http://www.lawinfowire.

com/articleinfo/trial-by-media

Trial by Media

In a country like India where Article 19(1) of the Constitution itself remains an
important aspect for widespread engagement within a democratic atmosphere,
media is considered to be one of the freest bodies in terms of legal constraints.
Freedom of speech and expression incorporated in the Constitution has been
supporting media in performing its business well. But at the same time media has
reincarnated itself into a ‘Public Court’ and has started interfering into court
proceedings. It has not only overlooked the vital gap between an accused and a
convict but also forgot the golden principle of ‘presumption of innocence until
proven guilty’ and ‘guilty beyond reasonable doubt’. These days they have come
up with a different concept altogether of ‘Media Trial’ where the media does a
separate investigation, builds up a public opinion against the accused even before
the court takes cognizance of the case. By this way, it prejudices the public and
sometimes even judges and as a result the accused is presumed criminal and is
devoid of all his rights and liberty.

Now excessive publicity in the media about the suspect or an accused before trial
prejudices a fair trial or results in characterizing him as a person who has indeed
committed the crime, it amounts to undue interference with the administration of
justice, which would result in contempt of court against the media. But the sad part
being the rules designed to regulate journalist conduct are inadequate to prevent
the encroachment of civil rights.

Article 19(1)(a) of the Constitution of India guarantees freedom of speech and

expression and Article 19(2) permits reasonable restriction to be imposed by the
statute for the purpose of various matters including ‘contempt of court’. Article
19(2) does not refer to administration of justice but interference in the
administration of justice is clearly referred to in the definition of criminal contempt
in Section 2 of the Contempt of Courts Act, 1971 and in Section 3 thereof as
amounting to contempt. Therefore the provision of that Act impose reasonable
restriction on freedom of speech, such restriction would be valid.

As per the Indian Criminal Justice system the guilt is to be proved beyond
reasonable doubt and the law is governed by senses and not by emotions. The
media while portraying our emotions forgets that it puts immense pressure on the
judge presiding over the case. This golden rule stated above changes to declare a
person guilty right at the time of arrest. The role of media is to report facts or news
and raise public issues; it is not there to pass judgments.

The case that draws media attention emanates from what I believe to be three
primary sources: the prosecution, the defense and the media itself.

The prosecutor, in announcing an indictment, leaking one, or even stating that an

investigation is in process, can depict a defendant in such a way as to materially
prejudice his rights to a fair trial. This, in turn, has often resulted in defense
attorneys trying to combat fire with fire, which after a while begins to create some-
what of a circus like atmosphere.

Usually, however, it is the press whether it be the printed media or the electronic
media, that seizes on a particular case and catapults it into a national story. Say for
example the famous Arushi and Hemraj Murder Case the Supreme Court of India
on 6th August 2008 sharply criticized the media for acting as if it was a super
investigating agency and for tarnishing the reputation of the doctor couple (Rajesh
and Nupur Talwar) whose daughter Arushi Talwar had been murdered.

Again the ‘Tehlka’s Rahul Gandhi Interview’ was also another havoc situation
created by the media. In September 2005 Tehelka weekly published an interview
of Rahul Gandhi describing the story as Rahul Gandhi’s first major interview. The
introduction to the interview raised “I could have been PM at the age of 25 if I
wanted to.” The congress sought to end the controversy on the remark attributed to
Rahul Gandhi saying that the write up projected as an interview contained several
misrepresentation and that it arose from casual conversation.
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. The most objectionable part, and unfortunate too, of the
recently incarnated role of media is that the coverage of a sensational crime and its
adducing of ‘evidence’ begins very early, mostly even before the person who will
eventually preside over the trial even takes cognizance of the offence, and secondly
that the media is not bound by the traditional rules of evidence which regulate what
material can, and cannot be used to convict an accused. In fact, the Right to Justice
of a victim can often be compromised in other ways as well, especially in Rape and
Sexual Assault cases, in which often, the past sexual history of a prosecutrix may
find its way into newspapers. Secondly, the media treats seasoned criminal and the
ordinary one, sometimes even the innocents, alike without any reasonable
discrimination. They are treated as a ‘television item’ keeping at stake the
reputation and image. 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.

The Supreme Court of India in Zahira Habibullah Sheikh v. State of

Gujurat explained, “a fair trial obviously would mean a trial before an impartial
judge, a fair prosecutor and atmosphere of judicial claim. 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.”

Last but not the least media trial even has started creating pressure on the lawyers
to not take up cases of accused, thus forcing these accused to go to trial without
any defense. This is against the principle of Natural Justice. For an instance, when
eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused
in a murder case, he was subject to public derision. Media channel came up with
quotes like “defend the indefensible”. While at the same time Gopal Subramaniam
was appearing for the state and the case of Manu was handed to some mediocre
lawyer. Media went hammer in tongues when Mr. Jethmalani took the case and
posed him as a villain. Don’t we want to give equal opportunity to the defense to
prove its case, or have we lost faith in the judiciary? The media have to understand
their limit before it becomes too late.

Apart from suspect and accused even Police are presented in poor light by the
media and their morale too suffers. Hence to conclude any institution let it be
legislature, executive, judiciary or bureaucrary is liable to absued if it exceeds its
legitimate jurisdiction and functions. But sometimes these ultra vires activities are
blessings in disguise as in the case of judicial activism. Media trial is also an
appreciable effort along with the revolutionary sting operation as it keeps a close
watch over the investigations and activities of police administration and
executives. But there must be a reasonable restriction over its arena and due
emphasis should be given to the fair trial and court procedure must be respected
with adequate sense of responsibility. Media should keep this in mind that
whatever they publish has a great impact over the spectator. Therefore considering
it as a moral duty it should come up with the truth that too at the right time.
Although the print media has made itself compliance with the legal guidance and
ethical limits but the electronic media is still experimenting and is relying on ‘trial
and error’ method for what to show and what not to. It’s high time for the
electronic media to regulate itself by having self censored guidelines to be put in
place to retain a complete free press.

http://www.lawctopus.com/academike/media-trials-india/

Constitutionality of Media Trials in India: A Detailed Analysis

With the case of Sheena Bohra murder, the excruciating eyes of the media have
pierced the personal life of the main accused Indrani Mukherjea which has kicked
in a fresh debate on the issue of media trial of the accused. Every aspect of her
personal life and character which have nothing to do legally with the investigation
of the murder are under public lens of scrutiny via the media. The ethics of
journalism have been again in a controversial area due to their prying eyes on the
accused.

Media is regarded as one of the four pillars of democracy. 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 the media plays an active role in bringing
the accused to hook. Especially in the last two decades, the advent of cable
television, local radio networks and the internet 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[2].

The strength and importance of media in a democracy is well recognized. Article

19(1) (a) of the Indian Constitution, which gives freedom of speech and expression
includes within its ambit, freedom of press. The existence of a free, independent
and powerful media is the cornerstone of a democracy, especially of a highly
mixed society like India. Media is not only a medium to express one’s feelings,
opinions and views, but it is also responsible and instrumental for building
opinions and views on various topics of regional, national and international
agenda. The pivotal role of the media is its ability to mobilize the thinking process
of millions. The increased role of the media in today’s globalized and tech-savvy
world was aptly put in the words of Justice Learned Hand of the United States
Supreme Court when he said, “The hand that rules the press, the radio, the screen
and the far spread magazine, rules the country”[3].

Democracy is the rule of the people, a system which has three strong pillars. But as
Indian society today has become somewhat unstable on its 3 legs- the executive,
the legislature and the judiciary, the guarantee of Article 19 (1)(a) has given rise to
a fourth pillar known as media or press. It plays the vital role of a conscious
keeper, a watchdog of the functionaries of society and attempts to attend to the
wrongs in our system, by bringing them to the knowledge of all, hoping for
correction. It is indisputable that in many dimensions the unprecedented media
revolution has resulted in great gains for the general public. Even the judicial wing
of the state has benefited from the ethical and fearless journalism and taken suo-
moto cognizance of the matters in various cases after relying on their reports and
news highlighting grave violations of human rights[4].

However, there are always two sides of a coin. With this increased role and
importance attached to the media, the need for its accountability and
professionalism in reportage cannot be emphasized enough. In a civil society no
right to freedom, howsoever invaluable it might be, can be considered absolute,
unlimited, or unqualified in all circumstances. The freedom of the media, like any
other freedom recognized under the Constitution has to be exercised within
reasonable boundaries. With great power comes great responsibility. Similarly, the
freedom under Article 19(1) (a) is correlative with the duty not to violate any
law[5].

In an increasingly competitive market for grabbing the attention of viewers and

readers, media reports often turn to distortion of facts and sensationalisation. The
pursuit of commercial interests also motivates the use of intrusive newsgathering
practices which tend to impede the privacy of the people who are the subject of
such coverage. The problem finds its worst manifestation when the media
extensively covers sub judice matters by publishing information and opinions that
are clearly prejudicial to the interests of the parties involved in litigation pending
before the Courts[6].

However, sensationalised news stories circulated by the media have steadily

gnawed at the guarantees of a right to a fair trial and posed a grave threat to the
presumption of innocence. What is more, the pervasive influence of the press is
increasingly proving to be detrimental to the impartial decision making process of
the judiciary. Such news stories cannot easily be defended under the auspices of
freedom of expression[7].

Every institution is liable to be abused, and every liberty, if left unbridled, has the
tendency to become a license which would lead to disorder and anarchy. This is the
threshold on which we are standing today. Television channels in a bid to increase
their Television Rating Point (TRP) ratings are resorting to sensationalized
journalism with a view to earn a competitive edge over the others[8].

In recent times there have been numerous instances in which media has conducted
the trial of an accused and has passed the verdict even before the court passes its
judgment. Some famous criminal cases that would have gone unpunished but for
the intervention of media, are Priyadarshini Mattoo case, Jessica Lal case, Nitish
Katara murder case and Bijal Joshi rape case. The media however drew flak in the
reporting of murder of Aarushi Talwar, when it preempted the court and reported
that her own father Dr. Rajesh Talwar, and possibly her mother Nupur Talwar were
involved in her murder, the CBI later declared that Rajesh was not the killer.

This phenomenon is popularly called as media trial. Trial by Media it is 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. There is
a heated debate between those who support a free press which is largely
uncensored and those who place a higher priority on an individual’s right to
privacy and right to a fair trial. During high publicity court cases, the media are
often accused of provoking an atmosphere of public hysteria akin to a lynch mob
which not only makes a fair trial nearly impossible but means that regardless of the
result of the trial the accused persons will not be able to live the rest of their life
without intense public scrutiny. The counter-argument is that the mob mentality
exists independently of the media which merely voices the opinions which the
public already has. There are different reasons why the media attention is
particularly intense surrounding a legal case: the first is that the crime itself is in
some way sensational, by being horrific or involving children; the second is that it
involves a celebrity either as victim or accused. Although a recently coined phrase,
the idea that popular media can have a strong influence on the legal process goes
back certainly to the advent of the printing press and probably much beyond. This
is not including the use of a state controlled press to criminalize political
opponents, but in its commonly understood meaning covers all occasions where
the reputation of a person has been drastically affected by ostensibly non-political
publications. The problem is more visible when the matters involve big names and
celebrities. In such cases media reporting can swing popular sentiments either
way[9].

The practice which has become more of a daily occurrence now is that of media
trials. Something which was started to show to the public at large the truth about
cases has now become a practice interfering dangerously with the justice delivery
system. And it highlights the enormous need of what is called ‘responsible
journalism’[10].

A HISTORY OF MEDIA TRIALS

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

20th century

One of the first celebrities in the 20th century to be arguably tried by media was
Roscoe ‘Fatty’ Arbuckle who was acquitted by the courts but nevertheless lost his
career and reputation due to the media coverage.

Parallels can be drawn between these cases and the trial of O.J. Simpson. The
connection is less about guilt or innocence but about the promotion of the media
coverage in the public mind above the status of the court.

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. What makes this case particularly
important historically is 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, 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.

Often the coverage in the press can be said to reflect the views of the person in the
street. However, more credibility is generally given to printed material than ‘water
cooler gossip’. 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.

IMPACT OF MEDIA TRIALS

1. MEDIA TRIALS vs. FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech plays a crucial role in the formation of public opinion on social,
political and economic matters. Similarly, the persons in power should be able to
keep the people informed about their policies and projects, therefore, it can be said
that freedom of speech is the mother of all other liberties.[11]

Keeping this view in mind Venkataramiah, J. of the Supreme Court of India

in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India[12] 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 of public matters is absolutely essential.[13] This explains the
constitutional viewpoint of the freedom of press in India.

In Printers (Mysore) Ltd. v. CTO[14] the Supreme Court has reiterated that though
freedom of the press is not expressly guaranteed as a fundamental right, it is
implicit in the freedom of speech and expression. Freedom of the press has always
been a cherished right in all democratic countries and the press has rightly been
described as the fourth chamber of democracy.

It therefore received a generous support from all those who believe in the free flow
of the information and participation of the people in the administration; it is the
primary duty of all national courts to uphold this freedom and invalidate all laws or
administrative actions which interfere with this freedom, are contrary to the
constitutional mandate.[15]

In R. Rajagopal v. State of T.N[16] the Supreme Court of India has held that
freedom of the press extends to engaging in uninhabited debate about the
involvement of public figures in public issues and events. But, as regards their
private life, a proper balancing of freedom of the press as well as the right of
privacy and maintained defamation has to be performed in terms of the democratic
way of life laid down in the Constitution.

Therefore, in view of the observations made by the Supreme Court in various

judgments and the views expressed by various jurists, it is crystal clear that the
freedom of the press flows from the freedom of expression which is guaranteed to
all citizens by Article 19(1)(a). Press stands on no higher footing than any other
citizen and cannot claim any privilege (unless conferred specifically by law), as
such, as distinct from those of any other citizen. The press cannot be subjected to
any special restrictions which could not be imposed on any citizen of the country.

2. MEDIA TRIAL vs. FAIR TRIAL

Trial by media has created a “problem” because it involves a tug of war between
two conflicting principles – free press and free trial, in both of which the public are
vitally interested. The freedom of the press stems from the right of the public in a
democracy to be involved on the issues of the day, which affect them. This is the
justification for investigative and campaign journalism[17].

At the same time, the “Right to Fair Trial”, i.e., a trial uninfluenced by extraneous
pressures is recognized as a basic tenet of justice in India. Provisions aimed at
safeguarding this right are contained under the Contempt of Courts Act, 1971 and
under Articles 129 and 215 (Contempt Jurisdiction-Power of Supreme Court and
High Court to punish for Contempt of itself respectively) of the Constitution of
India. Of particular concern to the media are restrictions which are imposed on the
discussion or publication of matters relating to the merits of a case pending before
a Court. A journalist may thus be liable for contempt of Court if he publishes
anything which might prejudice a ‘fair trial’ or anything which impairs the
impartiality of the Court to decide a cause on its merits, whether the proceedings
before the Court be a criminal or civil proceeding[18].

The media exceeds its right by publications that are recognized as prejudicial to a
suspect or accused like concerning the character of accused, publication of
confessions, publications which comment or reflect upon the merits of the case,
photographs, police activities, imputation of innocence, creating an atmosphere of
prejudice, criticism of witnesses, the Indian criminal justice system. It
encompasses several other rights including the right to be presumed innocent until
proven guilty, the guilt is to be proved beyond reasonable doubt and the law is
governed by senses and not by emotions the right not to be compelled to be a
witness against oneself, the right to a public trial, the right to legal representation,
the right to speedy trial, the right to be present during trial and examine witnesses,
etc[19].

In Zahira Habibullah Sheikh v. State of Gujarat[20], the Supreme Court

explained that a “fair trial obviously would mean a trial before an impartial Judge,
a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which
bias or prejudice for or against the accused, the witnesses, or the cause which is
being tried is eliminated.”

Right to a fair trial is absolute right of every individual within the territorial limits
of India vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say
right to a fair trial is more important as it is an absolute right which flows from
Article 21 of the constitution to be read with Article 14. The right to freedom of
speech and expression in contained in article 19 of the constitution. Article 19(1)
(a) of the Constitution of India guarantees the fundamental right to freedom of
speech and expression. In accordance with Article 19(2), this right can be restricted
by law only in the “interests of the sovereignty and integrity of India, the security
of the State, friendly relations with Foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an
offence.”[21]
INTERNATIONAL CONVENTIONS ON FAIR TRIAL:

In the International context, the UN Basic Principles on the Independence of the

Judiciary, at Article 6, which states the judiciary is entitled and required “to ensure
that judicial proceedings are conducted fairly and that the rights of the parties are
respected.”[22] The principles enunciated in this Article are also stated in similar
language in the International Covenant on Civil and Political Rights (ICCPR)[23],
which provides that “everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal” in the determination of any
criminal charge or in a suit at law.[24]

The ICCPR acknowledges that the right to a public trial is not absolute and that
certain limitations on public access are necessary.

Article 19 of ICCPR confirms that freedom of expression is also a fundamental

part of a democratic society. It elaborates that freedom of expression includes the
freedom of the press and states that “everyone shall have the right to freedom of
expression; this right shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice.”[25]

Under Article 10 of the European Convention on Human Rights, to which the UK

and its other signatories are morally committed, the freedom of the press is
paramount. Exceptions to that freedom may be made only such as are “necessary
in a democratic society”, permissible only to the extent that they correspond to “a
pressing social need”, and are proportionate to the end to be achieved.[26]

POSITION IN USA:

A number of decisions of the U.S Supreme Court confirm the potential dangerous
impact the media could have upon trials. In the case of Billie Sol Estes[27], the
U.S. Supreme Court set aside the conviction of a Texas financier for denial of his
constitutional rights of due process of law as during the pre-trial hearing extensive
and obtrusive television coverage took place. The Court laid down a rule that
televising of notorious criminal trials is indeed prohibited by the “Due process of
Law” clause of Amendment Fourteen.

In another case of Dr.Samuel H.Sheppard[28], the Court held that prejudicial

publicity had denied him a fair trial. Referring to the televised trials of Michael
Jackson and O.J.Simpson, Justice Michael Kirby stated:

“The judiciary which becomes caught up in such entertainment, by the public

televising of its process, will struggle (sometimes successfully, sometimes not) to
maintain the dignity and justice that is the accused’s due. But these are not the
media’s concerns. Jurists should be in no doubt that the media’s concerns are
entertainment, money-making and, ultimately, the assertion of the media’s
power.”[29]

POSITION IN UK:

In England too, the House of Lords in the celebrated case of Attorney General vs.
British

Broadcasting Corporation (BBC)[30] has agreed that media trials affect the judges
despite the claim of judicial superiority over human frailty and it was observed that
a man may not be able to put that which he has seen, heard or read entirely out of
his mind and that he may be subconsciously affected by it. The Courts and
Tribunals have been specially set up to deal with the cases and they have expertise
to decide the matters according to the procedure established by the law. Media’s
trial is just like awarding sentence before giving the verdict at the first instance.
The court held that it is important to understand that any other authority cannot
usurp the functions of the courts in a civilized society.

POSITION IN INDIA:

Similarly there have been a plethora of cases in India on the point. The
observations of the Delhi High Court in Bofors Case or Kartongen Kemi Och
Forvaltning AB and Ors. vs. State through CBI[31] are very much relevant, as
the Court weighed in favour of the accused’s right of fair trial while calculating the
role of media in streamlining the criminal justice system:

“It is said and to great extent correctly that through 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. All this is done in the interest of freedom of
communication and right of information little realizing that right to a fair trial is
equally valuable.”

Such a right has been emphatically recognized by the European Court of Human
Rights:

“Again it cannot be excluded that the public becoming accustomed to the regular
spectacle of pseudo trials in the news media might in the long run have nefarious
consequences for the acceptance of the courts as the proper forum for the
settlement of legal disputes.”[32]

The ever-increasing tendency to use media while the matter is sub-judice has been
frowned down by the courts including the Supreme Court of India on the several
occasions.

In State of Maharashtra vs. Rajendra Jawanmal Gandhi[33], the Supreme Court

observed:

“There is procedure established by law governing the conduct of trial of a person

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

The position was most aptly summed up in the words of Justice H.R.Khanna: -
“Certain aspects of a case are so much highlighted by the press that the publicity
gives rise to strong public emotions. The inevitable effect of that is to prejudice the
case of one party or the other for a fair trial. We must consider the question as to
what extent are restraints necessary and have to be exercised by the press with a
view to preserving the purity of judicial process. At the same time, we have to
guard against another danger. A person cannot, as I said speaking for a Full Bench
of the Delhi High Court in 1969, by starting some kind of judicial proceedings in
respect of matter of vital public importance stifle all public discussions of that
matter on pain of contempt of court. A line to balance the whole thing has to be
drawn at some point. It also seems necessary in exercising the power of contempt
of court or legislature vis-à-vis the press that no hyper-sensitivity is shown and due
account is taken of the proper functioning of a free press in a democratic society.
This is vital for ensuring the health of democracy. At the same time the press must
also keep in view its responsibility and see that nothing is done as may bring the
courts or the legislature into disrepute and make the people lose faith in these
institutions.”

The Hon’ble Supreme Court in the case of Rajendra Sail Vs. Madhya Pradesh
High Court Bar Association and Others[34], observed that for rule of law and
orderly society, a free responsible press and an independent judiciary are both
indispensable and both have to be, therefore, protected. The aim and duty of both is
to bring out the truth. And it is well known that the truth is often found in shades of
grey. Therefore the role of both cannot be but emphasized enough, especially in a
“new India”, where the public is becoming more aware and sensitive to its
surroundings than ever before. The only way of orderly functioning is to maintain
the delicate balance between the two. The country cannot function without two of
the pillars its people trust the most.

3. MEDIA TRIAL vs. RIGHT TO BE REPRESENTED

Through media trial, we have started to create pressure on the lawyers even — to
not take up cases of accused, thus trying to force these accused to go to trial
without any defense. Is this not against the principles of natural justice? Every
person has a right to get himself represented by a lawyer of his choice and put his
point before the adjudicating court and no one has the right to debar him from
doing so. For an instance, when eminent lawyer Ram Jethmalani decided to defend
Manu Sharma, a prime accused in a murder case, he was subject to public derision.
A senior editor of a 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 we all knew that
in that case we had one of the best lawyers of the country, Gopal Subramaniam,
appearing for the state and the case of Manu was handed to some mediocre lawyer.
The media assumption of guilt clearly encroaches upon the right to legal
representation, a critical component of the right to fair trial and may also intimidate
lawyers into refusing to represent accused persons. Suspects and accused apart,
even victims and witnesses suffer from excessive publicity and invasion of their
privacy rights. Police are presented in poor light by the media and their morale too
suffers. The day after the report of crime is published; media says ‘Police have no
clue’. Then, whatever gossips the media gathers about the line of investigation by
the official agencies, it gives such publicity in respect of the information that the
person who has indeed committed the crime, can move away to safer places. The
pressure on the police from media day by day builds up and reaches a stage where
police feel compelled to say something or the other in public to protect their
reputation. Sometimes when, under such pressure, police come forward with a
story that they have nabbed a suspect and that he has confessed, the ‘Breaking
News’ items start and few in the media appear to know that under the law,
confession to police is not admissible in a criminal trial. Once the confession is
published by both the police and the media, the suspect’s future is finished when
he retracts from the confession muddle. 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 ‘identification parades’ conducted under the Code of Criminal
Procedure for identifying the accused. Subconscious effect on the Judge as one of
the major allegations upon ‘media trial’ is prejudicing the judges presiding over a
particular case. As there is always a chance judges may get influenced by the
flowing air of remarks made upon a particular controversy. The media presents the
case in such a manner to the public that if a judge passes an order against the
“media verdict”, he or she may appear to many either as corrupt or biased[35].

IS MEDIA TRIAL A CONTEMPT OF COURT?

Trial by Media is Contempt of Court and needs to be punished. The Contempt of

Court Act defines contempt by identifying it as civil[36] and criminal[37].

Criminal contempt has further been divided into three types:

1. Scandalizing
2. Prejudicing trial, and
3. Hindering the administration of justice.

Prejudice or interference with the judicial process: This provision owes its origin to
the principle of natural justice; ‘every accused has a right to a fair trial’ clubbed
with the principle that ‘Justice may not only be done it must also seem to be
done’. There are multiple ways in which attempts are made to prejudice trial. If
such cases are allowed to be successful will be that the persons will be convicted of
offences which they have not committed. Contempt of court has been introduced in
order to prevent such unjust and unfair trials. No publication, which is calculated to
poison the minds of jurors, intimidate witnesses or parties or to create an
atmosphere in which the administration of justice would be difficult or impossible,
amounts to contempt.[38] Commenting on the pending cases or abuse of party may
amount to contempt only when a case is triable by a judge.[39] No editor has the
right to assume the role of an investigator to try to prejudice the court against any
person.[40]

The law as to interference with the due course of justice has been well stated by the
chief Justice Gopal Rao Ekkbote of Andhra Pradesh High Court in the case of Y.V.
Hanumantha Rao v. K.R. Pattabhiram and Anr. [41], where in 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 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.”

Fair trial Parties have a constitutional right to have a fait trial in the court of law,
by an impartial tribunal, uninfluenced by newspaper dictation or popular
clamour.[42] 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 the
democracy demands fair play and transparency, if these are curtailed on flimsiest
of grounds then the very concept of democracy is at stake.

The concept of ‘denial of a fair trial’ has been coined by authoritative judicial
pronouncements as a safeguard in a criminal trial. But what does the concept
‘denial of fair trial’ actually mean:

The conclusions of the judicial decisions can be summed as follows:

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

facing trial. The prejudicial publication affecting public which in term affect the
accused amount to denial of fair trial. Prejudicial publication affecting the mind of
the judge and Suggesting the court as to in what manner the case should be
preceded.

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.[43] Our law of contempt however does not
prevent comments before the litigation is started nor after it has ended. In re
P.C.Sen[44] 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 contempt of Court : R. v. Gray[45],. 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 contemner as whether it
is calculated to interfere with the administration of justice.”[46]

In Sushil Sharma v. The State (Delhi Administration) and Ors[47] 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 contents of the charge sheet it by itself by no stretch of
imagination amounts to interference in the administration of justice.”

Even in highly sensitive cases, the session trial has been conducted by the courts of
Sessions without fear or favour. The Indian courts have emerged as the most
powerful courts in the world with virtually no accountability. But every institution
even the courts can go wrong. Every institution including the judiciary has its share
of black sheep and corrupt judges. The judiciary is peopled by judges who are
human, and being human they are occasionally motivated by considerations other
than an objective view of law and justice. It would be foolhardy to contend that
none of them, at least some of them, at least some times are motivated by
considerations of their own personal ideology, affiliations, predilections, biases
and indeed even by nepotistic and corrupt considerations[48].

In stifling all criticism by the threatened exercise of the power of contempt, the
issue in a democratic society is ultimately one of the accountability of the judiciary
itself. In order to stifle free speech and comments on the court, even an occasional
exercise of this power is enough to deter most persons form saying anything that
might annoy their Lordships. Perhaps the most important reason for the lack of
reforms in the judiciary is the reluctance of the Press to write about and discuss the
state of affairs within it for fear of contempt[49].

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr[50]. 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.”

REGULATORY MEASURES

As we concern with the restrictions imposed upon the media, it is clear from the
above that a court evaluating the reasonableness of a restriction imposed on a
fundamental right guaranteed by Article 19 enjoys a lot of discretion in the matter.
It is the constitutional obligation of all courts to ensure that the restrictions
imposed by a law on the media are reasonable and relate to the purposes specified
in Article 19(2).

In Papnasam Labour Union v. Madura Coats Ltd[51] the Supreme Court has laid
down some principles and guidelines to be kept in view while considering the
constitutionality of a statutory provision imposing restriction on fundamental rights
guaranteed by Articles 19(1)(a) to (g) when challenged on the grounds of
unreasonableness of the restriction imposed by it.

In Arundhati Roy, In re[52] the Supreme Court has considered the view taken by
Frankfurter, J. in Pennekamp v. Florida[53] in which Judge of the United States
observed: (US p. 366)

“If men, including judges and journalists, were angels, there would be no problem
of contempt of court. Angelic judges would be undisturbed by extraneous
influences and angelic journalists would not seek to influence them. The power to
punish for contempt, as a means of safeguarding judges in deciding on behalf of
the community as impartially as is given to the lot of men to decide, is not a
privilege accorded to judges. The power to punish for contempt of court is a
safeguard not for judges as persons but for the function which they exercise.”

In Rajendra Sail v. M.P. High Court Bar Assn.[54]17 the editor, printer and
publisher and a reporter of a newspaper, along with the petitioner who was a labour
union activist, were summarily punished and sent to suffer a six months
imprisonment by the High Court. Their fault was that on the basis of a report filed
by a trainee correspondent, they published disparaging remarks against the judges
of a High Court made by a union activist at a rally of workers. The remarks were to
the effect that the decision given by the High Court was rubbish and fit to be
thrown into a dustbin. In appeal the Supreme Court upheld the contempt against
them, but modified and reduced the sentence.

In D.C. Saxena (Dr.) v. Chief Justice of India[55] the Supreme Court has held
that no one else has the power to accuse a judge of his misbehaviour, partiality or
incapacity. The purpose of such a protection is to ensure independence of judiciary
so that the judges could decide cases without fear or favour as the courts are
created constitutionally for the dispensation of justice.

By these above observations and the judgment we can say that restrictions imposed
by Article 19(2) upon the freedom of speech and expression guaranteed by Article
19(1)(a) including the freedom of press serve a two-fold purpose viz. on the one
hand, they specify that this freedom is not absolute but are subject to regulation
and on the other hand, they put a limitation on the power of a legislature to restrict
this freedom of press/media. But the legislature cannot restrict this freedom beyond
the requirements of Article 19(2) and each of the restrictions must be reasonable
and can be imposed only by or under the authority of a law, not by executive action
alone.[56]

The Press Council of India (PCI) was established to preserve the freedom of the
press and to improve the standards of news reporting in India. Under the Press
Council Act 1978, if someone believes that a news agency has committed any
professional misconduct, the PCI can, if they agree with the complainant, “warn,
admonish or censure the newspaper”, or direct the newspaper to, “publish the
contradiction of the complainant in its forthcoming issue.” Given that these
measures can only be enforced after the publication of news materials, and do not
involve particularly harsh punishments, their effectiveness in preventing the
publication of prejudicial reports appears to be limited[57].
Along with these powers, the PCI has established a set of suggested norms for
journalistic conduct. These norms emphasise the importance of accuracy and
fairness and encourages the press to “eschew publication of inaccurate, baseless,
graceless, misleading or distorted material.” The norms urge that any criticism of
the judiciary should be published with great caution. These norms further
recommend that reporters should avoid one-sided inferences, and attempt to
maintain an impartial and sober tone at all times. But significantly, these norms
cannot be legally enforced, and are largely observed in breach.

Lastly, the PCI also has criminal contempt powers to restrict the publication of
prejudicial media reports. However, the PCI can only exercise its contempt powers
with respect to pending civil or criminal cases. This limitation overlooks the extent
to which pre-trial reporting can impact the administration of justice.[58]

200th LAW COMMISSION REPORT

Art. 19(1)(a) of the Constitution of India guarantees freedom of speech and

expression and Art. 19(2) permits reasonable restrictions to be imposed by statute
for the purposes of various matters including ‘Contempt of Court’. Art.19(2) does
not refer to ‘administration of justice’ but interference of the administration of
justice is clearly referred to in the definition of ‘criminal contempt’[59] in and in
Sec.3 thereof as amounting to contempt. Therefore, publications which interfere or
tend to interfere with the administration of justice amount to criminal contempt
under that Act and if in order to preclude such interference, the provisions of that
Act impose reasonable restrictions on freedom of speech, such restrictions would
be valid.

At present, under sec. 3(2) of the Contempt of Courts Act, 1971 read with the
Explanation below it, full immunity is granted 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 charges heet or challan is filed or summons or warrant are
issued by the Court by the date of publication.
Question is whether this can be allowed to remain so under our Constitution or
whether publications relating to suspects or accused from the date of their arrest
should be regulated?

The Law Commission in its 200th report, Trial by Media: Free Speech versus
Fair Trial Under Criminal Procedure (Amendments to the Contempt of
Courts Act, 1971), has recommended a law to debar the media from reporting
anything prejudicial to the rights of the accused in criminal cases, from the time of
arrest to investigation and trial.

The commission has said, “Today there is feeling that in view of the extensive use
of the television and cable services, the whole pattern of publication of news has
changed and several such publications are likely to have a prejudicial impact on
the suspects, accused, witnesses and even judges and in general on the
administration of justice“.

This is criminal contempt of court, according to the commission; if the provisions

of the Act impose reasonable restrictions on freedom of speech, such restrictions
would be valid.

It has suggested an amendment to of the Contempt of Courts Act.[60] Under the

present provision such publications would come within the definition of contempt
only after the charge sheet is filed in a criminal case, whereas it should be invoked
from the time of arrest. In another controversial recommendation, it has suggested
that the high court be empowered to direct a print or electronic medium to
postpone publication or telecast pertaining to a criminal case. On November 3,
2006, former chief justice of India Y K 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?”
In the US, the O J Simpson case [61]attracted a lot of pre-trial publicity. Some
persons even demonstrated in judges’ robes outside the court and lampooned Etoo,
the trial judge. Yet, Simpson was acquitted. The judge was not prejudiced by
media campaign or public opinion.
The Supreme Court has ruled in many cases that freedom of the press is a
fundamental right covered by the right to freedom of expression under Article 19
of the Constitution.

But the right to fair trial has not explicitly been made a fundamental right. That
does not mean that it is a less important right. More than a legal right, it is basic
principle of natural justice that everyone gets a fair trial and an opportunity to
defend oneself.

The NHRC, in its special leave petition filed before the Supreme Court against
acquittal of the accused in the Best Bakery case[62], contended that the concept of
a fair trial is a constitutional imperative recognised in Articles 14, 19, 21, 22 and
39-A as well as by the CrPC.

It is true that contempt of court is a ground for restricting the freedom of speech,
but the media has not tried to lower the dignity of the judiciary by exposing
loopholes of the investigation and the prosecution.

And if judicial decisions also appear to be arbitrary, they must be subjected to

ruthless scrutiny.
It will be dangerous to gag the press in the name of contempt of court. If the
appellate court feels that the media publicity affected fair trial, it can always
reverse the decision of the lower court.

In the US, in 1965, Sam Sheppard[63] was convicted for murder. As this case
received an enormous amount of pre-trial publicity, the US supreme court ruled
that Sheppard’s conviction[64] were violated and overturned the trial court’s
decision.
In the 1970s and 1980s, the US supreme court began focusing more on the media’s
First Amendment rights — the right to freedom of the press.

The Supreme Court’s pronouncement in Rajendra Sail case[65], though given in

context of criminal contempt, provides the proper guideline:

“For rule of law and orderly society, a free press and independent judiciary are
both indispensable”.

CONSTITUTIONALITY OF MEDIA TRIALS

1. FREEDOM OF PRESS:

Article 19 of the International Covenant on Civil and Political Rights, 1966[66],

embodies the right to freedom of speech, that is, “everyone shall have the right to
hold opinions without interference” and the “freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of his
choice.”[67]

Nonetheless, this freedom comes with a rider that the exercise of this right comes
with “special duties and responsibilities” and is subject to “the rights or
reputations of others”. The right to freedom of speech and expression has been
guaranteed under Article 19(1) (a) of the Constitution of India. Even though
freedom of press is not a separately guaranteed right in India unlike the United
States of America, the Supreme Court of India has recognized freedom of press
under the umbrella right of freedom of speech and expression as envisaged under
Article 19(1)(a) of the Constitution of India[68].

In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar[69], the Supreme Court
had the occasion to decide on the scope of the freedom of press, recognized it as
“an essential prerequisite of a democratic form of government” and regarded it as
“the mother of all other liberties in a democratic society”[70]. The right under Art
19(1) (a) includes the right to information and the right to disseminate through all
types of media, whether print, electronic or audiovisual means[71]. It was stated
in Hamdard Dawakhana v. Union of India[72], that the right includes the right to
acquire and impart ideas and information about matters of common interest.

The Supreme Court has stated that trial by press, electronic media or trial by way
of a public agitation are instances that can at best be described as the anti-thesis of
rule of law as they can lead to miscarriage of justice. In the opinion of the
honourable court, a Judge has to guard himself against such pressure[73].
In Anukul Chandra Pradhan v. Union of India[74], the Supreme Court observed
that “No occasion should arise for an impression that the publicity attached to
these matters (the hawala transactions) has tended to dilute the emphasis on the
essentials of a fair trial and the basic principles of jurisprudence including
the presumption of innocence of the accused unless found guilty at the end of the
trial”[75].

2. IMMUNITY UNDER 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 acts, like 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 immunity despite
the grave treat 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, or judicial control through gag orders
as employed in United States of America.

Due to such lacunas, 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.

3. 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[76]. 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”[77].

However, the 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”.

In the Bofors Case[78], 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.”[79]

Two important core elements of investigative journalism envisage that

(a) the subject should be of public importance for the reader to know and

(b) an attempt is being made to hide the truth from the people.[80]
4. PUBLIC PARTICIPATION:

Some scholars justify a ‘trial-by-media’ by proposing that the mob mentality exists
independently of the media which merely voices the opinions which the public
already has. 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. Stifling this voice will
amount to stifling democracy.[81]

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.”[82]

5. 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”[83].

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”[84] and
“encourage the growth of a sense of responsibility and public service among all
those engaged in the profession of journalism”[85].

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[86].

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 India[87], 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 India28 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 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.[88]

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.[89]

CONCLUSION

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

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

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. Earlier,
journalism was not under pressure to push up TRP ratings or sales. So the
journalists did their work with serious intent and conviction, with courage and
integrity. They did not pronounce people guilty without making a serious attempt
to study the charges, investigate them, and come to their own independent
conclusions, without fear or favour. They did not blindly print what law enforcers
claimed, what the bureaucracy said or what politicians planted on to them. That is
why people trusted them. But now we are seeing a different self acquired role of
media in form of ‘media trial’.[90]

Everyone manipulates the media to serve their own interests or hurt their rivals.
The problem does not lie in media’s exposing the lacuna of a bad investigation by
police, or mal-performance of the duties ordained to the civil servants but the eye-
brows start to raise when the media ultra vires its legitimate jurisdiction and does
what it must not do. Be it highlighting the sub-judice issues into public keeping at
stake the sanctity of judicial procedures and ‘right to life with dignity’ of accused
and suspects. The media trial has now moved on to media verdict and media
punishment which is no doubt an illegitimate use of freedom and transgressing the
prudent demarcation of legal boundaries.[91]

From the above account it becomes clear that the media had a more negative
influence rather than a positive effect. The media has to be properly regulated by
the courts. The media cannot be granted a free hand in the court proceedings as
they are not some sporting event. Any institution, be it legislature, executive,
judiciary or bureaucracy, is liable to be abused if it exceeds its legitimate
jurisdiction and functions. Media trial is also an appreciable effort along with the
revolutionary sting operations as it keeps a close watch over the investigations and
activities of police administration and executive. But there must be a reasonable
self-restriction or some sort of regulations over its arena and due emphasis should
be given to the fair trial and court procedures must be respected with adequate
sense of responsibility. Media should acknowledge the fact that whatever they
publish has a great impact over the spectator. Therefore, it is the moral duty of
media to show the truth and that too at the right time. The most suitable way to
regulate the media will be to exercise the contempt jurisdiction of the court to
punish those who violate the basic code of conduct. The use of contempt powers
against the media channels and newspapers by courts have been approved by the
Supreme Court in a number of cases as has been pointed out earlier. The media
cannot be allowed freedom of speech and expression to an extent as to prejudice
the trial itself. An ideal proposal will be that the Indian press and the Indian people
are not at present democratic enough to allow the press to intrude in the judicial
process. What will an ideal proposition in allowing the media trial at this moment.
It’s definitely an ideal proposition to allow controlled media reporting of the cases
once the media is supposed to come out of the profit and sensational
considerations. The media has to play the role of a facilitator rather than tilting the
scales in favour of one or the other party. 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 function of the
judiciary and deviate from objective and unbiased reporting. 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[92].

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

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

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 function of the judiciary and deviate from objective and unbiased
reporting.

While a media shackled by government regulation 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.

The judiciary has been critical of the overactive and prejudicial reporting by the
media. In the Labour Liberation Front case, Justice L. Narasimha Reddy lamented
the “abysmal levels to which the norms of journalism have drifted.” In M.P. Lohia
v. State of West Bengal[93], the Supreme Court cautioned the publisher, editor and
journalist of a magazine that had reported the facts of a case that was sub-judice,
thus “interfering with the administration of justice.”
The observations of Mr. Andrew Belsey in his article ‘Journalism and Ethics, can
they co-exist’[94]) quoted by the Delhi High Court in Mother Dairy Foods &
Processing Ltd v. Zee Telefilms[95] aptly describe the state of affairs of today’s
media. He says that journalism and ethics stand apart. While journalists are
distinctive facilitators for the democratic process to function without hindrance the
media has to follow the virtues of ‘accuracy, honesty, truth, objectivity, fairness,
balanced reporting, respect or autonomy of ordinary people’. These are all part of
the democratic process. But practical considerations, namely, pursuit of successful
career, promotion to be obtained, compulsion of meeting deadlines and satisfying
Media Managers by meeting growth targets, are recognized as factors for the
‘temptation to print trivial stories salaciously presented’. In the temptation to sell
stories, what is presented is what ‘public is interested in’ rather than ‘what is in
public interest’.

The Indian Law Commission’s recent report entitled Trial by Media: Free Speech
vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of
Court Act, 1971) has made recommendations to address the damaging effect of
sensationalised news reports on the administration of justice. While the report has
yet to be made public, news reports indicate that the Commission has
recommended prohibiting publication of anything that is prejudicial towards the
accused — a restriction that shall operate from the time of arrest. It also reportedly
recommends that the High Court be empowered to direct postponement of
publication or telecast in criminal cases.

The credibility of news media rests on unbiased, objective reporting. It is in the

media’s interest to ensure that the administration of justice is not undermined.

Edited by Kanchi Kaushik

[1] TRIAL BY MEDIA AND TRIAL OF MEDIA

http://www.rrtd.nic.in/MassMediaIndia2009.pdf (last visited on 21/10/2014 at

00:07)
[2]http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-
by-media-looking-beyond-the-pale-of-legality-.html (last visited on 21/10/2014 at
00:08)

[3] Right to Privacy in Sting Operations of Media

http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/57-61.pdf (last
visited on 21/10/2014 at 00:09)

[4] Ibid

[5] Id.

[6] Supra note 2

[7] Ibid.

[8] Supra note 3

[9] Supra note 2

[10] Supra note 3

[11] Freedom of press in India : Constitutional Perspectives

http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&
do_pdf=1&id=6752 (last visited on 21/10/2014 at 00:05)

[12] (1985) 1 SCC 641 at p. 664, para 32.

[13] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[14] (1994) 2 SCC 434

[15] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1
SCC 641

[16] (1994) 6 SCC 632

[17] Supra note 3

[18] Ibid.

[19] Supra note 2

[20] (2005) 2 SCC (Jour) 75

[21] Supra note 2

[22] UN Basic Principles on the Independence of the Judiciary, G.A. Res.146,

U.N. GAOR, 40thSess.(1985) art.6.

[23] Adopted and opened for signature, ratification and accession by General
Assembly Resolution 2200 A (XXI) of 16 December 1966. Entered into force on
23 March 1976 in accordance with article 49.

[24] Art. 14(1), ICCPR, (1966) 999 UNTS 171, 1976 Can. T.S. No. 47, in force,
including Canada, 1976.

[25] Article 14(1) of the ICCPR provides that “[t]he Press and the public may be
excluded from all or part of a trial for reasons of morals, public order (ordre
public) or national security in a democratic society, or when the interests of the
private lives of the Parties so requires, or to the extent necessary in the opinion of
the court in special circumstances where publicity would prejudice the interests of
justice.”

[26] As well as Article 10 of the European Convention on Human Rights (ECHR).

[27] Estes v Texas 381 US 532 (1965)

[28] Sheppard v Maxwell 346 F.2d 707 (1965)

[29] Supra note 3

[30] [1981] AC 303

[31] 2004 (72) DRJ 693

[32] Supra note 3

[33] 1997 (8) SCC 386

[34] (2005) 6 SCC 109

[35] Supra note 2

[36] Section 2(b).

[37] Section 2 (a)

[38] AIR 1943 lah 329(FB).

[39] Subhash Chandra v. S. M . Agarwal, 1984 Cri LJ 481(Del).

[40] Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137.

[41] AIR1975 AP 30.

[42] Cooper v. People (1889) 6 Lawyers Report Annotated 430(B).

[43] Leo Roy Frey Vs. R. Prasad and Ors , AIR 1958 P&H 377.

[44] AIR 1970 SC 1821.

[45] [1900] 2 Q.B.D. 36 at p. 40

[46] Para 8.

[47] 1996 CriLJ 3944.

[48] Supra note 2

[49] Ibid.
[50] AIR 1961 SC 633.

[51] (1995) 1 SCC 501

[52] (2002) 3 SCC 343

[53] 328 US 331 : 90 L Ed 1295 (1946)

[54] (2005) 6 SCC 109 per Y.K. Sabharwal, J. (for himself and Tarun Chatterjee,
J.)

[55] (1996) 5 SCC 216

[56] Supra note 16

[57] http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf (last visited on

21/10/2014 at 00:14)

[58] Ibid.

[59] sec. 2 of the Contempt of Courts Act, 1971

[60] Section 3(2)

[61] Case no. BA097211

[62] (2005) 2 SCC (Jour) 75

[63] Sam Sheppard was convicted for the murder of his pregnant wife in their
Cleveland suburban home

[64] Sixth Amendment rights

[65] (2005) 6 SCC 109

[66] International Covenant on Civil and Political Rights, 1966, Adopted and
opened for signature, ratification and accession by General Assembly resolution
2200A (XXI) of 16 December 1966, entry into force 23 March 1976.
[67] Article 19 of the International Covenant on Civil and Political Rights, 1966:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and
are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of
public health or morals.

[68] TRIAL-BY-MEDIA: DERAILING JUDICIAL PROCESS IN INDIA

http://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf (last
visited on 21/10/2014 at 00:03)

[69] (1996) 6 SCC 466, paras 8, 9 and 10.

[70] Ibid., para 8.

[71] Secretary, Ministry of Information & Broadcasting v. Cricket Association of

West Bengal, 1995(2) SCC 161; Romesh Thapar v. State of Madras 1950 SCR
594; See also Life Insurance Corporation of India v. Manubhai D Shah, (1992 (3)
SCC 637.

[72] 1960 (2) SCR 671.

[73] State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.

[74] 1996 (6) SCC 354.

[75] Ibid., para 7.

[76] A.G. v. Times Newspaper, (1973) 3 All ER 54; Express Publications

(Madurai) Ltd. v.Union of India, AIR 2004 SC 1950, para 29; Secretary, Ministry
of Information andBroadcasting, Govt. of India v. Cricket Association of Bengal,
AIR 1995 SC 1236, para 4.

[77] In Re: Harijai Singh and Anr.; In Re: Vijay Kumar, (1996) 6 SCC 466, para
10.

[78] Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ
693.

[79] Ibid., para 10

[80] Supra note 73

[81] Ibid.

[82] K.G. Balakrishnan, The Constitution, The Media And The Courts, The Fourth
K.S. Rajamony Memorial Public Law Lecture, Kerala,
www.supremecourtofindia.nic.in/new_links/9%5B1%5D.8.08.rajamony.pdf

[83] Press Council Act, 1978, Section 13(1).

[84] Press Council Act, 1978, Section 13(2) (c).

[85] Press Council Act, 1978, Section 13(2) (d).

[86] 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.”

[87] (2007) 1 SCC 143

[88] Supra note 73

[89] Supra note 2

[90] Ibid.

[91] Id.

[92] Id.

[93] AIR 2005 SC 790

[94] published in Media Ethics : A Philosophical Approach, edited by Mathew

Kieran

[95] IA 8185/2003 Suit No. 1543/2003 dated 24.1.2005