UNIVERSITY INSTITUTE OF LEGAL

STUDIES, PANJAB UNIVERSITY

(CHANDIGARH)

RTI & MEDIA LAW

PROJECT ON

MEDIA TRIALS AND THE

JUDICIARY

Submitted by:- Submitted to:-

Srishti Sharma Ms. Shallu Nuniwal

B.A. LL.B.(Hons.)
Section-C
Semester-VII

0
 INDEX

SR. NO. TOPIC PAGE NO.

1. Acknowledgement 2
2. Introduction 3-4
3. History of Media Trials 5

4. Media and Judiciary 6-7

5. Impact of Media Trials 8-12
6. Is Media Trial a contempt of court? 13-14
7. Regulatory Measures 15-17
8. 200th Law Commission Report 18-19
9. Conclusion and Suggestions 20
10. Bibliography 21

1
 ACKNOWLEDGEMENT

This project is a result of dedicated effort.

It gives me immense pleasure to prepare this project report on "Media Trial and the
Judiciary".

I would like to thank our project guide, Ms. Shallu Nuniwal, for consultative help and
constructive suggestions. I would also like to thank my parents and friends who have helped
in making this project a successful one.

-Srishti Sharma

2
 INTRODUCTION

 Free speech and Expression is perhaps one of the most important and useful Rights
available in our Constitution. Freedom of expression incorporated in the Indian
Constitution in Article 19(1) remains an important facilitator for widespread
engagement of the media within a democratic atmosphere. It is using this freedom that
media is able to function.
 Media is regarded as one of the pillars of democracy. The freedom of press is
regarded as “the mother of all liberties in a democratic society”1. A responsible press
is a handmaiden of effective judicial administration. Media has wide ranging roles
and plays a vital role in shaping the opinion of the society, but like every other
freedom and liberty, this freedom of speech and expression is also seen to be misused
by the media.
 ‘Trial by media’ is a recently coined term and is used to denote a facet of ‘media
activism.’ It means “ the impact of television and newspaper coverage on a person’s
reputation by creating widespread perception of guilt regardless of any verdict in a
Court of law.”
1
In re Harijai Singh, AIR 1997 SC 73

3
 In recent times there have been numerous instances in which media has conducted the
trial of an accused and has passed the verdict even before the court passes its
judgment.
 There is a heated debate between those who support a free press which is largely
uncensored and those who place a higher priority on an individual’s right to privacy
and right to a fair trial.
 The practice which has become more of a daily occurrence now is that of media trials.
Something which was started to show to the public at large the truth about cases has
now become a practice interfering dangerously with the justice delivery system. And
it highlights the enormous need of what is called ‘responsible journalism’.

HISTORY OF MEDIA TRIALS

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Athough a recently coined phrase, the idea that popular media can have a strong influence on
the legal process goes back certainly to the advent of the printing press and probably much
further. This is not including the use of a state controlled press to criminalize political
opponents, but in its commonly understood meaning covers all occasions where the
reputation of a person has been drastically affected by ostensibly non-political publications.

20th century

 One of the first celebrities in the 20th century to be arguably tried by media was
Roscoe ‘Fatty’ Arbuckle who was acquitted by the courts but nevertheless lost his
career and reputation due to the media coverage.
 Parallels can be drawn between these cases and the trial of O.J. Simpson. The
connection is less about guilt or innocence but about the promotion of the media
coverage in the public mind above the status of the court.
 This journey has been chalked out with respect to the concept of prior restraint and
most recent guidelines for censorship held under Sahara India Real Estate
Corporation Ltd., while the role of censorship further being fortified through Bata
India Ltd. case. 2

MEDIA AND JUDICIARY

2
http://ijlljs.in/trial-by-media-growing-influence-of-media-priyanka-mittal-final-year-campus-law-centre-
faculty-of-law-delhi-university/

5
  The judiciary and the media, besides the civil society are the best instruments to
checkmate power. Roles of these two institutions are complementary but ironically
the two have acquired an adversarial role. Both are required to protect the common
man from the on slaughter of state as well as individual might and act without fear of
favor. Independent judiciary and independent media are the heart and soul of
constitutional democracy and when these two pillars are strong, the citizen feel
empowered and their rights secured. It is the press which acts as a bridge between the
government and the governed, exposing unethical and immoral, illegal behavior by
government officials, politicians, institutions and private individuals. It is indisputable
that in many dimensions the unprecedented media revolution has resulted in great
gains for the general public. Even the judicial wing of the state has benefited from the
ethical and fearless journalism and taken suo-moto cognizance of the matters in
various cases after relying on their reports and news highlighting grave violations of
human rights.3
 A larger issue is the complex nature of juror bias and how that bias predisposes a juror
toward one side in a case. It is no secret that we all have biases. The difficulty comes
from understanding how those biases may ultimately affect the viewing of evidence
and the deliberations in a case. Judges are also Human Beings they too care about the

3
https://www.theweek.in/india/2018/04/24/judiciary-media-are-heart-soul-of-democracy-lotha-html

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 reputation and promotion and remunerations. Media is so much into our day to day
life that even judges can't stay away from it. And as a result there is also an additional
pressure on the judges which include trials of high publicity. 4
 During high publicity Court cases, the media often provoke an atmosphere of public
hysteria akin to a lynch mob which not only makes a fair trial impossible but means
that, regardless of the result of the trial, as per public perception the accused is already
held guilty and is not be able to live the rest of his life without intense public scrutiny.
 Every institution is liable to be abused, and every liberty, if left unbridled, has the
tendency to become a license which would lead to disorder and anarchy. This is the
threshold on which we are standing today. Television channels in a bid to increase
their Television Rating Point (TRP) ratings are resorting to sensationalized journalism
with a view to earn a competitive edge over the others.

IMPACT OF MEDIA TRIALS

4
https://www.civilserviceindia.com/subject/Essay/trial-by-media6.html

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 1. MEDIA TRIALS vs. FREEDOM OF SPEECH AND EXPRESSION

 Freedom of speech plays a crucial role in the formation of public opinion on social,
political and economic matters. Similarly, the persons in power should be able to keep
the people informed about their policies and projects, therefore, it can be said that
freedom of speech is the mother of all other liberties.
 Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian
Express Newspapers (Bombay) (P) Ltd. v. Union of India5 has stated:
"Freedom of press is the heart of social and political intercourse. The press has now
assumed the role of the public educator making formal and non-formal education
possible in a large scale particularly in the developing world, where television and
other kinds of modern communication are not still available for all sections of society.
The purpose of the press is to advance the public interest by publishing facts and
opinions without which a democratic electorate [Government] cannot make
responsible judgments. Newspapers being purveyors of news and views having a
bearing on public administration very often carry material which would not be
palatable to Governments and other authorities."

5
(1985) 1 SCC 641

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  The above statement of the Supreme Court illustrates that the freedom of press is
essential for the proper functioning of the democratic process. Democracy means
Government of the people, by the people and for the people; it is obvious that every
citizen must be entitled to participate in the democratic process and in order to enable
him to intelligently exercise his right of making a choice, free and general discussion
of public matters is absolutely essential. This explains the constitutional viewpoint of
the freedom of press in India.
 In Printers (Mysore) Ltd. v. CTO6 the Supreme Court has reiterated that though
freedom of the press is not expressly guaranteed as a fundamental right, it is implicit
in the freedom of speech and expression. Freedom of the press has always been a
cherished right in all democratic countries and the press has rightly been described as
the fourth chamber of democracy.
 It therefore received a generous support from all those who believe in the free flow of
the information and participation of the people in the administration; it is the primary
duty of all national courts to uphold this freedom and invalidate all laws or
administrative actions which interfere with this freedom, are contrary to the
constitutional mandate.
 Therefore, in view of the observations made by the Supreme Court in various
judgments and the views expressed by various jurists, it is crystal clear that the
freedom of the press flows from the freedom of expression which is guaranteed to all
citizens by Article 19(1)(a). Press stands on no higher footing than any other citizen
and cannot claim any privilege (unless conferred specifically by law), as such, as
distinct from those of any other citizen. The press cannot be subjected to any special
restrictions which could not be imposed on any citizen of the country.

2. MEDIA TRIAL vs. FAIR TRIAL

 Trial by media has created a “problem” because it involves a tug of war between two
conflicting principles – free press and free trial, in both of which the public are vitally
interested. The freedom of the press stems from the right of the public in a democracy
to be involved on the issues of the day, which affect them. This is the justification for
investigative and campaign journalism.

6
(1994) 6 SCC 632

9
  At the same time, the “Right to Fair Trial”, i.e., a trial uninfluenced by extraneous
pressures is recognized as a basic tenet of justice in India. Provisions aimed at
safeguarding this right are contained under the Contempt of Courts Act, 1971 and
under Articles 129 and 215 (Contempt Jurisdiction-Power of Supreme Court and High
Court to punish for Contempt of itself respectively) of the Constitution of India. Of
particular concern to the media are restrictions which are imposed on the discussion
or publication of matters relating to the merits of a case pending before a Court. A
journalist may thus be liable for contempt of Court if he publishes anything which
might prejudice a ‘fair trial’ or anything which impairs the impartiality of the Court to
decide a cause on its merits, whether the proceedings before the Court be a criminal or
civil proceeding.
 The media exceeds its right by publications that are recognized as prejudicial to a
suspect or accused like concerning the character of accused, publication of
confessions, publications which comment or reflect upon the merits of the case,
photographs, police activities, imputation of innocence, creating an atmosphere of
prejudice, criticism of witnesses, the Indian criminal justice system. It encompasses
several other rights including the right to be presumed innocent until proven guilty,
the guilt is to be proved beyond reasonable doubt and the law is governed by senses
and not by emotions the right not to be compelled to be a witness against oneself, the
right to a public trial, the right to legal representation, the right to speedy trial, the
right to be present during trial and examine witnesses, etc.
 In Zahira Habibullah Sheikh v. State of Gujarat7, the Supreme Court explained
that a “fair trial obviously would mean a trial before an impartial Judge, a fair
prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses, or the cause which is being tried is
eliminated.”
 Right to a fair trial is absolute right of every individual within the territorial limits of
India vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a
fair trial is more important as it is an absolute right which flows from Article 21 of the
constitution to be read with Article 14. The right to freedom of speech and expression
in contained in article 19 of the constitution. Article 19(1) (a) of the Constitution of
India guarantees the fundamental right to freedom of speech and expression. In

7
(2005) 2 SCC (Jour) 75

10
 accordance with Article 19(2), this right can be restricted by law only in the “interests
of the sovereignty and integrity of India, the security of the State, friendly relations
with Foreign States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence.”

POSITION IN INDIA:

 In State of Maharashtra vs. Rajendra Jawanmal Gandhi8, the Supreme Court

observed:
“There is procedure established by law governing the conduct of trial of a person
accused of an offence. A trial by press, electronic media or public agitation is very
antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to
guard himself against any such pressure and is to be guided strictly by rules of law. If
he finds the person guilty of an offence he is then to address himself to the question of
sentence to be awarded to him in accordance with the provisions of law.”

 The Hon’ble Supreme Court in the case of Rajendra Sail Vs. Madhya Pradesh
High Court Bar Association and Others9, observed that for rule of law and orderly
society, a free responsible press and an independent judiciary are both indispensable
and both have to be, therefore, protected. The aim and duty of both is to bring out the
truth. And it is well known that the truth is often found in shades of grey. Therefore
the role of both cannot be but emphasized enough, especially in a “new India”, where
the public is becoming more aware and sensitive to its surroundings than ever before.
The only way of orderly functioning is to maintain the delicate balance between the
two. The country cannot function without two of the pillars its people trust the most.10

8
1997 (8) SCC 386
9
(2005) 6 SCC 109
10
https://www.lawctopus.com/academike/media-trials-india/

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12
 IS MEDIA TRIAL A CONTEMPT OF COURT?

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

Criminal contempt has further been divided into three types:

1. Scandalizing

2. Prejudicing trial, and

3. Hindering the administration of justice.

 Prejudice or interference with the judicial process: This provision owes its origin to
the principle of natural justice; ‘every accused has a right to a fair trial’ clubbed
with the principle that ‘Justice may not only be done it must also seem to be done’.
There are multiple ways in which attempts are made to prejudice trial. If such cases
are allowed to be successful will be that the persons will be convicted of offences
which they have not committed. Contempt of court has been introduced in order to
prevent such unjust and unfair trials. No publication, which is calculated to poison the
minds of jurors, intimidate witnesses or parties or to create an atmosphere in which
the administration of justice would be difficult or impossible, amounts to
contempt. Commenting on the pending cases or abuse of party may amount to
contempt only when a case is triable by a judge. No editor has the right to assume the
role of an investigator to try to prejudice the court against any person.
 The obstruction or interference in the administration of justice vis a vis a person
facing trial. The prejudicial publication affecting public which in term affect the
accused amount to denial of fair trial. Prejudicial publication affecting the mind of the
judge and Suggesting the court as to in what manner the case should be preceded.
 In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr11. It was held by the
Supreme Court that:
 “No doubt it would be mischievous for a newspaper to systematically conduct an
independent investigation into a crime for which a man has been arrested and to
publish the results of that investigation. This is because trial by newspapers, when a
11
AIR 1961 SC 633

13
trial by one of the regular tribunals of the country is going on, must be prevented. The
basis for this view is that such action on the part of a newspaper tends to interfere
with the course of justice whether the investigation tends to prejudice the accused or
the prosecution. There is no comparison between a trial by a newspaper and what has
happened in this case.”

REGULATORY MEASURES

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  As we concern with the restrictions imposed upon the media, it is clear from the
above that a court evaluating the reasonableness of a restriction imposed on a
fundamental right guaranteed by Article 19 enjoys a lot of discretion in the matter. It
is the constitutional obligation of all courts to ensure that the restrictions imposed by a
law on the media are reasonable and relate to the purposes specified in Article 19(2).
 In Papnasam Labour Union v. Madura Coats Ltd12 the Supreme Court has laid
down some principles and guidelines to be kept in view while considering the
constitutionality of a statutory provision imposing restriction on fundamental rights
guaranteed by Articles 19(1)(a) to (g) when challenged on the grounds of
unreasonableness of the restriction imposed by it.
 In Arundhati Roy, In re13 the Supreme Court has considered the view taken by
Frankfurter, J. in Pennekamp v. Florida14 in which Judge of the United States
observed: (US p. 366)
 “If men, including judges and journalists, were angels, there would be no problem of
contempt of court. Angelic judges would be undisturbed by extraneous influences and
angelic journalists would not seek to influence them. The power to punish for
contempt, as a means of safeguarding judges in deciding on behalf of the community
as impartially as is given to the lot of men to decide, is not a privilege accorded to
judges. The power to punish for contempt of court is a safeguard not for judges as
persons but for the function which they exercise.”
12
(1995) 1 SCC 501
13
(2002) 3 SCC 343
14
328 US 331 : 90 L Ed 1295 (1946)

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  In Rajendra Sail v. M.P. High Court Bar Assn.1517 the editor, printer and publisher
and a reporter of a newspaper, along with the petitioner who was a labour union
activist, were summarily punished and sent to suffer a six months imprisonment by
the High Court. Their fault was that on the basis of a report filed by a trainee
correspondent, they published disparaging remarks against the judges of a High Court
made by a union activist at a rally of workers. The remarks were to the effect that the
decision given by the High Court was rubbish and fit to be thrown into a dustbin. In
appeal the Supreme Court upheld the contempt against them, but modified and
reduced the sentence.
 In D.C. Saxena (Dr.) v. Chief Justice of India16 the Supreme Court has held that no
one else has the power to accuse a judge of his misbehaviour, partiality or incapacity.
The purpose of such a protection is to ensure independence of judiciary so that the
judges could decide cases without fear or favour as the courts are created
constitutionally for the dispensation of justice.
 By these above observations and the judgment we can say that restrictions imposed by
Article 19(2) upon the freedom of speech and expression guaranteed by Article 19(1)
(a) including the freedom of press serve a two-fold purpose viz. on the one hand, they
specify that this freedom is not absolute but are subject to regulation and on the other
hand, they put a limitation on the power of a legislature to restrict this freedom of
press/media. But the legislature cannot restrict this freedom beyond the requirements
of Article 19(2) and each of the restrictions must be reasonable and can be imposed
only by or under the authority of a law, not by executive action alone.
 The Press Council of India (PCI) was established to preserve the freedom of the press
and to improve the standards of news reporting in India. Under the Press Council Act
1978, if someone believes that a news agency has committed any professional
misconduct, the PCI can, if they agree with the complainant, “warn, admonish or
censure the newspaper”, or direct the newspaper to, “publish the contradiction of the
complainant in its forthcoming issue.” Given that these measures can only be
enforced after the publication of news materials, and do not involve particularly harsh
punishments, their effectiveness in preventing the publication of prejudicial reports
appears to be limited.

15
(2005) 6 SCC 109 per Y.K. Sabharwal, J. (for himself and Tarun Chatterjee, J.)
16
(1996) 5 SCC 216

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 Along with these powers, the PCI has established a set of suggested norms for
journalistic conduct. These norms emphasise the importance of accuracy and fairness
and encourages the press to “eschew publication of inaccurate, baseless, graceless,
misleading or distorted material.” The norms urge that any criticism of the judiciary
should be published with great caution. These norms further recommend that reporters
should avoid one-sided inferences, and attempt to maintain an impartial and sober
tone at all times. But significantly, these norms cannot be legally enforced, and are
largely observed in breach.
 Lastly, the PCI also has criminal contempt powers to restrict the publication of
prejudicial media reports. However, the PCI can only exercise its contempt powers
with respect to pending civil or criminal cases. This limitation overlooks the extent to
which pre-trial reporting can impact the administration of justice.

200th LAW COMMISSION REPORT

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 The 17th Law Commission has made recommendations to the Centre to enact a law to
prevent the media from reporting anything prejudicial to the rights of the accused in
criminal cases from the time of arrest, during investigation and trial. The subject
“Trial by Media: Free Speech vs. Fair Trial Under Criminal Procedure (Amendments
to the Contempt of Court Act, 1971)” was taken up suo motu by the Commission
having regard to the extensive prejudicial coverage of crime and information about
suspects and the accused, both in the print and electronic media.
 In its 200th report submitted to the Government, the Commission said, “Today there
is a feeling that in view of the extensive use of the television and cable services, the
whole pattern of publication of news has changed and several such publications are
likely to have a prejudicial impact on the suspects, accused, witnesses and even
judges and in general on the administration of justice.”
 The report said, “according to our law, a suspect/accused is entitled to a fair procedure
and is presumed to be innocent till proved guilty in a court of law. None can be
allowed to prejudge or prejudice his case by the time it goes to trial.”
 It said that publications, which interfered or tend to interfere with the administration
of justice would amount to criminal contempt under the Contempt of Courts Act,
1971 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.”
 The report noted that at present, under Section 3 (2) of the Contempt of Courts Act,
such publications would be contempt only if a charge sheet had been filed in a
criminal case. The Commission has suggested that the starting point of a criminal case
should be from the time of arrest of an accused and not from the time of filing of the
charge sheet. In the perception of the Commission such an amendment would prevent
the media from prejudging or prejudicing the case.
 Another controversial recommendation suggested was to empower the High Court to
direct a print or an electronic media to postpone publication or telecast pertaining to a
criminal case and to restrain the media from resorting to such publication or telecast.
The Commission said that such a practice was prevalent in many countries including
the U.K. The report also said that publications with reference to character of the
accused, previous convictions, confessions, judging the guilt or innocence of the
accused or discrediting witnesses could be a criminal contempt. The report has also

18
 discussed the recent phenomenon of media interviewing potential witnesses, about
publicity that was given by the police and about investigative journalism.
 Enclosing a draft Bill, the Commission said that this report was important and crucial
for the country as far as criminal justice was concerned. Since there was interference
with the due administration of criminal justice, this would have to be remedied by
Parliament.17

CONCLUSION AND SUGGESTIONS

17
“Enact law to regulate trial by media: Law Commission” ,The Hindu Online Edition,
http://www.hindu.com/2006/09/03/stories/2006090303411000.htm Sunday, Sep 03, 2006 (last visited on
14.12.12)

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It has to be remembered that freedom of expression is not absolute, unlimited or unfettered.
The judiciary is peopled by judges who are human, and being human they are occasionally
motivated by considerations other than an objective view of law and justice. No judge is
completely impervious from the influence of the hype created by the media.

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

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

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

BIBLIOGRAPHY

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 https://www.legallyindia.com/views/entry/the-legality-and-the-reality-role-of-media-
and-the-right-to-information#liprefbox

 https://www.civilserviceindia.com/subject/Essay/trial-by-media6.html

 https://researchersclub.wordpress.com/2014/04/22/trial-by-media-an-indian-
perception/

 https://www.myadvo.in/media-trials-and-the-judiciary/

 https://www.livelaw.in/trial-by-media/

 https://www.lawctopus.com/academike/media-trials-india/

 https://www.lawctopus.com/academike/fair-trial-judiciary-media need-balance/

 http://ijlljs.in/trial-by-media-growing-influence-of-media-priyanka-mittal-final-year-
campus-law-centre-faculty-of-law-delhi-university/

 https://legaldesire.com/arushi/

 http://connection.ebscohost.com/c/articles/71947182/investigative-role-media/

 http://www.lawyersclubindia.com/articles/

 https://www.theweek.in/india/2018/04/24/judiciary-media-are-heart-soul-of-
democracy-lotha-html

 https://www.lawteacher.net/free-law-essays/commercial-law/effect-of-trial-by-media-
before-courts-law-essay.php

 http://www.legalservicesindia.com/law/article/1046/10/Indian-Judiciary-and-
Freedom-of-Press

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