HAMDARD INSTITUTE OF LRGAL STUDIES AND

RESEARCH(HILSR)
SCHOOL OF LAW
JAMIA HAMDARD, NEW DELHI

ACADEMIC SESSION:2022-2023

CONSTITUTIONAL LAW-2 ASSIGNMENT

TOPIC: MEDIA TRIAL: CONFLICT BETWEEM FREEDOM OF PRESS AND

RIGHT TO FAIR TRIAL

Under the guidance of

MR, SANDEEP SIR

BY: SABA FATIMA

Enrollment No: 2021-342-084

Semester: 4
MEDIA TRIAL

‘’ I am a great lover of press, a great lover of freedom of speech and expression but please realise
your limits’’- Ram Jethmalani

ABSTRACT
The press and other mass media liberate the people from distance and also brings the news from all
around the word and have a power to act as mirror reflecting the opinion, impression, reaction on
people. It always challenges those powers who ignore or violate the interest and growth of society for
their personal interest. But now these days media have started new trend of media trial and to declare
a person guilty before the courts declaration. Because of prejudice from media accused have to face
hatred or sympathy from the public in general. Before the courts judgment the accused become
criminal or innocent in the eyes of public. In case of Sanjay Dutt, media has handled the case
sympathetically where as Manu Sharma has already been announced guilty by the media. Trial by
media had more negative impact rather than positive effect. Press council of India and bar council
India should formulate some guidelines regarding this issue. Otherwise statements outside the
courtroom will endanger the fairness of the trial.

1.INTRODUCTION

From British India to India media plays important role in every sphere. media is regarded as the fourth
pillar of our democratic system after the legislature, the executive and judiciary; it is supposed to play
a crucial role of watchdog in society1. Earlier media has power to change the world now media
confine itself to spreading and limiting the people’s mindset to hatred and give its own discretion
about anything before courts discretion. media itself become a kangaroo court and forget its power
with the passing of time and become puppet of the political power. Its play’s important role in
moulding the opinion of people. Every aspect of an accused’s personal life and character which have
nothing to do legally with the investigation of any crime are under public lens of scrutiny via the
media trial.

1(http://www.press.councilincin/speech Last modified on 10th sept., 2020)

Here question arises whether the media is accountable; if yes, then to what extent, making venture to
strike a balance between two conflicting rights, the right to privacy of individual versus the right of
free press to report.
Hon’ble the chief justice of India shri justice N V RAMANA one of his speeches said ‘’Doing justice
is not an easy responsibility. It is becoming increasingly challenging with each passing day. At times,
there are also concerted campaigns in media, particularly on social media against judges. Another
aspect which affects the fair functioning and independence of judiciary is the rising numbers of media
trial. . New media tools have enormous amplifying ability but appear to be incapable of distinguishing
between the right and the wrong, the good and the bad and the real and fake. Media trial cannot be a
guiding factor in deciding cases’’. Media has an important role in democratic process. It provides
valuable information to the government, public at large. In the last few years, there has been a
tremendous growth of media in the country in the form of print and electronic media. Its coverage of
trial process has been increased tremendously. The media can be commended for starting a trend
where it plays an active role in bringing the accused to hook.2

The media plays important role in reducing white-collar crime wealthy industrialist, corrupt officials,
famous personalities by greasing official’s palm and also plays an essential role in excavating the
governments huge scams. It has played an important role in shaping the people’s minds and made
tremendous influence on people’s perception sometime by making them aware and sometime by
putting blindfold on their eyes by showing the fake and prejudice of a person or things but one cannot
deny in some cases where media shows its honest work by getting criminals to justice in many cases,
such as Jessica Lal murder case, Priyadarshini Mitto Rape Case, Nitish Katara murder case. Due to
medias involvement the (Betting & Fixing row) by IPL Match came into publics conscience. Like
these situations media played affirmative role.
THE JOURNEY FROM FREEDOM OF PRESS TO TRIAL MEDIA
Media Trial phrase is popular from 20th century and gradually flowed into 21th century where it
describes the impact of television and newspaper coverage on a person’s reputation by creating a
widespread perception of guilt or innocence before, or after, a verdict in court of law.
The word ‘’media trial’’ is not directly defined anywhere. But indirectly, this power is being given to
the media under Article 19 of the constitution of India. Article(19)(a) of the constitution of
India provides freedom of speech and Expression to each and every person. The importance of
Article 19(1)(a) was given emphasis by Justice Bhagwati in the case of Maneka Gandhi v. Union of
India3 ‘’Democracy is based essentially on free debate and open discussion, for that is the only
corrective of government action in a democratic set up. If democracy means government of the people

2Nimmi, Role of Media in Election, Sept.2008, p.139

3Maneka Gandhi v. Union of India, AIR 1978 SC 597
by the people, it is obvious that every citizen must be entitle to participate in democratic process and
in order to enable him to intelligently exercise his rights of making a choice, free & general discussion
of public matters is absolutely essential.’’ It is important to note that freedom of speech is guaranteed
by several international convention as well as like the international covenant on civil and political
Right, Universal Declaration of Human Rights etc. In India freedom of speech and expression has not
been expressly given to media, because it was believed that if each citizen has the fundamental right
of speech and expression it is implied that it is the citizens that form the press and the pre has freedom
of speech and expression as well. But sometime missuses its power and became obstructer of justice.
freedom of press plays vital role in keeping democracy alive. However, press is supposed to act as a
vein which connects between the organ of the government and the public. The International Covenant
on civil and Political Rights,1966, Article 19 states the right to freedom of speech, ‘’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 pf his choice.’’4 However the freedom comes up with
restriction on the press that are –‘ special duties and responsibilities’ and is subject to ‘the rights or
reputation of others’.
In Re; Harijan Singh and Anr. V. In Re; Vijay Kumar5 the Supreme Court stated on the scope of
freedom of the press as ‘’ an essential prerequisite of a democratic form of government ‘’ and
regarded it as '' mother of all other liberties in a democratic society’’.6
The right under Art 19 (1)(a) includes ‘’ the right to information and the right to disseminate through
all types of media, whether print, electronic or audio-visual means’’.7 It was further stated in
Hamdard Davakhana v. Union of India, ‘’ that the right includes the right to acquire and impart
ideas and information about matters of common interest.’’8.
Freedom is only to give right information but media is only working for TRP and is working
one step away from court.
Ria chakrawarti media trial in Sushant case.
The two-judge bench of the Bombay High Court comprising Chief Justice Debankar Dutta and Justice
GS Kulkarni, gave this order.’’ In this order, they spoke about media trials, contempt law. They, have
also answered the question of whether the contempt law can be used against media organisation which
seem to be conducting trial by the media,’’9
After the death of Bollywood actor Sushant Singh Rajput, his actress girlfriend Rea Chakraborty has
found herself at the centre of a vicious hate campaign led by media trial. conservative television hosts

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

5 Re: Harijai Singh and Anr. v.In Re: Vijay Kumar, (1996) 6 SSC 466
6 Ibid (4)
7 Romesh Thapar v. State of Madras 1950 SCR 594
8 Hamdard Davakhana v. Union of India 19609
9 (THEPRINT TEAM, 2021)
have portrayed her as a ‘’ manipulative’’ women who ‘’ performed black magic’’ and ‘’ drove
Sushant to suicide’ ‘on social media, she has been trolled mercilessly and called a ‘’ fortune
huntress’’, a’ ‘mafia moll’’ and sex bait to trap rich men’’.
Though there was no evidence against her and Shushan’s death is still being investigated, but before
the court’s judgment press has already declared the actress guilty of crime.
Senior supreme court advocate Meenakshi Arora said. ‘’ she’s been hanged, drawn, and quartered, ‘’
Ms Arora said, alluding to a form of grisly punishment hanged out in medieval Britain for high
treason. ‘it’s a complete trial by media. It’s the job of the investigation and the courts, it’s not the job
of media to try her. LEGALLY THIS IS SO WRONG,10
Restrictions on media
(a) Constitution of India
The Supreme Court and High Court have power to intervene and punish the person and
publication of any matter, which causes prejudice to a pending proceeding to keep the stream
of justice to clear and pure so that parties may proceed with safety both to themselves and to
character. That is why clause (2) of Article 19 (1) permits imposition by law of reasonable
restrictions.
THE ARTCLE 19(1)(a). provides every citizen of a county a right to freedom of speech and
expression. It includes the right to share ones thought or views at any topic through any
medium be it words (orally or written), painting, film etc.
But there are certain restriction in the same article in clause (2) which states that nothing in
sub clause (a)(1) shall affect the operation of any existing law, or prevent the state from
making any law, in so far as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub clause in the interests of the sovereignty and integrity of India
,the security of the state , friendly relation with foreign states, public order, decency or
morality or in relation to contempt pf court, defamation or incitement to an offence.11
(b) The contempt of court Act, 1971
Section 2(c) of the contempt of court act, 1971 defines ‘’criminal contempt’’ means the
publication (whether by words, spoken or written, or by signs or by visible representation, or
otherwise) of any matter or the doing of any other act whatsoever which-
I. Scandalise or tends to scandalise, or lowers or tends to lowers or tends to lower the
authority of, any court; or

10 (Pandey, 2020)

11. Ins. by the constitution (Sixteen Amendment) Act,1963, s.2.

 II. Prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
III. Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;12

(c) International Law

Article 19 of International Covenant on civil and political Right states that- ‘’ The press and the
public may be excluded from at least part of trial for reasons of moral and public order or national
security in a democratic society or when the interest of the private lives of the parties’’13 .
(d) Reporting of Court Proceeding
The Indian media has been playing a pivotal role in highlighting the functioning of the Indian
judiciary and its decisions, more particularly in the last three decades. Indian judiciary seen as
one of the most active and independent judicial system and is widely respected across the globe.
It is true to reiterate that media forms the fourth limb in a democracy which has embraced rule
of law for its governance.
The legislatures, the executive, and the judiciary work in tandem by way of allocation of power
to each. The relationship between media and judiciary needs to be carefully managed by both
the institution while the media strives to provide access to information to the public it need to
ensure that it does not trample upon the rights of various parties involved in a particular case or
unduly influence the judiciary14 .
The problem raised by the trial by media involves a tug of war between two conflicting principle
‘‘free press’’ and ‘’free trial’’. The press plays a vital part in the administration of justice. It is
the watchdog to see that every trail is conducted fairly, openly, and above board. The watchdog
may sometime break loses and have to be punished for misbehaviour. This is the reason for the
law of contempt of court as applied to the press15.
In CASE Re. P. C. Sen16 it was observed by Hon’ble Supreme Court that ‘’Contempt by speech
or writing may made by scandalizing the Court itself, or by abusing parties to actions, or by
prejudicing mankind in favour or against a party before the cause is heard. It is incumbent upon
Courts of justice to preserve their proceeding from being misrepresented, for prejudicing the
minds of the public against person concerned as parties in cause before the cause if finally
heard, has pernicious consequences. Speeches or writing misrepresenting the proceedings of
the court amount to contempt.

12 Contempt of Court Act 1971, p. section 2(c).

13 S.K. Kapoor, International Law, and Human Rights, (2004), p. 867
14 AnjitPrasayat, Reporting of court proceeding, Nyaya Deep, The official journal of Nalsa, Vol.9, jan 2003, p.36
15 R.C.S. Sarkar, The press in India, (1984), p. 128
16 1970 CrLJSC 1525
 CASES WHERE MEDIA HELPED IN FAIR TRIAL
Media a vital role in changing the perception of the society and have a potential in moulding the public
opinion.
The Jessica Lal case (2010)- where the media rejoiced over their efforts in bringing justice to Jessica
Lal and the trial court had acquitted the accused of all the charges.
The Priyadarshini Mattoo case (2006)-where a law student was raped and murdered and the judgment
of this case was suspected to have been influenced by Media Trial.

The Bijal Joshi rape case and Nitish Katara murder case- gave credits to media where the accused
would have gone unpunished if media wouldn't had intervened. But on the other side media also
pinpointed innocent people in the case of Malegaon blast and Maria Susairaj case ignoring the
importance of accuracy.
Sometimes where there has been high publicity of court cases, the media has played a crucial role in
creating panic among the viewers, making fair trial nearly impossible. There have been grounds why
the attention of the media around certain cases is sensationally high. First, Cases which involve children
or they could be so barbaric or gruesome that the media considers it mandatory to sensationalize such
cases. Second, The case could concern a leading celebrity either as a victim or as an accused.17
In the case of Stephen Downing, 2002, in Derbyshire, through a simple campaign, a local newspaper
editor reopened the case and was successful in releasing the convict after twenty-seven years of his
conviction.
Therefore, it can be easily said that the media acts as a bridge between the Judiciary and the public as
it covers all sort of good and bad aspects creating an impact on the life of an accused.18

Clashes between freedom of Press and Accused’s Right of Fair Trial

Free speech and fair trial are two of the most cherished policies of our civilisation, and it would be
trying task to choose between them19.
Law commissions Report
The law commission in its 200th Report ‘trial by media, free speech v. fair trial under criminal Procedure
Code has made recommendation to enact a law to prevent the media from reporting anything prejudicial
to the rights of the accused in criminal cases from the time of arrest, during investigation and trial. The
commission has said,’’ Today there is feeling that in view of the extensive use of the television and

17 https://www.legalserviceindia.com/legal/article-9020-live-in-relationship.html
18 https://www.legalserviceindia.com/legal/article-9020-live-in-relationship.html
19 hppts.//www.rrnnlo.ac.in/content/devershalticlepo1f.p1
cable service of new has changed and several such publication are likely to have a prejudicial impact
on the suspect, accused, witness and even judges and general on the administration of justice20.
Presumption of innocence until proven guilty and guilt beyond reasonable doubt.

“Ei incumbit Probatio qui dicit, non qui negat states that ‘’
The is a presumption of innocence for every person until proven guilty’’

It is a recognised legal right, especially in a criminal trial. In the Universal Declaration of Human Rights,
the United Nations mention it as an international human right, under Article 11. During the 2000s, the
Supreme Court struck with the stance that the right to be presumed innocence is only a human right, in
relation to the accused in trial, which was reflected in a few judgements21. In 2010, the first judgement,
of Manu Sharma v. State (NCT) of Delhi22, where the court was considering the impact of a media
trial on the accused, came with a view that destruction pf the presumption of innocence of the accused
would go against the rule of law as well as Article 21 of constitution.

CONCLUSION
Dan Brown in his popular work- Angel & Demons summed up the significance of Media by stating
that “ The media is the right arm of anarchy.” The real need of the hour is to educate and enlighten
the media with regard to the limitations on the freedom of speech and expression. Subject to the
Constitutional and other statutory limitations, as far as possible, every agency should be able to operate
in its own field without encroaching into the dominion earmarked for other agencies. The appropriate
course for the media may be to conduct a parallel investigation without any publicity and either aid the
empowered investigating agency or even the trial Judge, leaving it to the curial process to decide,
preferably after notice to all the stakeholders, as to whether a particular material should be admitted in
evidence and relied on or not. In situations where the investigating agency is not open, a such
investigation by the media can serve as a check on the lack of probity of the empowered agencies in
charge of investigation and prosecution, but at the same side media has no jurisdiction to pronounce the
judgments.

20 Sudhanshu Ranjan, Media on Trial, The Times of India

21 Noor Aga v. State of Punjab, (2008) 16 SSC 417; Vinod Solanki v. Union if India, 2009 (233) ELT 157 (SC).
22 Manu Sharma v. State (NCT) of Delhi,2010 AIR (SC) 2352.