1

FREEDOM OF EXPRESSION AND ‘TRIAL BY MEDIA’ IN NEPAL: AN EMPIRICAL

STUDY OF LINGUSTIC SENSTIVIENESS IN CRIMINAL REPORTING IN PRINT
MEDIA

Adv. Vijay Prasad Jayshwal

Associate with Kathmandu School of Law, Purbanchal University Nepal
Vijayjayshwal1991@gmail.com
+977-986060675231

&
Shishir Lamichhane
Associate with Nepal Law Campus, Tribhuan University, Nepal
Shishir.lamichhane@hotmail.com
+977-9849356541
ABSTRACT
Justice for Jessica’ (India) , Khyati Shrestha (Nepal),Sharmin (Bangladesh), Orenthal James
Simpson (USA), Pillai, Navjot Sandhu, Shaukat Hussain Guru and so on are some
phraseology re-chanted continuously by the media at the time of trial by independent,
impartial and competent court in respective time, place and context which has a influential
role. The Trial by Media or Media trial is not some new phenomenon that often judiciary find
troubles in order to render a judgment in pre trial and final hearing situation which can appear
in contradiction with ‘manufactured ideology’ of general public by media. Whether the
Media trial amount contempt of court or not is another contrast in jurisprudence related to
‘freedom of expression and fair trial’ of suspect. In this reference, Justice Frankfurt has
recited that,
If men, including Judges and journalist, were angles, there would be no problem of contempt of court.
Angles judges would be undisturbed by extraneous influences and angelic journalist 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 mean 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 functions which they exercise.

The National Broadcasting Act 1993 Section 3, the Government of Nepal has authority to
supervise the functions of media, their operations, and the language sensitiveness. This task is
further divided by Media laws and Press Council. The previous study shows that the Media
Council has not done so well in order to regulate the malpractices, bias reporting,
 2

preoccupied decision, and judgment by media, and so on. This portion will study the
complaint recorded at the Press Council Nepal since 2014 to 2016 A.D. on such
malfunctions. This portion will also explain the existence of independent, competent, media
personnel for crime reporting on some of selected print media.

The paper shall apply the both primary and secondary methods of research. The purposive
sampling method shall be applied in order to select the sample unit for analyzing the crime
report. The researcher shall analyze the one month crime report and their language pattern in
one English and two Nepalese news paper available on library of Kathmandu School of Law
and Nepal Law Campus as in record. This section shall give recommendation in order to
make freedom of expression more sustainable and worthy.

Key Words: Media, Defamation, Council, Pattern, and Integrative

 3

GLOBALIZATION AND MEDIA

The term "globalization" had become a buzzword in the 1990s, just as "interdependence" did
in the 1970s, by all researchers, conceiving different meanings and construed in different
context.1 The globalization has made adverse affect on media and their functioning system.
2
The Media’s are conceptualized as very important vehicle to run in a democratic society.
The term media and globalization are frequently appeared in the different premises of the
world affairs. The notion of localization of media has largely become diminishing due to
effect of globalization. There is contrasting opinion that the media's are global in nature or
local in nature. As one of scholar, Sparks argued, no media is genuinely global in nature. The
so-called global media’s audience is ‘too small, too rich and too English-speaking to be
considered inclusive’3 in nature.

Today, the global media is successfully covering the local news than the local media. This is
been proven by the fact that, the way scholar are rigorously searching about the globalization
in internet and media. It is seen that out of 10 global media, the six are being managed and
operated by the American which was evident of the phrase that Americanization of Media in
the world. Some of them are like Time Warner (U.S.), Disney (U.S.), Viacom (U.S.), A T&T
(U.S.), Microsoft (U.S.), and General Electric/NBC (U.S.). This figure has justified the
presence of global media in the world. Even the “Googling” for definition of “globalization”
yields more than 26.5 million “hits.” 4Definitions notwithstanding, unlike other ‘-isation’
words, such as industrialization, urbanization, westernization, modernization, and even the
popular derivative term, ‘development’, all of them terms that seduced the post-World War II
world. The globalization remains a vague and elusive concept, even as it is largely displacing
those ‘-isation’ words.5 The word 'G' means everything to everybody but nothing to
thousands who are suffering around the world. 6 As one of renowned scholar Upendra Baxi
strongly focuses only on the disciplinary (imposition of financial) and regulatory

1
Mirza Jan, Globalization of Media: Key Issues and Dimensions, 29 EUROPEAN J. OF SCIENTIFIC RESEARCH 1,
66-75 (2009).
2
Sheila S. Coronel, The Role of the Media in Deeping Democracy,
http://unpan1.un.org/intradoc/groups/public/documents/un/unpan010194.pdf.
3
Collin Sparks, The Global, the Local and the Public Sphere, Georgette Wang, Jan Servaes and
AnuraGoonasekera (Eds.). IN THE NEW COMMUNICATIONS LANDSCAPE: DEMYSTIFYING MEDIA
GLOBALIZATION, 74-95 (Georgette Wang et al. eds, 2000).
4
JANE C. MILLAR WOOD, THE IMPACT OF GLOBALIZATION ON EDUCATION REFORM: A CASE STUDY OF
UGANDA, 13 (2008).
5
ANNA LOWENHAUPT TSING, FRICTION: AN ETHNOGRAPHY OF GLOBAL CONNECTION, 5 (2005).
6
UpendraBaxi, The Rule of Law in India, (2007), http://socialsciences.scielo.org/pdf/s_sur/v3nse/scs_a01.pdf.
 4

globalization (transactional globalization). This debate has further resulted into the fact that
the way international media use to report the offenses has influenced on the local media's.
The globalization of media has made significant changes in the way media businesses are
happening. The trial by media is also one of the global phenomenon largely appeared into the
different form and context. The availiable literature on the trial by media at the global level
found the same news. There is prevalence of trial by media. The next chapter shall describe
the notion of trial by media at the global level and also in the Nepal.

ENCIRCLING ‘TRIAL BY NEWS PAPER’ OR ‘MEDIA TRIAL’

The term ‘Trial by Media’ or ‘Media Trial’ during the 1960’s became a phenomenal in world
affairs.7 The decade of 1990’s has eventually become the year of using the phrase of media
trial in the Asian continent.8 The media trial is an act ‘the impact of television and newspaper
coverage on a person’s reputation by creating a widespread misperception of guilt regardless
of any verdict in a court of law.’ 9The term ‘Trial by Media’ and ‘Trial by Newspaper’ has
been used interchangeably by the scholars and seen used alternatively in the literature of
media and law. The term trial by media defines as:
‘[W]hen any report indulges in siding with one of the parties to the cause; derides one party, witness, or
counsel; misrepresent Court proceedings by screaming headlines with a view to prejudicing the Court
and public; publishes only one side of the case to the detriment to the opposite party; brings out articles
on a matter pending in the Court and in diverse ways carry on what has been so aptly called a trial by
newspaper.’10

There are ample of literature availaible on the media and few of them are also related to the
language sensitiveness of the media in reporting the news. A famous scholar Noam Chomsky
argues that the very structure of the media is designed to induce conformity to established
doctrine. Chomsky says,11
‘In a three-minute stretch between commercials, or in seven hundred words, it is impossible to present
unfamiliar thoughts or surprising conclusions with the argument and evidence required to afford them
some credibility. Regurgitation of welcome pieties faces no such problem.’ These welcome pieties

7
DWIGHT TEETER JR& BILL LOVING, LAW OF MASS COMMUNICATIONS: FREEDOM AND CONTROL OF PRINT
ANDBROADCAST MEDIA 503-506 (2011).
8
AmartyaSen, Broadcasting Sector & Policy,
http://www.nalsarpro.org/ML/Modules/ Module%203/Chapter%201.pdf.
9
Anand v. Registrar, 8 S.C.C. 106, 174 (2009).
10
V. G. RAMACHANDRAN, CONTEMPT OF COURT 857 (6th ed. 2002); See alsoid.
11
See generally NOAM CHOMSKY, NECESSARY ILLUSIONS: THOUGHT CONTROL IN A DEMOCRATIC SOCIETIES
(1989).
 5

form what Chomsky calls ‘the basic presuppositions of discourse’. In the case of the US, these include
the assumption that foreign policy is guided by a benevolent ‘yearning for democracy’ in the face of
aggressors’.

As he further argues that Media plays a key role in order to manufacture the ideology of
the general public. It is always important to see how does the media operate in the
particular society and who controls those media. There is no point of denying the
necessity of media in the modern techno world. Some of the scholar like Denis Mc Quail
says ‘The most practical instruments for protecting freedom and combating tyranny have
involved using the means of communication to claim rights, criticize power-holders,
advance alternatives.’12 The media are used even for the worst task and also even for the
good tasks which are evident to the world community.

The notion of media trial is different in the different jurisdiction. The most essential rule
of the common law jurisdiction is that contempt of court is considered as an obvious fact
due to media trial. This has always sub judice13 the proceedings and there is rule that, no
one should interfere with legal proceedings which are pending or is under consideration
of the court. The court is authorized to perform without being biased to the subject, matter
and personal relations. The reasons for not appreciating the media trial by the court is
well documented and recorded in one of famous English leading case of Attorney-
General v. Times Newspaper Ltd.14 where Lord Diplock stated
The due administration of justice requires first that all citizens have unhindered access to the
constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as
to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the
courts the arbitrament of a tribunal which is free from bias against any party and whose decision will
be based upon those facts only that have been proved in evidence adduced before it in accordance with
the procedure adopted in courts of law; and thirdly, that, once the dispute has been submitted to a court
of law, they should be able to rely upon there being no usurpation by any other person of the function
of that court to decide it according to law. Conduct which is calculated to prejudice any of these three
requirements or to undermine the public confidence that they will be observed is contempt of court. 15

The judiciary is a public bodies which requires acceptance among the people. The lack of
trust on judiciary can bring chaos in society and may invite arbitrariness in society. So any
12
Denis McQuail, Mass Media in the Public Interest: Towards a Framework of Norms for Media Performance,
IN MASS MEDIA AND SOCIETY 68-81 (James Curran & Michael Gurevitch eds., 1991).
13
The term sub judiceis derived from the Latin phrase “adhuc sub judice li est”, which means “the matter is still
under consideration”.
14
Attorney General v. Times Newspaper Ltd., 2 All ER 54 (1973).
15
Id. at 72.
 6

act of the media which contravenes or obstruct the function of judiciary is deemed to be
contempt of court. This contempt of court has been traditionally accepted into two different
forms as like in facie curiae (in front of the court) or ex facie curiae (outside the court), or as
criminal or civil.16 The bias reporting to the court proceedings may result into “scandalizing
the court”. The different in contempt of court is well explained by Lord Scarman for the
classification purposes:
The distinction between ‘civil’ and ‘criminal’ contempt is no longer of much importance, but it does
draw attention to the difference between on the one hand contempts such as ‘scandalizing the court’,
physically interfering with the course of justice, or publishing matters likely to prejudice a fair trial, and
on those other contempts which arise from non-compliance with an order made, or undertaking required

in legal proceedings.17

The common law doctrine of contempt of court does not exist in civil law jurisdictions in
broad encompassing sense 18 but there are undoubtedly functional equivalents, particularly
in matters relating to freedom of expression. In France, for example, Article 9-1
(Protection de la presomptiond ’innocence) of the Civil Code deals with publications
which allegedly prejudice the presumption of innocence. This notion is further protected
under Article 1419 of International Covenant on Civil and Political Rights (1966) along
with the notion of fair trial. There are also laws restricting the criticism of courts and
judges in many civil law jurisdictions.20 The act related to contempt is always strict
liability in nature. Such as, the Contempt of Court Act 1981 of United Kingdom set out in
s.2 (2) which states:
The strict liability rule applies only to a publication which creates a substantial risk that the course of
justice in the proceedings in question will be seriously impeded or prejudiced.

16
Background Paper on Freedom of Expression and Contempt of Court, for the International Seminar on
Promoting Freedom of Expression With the Three Specialised International Mandates, Hilton Hotel, London,
United Kingdom. 29-30 November, 2000.
17
Home Office v. Harman, 1 AC 280, p. 310 (1983).
18
M. Chesterman, Contempt: In the Common Law, but not the Civil Law, 46 ICLQ 521, (1997).
19
Article 14 of the International Covenant on Civil and Political Rights states: (1) All persons shall be equal
before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law. The 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 interest
of the private lives of the Parties so requires, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a
criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes or guardianship of children.(2) Everyone charged with
a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
20
M. K. ADDO, FREEDOM OF EXPRESSION AND CRITICISM OF JUDGES(2000).
 7

The European Court largely applied the relevant three part test and found that the interference
with freedom of expression was “prescribed by law” 21 and had a “legitimate aim”
(maintaining the authority of the judiciary), 22 but was not “necessary in a democratic
society.”23 These all laws prohibit the media which trouble with administration of justice.

The nexus between the fair trial and freedom of expression (FoE) is reflected into various
major international and regional human rights instruments on civil and political rights —
Universal Declaration of Human Rights (UDHR)24, International Covenant on Civil and
Political Rights (ICCPR)25, European Convention on Human Rights (ECHR), the American
Convention on Human Rights (ACHR), and the African Charter on Human and People’s
Rights (ACHPR) — all protect both freedom of expression and the administration of justice .
Almost most of the member states to the United Nation are also parties to these treaties which
have obligated the party to enact the national legislation which can protect the fair trial of
suspect and also protect the freedom of expression of media.

The freedom of expression is always subject to restriction. Whether the free expression of
press amount to defamation or not is not the subject of intent of the publishers rather their act
suffice to prove them guilty. Mostly, in the common law countries, a person held responsible
only when their act is supported by guilty mind (mens rea). This notion was well explained in
an English case of Odhams Press Ltd., ex p. Attorney-General,26 the Divisional Court stated:
“The test is whether the matter complained of is calculated to interfere with the course of
justice, not whether the authors and printers intended that result.” 27 The intention and the act
are two different phenomenons in the ambit of media trial. The act suffices the responsibility
to the concern person. This notion of strict liability was further explained in John Fairfax &
Sons Proprietary Ltd. v. McRae,28 the High Court of Australia stated: “The actual intention or
purpose lying behind a publication in cases of this kind is never a decisive consideration. The

21
The Sunday Times v. United Kingdom, 14 EHRR 229, ¶ 52 (1979).
22
Id.¶ 57.
23
Id.¶ 67.
24
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) (Hereinafter
UDHR).
25
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United
Nations, Treaty Series, vol. 999, p. 171,
26
R v. Odhams Press Ltd. ex parte Attorney General, 3 All ER 494 (1957).
27
Id. at 497.
28
John Fair Fax & Sons Propriety Ltd. v. McRae, 93 CLR 351 (1955).
 8

ultimate question is as to the inherent tendency of the matter published.” 29 The matter of
publication is further resulted into the civil and criminal liabilities imposed by the respective
statutory laws of the countries. The media trial is largely condemned by the scholar and it has
seen in the practice that, allowed the media to report on pending judicial proceedings with
little or no restriction and provide extensive (and often controversial) coverage of high profile
cases.30

The freedom of expression by nature of right is subject to restrictions and most of the
restrictions are based on the fact of proviso under the main clauses of the treaties. There is no
fact of argumentation that without restriction on press and publication, the fair trial of suspect
can be ensured. Considering the issues Richardson J has rejected traditional assumptions
about the effect prejudicial publications on juries:
[T]he absence of current empirical data to support a long-standing assumption in public policy is not, in
our view, adequate justification for shifting policy ground in favor of another approach which is also
deficient in supporting policy data and analysis. The present rule is that, where on conventional analysis
freedom of expression and fair trial rights cannot both be fully assured, it is appropriate in our free and
democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial. 31

So there must be balanced approach where the fair trial and freedom of expression can go
hand in hand. There should be well censored on publication which can prejudice the court.

LANGUAGE, MEDIA AND CRIME

Nepal has the mix legal system whereby the precedent is equally important to statutory
enactment/construction. There are three terms frequently used in the criminal jurisprudence
as like suspect, convict and accused. These three terms has different meaning and values and
also contains some norms. There is close connection between the language and crime
reported by the media personnel. The print media often found using these terms without
considering the impact of it on the person against whom they are reporting. The accepted
norm under the criminal jurisprudence is that every accused as considered as innocent until
proven guilty by a competent, impartial and authorized authority. 32 The accused has to be

29
Id. 371.
30
M. Chesterman, O. J. and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt
with in Australia and America, XLV AJCL 109, (1997).
31
[1995] 3 NZLR 563.
32
UDHR, supra note 24, Art. 10.
 9

proven beyond all reasonable doubt for any alleged crime33 and this notion has to be duly
observed in all the cases proceedings from pre trial to final stage of hearing.

Whether the 'freedom of expression and freedom of press clause 'is subject to restriction or is
absolute in nature is something which comes into picture while talking about language, media
and reporting. It has seen that lack of language sensitiveness in the print, online or any other
34
form of media has violated the right to fair trial of persons. Nepal has duly enshrined in
Article 19 of the Constitution35 which provides the free exercise clause to the media under
subject to certain restrictions under the proviso clause.36 Similarly, Nepal is party to various
international treaties which have secured the freedom of expression and press and it has
obligated Nepal to enact laws in compliance with those international standards and also by
virtue of section 9(2) of the Treaty Act 1990's.

Similarly, as per Article 1 of the 1978 Declaration on Fundamental Principles concerning the
Contribution of the Mass Media37has restricted media form some of the act like must be in
order to ‘the strengthening of peace and international understanding, the promotion of human
rights and the countering of racialism, apartheid and incitement to war demand a free flow
and a wider and better balanced dissemination of information. 38 These issues are not only in
terms of reporting but also in terms of using the languages which can attack on the personal
reputation. Nepal has specific legislation, policies, rules and directives which control the

33
Steven B. Hantler et al., Extending the Privilege to Litigation Communications Specialists in the Age of Trial
by Media, 13 COMM. L. CONSPECTUS 7, 7 (2004-2005).
34
Arpan Banerjee, Judicial Safeguards against “Trial by Media”: Should Blasi’s “Checking Value” Theory
Apply in India?,2 J. OF MEDIA L. & ETHICS 28, 29 (2010); Norman McFadyen, Pre- Trial Publicity: Guilty until
Proven Innocent, Paper presented at 20th International Conference: Brisbane, Queensland, Australia, 2-6 July,
2006.
35
Article 19 of the Constitution of Nepal, 2015 provides for the right to communication as the fundamental right.
It has vividly spoken that no publication, broadcast on any means would be pre-censored. It says: (1) No
publication and broadcasting or dissemination or printing of any news item, editorial, feature article or other
reading, audio and audio-visual material through any means whatsoever including electronic publication,
broadcasting and printing shall be censored.
36
Proviso to Article 19 (1) of the Constitution of Nepal, 2015 states: Provided that nothing shall be deemed to
prevent the making of Acts to impose reasonable restrictions on any act which may undermine the sovereignty,
territorial integrity, nationality of Nepal or the harmonious relations between the Federal Units or the
harmonious relations between various castes, tribes, religions or communities, or on any act of sedition,
defamation or contempt of court or incitement to an offence, or on any act which may be contrary to public
decency or morality, on any act of hatred to labour and on any act of incitement to caste-based untouchability as
well as gender discrimination.
37
UN Educational, Scientific and Cultural Organisation (UNESCO), Declaration on Fundamental Principles
Concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to
the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War, 28 November
1978
38
Id.
 10

Media. Some of them are like, Article 17.2.a. and Article 19 of the Fundamental Rights and
Duties (Part 3), the Broadband Policy 201539, National Information and Communication
Technology Policy 201540 Electronic Transaction Act (ETA) 2008.41 This ETA law is
considered as one of most debated law which can easily censor and can have scrutiny over
the media personnel and media's. The Act brought to make the electronic transaction fair is
taken as ‘cyber law’ by State. Article 47 of the Act is cited by the police for the vigilance on
citizens’. The Online Media Operation Directive 2016 is the most recent and relevant policy
document carrying significance in this report. This all policies do have a statutory enactment.

The Nepal Government recently issued the Online Media Operation Directive 2016, which
has various provisions that certainly curtail FoE on internet and may bring some seriousness.
The preamble of the Directive 42 has mentioned that the GoN has supervisory authority over
the media. Similarly the Clause no 1143 (Publication and broadcasting to be prohibited) of the
Directive mentions that prohibition on any news which contempt the court. Under Sec. 3 44 of
Libel and Slander Act, 1959, of Nepal has prohibited defamation. The person shall be
responsible for such act. The Contempt of Court bill introduced to the parliament in June
2014, which prohibits influencing a sub-judicial matter, insulting a court’s judgment,
recording court activities without permission from a judge, or insulting a staff member or
judge of the court. The convictions would carry a fine of as much as Rs 10,000 ($125) and up
to a year in jail. There is accepted norm in the criminal jurisprudence that ‘one should not try
to influence the court directly or indirectly during the period that a case is being heard. The
media’s role is to point out the wrongdoings of court, not to stage a demonstration in the
court premises during a hearing. This sort of act is considered as ‘scandalizing the court’
which is criminal offense.

39
See National Broadband Policy, 2014.
40
See National Information and Communication Technology Policy, 2015.
41
The Electronics Transactiosns Act, 2008.
42
Preamble of the Online Media Directives, 2016 provides: As it is expedient that the registration, renewal,
operation and monitoring of the online media be organized, the Government of Nepal has, exercising the rights
given by Clause 45 of the Good Governance (management and operation) Act, 2064 B.S., introduced this
Directives.
43
Clause 11(b) of the Online Media Directives, 2016 provides: Amounting to treason, defamation or contempt
of court or inciting commission of crime.
44
If a person, by way of writing or words or signs or understandable symbols, accuses another person, or
publishes the matter with intent to damage other person’s character or knowingly or having reason to believe
that it will make such a damage, the person shall be deemed to have libeled that other person.
 11

In Nepal the dispute regarding the previous appointment of Justice at the Supreme Court of
Nepal and battle with a National Daily Newspaper named, Kantipur over contempt of court
issues. The tussle between Media and Court keeps on and on in Nepal such as in this case,

The parliamentary hearing of the Supreme Court judges recommended by

the Judicial Council was sharply criticized by most media. Kantipur then
took up the subject by investigating the background of all the appointed
justices. Even when the paper was slapped with a contempt of court
against its group chairman, director, editor-in-chief and reporter, it
continued its exposes. Justice Cholendra Shamser Rana, Justice Gopal
Prasad Parajuli.–BinitaDahal(The law and the media)

Box No.1

The media irregularities are subject to the Press and Publications Act 1991 whereby the
journalists are obliged to obtain government registration to carry out their work. The ill
reporting and bias reporting may exempt from the licensing of the media. The statutory Press
Council, responsible for both the press and broadcasters and established to promote the
standards of a free press and settle complaints, also props up government control of the media
by consisting of members appointed by the government in a non-transparent process. Nepal
Telecommunication Authority (NTA) has ordered internet service providers to block
pornographic content and any material that “incites racial and religious hatred and is against
the national interest” as acting like the monitoring bodies. It is to be remembered that the
freedom of speech has to be exercised carefully and cautiously so as to avoid interference
with the administration of justice that may lead to undesirable results in the matters sub
judice before the Courts.45 Again, no one should ignore the well established principle that
justice should not only be done but should manifestly and undoubtedly be seen to be done by
the impartial Courts of justice.46 As Jeremy Bentham’s assertion it can be stated that public
opinion and free press as its most effective organ are forces not to be feared, but trusted.47

Recent news published in a national daily newspaper called, Kantipur regarding the notice of
a case against CIAA Chief Lokman Singh Karki has considered as contempt of court for not

45
Manu Sharma v. State, 6 S.C.C. 1 (2010).
46
KhondakarMostaque Ahmed v. Bangladesh, 34 D.L.R. (AD) 222 (1982); MostafizurRahman v. State, 51
D.L.R. 422 (1999).
47
T. H. GREEN & T. H. GROSE, THE PHILOSOPHICAL WORKS 110 (1882).
 12

allowing to be pasted on the premises of his house. The SC has warned the person who is
creating obstacle for the administration of justice or in the court proceedings.48

One of the defining features of trial by media in Nepal is the issues of gangster. These
peoples are portrayed as criminals in the newspaper without considering the personal and
other character of the people. As knowing the fact that Media plays a vital role in creating the
images within popular discourse and among mass media consumers. It has seen that media
whether print or online has act as a vibrant and trusty tool for shaping the public images and
ideologies.49 This notion is elaborated and accepted by one of scholar, Esbensen and Tusinski
argues that Media provides the stereotypical image of the gangsters which is the image close
to the image described by the law enforcement authorities for whom they are just criminals. 50
The prefixes for the gangsters are mostly appeared with name like underworld, godfather,
notorious gundas, Hatyaras and others. Theses tendencies of the print media are somehow
seen today also in Nepalese journalism landscape. In an informal discussion held among
group of 10 lawyers found that still there is prevalence of Media trial in Nepal. Since, the
Press Council has only authority to suspend the license for some years or month as per Code
of Ethics and violations. The further discussion said that, the media must be under controlled
which can’t undermine the trust of people on the judiciary. There were news regarding the
judiciary and judges which was a criminal contempt and court has warned to the particular
news paper.

Press Council- Nepal is a semi government body established on 1970 in order to regulate the
functions of media personnel and media community at large. Nepal has a statutory enactment
Press Council Act 1990’s which regulates the business transaction of the media personnel.
The Government has enacted Code of Journalistic Ethics, 2003 which rightfully inserted the
norms of journalism which requires language sensitiveness.51 The Government has
subsequently adopted and amended various Code which has regulated the journalism and
journalist reporting system such as,1968, 1976, 1983, 1990, 1992, 1998, 2003 and last

48
Krishna Gywali, MyadTamilai Ma KarkikoAfant Bata Awarodh, Kantipur National Daily, 18 Oct, 2016.
49
Rashmi Sheila, Identity and Representation of Gangsters and Gangs, Vol.21 STUDIES IN NEPALI HISTORY
AND SOCIETY NO.1, 76 (2016)
50
Finn Esbensen and Karin E. Tusinski, Youth Gangas in the Print Media, Vol 14(1) JOURNAL OF CRIMINAL
JUSTICE AND POPULAR CULTURE , 21-38 (2007)
51
CODE OF JOURNALISTIC ETHICS ,2003 ,4 (6) (6) Do not penalize the victims: Not publish, broadcast or
produce-distribute any news or opinion with the use of language, sound, picture, figure, scene or the like in such
a way as to make the victim suffer further pain. (7) Non disclosure: Not publish, broadcast or produce-distribute
any news, picture or scene in such a manner as to disclose the name, address and identity of a victim in a sexual
crime or in an event or context that evokes hate or brings social contempt, without the consciously given consent
of the victim.
 13

amended in 2007 has improvised with the international standard, norm and values. 52 The
Government has also enacted the National Mass Media Policy 2016 which has duly
concerned regarding the reporting of the media. In the Fiscal Year of 2014/15 has recorded
the following number of different form of media. This information’s are classified by the
Press Council-Nepal.53

S.N. Media Number Total No

s
1. Radio 652
2. TV 85 910
3. Online 432
Figure No.1

This numbers are only a representative figure on trends of media availaible in Nepal. In
comparison of Fiscal Year of previous year, this number has grown up. The Press Council Nepal
has received a different number of complaints by individuals, media personnel, organizations
regarding the different publication on print media which directly or indirectly hampers on their
personal life. There are some complaints regarding which has obstructed the administration of
justice. These numbers represents the complaint file at the Press Council Nepal in different
cases.54

S.N. Fiscal Year No. of Complaint

1. 2012/13 (2069-70) 46
2. 2013/14 (2070-71) 39
3. 2014/15 (2071-72) 51
4. 2015/16 (2072-73) 74
5. 2016 (19 Oct, 2073 9
Kartik)
Figure No.2

These complains are filed against most of the daily newspaper related to economic, JanAstha
Weekly Newspaper (5 in complaint), Nagarik Daily, Setopati dot.com (online), Annapurna
Post, Dainiki, Online Khabar and others. These are media which have large number of
subscribers and do have national impact. This figure shows fluctuation of complaint in
numbers. Most of the complaints are made against the print media.55

Print Broadcasting Online Others Total

Media Media
4 5 17 9 74
3
Figure No.3

52
Press Council-Nepal, Annual Report 2014-2015, 3 (2016).
53
Id. at 5, Annual Report 2016 (2073 B.S.)
54
Press Council-Nepal, Annual Report 2014-2015, 3 (2016).
55
Id .at 68.
 14

The tendencies of the complaint against the online media have become doubled in compare with
the previous fiscal year. In the fiscal year of 2014/15 (2071/72 B.S.) was 5 in number which
turned 17 in 2015/16 (2072/73 B.S.). These complaints include the language insensitiveness also.
In an interview with the representative of Press Council Nepal, the complaints have included the
different news which has created obstacle to the administration of justice along with attacking the
personnel character. The number of complaint registered against the specific newspaper in the
Fiscal year of 2014/2015 types are described as below:56

S.N. News Paper Complaint No.

1. Finance (Arthik) 5
2. Finance (Arthik Aviyan) 1
3. Kantipur 2
4. Arthik r Rajdhani 1
5. Annapurna Post 1
6. NayaPatrika r Swamikartik 1
7. Gorkhaptra 1
8. Hamro Naya Nepal 1
9. Butwal Tude 1
10. Nagraik 1
11. Sajha Kura 1
12. Yug Ahwan 1
Total 16
This is merely representative news which creates distrust on judiciary on public. After
accomplishing the research on library archives, the researcher found that although there is slight
decrease in language insensitiveness or media trial but there is news which is creating obstacle for
the administration of justice. Such as, the picture below shows:

No Work Without Money in Bhakatur District Court Innocent People

Behind Bar by Judiciary

In a survey conducted by researcher among 30 respondents representing the law colleges in

Kathmandu has come up with the following result depending on various questionnaires. The
findings of the survey are as below:

56
Id.at 70.
 15

Q.No.1
Q. No.2 Freedom of Expression as Right?
Have you heard Medai trial in
Nepal?
Yes No
Yes No No Idea May Be No Idea May Be
7% 17% 7% 17%
10% 10%

67% 67%

Q.No.4
Q.No.3
Free from Media trial in Ju-
Inflence over Administraiton of jus-
diciary
tice

Yes No No Idea May Be Yes No

No Idea May Be
10%7% 17%
7% 17%
10%

67% 67%

Q. No.5 Q. No.6
Media trial be stopped influence Form of Media
the judiciary
Yes No
Yes No No Idea May Be No Idea May Be
7% 17% 7% 17%
10% 10%

67% 67%

Q. No.7 Q. No.8
Role of Press Council Necessisty of Media Trial
Yes No No Idea May Be Yes No
7% No Idea May Be
10% 17%
7% 17%
10%

67%
67%

This figures are merely a representative of limited number of sample unit collected throu8gh
the respodent and their perception. In a survey, most of the respodent were selected through
random sampling of the universe of five different law colleges. The Media trial in the survey
found that one of phenomenal act seen which can influence the administration of justice.
Even, the personnel charcter are being attacked by the media and peoples have filed
complaint against the particular media. The Annex II has presented some list of cases which
 16

are recorded in Annual Report of 2014/15 and also a report published by Freedome House of
Nepal.

Q. No.9 Q. No.10
Nature of cases reported Punishment of Media
Yes No No Idea May Be Yes No No Idea May Be
7% 17% 7% 17%
10% 10%

67% 67%

Hence, it has although seen slight decrease in the language insensitiveness of the print media
while reporting the cases. It is hard to conduct the research due to varities of lanaguages used
in the print media for reporting. Nepal have huge numbers of community radio which make
reported own their language which is hard to evaluate. The survey found that, most of the
contempt were found criminal in nature and court has also warned and banned such media.
The Press Council has also suspaneded numebr fo media which have done in contravention
with the Code of Ethics of the Journalist and the way perscribed for them.

Concluding Remarks

The crime reporting is one of tough task for the media personnel. The language insensitivenss
also do have adverse effect on the personal character of the people. Even, the judiciary get
attracted by the media trial and it has seen in large cases. Nepal is not free from such
incidence where the media trial has obstructed the free administration of justice and free from
sub judice. In an empirical research found that still there is prevalence of media trial which jeopardize
the physical integrity, honety, liberty of an individuals. The Press Council Nepal is rigerously
working to suspend such reproting channel amd media. The research furtehr found that the Online
media are porn to violate the code of ethics than the rpitn medida but the print media is equally
sharing this portions. There were two news like of Kantipur and Annapurna Post which have
influenced the jsutice administraiton.

Hence, the research found that there is close connection with language insenitiveness and cirme
rpeorting in the print media. The situation is becoming more satisfactory than the previous years.
 17

Annex I
Questionnaire for Perception Index of Law Student
FREEDOM OF EXPRESSION AND ‘TRIAL BY MEDIA’ IN NEPAL: AN EMPIRICAL
STUDY OF LINGUSTIC SENSTIVIENESS IN CRIMINAL REPORTING IN PRINT MEDIA

1. How do you perceive Freedom of Expression as rights of Media?

a) Absolute Right b) Conditional Rights c) No idea d)

Depends

2. Have you heard anything about Media Trial in Nepal?

a) Yes b) No c) May Be d) Often

3. Do you think, Media trial has influence on administration of justice?

a) Yes b) No c) No idea d) Some

how

4) Do you think Nepalese Judiciary is free from Media trial influence?

a) Yes b) No c) Partially d) No idea

5) How can Media Trial be stopped to influence the Judiciary?

a) Make Laws b) Supervising c) No Idea d) Ban

6) What kind of Media are often found doing Media trial?

a) Print b) Online c) Broadcasting d) others

7) How do you mark the role of Press Council to stop Media trial?

a) Monitoring b) Sanction c) No Idea d) More Active

8) Is Media Trial necessary in democratic society?

a) Yes b) No c) Partially Yes d) No Idea

9) What kinds of cases are mostly reported in Media Trial?

a) Criminal b) Civil c) Both d) No idea

10. Have you heard of any punishment for those media?

a) Yes b) No c) No idea d) May be

 18

Annex II

i. Government of Nepal vs. Bikash Thapa (Maina Dhital)

The defendant was arrested and charge sheet submitted at Kathmandu District Court under
Section 47 of the ETA, 2008. The major charge that were filed by the applicant was that the
defendant harassed the plaintiff sending sexually explicit pictures and words to her email ID
and harassed her for long time. But, the accused was acquitted as there was no sufficient
evidence to establish the charge.

ii. Government of Nepal vs. Ganesh Dulal ( KA Kumari)

Defendant was accused that he involved on publication of private content of the plaintiff and
convicted under Section 47 of ETA, 2008. Here, the defendant was accused of taking
photograph of a minor and storing it digitally and exploiting the minor. The defendant was
punished with minor amount (2,000 NPR).

iii. Government of Nepal vs. Bhojraj Basnet et. al.

Bhojraj Basnet and Narendra Basnet were journalists who allegedly tookvideos without
consent of victim of public humiliation and defamationby upper caste people and broadcasted
via online news portal. The Courtdeclared that the act was under the permission of the
exercise of the freedomof expression of citizen under the constitution.

iv. Government of Nepal vs. Abdul Rahaman (Police Report)

This is much debated case in public sphere where a local police out of Kathmandu Valley
arrested and filed a charge sheet under Section 47 of theETA, 2008. Here, the defendant was
charged that his complaint of police oversocial media page was defamatory. However, the
Court declared that the act of defendant was under the permissible protection of the freedom
of expressionand warned Nepal Police for any future hostile prosecution.

v. Government of Nepal vs. Dinesh Acharya (Nirvan Choudhary)

Defendant, a journalist was charged under Section 47 of the ETA, 2008. Itwas alleged that
the defendant defamed the plaintiff sharing a scanned copy of newspaper on Facebook page.
The defendant was acquitted on the groundthat there was no defamation and it was under
permissible provision.

vi Police harasses online news scribes

On November 4, 2015, the Central Investigation Bureau of Nepal Police took under control
two journalists from their media house- yeskathmandu.com- for three hours over the news
reporting on the misuse of fuel provided freely to VIPs. A group led by Deputy
Superintendent of Police reached the news portal’soffice at Thapagaon, Kathmandu, and took
journalists Manoj Khatiwada and Parbati Thapa under control. They were released after three
hours withoutfurther inquiry, and action.
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