhi7. In that case the Chief Commissioner of Delhi, in
pursuance of Section 7 of the East Punjab Safety Act, 1949 issued an order against
the printer, publisher and the editor of an English Weekly of Delhi, called the
Organizer, directing them to submit for analysis in duplicate before publication till
further orders, all communal matters and news and views, about the Pakistan
including the photographs and cartoons other than those derived from official
source of supplied by the news agencies. The Court struck down the order,
observing that the press which is the essential part of the freedom of the speech and
expression declared by Article 19(1)(a). Similarly, prohibiting newspaper from the
publication of its own views or the views of the correspondence about the burning
topic of the day is the serious encroachment on the valuable rights of the freedom
of speech and expression. It was held that such censorship on a journal previous to
its publication would amount to infringement of Article 19(1)(a).

__________________________________________
6
AIR 1950 SC 124; Dr. J.N.Pandey, the constitutional law of India; Allahabad, central law agency;
48th edition
7
AIR 1950 SC 129; Dr. J.N.Pandey, the constitutional law of India; Allahabad, central law agency; 48th
edition

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In Sakal Papers Ltd v. Union of India8, the Daily Newspaper (Price and Control)
Order, 1960, which fixed a minimum price and number of pages which a newspaper
was entitled to publish was challenged as unconstitutional by the petitioner on the
ground that it infringed the liberty of press. The petitioner was required to increase the
price of their newspaper without increasing the pages. An increase in price without any
increase in number of pages would reduce the volume of the circulation. The State
justified the law as a reasonable restriction on a business activity of a newspaper in the
interest of the general public.

The Court struck down the order rejecting the State argument. It said that the right of
freedom of speech and expression cannot be taken away with the object of placing the
restrictions on the business activity of a citizen. Freedom of Speech can be only being
restricted on the grounds mentioned in clause (2) of Article 19. It cannot, like the
freedom to carry on business, be shortened in the interest of the general public

The Supreme Court held in the R. Rajagopal vs. State of Tamil Nadu9, famously known
as Auto Shankar case that the government has no authority in law to impose a prior
restraint upon publication of defamatory material against its officials. (12) The Court
also observed that to propagate ones ideas every citizen has a right to publish,
disseminate and circulate them to reach any class and any number of readers subject of
course to the limitations permissible under a law competent under Article 19(2).

In Bennet Coleman and Co. v. Union Of India10, the validity of the News print Control
Order which fixed the maximum number of pages (10 pages) which a newspaper could
published was challenged as a violative of fundamental rights guaranteed under Article
19 (1)(a) and Article 14 of the constitution. The Supreme Court rejected this contention
and approved the “effect” test whether the “effect” of impugned law is to abridge a
fundamental right, its object or subject matter will be irreverent.

The Court ruled that a newsprint policy like the one before the Court was violative of
the freedom of the press because it imposed restrictions which severely constricted
newspapers in adjusting their page number and circulation and also curtailed the area
of advertisement. The Court ruled that loss of advertisements seriously affects the
circulation of a newspaper and a restraint on advertisements would clearly affect the
freedom of the press.

And hence it is also very necessary to limit this influential institution's powers.
"Freedom of Press is not absolute, unlimited and unfettered at all times and in all
circumstances as it would lead to disorder and anarchy.

_____________________________
8
AIR 1962 SC 305
9
(1994) 6 SCC 632; Dr. J.N.Pandey, the constitutional law of India; Allahabad, central law agency;
48th edition 10AIR 1973 SC 106; Dr. J.N.Pandey, the constitutional law of India; Allahabad, central
law agency; 48th edition

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3.2 TRIAL BY MEDIA: IT’S EFFECT

3.2.1 TO THE VICTIM

If media exercises an unrestricted or rather unregulated freedom in publishing

information about a criminal case and prejudices the mind of the public and those who
are to adjudicate on the guilt of the accused and if it projects a suspect or an accused as
if he has already been adjudged guilty well before the trial in court, there can be serious
prejudice to the accused.

1. In fact, even if ultimately the person is acquitted after the due process in courts,
such an acquittal may not help the accused to rebuild his lost image in society.

2. If excessive publicity in the media about a suspect or an accused before trial

prejudices a fair trial or results in characterizing him as a person who had indeed
committed the crime, it amounts to undue interference with the ―administration of
justice, calling for proceedings for contempt of court against the media.
3. Other issues about the privacy rights of individuals or defendants may also arise.
Public figures, with slender rights against defamation are more in danger and more
vulnerable in the hands of the media. after the judgment in R. Rajagopal v. State of
Tamil Nadu11.

3.2.1 TO OTHERS

1. Suspects and accused apart, even victims and witnesses suffer from excessive
publicity and invasion of their privacy rights. Police are presented in poor light by
the media and their morale too suffers. The day after the report of crime is
published, media says ‘Police have no cue’.

2. Then, whatever gossips the media gathers about the line of investigation by the
official agencies, it gives such publicity in respect of the information that the person
who has indeed committed the crime, can move away to safer places. The pressure
on the police from media day by day builds up and reaches a stage where police feel
compelled to say something or the other in public to protect their reputation

3. The media also creates other problems for witnesses. If the identity of witnesses is
published, there is danger of the witnesses coming under pressure both from the
accused or his associates as well as from the police. At the earliest stage, the
witnesses want to retract and get out of the muddle .Witness protection is then a
serious casualty.

_________________
11
AIR 1995 SC 264

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3.2.3 EFFECT ON JUDICIARY

Another worrying factor and one of the major allegations upon ‘media trial’ is
prejudicing the judges presiding over a particular case. The media create a series of
unconscious pressures on a juror in a high-profile trial. Jurors know that they are being
watched by the world. They are not only making a decision for themselves, but they are
making a statement for their family, co-workers, community, and society as a whole.
This elevates their verdict to a level beyond the evidence. In interviewing jurors after
the trial of Hollywood madam Heidi Fleiss, many jurors expressed how they hoped that
the police would use their resources more wisely than to prosecute victimless crimes.
When talking about the testimony of Dr. Irwin Golden, who was the coroner in the
Simpson case, juror Marsha Rubin-Jackson said:

But it comes to the point in this particular case where Dr. Golden has made thirty errors.
Now, you can't tell me this man has not made errors on previous autopsies . . . . But this
just happened to be a case that came to the court as a 'high-profile' case and the problems
were brought to everyone's attention

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CHAPTER IV
SCOPE OF THE POWERS OF THE PRESS AND REASONABLE
RESTRICTIONS

4.1 SCOPE OF THE POWERS OF THE PRESS

According to Hohfeld, rights in the wider sense include powers, immunities, privileges
and liberties. These powers which are enumerated in the forthcoming pages can be
describes as rights
or immunities, privileges or liberties It is true that there is no separate freedom for press
in the Indian constitution. But it is not the case that the press and media do not get any
rights. On the contrary, various rights of press are not only recognized, but also
protected. It is the judiciary who protects the rights of the press and media through its
various thoughtful judgments. The judiciary has time and again upheld the freedom of
expression of media from the arbitrary actions of the state who has tried to curtail the
freedom of press taking various defences. The difficulty in protecting the press is that,
there are various components of press, these components cannot be limited, and the
new components keep on evolving with the development in technology. Though it is
not possible to discuss all the components, a few are discussed.

4.1.1 Power to circulate the information:

This right is the cornerstone of freedom of press. The freedom of press will not be of
any significance without this right. Without the right to circulation, 55 Dias RMW;
Jurisprudence.,(Butterworth&co.1994) 45 one cannot say that the freedom of
expression is being enjoyed at all. For the press this right is of great significance. It is
through circulation that the press reaches to the masses. The right to circulation was
implied in the right to press and no specific mention was felt necessary, till the case of
Romesh Thapar v State of Madras12. Romesh Thappar, the publisher, editor and the
printer of an English Journal called Cross Roads had printed in his journal very critical
appraisals of the policies of the Nehru government. So also the journal Cross Roads
was known for its critical and leftinian approach. At the same time the Madras
Government had declared the Communist parties illegal. In this background the
government of Madras under section 9(1-A) of the Madras Maintenance of Public
Order Act, 1949 imposed a ban on circulation of ‘Cross Roads’. Romesh Thappar filed
the petition in the Supreme Court of India. He stated that his right to freedom of speech
and expression guaranteed under 19(1)(a) of the Indian Constitution was violated by
the Madras Government by imposing the ban on his movement of circulation of his
journal. The question before the Court was:

Whether the freedom of speech and expression of the petitioner was violated by the
Madras Government’s actions of imposing the ban?

Whether the ban imposed by the Madras Government was justified under the limitations
enumerated in Article 19(2) of the Indian Constitution?

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4.1.2 Power to project criticism.

The right to criticize is of such a nature that one cannot survive without it and neither
can one bear it. This right is a very potent right and has to be exercised with utmost care
and caution. On the basis of this right the press gets the authority to criticize the
government, its officials, its policies or its plans. However the press cannot take undue
advantage of this right and cannot entice the people against the government or cannot
lay foundation for any rebellion or mutiny or insecurity of the state or the government.13
In such a case the press would be acting outside the scope of its constitutional right of
freedom of speech and expression. On the other hand the government should be open
and appreciate the criticisms projected by the press. So also the right to criticize of the
press helps the society to know the demerits, faults or the shortcomings of the
government. In other words, this right acts as an eye opener to the society. In a healthy
society on one hand the right to criticize should be exercised fairly, rationally, and
objectively by the press and on the other hand the government should accept the
criticisms with an open mind and make an attempt to improve upon them.

4.1.3 The power to receive information

The entire spirit of the Article 19(1)(a) will collapse if the right to receive the
information is not granted. The role of the media is to empower the masses by
knowledge, but if the right to receive information is taken away then, the press cannot
empower the citizens with knowledge and the society will fail to keep pace with the
changing world.14

4.1.4 The power of press to conduct and hold interviews

The press has this right to conduct interview. However this right is not absolute. There
are three limitations imposed on this right.

• The interview will only commence if the interviewee gives his consent.

• The interview shall stop on the will of the interviewee. After the famous
Ramleela Maidaan episode where Baba Ramdeo was lathi charged, when he
gave the interview for the first time after the incident, after some time, Baba
wanted to stop, but the interviewer had some questions.The interviewer could
not ask because of this limitation.

• The interviewer cannot compel the interviewee to give any answer, which the
latter does not want to answer.

___________________________
12
Romesh Thapar v State of Madras
13
AIR 1962 SC 305
14
ibid

Page | 17
4.1.5 The power to report the court proceedings.

According to Bentham ‘publicity is the very sole of justice’. Benthem has said this
because he felt that, if the government is allowed to function in a secretive manner then
there is lot of scope for the miscarriage of Justice. Therefore all the actions of the
government including the judicial proceedings have to be made public or transparent.
When the court proceedings are held in the open there is less scope for any bias to
prevail. Hence any individual as well as the press can attain the court proceedings. The
only difference between the individual and the press is that the press enjoys more liberty
or rights as compared to the individuals.

The Supreme Court in Sahara India Real Estate Corpn ltd v SEBI15 has held that there
is no doubt that it is the media’s right to report the proceedings of a case and the superior
courts could not postpone the said reporting of the case for some duration without
reasonable cause or in the interest of justice.

In Saroj Iyer v Maharashtra Medical (Council) of Indian Medicine16, the court held
that the right to publish a faithful report of the proceedings witnessed is available even
against quasi judicial tribunals. As far as the proceedings in camera are concerned the
judiciary is of the firm opinion that the power to exercise the proceedings in camera has
to be sparingly used and that too with great care and caution.

So also the court in Naresh Shridhar Mirajkar v State of Maharashtra17, has held that
the power to hold the proceedings in camera should be invoked only if the court is
satisfied; that, it would result in injustice if the matter was tried in the open court.

4.1.6 The power to attend and report legislative proceedings.

Article 361 of the Indian Constitution confers the right of publishing a true report of
the parliamentary proceedings. The limitation of this right is that the publication of
these legislative proceedings he should not be done with malicious intentions. This right
of reporting the legislative proceedings has been frequently curtailed by the legislative
privileges and contempt of parliament. Hence right of reporting the legislative
proceedings is circumscribed by the legislative privileges as is evident in the
Searchlight case.18 In this case the editor of the searchlight had published the portion of
proceedings of the Bihar state assembly. The Supreme Court held that the publication
amounted to the breach of parliamentary privileges and hence the publication was held
to be illegal and malicious. Further in powers, Privileges, and Immunities of State
Legislatures case.19 The Supreme Court held that the parliamentary must be subject to
the fundamental rights of the citizens. Where the right of speech and expression which
includes the right of reporting of legislative proceedings is in conflict with legislative
privileges, the right of speech and expression shall prevail over the legislative
privileges.

_________________
15
AIR 1967 SC 1
16
AIR 2012 SC 3829
17
AIR 2002 Bom

Page | 18
4.1.7 The power to act as an advertising medium.

The businessmen or traders who advertise are no different than the newspaper or media
who also work with profit motive. However in Hamdard Dawakhana v Union of
India20, the Supreme court held that advertisement were made with intention to have
commercial gains hence they cannot avail the benefit of freedom of speech and
expression. The Court observed: Freedom of speech goes to the heart of the natural
right of an organized freedom loving society to’ impart and acquire information about
that common interest’. If any limitation placed which results in the society being
deprived of such right then no doubt it would fall within the guaranteed freedom under
Article 19(1) (a). But if all it does it deprives a trader from commending his wares, it
would not fall within that term Hence it was held that the right of advertisement was
not covered by the right of freedom of speech and expression.

Till the case of Tata Press v Mahanagar Telephone Nigam21 the advertisements were
kept out of the purview of free speech. One thing is noteworthy here is that the
advertisement was just like a newspaper or other media which is involved in profit
making. Still the right to advertisement was not granted the protection of Article
19(1)(a).

However after the Tata Press case, it was acknowledged by the Supreme Court that
even advertisements were covered under Article 19(1)(a) of the Constitution. In the
instant case it was the MTNL who was publishing and circulating the telephone
directory with white pages up to 1987.

________________________
18
AIR 1959 SC 395
19
AIR 1965 SC 745
20
AIR 1960 SC 554
21
1995 SCC (5) 139

Page | 19
4 .2 REASONABLE RESTRICTIONS ON THE FREEDOM OF PRESS:-

For the first half-century of India’s independence, media control by the state was the
major constraint on freedom of press in India. In the present scenario, there are various
restrictions imposed by our constitution on the press freedom. Some of the guidelines
laid down in some case laws as to what constitutes a restriction on freedom of press:-

• Any restriction that is directly imposed upon right to publish, to disseminate

information or to circulate16 constitutes a restriction upon freedom of press. The
right to publish includes right to publish not only its own views but also those of its
correspondents. The right to circulate refers to matter to be circulated as well as
volume of circulation.
• To require a newspaper to reduce its space for advertisements would directly affect
its circulation since it would be bound to raise its price.

• To fix maximum page or price level, thereby affecting its volume of circulation.
• Restricting the use of paper which is allotted to a newspaper, so as to affect its
volume of production or circulation.

Some of the case laws in which the court held the restrictions on press as reasonable:-

• In Express Newspapers Pvt Ltd. v. Union of India22, In this case the validity of the
Working Journalist Act 1955 was challenged. This Act was enacted to regulate
conditions of service of persons employed in newspaper industries. The Court held
that Act is valid .It is said that press was not immune from laws of general
application or ordinary forms of taxation or laws of industrial relations .The Act
was passed to improve the service conditions of the women in the newspaper
industry and therefore, impose reasonable restriction on the right guaranteed by
Article 19(1)(a).

• In Virendra vs. the State of Punjab23, the constitutional validity of the Punjab
Special Powers (Press) Act, 1956 passed by the State Legislature in the wake of the
serious communal tension that had arisen between the Hindus and the Akali Sikhs
over the question of the partition of the State on a linguistic and communal basis
was challenged. Two notifications under Sec 2(1)(a) of the impugned Act were
issued against the petitioners; editor, printer and publisher of the two newspapers
prohibiting them from printing and publishing any matter relating to the 'Save Hindi
agitation' in the two papers for a period of two months.

It was held that the restrictions imposed by Sec 2(1)(a) of the impugned Act were
reasonable restrictions within the meaning of Art. 19(2) of the Constitution and the
petition directed against the notifications issued there under must fail.

_____________________
22
(1986) 1 SCC 133
23
1957 AIR 896; available at <http://www.indiankanoon.org/doc/1475436/>

Page | 20
The Clause (2) of Article 19 contains the grounds on which reasonable restrictions on
the freedom of press can be imposed:-

4.2.1 Security of State:

Under Article 19(2) reasonable restrictions can be imposed on freedom of press in the
interest of security of State. In Romesh Thapper vs. state of madras24, it was held that
every public order cannot amount to threatening of security of the state. Only those acts
which are intended to endanger the "security of state" like serious and aggravated forms
of public order e.g. rebellion, waging war against the State, external aggression, war,
insurrection are restrained in the security of the state and not ordinary breaches of public
order and public safety, e.g. unlawful assembly, riot, affray which do not involve any
danger to the state. Thus only those speeches or expression on the part of an individual,
which incite to or encourage the commission of violent crimes, such as, murder, which
would undermine the security of State and bring about an overthrow of the state are
restricted. The actual result of the act is immaterial.

4.2.2 Friendly relations with foreign states:

This ground was added by the constitution (First Amendment) Act, 1951. The object
behind this provision is to prohibit unrestrained malicious information against a foreign
friendly state, which may jeopardise the maintenance of good relations between India,
and that state. No similar provision is present in any other Constitution of the world.
But in India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by
Indian citizens against foreign dignitaries. The government can make laws restricting
the Indian citizens to express themselves about foreign states so that our friendly
relations with foreign states are not jeopardized. Interest of friendly relations with
foreign States, would not justify the suppression of fair criticism of foreign policy of
the Government.

It is to be noted that member of the commonwealth including Pakistan is not a "foreign

state" for the purposes of this Constitution. The result is that freedom of speech and
expression cannot be restricted on the ground that the matter is unfavourable to
Pakistan.

4.2.3 Public Order:

This ground was added by the Constitution (First Amendment) Act, 1951 in order to
meet the situation arising from the Supreme Court’s decision in Romesh Thapper case
in which it was held that local breaches of public order were no grounds for imposing
restrictions on freedom of speech and expression as the expression „Public order‟ was
not included in article 19(2). After this decision public order was included in article
19(2). 'Public order' is an expression of wide connotation and signifies "that state of
tranquility or peace which prevails among the members of the society as a result of
internal regulations enforced by their Government.

Public order is something more than ordinary maintenance of law and order. 'Public
order' is synonymous with public peace, safety and tranquility. The test for determining
whether an act affects law and order or public order is to see whether the act leads to

Page | 21
the disturbances of the current life of the community so as to amount to a disturbance
of the public order or whether it affects merely an individual being the peace of the
society undisturbed.

In Kishori Mohan v. State of West Bengal25, the Supreme Court explained the
differences between three concepts: law and order, public order, security of State.
Anything that disturbs public peace or public tranquility disturbs public order. But mere
criticism of the government does not necessarily disturb public order. A law punishing
the utterances intentionally tending to hurt the religious feelings of any class has been
held to be valid as it is a reasonable restriction aimed to maintaining the public order.

Anything that disturbs public tranquility or public peace disturbs public order. Thus
communal disturbances and strikes promoted with the sole object of causing unrest among
workmen are offences against public order.

Public order thus implies absence of violence and an orderly state of affairs in which
citizens can peacefully pursue their normal avocation of life. Public order also includes
public safety. Thus creating internal disorder or rebellion would affect public order and
public safety. But mere criticism of government does not necessarily disturb public
order. In its external aspect 'public safety' means protection of the country from foreign
aggression. Under public order, the State would be entitled to prevent propaganda for a
state of war with India.

The words 'in the interest of public order' includes not only such words as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder.
Thus a law punishing words or statements made with the deliberate intention to hurt the
religious feelings of any class of persons is valid because it imposes a restriction on the
right of free speech in the interest of public order since such speech or writing has the
tendency to create public disorder. But there must be reasonable and proper nexus or
relationship between the restrictions and the achievements of public order.

4.2.4 Decency or morality:

The words 'morality or decency' are words of wide meaning. The word indecency is
identical to the word obscenity of English law. In an English case of R. v. Hicklin, the
test was laid down according to which it is seen “whether the tendency of matter
charged as obscene is to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication is likely to fall.” Sections 292
to 294 of the Indian Penal Code provide instances of restrictions on the freedom of
speech and expression in the interest of decency or morality. These sections prohibit
the sale or distribution or exhibition of obscene words, etc. in public places. No fix
standard is laid down till now as to what is moral and indecent. The standard of morality
varies from time to time and from place to place. The court should revise its opinion
and reject the rule laid down in English case R v. Hicklin to judge the obscenity of
matter as it lays down a vague and arbitrary standard for judging obscenity and has a
tendency to curtail freedom of speech and expression.

___________________
24
1950 SCR 594
25
AIR 1972 SC 1749

Page | 22
4.2.5 Contempt of Court:

Restriction on the freedom of speech and expression can be imposed if it exceeds the
reasonable and fair limit and amounts to contempt of court. The constitutional right to
freedom of speech would not allow a person to contempt the courts. The expression
Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971.
According to the Section 2 of the act, 'Contempt of court' may be either 'civil contempt'
or 'criminal contempt.' Civil contempt means any wilful disobedience to any judgement,
decree, direction, order, writ or other process of a court. Criminal contempt means any
publication or any matter or doing of any act which scandalises or tend to lower the
authority of courts, or interferes with the judicial proceedings or obstruct the
administration of justice. Judges also do not have any general immunity from criticism
of their judicial conduct, provided that it is made in good faith and is genuine criticism,
and not any attempt to impair the administration of justice.

In Baradakant v. Registrar, Orissa26, the appellant was convicted under contempt of

court act, 1971 for writing defamatory letters to the high court. Supreme Court held that
contemptuous allegations made with reference to the administrative functions of high
court amount to criminal contempt. The defamatory criticism of a judge even in purely
administrative or non- adjudicatory matters amounts to criminal contempt and upheld
the conviction of the appellant.

4.2.6 Defamation:

A statement, which injures a man's reputation, amounts to defamation. The clause (2)
of Article 19 prevents any person from making any statement that injures the reputation
of another. With the same view, defamation has been criminalised in India by inserting
it into Section 499 of the I.P.C. this section recognises no distinction between the
defamatory statement addressed to ear or eyes, i.e. slander and libel. Defamation
consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to
defamation is still uncodified in India and subject to certain exceptions.

4.2.7 Incitement to an offence:

This ground was also added by the constitution (First Amendment) Act, 1951.
Obviously, freedom of speech and expression cannot confer a right to incite people to
commit offence. The word 'offence' is defined as any act or omission made punishable
by law for the time being in force.

______________
26
1974 SCR (2) 282

Page | 23
4.2.8 Integrity and sovereignty of India:

This ground was also added subsequently by the Constitution (Sixteenth Amendment)
Act, 1963. This is aimed to prohibit anyone from making the statements that challenge
the integrity and sovereignty of India.27

From above analysis, it is evident that Grounds contained in Article 19(2) show that
they are all concerned with the national interest or in the interest of the society. The
first set of grounds i.e. the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States and public order are all grounds referable to
national interest, whereas, the second set of grounds i.e. decency, morality, contempt
of court, defamation and incitement to an offence are all concerned with the interest of
the society.

____________________
AIR 1972 SC 1749
23 Supra note 27

Page | 24
CHAPTER V
CONFLICTING RIGHTS AND FREEDOM OF SPEECH AND
EXPRESSION

5.1 People’s Right to Know

Freedom of media is the freedom of people as they should be informed of public

matters. It is thus needless to emphasis that a free and a healthy press is indispensable
to the functioning of democracy. In a democratic set up there has to be active
participation of people in all affairs of their community and the state. It is their right to
be kept informed about the current political social, economic and cultural life as well
as the burning topics and important issues of the day in order to enable them to consider
to form broad opinion in which they are being managed, tackled and administered by
the government and their functionaries. To achieve this objective people need a clear
and truthful account of events, so that they may form their own opinion and offer their
own comments and viewpoints on such matters and issues and select their future course
of action. But Right to knowledge for the public shouldn‘t curtail the accused right to
fair trial otherwise that would be a grave miscarriage of justice.

5.2 Free Speech vs Fair Trial

Freedom of Press is not specifically mentioned in Part III of Indian Constitution,

however the Hon'ble Supreme Court in a number of judgments has recognized that
freedom of speech and expression also includes freedom of press1. In rapidly changing
socio-economic conditions of a country like India, the role of media/ press has gained
prominence and hence it is often quoted that "Media" is the fourth pillar of Indian
Democracy. According to criminal jurisprudence, a suspect/accused is entitled to a fair
trial and is presumed to be innocent till proven guilty by a Court of law. None can be
allowed to prejudge or prejudice his case till the completion of trial. However, media
on account of excessive coverage goes beyond its domain and publishes and covers
interviews of witness or relative of a victim and prejudges the issue of conviction of the
accused while the matter is pending adjudication in a court of law.
Balance between the two Rights

Under Article 19(1)(a) of the Constitution, the rights of the freedom of Press have been
recognized as Fundamental Rights and under Article 21 of the Constitution the
accused/suspect and under trial and the Civil litigant have Fundamental Right to have
a free and fair trial. Therefore balancing between the two fundamental rights has
become inevitable and the time has come that Courts should give appropriate directions
with regard to reporting of matters (in electronic and print Media) which are sub judice.
When rights of equal weight clash, Courts have to evolve balancing measures based on
re-calibration under which both the rights are given equal space in the Constitutional
Scheme.

Page | 25
 Art. 19(1)(a) of the Constitution of India guarantees, freedom of speech and expression
and Art. 19(2) permit reasonable restrictions to be imposed. However Article 19(2) does
not refer to 'administration of justice' but interference of administration of justice is
clearly referred to in the definition of 'criminal contempt' in Sec. 2 of the Contempt of
Courts Act,1971 and in Sec.3 thereof as amounting to contempt. Therefore,
publications/coverage which interfere or tend to interfere with the administration of
justice amount to criminal contempt under the Contempt of Court Act and if in order to
preclude such interference, the provisions of that Act impose reasonable restrictions on
freedom of speech, such restrictions would be valid.

5.3 Right to a Fair Trial

Right to a fair trial is absolute right of every individual within the territorial limits of
India vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a
fair trial is more important as it is an absolute right which flows from Article 21 of the
constitution to be read with Article 14. Freedom of speech and expression incorporated
under Article 19 (1)(a) has been put under reasonable restriction‘ subject to Article 19
(2) and Section 2 (c) of the Contempt of Court Act. One‘s life with dignity is always
given a priority in comparison to one‘s right to freedom of speech and expression.

The right to a fair trial is at the heart of the Indian criminal justice system. It
encompasses several other rights including the right to be presumed innocent until
proven guilty, the right not to be compelled to be a witness against oneself, the right to
a public trial, the right to legal representation, the right to speedy trial, the right to be
present during trial and examine witnesses, etc.

5.4 Fair Trial and Trial by Media

Trial by media has created a “problem” because it involves a tug of war between two
conflicting principles – free press and free trial, in both of which the public are vitally
interested. Parties have a constitutional right to have a fair trial in the court of law, by
an impartial tribunal, uninfluenced by newspaper dictation or popular cry. Fairness and
justice are two main basements on which the entire democratic structure rests. Denial
of fair trial can be understood as the obstruction or interference in the administration of
justice to a person facing trial. The prejudicial publication against the accused amounts
to denial of fair trial. Trial by media and electronic media amounts to antithesis of rule
of law and can lead to miscarriage of justice.

Page | 26
In Zahira Habibullah Sheikh v. State of Gujarat28, the Supreme Court explained that
a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor
and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for
or against the accused, the witnesses, or the cause which is being tried is eliminated.”
The media exceeds its right by publications that are recognized as prejudicial to a
suspect or accused like concerning the character of accused, publication of confessions,
publications which comment or reflect upon the merits of the case, photographs, police
activities, imputation of innocence, creating an atmosphere of prejudice, criticism of
witnesses, the Indian criminal justice system.

It encompasses several other rights including the right to be presumed innocent until
proven guilty, the guilt is to be proved beyond reasonable doubt and the law is governed
by senses and not by emotions the right not to be compelled to be a witness against
oneself, the right to a public trial, the right to legal representation, the right to speedy
trial, the right to be present during trial and examine witnesses, etc.

5.5 Media Trial V. Right to Be Represented

Every accused has right to represented by lawyer of his choice. However media trial
also creates pressure on Advocates not to take the case of accused and thus trying to
force the accused to go to trial without any defence. When eminent lawyer Ram
Jethmalani decided to defend Manu Sharma, a prime accused in a murder case, he was
subject to public derision. The media assumption of guilt clearly encroaches upon the
right to legal representation, a critical component of the right to fair trial and may also
intimidate lawyers into refusing to represent accused persons. Suspects and accused
apart, even victims and witnesses suffer from excessive publicity and invasion of their
privacy rights.

Police are presented in poor light by the media and their morale too suffers. The
pressure on the police from media day by day builds up and reaches a stage where police
feel compelled to say something or the other in public to protect their reputation.
Sometimes when, under such pressure, police come forward with a story that they have
nabbed a suspect and that he has confessed, the „Breaking News‟ items start and few
in the media appear to know that under the law, confession to police is not admissible
in a criminal trial. Once the confession is published by both the police and the media,
the suspect’s future is finished when he retracts from the confession muddle. Again, if
the suspect’s pictures are shown in the media, problems can arise during „identification
parades‟ conducted under the Code of Criminal Procedure for identifying the accused.
Subconscious effect on the Judge as one of the major allegations upon „media trial‟ is
prejudicing the judges presiding over a particular case.

As there is always a chance judges may get influenced by the flowing air of remarks
made upon a particular controversy. The media presents the case in such a manner to
the public that if a judge passes an order against the “media verdict”, he or she may
appear to many either as corrupt or biased.

_____________
28
2004 4 SCC 158

Page | 27
CHAPTER VI
VIOLATION OF CONSTITUTIONAL AND LEGISLATIVE
PROVISIONS BY MEDIA TRIAL

6.1 Violating of Constitutions and Legislation Provisions

The Right to Privacy – International obligations UDHR 1948 in Article 12 and ICCPR
1966 in Article 17 give protection to the concept of privacy. Though freedom of speech
and expression given in Article 19 of the UDHR 1948 and ICCPR 1966 was enshrined
in Article 19(1)(a) of the Indian Constitution. We do not find such constitutional
recognition given to privacy in India. Here, privacy is not given any separate
constitutional status. Right to life, liberty and security of person is enshrined in Article
3 of the UDHR 1948. This is recognized in Article 21 of the Indian Constitution.
Privacy was not included in this Article.

In Nihal Chand v. Bhagwan Dei29 during the colonial period, as early as in 1935, the
High Court recognized the independent existence of privacy from the customs and
traditions of India. But privacy got recognition in free India for the first time in Kharak
Singh case.

In Kharak Singh v. State of U.P.30, the Supreme Court struck down domiciliary visits
by the police as it violates Article 21. But it was in the minority view given in this case
by justice Subha Rao that privacy got a recognition as a right included in Article 21 of
the Constitution. In this case the apex court recognized privacy as part of right to life
and personal liberty.

Privacy has been defined by Supreme Court in Sharada v. Dharampal31 as ‘the state
of being free from intrusion or disturbance in one’s private life or affairs’. This is
different and distinct from the life and liberty in Article 21 of the Constitution. Indian
view India is member of the United Nations Organizations, so it is bound by Article 12
of the Universal Declaration of Human Rights, 1948 to bring in statutory enactments to
keep itself in tune with the International Commitment. Further, India has also ratified
the International Covenant on Civil and Political Rights, 1966.

India does not give privacy a fundamental right status, while freedom of speech and
expression is given protection under Article 19(1)(a). Privacy is not even enumerated
among the reasonable restrictions to the right to freedom of speech and expression
enlisted under Article 19(2). Nevertheless the Courts have protected this right to privacy
to some extent not just under tort law but also under article 21 and under the reasonable
restrictions enumerated in Article 19(2) of the Constitution. Under the tort law, a
personal action for damages would be possible for unlawful invasion of privacy. In
these cases, the publisher and printer of journal, magazine or book or the broadcaster
and producer of a broadcast would be liable in damages.

__________________
29
AIR 1935 All 1002
30
Kharak Singh v. The State Of U. P. & Others on 18 December, 1962, AIR 1295, 1964 SCR (1) 332
31
AIR 2003 SC 3450

Page | 28
6.2 Print Media and Electronic Media on Violation

Justice G.N. Ray comments on the Reporting of Court Proceedings by Media and
Administration of Justice - Identification of Issues and Concerns that it is to be hoped
that this discussion will only be the beginning of respective understanding of the needs
and problems of the two estates and bring forth advantageous results for both the
judiciary and the media towards an informed society and faith in the processes of law.

The observations of had Press Commission on the issue are quite instructive: - “The
Press does have the right, which is also its professional to criticize and advocate. The
whole gamut of public affairs including the administration of justice is the domain for
fearless and critical comment. But the public function which belongs to the Press makes
it an obligation of honour to exercise this function only with the fullest sense of
responsibility. Without such a lively sense of responsibility a free Press might readily
become a powerful Instrument of injustice.

The competing claims of the court to maintain its authority and of the freedom (the
Press to comment on matters of public interest must be reconciled). Without a free Press
there can be no free society. Freedom of the Press, however, is not an end in itself but
a means to an end of a free society.

A free Press is not to Preferred to an independent judiciary, nor an Independent

judiciary to free Press either. No judge fit to be one is likely to be influenced
consciously except by what he sees and hears in court and by what is judicially
appropriate for the deliberation.

However, judges are human. There is the powerful pull of the unconscious. Since
judges, however, art, are human, the delicate task of administering justice ought not to
be be made unduly difficult by irresponsible publication and that “while newspapers
may, in the public interest, make reasonable criticism of a judicial act or the judgment
of a court for public good; they should not caste scurrilous aspersions on, or impute
improper motive or personal bias Judge. Nor should they scandalize the court or the
Judiciary as a whole or make personal allegations of lack of ability or integrity against
Media as an institution of civil society complements the judiciary a vital pillar in a
democratic set up. ‘While judiciary is accountable to the law of the land and to the
society for its judgments, the media is also accountable to the public for whom it acts
as a watchdog.

The media, both print and electronic have a critical role to play in improving public
access to, and comprehension of our justice system. We must accept and reinforce the
importance of the role played by the press, both print and electronic as the institution
through which the public gather information about the working of the courts. But we
must also not forget that media can only report facts bit cannot play the role of the
courts.

It is when media starts playing the role of courts by assessing the probity of evidence
and pushing forth its opinion on facts often distorted and incomplete concerning a case
pending in a court of law, conflict arises. Measures which are necessary for due process
of the law lead to take precedence over freedom of speech.

Page | 29
When a conflict arises between fair trial and freedom of speech, fair trial has to
necessarily prevail because any compromise of fair trial for an accused will cause
immense harm and defeat justice delivery system. If the issues arising in litigation are
ventilated in such a way as to lead the public to form its own conclusion thereon in
advance, litigants and for that matter public in general may lose respect for and
confidence in courts if such public opinion is not reflected in the decision of the court.

The media involvement in criminal justice administration had received in depth

consideration of the “committee on National Policy of Criminal Justice” in the light of
the sting operations and trial by the media. The Council in its advisory jurisdiction had
opined that unless there is a substantial risk of serious prejudice Ito the course of justice,
there should not be restriction or prohibition in the coverage of criminal proceedings.

Other primary areas of conflict include protection of source of information, ie. laws,
obscenity law, Official Secrets Act, coverage of matters of juvenile Offenders Based
on its adjudications and other pronouncements, the Press Council f India has drawn up
some basic guidelines, which it advises the media to bear in mind while reporting of
court proceedings.

Page | 30
CHAPTER VII
REGULATIONS TO CONTROL MEDIA TRIAL

7.1 The Indian Penal Code 1860

The press freedom is restricted by the I.P.C. Under its provisions it is an offence to
incite enmity between different classes of citizens, to spread any rumours or reports
likely to incite members of the Armed Forces to mutiny or failure of duty, to cause
alarm to any section of the public whereby there is an inducement to commit an offence
against the State or against public peace, and to incite one class or community against
another, to utter words or to make visible representations with intent to wound religious
feelings or beliefs of another person, or of any class of citizens.

7.2 The Press and Registration of Books Act 1867

Under this Act, no printing press, newspaper, book and periodical printed in India, can
have its existence without registration. However, in fact, it imposes no restriction
against press freedom. It only carries the objective of securing information on printing
establishments and their publication.

7.3 The Indian Telegraph Act 1885

In the interest, of public safely, public order, the sovereignty and integrity and security
of the State, this Act empowers the government to hive necessary interference with the
functioning of the press and to intercept, detain or not to transmit any message. But the
message of the press, which is intended to be published by correspondents accredited
to the Central Government or a State Government can be intercepted or detained only
during public emergency.

7.4 The Indian Post Office Act 1898

This Act authorises the State to intercept, detain, or not to send any indecent or obscene
publication or representation.

7.5 Criminal Procedure Code 1898

Sections 99 A -99 G of the Cr. P.C. do not impose any prior restraint, but provide for
the forfeiture of objectionable documents after they have been printed and published,
subject to a right of the judicial review against the order before a special Bench of the
High Court. Under Sec. 144 of the Code prior restraint can be imposed. Bu it is not
directed to the press as such as it is of a general application.

The Cr.P.C. 1973 empowers the State to forfeit copies of a publication that offends the
provisions of the I.P.C. relating to public order or security of the State.

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7.6 The Official Secrets Act 1923

Modeled after the British Official Secrets Act 1920, certain provisions in the Indian
Official Secrets Act stood as main obstacles against the free flow of legitimate
information to the people in India.

Sec. 5 of the Act has a chilling effect on the freedom of the press as it prohibits the
communications of any secret official code or pass word or any sketch, plan, model,
article, note, document or information which relates to or is’ used in a prohibited place
or relates to anything such a place. Or which is likely to assist directly or indirectly an
enemy or which relates to a matter the disclosure of which is likely to affect the
sovereignty, and integrity of India.

7.7 The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954

In the interest of public health, it bans advertisements of magic cures of sexual ailments,
and the like.

7.8 The Young Persons (Harmful Publications) Act 1956

This Act restricts publication and circulation of any literature likely to encourage anti-
social tendencies among the children.

7.9 The Newspaper (Price and Page) Act 1956

This Act was to check and prevent unfair competition among newspapers by regulating
the prices charged. This Act has, however been struck down by the Supreme Court in
Sakal Papers Vs. Union of India and the decision in this case “constitutes a landmark
in the history of freedom of expression in India.”

7.10 The Copyright Act 1957

It protects the original works of writers, artists, musicians, dramatists, film makers and
other creative persons from being pirated. However, if the work is reproduced or
borrowed by someone, other than the author, for the purpose of research, criticism,
review, reporting current events in a newspaper or magazine or for judicial proceedings,
it does not constitute an infringement of Copyright Act.

7.11 Contempt of Courts Act 1971

Any action taken or any writing published with an intention to bring a court of law into
contempt or lower its authority or to obstruct or interfere with due course of justice or
lawful process of the court amounts contempt of court. For example, publication of
proceedings of a case being heard in camera, false and grossly inaccurate reporting of
court proceedings, publication that may tend to interfere with orderly administration of
justice, or publication that scandalises the court, the judges, counsels, parties or
witnesses come under this category.

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CHAPTER VIII
JUDICIAL STRICTURE AND CASE STUDY

8.1 Journey of Freedom of Press through Judicial Pronouncements

Media has always been considered the watchdog of the society. It is very important to
have a free
and fair media in every form of government. In a vast and diverse democracy like India,
it is of utmost importance that the media functions without any form of bias and
prejudice as the media also takes the role of the Opposition. Media is almost like the
backbone of the Indian democracy.
The roots of media can be traced back to the times of the Nationalist Movement in
India. Ever since those times, media has been a crucial role in guaranteeing the citizens
their rights and liberties.

Besides playing these important roles, media has evolved as a much needed agent of
change in the society. Over the years, media has helped to form public opinion and has
been quite successful in this role. The role of media in a democracy comes into focus
especially during the ongoing process of elections in India. The different types of media
(television, radio, etc.) have helped the masses to be more educated and aware of their
surroundings. Investigative journalism is a type of journalism that is much into practice,
these days. However, investigative journalism has been a controversial issue ever since
it was practiced. Although this type of journalism raises several questions regarding
journalistic ethics and rules; nevertheless, this type of journalism has radically helped
to shape public opinion.

Although the main areas of investigative journalism mainly revolve around the areas of
scandals, crime, politics, corruption, etc; this particular journalistic style is not just
restricted to the above mentioned fields. In India, investigative journalism came into
popular existence in the 1980‟s. The Bofor‟s scandal in which the then Indian Prime
Minister, Rajiv Gandhi, was accused; was the first instance when investigative
journalism came into focus. This scandal later on led Gandhi‟s defeat in the next
elections. This scandal and the type of reporting done by the media made the country
take notice of a new form of journalism that was previously employed by magazines
and journals.

Nowadays, investigative journalism is mostly related with sting operations. Even today,
sting operations are widely carried out to report against corrupt ministers and the
political setup of the nation. The Tehelka scam raised a lot of uncomfortable questions
about the Indian government, but it did help in the citizens in forming their opinions
about the malpractices of the Indian government and the corrupt politicians. Many a
times, it has been seen that due to the interference of the media, certain cases have got
pushed into the limelight which in turn attracts the attention of the masses. Media
employs several tactics (debates, discussions, talk shows, etc.) to help bring these
critical issues into the public sphere thus helping people to get their rights. This has
often led to aggrieved parties getting much needed justice. This role of the media is
discussed with the help of two case studies.

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8.2 CASE STUDY

8.2.1 Case Study 1- “Miscarriage Of Justice” in the Jessica Lal Murder Case”

A. What Happened

The murder of Delhi model Jessica Lal by Manu Sharma is perhaps one of the most
prominent cases of media interference resulting in justice. The main accused was
Siddharth Vashisht, better known as Manu Sharma, the son of Venod Sharma, a
prominent Congress leader in Haryana. Manu Sharma, in an inebriated state, had asked
for a drink from Lal which she refused as the bar was already closed. Lal kept refusing
Sharma even after he offered money to her in exchange for a drink. This enraged
Sharma who took out his pistol and shot twice at Lal on point blank range, thus killing
her on the spot. In the ongoing legal procedure, about three hundred witnesses were
interrogated in a lower court in Delhi.

However, as the legal procedure carried on, all the witnesses turned hostile and there
were lack of proper evidences to nail down Sharma as Lal’s killer. Thus, due to lack of
evidences, the case had to be shut and the court acquitted the prime nine suspects,
including Sharma, on 21st February, 2006. However, this was not taken lightly by the
Indian masses. The involvement of numerous high profile people in this murder case
was anyway a topic of discussion in the media.

In the initial stages of police interrogation of Sharma, he admits to have shot at Lal.
This tape was never produced at the court at the time of the proceedings which led to
Sharma denying that he had shot at Lal. However, it was acquired and aired by NDTV
which bared the truth. This led to public outcry who demanded that justice has been
denied. A widespread media campaign followed which grabbed the attention of the
masses throughout India.

B. Media Interference in This Case

The final verdict, which was passed on the Jessica Lal murder case, was a shining
example of media interference. NDTV channel received thousands of text messages
from various people urging that immediate action be taken against Sharma and the other
accused. People were losing faith in the Indian judiciary and the media had thrown light
on this very fact. Thus, India arose to the situation and very soon people from various
walks of life were standing up for the rights denied to Jessica Lal. On 9th September,
2006; newsmagazine Tehelka organized a sting operation on the witnesses of the case
in which they revealed that Venod Sharma had bribed them hefty amounts of money in
order to stay mum about the truth in court. This sting operation was aired by news
channel STAR News.
The immense public support and the growing pressure from media led the Delhi High
Court to take notice and the case was reopened after an appeal by the Delhi Police.
Manu Sharma was finally pronounced guilty of killing Jessica Lal and he was given life
sentence on 20th December, 2006. The efforts of the media helped the case to be
reopened and justice was finally delivered. This case study proves that media
interference dramatically changed the course of the case. The intervention of media was
very much desired as media helped the case to be highlighted as an example of gross
injustice.

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8.2.2 Case Study 2- “In the landmark judgement in R.K Anand vs Delhi High
Court”

The Supreme Court examined the important question relating to Trial by Media. The
case arose out of a sting operation carried out by a private television channel, NDTV to
expose the unholy nexus between the prosecution , its witnesses and the defence in the
famous BMW hit and run case resulting in the death of six opersons by a speeding
BMW car driven by the scion of Healthy and influential family. While the trial was
pending from eight years, NDTV telecast a sting operation to expose the manner in
which a senior advocate appearing for the accused was negotiating, with the help of
Special Public Prosecutor, a sell out in favour of defence. The Special Public Prosecutor
and the Defence were held guilty of contempt of Court and debarred from appearing in
the Delhi High Court and its subordinate court for four months.

In appeal before the Supreme Court, it was contended on behalf of the appellant that
the TV channel had indulged in a trial by media and that it could have telecasted the
sting only after operating permission from the Media. The Supreme Court rejected this
contention holding that such a course would not be an exercise in journalism but in that
case the media would be acting as some sort of special vigilance agency for the court.
On little consideration the idea appears to the quite repugnant both from the point of
view of the court and the media.

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

8.2.3 Case Study- 3 Aarushi Murder Case:

Aarushi Talwar, a vivacious 14 year old girl, studying in DPS Noida was found brutally
murdered in her home on the morning of 16th May, 2008. She was the only child of her
parents – Drs. Rajesh and Nupur Talwar. At the time of the incident the parents were
in the adjoining bedroom but unfortunately did not hear anything that happened that
night. They discovered the body in the morning when Nupur entered Aarushi’s room.
Since the live in servant Hemraj was missing, Rajesh lodged an FIR that Hemraj had
murdered Aarushi and run away.

a. Investigation by the UP police

• Before the Central Bureau of Investigation took over, the investigations into the
Aarushi Talwar case were carried out by the UP police.
• They neither sealed the area nor did they restrict the entry of visitors.
• One day after Aarushi Talwar was found murdered, the body of the servant Hemraj
was found on the common terrace of the flat.
• A week later, on 23rd May 2008 Rajesh was arrested on the charge of murdering
Aarushi and Hemraj.

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b. Role of Media in the Aarushi Talwar case
• The media played a key role in highlighting the case as a high profile one. The
house in Noida was deluged by the media till at least one month after the
murders. All kinds of stories were made, casting aspersions on the character of
not only Rajesh and Nupur, but also of Aarushi Talwar and Hemraj who were
no longer present to defend their honor. These stories had no basis, yet the
public lapped them up and the media continued to show what they wished, to
increase their TRPs.

• They were refuted to a certain extent by Aarushi Talwar‟s parents, but it was
not possible to negate all of them. Having had no previous exposure to the
media and also having to deal with the extremely tragic situation of having lost
her daughter and her husband having been sent to jail, Nupur Talwar was in
no frame of mind to deal with the salacious gossip going around in most of the
TV channels. She however maintained her composure
And did not break down in public. This was also regarded as a crime, as when
circumstances changed and the public perception worsened further, people very
easily accepted the lies told by the Central Bureau of Investigation, that Nupur
was an accomplice of Rajesh in killing their only child.

8.2.4 Case Study 4- Delhi Gang Rape Case

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

An important part in raising this debate was played by the media, both national and
foreign. As the news of the rape broke, the media went into frenzy, not just in tracking
the case but in leading people to introspect. A responsible section of the media asked
people to be part of radical reforms the country required while it continued to give
expression to the public grief, the mourning and reconciliation as people watched in
horror the victim‘s final moments.

However, the media was also accused of activism and leading a trial of its own while
covering the case. As the movement to bring the gang rape victim to justice went viral,
the nation saw widespread protest that spilled on streets across the country. The media
covered the demonstrations day and night, following the protesters to every street and
corner, giving a voice to their demands for justice and bringing them to the centre of
political debate.

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Moreover, it exposed the growing crime statistics, especially in the national capital,
against women. Basically, the media led bare the growing frustrations of an entire
emerging aspirational urban class and generation.

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

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

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

8.2.5 Case Study 5- Guwahati Molestation Case

The manner in which the Guwahati molestation horror has unfolded suggests that the
current credo for a significant section of the media may be pushed around and may
consider to be molested.”

There are two dimensions of the horrifying incident: First, it shows the levels to which
the business of media has trained its journalists to stoop to in order to get a juicy story.
Second, and this is politically more disturbing, the incident is part of the moral policing
that has seen its emergence in a widespread manner for the past two decades. It started
innocuously with calls for banning Valentine Day’s celebration in the early 1990s and
has been punctuated with infamous incidents like activists of Sri Ram Sena attacking
girls in a Mangalore pub in 2009.

Journalists especially photographers have always partially sexed up stories. In my early

years of reporting, it came to realise that the toll was directly proportional to the amount
of space and display that the story would get in the next day’s papers. Suffering of
others has always meant glory for the media. But the rot had not set in so deep.

The problem is that the media industry encourages employees to resort to unscrupulous
methods. Instead of pillorying the reporters alone, questions also need to be asked of
their employers – did they ask the reporter how he had secured the footage, what was

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his role in the incident and if he had also been a participant – as Akhil Gogoi has
claimed. Will the News Broadcasters Association take up the matter with News live?
Moreover, if the State or court – on the prompt of a PIL, begins a probe against the
channel, would it be contended that this was an attack on the freedom of the press?
While the Guwahati-based channel News Live gained its TRPs from telecasting the
Monday night episode, questions are being asked as to why the cowering girl was made
to show her face to the camera, and why she was asked her name at the end of her
humiliation.

The channel head has claimed that his cameraperson did try to intervene to stop the
molestation, and when he found himself helpless, he went on to record the episode -
which was subsequently initially telecast without blurring the girl's face. The uncut
version of what News Live aired - leering men pulling the girl by her hair, trying to paw
the kicking, screaming girl, with some dramatic background music to boot - is on
YouTube for anyone to see. The reporter asks the girl her name, not once but twice,
which she replies, then her address and her school. Information and Broadcasting
Minister said that the media should sensitively handle the Guwahati molestation case
that while media should make people aware about such incidents, care should be taken
not to hurt the feelings of the victims. "As far the Guwahati incident and other such
unfortunate incidents in various parts of the country are concerned, media should handle
such issues sensitively, and consider the sensitivities of the victims of such incidents.
The role of the media is very important to make people aware and bring their attention
towards such issues," she said.

8.2.6 Case Study 6- Kanhaiya Kumar v. State of Delhi

In February 2016 the President of Jawaharlal Nehru University Students' Union, also
a leader of the All India Student Federation (AISF), the student wing of the Communist
Party of India (CPI). He was charged under section 124-A (Sedition) and 120-B
(Criminal Conspiracy) arrested and charged with sedition by the Delhi police. A case
was registered against him on Feb 13, under Indian Penal Code Sections 124-A
(sedition) and 120-B (criminal conspiracy).

He was charged over an event organised by some students at the Jawaharlal Nehru
university campus against the hanging of Afzal Guru, A Kashmiri separatist convicted
for the 2001 Indian Parliament Attack following complaints by Bharatiya Janata Party
Member of Parliament Mahesh Girri and the ABVP.

Kanhaiya Kumar denied the charges and said that he was neither shouting any slogan
nor saying anything against integrity of the country. I have full faith in the Constitution
of the country and I always say that Kashmir is an integral part of India.

The news paper coverage of the event to show that due to media coverage society makes
its opinion that effect the human being whether he is lawyer or the judge. In the case of
JNU Kanhiya kumar, through media hype National interest sidelined through
ideological sects and political involvement of the national leaders who define
nationalism in their own interest picked up the pace.

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CHAPTER IX
CONCLUSION

Journalism depends on the people’s perspective of news and news values. It is said that
news is a mere construction of an event or a happening or person. News selects,
processes, produces and shapes an event or happening. But it totally depends on us,
readers, to make our own sense of the news. However, over the years, media has also
assumed the role of an opinion maker and creator of public opinion. This is highlighted
with the help of the two case studies mentioned above. Over the years, we have seen
that the power of press is to bring about social and political change or economic
development in a country.32

The power of press can also be understood in the basis of how the people respond and
react to the news. As is seen from the case studies, media has been quite powerful in
forming public opinion. There was widespread outrage and protests after both the
murder cases were reported. People had realized that justice had been denied and it was
necessary to protest and speak aloud. Both the cases involved high-profile people and
this fact made the people all the more interested and aware of the proceedings of the
cases. As is seen in the two case studies, we see that media interference helped in the
rightful and proper closure of the case. The two murder cases are classic examples of
reactive and responsible journalism which helped citizens get their rights.

One of the primary functions of the media in a democracy is to act as the opposition of
the government and also stay neutral in the process. This role of the media is highlighted
in both the cases. None of the cases would have got so much of importance in the
judiciary had the media not intervened. The investigations on part of media also helped
to accelerate the trials of the cases. All the cases also exposed the lopsided judiciary of
India and how influential and powerful people manage to get away even after
committing serious crimes. Both the cases can be considered as measuring sticks of the
power of media in influencing the public and ensuring justice to the citizens.
The use of investigative journalism in the case studies highlights the power of media
and the social responsibility of media in a democratic setup. Both the cases are classic
examples of high profile cases where initially, people with power and influence were
managing to get away scot-free. This very fact was highlighted by media in both the
cases and ultimately media helped the cases to be reopened. The same people, who were
earlier acquitted, were finally put behind bars and justice prevailed. Therefore, media
interference helped the hidden facts to be unearthed thereby allowing the judiciary to
take notice of the loopholes and extensive malpractices of the administrative system in
India. It is very important to have a responsive and responsible media in order to have
a healthy democracy.

______________________________
32
Kathakali Nandi- INVESTIGATIVE ROLE OF MEDIA: RESPONSIBILITY TO THE SOCIETY
(Student’s Research) Global Media Journal – Indian Edition/ Summer Issue / June 2011
http://www.caluniv.ac.in/Global%20mdia%20journal/student_research/SR%206%20KATHAKALI%20
NANDI.pdf

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Indian media is witness to various incidents ever since its inception. Investigative
journalism was the main tool used by journalists for both these cases. This type of
journalism is relatively new in the country and is still a topic of debate. However, these
cases in which investigative journalism was used proved the power of media in forming
healthy public opinion. This function of media thereby allows the development of a
strong democracy, thereby allowing for healthy social development in the country.

From the above account it becomes clear that the media had a more negative influence
rather than a positive effect (except for a few exceptions here and there). The media has
to be properly regulated by the courts. The media cannot be granted a free hand in the
court proceedings as they are not some sporting event. The law commission also has
come up with a report on ‘Trial by Media: Free Speech vs. Fair Trial’ under Criminal
Procedure (Amendments to the Contempt of Court Act, 1971.
The most suitable way to regulate the media will be to exercise the contempt
jurisdiction of the court to punish those who violate the basic code of conduct. The use
of contempt powers against the media channels and newspapers by courts have been
approved by the Supreme Court in a number of cases as has been pointed out earlier.
The media cannot be allowed freedom of speech and expression to an extent as to
prejudice the trial itself.

What lessons does the Jessica Lal fiasco teach us? There is definitely a case for
intensifying efforts to upgrade the quality of policing. There is at the same time a need
to improve judicial performance. For instance, the Jessica trial took nearly seven years
to get completed. Hardly anyone has commented on this. Will it be unreasonable to
demand that this should be taken up by the Delhi High Court as a kind of case study to
find out why there was such delay? The public would like to satisfy themselves that the
failure was not because of judicial lethargy, but rather because of several extraneous
factors such as police indifference and wanton delaying tactics on the part of the
defence. The current popular perception is that judicial accountability is an unrealisable
dream. It is for the judiciary to prove this perception wrong.33

The above analysis reveals us the gravity of the situation as it persists in India. An ideal
proposal will be that the Indian press and the Indian people are not at present democratic
enough to allow the press to intrude in the judicial process. What will an ideal
proposition is to not allowing the media trial at this moment. It‟s definitely an ideal
proposition to allow controlled media reporting of the cases once the media is supposed
to come out of the profit and sensational considerations. The media has to 36play the
role of a facilitator rather than tilting the scales in favour of one or the other party.

__________________________________
33
Himanshu Raman Singh-Trial By Media: A legal dilemma resolved with reference to Jessica Lal
http://www.legalserviceindia.com/article/l237-Trial-By-Media.html

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CHAPTER X
SUGGESTIONS

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

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

➢ The Contempt of Court Act defines contempt by identifying it as civil and criminal:
Criminal contempt has further been divided into three types:
1. Scandalizing
2. Prejudicing trial, and
3. Hindering the administration of justice.

➢ Unlike American Constitution, Indian Constitution has wide power to impose

restriction and control the power of media under article 19(2) of the Constitution.
Recently it has also come to light that the media houses are making an arrangement
with corporate houses for not reporting anything against them for immoral
consideration. Thus while balancing between the two fundamental rights on account
of excessive coverage in an appropriate case mode of prior restraint and self
regulation should be effectively invoked and those who violate the basic code of
conduct must be punished under Contempt of Court Act, 1971. When rights of equal
weight clash, Courts have to evolve balancing techniques or measures based on re-
calibration under which both the rights are given equal space in the Constitutional
Scheme.

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➢ The Government must take up steps for thorough implementation of legitimate
restriction imposing techniques upon the freedom of speech and expression of
Media while keeping in mind that its essence lies in the extent of permissible
independence it exercises. In this lies a big challenge to the Judiciary & the
Parliament.

➢ There is an urgent need that something should be done to curb the unethical and
even illegal practices by media. In almost every profession there are some rules and
regulation which has to be abided by the professionals, for instance Bar Council of
India and Medical Council of India regulates the conduct of Legal and Medical
professionals respectively. And in case of any breach of rules and regulations of
their respective codes, provisions for punishment are provided based on the
proximity of the act which includes heavy fines, cancellation of license etc.

➢ There should be different regulatory bodies for each medium of media i.e. print,
television or radio as there cannot be uniformity of regulation if the form itself can
be distinguished.

➢ Press Council of India composition should be amended under section 5 of Press

Council of India Act, 1978 where working editor/journalist and Members of
Parliament should not be allowed to be part of Council to avoid conflict of interest
and government interference. Former journalists/editors and eminent scholars of
media law should be part of Council which should be selected from a panel elected
by Press organizations.

➢ Section 14 Press Council of India Act, 1978 should be amended and Power to
suspend license and impose heavy fines should be added other than power to
censure on the lines of Advocates Act, 1961.

➢ Press Council of India should be given sufficient powers and inference can be drawn
from Insurance Regulatory Authority of India and Security Exchange Board of
India which are standard authority in their field and are effective as well.

➢ News Channels should be made mandatory to be a part of News Broadcaster

Association and Power to suspend license and impose heavy fines should be given
to the same.

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CHAPTER XI
BIBLIOGRAPHY

ARTICLES:-

• Gupta Mayukh, “freedom of press in india”, available at

<http://legalservicesindia.com/article/article/freedom-of-press-in-india-217-
1.html> (Accessed on 06th Dec, 2022)

• “Freedom of press” PUCL Bulletin, July 1982

• Nairobi, “The Importance of Press Freedom”, May 4, 2011

• Kamat Payal “short essay on freedom of press (india)” available at

<http://www.englishforums.com/English/FreedomEssay/xgrvc/post.htm>
(accessed on 03th Nov, 2022)

• Manas “right to freedom” available at <http://expertscolumn.com/content/right-

freedom> (accessed on 20th Nov, 2022)

• Hahn Harley “Why is freedom important” available at

<http://www.harley.com/ask-harley/questions/freedom.html> (accessed on 21st
Nov, 2022)

• “Freedom of speech and freedom of press” available at

<http://www.lincoln.edu/criminaljustice/hr/Speech.htm>

• Treder Mark “The meaning of freedom”, ethical technology, September 19, 2009

• Mahendra Tiwari “freedom of press in india: constitutional perspectives” (2006)

available at

<http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&d
o_pdf=1&id=6752> (accessed on 21st Nov, 2022)

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• Press council act, 1978 available at <http://presscouncil.nic.in/act.htm>
(accessed on 26th Sept, 2012)

• Ms. Shubhangi Mehta, “freedom of speech in relation to media in India”

available at <http://www.scribd.com/doc/25248803/Freedom-of-Speech-in-
Relation-to-Media>

• Hima Lawrence, “has the time come to review press freedom” available at
http://www.legalserviceindia.com/articles/press_freedom.htm

• Himanshu Raman Singh-Trial By Media: A legal dilemma resolved with reference

to Jessica Lal http://www.legalserviceindia.com/article/l237-Trial-By-Media.html

• Nilanjan Mukhopadhyay- India: The A,B,C,D & QED of Guwahati molestation

case
http://asiancorrespondent.com/85862/the-abcd-qed-of-guwahati-molestation-case/

• Himanshu Raman Singh-Trial By Media: A legal dilemma resolved with reference

to Jessica Lal http://www.legalserviceindia.com/article/l237-Trial-By-Media.html

WEBSITES:-

• http://www.englishforums.com/English/FreedomEssay/xgrvc/post.htm

• http://expertscolumn.com/content/right-freedom

• http://presscouncil.nic.in/act.htm

• http://legalservicesindia.com/article/article/freedom-of-press-in-india-217-1.html

• http://www.lincoln.edu/criminaljustice/hr/Speech.htm

• http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1
&do_pdf=1&id=6752

• http://www.legalserviceindia.com/articles/press_freedom.htm

• http://www.indiankanoon.org/doc/1475436

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CASES REFERRED:-

• Romesh Thapper v. state of madras, AIR 1950 SC 124

• LIC v. Manubhai D. shah, (1992) 3 SCC 637
• Brij Bhushan v. State of Delhi, AIR 1950 SC 129
• Indian express newspaper v. Union of India (1985) 1 SCC 641
• Romesh Thapper v State of Madras AIR 1950 SC 124
• Brij Bhushan v. State of Delhi AIR 1950 SC 129;
• Sakal Papers Ltd v. Union of India AIR 1962 SC 305
• R. Rajagopal vs. State of Tamil Nadu(1994) 6 SCC 632
• Bennet Coleman and Co. v. Union Of India AIR 1973 SC 106;
• Express Newspapers Pvt Ltd. v. Union of India(1986) 1 SCC 133
• Virendra vs. the State of Punjab1957 AIR 896
• Kishori Mohan v. State of West Bengal AIR 1972 SC 1749
• Baradakant v. Registrar, Orissa AIR 1974 SC 710
• Peoples‟ union for civil liberties vs. Union of India AIR 1997 SC 568
• K.A. Abbas vs. Union of India AIR 1971 SC 481

BOOKS:-

• “Law of the press” by Acharya Dr. Durga Das Basu, fifth edition 2010.

• “The constitutional law of india”, by Dr. J.N. Pandey, 48th edition, published by
central law agency.

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