CONSTITUTIONAL LAW

PROJECT:
Freedom of speech and expression

vis--vis

Rights of Media & Media Trial

pg. 1
 CONTENTS

S. No. Particulars Page No.

4

1. Acknowledgement

2 Introduction 5-8

What is freedom of speech & expression?

What is Media Trial?

3 Historical aspects of media law& its development in 9-12

India.

Pre-constituional history

After independence.

Recent trends.

4 Comparative study of India & US. 13

5 Freedom of speech and expression v freedom of press. 14-24

Dimensions of freedom of speech & expression.

Dimensions of freedom of press.

6 Media & its emerging facets: 25-30

Paid news concept.

Sting operations.

Trial by media phenomenon.

pg. 2
7 Media Trial v Right to fair trial 31-32

8. Trial by media and its accountability : 33-40

Accountability to subjects

Accountability to individuals

Accountability to public

Accountability to sources

Media and criminal accountability

9 Media Trial & contempt of court: 41 -44

Pre liberalization Era cases

Post liberalization Era cases

10 Conclusion 45-46

11 Bibliography 47

pg. 3
 INTRODUCTION
"Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties". John Milton

The essence of free speech is the ability to think and speak freely and to obtain information from
others through publications and public discourse without fear of retribution, restriction, or repression
by

the government. It is through free speech, people could come together to achieve political influence,
to strengthen their morality, and to help others to become moral and enlightened citizens. Freedom of
speech and expression is the bulwark of democratic government. This freedom of speech and
expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy
of liberties giving succor and protection to all other liberties . It has been truly said that it is the
mother of all liberties.

In Maneka Gandhi v UOI1, justice Bhagwati emphasized on the significance of the freedom of
speech and expression in these words:

Democracy is based essentially on free debate and open discussion, for that is the only corrective
of government action in a democratic set up . If democracy means government of the people, by the
people, 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.

In 1927, in Whitney v California2, justice Louis Brandeis made a classic statement on the freedom
of speech and expression in these words :

Those who won our independence believed that final end of the state was to make men free to develp
their facilities ..they believed liberty to be the secret of happiness and courage to be thesecret of
liberty . They believed that the freedom to think as you will and to speak as you think are means
indispensible to the discovery and spread of political truth; that without would be futile..that public
discussion is a political duty ; and that this should be a fundamental principle of the American
constitution.

1
AIR 1978 SC 597
2
247 U.S 214

pg. 4
The constitution of india enshrines the Freedom of speech and expression in Article 19 (1) (a) which
is as follows;

Protection of certain rights regarding freedom of speech etc-

1-All citizens shall have the right

a) To freedom of speech and expression;

The freedom of speech under Article 19(1) (a) includes the right to express ones views and
opinions at any issue through any medium ,eg by words of mouth , writing , printing , picture,
film, movie etc. It thus includes the freedom of commonwealth and the right to propagate or
publish opinion. But this right is subject to reasonable restrictions being imposed under Art
19(2) which is as follows

2- Nothing in sub clause (a) of clause (1) shall effect the operation of any existing law, or prevent the
state from making any law in so far as such law imposes reasonable restrictions on the excersise of
the right conferred by the said sub-clause 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.

Freedom of expression incorporated in Constitution in Article 19(1) remains an important

facilitator for widespread engagement within a democratic atmosphere. As beautifully remarked by
the first Prime Minister of independent India Pandit Jawaharlal Nehru

I would rather have a completely free press with all the dangers involved in the wrong use of
that freedom than a suppressed or regulated press.

But that great man could not foresee the danger involved in the administration of justice which
is the very essence of the natural justice and the rule of law or rather he would not have expected the
press to get involved into something which is beyond its limit and ethics too. To realize the vision of
Mr. Nehru, the media has been provided with many freedoms and immunities so that this fourth
pillar of democracy stands tall and strong. Media has now reincarnated itself into a public court
(Janta Adalat) and has started interfering into court proceedings. It completely overlooks the vital
gap between an accused and a convict keeping at stake the golden principles of presumption of
innocence until proven guilty and guilt beyond reasonable doubt. Now, what we observe is media
trial where the media itself does a separate investigation, builds a public opinion against the accused
even before the court takes cognizance of the case.

pg. 5
MEDIA TRIAL:

Trial by media is a popular phrase that has become known in 20th and 21th century to describe the
impact of television and newspaper coverage on a persons reputation by creating a widespread
perception of guilt regardless of any verdict in court of law. 3The 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. Earlier, journalism was not under pressure to push up TRP ratings or sales.
So the journalists did their work with serious intent and conviction, with courage and integrity.
They did not pronounce people guilty without making a serious attempt to study the charges,
investigate them, and come to their own independent conclusions, without fear or favor. They did
not blindly print what law enforcers claimed, what the bureaucracy said or what politicians
planted on to them. That is why people trusted them. But now we are seeing a different self-
acquired role of media in form of media trial.

Everyone manipulates the media to serve their own interests or hurt their rivals. The problem does
not lie in medias exposing the lacuna of a bad investigation by cops, or mal-performance of the
duties ordained to the civil servants but the eye-brows start to raise when the media ultra vires its
legitimate jurisdiction and does what it must not do. Be it highlighting the sub-judice issues into
public keeping at stake the sanctity of judicial procedures and right to life with dignity of
accused and suspects.

The media trial has now moved on to media verdict and media punishment which is no doubt an
illegitimate use of freedom and transgressing the prudent demarcation of legal boundaries. It is
necessary to check prejudicial publicity of the subject matter pending before a court. It should be
legally permissible to pass restraint order on the media.

FAMOUS EXAMPLE : IN OCT 2005 , Naresh Pal an employee of Pusa Agriculture was accused by
his niece of raping her and hence she went onto media publicizing the incident .It was shortly after
this incident that Naresh pal committed suicide along with his wife leaving a note behind which said
he was falsely being accused and that he was innocent. He also mentioned that he was impotent and
was ending his life for he could not take the humiliation that has been publicised. This way media
without going through actual facts does many such acts which we have come to call MEDIA TRIAL !

3
Trial By Media-The Jessica Lal Case , available at: http://ssrn.com/abstract=1003644

pg. 6
 PUBLIC INTERESTED IN & PUBLIC INTEREST :

Medias act of severely effecting the judgements and opinion of people does nothing but denies
of justice to innocent . Its more about what public is interested in rather than what is PUBLIC
INTEREST. The more controversial a case becomes more would public want to hear about it
and medial SIMPLIFIES THIS by simply holding its own prior trial which we refer to as media
trial.

Those who support media trial argue that it leads to protection of the rights of the affected
persons, and it helps in the justice delivery system. Those opposed to it hold it responsible for the
infringement of peoples right, and other vices that emerge out of media trial. However, the
emerging debate is, in fact, a debate about rights, rights of the affected people as well as the rights
of media persons.

Freedom of press is not separately guaranteed by constitution but it is a settled law that right to
freedom of speech and expression includes the liberty of press as it pertakes of the same basic
nature and characteristics.

In Indian press commission it was expressed that democracy can thrive not only the vigilant eye
of its legislature but also under the guidance of public opinion and the press is that power bu
which opinion can be articulated. Its the primary function of press to provide comprehensive and
objective information on all aspects of the social, political and economical .

This project AIMS at covering Freedom of speech and expression Vis-a-Viz Media trial which
shall cover the the rising importance of freedom of speech and expression and its contradiction to
Medias interference .further it also looks into different facets of media that have come up and a
peep into media and criminal accountability. At last I shall throw a light into recent trend of
working of media and concluding with personal views on current scenario.

pg. 7
 HISTORICAL ASPECTS OF MEDIA LAW AND ITS DEVELOPMENT IN
INDIA.
The beginnings of the struggle for free speech in india dates back to 18th century India. The
history of the press in india is inseparable from the history of the nationalist movement. The
nationalist movement for a free India was fraught with repression of the freedom of speech and
expression through a series of legislations aimed at stifling the possibility of a consolidated outcry
against colonial subjugation. That the press played an invaluable role in generating political
consciousness is evident from the fact that the British government found it necessary to introduce
repressive enactments from time to time to neuralise the power of the print medium. And emerged
the strongest catalyst of nationalist sentiment.

A.Pre- constitution History :

History of laws directed against the press dates from the days of east India company almost
simultaneously with growth of newspapers 4 which , from their inception ,took up the criticism of
the administration and of the officials responsible for it.

1799
In 1799 the Governor General issued Regulations requiring newspapers ,under pain of penalty
,to print the names of the printer ,publisher ,proprietor and editor of newspaper and to submit all
material published therein for pre censorship by the secretary to the government of India5. This
regulation was abolished during the time of warren hastings . However newspapers were not
allowed to publish several matters .

1823
Pre-censorship having been abolished , the nest governor general, in 1823 , issued an ordinance
introducing licensing of the press, under which all matters printed in a press , except commercial
matters required a previous licence from the Governor General , on the submission of an
application stating the names and other particulars of the press, newspapers , etc . similar
regulations were made Bombay in 1825 and 1827.

1835
The foregoing licensing regulations were replaced , in 1835 by an act known as Metcalfs Act ,
which was made applicable to the whole of the territory of the East india co. and which required
the printer and publisher of every newspaper to declare the location of the premises of its
publication , failing which imprisonment and penalty were provided.

1857
Licensing was re- introduced by Lord Cannings Act of 1857, and it was applied to all kinds of
publication, including books in all languages and other printed papers in any language, European
or Indian.

4
The first Indian newspaper-the Bengal Gazzette was published in 1780 at serampore.
5
This was the first attempt to control the press. The regulations issued, amongst others prohibited publishing of the
newspaper on Sunday and provided as penalty immediate embarkation to Europe .

pg. 8
1860
1860 was one of the landmarks year for it saw the passing of the Indian penal code, which though
not directed specifically towards the press, laid down offences which any writer , editor of
publisher must avoid ,eg , the offences of defamation , obscenity. Later amendments introduced
the offences of sedition; imputations or assertions prejudicial to nations integration; outraging
religious feelings .

Press and Registration of Books Act,1867

The earliest surviving enactment specifically directed against the press was passed in 1867, the
press and regulation of books act. The object was however not to establish government control
over the freedom of the press. It was a regulatory law6 which enabled Government to regulate
printing presses and newspapers by a system of registration and to preserve copies of books and
other matter printed in india.

1878
This year saw the passing of Vernacular Press Act which was specifically directed against
newspapers published in Indian languages, for punishing and suppressing seditious writings. It
empowered the Government , for the first time , to issue search warrants and to enter the premises
of any press, even without orders from any court. Fortunately it was short-lived, and repealed in
1881.

1898
This year saw the passing of two legislative measures relating to the general law of crimes . some
provisions of which particularly concerned the press; one was the amendment of Indian penal
code,1860 ;and the other was the enactment of the code of criminal procedure code of 1882.

- The changes in I.P.C made by the I.P.C Amendment Act ,1898 with which the press was
concerned were (1) substitution of S.124A , to make it more effective;(2) the insertion of
S.153A to punish the promotion of enmity between classes; (3) the substitution of S.505
relating to making or publishing of statement conducting to public mischief.

Though a general code laying down the procedure in criminal matters, the code of
criminal procedure of 1898 came to include matters of interest to the press, particularly
after the insertions of Ss 99A-99G in 1922 which might be said to confer certain
procedural powers upon the Government to search for and forfeit publications which
offended against the provisions of S.124A,153A or 295A of the penal code, mentioned
earlier.

1908
The newspapers Act which was passed in 1908 empowered a magistrate to seize a press on
being satisfied that a newspaper printed therein contained incitement to murder or any other act
of violence or an offence under the explosive substances Act.

6
Taramati v A.D.M ,AIR 1964 Guj 278 (280)

pg. 9
 1910
The foregoing Act was followed by a more comprehensive enactment , the Indian PRESS ACT
,1910 directed against offences involving violence as well as sedition. Also empowered govt to
require deposit of security by the keeper of any press which contained matter inciting sedition ,
murder or any offence under the Explosive substances Act and also provided for forfeiture of
such deposit in specified contingencies.

1922
Both the foregoing Acts of 1908 and 1910 were repealed in 1922 in pursuance of the
recommendations of a committee set up in 1921 to the effect that the contingency in view of
which these acts had been passed ,namely the promotion of revolutionary conspiracies through
the press was over and that the purpose of these Acts would be served by the ordinary law .this
was done by Press Law Repeal and Amendment Act,1922.

Official Secrets Act,1923

A general act which has a greater impact on the press , in particular , is the official secrets act
1923 which is named at maintaining the security of the state against leakage of secret
information . sabotage and the like.

The Indian powers Act ,19317 imposed on the press an obligation to furnish security at the call
of the executive . The act empowered a provincial government to direct a printing press to
deposit a security which as liable to be forfeited if the press published any matter by which any
of the mischievous acts enumerated in S.4 of the Act were bringing hatred against the
government.

While the draft of the constitution was under consideration in the constituent assembly , the
government of india appointed a press laws enquiry committee to review the press laws of india
with a view to examine to examine if they are in accordance with fundamental rights formulated
by the constituent assembly of india. This committee recommended , inter alia, a repeal of the
press powers act , 1931 and the incorporation of some provisions in the generation statues laying
down the law of crimes. While some provisions of this act were repugnant to constitution
,therefore it was repealed and press act 1951 came into being.

On 13th dec 1946 the constituent assembly of India adopted the historic objectives resolution.
The assembly declared in its resolution of firm resolve to draw up a constitution guaranteeing
,inter alia, freedom of speech and expression .Herein , Dr. Ambedkar accepted the demand for
the deletion of sedition as a ground of restriction. But on the demand for a separate right for
the freedom of the press he responded:
The press is merely another way of stating an individual or a citizen . the press has no special
rights which are not to be given or which are not to be exercised by the citizen in his in his
individual capacity .The editor of a press or the manager are all citizens and thereof when they
choose to write in newspapers and in my judgment therefore no special mention is necessary of
the freedom of the press at all

7
Cf.state of bihar v sailabala,1952 SCR 654

pg. 10
B.After independence : Press Act 1951

The preamble of the press act 19518, looked innocuous as it was to provide against the printing
and publication of incitement to crime and other objectionable matter . The act of 1951 which had
been extended upto february , 1956 was allowed to lapse thereafter and it was also formally
repealed by a subsequent repealing act of 1957.

Similarly , various acts like Newspaper Act 1956, criminal amendment act 1961,defence act 1962
, press council act 1965,censorship order 1975,prevention of publication of objectionable matter
act,1975-76, press council repeal act ,1976 and Parliamentary proceedings Repeal Act,1976 were
introduced.

Article 361 inserted in the constitution and with it PRESS COUNCIL ACT ,1978 came into
being.

Press council Act,1978:

By this act press council was re-established with a more representative composition and
improved provisions ,in some respects.
The janata Government did not survive beyond july 1979 and thereafter the press commission
was reconstituted and it submitted its report in 1982 . no legislation of any significance in
pursuance of that report appears to have taken place as yet.

B. Recent trend:

- The Prasar Bharti Act, 1990

- The protection of human rights act,1993
- The cable television network rules ,1994
- The cable television network act, 1995
- The telecommunications inter regulations, 2004
- T.V Telecom Regulatory Authority of India regulations, 2005
- The telecom Regulating Authority of India Act 1997.
- The information and technology Act, 2000.
- The prevention of terrorism act, 2002.

The growth of media power and its varied interplays in the democratic functioning has widended
the legislative field further and many a bills are in their journey to be made acts. The process is
ongoing and the future of press in india and the world over is sure to be free from shackles
,unnecessary and undue restrictions.

8
Rep . of the press commission (D.I.B) ,part 1.paras 1152 , 1469

pg. 11
COMPARATIVE STUDY:
Article 19(1)(a) finds its roots in the first Amendment to the constitution of the united states of
America. The first Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof ;or abridging the freedom of speech or the press; or the right of the people
peaceably to assemble and to petition the government for a redress of grievances.9

Unlike the first amendment to the American constitution, the Indian constitution does not make a
specific or separate provision for the freedom of speech and expression are expressly spelt out in
article 19(2) , this is not so under the first amendment10.

The US supreme court has read into the rights of the press certain implicit restrictions which are ,
in principle, no different from Article 19(2). However generally from a judicial and societal
standpoint the freedom of press in America is far more robust than the corresponding Indian
guarantee.

9
Us constitution , First Amendment ,Article 1
10
In union of india v Naveen jindal, 2004 2 SCC 510

pg. 12
 Freedom of Speech and Expression
V
FREEDOM OF PRESS

FREEDOM OF SPEECH AND SCOPE:

Freedom of speech and of the press is at the foundation of all democratic institutions. Although
the expression freedom of press is not used in article 19(1)(a), there is no doubt that liberty of
press will come within the ambit of this clause 11. Freedom of press is the heart of social and
political intercourse .It is the primary duty of the courts to uphold the freedom of the press and
invalidate all laws and administrative or executive action which interfere with this fundamental
right12. Freedom of speech as observed has four broad purposes to serve
Four broad purposes it serves:
1. It helps an individual to attain self fulfillment
2. It assists in the discovery of truth
3. It strengthens the capacity of an individual in participating in decision making and
4. It provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change .

All the members of the society should be able to form their own beliefs and
communicate them freely to others 13. The banning of any matter from publication in a
newspaper would be a serious encroachment of this valuable and cherished right14.pre
censorship of any publication is not allowed unless it is justified under clause (2).15

Why to protect freedom of speech?

Freedom of speech offers human being to express his feelings to other, but this is not the only
reason; purpose to protect the freedom of speech. There could be more reasons to protect these
essential liberties. There are four important justifications for freedom of speech

1) For the discovery of truth by open discussion - According to it, if restrictions on speech are
tolerated, society prevents the ascertainment and publication of accurate facts and valuable
opinion. That is to say, it assists in the discovery of truth.

2) Free speech as an aspect of self- fulfillment and development freedom of speech is an

integral aspect of each individuals right to self-development and self-fulfillment. Restriction on
what we are allowed to say and write or to hear and read will hamper our personality and its
growth. It helps an individual to attain self-fulfillment.

11
Sakal papers p Ltd v uoi AIR 1962 SC 305
12
Indian express newspapers p Ltd v uoi AIR 1986 SC 515
13
Union of India v Association for democratic rights,2002 5 SCC 294, 315
14
Virendra v state of Punjab, AIR 1957 SC 896
15
Brij Bhushan v state of delhi, AIR 1950 SC 129

pg. 13
3) For expressing belief and political attitudes - freedom of speech provides opportunity to
express ones belief and show political attitudes. It ultimately results in the welfare of the society
and state. Thus, freedom of speech provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social change.

4) For active participation in democracy democracy is most important feature of todays world.
Freedom of speech is there to protect the right of all citizens to understand political issues so that
they can participate in smooth working of democracy. That is to say, freedom of speech
strengthens the capacity of an individual in participating in decision-making.

In Romesh Thapper v state of Madras 16, Justice Patanjali shastri observed that freedom of
speech and of the press lay the foundation of all democratic organizations for without free
political discussion no public opinion so essential for the proper functioning of govt is possible at
all.

In Radha Mohan lal v Rajasthan high court17 , it was held that the liberty of free expression cant
be equated or confused with a license to make unfounded and irresponsible allegations against
the judiciary.

In Bennet Coleman v Union of India18 it was held that it is indispensable for the operation of the
democratic system and for self development and setting up a homogeneous egalitarian society .

Like other freedoms Cl(1)(a) refers to the common law right of freedom of expression and does
not apply to any right created by statute ,eg the right to contest an election , which is to be
exercised subject to the restrictions imposed by statute19.

In Baragur Ramachandrappa v state of Karnataka20 it was held that the freedom of speech and
expression should be made available to all and no person has a right to impinge on the feelings of
others on the premise that his right to freedom of speech remains unrestricted and unfettered. It
cant be ignored that india is a country with vast disparities in language, culture and religion and
unwarranted and malicious criticism in the faith of others can not be accepted.

In order to be justified as a valid restriction upon any of the rights guaranteed by Cl(1), not only
should such restriction be related to any of the permissible grounds enumerated in the relevant
limitation clause21, but it must further be reasonable22

16
AIR 1950 SC 124
17
2003 3 SCC 427, 431 (Para 10)
18
AIR 1973 SC 106 (138)
19
Jammuna Prasad Mukharia v Lachmi Ram AIR 1954 SC 686
20
2007 5 SCC11,18 (Para 9).
21
Kedar Nath Singh v State of Bihar ,AIR 1962 SC 955
22
Virendra V state of Punjab AIR 1957 SC 896.

pg. 14
In Odyssey v Lokvidayan 23 the court held that Freedom of speech and expression is a preferred
right very zealously guarded by supreme court and a person has right to produce films and
exhibit them on Doordarshan which is a part of freedom of expression.

Dimensions of freedom of speech and expression:

The right to Freedom of speech and expression includes the right to educate , to inform and to
entertain and also the right to be educated, informed and entertained .The former is the right of the
telecaster and the latter that of viewers 24. The freedom of broad caster means freedom from state
state or govt control , in particular from the censorship by the govt but that does not mean mere
immunity 25. It includes right to acquire information and to disseminate through any media
whether print or electronic or audio visual.26

In Bharat Bhawan Trust v Bharat Bhawan Artists Association 27 it was held that the
acting done by an artist is not done for the business of another .It is an expression of
creative talent , which is a part of freedom of expression.

Although censorship is permissible for movies , a heavy burden lies on the authorities to
justify that the same has been reasonable as held in LIC v Manubhai Shah 28.

A commercial advertisement is a form of speech . commercial speech is a part of

freedom of speech and expression guaranteed under this article and protects the rights of
an individual to listen , read and receive the said speech as held in Peoples Union for
civil liberties v Union of India 29.

Further , held in C Ravichandran iyer v Justice A.M Bhattacharjee30 criticism of a

judges conduct or of the court even if strongly worded is not contempt , provided it is
fair , temperate and made in good faith and is not directed to the personal character of a
judge or to the impartiality of a judge or court.

Criticism must be healthy , constructive , honest and in dignified and respectful language
and should not be hostile undermining or tending to undermine public confidence in
administration of justice. Accusation against a judge for misbehavior or incapacity and
demand for his prosecution is highly contumacious as laid in D.C Saxena v Honble
Chief Justice of India 31.

23
AIR 1988SC 1642

24
Secretary Ministry if Information & Broadcasting v Cricket Association of Bengal , 1995 2 SCC 161 ( Para 75)
25
Secretary Ministry if Information & Broadcasting v Cricket Association of Bengal , 1995 2 SCC 161 ( Para 75)
26
Secretary Ministry if Information & Broadcasting v Cricket Association of Bengal , 1995 2 SCC 161 ( Para 75)
27
2001 7 SCC 630.
28
1992 3 SCC 637
29
1997 1 SCC 301 ( para 19)
30
1995 5 SCC 457
31
1996 5SCC 216(para 33)

pg. 15
 In Bijoe Emmanueal v State of Kerala 32, court held that compelling pupils to sing the
National Anthem despite their genuine conscientious religious objection are violative of
the right to free speech.

In Union of India v Association of Democratic reforms 33,it was held that a voters
speech or expression in case of election would include casting of votes , that is to say , a
voter speaks out or expresses by casting vote. For this purpose , information about the
candidates to be selected is a must. Voters right to know antecedents including criminal
part of his candidate contesting election for M.P or MLA is much more fundamental and
basic for survival of democracy .The little man ay think over before making his choice of
electing law breakers as law makers.
Another Dimension laid down in Dharam Dutt v Union of India 34 it was held that an
act to take over the Indian council of world affairs is valid and does not violate the right
to free speech and expression of its members .

Right to information :

The right to information is one of the important issues that has been deliberately side-tracked or
ignored by successive government at the centre. The claim for disclosure of the vohra committee
report was denied on grounds of public security 35. The right to information is a facet of the
freedom of speech and expression as contained in Article 19 (1) (a) .The right to information thus
indisputely , is a fundamental right as held in People Union of Civil Liberties v Union Of
India36 .

The people of the country have the right to know every public act , everything that is done in a
public way by the public functionaries. MPs & MLAs are undoubtedly public functionaries .
public education is essential for functioning of process of popular government and to assist the
discovery of truth and strengthening the capacity of an individual in participating in the decision
making process of a voter would include his right to know about public functionaries who are
required to be elected by him as held in Union of India v Association of Democratic Reforms37.

In a responsible government like ours , where all the agents of the public must be responsible for
their conduct , there can be but few secrets. The people of this country have a right to know every
public act , every thing that is done in a public way but their public functionaries. They are
entitled to know the particulars of every public transaction in all its bearing was made clear by
court in State of Uttar Pradesh V Raj Narain38 .

32
AIR 1987 SC 748
33
2002 5 SCC 294,320-22 [para 46(7)]
34
2004, 1 SCC 712 , 712, 744
35
Dinesh Trevedi v Union of India 1997 4 SCC 306
36
2004 2 SCC 476, 494
37
2002 5 SCC 294
38
1975 4 SCC 428, 453.

pg. 16
 The supreme court struck down section 33V of the Representation of the People Act,1951. This
section was inserted to nullify an earlier decision of the supreme court 39, which directed that
candidates must disclose their criminal track record as well as the list of their assets and
liabilities . the section was held to be unconstitutional .The court then held that a well informed
voter is the foundation of democratic structure and disclosure of such information to the voter is
one fact of fundamental right under Article 19 (1) (a). section 33B could not be justified or saved
under Article 19 (2) as held in Union of India v Association for Democratic Reform40.

Further in S.p Gupta &others v President of india41, the court talked about functioning of
government should be known to people.

Recently in Namrita Sharma v Union of India 42, the court held that ours is a constitutional
democracy and that citizen have right to know about the affairs of the government having been
elected by them .public interest is better served by effective application of right to information .
the right to freedom of speech and expression enshrined under A(19)(1) of the constitution
encompasses right to impart and receive information.

Again in Secretary General SC of india V Subhash Chandra Aggarwal (DHC ) it was held that
source of RTI act does not emanate from itself. Its a right that emerges from constituional
means and is guaranteed under Art (19) (1) (a).

And in CBSE v Adithbandhopadhya43 the respondent examinee applied for inspection but his
appeal was rejected by CBSE . High court by impued judgement allowed the writ their against
and held that examinee can get the right under RTI Act to examine their answer book.
SC held that the HC directing the examining books to permit the examinees to have
inspection of their answer books is affirm. Subject to clarifications regarding the scope of RTI
Act safeguard and conditions. The court held that the information regarding the particulars of
examiner, coordinators, head examiners are exempted from disclosure under sec 8 (1) (g) on the
grounds that if such information is disclosed then can endanger their safety .Those portion of the
book containing information shall be removed.

Hence we can conclude that RTI Act is the fact of Freedom of Soeech and Expression as
contained in Art 19 (A) of the constitution & such right is subject to Reasonable Restrictions in
the interest of the security of state and exceptions.

39
Union of India v Association for Democratic Reform, 2002.
40
2002 5 SCC 294
41
1982
42
2013
43
2011 8SC 497

pg. 17
 MEDIA & ITS FREEDOM .
The media derives its rights from the right to freedom of speech and expression available to the
citizen . Thus, the media has the same rights no more and no less than any indivifual to write ,
publish , circulate or broadcast. In a case that arose in pre independent India , the privy council
held :

The freedom of the journalist in an ordinary part of the freedom of the subject and to whatever
lengths the subject in general may go, so also may the journalist ,apart from the statute law, his
privilege is no other and no higher no privilege attaches to his position44.

The framework for analyzing media rights remains much the same in post independence India .
In M.S.M Sharma v Krishna Sinha45 court observed :

A non citizen running a newspaper is not entitled to the fundamental right to freedom of speech
and expression and therefore can not claim , as his fundamental right, the benefit of the liberty of
the press. Further , being only a right flowing from the freedom of speech and expression, the
liberty of the press in India stands on no higher footing than the freedom of speech and
expression of the citizen and that no privilege attaches to the press as such , that is to say, as
distinct from the freedom of the citizen .In short , as regards citizens running a newspaper , the
position under our constitution is the same as it was when the judicial committee decided the case
of 41ind app 149: AIR 1914 PC 116 and as regards non citizens the positions may be even worse.

The question of whether or not to insert in the Indian constitution , the Indian constitution does
not make a specific or separate provision for the freedom of the press. Back then the constitution
assembly came to the conclusion that such a provision as not necessary .Freedom of press is not
separately guaranteed under constitution but settled law of right to freedom of speech and
expression per takes the same basic characteristics . Dr. Ambedkar , chairman of the constituent
assemblys drafting committee argued :

The press is merely another way of stating an individual or a citizen .The press has no special
rights which are not to be exercised by the citizen in his individual capacity . the editor of a press
or the manager are all citizens and therefore when they choose to write in newspapers , they are
merely exercising their right of expression and in my judgment therefore no special mention is
necessary of the freedom of the press at all 46

44
Channing Arnold v Emperor, AIR 1914 PC 116
45
AIR 1959SC 395
46
Constituent Assembly debate ,vol .VII p780

pg. 18
Although no special provision was made to safeguard the rights of the press and media ,the courts
from time to time confirmed that the rights of the press and media are implicit under freedom of
speech and expression under Article 19 (1) (a) of the constitution.47

In Romesh Thappar v State of Madras 48, amongst the earliest cases to be decided by supreme
court, involved a challenge against an order issued by the government of Madras under section 9
(1-A) of the Madras Maintenance of Public order Act,1949 imposing ban on entry and circulation
of the journal , Cross Roads, printed and published by the petitioner . The court struck down
section 9(1-A) holding that right to freedom of speech and expression was paramount and that
nothing short of a danger to the foundations of the state or a threat to its overthrow could justify a
curtailment of the right to freedom of speech and expression . the impunged provision which
authorized the imposition of restrictions for the wide purpose of securing pubic safety and public
order fell outside the scope of the reasonable restrictions permitted under Article 19(2) and was
held to be unconstitutional.

In Brij Bhushan v state of Delhi 49, the Supreme court quashed a pre-censorship order passed
against the publisher of the organizer. The order was passed by authorities under section 7(1) (c)
of the East Punjab safety Act,1949. The court held that section which was authorized such a
restriction on the ground that it was necessary for the purpose of preventing of combating any
activity prejudicial to the public safety or the maintenance of public order did not fall within the
purview of Article (19)(2).

The strongest affirmation of the spirit of the first amendment is echoed in Express Newspaper
Ltd v Union of India 50. This case arose out of a challenge to the working journalists and other
newspaper employees and miscellaneous provisions Act,1955 on the ground that its provisions
violated Article 19(1) (a). In the facts of the case , the court held that the impact of legislation on
the freedom of speech was much too remote and no judicial interference was warranted.

DIMENSIONS OF FREEDOM OF PRESS:

The freedom of speech and expression under article 19 (1)(a) is a concept with diverse facets ,
both with regard to the content of the speech and expression and in the means through which the
communication takes place .It is also a dynamic concept that has evolved with time and advances
in technology .

47
Brij Bhushan V State of Delhi ,AIR 1950 SC 129
48
AIR 1950 SC 124
49
AIR 1950 SC 129
50
AIR 1958 SC 578

pg. 19
Briefly it includes the freedom of communication and the right to propagate or publish ones
views. The communication of idea may be through any medium, newspaper magazine or
movie51,including the electronic and audiovisual media.

RIGHT TO CIRCULATE: the right to freedom of speech and expression includes the right not
only to publish but also to circulate information and opinion. without the right to circulate , the
right to free speech and expression would have little meaning . The freedom of circulation has
been held to be as essential as the freedom of publication 52.

In Sakal papers v Union of India,53, the supreme court held that the state could not make laws
which directly affected the circulation of a newspaper for that would amount to a violation of the
freedom of speech. The right under article 19 (1)(a) extends not only to the matter which the
citizen is entitled to circulate but also to the volume of circulation . This case arose as challenge to
the newsprint policy of the government which restricted number of pages a newspaper was
entitled to print.

Likewise in Bennett Coleman & co. v Union of India54, the supreme court held that newspapers
should be left free to determine their pages and their circulation . This case arose out of a
constitutional challenge to the validity of the newspaper ( price and page )Act,1956 which
empowered the government to regulate the allocation of space for advertisement matter. The court
held that the curtailment of advertisements would fall foul of article 19 (1) (a) since it would have
a direct impact on the circulation of newspaper. The court held that any restriction leading to a
loss of advertising revenue would affect circulation and tehrby impinge on freedom of speech .

RIGHT TO CRITICISE :
Acceptance by government of a dissent press is the measure of the maturity of the nation55.

Freedom of speech and expression covers the right to criticize government, the requisite of a
healthy democracy. The draft constitution proposed that laws penalizing sedition would be an
exception to free speech. The word sedition, defined in draft Article 13 (2) as exciting or
attempting to excite in others certain bad feelings towards the government and not in exciting or
attempting to excite mutiny or rebellion or any sort of actual disturbance, great or small, was
deleted from Article 13(2).

In a leading American case Terminiello v Chicago56, which has been frequently cited by Indian
courts, the rationale behind the freedom of speech and expression was explained:

Function of free speech under our system of government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are or even stirs the people to anger , speech is often provocative and

51
S Rangarajan v p.Jagjivan Ram ,1989 2scc 574.
52
Romesh Thappar v State of Madras, AIR 1950 SC 124
53
AIR 1962 SC 305
54
1972. 2 SCC 788:AIR 1973 SC 106
55
Doughlas J. in Terminielllo v Chicago, 1948 93L Ed 1131
56
1948 93 L.Ed 1131 P.1134

pg. 20
challenging . It may strike at prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea..there is no room under our constitution for a
more restrictive view for the alternative would lead to standardization of ideas either by
legislatures, courts or dominant political or community groups.

The case of kedar Nath Singh v state of Bihar57, arose out of a constitutional challenge to
sections 124-A and 505 of the Indian Penal Code,1860 which penalize attempts to excite
dissatisfaction towards the government by words or writing and publications which may disturb
public tranquility . the supreme court dismissed the challenge but clarified the criticism of the
public measures or comment on government action, however strongly worded.would be within
reasonable limits and would be consistent with the fundamental right of freedom of speech and
expression.

RIGHT TO RECEIVE INFORMATION:

The freedom of speech and expression comprises not only the right to express, publish and
propagate information through circulation but also to receive information. This was held by
supreme court in a series of judgments which have discussed the right to information in varied
contexts from advertisement enabling citizen to get vital information about life saving drugs58,
to the right of sports lovers to watch cricket59 and right of voters to know the antecedents of
electoral candidates.

RIGHT OF PRESS TO CONDUCT INTERVIEWS:

This is a limited right, subject to the willing consent of a person being interviewed. A number of
cases have arisen where the right of the press to interview convicts or undertrials has been
examined.

In Prabha Dutt v Union Of India , 60 , the petitioner was seeking to interview the condemned
prisoners Billla and Ranga. The court held that the press does not have an absolute or unrestricted
right to information and there is no legal obligation on the part of citizens to supply that
information and there is no legal obligation on the part of citizens to supply that information .An
interview may be conducted provided that the convict gives his consent to being interviewed .
The right to interview would also be subject to Rule 549 (4) of the Manual for superintendence
and Management of jails which allows every prisoner sentenced to death to give interviews ,
engage in communications with relations , legal advisors ,etc. The court held that that where there
are weighty reasons to do so , the interview can be refused , although the reasons ought to be
recorded in writing .The supreme court took a similar view in sheela Barse v union of india61.

REPORTING COURT PROCEEDINGS:

The journalist has a fundamental right to attend proceedings in court and the right to publish a
faithful report of proceedings witnessed and heard in court.and the right to publish faithful report

57
AIR 1962SC 955
58
Tata Press Ltd v Mahanagar Telephone Nigam Ltd, 1995 5 SCC 139
59
Secy, Ministry of Information and Broadcasting V Cricket Assn, Bengal,1995 2 SCC 161
60
1982 1 SCC 373
61
1987 4 SCC 373

pg. 21
of the proceedings witnessed and heard in court . The right is available in respect of judicial and
quasi judicial tribunals.62

The right to report judicial proceedings stems from the necessity for transparency .justice must
not only be done , it must be seen to be done, openness is a safeguard against error and
misconduct.

Publicity of proceedings serves another important purpose . it enhances public knowledge and
appreciation of the working of the law and the administration of justice . there is also therapeutic
value to the public in seeing criminal trials reach their logical conclusion.63

In Naresh Shridhar Mirajakar v State of Maharashtra64 , the supreme court held that the court
may restrict the publicity of proceedings in the interests of justice . the court has the inherint
power under section 151 of the civil procedure code , 1908 to order a trial to be held in camera,
but this power must be exercised with great caution and only where the court is satisfied beyond
tdoubt that the ends of justice would be defeated if the case were to be tired in open court.

RIGHT TO ADVERTISE:

In Tata Press Ltd v Mahanagar Telephone Nigam Ltd65 the supreme court interpreted the
fundamental right to freedom of speech and expression as including the right to advertise or the
right of commercial speech. Till this judgment , advertisements were excluded from the realm of
free speech.

RIGHT TO REBUTTAL:

The freedom of speech and expression entails the right to respond or the right to rebuttal. This
was held by supreme court in LIC V Manubhai shah. This case arose out of the publication in a
newspaper of an article by the trustee of a consumer rights organization. The article criticized
unfair practices adopted by the LIC on its policy holders. A member of the lic responded to this
article challenging the conclusions of the trustee and published them in the same newspaper . the
trustee published his rejoinder which also appeared in the same newspaper.
Meanwhile , the author of the counter has his piece published in the yogakshema, the in- house
magazine of the lic. When the trustee tried to have the rejoinder published in the same journal, his
request was turned down on the grounds that magazine was in-house publication.
Adopting the fairness doctrine the Gujrat high court allowed the trustees writ petition.The
supreme court upheld the high courts decision and held that the lic was under an obligation to
publish the rejoinder since it has published the counter. The trustees fundamental right of speech
and expression entitled him to insist that his view on the subject should reach readers so that they
have a complete picture rather than a lopsided or distorted one. Court also clarified that there was
no absolute rule that a public institution was under an obligation to publish any matter that a
citizen forwarded for publication.

62
Saroj Iyer v Maharashtra Medical council of india ,AIR 2002 Bom 97.
63
Kartar Singh v State of Punjab 1994, 3SCC 569.
64
AIR 1976 SC 1
65
1995 5 SCC 139

pg. 22
RIGHT TO BROADCAST:

The concept speech and expression has evolved with the progress of technology and
encompasses all available means of expression and communication. This would include the
electronic and the broadcast media.

In Odyssey Communications Ltd v Lokvidayan Sanghatana66 , the SC held that the right of a
citizen to exhibit fils on the state channel, Doordarshan is a part of the fundamental right
guaranteed under Article 19(1)(a) .The court held that this right was similar to the right of a
citizen to publish his views through any other media such as newspapers, magazines,
advertisements and so on. In this case , the petitioners challenged the exhibition on Doordarshan
of a serial honi Anhoni on the grounds that it encouraged superstition and blind faith amongst
viewers . The petition was dismissed as the petitioner failed to show evidence of prejudice to the
public.

66
1988, 3 SCC 41o

pg. 23
 MEDIA AND ITS EMERGING FACETS
The news media are in crisis across the developed world. Journalism as we know it is being
described, obviously with some exaggeration, as collapsing, disintegrating, in meltdown. In
this digital age, there is gloom in most developed country, or mature, media markets over the
future of newspapers and also broadcast television. The arrival of the digital revolution the
evolution of the Internet, the emergence of new forms of media, and the rise of online social
networks has reshaped the media landscape. Various faces emerging are YELLOW
JOURNALISM, CONCEPT OF PAID NEWS,STING OPERATIONS AND MEDIAL TRIAL
PHENOMENON , ETC.

YELLOW JOURNALISM:
Yellow Journalism is one such form of media that has emerged. The term is used for the use of
negligent and flamboyant newspaper reporting, without regard to facts. With yellow journalism
the truth is usually misrepresented or concealed, more often than not, there may be no truth to the
story at all.

Evolution of the law of privacy has occurred due to development of media in the modern times. It
is because of the media and the unbridled growth of yellow journalism that the private life of an
individual has come in the public domain, thus exposing him to the risk of an invasion of his
space. Moreover in the Internet age, information has become very accessible and is available with
one click of the mouse. This is the reason why law should be a 'watchdog' to journalism and keep
an eye on its procedures.

But unfortunately, even today in no country does the right to privacy enjoy the status of a specific
constitutional right. Privacy law has evolved largely through judicial pronouncements. Even as late
as 1991, the law in England was found to be inadequate to take actions against yellow journalism. In
that year, the court of appeal decided Kaye v Robertson. The case concerned a well-known actor
who had to be hospitalized after sustaining severe head injuries in a car accident. At a time when the
actor was in no condition to be interviewed, a reporter and a photographer from the 'Sunday Sport
Newspaper' gained unauthorized access and took his photos. Because of no proper law, no action
was taken against the reporter. Despite the lack of specific constitutional recognition, the right to
privacy has long held a place in international documents on human rights such as Article 12 of the
Universal Declaration of Human Rights, 1948.

In India, the right to privacy is not a specific fundamental right but has gained constitutional
recognition. Unfortunately the right to privacy is not one of the reasonable restrictions. In India right
to privacy has derived itself from- common law of torts and the Constitutional law. In common law,
a private action for damages for unlawful invasion of privacy is maintainable. Under the
constitutional law, the right to privacy is implicit in the fundamental rights to life and liberty
guaranteed by Article 21 of the Constitution.

pg. 24
 Various case laws in the past are evidences, which prove the infringement of privacy by journalists.
In Kaleidoscope (India) (P) Ltd. v. Phoolan Devi, the trial Judge restrained the exhibition of the
controversial film Bandit Queen both in India and abroad. The trial court reached a prima facie view
that the film infringed the right to privacy of Phoolan Devi, notwithstanding that she had assigned
her copyright in her writings to the film producers. This was upheld by the Division Bench. The
Court observed that even assuming that Phoolan Devi was a public figure whose private life was
exposed to the media; the question was to what extent private matters relating to rape or the alleged
murders committed by her could be commercially exploited, and not just as news items or matters of
public interest. Thus, justice was rendered by preventing by intrusion of privacy into the life of the
one and only Bandit Queen.

Yellow journalism has not only affected and victimized the general public and has not even spared the
apex court of the nation, the Supreme Court. In the high profile case of the Booker-prize winner
Arundhati Roy, blatant and unconstructive criticism of a Supreme Court decision was witnessed.

The petitioner, of the case, was a movement or andolan, whose leaders and members were concerned
about the alleged adverse environmental impact of the construction of the Sardar Sarovar Reservoir
Dam in Gujarat and the far-reaching and tragic consequences of the displacement of hundreds of
thousands of people from their ancestral homes that would result from the submerging of vast extents
of land, to make up the reservoir. During the pendency of the writ petition the Court passed various
orders. By one of the orders, the Court permitted to increase the height of the dam, which was
resented to and protested by the petitioners and others including the respondent herein. The
respondent Arundhati Roy, who was not a party to the proceedings, published an article entitled "The
Greater Common Good" which was published in Outlook Magazine. Two judges of this Court,
forming the three-judge Bench felt that the comments made by her were, prima facie, a
misrepresentation of the proceedings of the court. It was observed that judicial process and institution
cannot be permitted to be scandalized or subjected to contumacious violation in such a blatant
manner, it had been done by her. On the basis of the record, and the conduct of the respondent, the
court had no doubt in its mind that the respondent had committed the criminal contempt of the Court
by scandalizing its authority with malaise intentions. The respondent was, therefore, held guilty for
the contempt of court punishable under Section 12 of the Contempt of Courts Act.

Regardless of the above mentioned success stories various loopholes are still present in our judiciary
as far as Yellow Journalism is concerned. So far the laws of privacy have been relegated to a
penumbral status and have never enjoyed the status of a well-defined right. It is time our lawmakers
enacted laws to protect privacy rather than laws that license intrusion into private affairs.

pg. 25
 PAID NEWS CONCEPT:
What is paid news? Paid news is run to pass off an advertisement, a piece of propaganda and
advertisement...pass that as news, pretend that it is news, that is paid news. Paid news does not
disclose to the reader that this information has been paid for. News, according to Press Council of
India (PCI), is meant to be factual, neutral, fair and objective, whereas information and opinion from
Advertisements are paid for, by corporate entities, Governments, organizations or individuals.
However, off late a dangerous trend of presenting the paid information as news content has spread
at remarkable pace in some section of the Media. The Ministry of Information and Broadcasting, in
this regard, has stated that there have been a number of media reports that sections of the electronic
and print media have received monetary considerations for publishing or broadcasting in favor of
particular individuals or organizations or corporate entities, what is essentially advertisement
disguised as news and this has been commonly referred to as the Paid News Syndrome.
The trend of presenting the advertising content, that is paid for, as News undermines/threatens
the democratic process but also affects financial/stock/real estate market, health, industry and is also a
tax fraud.

STING OPERATIONS67:

The Sting Operations done by the media in India cover mostly the working of the public servants
in their offices. The official work of the public servants should be transparent and open to all as it
is in the public interest. But the courts have held that the Right to Privacy does not cover this
official work in its purview. Sting Operation began with a laudable objective of exposing
corruption in high places and gradually degenerated into cheap entertainment. A sting operation, as
resorted by the law enforcement agencies, is an operation designed to catch a person
committing a crime by means of deception. A typical sting will have a law-enforcement officer or
a cooperative member of the public, play a role as criminal partner or potential victim
and go along with a suspect's actions to gather evidence of the suspect's wrongdoing. Now the
question that arises is whether it is proper for the media to act as the law enforcement
agency.The carrying out of a sting operation may be an exercise of the right of free press but it
carries with it an indomitable duty to respect the privacy of others. The individual who is the
subject of such a press or television item has his or her personality, reputation or career dashed
to the ground after the media exposure. He too has a fundamental right to live with dignity and
respect and a right to privacy guaranteed to him under Article 21 of the Constitution.

67
PDF on Sting Operation vis--vis Right to Privacy by Media:
A legal analysis in Indian Context by :Pravesh Dalei and Surendra Kumar Nirala
pg. 26
Such cases cannot be filed in courts with these tapes- audio or video recording- as evidence or
proof because courts do not consider these as credible evidence and proof. Moreover, as the
Government
machinery is not functioning the way it should function, that is why instances of sting operations
are on the increase. In such circumstances, what is the point in taking it to the public authorities?
On the other hand, when this is exposed by media, the general public becomes aware of the illegal
business going on inside the Government machinery. There is a pressure on the government
agencies concerned to act. The news Broadcasters Association (NBA) justified Sting Operation as
legitimate journalistic tool. The correspondents who telecast sting operations argue that Sting
Operation take place in public interest and where public money is involved.

The carrying out of a sting operation may be an exercise of the right of free press but it carries
with it an indomitable duty to respect the privacy of others. The individual who is the subject of
such a press or television item has his or her personality, reputation or career dashed to the
ground after the media exposure. He too has a fundamental right to live with dignity and respect
and a right to privacy guaranteed to him under Article 21 of the Constitution.

The following observations of the Supreme Court in Rajagopal and Another v. State of Tamil
Nadu and Others are true reminiscence of the limits of freedom of press with respect to the right
to privacy: A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education among other matters. No one can publish
anything concerning the above matters without his consent - whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right to privacy of the
person
concerned and would be liable to action for damages. Position may, however, be different, if a
person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

MEDIAL TRIAL PHENOMENON :

Trial by media is a phrase made popular in the late 20th 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 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.68

One of the flip sides of media trial is the way it affects the dignity and liberty of an individual
in its blind pursuit to hog the limelight. And, in this context it becomes relevant to remember that
the Preamble to the Universal Declaration of Human Rights 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. The expression human
family connotes an order where the enjoyment of certain inalienable rights is not bound by any

68
Trial By Media-The Jessica Lal Case , available at: http://ssrn.com/abstract=1003644

pg. 27
boundaries, where persons live a life with dignity. And only in such an order, freedom abounds,
justice reigns and peace prevails.

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 publicity69, 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.

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.

Sensationalized 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 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.

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.70

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,

69
Attorney General v. BBC : 1981 AC 303 (CA), p. 315.
70
http://www.ourpriyadarshini.org/ on 12/12/06 ( quoted from Trial By Media-The Jessica Lal
Case ,
available at: http://ssrn.com/abstract=1003644).
pg. 28
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.71 the supreme court
Court observed: There is the 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.

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 notices and legal knowledge. This
point has also been recommended in the 200th report of the Law Commission of India, which
observed that:72
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.

71
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.
72
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.
pg. 29
 Media trial v Right to Fair Trial
In the criminal justice system, which we have been following, the guilt is to be proved beyond
reasonable doubt and the law is governed by senses and not by emotions. While displaying our
emotions, the media and the masses forget that it puts tremendous pressure on the judge presiding over
the case. How can we expect a fair judgment from a judge who is under such tremendous pressure
from all sections of the society? A person is presumed to be innocent unless he is held guilty by the
competent court, but here the trend is to declare a person guilty right at the time of arrest. The media is
there to report facts or news and raise public issues; it is not there to pass judgments.

The print and electronic media have gone into fierce and ruthless competition, as we call them
aggressive journalism that a multitude of cameras are flashed at the suspects or the accused and
the police are not even allowed to take the suspects or accused from their transport vehicles into
the courts or vice versa. The Press Council of India issues guidelines from time to time and in
some cases, it does take action. But, even if apologies are directed to be published; they are
published in such a way that either they are not apologies or the apologies are published in the
papers at places which are not very prominent. The most objectionable part, and unfortunate too,
of the recently incarnated role of media is that the coverage of a sensational crime and its
adducing of evidence begins very early, mostly even before the person who will eventually
preside over the trial even takes cognizance of the offence, and secondly that the media is not
bound by the traditional rules of evidence which regulate what material can, and cannot be used to
convict an accused. In fact, the Right to Justice of a victim can often be compromised in other
ways as well, especially in Rape and Sexual Assault cases, in which often, the past sexual history
of a prosecutrix may find its way into newspapers. Secondly, the media treats seasoned criminal
and the ordinary one, sometimes even the innocents, alike without any reasonable discrimination.
They are treated as a television item keeping at stake the reputation and image. Such kind of
exposure provided to them is likely to jeopardize all these cherished rights accompanying
liberty.73

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. Ones life with dignity is always given a priority in comparison to ones right to freedom of
speech and expression. Media should also ponder upon these facts. Fair trial is not purely private
benefit for an accused the publics confidence in the integrity of the justice system is crucial.74

73
Jagannadha Rao, Fair Trial and Free Press: Laws Response to Trial by Media, p. 26.
74
Gisborne Herald Co. Ltd. V. Solicitor General, 1995 (3) NZLR 563 (CA)
pg. 30
 In case of Zahira Habibullah Sheikh v. State of Gujarat,75 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 be Legally Represented:
Through media trail, we have started to create pressure on the lawyers even to not take up cases
of accused, thus forcing these accused to go to trial without any defense. Is this not against the
principles of natural justice? Every person has a right to get himself represented by a lawyer of his
choice and put his point before the adjudicating court and no one has the right to debar him from
doing so. For an instance, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a
prime accused in a murder case, he was subject to public derision. A senior editor of the television
news channel CNN-IBN called the decision to represent Sharma an attempt to defend the
indefensible. This was only one example of the media-instigated campaign against the accused.76

As we all knew that in that case we had one of the best lawyers of the country, Gopal
Subramaniam, appearing for the state and the case of Manu was handed to some mediocre lawyer.
Media went hammer in tongues when Mr. Jethmalani took the case and posed him as a villain.
Dont we want to give equal opportunity to the defense to prove its case, or have we lost faith in the
judiciary? The media have to understand their limit before it becomes too late.

75
Zahira Habibullah Sheikh v. State of Gujarat, [(2004) 4 SCC 158]
76
http://www.hrdc.net/sahrdc/hrfeatures/HRF164.htm accessed on 10 th June 2008.

pg. 31
 TRIAL BY MEDIA & ITS ACCOUNTABILITY

In the media discourse, accountability77 is used to explain a media channels functioning to the
higher authority or a group of persons in the event that its behavior be deemed as questionable.
The media is often accused of violating professional norms, and hence, its actions call for certain
explanations. The press plays a vital role in democracy in disseminating information to the public
to have the latter well informed. For this purpose, the press gathers news from various sources
and disseminates it to the public. However, while gathering and disseminating the news, the press
though is cautious may be blamed of acting in unfair and biased manner by violating the
professional code of ethics. In the age of market-driven journalism, the media indulge in
sensationalism to maximise profits and commercialism is said to be the motive for such behavior.
Therefore, society expects the press to be accountable to its constituents and press accountability
is central to its behavior. Pritchard (1991, 2000) defined press accountability as a process by
which press organizations may be expected or obliged to render an account to their constituents.

Accountability to subjects. The press is also expected to be accountable to the subjects involved
in incidents while reporting stories. Journalists may get sensational stories when public
personalities are the subjects involved in the issue. For example, the shooting incident that took
place in Hyderabad, Andhra Pradesh, in which prominent film star, Bala Krishna was allegedly
involved. He reportedly shot at two other people over a financial issue (The Hindu, June 4, 2004).
Though it was the job of the police or the court to pronounce the verdict whether he was guilty or
not, the newspapers as well as the TV channels ran special stories and arraigned the film star
allegedly involving him in the shoot-out.

Sometimes, institutional heads, elected representatives, civic officials or film stars get involved in
scandals or controversies. The public is entitled to know about these people through media
channels. However, if these subjects are misrepresented in the media, can they take legal recourse
against the media? In such a situation, the media are expected to be accountable to the subject. A
misjudgement on the part of the media tantamount to negligence and an error of this kind and its
consequent harm may be excusable. But a valid excuse does not remove an obligation to accept
accountability. For example, The Statesman of Kolkatta published a news item Homeless
children come home to slave in its issue dated April 30, 1999. The news item focussed on the
issue of alleged exploitation of children by an NGO, Nikhil Banga Kalyan Samithi, a social
welfare organisation. The organization filed a complaint to the Press Council of India against the
newspaper for defaming the organization as well as misrepresenting the case. The paper later
rendered an apology (The Press Council of India Quarterly Review, 2001).

77
The word accountability in language originates from the metaphor of keeping an account of ones conduct. It
means that an account has to be made available to a higher authority or another person (Buttny, 1993). The word
accountability came into English usage in 1583 in the context of financial transactions (Srivatsava, 1992).

pg. 32
Accountability to sources. In the process of gathering news from different sources, journalists are
liable to be accountable to their sources of information. Because the source places faith and trust
on the journalist not to disclose the identity of the source, the disclosure of the sources identity
will harm him/her and consequently his/her privacy will be invaded. Although a journalists main
goal is to provide information to the public, the information given by the source should serve the
interests of the public or the society. For example, the source may disclose some information
related to a policy decision of the government and asks the reporter to maintain secrecy of the
source. Sometimes, the source may say `off the record, the journalist is bound to keep the
information from being disclosed. However, the journalist can use his discretion in disclosing the
information when it is related to a crime, national security, and financial loss to the organization,
and so on. On the other hand, in securing the information to reveal the truth, the journalist gathers
information by deceiving the source of his identity, and it is unethical on the part of the journalist
to disclose secrecy of his identity. However, Christians, et al. (1991) argue that public good is
more important than the means adopted to secure information.

Accountability to the public.

Klaidman and Beauchamp (1987) classify accountability in the three previously mentioned
categories. However, a fourth classification can be added as public accountability. In a
democracy, society depends on the mass media for information, and is meant for communication.
Rather, in the case of newspapers, the responsibility is much more than electronic media. In
reporting an event, two dimensions must be taken into consideration. They are: a) construction of
social reality, and b) objectivity.

Individuals. When the press intrudes into an individuals privacy or defames him/her, the press is
liable for punishment. Hence, an individual can seek the reddressal of the problem by going to a
Press Council or a court of law. For example, in India and Sweden, if an individual is affected by
the coverage of the news, he can go to a Press Council first for reddressal of the problem, and if
he is not satisfied by the Press Councils enquiry, he can approach a court of law for defamation.
In India, the law of Torts and the Indian Penal Code deal with specific aspects of defamation to
help the individual and gives the press an opportunity to defend its actions. The law of Torts
says that defamation is an injury to the reputation of a person. If a person injures the reputation of
another person, he does so at his own risk as in the case of an interference with the property. A
mans reputation is his property, and if possible, more valuable than other (materialistic) property.
For example, in the case of D P Choudhary vs. Manjulatha78 a news item was published in a
local Hindi daily, Dainik Navjyothi in Jodhpur on December 18, 1977 that 17-year-old
Manjulatha went out of her house at 11 pm on the day earlier on the pretext of attending night
classes with a boy named Kamlesh. She was a graduate student and belonged to an educated
family. The news item, which was untrue, was published with utter irresponsibility and without
any justification. Such publication resulted in her being ridiculed and affected her marriage
prospects. Since the news item is defamatory in nature, the court held the press liable for
defamation79

78
AIR 1997 Raj 170),
79
(Bangia, 1999, p. 170).
pg. 33
Media and Criminal Accountability:
One of the main issues of debate these days is media trial and its criminal accountability .
The way media these days puts a person on trial before the judgment is passed put has led the
indian courts to come out with certain methodologies which help in decision making for judges
during the trials. In the criminal justice system, which we have been following, the guilt is to be
proved beyond reasonable doubt and the law is governed by senses and not by emotions. While
displaying our emotions, the media and the masses forget that it puts tremendous pressure on the
judge presiding over the case. How can we expect a fair judgment from a judge who is under such
tremendous pressure from all sections of the society? A person is presumed to be innocent unless
he is held guilty by the competent court, but here the trend is to declare a person guilty right at the
time of arrest. The media is there to report facts or news and raise public issues; it is not there to
pass judgments.

In state of Maharasthra v Public concern for governance80 the court held that theres a
procedure established by law governing the trial of accused person. Trial by press, electronic
media or public agitation is very anti-thesis carriage of justice. Ajudge has to be guarded by rules
of law. If he finds the person guilty of an offfence ,hes then to address himself to question of
sentence to be awarded to him in accordance with provision of law.

Similarly, as we see in Arushi Talwars murder case wherein CBI placed its closure report thrice
yet courts were put to restart trials again and again due to media pressure. This is one clear case
where due to pressure of media even without sufficient proof parents were convicted.

Again in famous Real state corp Ltd sahara india v SEBI81 , on bench Justice Kapadia .D.K
Jain, Ranjana Das and SS Niggar, the court held that we are distressed to note that even without
prejudice proposals sent by the appellants to learned councils of SEBI has been leaked out in
media. Such incidents are increasing day by day and this not only effects the business sentiments
but also interferes with administration of justice.
In the above circumstances we have requested to both the councils to make a written application
to this court in form of an I.A so that appropriate orders could be passed by this court with
regard to reporting of matter which are subjudice

It was here court laid down the DOCTRINE OF POSTPONEMENT wherein , court said that
temporary ban on publication of court proceedings is necessary to maintain balance between freedom
of speech and fair trial for proper administration of justice.

The bench said the postponement of publication of court proceedings would be required where
there is a substantial risk of prejudicing the trial and administration of justice.

80
AIR 2005
81
AIR 2012 SC 382

pg. 34
Further the CJI, who read the judgment, said reasonable restrictions on reporting of court
proceedings were needed for societal interest and this doctrine of postponement is one of
neutralizing technique.

Further in state of Maharashtra v Rajendra J.Gandhi 82, the court held that the trials by press,
electronic media or public agitations are very anti-thesis of rule of law. Consequently , it has been
stated that this court should consider giving guidelines as to the manner and extent of publicity of
proceedings by a party in a pending proceeding which has not been adjudicated upon.

In 1984, hundreds of Sikhs were killed during violent reprisals after the assassination of
the former Prime Minister Indira Gandhi by her Sikh bodyguards. A judicial commission named a
prominent politician of the Indian National Congress (INC) party as having very probably been
involved in the killings. But the politician, who went on to become a minister in successive
INC-led governments, has managed to evade prosecution.83 In 2002, activists linked to far-right
Hindu outfits killed hordes of Muslims in the state of Gujarat, as purported revenge for the
murder of Hindu pilgrims by suspected Muslim extremists. Unlike the anti-Sikh riots, the Gujarat
riots received enormous media coverage.84 A sting operation conducted by a magazine
culminated in the arrest of political activists and even a former minister.85 A senior lawyer,
serving as amicus curiae in one of the Gujarat riots cases, has admitted that the medias coverage
of events has pressurized the police to investigate the cases seriously.

It is indisputable that the Indian media has influenced the course of at least three recent
high-profile cases which I have discussed below:

A. THE PARLIAMENT ATTACK CASE

In December 2001, terrorists entered the outer premises of Indian Parliament. The
terrorists were eventually killed by commandos, but not before having taken the lives of eight
guards. The Indian government blamed Islamic terrorist groups in Pakistan for the attack, and
India and Pakistan were soon on the brink of war.86 The Indian police arrested four Muslim
Indian citizens and charged them with having been involved in planning the attack. Among those
arrested was Mohammed Afzal.
Some argued that the Indian medias coverage of the case precluded the possibility of

82
AIR 1997 SC 3986
83
Court Accepts Clean Chit to Tytler, HINDUSTAN TIMES, Apr. 28, 2010, available at
http://www.hindustantimes.com/rssfeed/newdelhi/Court-accepts-clean-chit-to-Tytler/Article1-536579.aspx;
Ansuhman G Dutta, 1984 Anti-Sikh Riots: The Agony of Proving Tytles Innocence, MIDDAY, Dec. 2,
2009, available at http://www.mid-day.com/news/2009/dec/021209-jagdish-tytler-sikh-riots.htm.
84
Nidhi Bhardwaj, Missing the Story: Where was the Media in 1984? CNN IBN, 2008, available at
http://ibnlive.in.com/news/missing-the-story-where-was-the-media-in-1984/61753-3.html (last visited May
15, 2010).
85
Rana Ayyub, Finally, The First Sign of Justice, TEHELKA, Apr. 11, 2009, available at
http://www.tehelka.com/story_main41.asp?filename=Ne110409finally_the.asp.
86
See generally PR CHARI, PERVAIZ IQBAL CHEEMA AND STEPHEN P COHEN, FOUR CRISES AND A PEACE
PROCESS: AMERICAN ENGAGEMENT IN SOUTH ASIA 149-183 (2007).

pg. 35
Afzals receiving a fair trial. The trigger for such criticism was the fact that the Delhi police had
invited news channels to record a confessionary statement by Afzal while he was in police
custody. The statement, which was inadmissible as evidence, was broadcast by many channels.
Meanwhile, a leading news channel broadcast a film reconstructing the Parliament attack
conspiracy. The film was criticized for parroting the prosecutions version of events. Afzal had
sought a stay on the telecast of the film, arguing that it would prejudice his trial. However, the
Supreme Court of India rejected the plea and stated that judges were trained not to be influenced
by such pre-trial publicity. The trial court eventually sentenced Afzal to death.

When Afzal appealed his conviction to the Delhi High Court, his lawyer, Colin
Gonsalves, sought a retrial. Gonsalves, a prominent human rights activist, contended that Azfals
televised statement had constituted a media trial which had seriously prejudiced the trial
court judge, or had at least engendered the possibility of causing serious prejudice in his
mind. It was thus argued that Afzal had been deprived of his right to a fair trial.
To buttress his submission, Gonsalves cited three American judgements: Rideau v. Louisiana,87
Coleman v.Kemp,88 and Sheppard v. Maxwell.89 A paucity of Indian case law on this subject
presumably made Gonsalves cite precedents from foreign shores.

In Rideau, a video showing Wilbert Rideau confessing to the police about his alleged crimes was
broadcast on local channels. During Rideaus trial, some jurors had stated under oath that they
had seen Rideaus televised confession. But a plea seeking a change of trial venue was denied.
Rideau was sentenced to death and the trial courts verdict was upheld by the Supreme Court of
Louisiana. On appeal, the United States Supreme Court reversed the decision. Speaking for the
majority, Justice Stewart stated that since the local public had been exposed repeatedly to the
spectacle of Rideau personally confessing about his alleged crime, subsequent court
proceedings in a community so pervasively exposed to such a spectacle could be but a hollow
formality. The Court accordingly held that the refusal to change the trial venue had constituted
a denial of due process of law.90
In Coleman, Wayne Coleman was charged with multiple murders. The local press carried several
articles condemning Coleman. Colemans plea for a change of trial venue was rejected and he was
sentenced to death by a trial court jury. An appellate court reversed the decision and ordered a
retrial. 91The appellate court felt that the public had been overwhelmedwith prejudicial and
inflammatory publicity. Importantly, the appellate court acknowledged that overwhelming
evidence of Colemans guilt had been presented at his trial, but justified its order for a retrial on
the premise that even an obviously guilty defendant had a right to a fair trial before an
impartial jury.

The Delhi High Court, though, was not swayed by Gonsalvess reasoning. The Court
declined to apply the American precedents on the elementary premise that trials in India are
conducted by judges and not juries. Quoting the Supreme Courts observations in Pillai, the High

87
373 U.S. 723 (1963).
88
778 F.2d 1487 (11th Cir. 1985).
89
384 U.S. 333 (1966).
90
373 US 723, 726 (1963).
91
Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985).

pg. 36
Court reasoned that judges were well-trained and experienced enough to shut their minds and
ignore media reports. 92 The Court added that there was a complete separation of powers between
the executive and the judiciary in India. The only action the Court took was to simply state the
practice of interviewing those in police custody was disturbing and ought to be deprecated..
When Afzal appealed against his conviction to the Supreme Court, the media trial argument was
not raised again. The Supreme Court upheld Afzals death sentence.

B. JESSICA LALL CASE

Recently, when Manu Sharma appealed against his conviction by the Delhi High Court to
the Supreme Court of India, Ram Jethmalani also raised a trial-by-media defence. Jethmalani
argued that one of the reasons why the Supreme Court should acquit Sharma was because
Sharmas trial in the Delhi High Court was prejudiced by the wild allegations levelled by the
mass media, which proclaimed him as guilty despite even after his acquittal by the trial
court. While the Supreme Court did not directly address the question of whether judges could be
biased, it seems that the Court acquiesced with earlier pronouncements declaring the infallibility
of judges.The Court held that a trial by media did, though to a very limited extent, affect the
accused [Sharma].

However, the Court held that the medias coverage was not tantamount to a prejudice which
warranted Sharmas acquittal. The Court remarked that a trial by media should not hamper fair
investigation by the investigating agency or cause impediments in the accepted judicious and
fair investigation and trial. Thus, the Court seemed to imply that the media could influence
investigators but not judges.

C. PILLAI CASE

In famous Pillai v. Kerala was a seminal Indian case where a defendant argued that biased media
coverage could prejudice a trial.93In Pillai, a politician facing corruption charges petitioned the
Supreme Court of India to shift his trial venue, alleging that adverse publicity in the press had
rendered a fair trial impossible. The Supreme Court dismissed the petition and declared that it
would be wrong to assume that judges could be influenced consciously or subconsciously by
propaganda or adverse publicity.

92
(2003) 107 D.L.T. 385 ,136-8.
93
(2000) 7 S.C.C. 129.

pg. 37
 IMPACT OF THE DECISIONS
The decisions in Pillai and the Parliament Attack Case and, to a lesser extent, the Jessica Lall
Case have affirmed that prejudicial media coverage cannot annul a trial in India because
judges are considered emotionally infallible. This is a somewhat contentious assumption.

In Pennekamp v. Florida, Justice Frankfurter said that judges were also human and could be
influenced unconsciously by news reports.94
In Attorney General v. BBC, Lord Dilhorne stated:
It is sometimes asserted that no judge will be influenced in his judgment by anything said by the
mediaThis claim to judicial superiority over human frailty is one that I find some difficulty in
accepting. One study has argued that the behavioral assumption that the mindset of trained
judges and lay jurors are different deserves far closer scrutiny from social scientists.95
In the wake of the Justice for Jessica campaign, there have been murmurs within the
Indian bar about the susceptibility of judges to public pressure.

During the Justice for Jessica campaign, the then Chief Justice of India reportedly urged the
media to exercise restraint as some judges could be confused a revealing choice of word.
Some days after this remark, the Delhi High Court similarly observed: The kind of media trial
which is going on in this country creates bias not only in the minds of the general public but
alsohas the tendency to put pressure on the court. The Court added: Judges are also human
beings and when a hue and cry is made by the media it is possible that the equilibrium of a Judge
is also disturbed.

Nevertheless, it should still be assumed that judges are not vulnerable like jurors, because
of the need to preserve judicial authority. The Delhi High Court was thus justified in refusing to
apply the American precedents which Afzals counsel had cited. In these circumstances, the
law of contempt of court is a more appropriate post-dissemination safeguard against a trial by
media.
And similar is the case of Mohmd Ajmal Kasab v State of Maharashtra.96, wherein the victim
Ajmal kasam who was acquitted for mass killing under an terrorist attack was again declared the
convict much before the actual hearing of the court was out.
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

94
328 U.S. 331, 357 (1946).
95
Stephan Landsman & Richard Rakos, A Preliminary Inquiry Into the Effect Of Potentially Biasing
Information on Judges and Jurors in Civil Litigation, 12 BEHAVIORAL SCIENCES AND THE LAW 113, 126
(1994).
96
AIR 2012 SC 3665

pg. 38
miscarriage of justice. A Judge is to guard himself against such pressure. Media should thus
maintain its distance .

SHOULD COURTS BE LENIENT TOWARDS THE MEDIA?97

The judgments in Pillai and the Parliament Attack Case have established that biased media
coverage is not a sufficient ground for seeking a retrial or a change in trial venue. This increases
the importance of the law of contempt of court as a post-dissemination safeguard against media
trials. Early precedents show that Indian courts construed the law of contempt strictly while
applying it as a post-dissemination sanction. This was despite the fact that the countrys private
media was nowhere near as influential as it is today. In one of the early contempt cases, the High
Court even stated that journalism was not a lucrative career in India, and that those who entered
the profession did so with the purest impulse to serve the public cause. Since the recent
proliferation of news channels, courts have become increasingly vexed with prejudicial media
coverage. The judicial perception of journalists has also changed, and judges have linked such
coverage with the mercenary motives of television producers to win more viewers.

Yet, ironically, the judiciarys use of contempt jurisdiction has waned. While granting bail to the
priests accused of murdering Sister Abhaya, Judge Hema remarked that a threat of ill-repute
hangs over the head of any judge who may ever dare to lift his/her pen and write or speak
anything contrary to the media-public verdict.98 This statement perhaps explains why courts
have tolerated media trials in recent years.

In India, the growing phenomenon of activist media coverage of criminal trials has seen some
positive outcomes. It is even arguable that until Indias rotten criminal justice system is reformed,
the judiciary must tolerate journalistic vigilantism. Nonetheless, I have advocated a slight tilting
of the balance away from the right to free speech and towards the right of an accused to a fair
trial. A journalist must not be given an absolute free reign to wantonly declare an accused person
as innocent or guilty. While a proponent of Blasis checking value theory would probably
oppose such curbs, they can still be justified because: (i) the Constitution of India is less
permissive towards free speech than that of the United States, and (ii) Blasis theory was not
conceptualized with private actors such as the likes of Manu Sharma or Sanjeev Nanda in
mind. Thus, the Indian judiciary must be a little more assertive and do more than merely make
disapproving statements directed at the media.
Indian courts have held that biased media coverage does not merit a retrial, a position that I
have supported. But this also means that courts must not abandon the use of suo moto contempt
powers as an alternative, post-dissemination safeguard against media trials. If a journalist goes
overboard while commenting on a pending trial, courts can consider imposing what I have
described as soft sanctions. In more serious cases involving false publications, hard sanctions
can be imposed.

97
Refrence by ssrn pdf on media trial and its accountability.

98
Sephy v. India (2009) 1 K.L.T. 126 ,94.

pg. 39
 TRIAL BY MEDIA AND THE LAW OF CONTEMPT99

A. THE LAW OF CONTEMPT OF COURT

In British India, the contempt jurisdiction of courts was based not on any statute or enactment, but
on the assumption that it was an inherent power of a court of record.100 The Constitution
reaffirmed this. The Constitution designates the Supreme Court and the High Courts as courts of
record and gives them the power to punish for contempt of court. The enactment of the Contempt
of Courts Act 1971 saw the detailed codification of the law of contempt. The Act splits the
offense of contempt of court into civil and criminal offenses. While civil contempt pertains to the
non-compliance of court orders, criminal contempt is defined to include the publication of matter
which prejudices or interferes with the due course of any pending judicial proceeding, or
interferes with or obstructs the administration of justice.101According to Section 2 of the Act, a
judicial proceeding in a criminal case begins when a charge sheet is filed or when a court issues a
warrant or an order of summons. A judicial proceeding ends when the case is finally decided by a
court, including any appellate review. A criminal contempt proceeding can be initiated by: (i) the
Supreme Court of India or a High Court suo moto, (ii) a designated law officer like the Attorney
General of India or the Solicitor General of India, or (iii) by any person, with the approval of such
a law officer.
A person found guilty of contempt of court may be punished with a fine or imprisonment.
However, a court may waive punishment if a contemnor issues an apology to the courts
satisfaction. The Act exempts from liability the publication of a fair and accurate report of a
judicial proceeding.102 In the context of the trial-by-media debate, this exemption is not very
relevant. When a case is pending, the media may only report fairly, truly, faithfully and
accurately the proceedingswithout any semblance of bias towards one or the other party.

In 2006, the Act was amended to allow truthin public interest as a defence to a charge of
contempt.The amendment implemented a recommendation of the National Commission to
Review the Working of the Constitution (NCRWC).103 Although courts have yet to discuss the
scope of this new defence in detail, the defence is likely to pay an important role in future cases
involving a trial by media.

99
SSRN pdf on JUDICIAL SAFEGUARDS AGAINST TRIAL BY MEDIASHOULD BLASIS CHECKING VALUE
THEORY APPLY IN INDIA? By ARPAN BANERJEE
100
K. BALASANKARAN NAIR, LAW OF CONTEMPT OF COURT IN INDIA 27-9 (2004).
101
Contempt of Courts Act 1971 2(c).
102
Contempt of Courts Act 1971
103
Contempt of Courts Act 1971 13(2), amended by Contempt of Courts (Amendment) Act 2006 2.

pg. 40
B. PRE-LIBERALIZATION ERA CASES
Before the 1990s, courts displayed a tendency to apply the law of contempt strictly. In Re
Mohandas Gandhi,104 the Bombay High Court found Gandhi guilty of contempt of court. Gandhi
had written an article in support of two lawyers who were facing disciplinary proceedings before
the Bombay High Court for signing a petition criticising the Raj. Gandhi had leaked an official
letter written by a British judge against the two lawyers. Arguing his own case, Gandhi contended
that he had been within the rights of a journalist in publishing the letter, as it was of great
public importance.

The Court rejected this defence, remarking that Gandhi was suffering from
some strange misconceptionas to the legitimate liberties of a journalist. Judge Marten
warned that the administration of justice would be frustrated if newspapers were free to
comment on or make extracts from proceedings which were still sub judice.

In another Raj-era case, a High Court found an editor guilty of contempt for accusing a man of
filing a false police complaint against his neighbour on account of enmity. 105 Chief Judge
Thomas observed: A journalist has no right to write in the tone the accused has usedNo editor
has a right to assume the role of an investigator and try to prejudice the court against any person.

In independent India, the strict approach of Raj-era judges was emulated by High Courts across
the country. In Bijoyananda v. Balakrushna,106the publication of an editorial deploring a
defendant as a bribe giver was held to be in contempt of court. The Court stated that it would
not allow cases to be tried by newspapers.

In Frey v. Prasad,107 a newspaper referred to two

defendants as smugglers without inserting the adjective alleged. The Court held that this
technically amounted to contempt, although the contemnors were pardoned after issuing an
apology.

In Rao v. Gurnani,108 an editor was fined for contempt of court after his newspaper
leaked a confessionary statement made to the police by a murder suspect. the court felt that the
editor was trying to instil in the minds of his readers, feelings of hatred towards the accused and
create an impression .

In Padmawati v. Karanjia, 109 a magazine published an article suggesting that certain

men had been falsely charged with rape and murder. The Court convicted the editor of contempt,
remarking that it was not permissible to pander to the idle and vulgar curiosity of people who

104
1920 A.I.R. (Bom.) 175
105
District Magistrate v. Ali, 1940 A.I.R. (Oudh) 137.
106
1953 A.I.R. (Ori.) 249.
107
1958 A.I.R. (Punj.) 377
108
1958 A.I.R. (Punj.) 273
109
1963 A.I.R. (M.P.) 61.

pg. 41
desire to know before the matter is out in the ordinary course in a Court of Justice.

In Shamim v. Zinat,110a newspaper article reconstructing a murder while the case was still
pending
was ruled to be in contempt of court. The Court reminded the media to refrain from publications
which constitute opinions upon the merits of the case or create an atmosphere for or against an
accused person before his or her case is finally decided.

C . POST-LIBERALIZATION ERA CASES:

Following the post-90s media boom, the Indian judiciary has admonished investigative
journalists on many occasions. But courts have curiously resisted applying their contempt powers
suo moto.
In Maharashtra v. Gandhi,111 the Supreme Court of India expressed its annoyance at
the great harm that had been caused to a rape trial by prejudicial news reports. But the Court did
not invoke its contempt jurisdiction and merely made this staid observation: A trial by press,
electronic media or public agitation is the very antithesis of [the] rule of law.

In Kartongen v. State,112 the Delhi High Court concluded that the defendants in a corruption case
had been the
victims of a trial by media. But this finding was not enough to make the Court apply its
contempt powers.

Similarly, in Dubey v. Lokayukt,113 a High Court rebuked the media for making prejudicial
comments on pending cases, but chose not to exercise suo moto contempt jurisdiction.

In, Labour Liberation Front v. Andhra Pradesh,114 High Court noted that biased media
coverage had assumed dangerous proportions in India, and that journalists would soon be
shown their place by the judiciary. Yet the Supreme Court showed leniency towards the
media in two subsequent cases.

In Lohia v. West Bengal,115the Supreme Court criticized a magazine for interviewing the parents
of a woman allegedly murdered for dowry. Noting that the
interview contained information that would be adduced in the forthcoming trial of the defendant,
the Court concluded that articles of such a nature would certainly interfere with the
administration of justice. But the Court merely expressed hope that other journalists would
take note of the Courts displeasure and refrain from making prejudicial comments in pending
cases.

During the appeal in the Jessica Lall Case, the Supreme Court observed that various

110
1971 Cri. L.J. (All.) 1586.
111
(1997) 8 S.C.C. 386.
112
(2004) 72 D.R.J. 693
113
(1999) 1 M.P.L.J. (M.P.) 711.
114
(2005) 1 A.L.T. (A.P.) 740
115
(2005) 2 S.C.C. 686.

pg. 42
articles in the print media had appeared even during the pendency of the matterand apparently,
had an effect of interfering with the administration of criminal justice. But once again, the
Court simply let off the media with a broad warning, saying: We would certainly caution all
modes of media to extend their cooperation to ensure fair investigation, trial, defence of accused
and non interference in the administration of justice in matters sub judice.

There has occurred at least one recent instance where the judiciary did try to show the
media its place. In 2009, the Kerala High Court deviated from the post-90s judicial trend and
initiated suo motu contempt proceedings against a newspaper for prejudicial reporting. The
proceedings had arisen from an article about a case involving the death of a nun named Sister
Abhaya, which still remains unsolved after over 15 years.116

While the local police claimed that Sister Abhaya had committed suicide, her parents and others
suspected murder. A judge transferred the case to Indias Central Bureau of Investigation (CBI).
The CBI concluded that Sister Abhaya had been murdered and arrested two influential Christian
priests. The case underwent many twists and turns, which saw judges recusing themselves from
the case and the apparent suicide of a policeman accused by the CBI of destroying evidence. In
2009, the Kerala High Court released the accused priests on bail. Judge Hema, who presided over
the hearing, criticised the CBI for improperly investigating the case. The judge added that the
media had indulged in the sustained brain washing of the public, and that the accused had been
prematurely sent to the gallows by journalists.117

A newspaper published an article criticising Judge Hemas decision to allow the bail
application. The newspaper attributed the decision to the judges alleged proximity with a retired
Christian Supreme Court judge. Defending the CBI, the newspaper alleged that certain Christian
judges with links to the accused were trying to manipulate the case, and that Judge Hemas
decision had only helped to magnify the suspicion of the people.118

This article resulted in the Kerala High Court initiating suo moto contempt proceedings against
the newspapers editor and publisher. The Court criticised the growing tendency of the Indian
media to make comments on the merits of pending cases and pronounce parties as guilty or
innocent. The Court reiterated that s uch programmeshave the effect of interfering with the
administration of justice and therefore, will amount to criminal contempt. The Court held that
the newspaper article in question did have the tendency to interfere with the due course of justice
and was thus an act of criminal contempt. However, the Court accepted an apology from the
contemnors and chose not to penalise them.119

116
Vicky Nanjappa, Sister Abhaya Case Haunts Investigators, REDIFF, March 2, 2009, available at
http://www.rediff.com/news/2009/mar/02sister-abhaya-case-haunts-investigators.htm.
117
Sephy v. India (2009) 1 K.L.T. 126 -94, 95.
118
Court on its Own Motion v. Ravi (2009) 2 K.L.J. 166 ,3.
119
(2009) 2 K.L.J. 166,17-18.

pg. 43
CONCLUSION.

We know that freedom of press and media is not explicitly mentioned in the constitution of india .
As per article 19 (1) (a) all the people should have right to freedom of speech and expression and
it is here that this fundamental right is also applied to the media. However we also know that this
freedom is not absolute as its accountable to some restrictions.

INFORMATION TO INFOTAINMENT:
The electronic media has completely changed the scenario of reporting. We have 24X7
news channels reporting us every now and then. On one hand this visual form of
information is positive aspect but on other hand it its own demerits as well. The flip side is
that due to the nature of medium a lot that is broadcasted is often either biased or self
opinion base of representation. More of what is public interested in RATHER public
interest. One of the aspect of this is what is we call Media Trial.

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 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.

The right of the media to report important court processes and proceedings emanates from the
right of the citizens to know, to educate and to be educated about the truth. However, along with
this right also comes a great sense of duty, a duty thats implied by the Constitution. It is a duty to
report fairly, objectively and accurately. Any digression from this duty attracts restrictions and
limitations that protect the rights of individuals. This balance of rights and duties is implicit in the
Constitution itself. It seeks to protect veiled heroism on the face that may often be villainy at
heart.

pg. 44
Supreme Court of India, which has consistently expressed concern towards possible prejudice to a
party due to pre-judging of issues by the media. Particularly, in criminal cases, often, photographs
are shown on television, hypotheses made and comments generated, which, at times, seem to
point towards a particular person, who, it appears, has been assumed to be guilty. Till the trial has
concluded and judgment rendered, it is unfair for the media to present the guilt of the accused.
Such a biased approach is prone to cause harm to the concerned persons.

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 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
influence , henceforth 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.

Concluding , the present scenario I can say that media and its right to expression is definitely the
need of the hour for a country like india which is the largest democracy in the world but the rising
facets like sting operations, media trial & paid news not only hamper the social growth of our
society but also brings down the foundations of fair, reasonable and just legal system which has
taken years to get established in our country. Freedom of the media is thus a double edged
weapon; it can both help society, and also damage society. It is like a knife, which can be used for
cutting things, and also stabbing people. Hence freedom of the media cannot be regarded as
always good; it depends for what purpose it is being used.

Therefore separate guidelines shall be issued specific to working of media which shall make sure
the growing unreliable facets of media and their evil consequences are kept under control.

pg. 45
Henceforth there is an immediate need for media regulation and control to bring situation under
control and favor of just society.

BIBLIOGRAPHY:

BOOKS:
Law of the Press fifth edition 2010 by : Durga Das Basu.
Facets of media law by : Madhavi Goradia Divan
Constituinal law of india-fourth edition: H.M Servai
Constitution of India-14th edition : Durga Das Basu
Commentary on the Constituion of India : Arvind Datar

Articles:

Question of Public Accountability of the Media: An Analysis of Journalists

Perceptions by D V R Murthy . pdf

The Fourth K.S. Rajamony Memorial Public Law Lecture

on
The Constitution, the media and the Courts
(Kochi - August 9, 2008)
By Justice K.G. Balakrishnan, Chief Justice of India

Human Rights Perspective of Media trial by Furqan Ahmad . (pdf)

Sting Operation vis--vis Right to Privacy by Media :A legal analysis in

Indian Context
By Pravesh Dalei and Surendra Kumar Nirala
JUDICIAL SAFEGUARDS AGAINST TRIAL BY MEDIA:
SHOULD BLASIS CHECKING VALUE THEORY APPLY IN INDIA?

By :ARPAN BANERJEE

WEBSITES & Links :

Indian Kanoon
Lawlexis.com
Manupatra

: http://ssrn.com/abstract=1003644
http://www.rediff.com/news/2009/mar/02sister-abhaya-case-haunts-investigators.htm.
http://www.hindustantimes.com/rssfeed/newdelhi/Court-accepts-clean-chit-to-
Tytler/Article1-536579.aspx

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BLOG :
MEDIA NEED NOT REGULATE by Justice Markandey Katju.

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