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CHAPTER 1
INTRODUCTION
ROLE OF MEDIA IN JUSTICE DELIVERY SYSTEM
Historically, the print media emerged in Europe as an organ of the people against
feudal oppression. At that time the established organs were all in the hands of the feudal
despotic authorities like the king and aristocrats. Hence the people had to create new organs
which could represent them. That is why the print media became known as the fourth estate.
In Europe and America it represented the voice of the future, as contrasted to the established
feudal organs which wanted to preserve the status quo. The media thus played an important
role in transforming feudal Europe to modern Europe. India is now passing through such a
transitional periodwhich was prevailed in Europe in 16
th
to the 19
th
centuries.
In the opinion of Justice Markandeyakatju, chairman of the press council of India is of
the view that the Indian media should be playing a role similar to the progressive role played
by the media in Europe during the transitional period in Europe. In other words, the Indian
media should help our country get over the transition period and became a modern industrial
state. This it can do by attacking backward, feudal ideas and practices e.g. casteism,
communalism and superstitions and promoting modern scientific and rational ideas.
1

It is the duty of all patriotic people, including the media, to help our society get over
this transition period quickly and with less pain. The media has a very important role to play
in this transition period, as it deals with ideas, not commodities. So by its very nature the
media cannot be like an ordinary business.
If we study the history of Europe when it was passing through its transition period, i.e.
from the 16th to the 19th Centuries, we find that this was a terrible period in Europe, full of
turbulence, turmoil, revolutions, wars, chaos, social churning and intellectual ferment. It was

1
Justice Markandey Katju, (former Judge, Supreme Court of India), Chairman, Press Council of India), The Role
The Media Should Be Playing In India

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only after passing through this fire that modern society emerged in Europe. India is presently
going through this fire.
Historically, the media were born as organs of the people against feudal oppression.
In Europe, they played a major role in transforming a feudal society into a modern one.
Everyone is aware of the role the print media played in preparing the people for, and during,
the American and French Revolutions, as also in Britain. The only medium at that time was
print, and writers such as Rousseau, Voltaire, Thomas Paine, Junius, and John Wilkes used it
in the fight against feudalism and despotism. We know about the stir created by Thomas
Paines pamphlet Common Sense during the American Revolution, and by Junius letters
during the reign of the despotic George III in England.
The media became powerful tools in the hands of the people at that time. They
could not express themselves through the established organs of power, which were in the
hands of feudal and despotic rulers. Hence the people had to create organs that would serve
them. In Europe and the U.S., the media represented the voice of the future, as against the
feudal or despotic organs that wanted to preserve the status quo in society. In the 20th
century, other types of media have emerged.
Big responsibility is casted upon Media in underdeveloped like India to fight
backward ideas such as casteism and communalism, and help the people in their struggle
against poverty and other social evils. Since a large section of the people is backward and
ignorant, it is all the more necessary that modern ideas should be brought to them and their
backwardness removed so that they become part of enlightened India. The media have a great
responsibility in this.
The media's the most powerful entity on earth. They have the
power to make the innocent guilty and to make the guilty innocent, and
that's power. Because they control the minds of the masses- Malcolm X
It is common belief that the fourth estate of a democracy is a free
and independent Media. Medias purpose is clearly that of a mirror that reflects the state of
affairs in the nation. It shows us who we are, where we are currently and where we are
headed. It reveals and makes transparent the inner workings of the other three pillars of
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democracy namely the Judiciary, Legislature and the Executive. This fourth body i.e., media,
is considered more important these days, it plays an important role as an informative bridge
between governing bodies and general public, in absence of media general public cannot
know about what kind of bills and acts are passed in the parliament, and what are their
positive and negative effects in the society. If media person close their eyes the government
officials will do what they want, so media plays a very important and impartial role between
government activities and general public, so much so that it is said that the freedom of media
is the guarantee of success of republic government.
Media plays a crucial role in shaping a healthy democracy. It is the backbone of a
democracy. Media makes us aware of various social, political and economical activities
happening around the world. The media has undoubtedly evolved and become more active
over the years.
In a democratic society, people should know all their options if they are to govern
themselves, and the media is a vehicle for the dissemination of such information. The
assumption in some societies is that the press speaks for the people, thus the Freedom of
Speech and Freedom of the Press Acts in the United States and in many other countries. The
reason for Freedom of the Press is to ensure that democracy is able to function, so it is
important to understand that such legislation does not only protect the functions of the press.
With
press freedom we then know what the differing views in society are, opening the floor to
debate, and discussion, all of which are healthy functions of a democratic society.
With the emergence of the media as a powerful source of information and
education, its role in the dispensation of justice has also become significant. The Judiciary
and the media have rather become partners in the dispensation of justice as the media enjoys
the privilege to investigate crimes and to act as a catalyst in the process of dispensation of
justice while the judiciary is supposed to deliver justice. Winston Churchill attributed
Britains success in the revival of society after the World War II to the upright functioning of
the courts. The media and the judiciary are, in fact, two important pillars of the state, upon
which rests the edifice of the judicial system. The two therefore owe it to the society to
uphold and deliver justice.

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There is no doubt that media has a multidimensional role to play in the promotion of
societys values and virtues as well as in the dispensation of justice. It can be instrumental in
uncovering crime besides playing a key role in projecting a vision of order, justice, stability
and change. The media also has the role of digging out and exposing white collar crimes
that invariably have a direct bearing on the nations political and economic life.
2


The role of Media in highlighting certain cases becomes useful to the society. Though
we may call it as Trial by Media, it often quicker decisions. The need for such media
intervention is therefore necessary to ensure that the judicial system is not rendered more and
more inefficient due to lack of timely delivery of justice.

Trial by media is a phrase made popular in the late 20th century and early 21
st
century
to describe the impact of television and newspaper coverage on a person's reputation by
creating a widespread perception of guilt regardless of any verdict in a court of law. In every
democratic country 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 fair trial.
3


The media also play a major role in changing the mind of people. The view which is
published in media is reflected in the opinion of common people. A media can publicize the
decisions of a court both positively and negatively. Some restrictions are also imposed upon
these media with regard to publication of decisions. These aspects are discussed in more
details in the following chapters.







2
Syed Faseih Iqbal, President South Asian Editors Forum (SAEF)., The Role Of media in Dispensation of Justice
3
Trial By Media-The Jessica Lal Case , available at: http://ssrn.com/abstract=1003644
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CHAPTER 2
MEDIA AS THE FOURTH PILLAR OF THE
GOVERNMENT
Today, media is considered as the fourth pillar of the state all over the world; first and
foremost British Member of Parliament Lord Macaulay had given this status to the media. In
any republican government system, there must be three administrative bodies, 1-Parliament,
2-Administrative body, 3-Judiciary body. In the absence of any of these three bodies, the
government cannot run systematically, but now it is felt that one body more is necessary to be
with them, that is media. This body is considered more important these days, it plays an
important role as an informative bridge between governing bodies and general public, in
absence of media general public cannot know about what kind of bills and acts are passed in
the parliament, and what are their positive and negative effects in the society. If media person
close their eyes the government officials will do what they want, so media plays a very
important and impartial role between government activities and general public, so much so
that it is said that the freedom of media is the guarantee of success of republic government.

Media plays a crucial role in shaping a healthy democracy. It is the backbone of a
democracy. Media makes us aware of various social, political and economical activities
happening around the world. It is like a mirror, which shows us or strives to show us the bare
truth and harsh realities of life. The media also exposes loopholes in the democratic system,
which ultimately helps government in filling the vacuums of loopholes and making a system
more accountable, responsive and citizen-friendly. A democracy without media is like a
vehicle without wheels.
Unlike a Communist or Feudal system, where, media is mostly controlled by the state,
and thus, the general public gets to hear only what their government wants them to hear; in a
democracy, the media, apart from informing the public of the latest happenings in the
country, has the added responsibility of being independent of the state in obtaining the correct
data, and also being impartial while presenting it in public.
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However, the world does not work in such an idealistic manner. For example, while
the media has to sound impartial while delivering the news, it has the added responsibility of
"moral conditioning" of the public. To this end, media has significantly lived up to its
expectations. We should note that the term "media" doesn't end at the daily newsreaders and
journalists, it expands to prime time television, movies, magazines, etc. The media has
significantly helped the cause of woman empowerment, caste and religion differences,
communal harmony, freedom of expression, right to information, etc.
The moral conditioning has become opinion building, which is largely influenced
by the individual journalist's interpretation of the scenario, and what should have been a
private and personal decision for the common man is now razed by opinion polls and heavily
biased talk shows, all run on the egos of a few distinguished journalists and money, huge
money flowing in from corporates, political parties and their lobbyists.
The Indian media has been truly a pillar of the Indian State. Eternal vigilance is the
price of freedom. The Indian media has indeed been vigilant and persuasive in protection of
freedoms and awakening thought. If we have preserved our democracy in the midst of
periodic lapses into dictatorships in our neighbourhood, the credit should go to our founding
fathers who created robust institutions and to the media who kept a vigilant watch at
preserving these institutions. However, the nature of media has also been changing over the
last two decades. The emergence of the electronic media in India over two decades ago since
the first war to be witnessed live by millions in the cosy comforts of their homes, brought the
power of imagery to the forefront. The growing dominance of imagery over substance in an
era where time is of the essence and competition is intense, has brought about the need for
stoking fires, beaming controversies and heated debates in the media. The divergence of
approach between the print and the electronic media has been amply demonstrated in the
events of the last year.
4

Media savvy population of the country is a new breed of voters who not only want to
elect representatives every five years, but also want to participate in the daily workings of our
country by staying abreast with the major issues and demanding transparency and action by
the executive and legislatures on those issues. Anna Hazare has all but been a catalyst of this
movement. The movement was already on for several years now. Anna Hazare has only

4
Shri Kapil Sibal, Minister of HRD and C & IT, on the topic: "Role of Indian Media in the New Age"
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highlighted the most important issue for the people of our country, and brought that latent
public discontent to medias attention, and through the media, to the attention of the political
class. The ruling political party is bearing the brunt of this discontent but this is a message for
all representatives that they need to be responsive to peoples concerns even in a non election
year. That the political class has resisted this movement as best as it could, shows the
culpability of the political class in corruption.
















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CHAPTER 3
IMPORTANCE OF CASE DECISIONS AND
ROLE OF MEDIA
MEDIA INFLUENCES IN CAPITAL CASES
The media wields tremendous influence in our society. Newspapers, radio,
television, and new media not only spread information, but also help to determine what topics
and stories people talk about. Many crimes receive extensive media coverage, which provides
a challenge for prosecutors, as well as defendants and defense attorneys, when it comes to
trying a case. Juries are supposed to be unbiased when deciding a case, despite the news
coverage they may have come across before trial. Police officers involved in criminal cases
may become entangled with the media in the process of providing information about a case.
Media coverage of a trial, especially television cameras in the courtroom, can affect the
behavior of witnesses and jurors.
PRE-TRIAL PUBLICITY
Under the Sixth Amendment to the Constitution, every defendant is entitled to a trial
by an impartial jury of his or her peers. Due to extensive media coverage, jury selection in a
high profile case can be extremely difficult. Jurors will likely have developed some biases
about the case based on the media coverage to which they have been exposed. The
impartiality of potential jurors is assessed during voir dire, the process of selecting jurors
from the pool of potential jurors. Attorneys for the defense and the prosecution question
members of the jury pool about numerous issues, including their exposure to pre-trial
publicity and their ability to make impartial decisions and follow the judge's instructions.
Social science research has found that exposure to the various media had a prejudicial
impact on people, as they were unaware of their biases. (Ogloff & Vidmar, 1994) Even
potential jurors who say they have not been biased by exposure to publicity may in fact have
been prejudiced. Jurors who say they cannot set aside their bias in a case, or cannot follow a
judge's instructions, are eliminated "for cause." Other jurors can be eliminated by lawyers
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using "peremptory strikes" (or "peremptory challenges"), which allow each side to eliminate
a certain number of jurors without cause.
Capital cases, in particular, often attract extensive, emotionally charged coverage.
These cases also present greater difficulties than other cases because death-qualified jurors
may be more susceptible to pre-trial publicity than other jurors. According to a 2007 study,
participants who passed a simulated death-qualification process were more likely to
recognize the facts of a highly-publicized murder case, and were significantly more likely
than "excludable" jurors to think the defendant was guilty and that he should be sentenced to
death. Researchers found two likely causes for these findings. First, death-qualified
participants were more likely to watch daily news programs, making them more aware of the
facts in the case. Second, death-qualified jurors in other studies have shown pro-prosecution
beliefs, making them more inclined to find the defendant guilty. (Butler, 2007)
Research indicates that judges are also susceptible to media coverage when making
their rulings. A Stanford University study found press coverage magnifies the influence of
voters penal preferences on criminal sentencing decisions of elected judges for severe
violent crimes. (Lim, Snyder & Stromberg, 2010) When a case receives a large amount of
media coverage, elected judges tend to sentence more punitively than if the case is less
publicized.
Little research has been done to date on the possible effects of social media on court
cases. New media, such as blogs, facebook, or twitter, allow the public to share facts and
opinions about court cases. These websites, as well as search engines like Google, present
new challenges for defendants, attorneys, and judges. Information is more widely available
than ever before, and potential jurors who may not come across a case in traditional media
may be influenced by the reactions of others on social media sites.
JUDICIAL REMEDIES
The problems caused by pre-trial publicity can be addressed by the court in a
number of ways. Despite the biasing effect of pre-trial publicity, the Supreme Court has ruled
that courts cannot stop the press from publicizing truthful information about criminal trials, as
doing so would violate the First Amendment right to freedom of the press. Since pre-trial
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publicity cannot be prevented, courts must find ways to minimize its impact on the fairness of
the trial.
The court may postpone trial proceedings in order to allow time for the initial
publicity to dissipate. The judge can also modify jury instructions to specifically instruct
jurors to ignore pre-trial publicity. However, these approaches may not be effective in
eliminating juror bias.
If defense attorneys believe their client will be harmed by pre-trial publicity, they can
request a change of venue, which moves the trial away from the jurisdiction where the crime
occurred. Although the U.S. Constitution guarantees a trial in the district where the crime
took place, the defendant can waive this right by filing a change of venue motion. While this
strategy can counteract exposure to local media coverage, it does little to reduce the impact of
national coverage. Moreover, change of venue motions are rarely granted, partly due to the
high cost of transporting and housing attorneys, witnesses, and court personnel. Additionally,
judges are hesitant to admit that a defendant can receive a fair trial only in another
jurisdiction, and they may not want to "frustrate the local community's legitimate interests in
resolving the case." (Minow & Cate, 1991) Statistics from the 1990s show that California
courts granted only about 10 change of venue motions per year. (Shahani, 2005) The
Supreme Court has held that, in certain cases, "only a change of venue [is] constitutionally
sufficient to assure the kind of impartial jury that is guaranteed by the Fourteenth
Amendment." (Groppi v. Wisconsin)
PROBLEMS IN PARTICULARLY HIGH-PROFILE CASES
A handful of cases receive such high attention that those involved in the case stand
to profit from books, movies, or television appearances. Such opportunities may create
conflicts of interest and distort the ability of key players to perform their roles. As discussed
below, the possibility of fame and profit affected police officers and attorneys involved in the
Aileen Wuornos case. Similarly, Montgomery County, Maryland Police Chief Charles Moose
came under fire for announcing, after the two "DC snipers" (John Allen Muhammad and Lee
Malvo) were caught, that he was going to write a book on the crimes and sell the rights to his
life story to a major motion picture company. As this presented a conflict of interest, Chief
Moose ended up resigning to pursue his book and movie deals.
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CAMERAS IN THE COURTROOM
All trials in the United States are open to the public, but until recently, this meant
only those people who could attend in person. Television broadcasts and internet streaming
have greatly expanded the number of people who are able to watch a trial in progress, raising
questions about how such widespread public scrutiny might alter the court proceedings.
Cameras and media attention may cause a witness to testify differently because they fear
intimidation resulting from their exposure. For example, if a person witnessed a crime by a
gang member, the gang could retaliate against the witness for testifying if the witness'
identity were widely exposed to the public during trial. Jurors may be swayed knowing the
world will be scrutinizing them and their decision, whatever it may be. For example, after a
highly-publicized trial, aired entirely on television, a Florida jury acquitted Casey Anthony of
the murder of her two-year-old daughter. The jury was then widely criticized in the media
and online, leading the judge in the case to "seal" the names of jurors to protect their safety.
Such potential impacts raise serious concerns about whether a defendant will receive a fair
trial.
The Supreme Court of the United States has been divided on the issue of allowing cameras
into their own courtroom. Justice David Souter strongly opposed the idea, saying that
cameras would enter the courtroom over my dead body. However, the public is
overwhelmingly in favor of having cameras broadcast Supreme Court proceedings on a
network such as CSPAN, which already airs coverage of legislative deliberations. The
Justices who have sat on the Supreme Court for a long time, such as Justices Antonin Scalia,
Clarence Thomas, and Anthony Kennedy, oppose cameras because they fear cameras would
reshape the institution of the Court by turning the proceedings into entertainment. Newer
Justices like Justices Sonia Sotomayor, Elena Kagan, and Samuel Alito seem more open to
broadcasting the proceedings, believing it would provide more transparency and allow people
to see a lesser-known governmental function operating at a sophisticated level.
A very interesting phenomenon has emerged lately. As one scans the daily
newspapers, one comes across reports of many crimes which have been committed in the
city. Naturally, one looks into the article to gain information about the person(s) responsible
for this act.
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But is that information authentic? As is quite apparent from the Jessica Lal,
Priyadarshini Mattoo, Nitin Katara and Scarlett Keeling cases, the media has started playing a
very active role in investigation of the crime and the trial that follows it. It is desirable, some
might say, to have the media trailing the investigation of the police as it may lead to greater
transparency in the same. However, one must understand the power of the media and the
enormous effect the coverage has on the impressions and opinions of the people.
In some newspapers, it is even seen that the word alleged is conveniently dropped
and the suspect is freely referred to as the murderer, the accused or the criminal. The media
does not understand that a suspect is different from a person awaiting trial, and even more
different from a person who has been convicted in a trial. Through its sensational articles and
melodramatic language, it effectively distorts the truth and leads the people to believe what
has not yet been proven. Another aspect of the situation is the immense pressure that the
media puts on the executive to work. Indeed, this pressure is justified, since it jolts the
executive into action. But, such a pressure can also force the executive to mobilize itself into
any action, whether wrong or right, as long as they are able to show to the people and the
media that they are taking some action.
Perhaps, the lapses in the investigation of the police can be attributed to this pressure.
The role of the media is to report what is the truth; it is not to influence the authorities
responsible for discovering the truth and the authorities responsible for delivering justice. It is
not up to the media to decide what justice is, what should have been done, what must be done
or what according to them is the truth. The medias role is to inform the people what action
has been taken, by whom, and in what context. In a democracy like India, the media serves as
the factual ground on which one bases ones views and opinions to engage in a healthy
debate. If the facts themselves are tainted and distorted, then the entire structure becomes
precarious.
The jury must have the ability to determine a verdict based on evidence presented to
the court, in accordance with court rules and procedure. Sensational and biased media reports
need to be left completely out of the picture. Maintaining this aspect of our justice system is
essential for fair trials to take place.
It is not the role of the media to influence the outcome of court proceedings. It is simply their
role to report the outcome.
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So, here's what we should keep in mind when chief executives of media companies accuse
the legal and judicial fraternity of undue secrecy:
1. In principle there is no harm in televising opening addresses and sentencing. However, this
should always be subject to the court's discretion, case by case.
2. Real-time access to transcripts is an unreasonable and onerous expectation. The court
system cannot be expected to live-stream every word spoken in "real time". This is not only a
logistical nightmare, but would jeopardise confidentiality and the rules of evidence.
3. Suppression orders are used by judges to protect the rights of those involved in court
proceedings. The judge is the best person to know when these are required.
4. Television is a very intrusive medium, especially in a reality TV format. Live streaming of
evidence and court proceedings can dangerously affect the quality of evidence given to the
court.
Judges are not trying to gag and blindfold the media. The media is not their primary
concern. Protecting society and upholding people's rights is the focus.

THE ROLE OF MEDIA IN ENSURING THE JUSTICE REACHES THE
PEOPLE
Most criminal cases in India get decided after the victim and his relatives are dead and
gone. Even murder cases are often delayed beyond the life time of the immediate kith and kin
of the victim who would have been very keen in the beginning to see that the offender gets
punished. By the time justice is rendered, everybody would be aged enough to have shed the
initial enthusiasm and resign to fate. It is a great way of promoting philosophy that nothing is
in our hands and God sees the truth but waits, sometimes into your next birth.
If this is the fate of criminal cases, one can imagine the fate of Civil cases which
many times go beyond one generation into the next generation or two. If the Grandfather has
filed a property case, it gets settled in favour of the grandchildren. In the meantime the
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Grandfather and the Father would perhaps be reborn somewhere else and fulfilling their
karmic destiny.
All persons who are interested in Judiciary being respected must think on we can
improve the situation. The key to the answer lies in the Judiciary itself. It is the Judges who
grant adjournments without valid reasons who need to hold themselves responsible for the
delays in the Court. Advocates are perhaps doing their duty the clients though they are often
mistaken to be serving the Courts for rendering justice. It is like the Indian Cricket players
who owe allegiance to their Franchise owners more than the Country and their attitude is
understandable.
There is however no compulsion for a judge to grant needless adjournments knowing
fully well that every such adjournment is a pain to the other party. Some Judges may try to
compensate the victim through exemplary damages being given in their favour in the end.
But this is like letting an injury happen and then apply medicine rather than prevent the injury
itself.
Many times the procedures of Civil Procedure Code are blamed for the delay.
However, more than the procedure itself, it is the way it is implemented that causes a delay.
For example, CPC clearly says that no adjournments should be granted without valid reasons
and if adjournments are caused by reasons such as nonappearance of a party, the cost of the
adjournment should be borne by them. It would be interesting to see statistics if this provision
has ever been invoked.
Sometimes Courts admit petitions without examining them in detail and grant interim
stay on proceedings elsewhere. In such cases one judicial authority actually causes delay in
the delivery of justice by a lower judicial authority without even applying its mind. Even
when the Court to which an interim stay application is made is the appeal court which would
naturally hear the same case on appeal after the decision of the lower court, the Court
proceeds to admit a petition for stay and issue notices to the other party delaying the process
by 2 to 3 weeks. If the other party submits any reply, time is again given to the petitioner to
reply in the next hearing which may be after a few more weeks. Then there may be arguments
and counter arguments, with adjournments in between and the process gets delayed for nearly
a year before the Court may come to the decision that there was no case for admitting the
petition in the first place.
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It is in this context that the role of Media in highlighting certain cases becomes useful
to the society. Though we may call it as Trial by Media, it often quicker decisions. The
need for such media intervention is therefore necessary to ensure that the judicial system is
not rendered more and more inefficient due to lack of timely delivery of justice.
The need for such intervention is there not only in cases such as the 2G scam but also
in other cases where the victim does not have the resources to fight a long legal battle against
a powerful business entity. Such instances arise frequently in Cyber Crime cases involving
Banks where customers who have lost their funds through frauds in the Bank arising out of
the Banks negligence file cases against the Bank. In the current context where all Banks use
electronic systems for account keeping, all such frauds come under the purview of
Information Technology Act (ITA 2000) (Current version often referred to as ITA 2008),
which was designed to provide quick justice through a system of Adjudication and Cyber
Appellate Tribunal (CAT).
If the hands of such honest judicial officers are to be strengthened, there is a need for
media to become more conscious of the cases that are before the Cyber Judiciary.
Unfortunately, despite huge national interests involved, Cyber Crime cases of civil nature
does not attract media attention. Cases where there is pornography attracts media but cases
where a customer of a Bank has lost money due to Phishing does not appear to be as
sensational as the pornography case. Media is therefore losing an opportunity to observing,
reporting and catalyzing developments in the Adjudication Offices across the country and the
CAT. Many Journals send their reporters routinely to Court halls to find out what is going on.
But most of them have no idea of what is going on in Adjudication offices or the Cyber
Appellate Tribunal. If Media was more pro-active and had been reporting the developments
in the Adjudication offices and the Cyber Appellate Tribunal, by this time lot of awareness
would have been created in the public for these institutions.




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CHAPTER 4
TRIAL BY MEDIA
The subject of Trial by Media is discussed by civil rights activists, constitutional
lawyers, judges and academics almost everyday 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 proportions. Innocents may be condemned
for no reason or those who are guilty may not get a fair trial or may get a higher sentence
after trial than they deserved. There appears to be very little restraint in the media in so far as
the administration of criminal justice is concerned.
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.

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. 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.
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. 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 Nadu
5



5
AIR 1995 SC 264.
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The observations of Mr. Andrew Belsey in his article Journalism and Ethics, can they
co-exist
6
quoted by the Delhi High Court in Mother Dairy Foods & Processing Ltd v. Zee
Telefilms
7
aptly describe the state of affairs of todays media. He says that journalism and
ethics stand apart. While journalists are distinctive facilitators for the democratic process to
function without hindrance the media has to follow the virtues of accuracy, honesty, truth,
objectivity, fairness, balanced reporting, respect or autonomy of ordinary people. These are
all part of the democratic process. But practical considerations, namely, pursuit of successful
career, promotion to be obtained, compulsion of meeting deadlines and satisfying Media
Managers by meeting growth targets, are recognized as factors for the temptation to print
trivial stories salaciously presented. In the temptation to sell stories, what is presented is
what public is interested in rather than what is in public interest.

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. Then, whatever gossip the media gathers about the line of investigation
by the official agencies, it gives such publicity in respect of the information that the person
who has indeed committed the crime, can move away to safer places. The pressure on the
police from media day by day builds up and reaches a stage where police feel compelled to
say something or the other in public to protect their reputation. 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 suspects future is finished. When he retracts
from the confession before the Magistrate, the public imagine that the person is a liar. The
whole procedure of due process is thus getting distorted and confused.

In Anukul Chandra Pradhan vs. Union of India,
8
the Supreme Court observed that
No occasion should arise for an impression that the publicity attached to these matters (the
hawala transactions) has tended to dilute the emphasis on the essentials of a fair trial and the

6
published in Media Ethics : A Philosophical Approach, edited by Mathew Kieran
7
IA 8185/2003 in Suit No. 1543/2003 dated 24.1.2005
8
1996(6) SCC 354
18 | P a g e

basic principles of jurisprudence including the presumption of innocence of the accused
unless found guilty at the end of the trial

Subconscious effect on the judges

Another worrying factor and one of the major allegations upon media trial is
prejudicing the judges presiding over a particular case. The American view appears to be that
Jurors and Judges are not liable to be influenced by media publication, while the Anglo-
Saxon view is that Judges, at any rate may still be subconsciously (though not consciously)
influenced and members of the public may think that Judges are influenced by such
publications under such a situation. Therefore, Lord Denning stated in the Court of Appeal
that Judges will not be influenced by the media publicity
9
, a view which was not accepted in
the House of Lords. Cardozo, one of the greatest Judges of the American Supreme Court,
referring to the forces which enter into the conclusions of Judges observed that the great
tides and currents which engulf the rest of men, do not turn aside in their curse and pass the
Judges by.
10
Honble Justice D. M. Dharmadhikari, Chairman, M. P. Human Rights
Commission also asserted that there is always a chance that judges 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 is deemed either as corrupt or biased.
Justification by Media

We have a rich tradition of fiercely independent journalism. In fact, all the big scams
were busted by the press. The law enforcers merely followed them up. The poorly paid

9
Attorney General v. BBC : 1981 AC 303 (CA), p. 315.
10
Nature of the Judicial Process , Lecture IV, Adherence to Precedent. The Subconscious Element in the
Judicial Process, 1921, Yale University Press. The full text of the passage in the above essay of Cardozo reads
thus:
Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence
and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their
power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the
prejudices, the complex instincts and emotion and habits and convictions, which make the man, whether he be
litigant or Judge There has been a certain lack of candor in much of the discussions of the theme or
rather perhaps in the refusal to discuss it, as if Judges must lose respect and confidence by the reminder that
they are subject to human limitations ..
Cardozo then stated in a very famous quotation, None the less, if there is anything of reality in my analysis of
the Judicial Process, they do not stand aloof on these chill and distant heights; The great tides and currents
which engulf the rest of men, do not turn aside in their course, and pass the Judges by.
19 | P a g e

journalist must be credited for extracting those information which looked inaccessible for the
top vigilance teams of the country. That is how HDW(Howaldswerske) marine case and
Bofors hit the headlines. That is how we found out that Narasimha Rao had bribed the
Jharkhand Mukti Morcha MPs and Satish Sharma and Buta Singh had brokered the deal. The
media did us proud at every juncture of our political juncture.
There is increasing and intense public focus on Courts and the cases filed therein.
Whether reported in daily newspaper or in electronic media, Indians avidly devour this
information, since they are curious about what happens in Court. Now that the Courts have
come under the medias microscope, they are likely to remain there forever. As with most
changes both positive and negative consequences have flowed from this. A Positive by-
product of changes spurred by the media and addressed by the Courts is that more Indians are
aware of their constitutional rights than ever before. The media strongly resents this sub
judice rule and complains that Courts during the course of a hearing tend to interpret the sub
judice rule quite strictly to prohibit any discussion of the issues before the Court even if they
are engaging public attention. In their opinion such a restriction could be applied more
legitimately to situations where a jury of lay people is involved. After the abolition of the jury
system when decisions are made by professional judges who are trained not to be influenced
by happenings outside the Court there is less of a justification for a strict application of the
rule. There is, therefore, an urgent need to liberalize the sub judice rule, invoking it only in
cases of an obvious intent to influence the trial and not to any act that might have the remote
possibility of influencing it.

Law Commissions 200
th
Report

The most reckoning research on the positive and negative aspects of media trial has
been elaborated in 200th report of the Law Commission entitled Trial by Media: Free Speech
vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)
that has made recommendations to address the damaging effect of sensationalized news
reports on the administration of justice. While the report has yet to be made public, news
reports indicate that the Commission has recommended prohibiting publication of anything
that is prejudicial towards the accused a restriction that shall operate from the time of
arrest. It also reportedly recommends that the High Court be empowered to direct
postponement of
publication or telecast in criminal cases. The report noted that at present, under Section 3 (2)
20 | P a g e

of the Contempt of Court Act, such publications would be contempt only if a charge sheet
had been filed in a criminal case. The Commission has suggested that the starting point of a
criminal case should be from the time of arrest of an accused and not from the time of filing
of the charge sheet. In the perception of the Commission such an amendment would prevent
the media from prejudging or prejudicing the case. 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 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.









21 | P a g e

CHAPTER 5
MISUSE OF POWER BY MEDIA IN RESPECT
OF PUBLICATION OF CASE
Today trial has shifted from courtroom to living room. And the result of such a shift is
that rights of people stand to be affected in a manner that has not been seen ever before.
Media today is commercialised and globalised. Their primary aim is to increase their profit /
TRP ratings. One cannot imagine social responsibility on the contemporary commercialised
media. Their primary aim is profit. However, as everything comes for a cost in todays
modern world, the profit making too has some cost. And the cost is human rights of the
accused.

The role played by media has led to the victimisation of innocent people and violation
of their fundamental human rights. The accused is held guilty even before the beginning of
the trail. For instance, the recent controversies arisen after the Jamia Encounter
11
has raised
many questions regarding the role of the media in such cases. Such irresponsible way of
functioning is a flagrant violation of the ethical principles that form the bedrock of a civil
society. This is reflected in the Arushi Murder Case where the accused has been socially
stigmatised even the case is under consideration before the trial court. It exemplifies the
intrusion by the media into the functioning of agencies of Criminal Justice System. Such
intrusion often robes one of his most basic human rights. Human dignity which forms the
heart and soul of human rights notion stands infringed and frustrated.
12
There are scores of
cases that hogged media attention in not so distant past and led to, in some of the cases,
unwanted, undesired and underserved attention of the public at large. A media trial ensued
Afzals arrest. A week after the attack on Indian Parliament, in a press conference called by
the police, Afzal incriminated himself in front of the media which media played negative
role in influencing the conscience of general public before Afzal was even tried. Similarly,

11
This was one of the most highlighted cases in recent past and generated invigorated debate. It was highly.
It was fervently debated in the media- both print and electronic.
12
It is noticeable that human dignity occupies a pristine place in the Universal Declaration of Human
Rights, 1948. It talks about a human family where all the members thereof have inherent dignity along
with equal and inalienable rights. These two factors form the foundation of freedom, justice and peace in
the world.
22 | P a g e

S.A.R. Geelani, one of Afzals co-defendants in the Parliament Attack Case, was initially
sentenced to death for his alleged involvement notwithstanding the stunning paucity of
evidence. He was presented before the public as a dangerous terrorist. The Delhi High Court
while overturning Geelanis conviction described the prosecutions case as at best, absurd
and tragic.
Further, there are many questions that remain to be answered. First of all, are media/
journalists competent to conduct a trial in the way they do? This remains increasingly open to
question. Most of the journalists are not properly trained or acquainted with law. One need
not be a law graduate to become a journalist. For instance, the media as a conclusive
determination of the accuseds guilt represents confession by the accused, even made to the
police. This shows the ignorance of media about the basic principles of law. Sec. 25 of the
Indian Evidence Act, 1872 categorically prohibits the confession to the police as admissible
in law. Thus, something, which is inadmissible in law, becomes sufficient to taint the accused
with guilt in the eyes of ordinary people. It is difficult to find a single news channel
explaining the rationale behind such inadmissibility or even a mention about the section in
their reports. It is germane here to refer to the concern of the Law commission of India which
said:
The media also creates other problems for witnesses. If the identity of witnesses is
published, there is danger of the witnesses coming under pressure both from the accused or
his associates as well as from the police. At the earliest stage, the witnesses want to retract
and get out of the muddle. Witness protection is then a serious casualty. This leads to the
question about the admissibility of hostile witness evidence and whether the law should be
amended to prevent witnesses changing their statements. Again, if the suspects pictures are
shown in the media, problems can arise during identification parades conducted under the
Code of Criminal Procedure for identifying the accused.
Questions seem to rise also on the fairness of such trials by media. If history is to be
analyzed the media can go horribly wrong at times. One case popularized by the media
between 1980 and 1982 was the murder trial of Lindy Chamberlain in Australia who was
convicted of killing her baby, but later released in 1986 on new evidence showing that a
dingo had in fact committed the act as was originally claimed by Chamberlain. Similar
instances are not far to be traced in India also. In Delhi, in the infamous Khurana Case, a
lady school teacher was vilified and made a villain by the media. There was widespread
outrage against the teacher. Her dignity and life was brutally assaulted. Devastated, she faced
23 | P a g e

her ordeal, a creation of medias imagination, and suffered what was a blatant violation of her
basic human rights. She was later found to be innocent. At times, the role played by the
media reminds one of the words written by Samuel Warren and Louis D. Brandeis in their
famous Right to Privacy article (1890):
13


The press is overstepping in every direction the obvious bounds of propriety and of
decency. Gossip is no longer the resource of the idle and of the vicious, but has become a
trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the
details of sexual relations are spread broadcast in the columns of the daily papers. To occupy
the indolent, column upon column is filled with idle gossip, which can only be procured by
intrusion upon the domestic circle.
The growing irresponsibility of the media is a matter of grave concern both for the
lawmen and the laymen, as both are getting affected. It misleads the public and unfairly acts
towards the accused. The question thus remains: How far is it just? Does it not lead to
miscarriage of JUSTICE? Being a part of the civil society media has a constructive role to
play to see that their irresponsible way of functioning does not result in the violation of the
rights of the people, which are succinctly referred to as Human Rights.

Judge Cobb observes:
Liberty includes the right to live as one will, so long as that will does not interfere
with the rights of another or of the public. One may desire to live a life of seclusion; another
may desire to live a life of publicity; still another may desire to live a life of privacy as to
certain matters and publicity as to others. Each is entitled to a liberty or choice as to his
manner of life, and neither an individual nor the public has a right to arbitrarily take away
from him his liberty.
Can a person charged with a crime really get a fair trial while being tried by the
media? Should the media even be discussing this persons trial before that person is sent to
trial? Should the media even be talking about any person that is going to stand trial? Lastly,
one of the much debated issues has been the influence of the media on the decision making
process of the judges. Sensationalised journalism has also had an impact on the judiciary. For
example, in upholding the imposition of the death penalty on Mohammed Afzal for the
December 2001 attack on the Indian Parliament, Justice P. Venkatarama Reddi stated, (t)he

13
Samuel Warren and Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193,196 (1890).
24 | P a g e

incident, which resulted in heavy casualties, had shaken the entire nation and the collective
conscience of the society will only be satisfied if the capital punishment is awarded to the
offender.
14
In Priyadarshini Mattoo case, Mattoo was raped and murdered by Santosh
Kumar Singh, the son of a Police Inspector- General. The trial court acquitted the accused.
Delivering the judgment in the trial court proceedings in 1999, the Additional Sessions Judge,
J.P. Thareja said of Santosh, that though he knew that "he is the man who committed the
crime," he was forced to acquit him, giving him the benefit of doubt.
15
These observations are
reminiscent of Jerome Franks formulation of realism. Stir caused by media does not leave
the judges untouched. Undoubtedly, judges are human beings and the pressure created by the
media too influences them. As Justice Cardozo has famously said: The tides and currents
that engulf the rest of men cannot turn aside and pass the judges by emphasising on the
fact that judges too are the product of the society and are not outside it. Thus, their influence
is all too human. The Supreme Court has held that a trial by press, electronic media or by way
of a public agitation is the very anti-thesis of rule of law and can lead to miscarriage of
justice. A Judge is to guard himself against such pressure.
16


However, this fact needs to be balanced with the fact that people also have the Right
to Information. And media plays a vital role in the dissemination of the information. What
need to be seen is that the information must not be misinformation. As Prof. Upendra Baxi
once aptly remarked that I have a basic human right that my mind should not be treated as a
dustbin where gossips or misinformation of people can be thrown. Thus, media needs to be
properly trained in the legal noetics and legal knowledge. This point has also been
recommended in the 200th report of the Law Commission of India, which observed that:
17

Journalists need to be trained in certain aspects of law relating to freedom of
speech in Art. 9(1)(a) and the restrictions which are permissible under Art. 19(2) of the
Constitution, human rights, law of defamation and contempt. We have also suggested that
these subjects be included in the syllabus for journalism and special diploma or degree
courses on journalism and law be started.


14
See: http://www.hrdc.net/sahrdc/
15
http://www.ourpriyadarshini.org/ on 12/12/06 ( quoted from Trial By Media-The Jessica Lal Case ,
available at: http://ssrn.com/abstract=1003644).
16
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.
17
Law Commission of India, 200th Report on Trial by Media, Free Speech and Fair Trial under
Cr.P.C,1973(August 2006) at p.8.
25 | P a g e

The commission further observed that:
The subject of Trial by Media is discussed by civil rights activists,
constitutional lawyers, judges and academics almost everyday 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 proportions. Innocents
may be condemned for no reason or those who are guilty may not get a fair trial or may get a
higher sentence after trial than they deserved. There appears to be very little restraint in the
media in so far as the administration of criminal justice is concerned.


Media criticism and judicial impartiality

I take the question, Do the media influence judges?, to be directed to whether or not
consciously or subliminally, the decisions of judges are nonetheless influenced by the views
of media commentators and in particular may be motivated by the judges concern that his or
her decisions may be either praised or attacked in the media, once delivered. As a general
proposition, I do not believe that they are. Judges, who are creatures of flesh and blood, are
no doubt delighted if their decisions are the subject of approval, publicly expressed. Equally
they may feel frustrated, even wounded, if their decisions are criticized (particularly when
criticism is based on incomplete knowledge, or a misunderstanding, of the facts and issues in
the case). But, historically, judges backs have been broad and they remain so.


Any judge who started life in the law, as I did, as a barrister in the early 1960s, was
appointed in the late 1980s, and has only recently retired, will have seen the stereotype of the
High Court judge transformed in certain organs of the press from that of a portsoaked
reactionary, still secretly resentful of the abolition of the birch and hostile to liberal
influences of any kind, to that of an unashamedly progressive member of the chattering
classes, spiritually if not actually resident in Islington or Hampstead, out of touch with
ordinary people, and diligently engaged in frustrating the intentions of Parliament with
politically correct notions of Human Rights.
Judges are well aware that criticism from unsuccessful parties, interest groups, or
campaigning newspapers may follow any decision of theirs in a matter of high public interest
and they accept it as going with the territory, however much they may fume in private. I do
26 | P a g e

not know whether or not Mr Justice Eady fumes in private over the press he receives for
conscientiously applying principles introduced into the law by Parliament under the Human
Rights Act, however I would have every sympathy for him should it be the case.

But, moving from the general to the particular, the topic of media influence may best
be approached by drawing two distinctions: first, between the law as applied in the criminal
courts and the decisions of judges in the civil courts; second, between the substantive law as
applied in individual cases and, on a wider front, the procedures followed under Rules of
Court and Practice Directions, including, in particular, the hearing of cases in open court.

Presence of media in courts can be dangerous in some cases. Instances where court
orders are used to deny the public, and the media, access to information are a minority of
cases. It is crucial to keep in mind that such court orders are made with judicial discretion.
The judge, not the media, is in the best position to determine when suppression and take-
down orders are required. These types of court orders are used to protect the rights of
witnesses, victims and the accused. It must be stressed that they are used only in exceptional
cases.
Suppression orders and take-down orders are used to protect society and people's
legal rights. The court has a responsibility to ensure the safety of the community and protect
legal rights. The media has no such obligation. Allowing increased and unrestricted digital
media presence into the courtroom may threaten the safety of people involved in court cases.
It is the judge's role to make orders that protect those who appear in their courtroom. It is
important to note that the profession and the judiciary embrace the use of technology. In
recent years online access to judgments and court resources has brought dramatic
advancements.






27 | P a g e

CHAPTER 6
CONCLUSION AND SUGGESTION

CONCLUSION

The media cherish their independence and must recognize that independence is as
essential for the judiciary to deliver justice as it is for the media. Any running commentary on
cases pending before a court is likely to prejudice the outcome of the trial. The victims in
such an event sometimes could be the very same persons the media are trying to defend or
prosecute. The editors are familiar with pressures from the public relations and advertising
industry to smuggle viewpoints into the media. They must see that the judiciary is free from
such pressures.
Our country is a nation of vast diversity and complexity. We were fortunate that our
founding fathers bequeathed us an edifice that we could be proud of. A free media is a pillar
of this edifice. It holds up the State and seeks accountability from it. The events of the recent
past have led us to introspect on the basic elements of our State. Let the media not stay away
from this introspection.

SUGGESTION

Any institution, be it legislature, executive, judiciary or bureaucracy, is liable to be
abused if it exceeds its legitimate jurisdiction and functions. But sometimes these ultra vires
activities are blessing in disguise as is the case of judicial activism. Media trial is also an
appreciable effort along with the revolutionary sting operations as it keeps a close watch over
the investigations and activities of police administration and executive. But there must be a
reasonable self-restriction over its arena and due emphasis should be given to the fair trial
and court procedures must be respected with adequate sense of responsibility. Media should
acknowledge the fact that whatever they publish has a great impact over the spectator.
Therefore, it is the moral duty of media to show the truth and that too at the right time. While
the print media has reached at a saturation stage where it is aware of legal guidelines and
28 | P a g e

ethical limits but the electronic media is experimenting and is relying upon trial and error
method for what to show and more importantly what not to. The time will come when
electronic media will also be well regulated by self-censored guidelines and we shall retain a
completely free press, the dream of our first Prime Minister and that too without any danger
involved.





























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BIBLIOGRAPHY

1. S. Ganesh, Lectures on Mass Communication, , Indian Publishers and Distributors,
2. M. D. Goradia , Facets of Media Law, Eastern Book Company,
3. J. R. Mudholkar , Press Law, Eastern Law House,
4. Gupta & Sarkar, Laws Relating to Press and Sedition in India, Orient Publishing Company
5. Dr.Uma sama , Law of electronic media
6. Ram Jethmalani & D S Chopra, Cases and Materials on Media Law, Thomson Reuters
Publishers, First Edition, 2012