Constitutionality of Media Trials in India

Project submitted in partial fulfilment of the course Media Law, Semester-IX during
the Academic Year 2020-2021.

Submitted by
Faisal Ahmad, 1619
BBA.LLB

Submitted to
Ms. Sadaf Fahim

October 2020

Chanakya National Law University

Nyaya Nagar, Mithapur

800001, Patna
 ACKNOWLEDGEMENT

I am feeling highly elated to work on under the guidance of my Media Law faculty. I
am very grateful to him for the exemplary guidance. His assignment of such a relevant
topic made me work towards knowing the subject with a great interest and enthusiasm.
I owe the present accomplishment of my project to my friends, who helped me
immensely with sources of research materials throughout the project and without
whom I couldn’t have completed it in the present way. I would also like to thank the
library staff for working long hours to facilitate us with required materials going a
long way in quenching our thirst for education. I would also like to extend my
gratitude to my parents and all those unseen hands who helped me out at every stage
of my project.
Finally, I would express my gratitude to The Almighty for obvious reasons.

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 Table of Contents

Objective of the Study........................................................................................................................4

Research Question..............................................................................................................................4

Hypothesis..........................................................................................................................................4

Research Methodology.......................................................................................................................4

Sources of Data..................................................................................................................................4

INTRODUCTION..................................................................................................................................5
Meaning & History of Media Trials.......................................................................................................6
Impact of Media Trials...........................................................................................................................9
Media Trials Vs. Freedom Of Speech And Expression.....................................................................9

Media Trial Vs. Fair Trial................................................................................................................10

Influence of Media Trial on Judges.................................................................................................11

Constitutionality of Media Trials.........................................................................................................12

Freedom of Press..............................................................................................................................12

Immunity Under Contempt Of Courts Act, 1971.............................................................................13

Landmark Examples of Media Trial....................................................................................................14

Regulatory Measures............................................................................................................................16
CONCLUSION....................................................................................................................................18
BIBLIOGRAPHY................................................................................................................................21

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 Objective of the Study
1. To understand the history and emergence of media trials in the 20th and 21st century.
2. To throw some light upon the detrimental impact of media trial on society and judicial
processes.
3. To understand what can be done so as to regulate the media trials without trampling
upon the constitutional right of freedom of speech and expression

Research Question
1. What effect does media trial pose on the due process of law and the actual trial of any case?
2. Are judges immune to the verdict given by the media trials or does it have some effect on
their judicial approach?
3. Is there a need for totally prohibiting media trials or can it be regulated for the benefit of
public at large?

Hypothesis
Trial by Media endangers to bridge the gap between the judicial conscience and emotional
conscience of a judge/jury and it may hinder the due process of law.

Research Methodology

The researcher has adopted doctrinal method of research. The researcher has made extensive
use of the library at the Chanakya National Law University and also the internet sources.

Sources of Data
Primary sources Secondary sources
Legislative provisions Books
Case laws Journals
Articles
Websites

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 INTRODUCTION

India is the world’s largest democracy and media is considered as the fourth estate of the
government after Executive, Legislature, and Judiciary. Media, termed as the fourth pillar of
democracy is the very fabric and mirror of the society. It has the power to influence and
revolutionize the masses. From the ink of its pen to the sound of its mic, Media can build and
malign an image of a person simultaneously. In fact, it can change the governments! A free
media is a prerequisite to democracy. 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). Though India has the constitutional right to freedom of
speech and expression along with the freedom of press under the Art. 19(1)(a) 1 but, the
limitations to its absolute freedom are stated in its very next clause i.e. Art. 19(2).
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.
There have been numerous cases where the media had taken the cases into their own hands
and declared an accused as a convict, even much before the court had already given its
decision. There have been quite infamous cases that would have led the court to declare the
accused as innocent, had it not been the wrath of the media in shaping the opinions of the
people as well as impacting the judgment of the Judiciary.
Media Trial or Trial by media is a phrase popular in the late 20th century and early 21st
century to describe the impact of television and newspaper coverage on a person's reputation
by creating a widespread perception of guilt or innocence before, or after, a verdict in a court
of law.
This project will deal with the history of media trials and specifically deal with the impact
and influence of the media trials upon the judicial and the societal fabric of India. This
project will further go on to shed some light on the landmark cases of media trials that
happened in India and a still ongoing case of a recent death of a celebrity, and will elucidate
upon the constitutionality of such media trials according to Indian Constitution.

1
The Constitution of India, 1950

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 Meaning & History of Media Trials

Meaning
Media Trial or Trial by Media is a phrase popular in the late 20 th and early 21st century to
describe the impact of television and newspaper coverage on a person's reputation by
creating a widespread perception of guilt or innocence before, or after, a verdict in a court of
law.
According to Merriam Webster Dictionary, which does not define the term media trial as
whole but defines media and trial separately; “media”2 means “a medium of cultivation,
conveyance, or expression” and “trial”3 means “the formal examination before a competent
tribunal of the matter in issue in a civil or criminal cause in order to determine such issue” or
“the action or process of trying or putting to the proof.” So, by combining these two
definitions we can say that ‘media trial’ means the action or process of trying or putting to
the proof of any cases by media which includes any form of medium of cultivation,
conveyance or expression.
There is not any hard and fast definition of the term ‘media trial’, but this 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 opinion and spreading
prejudice under the garb of presenting ‘news’. Owing to the colloquial origin of the term,
there exists no comprehensive definition.
The Hon’ble Supreme Court however tried to define the term in the case of R.K Anand v.
Registrar, Delhi High Court in the following words:
“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.”4

2
https://www.merriam-webster.com/dictionary/media
3
https://www.merriam-webster.com/dictionary/trial
4
(2009) 8 SCC 106

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History and Evolution
Media Trials can be traced back to the 20 th century although the phrase “Media Trial” had
been coined lately but the phrase had derived its meaning from the famous case of Roscoe
“Fatty” Arbuckle (1921) who was charged with the death of a woman but later discharged
by the court of law, but had lost all his reputation & prestige along with his job after the
media had declared him “guilty”. With no concern for prejudicing the trial, the sensationalist
"yellow journalism" Press churned out lurid stories of Tinseltown's depravity alongside
coverage of the case. Although Arbuckle was never tried for sexual assault, this notion has
endured, largely because of how the trial was reported at the time. 5 After acquitting him in a
third trial in 1922 the jury wrote- "Acquittal is not enough for Roscoe Arbuckle," the jury
said in a written apology. "A grave injustice has been done."6
Another renowned case was the trial of O.J. Simpson (1995), where the media had promoted
the case and deeply influenced the minds of the viewers even above the status of the court. It
is obvious that media deeply encourages or influences the views of public. 7
The connection is less about guilt or innocence but about the promotion of the media
coverage in the public mind above the status of the court. This media trial may also be
compared to ‘yellow journalism’ which is an American term used to describe journalism that
presents little or no legitimate, well-researched news while instead uses eye-catching
headlines for increased sales. Techniques may include exaggerations of news events,
scandal-mongering, or sensationalism.
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 callings,
comments, and tweets that are live-cast on the show.
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
5
'Fatty' Arbuckle and Hollywood's first scandal, https://www.bbc.com/news/magazine-14640719, Retrieved on 28
October, 2020.
6
Ibid.
7
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1260&context=mjrl, The O.J. Simpson Verdict- A Lesson
in Black and White

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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.8
It seems that media has now reincarnated itself into a ‘public court’ and has started
interfering into court proceedings.

8
Mohan J Dutta, Frenzied Media Trials Are All About Audience Numbers, The Wire, February 8, 2016,
https://thewire.in/media/frenzied-media-trials-are-all-about-audience-numbers (Retrieved on 28 Oct, 2020)

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 Impact of Media Trials

The idea of the impact of media trials is such that the media has been successful in portraying
events that have to be kept a secret. Though the media acts as a watchdog and brings us a
platform where the people can know about the things happening in a society, it is important
to know that this has only led to the whole of the world is biased against one community or a
single person. Media trials have caused wrongful portrayal of alleged accused and have acted
as a helping hand in destroying their careers merely by the fact that they were accused, even
though they have not yet been portrayed guilty by the court of law.

Media Trials Vs. Freedom Of Speech And Expression

Freedom of speech plays a crucial role in the formation of public opinion on social, political
and economic matters. Similarly, the persons in power should be able to keep the people
informed about their policies and projects, therefore, it can be said that freedom of speech is
the mother of all other liberties.
Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian
Express Newspapers (Bombay) (P) Ltd. v. Union of India has stated:9
“[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.10 This explains the constitutional viewpoint of the freedom of press in India.
In Printers (Mysore) Ltd. v. CTO11 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.
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
9
(1985) 1 SCC 641 at p. 664, para 32.
10
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
11
(1994) 2 SCC 434

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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.

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.12
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.13
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. 14
In Zahira Habibullah Sheikh v. State of Gujarat15, 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.”

12
Right to Privacy in Sting Operations of Media http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/57-
61.pdf (Retrieved on 28 Oct, 2020)
13
Ibid.
14
http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-by-media-looking-beyond-the-pale-of
legality-.html (Retrieved on 29 October 2020)
15
(2005) 2 SCC (Jour) 75

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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. 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.”16
Influence of Media Trial on Judges
Judges from various jurisdictions have not denied the influence of media on the judges. In
Re. P.C. Sen17, 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…” 18 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”19.
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 Kerala20, 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 publicity.”
Another example is the case of Zee News v. Navjot Sandhu21 in which the Supreme Court
held that media interviews do not prejudice judges.

16
Supra Note 14
17
AIR 1970 SC 1821.
18
Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd., (1994) 6 SCC 19.
19
Rao Harnarain v. Gumori Ram, AIR 1958 Punjab 273
20
AIR 2000 SC 2778.
21
(2005) 11 SCC 600.

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 Constitutionality of Media Trials

Freedom of Press
Article 19 of the International Covenant on Civil and Political Rights, 1966 22, 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.”23
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 India24.
In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar25, 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”26. 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 audio-visual means27. It was stated in Hamdard Dawakhana v. Union of India28, 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 pressure29. In Anukul Chandra Pradhan v. Union of India30, 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
22
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.
23
Article 19 of the International Covenant on Civil and Political Rights, 1966
24
Constitutionality of Media Trials in India: A Detailed Analysis, https://www.lawctopus.com/academike/media-trials-
india/#_ftn12
25
(1996) 6 SCC 466, paras 8, 9 and 10.
26
Ibid., para 8.
27
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.
28
1960 (2) SCR 671.
29
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.
30
1996 (6) SCC 354.

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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”31.

Immunity Under Contempt Of Courts 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 disseminating 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.
Moreover, there is a general misconception that media trial is only done by electronic media
particularly TV through highly charged debates and hounding of witnesses etc. in the name
of investigative journalism, but that is not the truth. Print Media also has its own share in
media trial which can be better understood in the upcoming chapter with certain examples.

31
Ibid., para 7

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 Landmark Examples of Media Trial

In India, media trials have assumed significance. There have been several cases where the
media had taken the case into their own hands and declared judgment against an accused
contrary to fair trials in court. There have been quite infamous cases as well that outraged the
public and impacted the Judiciary such as The Jessica Lal Case(2010) where the media
rejoiced over their efforts in bringing justice to Jessica Lal after the trial court had acquitted
the accused of all the charges. The Priyadarshini Mattoo Case (2006) where a law student
was raped and murdered and the judgment of this case was suspected to have been influenced
by Media Trial. 
The Bijal Joshi rape case and Nitish Katara murder case gave credits to media where the
accused would have gone unpunished if media wouldn’t had intervened.
But there is a flip side of this coin too.
It would be a sin not to mention the most famous Aarushi Talwar Murder Case (2008)
where a girl and a servant were found dead in a house, with the exception of just 2 living
persons in the house- the parents. The media had soon declared who was guilty and who was
not even before the actual trial had begun. There were mass protests and the public had gone
into hysterics over the fact that her own parents were the cause of her death. Later, the trial
court sentenced the parents guilty for murder, but the HC declared that the parents were not
the killer. The murderer is yet to be found but the case has been closed.
The Role of Print Media
Furthermore, there are many instances of media trial, which do not qualify to be called as
trials too, but they too are effective in shaping the opinion of the public. This generally
happens in the cases related to terrorism or similar offences where security forces or police
claim that they have nabbed a terrorist or likewise.
In one case of State vs. Irshad Ahmed Malik32 in 2004 the police stated that one Kashmiri
youth named Irshad Ahmed Malik, belonging to a militant outfit Lashkar-e-Toiba (LeT), had
been making trips to Delhi for collecting funds for LeT. He had been receiving such funds
through the hawala transaction mode. Further, he was trying to set up base in Delhi. He was
charged with waging war against the Government and also with illegally possessing arms,
but was later acquitted of all the charges and declared innocent by the court of law. But the
newspapers faithfully echoed the police version of the case and showed the person as terrorist
in the public view, but later on failed to publish the acquittal with same intensity. 33

32
Sessions Case No.: 04/2009
33
Framed, Damned and Acquitted: Dossiers of a Very Special Cell; https://www.jamiajournal.com/wp-
content/uploads/2012/09/JTSA-Report-Framed-Damned-and-Acquitted-Dossiers-of-a-Very-Special-Cell.pdf

14 | P a g e
In another case of State vs. Ayaz Ahmed Shah @ Iqbal34, The tone of the few reports of the
arrest and the subsequent acquittal of Shah suggested that he was guilty even after he was
acquitted by the court of law. As in most such cases, the media uncritically reproduced the
police version of the arrest, indiscriminately calling Shah a 'terrorist', treating him as guilty
before and after the trial. ('Another terrorist goes free')35.
In another case of media trial by print media in State Versus Gulzar Ahmed Ganai and Md.
Amin Hajam36, in reporting the case, the press wholeheartedly embraced the police version
and neglected even the most minimum of journalistic norms. The headlines were “LeT
terrorists arrested” and were accompanied by pictures of Ganai and Amin surrounded by
Special Cell officers. But after the acquittal the newspaper failed to refute its own stories and
the public was still painted with the image that a terrorist had been caught.
Thus, Print Media also plays a significant role in colouring the opinion of the public, as it
reports the arrest of the accused with the police version itself, but later on does not follows up
the trial or the judgment of the same matter, and this might amount to a one-sided approach
in reporting cases of crimes and its final results.
Moreover, another history is in the making right now regarding the death of celebrity
recently by suicide. In the cases where leading celebrities are involved, the influence of the
media could drastically change the opinion of the "fans" of such influential celebrities. One
such case has been Rhea Chakraborty v. State of Bihar, 2020 (Sushant Singh Rajput
Death Case) where media had played a crucial role and the accused raised the issue of media
trials. 

34
Sessions Case No.: 133/05
35
Midday, 23-1-2009 ,httpsp://wtdwtg.mid-day.com/news/2009/jan/230109-Ayaz-Ahmed-Shah-Hizbe-e-Islami-
militant-terror-accused-acquitted.htm).
36
Sessions Case No.: 13/2007

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 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 Ltd37 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 Re38 the Supreme Court has considered the view taken by Frankfurter,
J. in Pennekamp v. Florida39 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 D.C. Saxena (Dr.) v. Chief Justice of India40 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.
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.

37
(1995) 1 SCC 501
38
(2002) 3 SCC 343
39
328 US 331: 90 L Ed 1295 (1946)
40
(1996) 5 SCC 216

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It has suggested an amendment to of the Contempt of Courts Act. 41 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?”

41
Section 3(2)

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 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)’.42
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’. 43
The hypothesis at the beginning of this project thus stands partially proved that media trials
endanger to bridge the gap between the judicial conscience and emotional conscience of a
judge and it may hinder the due process of law as it was clearly evident in the Aarushi
Talwar Murder Case. Though media trial cannot fully subvert the original trial, but it does
have a overriding effect as repeated presentation of someone as guilty or innocent may
influence the ‘sub-conscious’ mind of a judge I believing something. But in the end trial is
always based upon evidences, so even if there is error in judgment, further appeals can
rectify those errors. As it was in the case of Aarushi Talwar, where the parents were
convicted for murder but later on the HC overruled the judgment as the evidences were not
fully appreciated.
In a more recent case of Sushant Singh Suicide, the media trials relentlessly pushed forward
the theory of murder and accused one Rhea for the same, but later on after investigations CBI
ruled out the theory of murder from the case.

42
Report number 200 prepared in 2006
43
http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-by-media-looking-beyond-the-pale-of
legality-.html 

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So, it can be said that media trials influence the public opinions and opinions of judges too,
but they cannot be said to be all evil, as in actual trial the courts of law do their role of justice
delivery although media trial may hamper its effectiveness and swiftness.
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 Bengal44, 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 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.
Today, there is greater need to device a delicate balance between freedom of speech of media
on the one hand and the due process rights of the suspect and accused on the other. There is a
need to balance right to privacy and freedom of speech and expression of media for “privacy
is an important right; it is an aspect of human dignity.
If government starts regulating the media, the whole purpose would be defeated. Instead the
better option would be robust and civic engagement by the people with their polity and
political class. In other words, the engagement that is both adversarial and cooperative. An
educated, cultivated and engaged civil society can be the best watchdog over governments
and the media. This would restore and balance the polity and accord a semblance of
normalcy among the institutions of the country. 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. 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
44
AIR 2005 SC 790

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too at the right time and also to ensure that its way of functioning does not result in the
violation of the rights of the people.

The Orissa High Court in Bijoyananda v. Bala Kush45 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.
To conclude it can be said that the media must exercise better self-regulation. It is expected
of persons at the helm of the affairs in the field of media to ensure that the trial by media
does not hamper fair investigation by the investigating agency, and more importantly does
not prejudice the defence of accused in any manner whatsoever. It will amount to travesty of
justice if either of this causes impediments in the accepted judicious and fair investigation
and trial.
In decisions such as R. Rajagopalan v. the State of TN46, the Court insisted in creating a
balance between freedom of press and individual rights especially in cases involving public
figures or public events.
Thus, media trial can be perceived as a necessary evil as in many cases it has proved to be
beneficial like in Jessica Lal Case or the Priyadarshani Mattoo case, but in the present times,
the media trial should be more regulated not to hound and incriminate innocent people.
The Supreme Court’s pronouncement in Rajendra Sail case47, 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”.
So, media trials cannot be fully prohibited as it will lead to violation of constitutional right,
but there is an urgent need to regulate the media trials on the basis of media ethics and a
balance has to be found.

45
AIR 1953 Orissa 249
46
1995 AIR 264
47
(2005) 6 SCC 109

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 BIBLIOGRAPHY

Book

DIVAN GORADIA MADHAVI, FACETS OF MEDIA LAW, FIRST EDITION, 2006, EASTERN BOOK
COMPANY, LUCKNOW.

Articles and Journals

• K. G. Prithvi, M. Punnagai, Media Trial - an Overview, published by International Journal of Trend in

Scientific Research and Development (IJTSRD), Volume: 3 | Issue: 2 | Jan-Feb 2019 Available Online:
www.ijtsrd.com e-ISSN: 2456 – 6470

• Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, November 13, 2015,
available at: https://www.lawctopus.com/academike/media-trials-india/

Websites

 https://blog.finology.in/recent-updates/media-trials-in-india
 https://blog.ipleaders.in/constitutionality-of-media-trials-and-landmark-cases/
 https://www.lawctopus.com/academike/media-trials-india/
 https://indianexpress.com/article/opinion/columns/mistrial-by-media-aarushi-talwar-murder-case-
4889249/
 https://www.merriam-webster.com/
 http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trialby-media-looking-
beyond-the-pale-of-legality-.htm

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