DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
SESSION- 2020- 2021

MEDIA AND LAW

PROJECT

ON

CONSTITUTIONALITY OF MEDIA TRIALS

UNDER THE SUPERVISION OF: SUBMITTED BY:

Mrs. ANKITA YADAV ANAND PRAKASH YADAV

ASSISTANT PROFESSOR (Law) B.A. LL.B. (HONS.)

DR. RMLNLU, SEMESTER- IXTH

LUCKNOW ENROLMENT NO. 160101030

 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 3

MEDIA TRIALS vs. FREEDOM OF SPEECH AND EXPRESSION .......................................... 4

MEDIA TRIAL vs. FAIR TRIAL .................................................................................................. 5

INTERNATIONAL CONVENTIONS ON FAIR TRIAL ......................................................... 7

POSITION IN USA .................................................................................................................... 8

POSITION IN UK ....................................................................................................................... 8

POSITION IN INDIA ................................................................................................................. 9

MEDIA TRIAL vs. RIGHT TO BE REPRESENTED ................................................................. 10

IS MEDIA TRIAL A CONTEMPT OF COURT? ....................................................................... 11

CONSTITUTIONALITY OF MEDIA TRIALS .......................................................................... 14

FREEDOM OF PRESS ............................................................................................................. 14

IMMUNITY UNDER CONTEMPT OF COURT ACT, 1971 ................................................. 15

THE PUBLIC’s RIGHT TO KNOW ........................................................................................ 16

PUBLIC PARTICIPATION ..................................................................................................... 16

INEFFECTIVE LEGAL NORMS GOVERNING JOURNALISTIC CONDUCT .................. 17

MEDIA TRIALS: A NECESSARY EVIL? ................................................................................. 18

CONCLUSION ............................................................................................................................. 18

BIBLIOGRAPHY ......................................................................................................................... 21

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INTRODUCTION
The demi-world of journalism is like the fun house of mirrors that one finds in carnivals. In one
reflection you are too fat; in another you are absurdly thin; in another reflection you appear to
have an elongated neck; in another, a flat head,- in still another you have next to nobody. Yet
there you are, standing in front of these bizarre reflections, fully formed and hearing little
resemblance to any of the images before you. The difference is, however, that unlike the fun
house of mirrors, the distortions of the media are rarely a joke.

Media is regarded as one of the four pillars of democracy. Media plays a vital role in moulding
the opinion of the society and it is capable of changing the whole viewpoint through which
people perceive various events. The media can be commended for starting a trend where the
media plays an active role in bringing the accused to hook. Especially in the last two decades, the
advent of cable television, local radio networks and the internet has greatly enhanced the reach
and impact of the mass media. The circulation of newspapers and magazines in English as well
as the various vernacular languages has also been continuously growing in our country. This
ever-expanding readership and viewership coupled with the use of modern technologies for
newsgathering has given media organizations an unprecedented role in shaping popular opinions.
However, media freedom also entails a certain degree of responsibility.

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.”

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

This phenomenon is popularly called as media trial. Trial by Media it is the impact of television
and newspaper coverage on a person’s reputation by creating a widespread perception of guilt
regardless of any verdict in a court of law. For Instance, The media drew flak in the reporting of
murder of Aarushi Talwar, when it preempted the court and reported that her own father Dr.
Rajesh Talwar, and possibly her mother Nupur Talwar were involved in her murder, the CBI
later declared that Rajesh was not the killer.

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:

“[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.”

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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. This explains the
constitutional viewpoint of the freedom of press in India.

In Printers (Mysore) Ltd. v. CTO 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.

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

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

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

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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 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.

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.

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

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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.”

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

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.”

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.

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

“The judiciary which becomes caught up in such entertainment, by the public televising of its
process, will struggle (sometimes successfully, sometimes not) to maintain the dignity and
justice that is the accused’s due. But these are not the media’s concerns. Jurists should be in no
doubt that the media’s concerns are entertainment, money-making and, ultimately, the assertion
of the media’s power.”

POSITION IN UK

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

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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 are very much relevant, as the Court weighed in favour of the accused’s right of fair trial
while calculating the role of media in streamlining the criminal justice system:

“It is said and to great extent correctly that through media publicity those who know about the
incident may come forward with information, it prevents perjury by placing witnesses under
public gaze and it reduces crime through the public expression of disapproval for crime and last
but not the least it promotes the public discussion of important issues. All this is done in the
interest of freedom of communication and right of information little realizing that right to a fair
trial is equally valuable.”

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

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

In State of Maharashtra vs. Rajendra Jawanmal Gandhi, the Supreme Court observed:

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

The position was most aptly summed up in the words of Justice H.R.Khanna: –

“Certain aspects of a case are so much highlighted by the press that the publicity gives rise to
strong public emotions. The inevitable effect of that is to prejudice the case of one party or the
other for a fair trial. We must consider the question as to what extent are restraints necessary and
have to be exercised by the press with a view to preserving the purity of judicial process. At the

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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.”

MEDIA TRIAL vs. RIGHT TO BE REPRESENTED

Through media trial, we have started to create pressure on the lawyers even — to not take up
cases of accused, thus trying to force these accused to go to trial without any defense. Is this not
against the principles of natural justice? Every person has a right to get himself represented by a
lawyer of his choice and put his point before the adjudicating court and no one has the right to
debar him from doing so. For an instance, when eminent lawyer Ram Jethmalani decided to
defend Manu Sharma, a prime accused in a murder case, he was subject to public derision. A
senior editor of a television news channel CNN-IBN called the decision to represent Sharma an
attempt to “defend the indefensible”. This was only one example of the media instigated
campaign against the accused. As we all knew that in that case we had one of the best lawyers of
the country, Gopal Subramaniam, appearing for the state and the case of Manu was handed to
some mediocre lawyer. The media assumption of guilt clearly encroaches upon the right to legal
representation, a critical component of the right to fair trial and may also intimidate lawyers into
refusing to represent accused persons. Suspects and accused apart, even victims and witnesses
suffer from excessive publicity and invasion of their privacy rights. 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.

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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 and criminal.

Criminal contempt has further been divided into three types:

1. Scandalizing

2. Prejudicing trial, and

3. Hindering the administration of justice.

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

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., 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

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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.”

In re P.C.Sen Justice Shah who spoke for the court succinctly put the law as follows:

“The law relating to contempt of Court is well settled. Any act done or writing published which is
calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere
with the due course of justice or the lawful process of the Court, is a contempt of Court : R. v.
Gray[45],. Contempt by speech or writing may be by scandalizing the Court itself, or by abusing
parties to actions, or by prejudicing mankind in favour of or against a party before the cause is
heard. It is incumbent upon Courts of justice to preserve their proceedings from being
misrepresented, for prejudicing the minds of the public against persons concerned as parties in
causes before the cause is finally heard has pernicious consequences. Speeches or writings
misrepresenting the proceedings of the Court or prejudicing the public for or against a party or
involving reflections on parties to a proceeding amount to contempt. To make a speech tending
to influence the result of a pending trial, whether civil or criminal is a grave contempt.
Comments on pending proceedings, if emanating from the parties or their lawyers, are generally
a more serious contempt than those coming from independent sources. The question in all cases
of comment on pending proceedings is not whether the publication does interfere, but whether it
tends to interfere, with the due course of justice. The question is not so much of the intention of
the contemner as whether it is calculated to interfere with the administration of justice.”

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.

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr. 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

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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.”

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’ in and in Sec.3 thereof as amounting to contempt. Therefore, publications which
interfere or tend to interfere with the administration of justice amount to criminal contempt under
that Act and if in order to preclude such interference, the provisions of that Act impose
reasonable restrictions on freedom of speech, such restrictions would be valid.

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

Question is whether this can be allowed to remain so under our Constitution or whether
publications relating to suspects or accused from the date of their arrest should be regulated?

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

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

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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. 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?”

CONSTITUTIONALITY OF MEDIA TRIALS

FREEDOM OF PRESS

Article 19 of the International Covenant on Civil and Political Rights, 1966, 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.”

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

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In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar, 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”. The right under Art 19(1) (a) includes the right to information and the right
to disseminate through all types of media, whether print, electronic or audiovisual means. It was
stated in Hamdard Dawakhana v. Union of India, that the right includes the right to acquire and
impart ideas and information about matters of common interest.

The Supreme Court has stated that trial by press, electronic media or trial by way of a public
agitation are instances that can at best be described as the anti-thesis of rule of law as they can
lead to miscarriage of justice. In the opinion of the honourable court, a Judge has to guard
himself against such pressure.

IMMUNITY UNDER CONTEMPT OF COURT ACT, 1971

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

Certain acts, like publications in the media at the pre-trial stage, can affect the rights of the
accused for a fair trial. Such publications may relate to previous convictions of the accused, or
about his general character or about his alleged confessions to the police. Under the existing
framework of the Contempt of Court Act, 1971, media reportage, as seen during the

Aarushi Talwar case, where the press, had literally gone berserk, speculating and pointing fingers
even before any arrests were made, is granted immunity despite the grave treat such publications
pose to the administration of justice. Such publications may go unchecked if there is no
legislative intervention, by way of redefining the word ‘pending’ to expand to include ‘from the

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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.

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. 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”.

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”.

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.

PUBLIC PARTICIPATION

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

Quoting Jeremy Bentham, on secrecy in the administration of justice,

“In the darkness of secrecy, sinister interest and evil in every shape are in full swing. Only in
proportion as publicity has place can any of the checks applicable to judicial injustice operate.

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Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the
keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself
while trying under trial.”

INEFFECTIVE LEGAL NORMS GOVERNING JOURNALISTIC CONDUCT

Under the Press Council Act, 1978, the Press Council of India is established, with the objectives
to “preserve the freedom of the Press and to maintain and improve the standards of newspapers
and news agencies in India.”

To achieve these objectives, it must “ensure on the part of newspapers, news agencies and
journalists, the maintenance of high standards of public taste and foster a due sense of both the
rights and responsibilities of citizenship” and “encourage the growth of a sense of responsibility
and public service among all those engaged in the profession of journalism”.

The Council, also, enjoys powers to censure. If someone believes that a news agency has
committed any professional misconduct, the Council can, if they agree with the complainant,
“warn, admonish or censure the newspaper”, or direct the newspaper to, “publish the
contradiction of the complainant in its forthcoming issue” under Section 14(1) of the Press
Council Act, 1978.

Given that these measures can only be enforced after the publication of news materials, and do
not involve particularly harsh punishments, their effectiveness in preventing the publication of
prejudicial reports appears to be limited.

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

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Along with these powers, the Press Council of India28 has established a set of suggested norms
for journalistic conduct. These norms emphasize the importance of accuracy and fairness and
encourage the press to “eschew publication of inaccurate, baseless, graceless, misleading or
distorted material.”

MEDIA TRIALS: A NECESSARY EVIL?

We have a rich tradition of fiercely independent journalism. In fact, most of the big scams were
busted by the press. The law enforcers merely followed them up. The media did us proud at
every place of our political juncture. There is increasing and intense public focus on Courts and
the cases filed therein. Now that the Courts have come under the media’s microscope, they are
likely to remain there forever. A Positive by product of changes spurred by the media and
addressed by the Courts is that more Indians are aware of their constitutional rights than ever
before. The media strongly resents this sub judice rule and complains that Courts during the
course of a hearing tend to interpret the sub judice rule quite strictly to prohibit any discussion of
the issues before the Court even if they are engaging public attention. There is, therefore, an
urgent need to liberalize the sub judice rule, invoking it only in cases of an obvious intent to
influence the trial and not to any act that might have the remote possibility of influencing it.
Another major constraint on stings and trials by media is the public interest. If public interest is
missing and self or manipulative interests surface, the media loses its ground and invites the
wrath of the court.

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

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

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.

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

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

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

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

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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 also an appreciable effort along with the revolutionary sting operations as it keeps
a close watch over the investigations and activities of police administration and executive. But
there must be a reasonable self-restriction or some sort of regulations over its arena and due
emphasis should be given to the fair trial and court procedures must be respected with adequate
sense of responsibility. Media should acknowledge the fact that whatever they publish has a
great impact over the spectator. Therefore, it is the moral duty of media to show the truth and
that too at the right time.

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BIBLIOGRAPHY
 TRIAL BY MEDIA AND TRIAL OF MEDIA
http://www.rrtd.nic.in/MassMediaIndia2009.pdf
 http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-by-media-
looking-beyond-the-pale-of-legality-.html
 Right to Privacy in Sting Operations of Media http://odisha.gov.in/e-
magazine/Orissareview/2013/may/engpdf/57-61.pdf
 Freedom of press in India: Constitutional Perspectives
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf
=1&id=6752
 UN Basic Principles on the Independence of the Judiciary, G.A. Res.146
 http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf
 Contempt of Court Act, 1971 pdf.
 Press Council of India Act, 1978 pdf.
 International Covenant on Civil and Political Rights, 1966.
 TRIAL-BY-MEDIA: DERAILING JUDICIAL PROCESS IN INDIA
http://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf
 Media Ethics : A Philosophical Approach, edited by Mathew Kieran

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