A PROJECT ON –

CONSTITUTIONAL LEGALITY OF TRIAL BY MEDIA

FOURTH TRIMESTER

SUBMITTED BY: SUBMITTED TO:

1
 TABLE OF CONTENTS

ACKNOWLEDGEMENT...............................................................................................................3
INTRODUCTION...........................................................................................................................4
A HISTORY OF MEDIA TRIALS.................................................................................................6
IMPACT OF MEDIA TRIALS.......................................................................................................7
INTERNATIONAL CONVENTIONS ON FAIR TRIAL............................................................11
IS MEDIA TRIAL A CONTEMPT OF COURT?........................................................................14
REGULATORY MEASURES......................................................................................................17
200th LAW COMMISSION REPORT.........................................................................................19
THE PUBLIC’S RIGHT TO KNOW............................................................................................21
CONCLUSION..............................................................................................................................22
REFERENCES..............................................................................................................................24

2
ACKNOWLEDGEMENT

I would like to take this opportunity to thank all people who made the completion of this project
possible.
I express my gratitude towards Prof. xxxx whose expert guidance helped me through and
through and whose support was vital in the making of this project.

3
INTRODUCTION

WITH GREAT POWER COMES GREAT RESPONSIBILITY

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”[1].
Media, regarded as one of the four pillars of democracy, plays a vital role in moulding the
opinion of the society and 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 book. 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].

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 [3].

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

4
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.
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.
This phenomenon is popularly called Trial by Media - 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.
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’.

5
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. The problem is more
visible when the matters involve big names and celebrities. In such cases media reporting can
swing popular sentiments either way.
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. 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 later released in 1986 on new evidence showing that a dingo had in fact committed the act as
was originally claimed by Chamberlain.
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.

6
IMPACT OF MEDIA TRIALS

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. [4]

Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of India [5] has stated:

“Freedom 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.”

In Printers (Mysore) Ltd. v. CTO [6] 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.[7]

In R. Rajagopal v. State of T.N [8] 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

7
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.

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.

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 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.

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.

8
In Zahira Habibullah Sheikh v. State of Gujarat, 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.”

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 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

9
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.

10
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.”[9] The principles enunciated
in this Article are also stated in similar language in the International Covenant on Civil and
Political Rights (ICCPR) [10], 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.[11]

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.”[12]

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. [13]

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 [14], 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[15], 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:

11
“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.”

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[16] 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.”
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.

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.”

12
The Hon’ble Supreme Court in the case of Rajendra Sail Vs. Madhya Pradesh High Court Bar
Association and Others[18], 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.

13
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 [19] and criminal [20].
Criminal contempt has further been divided into three types:
- Scandalizing
- Prejudicing trial, and
- 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.[21] Commenting on the pending cases or abuse of party may amount to contempt only
when a case is triable by a judge.[22] No editor has the right to assume the role of an investigator
to try to prejudice the court against any person.[23]

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. [24], 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.”

14
Fair trial Parties have a constitutional right to have a fair trial in the court of law, by an impartial
tribunal, uninfluenced by newspaper dictation or popular clamour.[25] 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 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.[26] Our law of contempt however does not prevent comments before the litigation is
started nor after it has ended. In Re P.C.Sen[27] 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[28],. 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.”[29]

In Sushil Sharma v. The State (Delhi Administration) and Ors[30] 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

15
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 [31].

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 [32].

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr[33]. 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.”

16
REGULATORY MEASURES
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[34] 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[35] the Supreme Court has considered the view taken by Frankfurter, J.
in Pennekamp v. Florida[36] 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.[37] 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[38] 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

17
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.[39]

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 [40].

Along with these powers, the PCI has established a set of suggested norms for journalistic
conduct. These norms emphasize 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.[41]

18
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’[42] 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.

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.[43] 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?”

19
In the US, the O J Simpson case [44]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[45], 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.
The Supreme Court’s pronouncement in Rajendra Sail case[48], 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”.

20
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[59]. 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”[60].

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[61], 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.”[62]

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.

21
CONCLUSION

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, an ‘aggressive
journalism’ - 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.
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.
Media trial is 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 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.

22
The observations of Mr. Andrew Belsey in his article ‘Journalism and Ethics, can they co-
exist’[70] quoted by the Delhi High Court in Mother Dairy Foods & Processing Ltd v. Zee
Telefilms[71] 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 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.

23
REFERENCES

[1] Right to Privacy in Sting Operations of Media

http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/57-61.pdf

[2] http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-by-media-
looking-beyond-the-pale-of-legality-.html

[3] Ibid.

[4] Freedom of press in India : Constitutional Perspectives

http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=1&do_pdf=1&id=6752

[5] (1985) 1 SCC 641 at p. 664, para 32.

[6] (1994) 2 SCC 434

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

[8] (1994) 6 SCC 632

[9] UN Basic Principles on the Independence of the Judiciary, G.A. Res.146, U.N. GAOR,
40thSess.(1985) art.6.

[10] 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
[11] Art. 14(1), ICCPR, (1966) 999 UNTS 171, 1976 Can. T.S. No. 47, in force, including
Canada, 1976.

[12] 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.”

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

[14] Estes v. Texas 381 US 532 (1965)

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

[16] 2004 (72) DRJ 693

[17] 1997 (8) SCC 386

[18] (2005) 6 SCC 109

[19] Section 2(b)

[20] Section 2(a)

[21] AIR 1943 lah 329(FB).

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

25
[23] Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137.

[24] AIR1975 AP 30.

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

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

[27] AIR 1970 SC 1821.

[28] [1900] 2 Q.B.D. 36 at p. 40

[29] Para 8.

[30] 1996 CriLJ 3944.

[31] Ibid.

[32] Ibid.

[33] AIR 1961 SC 633.

[34] (1995) 1 SCC 501

[35] (2002) 3 SCC 343

[36] 328 US 331: 90 L Ed 1295 (1946)

26
[37] (2005) 6 SCC 109 per Y.K. Sabharwal, J. (for himself and Tarun Chatterjee, J.)

[38] (1996) 5 SCC 216

[39] Supra note 16

[40] http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf

[41] Ibid.

[42] Section 2 of the Contempt of Courts Act, 1971

[43] Section 3(2)

[44] Case no. BA097211

[45] (2005) 2 SCC (Jour) 75

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

[47] Sixth Amendment rights

[48] (2005) 6 SCC 109

27
[49] 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.

[50] Article 19 of the International Covenant on Civil and Political Rights, 1966:
Everyone shall have the right to hold opinions without interference.
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.
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.

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

http://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf

[52] (1996) 6 SCC 466, paras 8, 9 and 10.

[53] Ibid., para 8.

[54] 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.

[55] 1960 (2) SCR 671.

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

28
[57] 1996 (6) SCC 354.

[58] Ibid., para 7.

[59] 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 and
Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR 1995 SC 1236, para 4.

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

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

[62] Ibid., para 10

[63] 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

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

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

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

[67] 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,

29
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.”

[68] (2007) 1 SCC 143

[69] AIR 2005 SC 790

[70] Published in Media Ethics : A Philosophical Approach, edited by Mathew Kieran

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

30