EFFECT OF TRIAL BY MEDIA BEFORE

COURTS
Media is regarded as one of the pillars of democracy. Media has wide ranging roles
in the society. Media plays a vital role in molding 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.

Freedom of media is the freedom of people as they should be informed of public

matters. It is thus needless to emphasis that a free and a healthy press is
indispensable to the functioning of democracy. In a democratic set up there has to
be active participation of people in all affairs of their community and the state. It is
their right to be kept informed about the current political social, economic and
cultural life as well as the burning topics and important issues of the day in order to
enable them to consider forming broad opinion in which they are being managed,
tackled and administered by the government and their functionaries. To achieve this
objective people need a clear and truthful account of events, so that they may form
their own opinion and offer their own comments and viewpoints on such matters
and issues and select their future course of action. The right to freedom of speech
and expression in contained in article 19 of the constitution. However the freedom is
not absolute as it is bound by the sub clause (2) of the same article. However the
right it freedom and speech and expression does not embrace the freedom to
commit contempt of court.

In India, trial by media has assumed significant proportions. Some famous criminal
cases that would have gone unpunished but for the intervention of media are
Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case and Bijal Joshi
rape case.

The media however drew criticism 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 media has again
come in focus in its role in Arushi Murder case. The concept of media trial is not a
new concept. The role of media was debated in the Priyadarshini Mattoo case, Jessica
Lal Murder Case and likewise many other high profile cases. There have been
numerous instances in which media has been accused of conducting the trial of the
accused and passing the ‘verdict’ even before the court passes its judgment. Trial is
essentially a process to be carried out by the courts. The trial by media is definitely
an undue interference in the process of justice delivery. Before delving into the issue
of justifiability of media trial it would be pertinent to first try to define what actually
the ‘trial by media’ means. Trial is a word which is associated with the process of
justice. It is the essential component on any judicial system that the accused should
receive a fair trial.

Media has now reincarnated itself into a ‘public court’ (Janta Adalat) and has started
interfering into court proceedings. It completely overlooks the vital gap between an
accused and a convict keeping at stake the golden principles of ‘presumption of
innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. Now, what we
observe is media trial where the media itself does a separate investigation, builds a
public opinion against the accused even before the court takes cognizance of the
case. By this way, it prejudices the public and sometimes even judges and as a result
the accused, that should be assumed innocent, is presumed as a criminal leaving all
his rights and liberty unrepressed. If excessive publicity in the media about a suspect
or an accused before trial prejudices a fair trial or results in characterizing him as a
person who had indeed committed the crime, it amounts to undue interference with
the “administration of justice", calling for proceedings for contempt of court against
the media. Unfortunately, rules designed to regulate journalistic conduct are
inadequate to prevent the encroachment of civil rights.

Trial By Media Is Contempt Of Court And Needs To Be Punished [i] 

The Contempt of Court Act defines contempt by identifying it as civil and criminal.
Criminal contempt has further been divided into three types:

# Scandalizing

# Prejudicing trial, and

# Hindering the administration of justice.

Prejudice or interference with the judicial process:

This provision owes its origin to the principle of natural justice; ‘every accused has a
right to a fair trial’ clubbed with the principle that ‘Justice may not only be done it
must also seem to be done’. There are multiple ways in which attempts are made to
prejudice trial. If such cases are allowed to be successful will be that the persons will
be convicted of offences which they have not committed. Contempt of court has
been introduced in order to prevent such unjust and unfair trials. No publication,
which is calculated to poison the minds of jurors, intimidate witnesses or parties or to
create an atmosphere in which the administration of justice would be difficult or
impossible, amounts to contempt. 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. [ii] , where in it was observed by the
learned judge that:

“ …… When litigation is pending before a Court, no one shall comment on it in such a

way there is a real and substantial danger of prejudice to the trial of the action, as for
instance by influence on the Judge, the witnesses or by prejudicing mankind in
general against a party to the cause. Even if the person making the comment
honestly believes it to be true, still it is a contempt of Court if he prejudices the truth
before it is ascertained in the proceedings. To this general rule of fair trial one may
add a further rule and that is that none shall, by misrepresentation or otherwise,
bring unfair pressure to bear on one of the parties to a cause so as to force him to
drop his complaint or defense. 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'."

Fair trial
Parties have a constitutional right to have a fair trial in the court of law, by an
impartial tribunal, uninfluenced by newspaper dictation or popular Glamour. What
would happen to this right if the press may use such a language as to influence and
control the judicial process? It is to be borne in mind that the democracy demands
fair play and transparency, if these are curtailed on flimsiest of grounds then the very
concept of democracy is at stake.

The concept of ‘denial of a fair trial’ has been coined by authoritative judicial
pronouncements as a safeguard in a criminal trial. But what does the concept ‘denial
of fair trial’ actually mean:

The conclusions of the judicial decisions can be summed as follows:

The obstruction or interference in the administration of justice Vis a Vis a person

facing trial.

The prejudicial publication affecting public which in term affect the accused amount
to denial of fair trial.

Prejudicial publication affecting the mind of the judge and Suggesting the court as to
in what manner the case should be preceded.

The publisher of an offending article cannot take shelter behind the plea that the trial
to which the article relates to isn’t then in progress nor immediately to be begun but
it has to occur at a future time. Our law of contempt however does not prevent
comments before the litigation is started nor after it has ended. In re
P.C.Sen [iii] 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 [iv] . Contempt by speech or writing may
be by scandalizing the Court itself, or by abusing parties to actions, or by prejudicing
mankind in favor 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 Indian courts have emerged as the most powerful courts in the world with
virtually no accountability. But every institution even the courts can go wrong. Every
institution including the judiciary has its share of black sheep and corrupt judges. The
judiciary are 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 stifling all criticism by the threatened exercise of the power of contempt, the issue
in a democratic society is ultimately one of the accountability of the judiciary itself. In
order to stifle free speech and comments on the court, even an occasional exercise of
this power is enough to deter most persons from saying anything that might annoy
their Lordships. Perhaps the most important reason for the lack of reforms in the
judiciary is the reluctance of the Press to write about and discuss the state of affairs
within it for fear of contempt.

In Shalab Kumar Gupta and Ors. v. B.K. Sen and Anr [v] . It was held by the Supreme
Court that:

“No doubt it would be mischievous for a newspaper to systematically conduct an

independent investigation into a crime for which a man has been arrested and to
publish the results of that investigation. This is because trial by newspapers, when a
trial by one of the regular tribunals of the country is going on, must be prevented.
The basis for this view is that such action on the part of a newspaper tends to
interfere with the course of justice whether the investigation tends to prejudice the
accused or the prosecution. There is no comparison between a trial by a newspaper
and what has happened in this case."

The Ins And Outs Of Media Trial- English View [vi] 

High-profile civil litigation is not just decided in the courts; it also is decided in the
court of public opinion. Courts and legal commentators are increasingly recognizing
that the media, through the way it covers litigation, has a very real impact on the
resolution of individual lawsuits. Common sense dictates that it is within a lawyer's
role, therefore, to work with reporters on their stories to ensure accurate reporting.
Many defense attorneys in high-profile cases, though, flinch at the idea of saying
anything to reporters out of concern that such conversations could be misconstrued
as an attempt to affect the jury pool or persuade a judge or jury. For this reason,
rules and beliefs have developed as to how lawyers may appropriately engage the
media to mitigate its impact on their clients.

Pro-Plaintiff Media Bias

Litigation involving well-known companies or individuals always has grabbed the
attention of the news media, especially when it involves sensational charges. The
magnitude of the coverage and the filter through which the media reports on
litigation can create a “clear plaintiff bias in civil cases." While small companies can
find themselves under the media spotlight in a particularly novel or “bet the
company" suit, the media tends to focus on allegations against established and
respected corporate defendants. These larger companies tend to have household
names, and allegations against them can make good “copy" - even if the allegations
are seemingly spurious, commonplace or unproven. The same is true for litigation
involving celebrity defendants

In covering litigation, particularly corporate litigation, the media has an inherent bias
that favors plaintiffs. When charges are made public, the media automatically reverts
to the basic elements of storytelling and casts the lawsuit in traditional protagonist-
antagonist terms. The defendant, simply by being on the wrong side of the “v,"
becomes the "villain" to the plaintiff's “victim," whether or not the actual charges
have any factual basis or legal merit. Reports frequently lead with the plaintiff's injury
or allegations and only include the corporate position as a response. These stories
rarely are counterbalanced by positive stories about the defending company.
Because companies would rather not draw attention to any litigation, they usually do
not seek publicity for their victories. Even if they did, reporters often do not see
corporate litigation victories as particularly newsworthy. Goliath is supposed to beat
David; that is not news.
The Nature of Bias in High-Publicity Cases
A larger issue is the complex nature of juror bias and how that bias predisposes a
juror toward one side in a case. It is no secret that we all have biases. The difficulty
comes from understanding how those biases may ultimately affect the viewing of
evidence and the deliberations in a case. Judges are also Human Beings they too care
about the reputation and promotion. That time is gone when judges are not
considered as social because it will harm their reputation. Now days Judges are social
and being an human being they care about their promotions and remunerations. In
high profile cases they tend to be bias and give verdict as per as media reports just
to be in lime light . this will surely help them to get a promotion before other
competitive judges. Media is so much into our daily life’s that judges too can’t stay
away from it and they usually tend to give verdict as per media reports.

The Additional Pressure on Judges in High-Publicity Trials [vii] 

The media create a series of unconscious pressures on a juror in a high-profile trial.
Jurors know that they are being watched by the world. They are not only making a
decision for themselves, but they are making a statement for their family, co-workers,
community, and society as a whole. This elevates their verdict to a level beyond the
evidence. In interviewing jurors after the trial of Hollywood madam Heidi Fleiss, many
jurors expressed how they hoped that the police would use their resources more
wisely than to prosecute victimless crimes. When talking about the testimony of Dr.
Irwin Golden, who was the coroner in the Simpson case, juror Marsha Rubin-Jackson
said:

But it comes to the point in this particular case where Dr. Golden has made thirty
errors. Now, you can't tell me this man has not made errors on previous autopsies . . .
. But this just happened to be a case that came to the court as a 'high-profile' case
and the problems were brought to everyone's attention

Media as a Watch Dog

Media do play a role as Watch dog and bring the facts as it is there. It act as mirror
for the society. It brings only what is happening around and make the legislatures
and government answerable for the act of them. In cases media only brings the facts
coming from investigating agencies and put it in front of the society, so that society
can be aware of the facts happening around them. They have a right to know and
express their views on that particular case and media just act as a platform to bring
the voice of the society

Conclusion
Though media act as a watchdog and act as a platform to bring people voice to the
notice of society and legislatures. But now days media is so much sensationalized
and they just do for their salaries and TRP’s. there are few reporters those showing
only those news for what they have been paid by political parties. 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 most suitable way to regulate the media will be to exercise the contempt
jurisdiction of the court to punish those who violate the basic code of conduct. The
use of contempt powers against the media channels and newspapers by courts have
been approved by the Supreme Court in a number of cases as has been pointed out
earlier. The media cannot be allowed freedom of speech and expression to an extent
as to prejudice the trial itself. Certain cases are so hyped for a day or two, so much so
that you switch to any channel, they all will be flashing the same story but then when
the heat is over there is no following of the case. The news then jostles for space with
other stories that are carrying the heat then. Media just sensationalized the case for
few days and leave it as they find other “masala" news irrecpective of how much
importance earlier news was.

Trial is very much effected by the Media sensation. Judges while making decision
start considering Media criticism if they goes opposite from the view of the Media
that’s why in mostly high profile cases verdict passes by media becomes the final
verdict in trial courts.