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MEDIA TRIAL AND TRIBULATION OF

ADMINISTRATION OF JUSTICE

SUBMITTED BY
Ahsan Jameel

SUBMITTED UNDER THE GUIDANCE OF

Dr. Ghulam Yazdani

SEMINAR PAPER II
Faculty of Law,
Jamia Millia Islamia, New Delhi.
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Acknowledgement
I take this opportunity to express my profound gratitude and deep regards to my
mentor Dr. Ghulam Yazdani for his exemplary guidance, monitoring and constant
encouragement throughout the course of this research paper. I thank sir for his cordial
support and valuable information, which helped me in completing this task through
various stages.

I am obliged to staff members of Jamia Millia Islamia for the valuable information
provided by them in their respective fields. I am grateful for their cooperation during
the period of my assignment.

Last but not the least I thank my parents, my sister, and my friends for their constant
support and encouragement without which this assignment would not have been
possible.

Ahsan Jameel
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Synopsis
Prologue

The freedom of press has always been debated in a democratic nation. Indian is
world’s largest democracy and media is considered as the fourth estate of the
government after Executive, Legislature, and Judiciary. There is no specific provision
for the freedom of media and press in India constitution as such. But this right is
implied from the Right to Speech and Expression guaranteed under Article 19(1) (a).

Media has undergone from being a simple medium of communication to the public to
being a harbinger of change. It plays a vital role in moulding the opinion of the society
and it is capable of changing the whole viewpoint through which people perceive
various events. Heinous crimes must be condemned and the media would be justified
in calling for the perpetrators to be punished in accordance with the law.

However, the media cannot usurp the functions of the judiciary and deviate from
objective and unbiased reporting. Trial by media refers to pre trial exposure of a case
by the media through communication means like television, internet, and radio. While
a media shackled by government regulations is unhealthy for democracy, the
implications of continued unaccountability are even more damaging. Steps need to be
taken in order to prevent media trials from eroding the civil rights of citizens, whereby
the media have a clearer definition of their rights and duties, and the courts are given
the power to punish those who flagrantly disregard them.

Research Question

How trial by media amounts to travesty of justice and causes impediments in the
accepted judicious and fair investigation and trial?

Research Objectives

 To study the concept and legality of trial by media.

 To study the impact of trial by media on administration of justice.
 To study how media trial amounts to contempt of court.
 To critically analyse the 200th Law Commission Report on “Trial by Media:
Free Speech Vs. Fair Trial Under Criminal Procedure (Amendments to the
Contempt of Court Act, 1971)”.
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Research Methodology

The author has used Indian Law Institute (ILI) mode of citation throughout the paper.

Review of literature

With the augment of 24 hours news channels and scores of newspaper dailies, the
obsession with providing breaking news has reached new heights. The Indian judiciary
is under the media’s microscope. The Indian media has adorned the judge’s robe and
started conducting parallel trials - one outside the portals of courts, beyond the
shackles of procedure - in the public arena. This paper examines this phenomenon in
the context of Indian law and against the background of the certain high profile cases.
It attempts to show that instead of acting as a bulwark of democracy, contemporary
intrusive media reportage is derailing the judicial process in India.
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Table of Contents

1. Introduction .........................................................................................................................6
2. Trial by Media .....................................................................................................................8
3. Evolution of Media Trials .................................................................................................12
4. International Efforts to curb Trial by Media .....................................................................15
The Basic Principle ...............................................................................................................15
Restrictions ............................................................................................................................16
5. Legality of Trial by Media ................................................................................................18
Freedom of Speech and Expression ......................................................................................18
Immunity under the Contempt of Court Act, 1971.................................................................20
The public’s right to know .....................................................................................................21
Ineffective legal norms governing journalistic conduct ........................................................22
6. Media Activism .................................................................................................................25
7. Media Trials: A Necessary Evil? .......................................................................................27
8. Media Trial and Criminal Justice System..........................................................................30
Media and Right to Fair Trial ...............................................................................................30
Media Trial and the Right to be Legally Represented ...........................................................32
Media Trial and the Right to Privacy ....................................................................................33
Influence of Media Trial on Judges .......................................................................................36
9. Article 19 and Article(s) 14, 21: Balancing Rights of Free Speech and Due Process .......39
10. Media Trial and Contempt of Court ..............................................................................43
11. Law Commission Report on Trial by Media .................................................................47
12. Conclusion .....................................................................................................................50
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1. Introduction
India is world’s largest democracy. The Government of the Union of India constitutes
of four pillars. These are Executive, Legislature, Judiciary and the fourth estate. This
fourth estate is the media. The Indian Constitution does not contain any specific
provision for the freedom of media and press. The media derives its rights from the
right to freedom of speech and expression available to the citizens under Article 19(1)
(a) of the Indian Constitution1. Thus, the media has the same rights—no more, no less
than any individual to write, publish, circulate or broadcast. In a case that arose in pre-
independent India, the Privy Council held- “The freedom of the journalist is an
ordinary part of the freedom of the subject and to whether 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 position.”2

Although no special provision was made to safeguard the rights of the media, the
Hon’ble court has time and again confirmed that the rights of the press are implicit in
the guarantee of freedom of speech and expression under Article 19(1) (a) of the
Indian Constitution.

The Supreme Court in Romesh Thapper v. State of Madras3 stated that freedom of
speech and expression includes freedom of press. It stated “Turning now to the merits
there can be no doubt that freedom of speech and expression includes propagation of
ideas, and that freedom is enshrined by the freedom of circulation”.

At present, sec. 3(2) of the Contempt of Courts Act, 1971 grants full immunity to
publications even if they prejudicially interfere with the course of justice in a criminal
case, if by the date of publication, a charge sheet or challan is not filed or if summons
or warrant are not issued. Such publications would be contempt only if a criminal
proceeding is actually pending i.e., if charge sheet or challan is filed or summons or
warrant have been issued by the Court by the date of publication.

Media plays a vital role in moulding the opinion of the society and it is capable of
changing the whole viewpoint through which people perceive various events. The
media can be commended for starting a trend where it plays an active role in bringing

1
Article 19(1) (a) - Every citizen shall have the Right to Freedom of Speech and Expression.
2
Channing Arnold v. Emperor, AIR 1914 PC 116.
3
(1950) SCC 594.
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the accused to hook. Especially in the last two decades, the advent of cable television,
local radio networks, the internet and the social media has greatly enhanced the reach
and impact of the mass media. The circulation of newspapers and magazines in
English as well as the various vernacular languages has also been continuously
growing in our country. This ever-expanding readership and viewership coupled with
the use of modern technologies for newsgathering has given media organizations an
unprecedented role in shaping popular opinions. However, media freedom also entails
a certain degree of responsibility.
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2. Trial by Media
In India, the media has played a historical role in informing the public about social and
economic evils. The media have informed the public about the tremendous poverty in
the country, the suicide of farmers in various States, the so called honour killing in
many places by Khap Panchayats, corruption and so on. However, the media also have
a great responsibility to see that the news they present is accurate and serve the interest
of the people. If the media convey false news that may harm the reputation of a person
or a section of society, it may do great damage since reputation is a valuable asset for a
person. Even if the media subsequently corrects a statement, the damage done by it
may be irreparable. Hence, the media should take care and carefully investigate any
news item before reporting it.

Media comments on pending cases, especially on criminal cases involving life and
liberty of a citizen, are a delicate issue and should be carefully considered. Sometimes
it may become difficult for the judges not to get influenced by such news and thereby
deprive a citizen of this valuable right. Also, often the media publish correct news but
place too much emphasis on the frivolous news such as those concerning the activities
of the film stars, models, cricketers, and so on, while giving very little prominence to
much more important issues that are basically socio-economic in nature.4

It has been argued that it is pertinent to recognize the role of media vis- à-vis the
judiciary. George Gerbner states, “Popular entertainment and news via mass media
represent the convention cultural pressures of the social order. The judicial process,
however, represents an effort to adjudicate individual cases according to law.” Trial by
media revolves around the mantra ‘feed what the public is interested in’ and not ‘what
is in public interest’. The expression ‘trial-by-media’ describes 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.5

Trial by media emerged as a term of colloquial origin, indicating perhaps the media’s
assignment to itself the adjudicatory process. The media is often found publishing

4
Kauser Husain and Srishti Singh, Trial by Media: A Threat to the Administration of Justice, 3 SAJMS
198, available at: http://sajms.com/wp-content/uploads/2016/07/MEDIA_TRAIL (last visited on April
5, 2018).
5
Zehra Khan, Trial-By-Media: Derailing Judicial Process In India, 1 MLR 91 (2010), available at:
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010 (last visited on April 6, 2018).
 Page |9

opinion and spreading prejudice under the grab of ‘news’. Owing to the colloquial
origin of the term, there exists no comprehensive definition. The Hon’ble Supreme
Court has made an attempt in R.K Anand v. Registrar, Delhi High Court 6to define the
term in the following manner: “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. During high publicity court cases, the media are often
accused of provoking an atmosphere of public hysteria akin to a lynch mob which not
only makes a fair trial nearly impossible but means that, regardless of the result of the
trial, in public perception the accused is already held guilty and would not be able to
live the rest of their life without intense public scrutiny.” A trial by media amounts to
travesty of justice if it causes impediments in the accepted judicious and fair
investigation and trial.7

Excessive publicity in the media about a suspect or an accused before trial prejudices a
fair trial or results in characterizing him as a person who had indeed committed the
crime, amounting to undue interference with the “administration of justice”. Other
issues about the privacy rights of individuals or defendants may also arise. Public
figures, with slender rights against defamation are more in danger and more vulnerable
in the hands of the media.8

The UN Special Rapporteur on Freedom of Expression and Opinion received a

submission from the British Irish Watch (now known as Rights Watch UK) against a
very sustained attack by the press on Mrs. Bernadette and Mr. Michael McKevitt who
had been advocating national sovereignty for Ireland and who were claiming the Irish
people’s right to self-determination through a Committee. The media started linking
these two persons to the Omagh bombing of 15th August,1998 in which 29 people
were killed. The media attack started even before the police interrogated them. The
contents of the representation to the U.N. Rapporteur by the British Irish Watch quoted
below, fits well into what is happening with the media in our own country.

6
(2009) 8 SCC 106.
7
Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352.
8
Law Commission of India, 200th Report on Trial by Media: Free Speech and Fair Trial under Criminal
Procedure Code, 1973 (August 2006), available at: http://lawcommissionofindia.nic.in/reports/rep200.
(last visited on April 6, 2018).
 P a g e | 10

The representation stated: 9“Guilt by association is an invidious device. In the case of

Bernadette and Michael McKevitt, the media have created a situation where almost no
one in Ireland is prepared to countenance the possibility that they may be innocent,
notwithstanding the fact that neither of them has even been questioned by the police in
connection with the Omagh bombing. They have been demonized … such media
campaigns are self-defeating. If the media repeatedly accuses people of crimes without
producing any evidence against them, they create such certainty of their guilt in the
minds of the public that, if these persons are even actually charged and tried, they have
no hope of obtaining a fair trial. When such trials collapse, the victims of the crime are
left without redress. Equally, defendants may be acquitted but they have lost their
good name”.

Not only suspects and accused but victims and witnesses also suffer from excessive
publicity and invasion of their privacy rights. Police are presented in poor light by the
media and their morale too suffers. The day after the report of crime is published,
media says ‘Police have no cue’. Then, whatever gossip the media gathers about the
line of investigation by the official agencies, it gives such publicity in respect of the
information that the person who has indeed committed the crime, can move away to
safer places. The pressure on the police from media day by day builds up and reaches a
stage where police feel compelled to say something or the other in public to protect
their reputation.

The media also creates other problems for witnesses. If the identity of witnesses is
published, there is danger of the witnesses coming under pressure both from the
accused or his associates as well as from the police. At the earliest stage, the witnesses
want to retract and get out of the muddle. Witness protection is then a serious casualty.
This leads to the question about the admissibility of hostile witness evidence and
whether the law should be amended to prevent witnesses changing their statements.
Again, if the suspect’s pictures are shown in the media, problems can arise during

9
Rights Watch UK, Submission to UN Human Rights Committee Concerning UK’s Compliance with
the Intl. Covenant on Civil & Political Rights: June 2001, available at:
http://www.rwuk.org/advocacy/submission-to-the-united-nations-human-rights-committee-concerning-
the-uks-compliance-with-the-international-covenant-on-civil-political-rights/ (last visited on April 6,
2018).
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‘identification parades’ conducted under the Code of Criminal Procedure for

identifying the accused.10

10
Law Commission of India, 200th Report on Trial by Media: Free Speech and Fair Trial under
Criminal Procedure Code, 1973 (August 2006), available at:
http://lawcommissionofindia.nic.in/reports/rep200. (last visited on April 7, 2018).
 P a g e | 12

3. Evolution of Media Trials

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

One of the first celebrities in the 20th century to be arguably tried by media was
Roscoe ‘Fatty’ Arbuckle who was acquitted by the courts but nevertheless lost his
career and reputation due to the media coverage. The connection is less about guilt or
innocence but about the promotion of the media coverage in the public mind above the
status of the court.

Another interesting case in the US was the Rodney King incident and subsequent trial
of the police officers involved. Once again an acquittal is challenged by the media
reporting with violent consequences. The case is historically important due to the fact
that it was amateur video footage which provided the key evidence of perceived guilt.
As video cameras and their digital successors and CCTV become wider spread, this
type of ‘caught on camera’ incident become more and more common. This can pose
real problems for the legal system as the evidence they provide may be inadmissible
for technical reasons (e.g. not being able to pinpoint exact times) but they give very
strong images for the media (and public) to seize upon and the potential to manipulate
by editing.

Even where a criminal court finds somebody guilty the media can still appear to sit in
judgement over their sentence. Examples include Myra Hindley whose proposed
release from prison after thirty years was widely condemned by the British press (the
argument became moot when she died in 2002); Maxine Carr who, having served her
sentence, has been released and is, according to some commentators being “demonised
by the press”. One case popularized by the media between 1980 and 1982 was the
murder trial of Lindy Chamberlain in Australia who was, but later released in 1986 on
new evidence showing that a dingo had in fact committed the act as was originally
claimed by Chamberlain. The motion picture A Cry in the Dark depicted Chamberlain,
 P a g e | 13

as played by actress Meryl Streep, caught in a “trial by media” which fed the public’s,
and subsequently the jury’s false conviction of her.

The responsibility of the press to confirm reports and leaks about individuals being
tried has come under increasing scrutiny and journalists are calling for higher
standards. There was much debate over U.S President Bill Clinton’s impeachment trial
and prosecutor Kenneth Starr’s investigation and how the media handled the trial by
reporting commentary from lawyers which influenced public opinion. Another
example was the investigation into biologist Steven Hatfill allegedly sending anthrax
through the U.S. mail as a terrorist attack, which resulted in no conviction, but Hatfill
went on to sue as his reputation was severely tarnished and career destroyed.

Families and friends of persons convicted of crimes have apparently successfully used
the power of the media to reopen cases, such as the Stephen Downing case in
Derbyshire where a campaign by a local newspaper editor resulted in a successful
appeal and his release after twenty seven years in prison.11

In the recent past, in India too, trial by media has assumed significant proportions.
Some famous cases that would have gone unpunished but for the intervention of media
are Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara case to name a few.

However, in the present era of 24X7 news cycles that feed the ratings-driven
economics of commercial TV channels, the more easily a polarizing opinion can be
captured in a #hashtag, the greater its likelihood of spinning into the gargantuan
numbers that drive the new media politics of news production and dissemination.

This is especially the case now as news channels compete for eyes, social media
shares, and engagement, the buzzwords for measurement of news value in the new
media environment. The heat index of a media story is proportionate to the amount
of controversy it whips up, capturing the buzz for the next spin cycle.

Engagement is the new buzzword in the 24/7 mediascape, captured in public call-
ins, comments, and tweets that are livecast on the show.

In this media frenzy for numbers, ratings, and engagement, media trials have
emerged in India as a salient genre for driving public discourse. This genre of media
trials depends on the powerful role of news anchors in shaping the conversation,
11
Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, November 13, 2015,
available at: https://www.lawctopus.com/academike/media-trials-india/ (last visited on April 4, 2018).
 P a g e | 14

replete with #hashtags and subtitles. Fashioned as reality shows, the trials are
replete with multiple screens, multiple camera angles, comments screens, and
floating headlines.

The genre looks somewhat like this, with some variances in format and modality:
The news anchor introduces a topic of debate, identifies the problem, and holds a
trial with pundits offering different views around the trial. At the heart of the media
trial format is an issue or an individual that is being tried.

The more controversial the topic of a trial, the greater its heat index. The
performance of the news anchor in this genre depends upon his/her mastery at
whipping up the story, making up the controversy and spinning it to cater to public
emotions. The power of media trials as a genre to speak to public emotions also
limits the possibilities of debate, argumentation, and dialogue. Small snippets of
conversations, eked out from broader events, are framed and flashed onto the
screen, anchoring the shouting matches that build around them. The conclusions of
these trials are foreclosed, the judgment already having been decided upon even
before the trial is set in motion. In this sense then, media trials in 24X7 new media
cycles are staged performances, tied to sentiment analysis, audience moods, and
market assessment of ratings. 12

It seems that media has now reincarnated itself into a ‘public court’ and has started
interfering into court proceedings.

12
Mohan J Dutta, Frenzied Media Trials Are All About Audience Numbers, The Wire, February 8,
2016, available at: https://thewire.in/media/frenzied-media-trials-are-all-about-audience-numbers (last
visited on April 8, 2018)
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4. International Efforts to curb Trial by Media

In 1994, a group of 39 distinguished legal experts and media representatives, convened
by the International Commission of Jurists, its Centre for the Independence of Judges
and Lawyers, and the Spanish Committee of UNICEF, met for three days in Madrid,
Spain. The objectives of the meeting were: to examine the relationship between the
media and judicial independence and to formulate principles to help the media and the
judiciary develop a relationship that serves both freedom of the expression and the
judicial independence. The participants came from Brazil, Sri Lanka, United
Kingdom, Sweden, Jordan, Australia, Ghana, France, India, Spain, Germany, Austria,
Netherlands, Norway, Poland, Portugal, Switzerland, Senegal, Palestine, Bulgaria,
Croatia, and Slovakia. The following are the principles drawn up at the meet:

1. The Madrid Principles on the Relationship between the Media and Judicial
Independence.
2. Freedom of the media, which is an integral part of freedom of expression, is
essential in a democratic society. It is the responsibility of judges to recognise and give
effect to freedom of the media by applying a basic presumption in their favour and by
permitting only such restrictions on freedom of the media as are authorised by the
International Covenant in Civil and Political Rights ("International Covenant") and are
specified in precise laws.
3. The media have an obligation to respect the rights of individuals, protected by
the International Covenant, and the independence of the judiciary.

These principles are drafted as minimum standards and may not be used to detract
from existing higher standards of protection of the freedom of expression.13

The Basic Principle

1. Freedom of expression (including freedom of the media) constitutes one of the

essential foundations of every society which claims to be democratic. It is the
function and right of the media to gather and convey information to the public
and to comment on the administration of justice, including cases before, during
and after trial, without violating the presumption of innocence.

13
G.N. Ray, Tabloidization and Page 3 Syndrome: Unethical Practices in Media, 1 MLR 4 (2010),
available at: https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010 (last visited on
April 5, 2018).
 P a g e | 16

2. This principle can only be departed from in the circumstances envisaged in the
International Covenant in Civil and Political Rights, as interpreted by the 1984
Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights.14
3. The right to comment on the administration of justice shall not be subject to
any special restrictions.
4. The basic principle does not exclude the preservation by law of secrecy during
the investigation of crime even where investigation forms part of the judicial
process. Secrecy in such circumstances must be regarded as being mainly for
the benefit of persons who are suspected or accused and to preserve the
presumption of innocence. It shall not restrict the right of any such person to
communicate information to the Press about the investigation of the
circumstances being investigated.
5. The basic principle does not exclude the holding in camera of proceedings
intended to achieve conciliation or settlement of private cause.
6. The basic principle does not require a right to broadcast live or recorded court
proceedings. Where this is permitted, the basic principle shall remain
applicable.

Restrictions

7. Any restriction to the basic principle must be strictly prescribed by law. Where
any such law confers a discretion or power, that discretion or power must be
exercised only by a judge.
8. Where a judge has the power to restrict the basic principle and is contemplating
the exercise of that power, the media (as well as any other person affected)
shall have the right to be heard for the purpose of objecting to the exercise of
that power and, if exercised, a right of appeal.
9. Laws may authorise restrictions of the basic principle to that extent necessary
in a democratic society for the protection of the minors and of members of
other groups in need of special protection.
10. Laws may restrict the basic principle in relation to criminal proceedings in the
interest of the administration of justice to the extent necessary in a democratic
society for the prevention of serious prejudice to a defendant, and for the
14
UN Document E/CN.4/1984/4.
 P a g e | 17

prevention of serious harm to or improper pressure being placed upon a

witness, a member of a jury, or a victim.
11. Where a restriction of the basic principle is sought on the ground of national
security, this should not jeopardise the right of the parties, including the rights
of the defence. The defence and the media shall have the right, to the greatest
extent possible, to know the grounds on which the restriction is sought
(subject, if necessary, to a duty of confidentiality if the restriction is imposed)
and shall have the right to contest this restriction.
12. In civil proceedings, restrictions of the basic principle may be imposed if
authorised by law to the extent necessary in a democratic society to prevent
serious harm to the legitimate interest of a private party.
13. No restriction shall be imposed in any arbitrary or discriminatory manner.
14. No restriction shall be imposed except strictly to the minimum extent and for
the minimum time necessary to achieve its purpose, and no restriction shall be
imposed if a more limited restriction would be likely to achieve that purpose.
The burden of proof shall rest on the party requesting the restriction.
 P a g e | 18

5. Legality of Trial by Media

Freedom of Speech and Expression

The Constitution of India does not separately refer to the freedom of the press or of the
electronic media as a fundamental right in Part III but through various judicial
pronouncements these rights are said to be treated as part of the ‘Freedom of speech
and expression’ guaranteed by Article 19 (1)(a) of the Indian constitution. The
guarantee is subject to ‘reasonable restrictions’ which can be made by legislation to
the extent permitted by Article 19(2).

The print media and the broadcast media has taken the responsibility to inform the
public about the functioning of the elected government. This includes all other matters
in which public have a right to know. Right to discussion and criticize forms an active
part of this right. In Romesh Thappar v. State of Madras15 , the Supreme Court has
included press in the definition of freedom of speech or expression.

Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers

(Bombay) (P) Ltd. v. Union of India16 has stated: “[f]reedom of press is the heart of
social and political intercourse. The press has now assumed the role of the public
educator making formal and non-formal education possible in a large scale particularly
in the developing world, where television and other kinds of modern communication
are not still available for all sections of society. The purpose of the press is to advance
the public interest by publishing facts and opinions without which a democratic
electorate [Government] cannot make responsible judgments. Newspapers being
purveyors of news and views having a bearing on public administration very often
carry material which would not be palatable to Governments and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of press is
essential for the proper functioning of the democratic process. Democracy means
Government of the people, by the people and for the people; it is obvious that every
citizen must be entitled to participate in the democratic process and in order to enable
him to intelligently exercise his right of making a choice, free and general discussion

15
(1950) SCR 594.
16
(1985) 1 SCC 641.
 P a g e | 19

of public matters is absolutely essential.17 This explains the constitutional viewpoint of

the freedom of press in India.

In Printers (Mysore) Ltd. v. CTO18 the Supreme Court reiterated that though freedom
of the press is not expressly guaranteed as a fundamental right, it is implicit in the
freedom of speech and expression. Freedom of the press has always been a cherished
right in all democratic countries.

Freedom of press therefore received a generous support from all those who believe in
the free flow of the information and participation of the people in the administration.
All national courts have a primary duty to uphold this freedom and invalidate all laws
or administrative actions which interfere with this freedom, as contrary to the
constitutional mandate.19

In R. Rajagopal v. State of T.N.20 the Supreme Court of India has held that freedom of
the press extends to engaging in uninhibited debate about the involvement of public
figures in public issues and events.

In L.I.C. v. Manubhai Shah21 , the Supreme Court reiterated that freedom to circulate
ones views can be by word of mouth or in writing or through audio-visual media. This
right to circulate also includes the right to determine the volume of circulation22.

The press enjoys the privilege of sitting in the Courts on behalf of the general public to
keep them informed on matters of public importance. The journalist therefore may
attend proceedings in Court and publish fair reports. This right is available in respect
of Judicial and Quasi-Judicial tribunals23. However this is not an absolute right. There
are also other important considerations, for instance the reporting of names of rape
victims, children, juvenile, woman is prohibited. This restriction is placed because of
their weak position in the society that makes them vulnerable to exploitation.
Therefore in the interests of justice, the court may restrict the publicity of Court

17
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
18
(1994) 2 SCC 434.
19
Indian Express Newspapers (Bombay) (P) Ltd. V. Union of India, (1985) 1 SCC 641.
20
(1994) 6 SCC 632.
21
(1992) 3 SCC 637.
22
Sakal Papers v. Union of India, AIR 1962 SC 305.
23
Saroj Iyer v. Maharashtra Medical (Council) of Indian Medicine, AIR 2002 Bom .95.
 P a g e | 20

proceedings24. The court can order a trial to be held in camera exercising its inherent
power under sec. 151 of the Civil Procedure Code, 1908.

A democratic society necessitates that the public shall be a part of the discussions on
policy matters. They need to know the details of debates, as transparency in
governance is a must for the proper functioning of a democratic society. The press
therefore also enjoys the right to report legislative proceedings. This right of the press
to true reporting of parliamentary proceedings is protected by the Constitution25. It
also gives protection to true reporting of the proceedings of State Assemblies. A
similar protection is provided in the Parliamentary Proceedings (Protection of
Publication) Act, 1977.

Immunity under the Contempt of Court Act, 1971

Under the Contempt of Court Act, 1971, pre-trial publications are sheltered against
contempt proceedings. Any publication that interferes with or obstructs or tends to
obstruct, the course of justice in connection with any civil or criminal proceeding,
which is actually ‘pending’, only then it constitutes contempt of court under the Act.
Under Section 3(2), sub clause (B) of clause (a) of Explanation, ‘pending’ has been
defined as “In the case of a criminal proceeding, under the Code of Criminal
Procedure, 1898 (5 of 1898) or any other law – (i) where it relates to the commission
of an offence, when the charge-sheet or challan is filed; or when the court issues
summons or warrant, as the case may be, against the accused.”

Certain publications in the media at the pre-trial stage, can affect the rights of the
accused for a fair trial. Such publications may relate to previous convictions of the
accused, or about his general character or about his alleged confessions to the police.
Under the existing framework of the Contempt of Court Act, 1971, media reportage,
as seen during the Aarushi Talwar case, where the press, had literally gone berserk,
speculating and pointing fingers even before any arrests were made, is granted

24
Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
25
Article 361-A of the Constitution of India: (1) No person shall be liable to any proceedings, civil or
criminal, in any Court in respect of the publication in a newspaper of a substantially true report of any
proceedings of either House of Parliament or the Legislative Assembly or as the case maybe, either
House of the Legislature of a state, unless the publication is proved to have been made with malice.
(2) Clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as
part of any programme or service provided by means of a broadcasting station as it applies in relation to
reports or matters published in a newspaper. Explanation: In this article newspaper includes a news
agency report containing material for publication in a newspaper.
 P a g e | 21

immunity despite the grave threat such publications pose to the administration of
justice. Such publications may go unchecked if there is no legislative intervention, by
way of redefining the word ‘pending’ to expand to include ‘from the time the arrest is
made’ in the Contempt of Court Act, 1971. This was recommended by the Law
Commission in its 200th report.

It is because of such loopholes that the press has a free hand in printing colourful
stories without any fear of consequences. Like a parasite, it hosts itself on the atrocity
of the crime and public outrage devoid of any accountability.26

The public’s right to know

The Supreme Court has expounded that the fundamental principle behind the freedom
of press is people’s right to know.27 Elaborating, the Supreme Court opined, “The
primary function, therefore, of the press is to provide comprehensive and objective
information of all aspects of the country’s political, social, economic and cultural life.
It has an educative and mobilising role to play. It plays an important role in moulding
public opinion”.28

However, K G Balakrishnan, the then Chief Justice of India has remarked, “freedom
of press means people’s right to know the correct news”, but he admitted that
newspapers cannot read like an official gazette and must have a tinge of
“sensationalism, entertainment and anxiety”.29 In the Bofors Case30, the Supreme
Court recounted the merits of media publicity: “those who know about the incident
may come forward with information, it prevents perjury by placing witnesses under
public gaze and it reduces crime through the public expression of disapproval for
crime and last but not the least it promotes the public discussion of important issues.”
Two important core elements of investigative journalism envisage that (a) the subject

26
Zehra Khan, Trial-By-Media: Derailing Judicial Process In India, 1 MLR 93 (2010), available at:
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010. (last visited on April 8, 2018).
27
A.G. v. Times Newspaper, (1973) 3 All ER 54.
28
In Re: Vijay Kumar, (1996) 6 SCC 466.
29
Media must not run parallel trials: CJI, October 20, 2008, available at:
https://timesofindia.indiatimes.com/city/mumbai/Media-must-not-run-parallel-trials-
CJI/articleshow/3616198.cms (last visited on April 4, 2018).
30
Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693.
 P a g e | 22

should be of public importance for the reader to know and (b) an attempt is being
made to hide the truth from the people.31

Public participation

Some scholars justify a ‘trail-by-media’ by proposing that the mob mentality exists
independently of the media which merely voices the opinions which the public already
has.32 In a democracy, transparency is integral. Without a free press, we will regress
into the dark ages of the Star Chambers, when the judicial proceedings were conducted
secretively. All these omnipresent SMS campaigns and public polls only provide a
platform to the public to express its views. It is generating public dialogue regarding
issues of public importance.33 Stifling this voice will amount to stifling democracy.

Quoting Jeremy Bentham, on secrecy in the administration of justice, “In the darkness
of secrecy, sinister interest and evil in every shape are in full swing. Only in
proportion as publicity has place can any of the checks applicable to judicial injustice
operate. Where there is no publicity, there is no justice. Publicity is the very soul of
justice. It is the keenest spur to exertion and the surest of all guards against improbity.
It keeps the judge himself while trying under trial.”34

Ineffective legal norms governing journalistic conduct

Under the Press Council Act, 1978, the Press Council of India is established, with the
objectives to “preserve the freedom of the Press and to maintain and improve the
standards of newspapers and news agencies in India”35. To achieve these objectives, it
must “ensure on the part of newspapers, news agencies and journalists, the
maintenance of high standards of public taste, and foster a due sense of both the rights
and responsibilities of citizenship”36 and “encourage the growth of a sense of

31
G.N. Ray, “Should there be a Lakshman Rekha for the Press”, available at:
http://presscouncil.nic.in/speech7.htm (last visited on April 8, 2018).
32
Navajyoti Samanta, “Trial by Media-Jessica Lall Case”, available at:
http://ssrn.com/abstract=1003644. (last visited on April 2, 2018).
33
Prabhsahay Kaur, “Freedom of Press vis-à-vis Responsible Journalism”, available at:
www.legalserviceindia.com /articles/fre_pre_v.htm (last visited on April 2, 2018).
34
K.G. Balakrishnan, The Constitution, The Media and the Courts, The Fourth K.S. Rajamony
Memorial Public Law Lecture, Kerala, available at: www.supremecourtofindia.nic.in/new_links/
9%5B1%5D.8.08.rajamony.pdf (last visited on April 2, 2018).
35
Press Council Act, 1978, Section 13(1).
36
Press Council Act, 1978, Section 13(2) (c).
 P a g e | 23

responsibility and public service among all those engaged in the profession of
journalism”37.

The Council, also, enjoys powers to censure. If someone believes that a news agency
has committed any professional misconduct, the Council can, if they agree with the
complainant, “warn, admonish or censure the newspaper”, or direct the newspaper to,
“publish the contradiction of the complainant in its forthcoming issue” under Section
14(1) of the Press Council Act, 1978.38 Given that these measures can only be
enforced after the publication of news materials, and do not involve particularly harsh
punishments, their effectiveness in preventing the publication of prejudicial reports
appears to be limited.

In Ajay Goswami v. Union of India39, the shortcomings of the powers of the Press
Council were highlighted “Section 14 of the Press Council Act, 1978 empowers the
Press Council only to warn, admonish or censure newspapers or news agencies and
that it has no jurisdiction over the electronic media and that the Press Council enjoys
only the authority of declaratory adjudication with its power limited to giving
directions to the answering respondents arraigned before it to publish particulars
relating to its enquiry and adjudication. It, however, has no further authority to ensure
that its directions are complied with and its observations implemented by the erring
parties. Lack of punitive powers with the Press Council of India has tied its hands in
exercising control over the erring publications.”

Along with these powers, the Press Council of India has established a set of suggested
norms for journalistic conduct. These norms emphasize the importance of accuracy
and fairness and encourage the press to “eschew publication of inaccurate, baseless,
graceless, misleading or distorted material.” The norms urge that any criticism of the
judiciary should be published with great caution. These norms further recommend that
reporters should avoid one-sided inferences, and attempt to maintain an impartial and

37
Press Council Act, 1978, Section 13(2) (d).
38
Section 14(1) of the Press Council Act, 1978, states: “Where, on receipt of a complaint made to it or
otherwise, the Council has reason to believe that a newspaper or news agency has offended against the
standards of journalistic ethics or public taste or that an editor or working journalist has committed any
professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or
journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided
by regulations made under this Act and, if it is satisfied that it is necessary so to do, it may, for reasons
to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the
journalist or disapprove the conduct of the editor or the journalist, as the case may be”.
39
(2007) 1 SCC 143.
 P a g e | 24

sober tone at all times. But significantly, these norms cannot be legally enforced, and
are largely observed in breach. Lastly, the PCI also has criminal contempt powers to
restrict the publication of prejudicial media reports. However, the PCI can only
exercise its contempt powers with respect to pending civil or criminal cases. This
limitation does not consider the extent to which pre-trial reporting can impact the
administration of justice.
 P a g e | 25

6. Media Activism
Justice Katju and P. Sainath have attacked the media for focusing attention on “non-
issues” and “trying to divert attention of the people from the real issues to non-
issues”40 and “stifling of smaller voices”.41 Who will watch the watchdog as it
abdicates its role as an educator in favour of being an entertainer?42 A line between
informing and entertaining must be drawn.43 Due to extensive media propaganda,
justice and rule of law are no longer about the process but the outcome.

Public opinion exercises an indirect influence over the criminal justice system.
“Justice should not only be done, it should manifestly and undoubtedly be seen to be
done”44. Scrutiny by the media may give rise to psychological pressures and could
possibly taint verdicts to conform to public opinion rather than the evidence offered at
trial.45 Justice Bilal Nazki said that the credibility of a judge is at stake when a trial by
media declares a person guilty but the judge gives a differing opinion based on facts.

In Labour Liberation Front v. State of Andhra Pradesh46, the High Court of Andhra
Pradesh indicated the abyssal levels, to which the norms of journalism have drifted.
Justice L. Narasimha Reddy frowning upon the practice of ‘trial by media’ stated:
“…the freedom of the prosecuting agency, and that of the Courts, to deal with the
cases before them freely and objectively, is substantially eroded, on account of the
overactive or proactive stances taken in the presentations made by the print and
electronic media. Once an incident involving prominent person or institution takes

40
Markandey Katju, “Ideal and reality: Media’s role in India”, The Hindu, Aug. 19, 2008, available at:
http://www.thehindu.com/todays-paper/tp-opinion/Ideal-and-reality-mediarsquos-role-in-
India/article15284884.ece (last visited on April 5, 2018)
41
P. Sainath, “Lost the Compass?” Outlook India, Oct. 17, 2005, available at:
https://www.outlookindia.com/magazine/story/lost-the-compass/228938 (last visited on April 5, 2018).
42
Ramachandra Guha, “Watching the Watchdog-Time for the press to look within”, The Telegraph,
May 10, 2008, available at: https://www.telegraphindia.com/1080510/jsp/opinion/story_9244220.jsp
(last visited on April 6, 2018).
43
Nancy L. Trueblood, “Curbing The Media: Should Reporters Pay When Police Rides Along Violate
Privacy?”, 84 Marq. L. Rev. 541 (2000), available at:
http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1353&context=mulr (last visited on
April 8, 2018).
44
R v. Sussex Justices: Ex parte McCarthy, 1924(1) KB 256.
45
Breheny, Brian V. and Kelly, Elizabeth M., "Maintaining Impartiality: Does Media Coverage of
Trials Need to Be Curtailed?”,10 Journal of Civil Rights and Economic Development 383 (1995),
available at: http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1416&context=jcred (last
visited on April 6, 2018).
46
2005 (1) ALD 740.
 P a g e | 26

place, the media is swinging into action and virtually leaving very little for the
prosecution or the Courts to examine the matter. Recently, it has assumed dangerous
proportions, to the extent of intruding into the very privacy of individuals. Gross
misuse of technological advancements, and the unhealthy competition in the field of
journalism resulted in obliteration of norms or commitment to the noble profession.
The freedom of speech and expression which is the bed rock of journalism, is
subjected to gross misuse. It must not be forgotten that only those who maintain
restraint can exercise rights and freedoms effectively.”
 P a g e | 27

7. Media Trials: A Necessary Evil?

We have a rich tradition of fiercely independent journalism. In fact, most of 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 place of our
political juncture. There is increasing and intense public focus on Courts and the cases
filed therein. Now that the Courts have come under the media’s microscope, they are
likely to remain there forever. 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. 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. Another major
constraint on stings and trials by media is the public interest. If public interest is
missing and self or manipulative interests surface, the media loses its ground and
invites the wrath of the court.47

The power of press can also be understood in the basis of how the people respond and
react to the news. In few cases media has been quite powerful in forming public
opinion. Jessica Lal and Priyadarshini Mattoo cases are the positive example of role of
media in order to meet with ends of justice. There was widespread outrage and protests
after both the murder cases were reported. People had realized that justice had been
denied and it was necessary to protest and speak aloud. Both the cases involved high-
profile people and this fact made the people all the more interested and aware of the
proceedings of the cases. We see that media interference helped in the rightful and

47
Trial by Media: Looking beyond the pale of legality, July 12, 2011, available at:
http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-by-media-looking-
beyond-the-pale-of-legality-.html (last visited on April 11, 2018).
 P a g e | 28

proper closure of the case. The two murder cases are classic examples of reactive and
responsible journalism which helped citizens get their right.

Jessica Lal Murder case is one of the best examples of how investigative journalism, if
done right can change the whole case. The incident took place on the night of April 29,
1999 during a party thrown by one of the high profile socialite, Bina Ramani at
Tamarind Court where the model Jessica Lal used to work as a bartender. The night
concluded with an intoxicated Sidharth Vashisht better known as Manu Sharma
shooting Jessica Lal at point blank range as she refused to serve him a during after the
closing hours. The important fact which could not be ignored here in this case was that
Manu Sharma was the son of Vinod Sharma, a prominent Congress leader in
Haryana.48

The murder was a high profile murder case which involved some influential people as
well. But the sad part of the case was that all the witnesses were influenced by the
father of Manu Sharma and a total of 32 witnesses became hostile. Manu Sharma
requested to the court that someone from his family was ailing and after coming out
form the jail he was seen partying in a night club in Delhi. The case was considered
close as per the conclusion of judicial process and passing of a verdict. However, this
thing did not seem to agree with the public. The public decided to use the pull of
media to express their dissatisfaction with the verdict. There were protests in every
part of the country and media acted like the most indispensible mouth piece to carry
the momentum which changed the waves of injustice happened in the Jessica Lal case.

The drastic effect of media intervention led to pressuring the reopening of the case.
Subsequently the case was reopened and the verdict was reversed with Manu Sharma
being convicted for the murder of Jessica Lal. The whole case was driven by the media
and had it not been for them, Jessica Lal’s plea for justice would have gone unnoticed.
It stands as an example of media intervention bringing about a positive impact.

The case of S.K. Singh vs. State through CBI49 popularly known as the Priyadarshani
Matto murder case was similar to the Jessica Lal murder case. The case started with

48
Kathakali Nandi, Investigative Role of Media: Responsibility To The Society, Global Media Journal
– Indian Edition/ Summer Issue (June 2011), p1, available at:
http://connection.ebscohost.com/c/articles/71947182/investigative-role-media-responsibility-society,
(last visited on April 6, 2018).
49
Santosh Kumar Singh v. State through the CBI, Criminal Appeal No. 87 of 2007, Supreme Court of
India.
 P a g e | 29

Santosh Kumar harassing and following a 25 year old law student. Even after regular
filing of complaints against him, no strict action was taken against him as his father
was soon to be Additional Commissioner of Police in Delhi. Not being held for
stalking or harassment, Santosh Kumar entered the house of Priyadarshini and brutally
murdered her after raping her. The accused was earlier acquitted by the trial court.

The whole case took place at the time when an order for acquittal had been passed for
the Jessica Lal Murder case. At that point of time, the public outrage was at its peak
and media decided to intervene to settle the matter. In the midst of all this, CBI
appealed against the verdict and the case was reopened. The judgement delivered by
the trial court was revered and the Delhi High Court found Santosh Kumar guilty and
sentenced him to death. The High Court decision was widely perceived in India as a
landmark reversal.

In State of Maharashtra v. Rajendra Jawanmal Gandhi50 Supreme Court held that a

trial by press, electronic media or by way of a public agitation is the very anti-thesis of
rule of law and can lead to miscarriage of justice. A Judge is to guard himself against
such pressure.

In Anukul Chandra Pradhan v. Union of India51, the Supreme Court observed that “No
occasion should arise for an impression that the publicity attached to the hawala
transactions has tended to dilute the emphasis on the essentials of a fair trial and the
basic principles of jurisprudence including the presumption of innocence of the
accused unless found guilty at the end of the trial”.

In Saibal v. B.K. Sen52 it is said by apex court that “It would be mischievous for a
newspaper to systematically conduct an independent investigation into a crime for
which a man has been arrested and to publish the results of the investigation. This is
because, trial by newspapers, when a trial by one of the regular tribunal is going on,
must be prevented.

50
(1997) 8 SCC 386.
51
(1996)6 SCC 354.
52
AIR 1961 SC 633.
 P a g e | 30

8. Media Trial and Criminal Justice System

According to our law, a suspect/accused is entitled to a fair procedure and is presumed
to be innocent till proved guilty in a Court of law. None can be allowed to prejudge or
prejudice his case by the time it goes to trial. There is today a feeling that in view of
the extensive use of the television and cable services, the whole pattern of publication
of news has changed and several such publications are likely to have prejudicial
impact on the suspects, accused, witnesses and even judges and in general, on the
administration of justice.

Media and Right to Fair Trial

The Right to Fair Trial flows from the wider sense of the Right to Life and Personal
Liberty and is an integral part of the criminal judicial system in India. The Right to
Fair Trial covers many other rights that include the right to be presumed innocent
unless proved guilty, not being compelled to be a witness against oneself and the
doctrine of Double Jeopardy, and this right is no less important than the other six
Fundamental Rights. Therefore, the Right to a fair trial is an absolute right of every
individual within the territory of India vide Articles 14, 20, 21 and 22 of the
Constitution of India. The prominent status of the Article 20, that is, Right to
Protection in respect of conviction for offences, and Article 21, can be understood
from the fact that these crucial rights cannot be suspended even during an
Emergency.53

In the specific case of Zahira Habibullah Sheikh v. State of Gujarat54, the Supreme
Court explained that a “Fair trial would obviously 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.”

In context to the aforementioned principle of ‘Fair Trial’, the provision of the ‘24
Hour Rule’ mentioned under Article 22(2) of the Indian Constitution is of great
relevance. It states that every person who is arrested and detained in custody shall be
produced, within 24 hours, to the nearest Magistrate. The arrest of the accused is fixed
in the beginning itself. This is because ifa ny media publication is made after the

53
Gisborne Herald Co. Ltd. v. Solicitor General, 1995 (3) NZLR 563 (CA).
54
Zahira Habibullah Sheikh v. State of Gujarat (2004) 4 SCC 158.
 P a g e | 31

arrest, pertaining to the person’s character, his previous convictions or his confessions
(if any), the person’s case will be prejudiced. It will be discriminatory even in the bail
proceedings when issues arise as to whether bail is to be granted or rejected, or as to
what conditions are to be imposed and whether there is a need for police or judicial
remand. Such publications may also affect the subsequent trial that takes place. This
point of view was broadly emphasized by the Supreme Court in Maneka Gandhi v.
Union of India.55It was stated that so far as liberty is referred to in Art. 21,the
‘procedure established by law’ in Art. 21 must be a fair, just and done by a reasonable
procedure.

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. Also, 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. Even if
they are acquitted by the court on the grounds of proof beyond reasonable doubt, they
cannot resurrect their previous image. Such kind of exposure provided to them is
likely to jeopardize all these cherished rights accompanying liberty.

55
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
 P a g e | 32

Media Trial and the Right to be Legally Represented

Another perturbing consequence of media trial that goes unmarked is the enormous
amount of pressure put on the lawyers to not take up the case of the accused, thus
forcing these accused to go to trial without any defence. This is in complete violation
of the Principles of Natural Justice. Every person has a right to be legally represented
by a lawyer of his choice and, through the same, put his point before the adjudicating
court and no one can debar him from doing so. Once the lawyer decides to advocate
the trial for the accused, especially in a sensational case, the pressure on the lawyer
only multiplies, he has to take the plunge with his reputation. In an interesting case,
the media was questioning the morality of celebrated senior lawyer Mr. Ram
Jethmalani in having accepted the brief and for having appeared for accused Manu
Sharma in Jessica Lal Case, clearly failing to understand its own role and that of other
stake holders in criminal justice system. 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. As a result of this, one of the most celebrated lawyer of the country Mr.
Gopal Subramaniam appeared on behalf of the state and the case from Manu Sharma’s
side was handed over to a mediocre lawyer. Have we lost all faith in the judiciary that
we dread the thought of giving equal opportunity to defend? During the 26/11 trial,
Abbas Kazmi, the lawyer of Ajmal Kasab, who was the main suspect in the case, said
that he was deeply hurt and distressed with the harassment meted out to him, by the
media (largely) and the Public Prosecutor. The media and the prosecutor foregrounded
the fact that Mr. Kazmi and the accused belonged to the same religious sect, and made
it work in their benefit by calling him a “Terrorist Lawyer” and equating him to the
main conspirators in the case.

Another example of this would be the serial-killings in Noida. Due to extensive media
coverage of police investigations, the owner of the house where the corpses were
found, Mohinder Singh Pandher, and his domestic help Surendra Kohli, the prime
suspects of having committed these crimes bore the brunt of sensational journalism.
Influenced by media coverage, much of it proclaiming that the two men had already
confessed to the killings, the local Bar Association announced that it had decided that
 P a g e | 33

no advocate from Noida would defend Pandher and Kohli in court.56 The media
forgets that right to have a lawyer of one’s choice is a fundamental right under the
Indian Constitution.57

Media Trial and the Right to Privacy

Article 12 of Universal Declaration of Human Right enunciates, “No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence or
to attacks upon his honour and reputation. Everyone has the right to the protection of
the law against such interference or attacks.” The following observations of the
Supreme Court in R. Rajagopal v. State of Tamil Nadu58 are true reminiscences 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 in an action for damages. Position may,
however, be different, if a person voluntarily thrusts himself into controversy or
voluntarily invites or raises a controversy.”

In the Aarushi murder case, the newspapers were flooded with the transcripts of the
deceased girl’s emails and casting aspersions on her character.

In Parshuram Babaram Sawant v. Times Global Broadcasting Co. Ltd.59, Retd. Justice
P.B. Sawant‘s photograph was flashed as Justice P.K. Samantha, Retd. Justice of
Calcutta High Court, who was alleged to be involved in the famous Provident Fund
scam of 2008. It gave a false impression among viewers that the plaintiff was involved
in the scam. Though the said channel stopped publishing the photograph, when the
mistake was brought to their notice, no corrective or remedial steps to undo the
damage were taken by the channel on their own. The plaintiff by his letter dated
15/9/2008 called the defendant to apologize publicly with damages of Rs 50 crores. By
its reply the defendant apologized but no mention of damages was there. It was a

56
“Trial by Media”, Human Rights Feature, April 27, 2007, available at:
http://www.hrdc.net/sahrdc/hrfeatures/HRF164.htm (last visited on April 9, 2018).
57
Ranchod Mathur Wasawa v. State of Gujarat (1974) 3 SCC 581.
58
AIR 1995 SC 264.
59
Special Civil Suit No. 1984/2008 in Pune trial court.
 P a g e | 34

belated action hence plaintiff demanded Rs 100 crores. The Court held that the
defendant was entitled to pay Rs 100 crores to the plaintiff. The Bombay High Court
ordered the Times to deposit 20 crores in cash and 80 crores in bank guarantee, before
taking up its appeal against the Pune trial Court in the defamation case. 60 This was
upheld by the Supreme Court.

In November 2013, , Tarun Tejpal, then the editor of the news magazine Tehelka,
offered to “recuse” himself for six months over a “bad lapse of judgement” that,
allegedly, involved sexual harassment of a female colleague. The media pursued the
story so relentlessly that the police acted considerably faster than usual to investigate
the case. Tejpal was arrested on rape charges in early December, and has been behind
bars since.

Also in November 2013, The Times of India drew attention to a blog on which a legal
intern claimed to have been sexually harassed by an unnamed former Supreme Court
judge. The papers’s report was seen by the Chief Justice of the Supreme Court, who
started an enquiry that, in December, named AK Ganguly as the alleged offender.
After the Chief Justice’s committee found that the intern’s testimony prima facie
disclosed “an act of unwelcome behaviour” on the former judge’s part, Ganguly and
his associates tried to rebut the findings by alleging that he was being framed by
“powerful interests”. To counter his narrative, Additional Solicitor General Indira
Jaising, with the intern’s consent, published excerpts from her affidavit in the Indian
Express, which outlined the alleged assault in considerable detail. The release of those
details led to media demands for a criminal investigation, prompting the police to
contact the intern. In response to the pressure on her to file a police complaint, the
intern told the media, “I request that it be acknowledged that I have the discernment to
pursue appropriate proceedings at appropriate times. I ask that my autonomy be
respected fully.” The ensuing furore, however led Justice Ganguly eventually
resigning from his position as the head of West Bengal’s human rights commission.61

60
‘S.C. asks Times Now to deposit Rs 100 crores before H.C.takes up its appeal in defamation case’,
The Times of India, November 15, 2011, available at: https://timesofindia.indiatimes.com/india/SC-
asks-Times-Now-to-deposit-Rs-100-crore-before-HC-takes-up-its-appeal-in-defamation-
case/articleshow/10734614.cms (last visited on April 7, 2018).
61
Supriya Sharma, Trial and Error, The Caravan, February 1, 2014, available at:
http://www.caravanmagazine.in/perspectives/trial-and-error (last visited on April 9, 2018).
 P a g e | 35

In each of these cases, what began as an asymmetrical fight—with the men

immeasurably more powerful than the women—became a more equal battle after the
media decided to back the women making the allegations. But while this might have
encouraged some women with similar allegations to speak out, the subsequent fallouts
might have deterred others.

Complications arose from the manner in which these events were covered. Take, for
instance, the Tehelka case, in which the female journalist’s private complaint to the
magazine’s management was leaked and quickly posted on news websites in full
detail. The victim was distressed at this violation of her privacy. Was it not possible, to
expose the perpetrators of sexual violence without infringing upon a victim’s wishes,
or upon journalistic injunctions against bias? Should the media privilege a victim’s
right to privacy over the need to inform the public of all available facts? Would
measured restraint keep the horrors of sexual violence hidden from public view?
Obviously the readers could be informed of “the nature and seriousness of the
allegations in as much detail as possible not just without violating the law but also
without intruding into the privacy of the victim. Violations of privacy by the media
could create even more silence around sexual assault, since women “just [wouldn’t]
come out and complain” if it seemed that their complaint might indiscriminately be
made public.

Reporters are trained to see details as an unmitigated good: the greater the density of
detail, the better the report. But in cases of sexual violence, the journalistic challenge
lies not in the simple accumulation of details, but in their careful selection. A news
report that relays only the essential details of an alleged assault might make for less
riveting copy, but it is also less likely to impinge on the privacy of a victim or unfairly
denounce an alleged assailant.

There may well be exceptions to this. For instance, in cases where the police have
failed to act or there has been a miscarriage of justice, it might become incumbent on
the media to delve into greater detail. But the truth is that restraint in reporting does
not amount to a conspiracy of silence. Editors are right to withhold the explicit details
of sexual assaults even as they give prominence to the allegations and subsequent
prosecution of such crimes. If their larger project is to raise public awareness about
sexual violence, they might accomplish more by presenting narratives of proven
 P a g e | 36

crimes rather than sensitive details of cases still under investigation or trial. Sobriety in
news reporting can serve the cause of justice.62

Influence of Media Trial on Judges

With the sudden vicious onslaught of verdicts by the activist media in matters that are
sub judice, one wonders its impact on the administration of justice and the judicial
personnel.

Article 10 of the Universal Declaration of Human Rights (1948), deals with the right
of an accused “in full equality to a fair and public hearing by an independent and
impartial tribunal in the determination of his rights and obligations and of any criminal
charge against him”.63 Judges from various jurisdictions have not denied the influence
of media on the judges. In Re. P.C. Sen64, it was stated that the real danger of
prejudicial comments in newspapers or by other media of mass communication that
must be guarded against is the “impression that such comments might have on the
Judge’s mind or even on the minds of witnesses for a litigant”.

The frailty of the judicial system stems from the fact that judges are human beings and
undue influence of irresponsible expression may taint the rational process of
adjudication.

This limitation has been admitted by the Supreme Court of India, wherein it ruled,
“prejudice, a state of mind, cannot be proved by direct and positive evidence.
Therefore, it cannot be judged on the basis of an objective standard…”65 The practice
of ‘trial-by-media’ has been deprecated by the Courts, “No journalist can assume the
role of an investigator, in a pending case, and then attempt to influence the mind of the
Court”66 But in the recent past, the Indian judiciary has tacitly denied any influence of
media, both print and electronic, upon the judges. In Balakrishna Pillai v. State of
Kerala67, the Apex Court stated, “the grievance relating to trial by press would stand
on a different footing. Judges do not get influenced by propaganda or adverse

62
Supriya Sharma, Trial and Error, The Caravan, February 1, 2014, available at:
http://www.caravanmagazine.in/perspectives/trial-and-error (last visited on April 9, 2018).
63
Article 10 of the Universal Declaration of Human Rights, UNGA Res. 217 (LXIII), 1948, available
at: http://www.un.org/en/universal-declaration-human-rights/ (last visited on April 3, 2018).
64
AIR 1970 SC 1821.
65
Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd., (1994) 6 SCC 19.
66
Rao Harnarain v. Gumori Ram, AIR 1958 Punjab 273.
67
AIR 2000 SC 2778.
 P a g e | 37

publicity.” Another example is the case of Zee News v. Navjot Sandhu68 in which the
Supreme Court held that media interviews do not prejudice judges.

The possibility to gauge the extent of the media influence in the outcome of the
judicial process is often precluded because of the contempt proceedings under these
jurisdictions. Additionally, no judge is likely to attribute the eventual ruling in any
matter to the reports printed by the media. Therefore, any attempt to conduct any
empirical exploration to determine the influence of media on judges is nipped in the
bud. Most scholars have admitted that the erosion of judicial independence is hard to
track and difficult to measure.

Since most of the documentation of criminal justice system available to the public is
based on media reports available, it will resonant the inherent bias of the reporter.69
The disparity between the reality and the public knowledge of that reality can be
attributed to the media. The light will determine the shadows cast. Some accused
persons are lovable, some are martyrs and some turn out to be criminals.70

Even if one discounts the bias created by the media, the accuracy of media reportage
comes under the microscope. Media dependency theory suggests that people who have
little or no direct experience with certain social phenomenon rely more heavily on the
media for their picture of reality.

Another important aspect is that a charge-sheet is filed in the court of first jurisdiction
which is a magistrate’s court -- the youngest member of the judiciary with the least
experience. Although the author does not suggest that these judges are in anyway
amenable to be influenced by pressures from the media. But their experience may be
limited as they are young members of the judiciary, and when they take cognisance of
an offence, this kind of pressure surrounding a case can affect their thought processes.
The potential for miscarriage of justice is always there. When the potential is there, we
have to deal with its fallout. This is not about determining the guilt or innocence of a
particular accused person. It is about upholding Constitutionally enshrined principles
of fair trial and fair investigation.

68
(2005) 11 SCC 600.
69
Julian V. Roberts, Public Opinion, Crime, and Criminal Justice 161 (The University of Chicago Press,
Chicago, 1st edn., 1997).
70
Navajyoti Samanta, “Trial by Media-Jessica Lall Case”, March 19, 2008, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003644 (last visited on April 9, 2018).
 P a g e | 38

Investigative agencies may not have a case which is sustainable in a court of law, they
may not have a case which is backed by solid evidence. However, they put out
insinuations and make tall claims to the media which faithfully reports such claims.
And therefore, everybody glosses over the inadequacies of the case because they have
created this atmosphere around the case wherein, on occasions, it becomes difficult to
separate myth from fact.71

71
Rebecca Mammen John in an interview to The Hoot, Trial by media: how journalists are used,
October 27, 2014, available at: http://www.thehoot.org/media-watch/media-practice/trial-by-media-
how-journalists-are-used-7860 (last visited on April 8, 2018).
 P a g e | 39

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

Free Speech and Due Process
In Express Newspapers v. Union of India,72 the Supreme Court exhaustively dealt with
freedom of the press but stated that it cannot be unbridled. Like other freedoms, it can
also suffer reasonable restrictions. Balancing between the rights of people to know and
presumption of the accused to be innocent till he is found guilty by a competent court,
has become inevitable. Neck to neck competition regarding publication and coverage
among various media houses having a tendency to interfere with administration of
justice has become matter of concern for legislature as well as judiciary73. Under
Article 19(1) (a) of the Constitution, the rights of the freedom of Press have been
recognized as Fundamental Rights and under Article 21 of the Constitution the suspect
and under trial and the civil litigant have Fundamental Right to have a free and fair
trial74. Therefore balancing between these two fundamental rights has become
inevitable and the time has come that Courts should give appropriate directions with
regard to reporting of matters, in electronic and print Media, which are sub judice.
When rights of equal weight clash, Courts have to evolve balancing measures based on
re-calibration under which both the rights are given equal space in the Constitutional
Scheme.75

The Hon'ble Supreme of India in the matter, Sahara India Real Estate Corporation
Ltd. and Ors.v. Securities and Exchange Board of India and Anr76, constituted a five
judge Constitution Bench when during the pendency of appeal, despite the interim
order of the Court, some of the newspapers published the proceedings of the judgment.
The Court laid down appropriate guidelines with regard to reporting media of matters
which is sub judice including public disclosure of documents forming part of Court
proceedings and also the manner and extent of publicity to be given by media of

72
AIR 1958 SC 578.
73
Rights Watch UK, Submission to UN Human Rights Committee Concerning UK’s Compliance with
the Intl. Covenant on Civil & Political Rights: June 2001, available at:
http://www.rwuk.org/advocacy/submission-to-the-united-nations-human-rights-committee-concerning-
the-uks-compliance-with-the-international-covenant-on-civil-political-rights/ (last visited on April 66,
2018).
74
Maneka Gandhi v. Union of India, 1978 SCR (2) 621.
75
Tony Rogers, “The Meaning of the First Amendment: Freedom of Press”, April 10, 2017, available
at: https://www.thoughtco.com/the-first-amendment-2073720 (last visited on April 7, 2018).
76
(2012)10 SCC 603.
 P a g e | 40

pleadings filed in proceeding in Court which are pending. The court suggested
following measures:-

i.Prior restraint

Open Justice is the cornerstone of our judicial system. It instills faith in the judicial
and legal system. However, the right to open justice is not absolute. It can be restricted
by the court in its inherent jurisdiction as done in Mirajkar's77 case if the necessities of
administration of justice so demand. The court said that orders prohibiting publication
for a temporary period during the course of trial are permissible under the inherent
powers of the court whenever the court is satisfied that interest of justice so requires.
Such a temporary prohibition of publication of court proceedings cannot be said to
offend Article 19(1) (a).

ii.Contempt of Court Act, 1971

The media has a right to know what is happening in courts and to disseminate the
information to the public which enhances the public confidence in the transparency of
court proceedings. However at times, fair and accurate reporting of the trial would
nonetheless give rise to substantial risk of prejudice not only in the pending trial but
also in any later or connected trial. In such cases, there is no other practical means
other than postponement orders that is capable of avoiding such risk of prejudice to the
trial. The inaccuracy of reporting of court proceedings will be contempt only if it can
be said on the facts of a particular case, to amount to substantial interference with the
administration of justice.

iii.Order of Postponement of publication

Right to freedom of expression under the First Amendment in US is absolute which is

not so under Indian Constitution. In India the right is restricted by the test of
reasonableness and in view of the Heads of Restrictions under Article 19(2). The
absence of any such restrictions has led the American Courts to evolve techniques or
methods to be applied in cases where on account of excessive prejudicial publicity,
there is usurpation of court's functions.

These are techniques such as retrials being ordered, change of venue, ordering
acquittals even at the Appellate stage, etc. The Supreme Court viewed such orders of

77
Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
 P a g e | 41

postponement of publications/ publicity in appropriate cases, as indicated above just a

neutralizing device, when no other alternative such as change of venue or
postponement of trial is available, evolved by courts as a preventive measure to protect
the press from getting prosecuted for contempt and also to prevent administration of
justice from getting perverted or prejudiced.

In December 2017, a special Central Bureau of Investigation (CBI) Court, hearing the
Sohrabuddin Sheikh and Tulsiram Prajapati fake encounter cases, issued a gag order
prohibiting the press from reporting on the court proceedings. This order was allegedly
issued at the behest of the lawyers for the defence.78

A group of journalists from Mumbai and an association of reporters had then

challenged the gag order. The Bombay High Court, in January 2018, held that the ban
was unjustified and breached the constitutional right to freedom of speech and
expression of journalists.

The judge said the Criminal Procedure Code empowers only high courts and the
Supreme Court to issue such orders and that, too, only in rare cases, and for a limited
period of time….the special Central Bureau of Investigation (CBI) court had
overreached its powers. Such an order could not have been passed merely on the basis
of apprehension of sensationalism expressed by some of the accused. “The rights of
the press are intrinsic with the constitutional right that guarantees freedom of speech
and expression….In reporting on an open trial, the press not only makes use of its own
right, but serves the larger purpose of making such information available to the general
public,” said the judge.79

iv.Right to approach the High Court/ Supreme Court

The Supreme Court held that any person, whether an accused or an aggrieved person,
who genuinely apprehends on the basis of the content of the publication and its effect,
an infringement of his/ her rights under Article 21 to a fair trial and all that it

78
Gautam Bhatia, The Gag on Free Speech, The Hindu, December 4, 2017, available at:
http://www.thehindu.com/opinion/lead/the-gag-on-free-speech/article21255129.ece (last visited on
April 10, 2018)
79
Bombay HC quashes order gagging media in Sohrabuddin fake encounter case trial, Hindustan Times,
January 24, 2018, available at: https://www.hindustantimes.com/india-news/bombay-hc-quashes-order-
gagging-media-in-sohrabuddin-fake-encounter-case-trial/story-yujtlqWEVGYXm0KlCMfHoJ.html
(last visited on April 9, 2018).
 P a g e | 42

comprehends, would be entitled to approach the Court and seek an order of

postponement of the offending publication/broadcast or postponement of reporting of
certain phases of the trial (including identity of the victim or the witness or the
complainant). It also held that the Court may grant such preventive relief, on a
balancing of the right to a fair trial and freedom of press, bearing in mind the
principles of necessity and proportionality. Also, such orders of postponement should
be for short duration and should be applied only in cases of real and substantial risk of
prejudice to the proper administration of justice or to the fairness of trial.
 P a g e | 43

10. Media Trial and Contempt of Court

Trial by Media is Contempt of Court and needs to be punished. The Contempt of
Court Act defines contempt by identifying it as civil80 and criminal81.

Criminal contempt has further been divided into three types:

i.Scandalizing
ii.Prejudicing trial, and
iii.Hindering the administration of justice.

One of the most important principles of natural justice is that ‘every accused has a
right to a fair trial’. This principle clubbed with the principle that ‘Justice may not only
be done it must also seem to be done’ gave rise to the provision that media
publications which prejudice trial by courts or otherwise interfere with the
administration of justice amount to contempt of court. There are multiple ways in
which trials are prejudiced. If such cases are allowed to be successful the result will be
that the persons will be convicted of offences which they have not committed.
Contempt of court has been introduced in order to prevent such unjust and unfair trials.
No publication, which is calculated to poison the minds of jurors, intimidate witnesses
or parties or to create an atmosphere in which the administration of justice would be
difficult or impossible, amounts to contempt.82 Commenting on the pending cases or
abuse of party may amount to contempt only when a case is triable by a judge. 83 No
editor has the right to assume the role of an investigator to try to prejudice the court
against any person.84

The law as to interference with the due course of justice has been well stated by the
then Chief Justice Gopal Rao Ekkbote of Andhra Pradesh High Court in the case of
Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr.85, wherein it was observed by the
learned judge that: “ …… When litigation is pending before a Court, no one shall
comment on it in such a way there is a real and substantial danger of prejudice to the

80
Section 2(b), The Contempt of Courts Act, 1971, available at:
http://doj.gov.in/sites/default/files/contempt.pdf
81
Section 2(a), The Contempt of Courts Act, 1971, available at:
http://doj.gov.in/sites/default/files/contempt.pdf
82
AIR 1943 Lah. 329(FB).
83
Subhash Chandra v. S.M. Agarwal, 1984 Cri LJ 481(Del).
84
Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137.
85
AIR 1975 AP 30.
 P a g e | 44

trial of the action, as for instance by influence on the Judge, the witnesses or by
prejudicing mankind in general against a party to the cause. Even if the person making
the comment honestly believes it to be true, still it is a contempt of Court if he
prejudices the truth before it is ascertained in the proceedings. To this general rule of
fair trial one may add a further rule and that is that none shall, by misrepresentation or
otherwise, bring unfair pressure to bear on one of the parties to a cause so as to force
him to drop his complaint or defence. It is always regarded as of the first importance
that the law which we have just stated should be maintained in its full integrity. But in
so stating the law we must bear in mind that there must appear to be ‘a real and
substantial danger of prejudice.”

Parties have a constitutional right to have a fait trial in the court of law, by an impartial
tribunal which is not influenced by newspaper dictation or popular clamour.86 What
would happen to this right if the press may use such a language as to influence and
control the judicial process? It is to be borne in mind that democracy demands fair
play and transparency, if these are curtailed on flimsiest of grounds then the very
concept of democracy is at stake.

The obstruction or interference in the administration of justice vis-a-vis a person

facing trial is actually ‘denial of fair trial’. The prejudicial publication affecting public
which in term affects the accused amount to denial of fair trial. Prejudicial publication
is one that affects the mind of the judge and suggests the court as to the manner in
which the case should be preceded.

The publisher of an offending article cannot take shelter behind the plea that the trial
to which the article relates to isn’t then in progress nor immediately to be begun but it
has to occur at a future time.87 Our law of contempt however does not prevent
comments before the litigation is started nor after it has ended. In re P.C.Sen88 Justice
Shah who spoke for the court succinctly put the law as follows: “The law relating to
contempt of Court is well settled. Any act done or writing published which is
calculated to bring a Court or a Judge into contempt, or to lower his authority, or to
interfere with the due course of justice or the lawful process of the Court, is a

86
Cooper v. People Ex Rel Wyatt, (1889) 13 Colo. 337.
87
Leo Roy Frey v. R. Prasad and Ors., AIR 1958 P&H 377.
88
AIR 1970 SC 1821.
 P a g e | 45

contempt of Court. In R. v. Gray89, it was stated that contempt by speech or writing

may be by scandalizing the Court itself, or by abusing parties to actions, or by
prejudicing mankind in favour of or against a party before the cause is heard. It is
incumbent upon Courts of justice to preserve their proceedings from being
misrepresented, for prejudicing the minds of the public against persons concerned as
parties in causes before the cause is finally heard has pernicious consequences.
Speeches or writings misrepresenting the proceedings of the Court or prejudicing the
public for or against a party or involving reflections on parties to a proceeding amount
to contempt. To make a speech tending to influence the result of a pending trial,
whether civil or criminal is a grave contempt. Comments on pending proceedings, if
emanating from the parties or their lawyers, are generally a more serious contempt
than those coming from independent sources. The question in all cases of comment on
pending proceedings is not whether the publication does interfere, but whether it tends
to interfere, with the due course of justice. The question is not so much of the intention
of the contemnor as whether it is calculated to interfere with the administration of
justice.”

In Sushil Sharma v. The State (Delhi Administration) and Ors90 it was held by the
Delhi High Court that: “Conviction, if any, would be based not on media’s report but
what facts are placed on record. Judge dealing with the case is supposed to be neutral.
Now if what petitioner contends regarding denial of fair trial because of these news
items is accepted it would cause aspiration on the Judge being not neutral. Press report
or no reports, the charge to be framed has to be based on the basis of the material
available on record. The charge cannot be framed on extraneous circumstances or facts
dehors the material available on record. While framing the charge the Court will from
prima facie view on the basis of the material available on record. To my mind, the
apprehension of the petitioner that he would not get fair trial is perfunctory and
without foundation. None of the news items, if read in the proper prospective as a
whole, lead to the conclusion that there is any interference in the administration of
justice or in any way has lowered the authority of the Court. The Trial Court has
rightly observed that after the charge sheet has been filed, if the Press revealed the

89
(1900) 2 QBD 36.
90
1996 Cri LJ 3944.
 P a g e | 46

contents of the charge sheet it by itself by no stretch of imagination amounts to

interference in the administration of justice.”

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr91, it was held by the Supreme
Court that: “No doubt it would be mischievous for a newspaper to systematically
conduct an independent investigation into a crime for which a man has been arrested
and to publish the results of that investigation. This is because trial by newspapers,
when a trial by one of the regular tribunals of the country is going on, must be
prevented. The basis for this view is that such action on the part of a newspaper tends
to interfere with the course of justice whether the investigation tends to prejudice the
accused or the prosecution. There is no comparison between a trial by a newspaper and
what has happened in this case.”

91
AIR 1961 SC 633.
 P a g e | 47

11. Law Commission Report on Trial by Media

The ‘right to fair trial' is an integral part of the Indian criminal justice system. Along
with the right to privacy, the right to fair trial flows from the broader fundamental
right to life guaranteed by Article 21 of the Indian Constitution. The right to fair trial
comprises many other rights that include the right to be presumed innocent unless or
until proved guilty. These rights are no less important than the freedom of speech and
expression guaranteed by Article 19(1)(a).

The Law Commission of India in its 200th report, released in August 2006, under the
title “Trial by Media: Free Speech and Fair Trial Under Criminal Procedure Code,
1973” elaborately deals with several aspects of the rights relating to freedom of
speech, freedom of the press, and freedom of fair trial. Law Commission Chairman
Justice M. Jagannadha Rao says that the subject was taken up by the Commission suo
motu, “having regard to the extensive prejudicial coverage of crime and information
about suspects and accused, both in the print and electronic media.”

“There is today a feeling,” he explains, “that in view of the extensive use of the
television and cable services, the whole pattern of publication of news has changed
and several such publications are likely to have prejudicial impact on the suspects,
witnesses and even Judges and in general, on the administration of justice.” He points
out that under the Indian criminal justice system, a suspect or accused is entitled to a
fair procedure and is “presumed to be innocent till proved guilty in a court” and no one
“can be allowed to prejudge or prejudice his case by the time it goes to trial.”

The Law Commission's report expresses concern over the fact that there is very little
restraint in the media insofar as the administration of criminal justice is concerned. It
reminds the media that while freedom of speech and expression is an important right,
it is not absolute inasmuch as the Constitution itself has placed “reasonable
restrictions” on it, with the restrictions encompassing the fair administration of justice
as protected by the Contempt of Courts Act, 1971.

Explaining how media actions affect the administration of justice, the report says that
“excessive publicity” about a suspect or an accused before trial prejudices a fair trial or
results in characterising him as a person who has committed the crime; and that this
 P a g e | 48

amounts to undue interference with the administration of justice, inviting proceedings

for contempt of court against the media.92

The Report recommended various amendments to address the damaging effect of

sensationalized news reports, and accused victimization by media, on the
administration of justice and measures of postponement of proceedings and further
said that such powers cannot be vested in the subordinate courts where the criminal
proceedings are 'active'. This is because under the Contempt of Court 1971 Act, the
subordinate courts have no power to take action for contempt. Under Section 15(2),
they can only make a 'reference' to the High Court.

It also reportedly recommends that the High Court be empowered to direct

postponement of publication or telecast in criminal cases. The report noted that at
present, under Section 3 (2) of the Contempt of Court Act, such publications would be
contempt only if a charge sheet had been filed in a criminal case. The Commission has
suggested that the starting point of a criminal case should be from the time of arrest of
an accused and not from the time of filing of the charge sheet. In the perception of the
Commission such an amendment would prevent the media from prejudging or
prejudicing the case.

On November 3, 2006, former Chief Justice of India YK Sabharwal expressed concern

over the recent trend of the media conducting ‘trial’ of cases before courts pronounce
judgments, and cautioned: “According to law an accused is presumed to be innocent
till proved guilty in a court of law, and is entitled to a fair trial. So, it is legitimate to
demand that nobody can be allowed to prejudge or prejudice one’s case? Why should
judges be swayed by public opinion?”

The Law Commission of India, in Chapter IX of its above mentioned report has stated
various forms of conduct by the press which constitutes interference in the due course
of administration of justice. These include:

1) Publications concerning the character of accused or previous conclusions;

2) Publication of Confessions;
3) Publications which comment or reflect upon the merits of the case;

92
S. Vishwanathan, “Freedom of Press and Fair Trial”, The Hindu, May 17, 2010, available at:
http://www.thehindu.com/todays-paper/tp-opinion/Online-Freedom-of-the-press-and-fair-
trial/article16036511.ece (last visited on April 7, 2018).
 P a g e | 49

4) Photographs related to the case which may interfere with the identification of
the accused;
5) Direct imputations of the accused’s innocence;
6) Creating an atmosphere of prejudice;
7) Criticism of witnesses;
8) Premature publication of evidence;
9) Publication of interviews with witnesses.

It is pertinent to mention that most of these ingredients have been culled out from
Borrie and Lowe‘s commentary on Contempt law and are not reflected either in statue
or judicial pronouncements in India. Even though the Law Commission states, “There
are also a large number of decisions of the Indian Courts falling under these very
headings.”93

93
Devika Singh, Shashank Singh, Media Trial: Freedom of Speech VS. Fair Trail, 05 IOSR-JHSS 93
(2015), available at: http://www.iosrjournals.org/iosr-jhss/papers/Vol20-issue5/Version-4/N020548894.
(last visited on April 8, 2018).
 P a g e | 50

12. Conclusion
Media has wide reach and a more effective and a more direct approach to the people.
That is why it is called as a fourth pillar of a democratic society. On the power of
media, a U.S. appellate Court judge Learned Hand observed, “The hand that rules the
press, the radio, the screen, and the far-spread magazine, rules the country.”94 The
judicial system should not dismiss, without reflection, complaints that it is uncreative,
close-minded and technophobic concerning the free press/fair trial issue. Nor should it
decline any opportunity to reach out to communicate to the media and the public,
merely because it resents criticism or is critical of press performance. The media often
act and should act as the alter ego of the society and should therefore faithfully reflect
its mood, its thinking and its problems and report events which affect public interest.
While presenting facts it must give their context and discuss their pros and cons to
enable people to grasp properly their significance and to form their informed views to
them.

The courts are obliged to respect the freedom of the press because of the essential
societal interests this principle serves: the enhancement of democracy, the vigor of the
marketplace of ideas, self-expression and the public scrutiny of the administration of
justice. However, by doing so, the courts do not endorse those aspects of the media
which tend towards the commercial, the sensational, the shallow or the prurient.

The right to a fair trial does not per se supersede the press‘ right to free speech. The
right to fair trial though read under Article 21 of the Constitution of India is more
concerned with the conduct of the State in affording a fair trial to the accused rather
than a private publisher or a journalist. The view taken by the courts in New Zealand is
laudable: “In the event of conflict between the concept of freedom of speech and the
requirements of a fair trial, all other things being equal, the latter should prevail.”95
The courts in India have taken a similar view. The Punjab High Court in Rao
Harnarain v. Gumori Ram96 stated that “Liberty of the press is subordinate to the
administration of justice. The plain duty of a journalist is the reporting and not the

94
Gary A. Hengstler, The Media’s Role in Changing the Face of U.S. Courts, available at:
http://usinfo.state.gov/journals/itdhr/0503/ijde/hengstler.htm (last visited on April 2, 2018).
95
Solicitor General v. Wellington Newspapers Ltd., 1995 (1) NZLR 45.
96
AIR 1958 Punjab 273.
 P a g e | 51

adjudication of cases.” The Orissa High Court in Bijoyananda v. Bala Kush97 observed
that – “the responsibility of the press is greater than the responsibility of an individual
because the press has a larger audience. The freedom of the press should not
degenerate into a licence to attack litigants and close the door of justice nor can it
include any unrestricted liberty to damage the reputation of respectable persons.” It
would be ideal if the Supreme Court of India gives a stamp to approval to this
harmonious construction.

The media must also understand that although the courts support it out of respect for
the societal interests it promotes, just as the courts must accept all manner of fair
criticism, the media must accept and act on criticism. It must also acknowledge that it
has considerable potential to interfere with the proper administration of justice because
of the nature of its institution.

A fair trial is one of the tenets of a jurisprudential system which is based on the rule of
law. Whenever there is a conflict of fair trial with the freedom of speech, it is likely
that the former will prevail unless adequate grounds can be shown that justify the
expression or the need for the same. It is pertinent to mention that, the right of the
press is drawn from the right to speech and expression which is limited by the
reasonable restrictions as enumerated under Article 19(2). Article 19(2), expressly
contains, ‘contempt of court’ as a ground under which the Contempt of Courts Act,
1971 falls. This law expressly limits the right of the press to free speech. This
reasoning has even been adopted by the Law Commission of India, in its 200th Report
titled as, ―Trial by Media: Free Speech and Fair Trial under the Criminal Procedure.
In order to prevent the rights of equal weight clash it becomes necessary for both sides
of the issue to seek to develop greater mutual understanding and respect.98

97
AIR 1953 Orissa 249.
98
Ibid.