MEDIA TRIAL: A SECOND JUDICIARY?

By:

Aditya Sharma (2013007)

Farhan Ali Khan (2013136)

Dharmendra Tripathi (2013134)

5 Year Integrated B.A.,LL.B. (Hons.) Course

MEDIA LAW

Under the supervision of

Ms. K. Aruna

Asst. Professor

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM, VISAKHAPATNAM-531035
ANDHRA PRADESH, INDIA

03-11-2017

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 CERTIFICATE

This is to certify that the dissertation entitled Media Trial: A Second Judiciary? for the
Seminar Paper Media Law to Damodaram Sanjivayya National Law University,
Visakhapatnam is a record of original work done by Mr. Aditya Sharma & Dharmendra
Tripathi & Farhan Ali Khan under my supervision and guidance to my satisfaction.

Visakhapatnam sd/-

Date: 03-11-2017 Ms. K. Aruna

(Asst. Professor)

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 ACKNOWLEDGEMENT

It is a great pleasure to put on records my appreciation and gratitude towards the

Vice Chancellor for support and encouragement all through the preparation of this
report. I would like to thank our faculty Ms. K. Aruna (Asst. Professor) for her
valuable support and suggestions for the improvement and editing of this
dissertation report. Last but not the least, I would like to thank all the friends and
others who directly or indirectly helped me in completion of this dissertation report.

--Aditya Sharma (2013007)

--Dharmendra Tripathi (2013134)

--Farhan Ali Khan (2013136)

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 TABLE OF CONTENT
Pg. No.

Certificate............................................................................................................................
Acknowledgement................................................................................................................
Abbreviation……………………………………………………………………………………………..
List of Cases………………………………………………………………………………….
Abstract.............................................................................................................................
Literature review................................................................................................................
Hypothesis.........................................................................................................................
Research question................................................................................................................
Objective.............................................................................................................................
Research methodology.........................................................................................................

CHAPTER – 1

1. Introduction………………………………………………………………………………
2. Unsettling of The Fourth Estate………………………………………………………….
3. A History of Media Trials………………………………………………………………..

CHAPTER – 2

1. The Concept of Fair Trial…………………………………………………………………

2. Impact of Media Trials…………………………………………………………………...
2.1 Media Trials Vs Freedom of Speech and Expression………………………………
2.2 Media Trial Vs Fair Trails…………………………………………………………….
2.3 Media Trials Vs Right to Be Represented………………………………………….....
3. International Convention on Fair Trial…………………………………………………….
3.1 Position in USA……………………………………………………………………….
3.2 Position in UK…………………………………………………………………………
3.3 Position in India……………………………………………………………………….

CHAPTER – 3

1. Is Media Trial A Contempt Of Court?............................................................................

2. The Downward Side To Media Trial……………………………………………………..
2.1 Pro Plaintiff Media Bias………………………………………………………………

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 2.2 The Nature of Bias In High Publicity Cases………………………………………….
2.3 The Additional Pressure On Judges in High Publicity Trials………………………..
3. Regulatory Measures………………………………………………………………………

CHAPTER – 4

1. 200th Law Commission Report…………………………………………………………..

2. Constitutionality of Media Trials……………………………………………………….
2.1 Freedom of Press……………………………………………………………………
2.2 Immunity Under Contempt Of Court Act, 1971……………………………………
2.2.1 The Public’s Right To Know………………………………………………..
2.2.2 Public Participation………………………………………………………….
2.2.3 Ineffective Legal Norms Governing Journalistic Conduct…………………

CHAPTER - 5

1. Media Trials: A Necessary Evil?..................................................................................

1.1 Right to fair trial compromised …………………………………………………….
1.2 Meddling with the criminal justice system………………………………………….
2. The Media as a Watch Dog …………………………………………………………….

CHAPTER - 6

1. Pros and cons of media Trial …………………………………………………………..

1.1 Trial by media is it fair? ……………………………………………………………
1.2 Threat of Media Trial and its justification …………………………………………
1.3 Right to approach high court or Supreme Court……………………………………
2. Influence of Media on accused …………………………………………………………
2.1 Influence of Media on witness ……………………………………………………..
2.2 Influence of Media judge and Court………………………………………………..

CHAPTER - 7

1. Misuse of Freedom of speech …………………………………………………………

2. Defects in Media displaying ……………………………………………………………
2.1 Twisting Facts ………………………………………………………………………
2.2 Paid News……………………………………………………………………………

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 2.3 Non issues and real issues …………………………………………………………
2.4 Tendency to brand …………………………………………………………..……

CHAPTER – 8

1. Comparative study between India and USA………………………………………….

2. Case study …………………………………………………………………………….
3. Suggestion …………………………………………………………………………….

CONCLUSION …………………………………………………………………………..

BIBLIOGRAPHY ………………………………………………………………………..

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 ABBREVIATIONS

1. AIR…………………………………………………………………..All India Reporter

2. CriLJ……………………………………………………………..Criminal Law Journal

3. EBC……………………………………………………………Eastern Book Company

4. Etc……………………………………………………………………………...Et cetera

5. HC…………………………………………………………………………..High Court

6. Ibid………………………………………………………………………………Ibidem

7. Ltd………………………………………………………………………………Limited

8. MP………………………………………………………………….…Madhya Pradesh

9. p……………………………………………………………………………………page

10. Pub………………………………………………………………………….Publication

11. R……………………………………………………………………………………Rule

12. Raj………………………………………………………………………….…Rajasthan

13. S…………………………………………………………………………………Section

14. SC……………………………………………………………………….Supreme Court

15. SCC………………………………………………………………Supreme Court Cases

16. v...……………………………………………………………………...…………versus

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 LIST OF CASES

1. R.K. Anand v. Delhi High Court, (2009) 8 SCC 106, para 293
2. State of Maharashtra v. Rajendra Jawanmal  Gandhi, 1997 (8) SCC 386
3. Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641
4. Printers (Mysore) Ltd. v. CTO, (1994) 2 SCC 434 
5. R. Rajagopal v. State of T.N., (1994) 6 SCC 632
6. Habibullah Sheikh v. State of Gujarat, (2005) 2 SCC (Jour) 75
7. Rajendra Sail Vs. Madhya Pradesh High Court Bar Association and Others, (2005) 6 SCC
109
8. Kartongen Kemi Och Forvaltning AB and Ors. vs. State through CBI, 2004 (72) DRJ 693
9. M.P. Lohia v. State of West Bengal, AIR 2005 SC 790
10. Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr. AIR1975 AP 30
11. In re P.C.Sen, AIR 1970 SC 1821
12. R. v. Gray, [1900] 2 Q.B.D. 36
13. Sushil Sharma v. The State (Delhi Administration) and Ors, 1996 CriLJ 3944.
14. Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr, AIR 1961 SC 633
15. Pennekamp v. Florida, 328 US 331 : 90 L Ed 1295 (1946)
16. D.C. Saxena (Dr.) v. Chief Justice of India, (1996) 5 SCC 216
17. Papnasam Labour Union v. Madura Coats Ltd., (1995) 1 SCC 501
18. J Simpson case, Case no. BA097211
19. United States v. Burr, 25 F Cas 55 (D Va 1807).
20. In Rideau v. Louisiana 373 US 723 (1962).
21. Bridges v. California 314 US 252 (1941)
22. Sam Sheppard,
23. In Re: Vijay Kumar, (1996) 6 SCC 466, 
24. Hamdard Dawakhana v. Union of India, 1960 (2) SCR 671
25. Anukul Chandra Pradhan v. Union of India, 1996 (6) SCC 354
26. Ajay Goswami v. Union of India, (2007) 1 SCC 143
27. Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd. 1994 (3) SCALE 703
28. State (N.C.T. of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820,
29. In Sheela Barse v. Union of India,(1995) 5 SCC 654.

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30. In Praful Kumar Sinha v. State of Orissa, AIR 1989 SC 1783
31. Rajesh Talwar vs C.B.I & Ors
32. In Re M.V.Jayarajan,
33. Kochumoideen V. Nambeesan and Others
34. Nitish katara murder case
35. Priyadarshini mattoo case, (2010) 9 SCC 747
36. Jasica lal murder case Crl.R.596/2000, 
37. Arushi talwar case,  (2012) 2 SCC 188
38. Nirbhya case, AIR2014SC1649, 
39. K m Nanavati case, 1962 SCR Supl. (1) 567

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 MEDIA TRIAL: A SECOND JUDICIARY?

ABSTRACT

Media, as referred to by many as the “eyes and ears of the general public”. 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 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 Free and healthy media is indispensable to
the functioning of democracy

Administration of justice is very essence of natural justice and rule of law. For ensuring the
dispensation of justice and to remain transparent there is an important legitimate role of
media. Therefore media is expected to perform its duty which should be in the limits and
within the ethics. Media personalities have to conduct themselves in accordance with law and
court protocols. When they report the court proceeding to the general public they have an
additional responsibility of collecting correct, relevant and accurate information about the
case on trial. Generally disputes arise when reporter publishes the information against the
order of judge and writes about the camera proceedings. Such disobedience generally termed
as “contempt of court”. Media vicariously play an investigative role because much of the fact
finding and argumentation is conducted by media even if the trial is not completed.

However, media freedom also entails a certain degree of responsibility. Both the judiciary
and the media are engaged in the same task: to discover the truth, to uphold the democratic
values and to deal with social, political and economic problems.

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LITERATURE REVIEW:

While conducting any research work the review of literature of the past theory is necessary.
The literature review provides information of the work done in the related area and
theoretical framework on which the proposed solution of the problem can be based. The
literature on the problem is quite scattered and extract from different sources to make the
depth study of the problem under study namely competition law and IPR. The brief review of
the literature has been given below:

1. V.N. Shukla (2015)1 In this book the author discussed the constitutional perspective
of media trial in Indian context. Media is also called the 4th pillar of the democratic
country. Media has a strong influence on the legal process. For ensuring the
dispensation of justice and to remain transparent there is animportant legitimate role
of media. Therefore media is expected to perform itsduty which should be in the
limits and within the ethics.

2. Mark Pearson (2008)2 In this book the author discussed the legal system which
the media trial and the judiciary are engaged in the same task: to discover the truth,
to uphold the democratic values and to deal with social, political and economic
problems.

STATEMENT OF PROBLEM:

In this seminar paper, the author has tried to analyze the ever-present issue of Media trial.
The issue of the constitutionality of the media trial will also be dealt in the paper in the
background of the numerous cases where the media has sensationalized the issue and thereby,
creating a bias against or in the favour of the accused, resulting in the hinderance in the
administration of justice. The fierce debate between the advocates of free media vs. those in
favour of preserving individual rights will also be addressed in this seminar paper.

HYPOTHESIS:

Media Trial Influence the opinion of Judges in the wake of recent instances – Arushi Talwar,
K.M. Nanavati case and M.P. Lohia v. State of West Bengal.

1
V.N. Shukla, (2015) : “Constitution of India”12th Ed., Eastern Book Company, Lucknow.
2
Mark Pearson, (2008): The Journalist’s Guide to Media Law, 3rd Ed., Allen & Unwin, Australia

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RESEARCH QUESTIONS:

Following are the questions to be looked into during this research:-

1. What is meant by Media Trial? What is its significance in India.

2. What is the role of media in the administration of justice? What are the recent cases
wherin media has played an effective role in advancing Justice?

OBJECTIVE:

1. To analyse the concept of media trial and its signicance in India.

2. To discuss the constitutional perspectives of media trial in India and reasonable
restrictions imposed in the light of landmark judgment.
3. To Examine the constitutional provision of media trial in U.S.A., U.K. in comparision
with India
4. To recommend & suggest measure for ensuring media trial in India.

RESEARCH METHODOLOGY:

Doctrinal research methodology is to be followed in the completion of this project study.

Primarily, library based research is to be done utilizing the books and journals available.
Secondarily, web sources are to utilized including the e-library of the university.

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 CHAPTER – 1

INTRODUCTION

The expression “trial by media” itself is a misnomer.  The word “trial” has not been defined
either by the Code of Civil Procedure, 1908 or the code of Criminal Procedure, 1973, which
are the basic statues governing the trial of  civil and criminal cases by the respective courts in
India.  Black’s Law Dictionary (9th Edition) gives the word “trial” the following meaning: -
“a formal judicial examination of evidence and determination of legal claims in an adversary
proceeding”.

Thus, “trial” ordinarily means a proceeding before a Court of justice. If so, there cannot be a
trial by the media. But these words are often used to denote an exercise undertaken by the
media virtually taking up the role of a judicial forum for which such exercise has been
earmarked by the laws of the land. The Supreme Court of India has had occasion to note the
consequence of “trial by media” in the following words:- “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. During high publicity cases, the media are often
accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only
makes a fair trial impossible but means that regardless of the result of the trial, in public
perception the accused is already held guilty and would not be able to live the rest of their
life without intense public scrutiny”.3

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. 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.

3
R.K. Anand v. Delhi High Court, (2009) 8 SCC 106, para 293

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In State of Maharashtra v. Rajendra Jawanmal  Gandhi,4 the Apex Court observed as
follows:- “A trial by press, electronic media or public agitation is very antithesis of the rule
of law. It can well lead to miscarriage of justice”. But when a sensational criminal case
comes up for investigation before the police or for adjudication in a subsequent trial before
the Court, the usual question asked is “Is the media expected to be a silent spectator
insensitive to the happenings around and failing to quench the public curiosity about the
case?”.

With the case of Sheena Bohra murder, the excruciating eyes of the media have pierced the
personal life of the main accused Indrani Mukherjea which has kicked in a fresh debate on
the issue of media trial of the accused. Every aspect of her personal life and character which
have nothing to do legally with the investigation of the murder are under public lens of
scrutiny via the media. The ethics of journalism have been again in a controversial area due
to their prying eyes on the accused.

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 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.

UNSETTLING OF THE ‘FOURTH ESTATE’

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
4
1997 (8) SCC 386

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international agenda. The pivotal role of the media is its ability to mobilize the thinking
process of millions. 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.

However, there are always two sides of a coin. With this increased role and importance
attached to the media, the need for its accountability and professionalism in reportage cannot
be emphasized enough. In a civil society no right to freedom, howsoever invaluable it might
be, can be considered absolute, unlimited, or unqualified in all circumstances. The freedom of
the media, like any other freedom recognized under the Constitution has to be exercised
within reasonable boundaries. With great power comes great responsibility. Similarly, the
freedom under Article 19(1) (a) is correlative with the duty not to violate any law.

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 motivates the use of intrusive newsgathering practices which tend to
impede the privacy of the people who are the subject of such coverage.

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. 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.

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. There
is a heated debate between those who support a free press which is largely uncensored and
those who place a higher priority on an individual’s right to privacy and right to a fair trial.
During high publicity court cases, the media are often accused of provoking an atmosphere of
public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but
means that regardless of the result of the trial the accused persons will not be able to live the
rest of their life without intense public scrutiny. The counter-argument is that the mob

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mentality exists independently of the media which merely voices the opinions which the
public already has. There are different reasons why the media attention is particularly intense
surrounding a legal case: the first is that the crime itself is in some way sensational, by being
horrific or involving children; the second is that it involves a celebrity either as victim or
accused.

A HISTORY OF MEDIA TRIALS

The idea that popular media can have a strong influence on the legal process goes back
certainly to the advent of the printing press. This is not including the use of a state controlled
press to criminalize political opponents, but in its commonly understood meaning covers all
occasions where the reputation of a person has been drastically affected by ostensibly non-
political publications. One of the first celebrities in the 20th century to be tried by media was
O.J. Simpson. The connection is less about guilt or innocence but about the promotion of the
media coverage in the public mind above the status of the court. One case popularized by the
media between 1980 and 1982 was the murder trial of Lindy Chamberlain in Australia who
was, but later released in 1986 on new evidence showing that a dingo had in fact committed
the act as was originally claimed by Chamberlain. The motion picture ‘A Cry in the Dark’
depicted Chamberlain, as played by actress Meryl Streep, caught in a “trial by media” which
fed the public’s, and subsequently the jury’s false conviction of her.

Modern History

One of the first celebrities in the 20th century to be arguably tried by media was Roscoe
‘Fatty’ Arbuckle who was acquitted by the courts but nevertheless lost his career and
reputation due to the media coverage.
Parallels can be drawn between these cases and the trial of O.J. Simpson. The connection is
less about guilt or innocence but about the promotion of the media coverage in the public
mind above the status of the court.
Another interesting case in the US was the Rodney King incident and subsequent trial of the
police officers involved. Once again an acquittal is challenged by the media reporting with
violent consequences. What makes this case particularly important historically is the fact that
it was amateur video footage which provided the key evidence of perceived guilt. As video

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cameras and their digital successors and CCTV become wider spread, this type of ‘caught on
camera’ incident become more and more common. This can pose real problems for the legal
system as the evidence they provide may be inadmissible for technical reasons (e.g. not being
able to pinpoint exact times) but they give very strong images for the media (and public) to
seize upon and the potential to manipulate by editing.
Even where a criminal court finds somebody guilty the media can still appear to sit in
judgment over their sentence. Examples include Myra Hindley whose proposed release from
prison after thirty years was widely condemned by the British press (the argument became
moot when she died in 2002); Maxine Carr who, having served her sentence, has been
released and is, according to some commentators being “demonised by the press”. One case
popularized by the media between 1980 and 1982 was the murder trial of Lindy Chamberlain
in Australia who was, but later released in 1986 on new evidence showing that a dingo had in
fact committed the act as was originally claimed by Chamberlain. The motion picture A Cry
in the Dark depicted Chamberlain, as played by actress Meryl Streep, caught in a “trial by
media” which fed the public’s, and subsequently the jury’s false conviction of her.
Often the coverage in the press can be said to reflect the views of the person in the street.
However, more credibility is generally given to printed material than ‘water cooler gossip’.
The responsibility of the press to confirm reports and leaks about individuals being tried has
come under increasing scrutiny and journalists are calling for higher standards. There was
much debate over U.S President Bill Clinton’s impeachment trial and prosecutor Kenneth
Starr’s investigation and how the media handled the trial by reporting commentary from
lawyers which influenced public opinion. Another example was the investigation into
biologist Steven Hatfill allegedly sending anthrax through the U.S. mail as a terrorist attack,
which resulted in no conviction, but Hatfill went on to sue as his reputation was severely
tarnished and career destroyed.
Families and friends of persons convicted of crimes have apparently successfully used the
power of the media to reopen cases, such as the Stephen Downing case in Derbyshire where a
campaign by a local newspaper editor resulted in a successful appeal and his release after
twenty seven years in prison.

CHAPTER – 2

THE CONCEPT OF FAIR TRIAL

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Criminal law has a purpose to serve. Its object is to suppress criminal enterprise and punish
the guilty. In State of Kerala v. Narayanan Bhaskaran, It is through the medium of the
criminal court and governed by the procedure laid down in the Cr.P.C. that the trial of
persons charged with criminal offences, is being held. The law, flowing primarily from
Article 21 of the Constitution of India, guarantees “fair trial”. A fair trial has two objects in
view. It must be fair not only to the accused but also to the prosecution. The trial must be
judged from this duel point of view . (See T.H. Hussain v. M.P. Modkakar ). It is, therefore,
necessary to remember that a Judge does not preside over a criminal trial merely to see that
no innocent man is punished. A Judge also presides to see that a guilty man does not escape.
One is as important as the other. Both are public duties which the Judge has to perform
(Krishnan v. Krishnaveni ). A miscarriage of justice may arise from the acquittal of the guilty
no less than from the conviction of the innocent. If unmerited acquittals become the general
rule they tend to lead to a cynical disregard of the law ( Shivaji Sahebrao Bobade v. State of
Maharashtra 6Gangadhar Behera v. State of Orissa. A criminal trial is meant for doing justice
to three entities, namely, the victim, the accused and the society at large. See Ambika Prasad
v. State (Delhi Administration).
Public interest demands that criminal justice is swift and sure, that the guilty is punished and
the innocent is absolved in a fair and impartial trial while events are still fresh in the public
mind (M.S.Sheriff v. State of Madras ). One of the cardinal principles which should always
be kept in mind in our system of administration of justice in criminal cases is that a person
arraigned as an accused is presumed to be innocent until proved guilty by the competent
criminal court. Another golden thread which runs through the web of administration of justice
in criminal cases is that if two views are possible on the evidence in the case -one pointing to
the guilt of the accused and the other to his innocence, the view which is favourable to the
accused is to be accepted. (Nishar Ali v. State of U.P. , Kaliram v. State of Himachal
Pradeshm, Sheo Nandan Paswan v. State of Bihar). The above proposition is founded on the
principle that the benefit of doubt should always be extended to the accused and not to the
prosecution. That is why in cases where Court has no concrete evidence before it to record a
conviction against the accused and the Court only entertains a suspicion that the accused may
be the culprit, the Court will not convict the accused but would give him the benefit of doubt.
In such a case, it could also be said that the prosecution was not able to prove the guilt of the
accused beyond reasonable doubt. In a criminal trial the burden to prove the case alleged
against the accused, (except where there is a departure made in a given statute) is always on
18 | P a g e
the prosecution and the judicially settled yardstick to discharge the said burden is by proof
beyond reasonable doubt. But these are not the criteria adopted by the media. For the
journalist, mere suspicion or hearsay evidence or alleged confession by the so called accused
to the police (which is inadmissible in evidence except in cases covered by Section 162 (2)
Cr.P.C.) are more than sufficient materials to bolster up a ‘scoop’ and serve it to the
unsuspecting public as a “breaking news”. Such a stuff will not stand the scrutiny before a
criminal Court.

IMPACT OF MEDIA TRIALS

1. 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 5 has stated: “Freedom of press is
the heart of social and political intercourse. The press has now assumed the role of the public
educator making formal and non-formal education possible in a large scale particularly in
the developing world, where television and other kinds of modern communication are not still
available for all sections of society. 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.”

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

5
(1985) 1 SCC 641 at p. 664, para 32
6
Maneka Gandhi v. Union of India, (1978) 1 SCC 248

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In Printers (Mysore) Ltd. v. CTO,7 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. 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.8

In R. Rajagopal v. State of T.N.,9 the Supreme Court 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.

2. MEDIA TRIAL vs. FAIR TRIAL

Trial by media has created a “problem” because it involves a tug of war between two
conflicting principles – free press and free trial, in both of which the public are vitally
interested. The freedom of the press stems from the right of the public in a democracy to be
involved on the issues of the day, which affect them. This is the justification for investigative
and campaign journalism.

At the same time, the “Right to Fair Trial”, i.e., a trial uninfluenced by extraneous pressures
is recognized as a basic tenet of justice in India. Provisions aimed at safeguarding this right
are contained under the Contempt of Courts Act, 1971 and under Articles 129 and 215 of the
Constitution of India. Of particular concern to the media are restrictions which are imposed
7
(1994) 2 SCC 434
8
 Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641
9
(1994) 6 SCC 632

20 | P a g e
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.

In Zahira Habibullah Sheikh v. State of Gujarat,10 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.” It encompasses
several rights including the right to be presumed innocent until proven guilty, proven guilty
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.

Right to a fair trial is absolute right of every individual within the territorial limits of India
vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is
more important as it is an absolute right which flows from Article 21 of the constitution to be
read with Article 14. The right to freedom of speech and expression in contained in article 19
of the constitution. Article 19(1) (a) of the Constitution of India guarantees the fundamental
right to freedom of speech and expression. In accordance with Article 19 (2), this right can be
restricted by law only in the “interests of the sovereignty and integrity of India, the security
of the State, friendly relations with Foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence.”

10
(2005) 2 SCC (Jour) 75

21 | P a g e
3. 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. Sometimes when, under such pressure,
police come forward with a story that they have nabbed a suspect and that he has
confessed, the ‘Breaking News’ items start and few in the media appear to know that
under the law, confession to police is not admissible in a criminal trial. Once the
confession is published by both the police and the media, the suspect’s future is
finished when he retracts from the confession muddle. Witness protection is then a
serious casualty. This leads to the question about the admissibility of hostile witness
evidence and whether the law should be amended to prevent witnesses changing their
statements.

Subconscious effect on the Judge as one of the major allegations upon ‘media trial’ is
prejudicing the judges presiding over a particular case. 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.

22 | P a g e
 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.” 11 The
principles enunciated in this Article are also stated in similar language in the International
Covenant on Civil and Political Rights (ICCPR) 12, 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. 13 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 a fundamental part of a

democratic society. It says 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.”14

Under Article 10 of the European Convention on Human Rights, 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.15

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 Estes16, the U.S. Supreme Court set
aside the conviction of a Texas financier for denial of his constitutional rights of due process
11
UN Basic Principles on the Independence of the Judiciary, G.A. Res.146, U.N. GAOR, 40thSess.(1985) art.6
12
Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI)
of 16 December 1966. Entered into force on 23 March 1976 in accordance with article 49
13
Art. 14(1), ICCPR, (1966) 999 UNTS 171, 1976 Can. T.S. No. 47, in force, including Canada, 1976
14
Article 14(1) of the ICCPR
15
Article 10 of the European Convention on Human Rights (ECHR).
16
Estes v Texas 381 US 532 (1965)

23 | P a g e
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 Fourteen Amendment.

In another case of Dr. Samuel H. Sheppard,17 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: “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)18 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. “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.

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,19 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.
Court held that “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.”

17
Sheppard v Maxwell 346 F.2d 707 (1965)
18
[1981] AC 303
19
2004 (72) DRJ 693

24 | P a g e
The ever-increasing tendency to use media while the matter is sub-judice has been frowned
down by the courts including the Supreme Court of India on the several occasions. In State of
Maharashtra vs. Rajendra Jawanmal Gandhi20, the Supreme Court observed: “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.”

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. 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.”

The Hon’ble Supreme Court in the case of Rajendra Sail Vs. Madhya Pradesh High Court
Bar Association and Others21, observed that for rule of law and orderly society, a free
responsible press and an independent judiciary are both indispensable and both have to be,
therefore, protected.

20
1997 (8) SCC 386
21
(2005) 6 SCC 109

25 | P a g e
 CHAPTER – 3

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 22 and criminal23. 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. 24 Commenting on the pending cases or abuse of party
may amount to contempt only when a case is triable by a judge. 25 No editor has the right to
assume the role of an investigator to try to prejudice the court against any person.26

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. 27, 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. Even if the person

22
Section 2(b), Contempt of Court Act, 1971
23
Section 2 (a), Contempt of Court Act, 1971
24
AIR 1943 lah 329(FB)
25
Subhash Chandra v. S. M . Agarwal, 1984 Cri LJ 481(Del)
26
Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137
27
AIR1975 AP 30

26 | P a g e
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.”

Parties have a constitutional right to have a fait trial in the court of law, by an impartial
tribunal, uninfluenced by newspaper dictation or popular clamour. 28 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. 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.

In M.P. Lohia v. State of West Bengal,29 the Supreme Court cautioned the publisher, editor
and journalist of a magazine that had reported the facts of a case that was sub-judice, thus
“interfering with the administration of justice.” The observations of Mr. Andrew Belsey in
his article ‘Journalism and Ethics: Can they co-exist’ 30) quoted by the Delhi High Court
in Mother Dairy Foods & Processing Ltd v. Zee Telefilms,31 aptly describe the state of affairs
of today’s media. He says that journalism and ethics stand apart. In the temptation to sell
stories, what is presented is what ‘public is interested in’ rather than ‘what is in public
interest’.

In re P.C.Sen32, Justice Shah who spoke for the court succinctly put the law of the contempt
of Court as follows: “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.

In R. v. Gray,33 Court held that “To make a speech tending to influence the result of a
pending trial, whether civil or criminal is a grave contempt. Comments on pending

28
Cooper v. People (1889) 6 Lawyers Report Annotated 430(B)
29
AIR 2005 SC 790
30
Media Ethics : A Philosophical Approach, edited by Mathew Kieran, 1997.
31
IA 8185/2003 Suit No. 1543/2003 dated 24.1.2005
32
AIR 1970 SC 1821
33
[1900] 2 Q.B.D. 36 at p. 40

27 | P a g e
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.”34

In Sushil Sharma v. The State (Delhi Administration) and Ors, 35 it was held by the Delhi
High Court that: “Conviction, if any, would be based not on media’s report but what facts are
placed on record. Judge dealing .with the case is supposed to be neutral. Press report or no
reports, the charge to be framed has to be based on the basis of the material available on
record. The charge cannot be framed on extraneous circumstances or facts dehors the
material available on record.”

But every institution even the courts can go wrong. Every institution including the judiciary
has its share of black sheep and corrupt judges. The judiciary is peopled by judges who are
human, and being human they are occasionally motivated by considerations other than an
objective view of law and justice. It would be foolhardy to contend that none of them, at least
some of them, at least some times are motivated by considerations of their own personal
ideology, affiliations, predilections, biases and indeed even by nepotistic and corrupt
considerations.

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. 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 Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr 36, It was held by the Supreme Court
that:
“The 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.”

34
Ibid., at para 8
35
1996 CriLJ 3944.
36
AIR 1961 SC 633

28 | P a g e
 THE DOWNWARD SIDE TO 'MEDIA TRIAL’

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.

1. 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.

29 | P a g e
 2. 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 a 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.

3. The Additional Pressure on Judges in High-Publicity Trials 

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.”

REGULATORY MEASURES

As we concern with the restrictions imposed upon the media, it is clear from the above that a
court evaluating the reasonableness of a restriction imposed on a fundamental right
guaranteed by Article 19 enjoys a lot of discretion in the matter. In Papnasam Labour Union
v. Madura Coats Ltd.,37 the Supreme Court has laid down some principles and guidelines to
be kept in view while considering the constitutionality of a statutory provision imposing

37
(1995) 1 SCC 501

30 | P a g e
restriction on fundamental rights guaranteed by Articles 19(1) (a) to (g) when challenged on
the grounds of unreasonableness of the restriction imposed by it. In Arundhati Roy, In
re38 the Supreme Court has considered the view taken by Frankfurter, J. in Pennekamp v.
Florida,39 in which Judge of the United States observed: (US p. 366) “If men, including
judges and journalists, were angels, there would be no problem of contempt of court. Angelic
judges would be undisturbed by extraneous influences and angelic journalists would not seek
to influence them. The power to punish for contempt, as a means of safeguarding judges in
deciding on behalf of the community as impartially as is given to the lot of men to decide, is
not a privilege accorded to judges. The power to punish for contempt of court is a safeguard
not for judges as persons but for the function which they exercise.”

In Rajendra Sail v. M.P. High Court Bar Assn.,40 17 the editor, printer and publisher and a
reporter of a newspaper, along with the petitioner who was a labour union activist, were
summarily punished and sent to suffer a six months imprisonment by the High Court. The
remarks were to the effect that the decision given by the High Court was rubbish and fit to be
thrown into a dustbin. In appeal the Supreme Court upheld the contempt against them, but
modified and reduced the sentence.

In D.C. Saxena (Dr.) v. Chief Justice of India,41 the Supreme Court has held that no one else
has the power to accuse a judge of his mis-behaviour, partiality or incapacity. The purpose of
such a protection is to ensure independence of judiciary so that the judges could decide cases
without fear or favour as the courts are created constitutionally for the dispensation of justice.

By these above observations and the judgment we can say that restrictions imposed by Article
19(2) upon the freedom of speech and expression guaranteed by Article 19(1) (a) including
the freedom of press serve a two-fold purpose viz. on the one hand, they specify that this
freedom is not absolute but are subject to regulation and on the other hand, they put a
limitation on the power of a legislature to restrict this freedom of press/media. But the
legislature cannot restrict this freedom beyond the requirements of Article 19(2) and each of
the restrictions must be reasonable and can be imposed only by or under the authority of a
law, not by executive action alone.42

38
(2002) 3 SCC 343
39
328 US 331 : 90 L Ed 1295 (1946)
40
(2005) 6 SCC 109 per Y.K. Sabharwal, J. (for himself and Tarun Chatterjee, J.)
41
(1996) 5 SCC 216
42
Supra note 5

31 | P a g e
 CHAPTER – 4

200TH LAW COMMISSION REPORT

Article 19 (2) of the Indian Constitution does not refer to ‘administration of justice’ but
interference of the administration of justice is clearly referred to in the definition of ‘criminal
contempt’43 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 chargesheet or challan is filed or summons
or warrant are issued by the Court by the date of publication.

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. It has
recommended prohibiting publication of anything that is prejudicial towards the accused — a
restriction that shall operate from the time of arrest. It also reportedly recommends that the
High Court be empowered to direct postponement of publication or telecast in criminal cases.

It has suggested an amendment to of the Contempt of Courts Act. 44 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.

43
sec. 2 of the Contempt of Courts Act, 1971
44
Section 3(2), Contempt of Courts Act, 1971

32 | P a g e
In the US, the O J Simpson case,45 in which in which former National Football League star
and actor O. J. Simpson was tried on two counts of murder for the death of his ex-wife. The
case has been described as the most publicized criminal trial in American history attracted a
lot of pre-trial publicity. Some persons even demonstrated in judges’ robes outside the court
and lampooned Etoo, the trial judge. Yet, Simpson was acquitted. The judge was not
prejudiced by media campaign or public opinion.

The Supreme Court has ruled in many cases that freedom of the press is a fundamental right
covered by the right to freedom of expression under Article 19 of the Constitution.But the
right to fair trial has not explicitly been made a fundamental right. That does not mean that it
is a less important right. More than a legal right, it is basic principle of natural justice that
everyone gets a fair trial and an opportunity to defend oneself. The NHRC, in its special leave
petition filed before the Supreme Court against acquittal of the accused in the Best Bakery
case,46 contended that the concept of a fair trial is a constitutional imperative recognised in
Articles 14, 19, 21, 22 and 39-A as well as by the CrPC.

And if judicial decisions also appear to be arbitrary, they must be subjected to ruthless
scrutiny.
It will be dangerous to gag the press in the name of contempt of court. If the appellate court
feels that the media publicity affected fair trial, it can always reverse the decision of the lower
court.

In the US, in 1954, Sam Sheppard,47 was convicted for murder of his wife, Marilyn. As this
case received an enormous amount of pre-trial publicity, the US supreme court ruled that
Sheppard’s  conviction48 were violated and overturned the trial court’s decision in a re-trial in
1965. In the 1970s and 1980s, the US supreme court began focusing more on the media’s
First Amendment rights — the right to freedom of the press.

The Supreme Court’s pronouncement in Rajendra Sail case,49 though given in context of
criminal contempt, provides the proper guideline: “For rule of law and orderly society, a free
press and independent judiciary are both indispensable”.

45
Case no. BA097211
46
(2005) 2 SCC (Jour) 75
47
Sam Sheppard was convicted for the murder of his pregnant wife in their Cleveland suburban home.
48
Sixth Amendment rights
49
(2005) 6 SCC 109

33 | P a g e
The relationship between the Public, Press and the Judiciary

Does the media, both print and electronic, influence judges? With the sudden vicious
onslaught of verdicts by the activist media in matters that are sub judice, one wonders its
impact on the administration of justice and the judicial personnel. Article 10 of the Universal
Declaration of Human Rights, (1948), deals with the right of an accused “in full equality to a
fair and public hearing by an independent and impartial tribunal in the determination of his
rights and obligations and of any criminal charge against him”.50 Judges from various
jurisdictions have not denied the influence of media on the judges.51 In In Re: P.C. Sen, it was
stated that the real danger of prejudicial comments in newspapers or by other media of mass
communication that must be guarded against is the “impression that such comments might
have on the Judge’s mind or even on the minds of witnesses for a litigant”. 52 The frailty of the
judicial system stems from the fact that judges are human beings and undue influence of
irresponsible expression may taint the rational process of adjudication.

Due to contempt proceedings under these jurisdictions, the possibility to gauge the extent of
the media influence in the outcome of the judicial process is precluded. Additionally, no
judge is likely to attribute the eventual ruling in any matter to the reports printed by the
media. Therefore, any attempt to conduct any empirical exploration to determine the
influence of media on judges is nipped in the bud. Most scholars have admitted that the
erosion of judicial independence is hard to track and difficult to measure.

CONSTITUTIONALITY OF MEDIA TRIALS

1. FREEDOM OF PRESS:

Article 19 of the International Covenant on Civil and Political Rights, 1966, 53 embodies the

50
Article 10 of the Universal Declaration of Human Rights, 10 Dec.1948, UNGA Res. 217 (LXIII).
51
Justice Frankfurter in John D. Pennekamp v. State of Florida, (1946) 328 US 331: “No Judge fit to be one is
likely to be influenced consciously…However, Judges are also human and we know better than did our forbears
how powerful is the pull of the unconscious and how treacherous the rational process …and since Judges,
however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by
irresponsible print….in a particular controversy pending before a court and awaiting judgment, human beings,
however strong, should not be torn from their moorings of impartiality by the undertone of extraneous influence.
In securing freedom of speech, the Constitution hardly meant to create the right to influence Judges and Jurors.”
52

53
International Covenant on Civil and Political Rights, 1966, Adopted and opened for signature, ratification and
accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976

34 | P a g e
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.”54

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.

In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar,55 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”.56 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.57 It was stated in Hamdard Dawakhana v. Union of India,58 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.59 In Anukul Chandra Pradhan v. Union of India,60 the
Supreme Court observed that “No occasion should arise for an impression that the
publicity attached to these matters has tended to dilute the emphasis on the essentials of a

54
Article 19 of the International Covenant on Civil and Political Rights, 1966
55
(1996) 6 SCC 466, paras 8, 9 and 10
56
Ibid., at para 8
57
Secretary, Ministry of Information & Broadcasting v. Cricket Association of West Bengal, 1995(2) SCC
161; Romesh Thapar v. State of Madras 1950 SCR 594; See also Life Insurance Corporation of
India v. Manubhai D Shah, (1992 (3) SCC 637
58
1960 (2) SCR 671
59
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386
60
1996 (6) SCC 354

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fair trial and the basic principles of jurisprudence including the presumption of innocence of
the accused unless found guilty at the end of the trial”.61

2. 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.62 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”.63

However, the Chief Justice of India has remarked, “freedom of press means people’s right to
know the correct news”, but he admitted that newspapers cannot read like an official gazette
and must have a tinge of “sensationalism, entertainment and anxiety”.

In the Bofors Case,64 the Supreme Court recounted the merits of media publicity: “those who
know about the incident may come forward with information, it prevents perjury by placing
witnesses under public gaze and it reduces crime through the public expression of
disapproval for crime and last but not the least it promotes the public discussion of important
issues.”65

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.66

3. 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
61
Ibid., at para 7
62
A.G. v. Times Newspaper, (1973) 3 All ER 54; Express Publications (Madurai) Ltd. v.Union of India,
AIR 2004 SC 1950, para 29; Secretary, Ministry of Information andBroadcasting, Govt. of India v. Cricket
Association of Bengal, AIR 1995 SC 1236, para 4
63
In Re: Harijai Singh and Anr.; In Re: Vijay Kumar, (1996) 6 SCC 466, para 10
64
Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693
65
Ibid., at para 10
66
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.

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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. 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.”67

4. 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”.68 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”69 and
“encourage the growth of a sense of responsibility and public service among all those
engaged in the profession of journalism”.70

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, 1978.71 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,72 the shortcomings of the powers of the Press Council
were highlighted: Section 14 of the Press Council Act, 1978 empowers the Press Council
67
K.G. Balakrishnan, The Constitution, The Media And The Courts, The Fourth K.S. Rajamony Memorial
Public Law Lecture, Kerala, www.supremecourtofindia.nic.in/new_links/9%5B1%5D.8.08.rajamony.pdf
68
Press Council Act, 1978, Section 13(1)
69
Press Council Act, 1978, Section 13(2) (c)
70
Press Council Act, 1978, Section 13(2) (d)
71
Section 14(1) of the Press Council Act, 1978
72
(2007) 1 SCC 143

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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.

Along with these powers, the Press Council of India has established a set of suggested norms
that urge that any criticism of the judiciary should be published with great caution. But
significantly, these norms cannot be legally enforced, and are largely observed in breach.
Lastly, the PCI also has criminal contempt powers to restrict the publication of prejudicial
media reports. However, the PCI can only exercise its contempt powers with respect to
pending civil or criminal cases. This limitation does not consider the extent to which pre-trial
reporting can impact the administration of justice.73

CHAPTER – 5

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 poorly paid
journalist must be credited for extracting those information which looked inaccessible for the
73
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386

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top vigilance teams of the country. That is how Bofors hit the headlines. That is how we
found out that Narasimha Rao had bribed the Jharkhand Mukti Morcha MPs and Satish
Sharma and Buta Singh had brokered the deal. The media did us proud at every place of our
political juncture. 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.

RIGHT TO FAIR TRIAL COMPROMISED

The edifice of the Indian criminal justice system is based on the twin principles of ‘guilt to be
proved beyond reasonable doubt’ and ‘presumption of innocence until proven guilty’. 74 In T.
Nagappa v. Y. R. Muralidhar, the Supreme Court reiterated, “An accused has a right to fair
trial. He has a right to defend himself as a part of his human as also fundamental right as
enshrined under Article 21 of the Constitution of India.” Right to fair trial includes the right
to be tried an unbiased or prejudiced judge. This right was enunciated in Bhajan Lal, Chief
Minister, Haryana v. Jindal Strips Ltd.75 The right to fair trial is guaranteed under the
Constitution. It entitles a litigant to adjudication of a cause by a judge who is perceptibly and
demonstrably unbiased and without prejudice.

In Zahira Habibullah Sheikh v. State of Gujarat, 76 the Supreme Court explained, “Denial of a
fair trial is as much injustice to the accused as is to the victim and the society. 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.” Sensational journalism has also
had an impact on the judiciary. For instance a ‘trial-by-media’ began almost immediately
after Afzal’s arrest in the attack on the Indian Parliament case. Only one week after the
attack, on 20 December 2001, the police called a press conference during the course of which
Afzal ‘incriminated himself’ in front of the national media. The media played an excessive
and negative role in shaping the public conscience before Afzal was even tried. This can be
demonstrated by the observations of Justice P. Venkatarama Reddi in upholding the
74
Article 14, paras 2 and 7 of International Covenant on Civil and Political Rights, 1966
75
1994 (3) SCALE 703
76
(2004) 4 SCC 158.

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imposition of the death penalty on Mohammed Afzal, “the incident, which resulted in heavy
casualties, had shaken the entire nation and the collective conscience of the society will only
be satisfied if the capital punishment is awarded to the offender.”77

MEDDLING WITH THE CRIMINAL JUSTICE SYSTEM

Due to such high-powered salesmanship of ideas, the proactive stance of the media is
beginning to intervene with the administration of justice. There is excessive pressure on the
police. A recent example of the media meddling would be the Reliance Infocomm murder
case of its employee, Anandita Mishra, where due to the media reports; the prime accused in
the murder absconded. The Bombay Police Commissioner is upset with the media for
jumping the gun, “I think that he got a whiff of it after reading the reports and gave them the
slip. Now a manhunt has been launched to nab the accused.” The lives of witnesses are
compromised. In State (N.C.T. of Delhi) v. Navjot Sandhu, 78 the Court deprecated the
practice of exposing the accused persons to public glare through TV and in case where Test
Identification Parade or the accused person being identified by witnesses (as in the present
case) arise, the case of the prosecution is vulnerable to be attacked on the ground of exposure
of the accused persons to public glare, weakening the impact of the identification. Due to
media propaganda, lawyers of unpopular accused persons are subjected to public derision.
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, the Indian Clarence Darrow, decided to
defend Manu Sharma, a prime accused in a murder case, he was subject to public derision
and ridicule by the media.79 Another example of this would be the serial-killings in Noida.
Due to extensive media coverage of police investigations, the owner of the house where the
corpses were found, Mohinder Singh Pandher, and his domestic help Surendra Kohli, the
prime suspects of having committed these crimes bore the brunt of sensational journalism.
Influenced by media coverage, much of it proclaiming that the two men had already
confessed to the killings, the local Bar Association announced that it had decided that no

77
State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820.
78
AIR 2005 SC 3820, para 139.
79
Quoting Rajesh Chopra, the creator of LiveIndia.com: “Its surprising to see the behaviour of Mr. Ram
Jethmalani. I remember that statement of Ex-Prime minister Mr. Atal Bihari Vajpayee that 'Ram Jethmalani
doesn't think before speaking anything.' This man who used to be idol for whole country's upcoming advocates
has shocked the nation by supporting Manu Sharma. Everyone knows who is guilty. But some how Influence
and money of some people is posing hurdle to bring justice to this case. I personally request Mr. Ram
Jethmalani not to entangle himself in this case to which whole nation's emotions are attached and would request
him not to play legal games...

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advocate from Noida would defend Pandher and Kohli in court. The media forgets that right
to have a lawyer of one’s choice is a fundamental right under the Indian Constitution.80

THE MEDIA AS A WATCHDOG

Cases like the Jessica Lall and Nitish Katara murder cases, which involve high profile and
powerful people as the accused persons, do benefit from such incessant media exposure.
Neelam Katara, mother of the deceased in the Nitish Katara murder case, succeeded in
getting a verdict from the lower courts due to the support of the media and the public opinion
generated through print and electronic media. In Praful Kumar Sinha v. State of Orissa 81, a
writ against sexual exploitation of blind girls in school was filed before the Supreme Court on
the basis of an article published in a newspaper. Even though sexual assault was difficult to
prove, the Apex Court, on the basis report submitted, gave directions to the institution for
proper management. Renowned journalists like Sheela Barse, a champion of human rights,
have time and again knocked the doors of Supreme Court to take notice of the plight of the
disempowered and marginalized. In Sheela Barse v. Union of India82, the journalist, through a
letter addressed to the Chief Justice of India, made the Apex Court take cognizance of the
deplorable conditions of the mentally challenged woman locked up in the Presidency jail,
Calcutta. Due to this initiative, Commissioners were appointed to investigate and report on
the conditions of prisons where women and children were detained. In Sheela Barse (I) v.
Union of India,83 praised the work of Sheela Barse, a freelance journalist, in the area of
juvenile justice. Quoting Justice Bhagwati: The petitioner has undertaken great social service
by bringing this matter before the Court. She has stated to us that she intends visiting
different parts of the country with a view to gathering further information relevant to the
matter and verifying the correctness of statements of facts made in the counter affidavits filed
by the respondent States…We would like to point out that this is not an adversary litigation
and the petitioner need not be looked upon as an adversary. She has in fact volunteered to do
what the State should have done. We expect that each State would extend to her every
assistance she needs during her visit as aforesaid.

The Supreme Court in Sheela Barse (II) v. Union of India80 impressed upon the State
Governments that remand homes and observation homes must be set up where children
accused of an offence can be lodged during the pending investigation and trial. Taking
80
Ranchod Mathur Wasawa v. State of Gujarat, (1974) 3 SCC 581.
81
AIR 1989 SC 1783.
82
(1995) 5 SCC 654.
83
(1986) 3 SCC 596, para 8.

41 | P a g e
cognizance of the debilitating effect prisons may have on the personality of children, the
Court directed that on no account should the children be kept in jail and if a State
Government has not got sufficient accommodation in the remand homes or observation
homes, the children should be released on bail instead of being subjected to incarceration in
jail. The public hue and cry created in the Jessica Lall murder case by the media forced the
Delhi Police to file an appeal in the High Court against the acquittal of Manu Sharma by the
Trial Court. The fatal expose by NDTV, telecasted on May 30, 2007, showing the
prosecution witness, Sunil Kulkarni, negotiating his testimony for monetary considerations to
bail out Sanjeev Nanda, the accused in the hit and run case, propelled the Delhi High Court to
suo motu initiate contempt action against R.K. Anand and I.U. Khan. In the Priyadarshini
Mattoo murder case, when the Delhi High Court convicted Singh, seven years after a trial
court had acquitted him, the deceased father, Chaman Lal Mattoo, the woman's father, wrote
in the Indian Express newspaper “I can't thank the media enough. If it was not for the media,
we would have lost the spirit and the battle.” 84 As part of social action litigation, the Supreme
Court accepted a letter sent by a lawyer on the basis of a newspaper report published by
Indian Express on the horrid plight of bonded labour as a writ petition under Article 32 of the
Constitution. Subsequently, a notice was sent to the District Collector to ascertain the
veracity of the report and submit a detailed report on the working conditions in the mines.
This newspaper woke up the State from its bureaucratic stupor into action and to begin with,
minimum wages were prescribed to be provided to such workers.

In D.K. Basu v. State of West Bengal, 85 the Supreme Court took cognizance of the existence
of custodial violence after a letter was sent to the Chief Justice of India drawing attention to
newspaper reports regarding death in police lock-ups and custody. The collateral benefit is
that, today, more Indians are aware of their constitutional rights than ever before. 86 The role
of the media in such cases is laudable as the disempowered and marginalized get access to
justice in matters that have been brushed under the carpet due to gundaraj. Wearing the
activist avatar, media is merely exposing the rot within our existing judicial system. The
question is, which is the greater evil - the intrusive role of the media, which disregards all
norms of propriety, or its role as the facilitator of justice?87

84
(1986) 3 SCC 632, para 2.
85
(1997) 1 SCC 416.
86
A.P. Shah, Judges And Media- Inter-Relationship,
87
200th Report of the Law Commission of India on “Trial by Media-Free Speech and Fair Trial Under Criminal
Procedure Code, 1973 (Amendments to the Contempt of Court Act, 1971), August 2006; A.P. Shah, Judges and
Media – Inter-Relationship,

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 CHAPTER – 6

PROS AND CONS OF MEDIA TRIAL

Trial by Media, Is it fair?

Here's a nation, one of the founding pillars was freedom of speech and freedom of
expression. And yet we have imposed upon people restrictions, on what they can say, on what
they can think. And the media is the largest proponent of this, crucifying people who say
things really quite innocently.

-Benjamin Carson

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Trial by media is a phrase popular in the late 20th century and 21st century to describe the
impact of television and newspaper coverage on a person's reputation by creating a
widespread perception of guilt or innocence before or after the verdict in a court of law

Media has been the voice of thousands through which a platform is provided for the common
man. In rapidly changing socio economic conditions like in India ( largest democratic
country) media has gained prominence and hence referred as a fourth pillar of democracy. Of
course sometimes a drop of ink dropped down from the journalist's pen might be more
powerful than a bullet from the soldier's gun. According to criminal jurisprudence a
suspect/accused is entitled to a fair trial until proven guilty/innocent by the court of law.

The right of freedom of speech and expression is contained in article 19 of the constitution.
However the freedom is not absolute as it is bound by the sub clause of the same article
stating that the right of freedom of speech and expression does not embrace the freedom to
commit contempt of court.
We live in a society in which spurious realities are manufactured by the media, by
governments, by big corporations, by religious groups, political groups. I ask, in my writing,
'What is real?' Media is something which has to properly guide in this. In India trial by media
has attained significant proportions. The media is the most powerful entity of earth. They
have the power to make the innocent guilty and to make the guilty innocent and that's
"POWER "to control the minds of masses. Over the past years the human entity has been
connected so much to the media that even children today speak out through social media.

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 etc.

Even in the recent case like Aarushi Talwar's case the media has played a major role pointing
towards her parents. Likewise it can change the whole way of perceiving. The concept of
media trial is not new. 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. It is essential by any
judicial system that the accused should have a fair trial.

Media has almost reincarnated itself as the public court. It has been the voice of the people
who can never be heard, the light to the people who can never see the reality and the guide to
the judge affecting the decisions. High-profile civil litigation is not just decided in the courts;
it also is decided in the court of public opinion. The magnitude of the coverage and the filter

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through which the media reports on litigation can create a "clear bias in civil 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 and
remunerations. Media is so much into our day to day life that even judges can't stay away
from it. And as a result there is also an additional pressure on the judges which include trials
of high publicity.

Media needs to act as a watchdog and show the society whatever is happening around and
also needs to act as the platform for the voice of the society. But now a day's even media has
been doing things for their salaries and TRP's. Hence it should be well regulated by the court
to maintain the basic code of conduct.

Tell me, why is the media here so negative? Why are we in India so embarrassed to recognize
our own strengths, our achievements? We are such a great nation. We have so many amazing
success stories but we refuse to acknowledge them. Why? (As quoted by late Dr. A P J Abdul
Kalam)

So media should be a missile used to bring a great change and a judge and a public weapon
free of corruption

THREATS OF MEDIA TRIAL AND ITS JUSTIFICATION

Media is the fourth pillar of modern democracy in 21st century. It is the custodian of interest
of the people. Freedom given to media is often regarded as a symbol of political liberty if a
nation where all acts of governments can be openly brought before the eye of the citizen of
the nation.  Indian press commission says that “Democracy can not only thrive under the
vigilant eye of the legislature but also under the care of press which is at par, the vehicle
through which public can be articulated”88.  Media serves the role of checks and balance for
the administrating policies of the government this has been a reason why framers of the

88
J.N Pandey “Constitutional Law of  India” 49th edition  pg 194

45 | P a g e
constitution has always given strong emphasis on the freedom to press and several times it
has proved to be benefit for the public at large.
With effect of technological boom this fourth pillar has been the most powerful tool in
modern times. Visual and print media has a direct access to people at large thereby role of
media in our society has been evolving at a rapid pace.  Trail by Media is one of such
increased role that has incarnated with effect to new role of media in our society.  Trail by
media is an investigation and a detail description that of an offence or a crime in the society
has been presented before the people which is subjudice in nature. The media analysis the
role of accused and presents a well details aspects of the case while dealing the facts and
immediate evidence presented before the court. In other word it’s a parallel trails which are
run on channels rather than in courts where the immediate evidence and the documents has
been analyzed in front of citizens. By this tool the media actively try to aware people about
the proceeding of trail and highlight the accused. Trail by media has proved to be a boon for
several case where justice was either delayed to such and extend that it was almost denied or
justice has been completely denied due to the political power to the culprits.  It has brought
justice by highlighting the various problems and under trail cases.  In the famous case of
Jessica Lal murder where due to extensive pressure of politic background the accused and
loop hole of our legal system the justice was misled in the aforesaid case. The tool of sec 311
of Cr.PC was used by the judge which empowered the  judge to give the decision gave it in
favor of the accused due to sudden turnings of witness. However the actual justice was not
delivered. Then role of media came which highlighted the facts of the case and carved the
way to justice to the victims. Media in several instance proved to be the ray of hope in the
darkness of corruption in this society.  The exposing of the 2g Spectrum case or whether the
exposure of minister who were watching porn in the parliament has exposed.
However the absolute power corrupts doctrine was well established in case of media also. the
right it freedom and speech and expression does not embrace the freedom to commit
contempt of court. It is becoming a pernicious media practice to blame the accused in a crime
even before the judiciary ruling. Trail by Media is becoming a threat to the active judicial
proceedings .

Media presents the facts in front of the people in such a manner targeting the emotions of the
viewers. In case of Priyadarshani Muttho case None of us know whether Santosh had actually
committed the rape and murder, but we all believe that — and believed so right from the

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beginning — that he indeed committed the crime  Similarly under the famous Arushi
Murder89 case the was a depiction of series of people who were declare as the accused with
imaginary interpretation of the facts. It was even found that one of the suspect who was
declare as the Murder was  found dead next day. Later several accusation were made on
various relative of the deceased degrading their image in society.

Right after the incident, the media trial begins and all media entities — print or electronic —
more or less have similar focus in their stories.  With the depiction of the incident in most
heart sensing ways , the story is presented to the viewers as if the accused is really the culprit
hitting their emotions. In instance where  the charge is not proved in the court, there are SMS
campaigns, blogging outrages, candle-lit processions, and rallies to mobilize the citizens
against the “injustice” done by the courts and to put the pressure on the appellate court. In a
criminal justice system the justice should  be given when guilt has been proved beyond
reasonable doubt however before the guilt has been establish by the court.

It has been seen and observed in the recent Zee news controversy that  the chiefs of the
channels were found asking bribes . This shows that trail by media is strongly influenced by
the rich and justice can be manipulated by them at the cost of pockets of rich who can afford
to bury justice. The question that rise in the mind is that what is the difference in the situation
when officials by taking bribe delays justice and in case of trail by media

The problem have been faced by court on several instance where  huge pressure was mounted
by courts  before giving the judgment. The pretrial judgmental opinion  has been a matter of
trouble for great concern for judiciary. A Bench of Justice N. Santosh Hegde and Justice S.B.
Sinha described the trial by the media in pending cases as a disturbing factor in the
administration of justice. In another instance Justice J.D. Kapoor observed while pronouncing
the verdict in the Bofors pay-off case.”Stressing that the streams of justice have to be kept
clear and pure, the court said “there is nothing more incumbent upon courts of justice than to
preserve their proceedings from being misrepresented than to prejudice the minds of the
public against persons concerned before the case is finally heard.”90Finally solving the
problem Chief Justice of India S.H. Kapadia, said that if publishing news related to a trial
would “create a real and substantial risk of prejudice to the proper administration of justice or
89
 Rajesh Talwar vs C.B.I & Ors. on 2 March, 2012
90
Sahara India Real Estate Corp. Ltd. & Ors.v Securities & Exchange Board of India & anr C.A. No. 9813 of
2011, I.A. Nos. 4-5

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to the fairness of trial”, the court could grant a postponement order, temporarily gagging
electronic or print media from reporting on the case.

RIGHT TO APPROACH THE HIGH COURT/ SUPREME COURT

In the light of the law enunciated herein above, anyone, be an accused or an aggrieved
person, who genuinely apprehends on the basis of the content of the publication and its effect,
an infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends,
would be entitled to approach an appropriate Writ Court and seek an order of postponement
of the offending publication/broadcast or postponement of reporting of certain phases of the
trial (including identity of the victim or the witness or the complainant), and that the Court
may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a)
rights, bearing in mind the above mentioned principles of necessity and proportionality and
keeping in mind that such orders of postponement should be for short duration and should be
applied only in cases of real and substantial risk of prejudice to the proper administration of
justice or to the fairness of trial. There are various aspects of the right to a fair trial. These
include an adversarial trial system, presumption of innocence, independent judges, and
knowledge of the accusation, trail and evidence in the presence of the accused, adequate legal
representation to respond to the charges. The right to fair trial has been interpreted to be one
of the implicit rights contained within the Right to life under Article 21 of the Constitution of
India. There are various facets to the right to a fair trial. The Hon‘ble Supreme Court in the
case of Zahira Habibullah Sheikh & Anr vs. State of Gujarat has held that, ―The principle of
fair trial now informs and energizes many areas of the law. It is reflected in numerous rules
and practices.... 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. Most
of these safeguards to ensure a fair trial are contained under the Code of Criminal Procedure,
1973 which contains and defines the procedure which has to be followed in criminal cases.
The concept of a fair trial cannot be limited to a statute and the Courts have gradually
expanded it to include various aspects of criminal procedure. For instance the Supreme Court
has also in the past transferred cases from one state to another when it is reasonably
anticipated that the accused will not be afforded a fair trial or the court process may be
interfered with by extraneous considerations.

1. Influence of Media on Accused

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If the media projects a suspect or an accused as if he has already been adjudged guilty well
before the trial in courts, there can be serious prejudice to the accused. Even if ultimately the
person is acquitted after the due process in the courts, such an acquittal may not help the
accused to rebuilt his lost image in society. Excessive publicity in the media characterizing
him as a person who indeed committed the crime, it amounts to undue interference with the
administration of justice‖, calling for proceeding for contempt of court against the media.

2. Influence of Media on Witness

If the identity of witnesses is published, there is danger of the witnesses coming under
pressure both from the accused or his associates as well as from the police. At the early stage,
the witnesses want to retract and get out of the muddle. Witness protection is then a serious
casualty. This leads to the question about the admissibility of hostile witness evidence and
whether the law should be amended to prevent witnesses changing their statements.

3. Influence of Media on Judges and Court

Judges are not immune from criticism either in respect of their judicial conduct or their
conduct in a purely private capacity. But it is for concern when criticisms of them are ill-
informed or entirely without foundation, and may have a tendency to undermine public
confidence in judicial institutions. A Judge is to guard himself against such pressures. A
media publication can unconsciously‘influence Judges or Juries and whether Judges, as
human beings are not susceptible to such indirect influences. Thus, Lord Denning stated in
the Court of Appeal that Judges will not be influenced by the media publicity, a view which
was not accepted in the House of Lords. 91 Media Trial: Freedom Of Speech Vs. Fair Trail
DOI: Cardozo, one of the greatest Judges of the American Supreme Court, referring to the
forces which enter into the conclusions of Judges‖ observed that the great tides and currents
which engulf the rest of men, do not turn aside in their curse and pass the Judges by. The
Supreme Court has held that a trial by media or by way of a public agitation is the very anti-
thesis of rule of law and can lead to miscarriage of justice.

91
‗Nature of the Judicial Process‘, Lecture IV, Adherence to Precedent. The Subconscious Element in
theJudicial Process, 1921, Yale University Press

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 CHAPTER – 7

MISUSE OF FREEDOM OF SPEECH

Another serious and critic sable issue at hand is the participation of the media in the
coverage of sensational crimes, where they begin to cite the so called “evidences” in the very
beginning, even before the person who is to adjudicate takes cognizance of the offence. This
is unfortunate because the media is not well verse and not bound by the traditional rules of
citing evidences that tell about what is and what is not substantial as an evidence to convict
an accused. Therefore, more often than not, the Right to Justice is taken away from the
victim. This kind of compromise of the Right to Justice can be seen when the media treats an
accused or ordinary criminal equal to a seasoned criminal or a felon, without making any
plausible distinction with adequate investigation into the matter. They are treated as
‘Breaking News Items’ keeping their reputation and right to live with dignity at stake. The
electronic media which has reached every home now puts the accused on trial and convicts

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them without giving a chance to other side resulting in to complete demolition ofa character
of the individual and reputation of his family, and there is no way to retrieve the same even
after acquittal from court as it would not be given the same or any publicity by the media.
This means even if they are acquitted by the court, they remain guilty in the eyes of the
public and find it difficult to revive their erstwhile image. It is to be pointed out that media
trial has moved to media verdict, which is beyond doubt the misuse of the freedom and
transgression of their legal limits. Therefore, the courts must take actions against such
activities by passing restrain orders against the media. Several examples can be cited in this
context. It is highlighted in the recent case where the allegations of misconduct were labelled
against two former Supreme Court judges. One against Justice A.K. Ganguly where media
had a field day and worked overtime to destroy his reputation and made him resign from all
the posts which he was holding and disgraced him before anything could be proved against
him. Another case was that of Justice Swantantra Kumar facing the similar allegation, but
only so, in this case he continued to head Green Tribunal, while the matter was still under
investigation. The difference between the two cases was that, the first thing Justice
Swantratra Kumar did was to get a stay against media trial from Delhi High Court. It is fair to
say that media trial is not only illegal but immoral as well. The media trial has direct impact
on the functioning of investigating agency as it works under pressure to arrest the accused
without proper evidence and lay the charge sheet sometimes with inadequate evidences to
escape the prying media pressure. Hence, the quality of investigation is directly affected and
it has also got direct impact on functioning of judiciary as well especially in early stages like
grant of bail. In the recent times, with the introduction of the concept of Target Rating Points
or TRP, journalism works under great pressure. TRP ratings are the gross rating points
delivered by a media source to a specific target audience. Prior to this, the journalist had
worked with integrity, braveness and free from undue bias or preconceived opinions. They
did not do the job of labeling people guilty or a felon without making a serious and bona fide
attempt to study the charges and investigating them, and come to autonomous conclusions.
That is the reason people trusted them. But lately due to this nerve- racking pressure to
increase the TRP scales, electronic media is witnessing ruthless competition. In order to stay
at the top of their business, the electronic media had incarnated into an aggressive form with
a large multitude of camera flashes and madness of huddling questions around the accused
that even the police is unable to take them from their vehicles to the court rooms and vice-
versa. In order to remove this form of aggression, the Press Council of India issues guidelines

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and norms for journalistic conduct, and has succeeded in taking action in certain cases.
Besides this, the Press Council of India even publishes apologies in certain cases.

 Media engaged in snatching investigation details: Instances of inducing, tempting,

bribing or blackmailing investigating police officers or other officers (in-charge of
investigation of offences) or members of their team, with a view to elicit, steal or
extract the materials collected during investigation and discussing the same in public
after giving the same the appropriate color to suit the reporter or his boss and sell a
one-sided story, are allegations which are frequently leveled against media persons.
There are judicial verdicts to be referred to at a later stage forbidding such
investigating officers and their team members from leaking out information regarding
the investigation of a case during the crime stage. Those prohibitions are more
honored in their breach than observance by some police officers for considerations
which are certainly not genuine.
 The mighty and all pervading media:- The media now-a-day’s have such wider
range, wider sweep and wider coverage that a wrong, misleading or false report about
a person or institution can cause incalculable harm to the aggrieved. It is no solace to
declare that the wronged will be compensated by money and a corrigendum
expressing apology for the wrong news will be issued. The person or institution
whose image is tarnished may not be in a position to fight the mighty media and get
adequate recompense even assuming that the same will put him or it in the former
position. This is equally applicable to courts and other adjudicatory bodies. No person
can be condemned unheard. Before making disparaging remarks about the conduct of
a witness or a functionary in the administration of justice, the Forum is bound to hear
him and elicit his explanation for such conduct. When all other democratic institutions
are bound by the rules of natural justice, the media cannot claim any immunity from
such rules.
 Sting operation against a saintly soul:- A renowned Judge of the High Court of
Kerala, soon after his retirement was treacherously and without his knowledge
trapped into a sting operation by a private channel which got him engaged in a
personal talk regarding an alleged gang rape case disposed of by a Division Bench to
which he was a party. Without knowing the presence of hidden camera and
microphone the former Judge opened up by substantially revealing the contents of the
judgment of acquittal in the very same rape case and which was rendered in the year

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 2005. Some loose observations not meant for any formal discussion but made in the
purely private talk, were telecast by the channel resulting in a furore and the watching
public rising in revolt against the former Judge. What was the public interest sought to
be achieved by telecasting the private conversation ? What was the code of
journalistic ethics observed by the Reporter ? One can understand a sting operation
carried out to expose a public wrong such as corruption, waging war against the
Government, smuggling arms and ammunitions into the country and allied acts. The
former Judge, knowing him as I do, is certainly not going to prosecute the channel or
institute a suit for damages. But absolutely no public interest was served by such a
sting operation and no other news channel deprecated the said operation. There cannot
be a worse case in which the code of journalistic ethics were either breached or
conveniently ignored.
 Audi alteram partem : Whether it is the media or any other person criticising
another, behind his back, for an act should realise that there is always another view
for the alleged act and whatever sensation is made through publishing the one-sided
story without adequate and serious enquiry, will be short lived. These are instances of
misreporting or irresponsible reporting.
 Judges are not semi-permeable inanimate membranes:–
Defending media excess in holding parallel trials it is very often argued that even if there is a
trial by media, Judges should be made of such stuff as not to allow their power of reasoning
and evaluation of evidence to be influenced by such extraneous media trials. It is easier to put
forward such argument. As observed in In Re M.V.Jayarajan,  however stalwarts they may
be Judges are also human beings. It requires intense and protracted training of the mind for a
Judge to remain uninfluenced by such media exploits, particularly when it is the habit of
every literate citizen to read the newspapers and watch the news channels and Judges are no
exception. They cannot shut their eyes or mind to the spicy media trial and thereafter
approach the case with total detachment and perfect equanimity. Way back in the year 1969 a
Division Bench of the Kerala High Court in Kochumoideen V. Nambeesan and Others 16–
observed as follows:-
“It is true that Judges are trained men and, therefore, they may not be influenced by
reports, but it cannot be forgotten that they are human beings and it is only proper that
they are not told matters which they would not and should not hear .”

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 THE INDIAN MEDIA DISPLAY CERTAIN DEFECTS
These should ideally be addressed and corrected in a democratic manner. But if the media
prove incorrigible, harsh measures may be called for.
The time has come when some introspection by the Indian media is required. Many people,
not only those in authority but even ordinary people, have started saying that the media have
become irresponsible and wayward, and need to be reined in.
Only a couple of days back I read in the newspapers that the Union government has issued
some regulations regarding licences for news channels, to which there was a lot of reaction.
Under the Constitution of India, freedom of the media is part of the freedom of speech
guaranteed by Article 19 (1) (a). However, no freedom can be absolute, and reasonable
restrictions can be placed on it. One of the basic tasks of the media is to provide truthful and
objective information to the people that will enable them to form rational opinions, which is
a sine qua non in a democracy. But are the Indian media performing this role properly?
I may only mention certain defects in the functioning of the India media today.
Twisting facts
One of the defects is that the media often twist facts. I would like to give an example.
One day, a leading English newspaper published on its front page a photograph of Justice
Gyan Sudha Misra of the Supreme Court with the caption: “Supreme Court Judge says that
her daughters are liabilities.” This was a distorted and fallacious item of news, published on
the front page.
Supreme Court Judges have to disclose their assets and liabilities. Against the liabilities
column, Justice Misra had written: “two daughters to be married.” Strictly speaking, it was
not necessary to mention this because liabilities mean legal liabilities, for example, housing
loan, car loan, and so on. Justice Misra's intention was obviously to say that she would have
to spend on her daughters' future marriage. She has three daughters (no son), only one of
whom has been married. Justice Misra never said, nor intended to say, that her daughters
were liabilities. The news was false and defamatory, with the obvious intention of creating a
sensation.
Paid news
A second defect concerns the issue of paid news that has become prominent of late. In the
2009 elections, it was a scandal. How this vicious practice could be stopped needs to be
discussed. Incidentally, in compliance with an order of the Chief Information Commissioner
dated September 19, 2011, we have placed the 71-page report of the Committee consisting of
Paranjoy Guha Thakurta and Sreenivas Reddy on our website, www.presscouncil.nic.in with
54 | P a g e
the disclaimer that the Press Council had rejected this report at its meeting held on April 26,
2010.
Non-issues as real issues
A third defect is that the media often portray non-issues as real issues, while the real issues
are sidelined. The real issues in India are economic, that is, the terrible economic conditions
in which 80 per cent of our people are living, the poverty, unemployment, lack of housing
and medical care and so on. Instead of addressing these real issues, the media often try to
divert the attention of people to non-issues. Such as that the wife of a film actor has become
pregnant, whether she will give birth to a single child or to twins, and so on. Are these the
real issues facing the nation?
At a Lakme India Fashion Week event, there were 512 accredited journalists covering the
event in which models were displaying cotton garments, while the men and women who grew
that cotton were killing themselves at a distance of an hour's flight from Nagpur, in the
Vidharbha region. Nobody told that story, except one or two journalists, locally.
Is this a responsible way for the Indian media to function? Should the media turn a Nelson's
eye to the harsh economic realities facing over 75 per cent of our people, and concentrate on
some ‘Potemkin villages' where all is glamour and show biz? Are not the Indian media
behaving much like Queen Marie Antoinette, who said that if the people had no bread, they
should eat cake?
No doubt, sometimes the media mention farmers' suicides, the rise in the price of essential
commodities, and so on, but such coverage is at most 5 per cent to 10 per cent of the total.
The bulk of the coverage goes to showing the life of film stars, pop music, fashion parades,
cricket and astrology.
Tendency to brand
Here is a fourth defect. Bomb blasts have taken place near the Delhi High Court, in Mumbai,
Bangalore and so on. Within a few hours of such a bomb blast, many TV channels started
showing news items that said that the Indian Mujahideen or the Jaish-e-Mohammed or the
Harkatul-Jihad-e-Islam had sent e-mails or text messages claiming responsibility. The names
of such alleged organisations will always be Muslim ones. Now, an e-mail can be sent by any
mischievous person, but by showing this on TV channels and the next day in the newspapers,
the tendency is to brand all Muslims as terrorists and bomb-throwers.
The truth is that 99 per cent of the people of all communities, whether Hindu, Muslim,
Christian or Sikh, and of whatever caste or region, are good. But the manner in which such
news is shown on TV screens and published in newspapers tends to create the impression that
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all Muslims are terrorists, and evil — which is totally false. The person who sends such e-
mails or text messages obviously wants to create hatred between Hindus and Muslims, which
is the old British divide-and-rule policy continuing even today. Should the media, wittingly
or unwittingly, become part of this policy of divide-and-rule?
No doubt there are defects not only in the media but in other institutions also, for example,
the judiciary, the bureaucracy, and so on.
There are two ways to remove these defects in the media. One is the democratic way, that is,
through discussions, consultations and persuasion — which is the method I prefer. The other
way is by using harsh measures against the media, for example, by imposing heavy fines on
defaulters, stopping government advertisements to them, suspending their licences, and so on.
In a democracy we should first try the first method to rectify the defects through the
democratic method. For this purpose, I have decided to have regular get-togethers with the
media, including the electronic media, so that we can all introspect and ourselves find out
ways and means to rectify the defects in the media, rather than this being done by some
government authority or external agency.
I propose to have such get-togethers once every two or three months, at which we will
discuss issues relating to the media and try to think of how we can improve the performance
of the media so that it may win the respect and confidence of the people.
If the media prove incorrigible, harsh measures may be required. But in my opinion, that
should be done only as a last resort and in extreme situations. Ordinarily, we should first try
to resolve issues through discussion, consultation and self-regulation. That is the approach
which should be first tried in a democracy. I, therefore, request the Union government to
defer the implementation of its recent decision regarding news channel licenses, so that we
can ourselves discuss the issue thoroughly, and ourselves take corrective measures.
Till now the function of the Press Council was only adjudication. I intend to make the Press
Council an instrument of mediation in addition, which is in my opinion the democratic
approach. For this purpose, I need help, cooperation and advice from the media.
India is passing through a transitional period in its history, from a feudal agricultural society
to a modern industrial society. This is a very painful and agonising period. The media must
help society in going through this transitional period as quickly as possible, and by reducing
the pain involved. This they can do by attacking feudal ideas, for example, casteism and
communalism, and promoting modern scientific ideas.

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 CHAPTER – 8

COMPARATIVE STUDY BETWEEN USA AND INDIA

AN INTERNATIONAL PERSPECTIVE

A string of high-profile cases, sensationalized by the media, have focused the debate
between freedom of speech and expression as claimed by the media, and the right of fair trial
as proclaimed by the judiciary. It began in 1807, in the United States of America with the
case of Aron Burr92; subsequently, it erupted in England; it has finally reached the shores of
India. Since the controversy is of a new vintage in India, the Indian judiciary finds itself at a
crossroad. Similar to the difficulties faced by the American and the English judiciary, the task
before the Indian judiciary is to balance the competing fundamental rights of the media and
of the accused. Since we can learn from the American and the English experience, in this
article, I propose to first examine the American and the English position on this controversy,
then deal with the response in India, both from within and without the judiciary, and lastly to
discuss the options before the judiciary and the media.

The judiciary and the media share a common bond and play a complimentary role to each
other: man is the centre of their universe. While the media explores, discovers, and reveals
92
United States v. Burr, 25 F Cas 55 (D Va 1807).

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the achievements and follies of man, the judiciary deals with the legal problems created by
him. Both the judiciary and the media are engaged in the same task: to discover the truth, to
uphold the democratic values and to deal with social, political and economic problems. The
media, in fact, has been called the handmaiden of justice, the watchdog of society; the
judiciary, the dispenser of justice and the catalyst for social reforms. Thus, both are essential
for the progress of a civil society.

However, at times, these two pillars of democracy are at loggerheads. Under the fundamental
right of freedom of speech and expression, the media claims the right to investigate, to reveal,
to expose and to highlight the criminal cases. According to it, in a democracy the people have
the right to know. Therefore, the media has a corresponding duty to inform the people about
the criminal and the crime. It, thus, demands the right to carry on pretrial publicity. Yet, on
the other hand, the judiciary is keenly aware of the fundamental rights of the accused to a fair
trial and of due process of law. Since pre-trial publicity can derail a fair and a speedy trial, the
judiciary has to balance the competing fundamental rights. While the freedom of speech and
expression of the media, the right to know of the people need to be protected and promoted,
the right to fair trial of the accused needs to be secured and guaranteed.

Pre-trial publicity is injurious to the health of a fair trial. Even before the accused is arrested
and tried, the cacophony of media proclaims the accused to be guilty. It may project
irrelevant and inadmissible evidence as the gospel truth, thereby convincing the people about
the guilt of the accused. It, thus, undermines the fundamental principle of common law that
every man is presumed to be innocent till proven guilty. Once the accused is portrayed as a
despicably depraved character, at times, the Bar may refuse to defend him. It, therefore, robs
the accused of his fundamental right to defend himself. Such publicity also convinces the
witnesses to custom-tailor their testimony to the prosecution case. Most importantly, the
appreciation of the evidence by the public and the judiciary may differ. While the people are
convinced of the guilt of the accused, the court, after meticulous examination of the evidence
may acquit him. Such differences in perception weaken the faith of the public in the criminal
justice system. Ultimately, pre-trial publicity undermines the criminal justice system and
overturns the rule of law.

However, in a democracy, the right of free press and right of fair trial must peacefully co
exist. The United States of America, England and India are the torchbearers of democracy.
We are progenies of the common law. We, thus, share a common political ideology, a

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common legal heritage. Our Constitutions, whether written or unwritten, proclaim, protect
and promote the same set of fundamental rights: both the First Amendment of the American
Constitution and Article 19(1)(a) of the Indian Constitution guarantee the freedom of speech
and expression. The Fifth Amendment of the American Constitution protects the right to life,
liberty and property; Article 21 of our Constitution, likewise, protects life and personal
liberty. While the former speaks of due process of law, the latter requires procedure
established by law. Similarly, the Sixth Amendment of the American Constitution ensures the
right to a speedy and public trial, by an impartial jury. Although we do not have trial by jury,
but Article 21 of our Constitution also ensures the same right of fair trial. Though England
has an unwritten Constitution, but it, too, subscribes to the identical inalienable rights.
Therefore, the three countries share a common denominator of this perpetual confrontation
between the freedoms of speech versus fair trial. The American Supreme Court and the
Circuit Courts, which are akin to our High Courts as they, too, are superior appellate courts
have taken an ambivalent position on this controversy. Caught between the two warring
fundamental rights, the American Supreme Court began with protecting the rights of the
accused, but slowly shifted to protecting the rights of the media. But in the process, it laid
down certain tests for dealing with the effects of pre-trial publicity and prescribed certain
remedies for dealing with such adverse effects. These tests and remedies could be useful to us
as well. In Rideau v. Louisiana93, the American Supreme Court laid down the test of
presumed prejudice. The case involved the robbery of a bank, the kidnapping of three of the
bank employees, and murder of one of them. An interview of the accused, Rideau was
telecasted for three days, wherein he was shown with the Sheriff in the jail, confessing to his
guilt.

Rideau counsel requested for change in the venue of the trial on the ground that the interview
so telecasted had adversely affected his right to a fair trial. The trial court had denied the
prayer. The Supreme Court said: Under our Constitution guarantee of due process, a person
accused of committing a crime is vouchsafed basic minimal rights. Among these are the right
to counsel, the right to plead not guilty, and the right to be tried in a courtroom presided over
by a Judge. Yet in this case the people of Calcasieu Parish saw and heard, not once but three
times, a trial of Rideau in a jail, presided over by a sheriff, where there was no lawyer to
advise Rideau of his right to stand mute.

93
373 US 723 (1962).

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The American courts have created different yardsticks, as they are skeptical about the adverse
impact of pre-trial publicity on a trial. The American courts have gone on to believe that light
impressions carried by the Jury would yield to the testimony presented at the trial. Hence,
pre-trial publicity does not adversely affect a fair trial. Therefore, the press should be given a
free hand to cover the crime and the trial. However, in Bridges v. California94 the American
Supreme Court did note that, legal trials are not like elections, to be won through the use of
the meeting-hall, the radio, and the newspaper.

Moreover, in Maxwell, the Court prescribed certain methods for controlling the pre-
trial publicity:

I. Control the presence of the press at the judicial proceedings.

II. The court should have insulated the witnesses. This implies protecting and isolating
the witnesses during the trial.
III. The court should make efforts to control the release of leads, information, and gossip
to the press by police officers, witnesses, and the counsel for both sides. More
specifically, the trial court might well have proscribed extrajudicial statements by any
lawyer, party, witness, or court official which divulged prejudicial matter.
IV. Reporters who wrote or broadcast prejudicial stories could have been warned as to
the impropriety of publishing material not introduced in the proceedings.
V. Where there is a reasonable likelihood that prejudicial news prior to trial will prevent
a fair trial, the judge should continue the case until the threat abates, or transfer it to
another county not so permeated with publicity.
VI. If publicity during the proceedings threatens the fairness of the trial, a new trial
should be ordered. But the Court warned, but we must remember that reversals are
but palliatives; the cure lies in those remedial measures that will prevent the prejudice
at its inception. But despite the existence of these methods to control pre-trial
publicity, the American courts, by and large, have been reluctant to utilize this
methodology. As far as the American courts are concerned the freedom of speech and
expression takes precedence over the right of fair trial.

While the American and the English courts have grappled with this problem, the Indian
courts have gingerly touched the issue. The reason is not far to seek: trial by media is a recent
phenomenon. Hence, we find sporadic obiter, but no concrete ratio decidendi. In Reliance

94
314 US 252 (1941)

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Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay (P) Ltd., the
Honble Supreme Court partly dealt with the issue of freedom of press and administration of
justice. Dealing with an adverse article published in the Indian Express with regard to the
public issues of Reliance Petrochemicals, the Supreme Court had restrained all the six
respondents from publishing any article, comment, report or editorial in any of the issues of
the Indian Express or their related publications questioning the legality or validity of any of
the consents, approvals or permissions to the [said issue of debentures]. The issue raised was
about the continuation of such injunction especially when the shares had been oversubscribed
though the day of allotment had not yet expired and before the allotment the subscribers
could withdraw their subscriptions. The Apex Court held: There must be reasonable ground
to believe that the danger apprehended in continuance of the injunction is real and imminent.
This test is acceptable on the basis of balance of convenience.

However, the Supreme Court has not yet found or laid down any formula or test to determine
how the balance of convenience in a situation of this type, or how the real and imminent
danger should be judged in case of prevention by injunction of publication of an article in a
pending matter. But the Court did caution that public interest demands that there should be no
interference with judicial process and the effect of the judicial decision should not be pre-
empted or circumvented by public agitation or publications. In State of Maharashtra v.
Rajendra Jawanmal Gandhi,95 while dealing with a case of alleged attempt to rape a minor,
the Apex Court observed: A trial by press, electronic media or pubic agitation is the very
antithesis of the rule of law. It can well lead to miscarriage of justice. A Judge has to guard
himself against any such pressure and he is to be guided strictly by the rules of law.

The Indian judiciary has not dealt substantially with the issue of freedom of press versus the
right to fair trial. But this issue has taxed the imagination of the media, both the world over
and in India. In 1994, thirty-nine distinguished legal experts and media representatives met
for three days in Madrid. One of the basic principles, enunciated in the Madrid Principles on
the Relationship Between the Media and Judicial Independence, is that: It is the function and
right of the media to gather and convey information to the public and to comment on the
administration of justice, including cases before, during and after trial, without violating the
presumption of innocence.

95
(1988) 4 SCC 592, 600, para 7

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Similarly, in India, the Press Council of India has prescribed The Norms of Journalistic
Conduct. Norm 1 states:

1. Accuracy and fairness.

(i) The press shall eschew publication of inaccurate, baseless, graceless, misleading or
distorted material. All sides of the core issue or subject should be reported. Unjustified
rumors and surmises should not be set forth as facts. While dealing with investigative
journalism, Norm 26(f) states: 26. (f) The reporter must not approach the matter or the issue
under investigation, in a manner as though he were the prosecutor or counsel for the
prosecution. The reporters approach should be fair, accurate and balanced. All facts properly
checked up, both for and against the core issues, should be distinctly and separately stated,
free from any one sided inferences or unfair comments. The tone and tenor of the report and
its language should be sober, decent and dignified, and not needlessly offensive, barbed,
derisive or castigatory, particularly while commenting on the version of the person whose
alleged activity or misconduct is being investigated. Nor should the investigative reporter
conduct the proceedings and pronounce his verdict of guilt or innocence against the person
whose alleged criminal acts and conduct were investigated, in a manner as if he were a court
trying the accused.

(ii) Newspaper shall not as a matter of caution, publish or comment on evidence collected as
a result of investigative journalism, when, after the accused is arrested and charged, the court
becomes seized of the case. Nor should they reveal, comment upon or evaluate a confession
allegedly made by the accused

In a nascent democracy like ours, the judiciary and the press have a pivotal and a crucial role
to play. Both have to uphold the constitutional philosophy and the rule of law. The judiciary
and the press have to supplement and not supplant each other. While the people have a right
to be informed, the individual has the right to be protected and defended in a criminal case.
Although it is said that the right of an individual should give way to the right of the
community, but in criminal justice system, it is the right of the accused, which is paramount.
His presumption of innocence cannot be sacrificed at the altar of freedom of speech and
expression. To do so, would be to turn the entire criminal justice system on its head; it would
violate Article 21 of Constitution of India, which is the heart and soul of our Constitution. If
the rule of law is to be protected and promoted, administration of justice has to be given
preference over the freedom of speech and expression as enjoyed by the press.

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 CASE STUDY/ ANALYSIS

(Media Trial strain the judiciary)

PRIYADARSHINI MATOO CASE

Santosh Kumar Singh, son of a senior IPS officer, was accused of raping and brutally killing
Priyardarshini Matoo, a 25 year old law student, in 1996. In 1999, the trial court acquitted
him quoting manipulation of evidence by influential father of accused. The Delhi High Court
in 2006 held him guilty and awarded him death penalty since his guilt was proved “beyond
any doubt by unimpeachable evidence,” including DNA fingerprinting. It is relevant to refer
here to the remarks of the then Chief Justice of India, Justice Y. K. Sabharwal, who gave full
marks to the media for being instrumental in spurring the judiciary into action in the instant
case, which had been lying in cold storage for years.

JESSICA LAL MURDER CASE

The Manu Sharma, son of a wealthy politician in Haryana, was accused of killing Jessica Lal
in 1999, because she refused to serve him liquor in a restaurant where she was working as a
bar maid. A long and protracted trial followed which lasted seven years. In 2006 all the
accused were set free due to lack of evidence. The case was reopened following public outcry
publicized extensively in the media. In the immense uproar, hundreds of thousands of people
e-mailed and sent text messages conveying their outrage on petitions forwarded by media
channels and newspapers to the President. The prosecution appealed and the Delhi high court
conducted proccedings on a fast track with daily hearings over a month. The Lower Court
judgment was founded faulty in law, and Manu Sharma was founded guilty. He was
sentenced to life imprisonment in December, 2006.

NITISH KATARA MURDE CASE

Nitish Katara , a young business executive was murdered by Vikas yadav, son of an
influential politician of Uttar Pradesh. The trial court had held that Nitish’s murder was an
honour killing because the family of the accused did not approve of the victim’s relationship
with the sister of the accused the ensuing trial followed the path of similar cases which
involve “ money and muscle power” in India. A number of respectable witnesses, including

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key friends of both the victim and the girl, repudiated their initial testimony. The person in
the eye of storm, Bharti yadav, too retracted her initial verbal statements wherein she had
admitted her relationship with the victim. However, owing to intense media scrutiny, and also
the strength of the accused and his accomplice in May 2008. In the end, the victim’s mother,
Neelam Katra, who fought the six year long legal battle, thanked the media for supporting a
just cause.

K M NANAVATI CASE
This case involved Kawas Manekshaw Nanavati, a Naval Commander who was tried for
committing the murder of his wife’s lover, Mr.Prem Ahuja. Initially, Nanavati was not
declared guilty but later the decision was dismissed by the Bombay High Court and the case
was tried under a bench trial. This case was the last one in the area of Jury Trials in India.
Nanavati was second in command of Indian Naval Ship during the time he committed
murder.
Married to a lady named Sylvia and had three children with her.
Mr. Nanavati and his wife met Mr. Ahuja through a common friend. Ahuja and Sylvia
became good friends and gradually their friendship turned into an intimate relationship. On
April 27, 1959, Sylvia confessed to her husband Nanavati about her and Ahuja’s illicit
intimacy.
Unable to bear the betrayal, angry Nanavati took from the store of his ship a semi-automatic
revolver and six cartridges on a false pretext, loaded the gun and went to Ahuja’s flat. The
servant at Ahuja’s flat opened the door. Nanavati went to Ahuja’s bedroom and closed the
door from inside and abused Ahuja by calling him a Swine. Nanavati then questioned Ahuja
that whether he would marry Slyvia and look after his children. To this Ahuja replied saying,
“Am I to marry every women I sleep with?” The accused Nanavati got enraged from this
answer of his and placed the envelope containing the revolver on a cabinet nearby and
threatened to thrash the deceased. The deceased made a sudden move to grasp the envelope,
when Nanavati whipped out his revolver from the envelope and told Ahuja to back off. A
struggle went off between the two and in the course of the struggle two shots went off
accidentally and hit Ahuja which resulted in his death and thereafter Nanavati surrendered to
the Police.

Nanavati was charged under section 302 of the Indian Penal Code, 1860. The trial court

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convicted him under Section 304A of IPC and later under an appeal the high court converted
it into S.302 of IPC.
Held it was held by the court that the conduct of the accused clearly showed that the murder
committed by him was a deliberate one and the facts of the case do not attract the provision
of Exception I of section 300 of IPC as the accused by adducing evidence failed to bring the
case under General Exception of IPC. Therefore, as a result, the court convicted Nanavati
under section 302 of IPC and sentenced him of Imprisonment for Life.

JURY TRIAL

The crux of the case was whether Nanavati shot Ahuja in the "heat of the moment" or
whether it was a premeditated murder. In the former scenario, Nanavati would be charged
under the Indian penal code for culpable homicide, with a maximum punishment of 10 years.
This is because he could have invoked exceptions 1 and 4 of section 300 of IPC (which
defines murder).

Exception 1 states:

"Culpable homicide is not murder if the offender, whilst deprived of the power of self-control
by grave and sudden provocation, causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident.

Exception 4 states:

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight

in the heat of passion upon a sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner.

Explanation – It is immaterial in such cases which party offers the provocation or commits
the first assault."

In the latter scenario (i.e. premeditated murder), Nanavati would be charged with murder,
with the sentence being death or life imprisonment. Nanavati pleaded not guilty and his
defence team argued it a case of culpable homicide not amounting to murder, while the
prosecution argued it was premeditated murder.

The jury in the Greater Bombay Sessions Court had only task: to pronounce a person as
'Guilty' or 'Not Guilty' under the charges. They could not indict any accused nor could punish
the accused. The jury in the Greater Bombay sessions court pronounced Nanavati as not

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guilty under section 302 under which Nanavati was charged, with an 8–1 verdict. Mr.
Ratilal Bhaichand Mehta (the sessions judge) considered the acquittal as perverse and
referred the case to the Bombay High Court.

The prosecution argued that the jury had been misled by the presiding judge on four crucial
points:

1. The onus of proving that it was an accident and not premeditated murder was on

Nanavati.
2. Was Sylvia's confession grave provocation for Nanavati, or any specific incident in
Ahuja's bedroom or both?
3. The judge wrongly told the jury that the provocation can also come from a third
person.
4. The jury was not instructed that Nanavati's defence had to be proved, to the extent
that there is no reasonable doubt in the mind of a reasonable person.

The court accepted the arguments, dismissed the jury's verdict and the case was freshly heard
in the high court. Without any proper study comparing existing judicial systems and without
any effort to improve the system, it was claimed that jury had been influenced by media and
was open to being misled, the Government of India abolished jury trials after this case.

NIRBHYA CASE
Citing pressure on the judiciary during the Nirbhaya rape case, Supreme Court Judge Kurian
Joseph on Saturday said media trials in pending cases should be avoided and thereby judges
saved of the enormous strain created by it.
"Please stop trying (cases) in the media till a case is over. Never try a case in the media, it
creates a lot of pressure on judges, they are also human beings," he said addressing a meet
held by the Bar Council of India here.
Referring to "the amount of pressure that is built," he recalled how a judge who dealt with the
case had once told him that "had he not given that punishment, they would have hung him."
The judge had said "If I had not given that punishment they would have hung me, the media
had already given their verdict, (like) it is going to be this only," according to Kurian.
He, however, added, "he (the Judge who went into Nirbhaya case) had reasons to give the
punishment, not because the media said it, but because he had reasons."

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He said that the judge who dealt with the sensational case "was also making a casual remark
that had it not been done, the people would have hung him because that was the type of
pressure never ever resort to media trial, you do it after the judgement is delivered."
He also appealed to the media to "never ever quote or criticise or work upon oral comments
of judges in benches... just ignore comments."
"A judge is expected to speak only through his judgement. While performing work as a
judge, if he makes a comment in the bench, never ever build upon that," said Kurian. By
following such things, the media will do a "great service to the nation and democracy," he
said.
The judge also urged lawyers not to seek adjournment more than once and to look into modes
of protest other than strikes as there were judgments against it. On the duration of judgment,
he said, "a judge who hears a case should deliver verdict preferably in a month and in any
case in three months."
If a judge has judgements pending for more than three months, work should not be allocated
to him, he said. He appealed to Union law minister Sadananda Gowda, who was present, to
inspect mofussil courts. Gowda later said he would do so and submit a report to the judge.

ARUSHI MURDER CASE

Even though the files for the Arushi Murder case may have been closed and stacked in some
dusted corner, there still seems to be restlessness; the lingering issue of what exactly
happened that fatal day. This is directed at the plethora of information that was dumped upon
the public from various authorities like the CBI, media, judiciary and the Uttar Pradesh police
within a short span of time. From being a grotesque criminal case which should have ideally
been resolved following the established judicial procedure, it became a mockery and a
shoddy affair.

Over a span of almost five years, it turned into nothing less than a daily soap with its set of
twists and turns. The problem started with the misuse of power by the several authorities and
a few blunders committed at the very onset. The first blunder was the way in which police
authorities conducted the investigation process. Instead of depending on forensic tests and
traces of evidence on site, they relied upon the most novice conclusion of holding the people
who were missing as the culprits. This narrow escape of the police from investigation opened
the gateway for speculations and unwarranted reporting by the media.

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As time elapsed, the media joined in by reporting colourful and baseless assumptions made
by the police force and CBI. Few of them were as preposterous as the Talwar couple being
involved in wife swapping and alleged affairs. Not only this, the media even went ahead to
create a negative image about the victim herself by alleging that since she was purportedly
found in a compromising position with the domestic help and was thus having an affair with
him.

The rat race between media regulators through its series of hackneyed assumptions only
gained pace. It seemed to have become a daily entertainment for the public and a TRP
generator for the media. The absurdity of it all did not stop here. It went on to the extent of
the media questioning Anita Durrani who was claimed to have been having an illicit affair
with Mr. Talwar. Lastly, the Talwar couple were accused of being too composed as they did
not cry as per expectations.

This media extravaganza continued and the media took pride in the fact that they were
keeping the public abreast of a monstrous event such as this. This was all fed to the public
while the matter was sub judice. Not only the media but the CBI and UP Police could be held
equally responsible for being the co directors of this trashy script that was being fed to the
public in the name of news. It took the shape of a story that the media was reading to the
public, day by day splashing it with spiced ingredients to stir the emotions of the public.

There was a wide gap between what was being reported and the judicial process. Legally
speaking, the media ought to know that it had overstepped its authority. The freedom of press
extended to them had been misused which caused the seed of prejudice to be implanted in the
minds of the public and those involved in the adjudication process. This was not only an
undue influence but also amounted to interference with the administration of justice. Further
this would amount to Criminal Contempt of Court under Section 2(c) of the Contempt of
Courts Act, 1971. Lastly, the recommendations of the Law Commissions 200 th report were
ignored as the balance between freedom of press and rights of the accused were hampered
with throughout.
The ongoing conflict between judiciary and media is clearly brought forward by this case.
Through the course of almost five years, both seemed to be stifling each other for power and
control. In the end, did Arushi get justice? One cannot say for sure but a chance at the truth
surely got lost in between.

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The verdict held the Talwar couple responsible for the murder of their daughter and awarded
life imprisonment after conducting the sound judicial proceedings. If they had been acquitted,
would the opinion of the public changed about them? It might just have been better to put
them behind bars rather than facing the wrath of living in a world that no longer belongs to
them. Such is the power of the media.

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)’.

The most suitable way to regulate the media will be to exercise the contempt jurisdiction of
the court to punish those who violate the basic code of conduct. The use of contempt powers
against the media channels and newspapers by courts have been approved by the Supreme
Court in a number of cases as has been pointed out earlier. The media cannot be allowed
freedom of speech and expression to an extent as to prejudice the trial itself.

The print and electronic media have gone into fierce and ruthless competition, as we call
them ‘aggressive journalism’ that a multitude of cameras are flashed at the suspects or the

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accused and the police are not even allowed to take the suspects or accused from their
transport vehicles into the courts or vice versa. Earlier, journalism was not under pressure to
push up TRP ratings or sales. So the journalists did their work with serious intent and
conviction, with courage and integrity. They did not pronounce people guilty without making
a serious attempt to study the charges, investigate them, and come to their own independent
conclusions, without fear or favour. They did not blindly print what law enforcers claimed,
what the bureaucracy said or what politicians planted on to them. That is why people trusted
them. But now we are seeing a different self acquired role of media in form of ‘media trial’.

Everyone manipulates the media to serve their own interests or hurt their rivals. The problem
does not lie in media’s exposing the lacuna of a bad investigation by police, or mal-
performance of the duties ordained to the civil servants but the eye-brows start to raise when
the media ultra vires its legitimate jurisdiction and does what it must not do. Be it
highlighting the sub-judice issues into public keeping at stake the sanctity of judicial
procedures and ‘right to life with dignity’ of accused and suspects. The media trial has now
moved on to media verdict and media punishment which is no doubt an illegitimate use of
freedom and transgressing the prudent demarcation of legal boundaries.

From the above account it becomes clear that the media had a more negative influence rather
than a positive effect. 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. Any
institution, be it legislature, executive, judiciary or bureaucracy, is liable to be abused if it
exceeds its legitimate jurisdiction and functions. 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. 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. An ideal

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proposal will be that the Indian press and the Indian people are not at present democratic
enough to allow the press to intrude in the judicial process. What will an ideal proposition in
allowing the media trial at this moment. It’s definitely an ideal proposition to allow
controlled media reporting of the cases once the media is supposed to come out of the profit
and sensational considerations. The media has to play the role of a facilitator rather than
tilting the scales in favour of one or the other party. Heinous crimes must be condemned and
the media would be justified in calling for the perpetrators to be punished in accordance with
the law. However, the media cannot usurp the function of the judiciary and deviate from
objective and unbiased reporting. While a media shackled by government regulations is
unhealthy for democracy, the implications of continued unaccountability are even more
damaging. Steps need to be taken in order to prevent media trials from eroding the civil rights
of citizens, whereby the media have a clearer definition of their rights and duties, and the
courts are given the power to punish those who flagrantly disregard them.

What lessons does the Jessica Lall fiasco teach us? There is definitely a case for intensifying
efforts to upgrade the quality of policing. There is at the same time a need to improve judicial
performance. For instance, the Jessica trial took nearly seven years to get completed. Hardly
anyone has commented on this. Will it be unreasonable to demand that this should be taken
up by the Delhi High Court as a kind of case study to find out why there was such delay? The
public would like to satisfy themselves that the failure was not because of judicial lethargy,
but rather because of several extraneous factors such as police indifference and wanton
delaying tactics on the part of the defence. The current popular perception is that judicial
accountability is an unrealisable dream. It is for the judiciary to prove this perception wrong.

The above analysis reveals us the gravity of the situation as it persists in India. An ideal
proposal will be that the Indian press and the Indian people are not at present democratic
enough to allow the press to intrude in the judicial process. It’s definitely an ideal proposition
to allow controlled media reporting of the cases once the media is supposed to come out of
the profit and sensational considerations. The media has to play the role of a facilitator rather
than tilting the scales in favour of one or the other party.

Heinous crimes must be condemned and the media would be justified in calling for the
perpetrators to be punished in accordance with the law. However, the media cannot usurp the
function of the judiciary and deviate from objective and unbiased reporting.

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While a media shackled by government regulation is unhealthy for democracy, the
implications of continued unaccountability are even more damaging. Steps need to be taken
in order to prevent media trials from eroding the civil rights of citizens, whereby the media
have a clearer definition of their rights and duties, and the courts are given the power to
punish those who flagrantly disregard them.

The judiciary has been critical of the overactive and prejudicial reporting by the media. In the
Labour Liberation Front case, Justice L. Narasimha Reddy lamented the “abysmal levels to
which the norms of journalism have drifted.” In M.P. Lohia v. State of West Bengal, the
Supreme Court cautioned the publisher, editor and journalist of a magazine that had reported
the facts of a case that was sub-judice, thus “interfering with the administration of justice.”

The observations of Mr. Andrew Belsey in his article ‘Journalism and Ethics, can they co-
exist’) quoted by the Delhi High Court in Mother Dairy Foods & Processing Ltd v. Zee
Telefilms aptly describe the state of affairs of today’s media. He says that journalism and
ethics stand apart. While journalists are distinctive facilitators for the democratic process to
function without hindrance the media has to follow the virtues of ‘accuracy, honesty, truth,
objectivity, fairness, balanced reporting, respect or autonomy of ordinary people’. These are
all part of the democratic process. But practical considerations, namely, pursuit of successful
career, promotion to be obtained, compulsion of meeting deadlines and satisfying Media
Managers by meeting growth targets, are recognized as factors for the ‘temptation to print
trivial stories salaciously presented’. In the temptation to sell stories, what is presented is
what ‘public is interested in’ rather than ‘what is in public interest’.

The Indian Law Commission’s recent report entitled Trial by Media: Free Speech vs. Fair
Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) has made
recommendations to address the damaging effect of sensationalised news reports on the
administration of justice. While the report has yet to be made public, news reports indicate
that the Commission has recommended prohibiting publication of anything that is prejudicial
towards the accused — a restriction that shall operate from the time of arrest. It also
reportedly recommends that the High Court be empowered to direct postponement of
publication or telecast in criminal cases.

The credibility of news media rests on unbiased, objective reporting. It is in the

media’sinterest to ensure that the administration of justice is not undermined.

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 SUGGESTIONS

The existing laws and rules regulating electronic media are more than sufficient to stream-
line the working. In fact the seamless web of laws and authorities makes media regulation a
complex task. The need is the proper implementation of these laws. Its proper
implementation can provide the media an honourable position.

The Right to Information Act, 2005 is a legislation which has the capacity to discover the
truth of everything. It is suggested that the electronic media (Private TV channels) should be
brought under Right to Information Act, 2005 so that some accountability comes into media
operation and management.

It is suggested that the number of programmes spreading peace, stability and progressiveness
among people should be increased and the number of advertisements relating to social
welfare and public awareness should be increased by Directorate of Advertising and Visual
Publicity (DAVP). Electronic media should telecast programmes which give knowledge to
illiterate, rural and poverty ridden people, relating to employment opportunities.

Crime, violence and obscenity related programmes should be restricted as it has deep impact
on viewer's mind. It is suggested that Laws regulating Advertisements “Advertisement Code”
should be implemented and amended in the tune so that all advertisement should be clearly
distinguishable from the programme and should not in any manner interfere with the
programme via use of lower part of screen to carry captions, static or moving alongside the
programme. The rules made under the Cable TV Network (Regulation) Act, 1995 should be
enforced against the news channels telecasted by the cable networks. All advertisement must
be truthful and capable of substantiations. Advertisement shall not contain a reference to
person, firm or institution which confers an unjustified advantage or tends to bring the person
to ridicule or disrepute. Advertisements shall not contain statements or visual presentations
which directly or by implication or by omission or by ambiguity or by exaggeration are likely
to mislead the people.

In case of terrorist or bomb blast attacks, electronic media should not give live coverage of
hostage crises. It should block information that may help terrorists. It should not disclose
information on rescue operations. Media should avoid live contact with victims and with
security personnel engaged in rescue operations in 26/11-like situations. Media should avoid
unnecessary repetition of archival footage which may agitate the mind of viewers. An ethical

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media can be a powerful tool to educate and prepare public to wage the real war against
terrorism at the grass root level. The Cable Television network (Regulation) Act, 1995
provide for the mandatory registration of all cable operators. It is very commendable
approach of this Act. But this Act does not cover private channel broadcasters. The result is
that these private broadcasters remain un-accountable under this Act. It is suggested that the
Broadcasting services regulation bill, 2006, the aim of which is regulation of broadcasting
service in objective and competitive manner should be passed and implemented fully.

The media especially electronic one impacts governance, society and the course of events. An
objective and a balanced media coverage of varied important issues relating to human
development, socio-economic development, governance and democracy would make an
important contribution in protection and enlarging public interest. An excessive zeal to praise
or blame cannot be the basis of good reporting. Journalism must go back to trenches and
rediscover the basics.

Media forms the backbone of the society, as many authors say “eyes and ears of the general
public”.A responsible media needs to take into the consideration the reliance entrusted on it
by the general public and confidence and faith as to blindly accept that truth of the news
published by media.In doing so the media should follow certain norms in reporting a crime
which is globally accepted:
 Accuracy and fairness shall be maintained in reporting.
 Factual accuracy of the report shall be verified before publication.
 Every caution shall be undertaken against defamatory writings.
 Right to privacy shall not be intruded or invaded unless over weighted by genuine
overriding public interest.
 Due care shall be exercised in making fair criticism of judgement and reporting court
proceedings.
 Reports shall not be published based on conjecture or surmises or in suspicion.
 Glorification of an act of violence shall be forbidden.
 The heading shall not be sensational or provocative and it must justify the matter printed
under them.
 Correction shall be made or published without any delay in cases of error.

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 BIBLIOGRAPHY

BOOKS:

1. D.D. Basu, (1980) “Law of Press in India”, LexisNexis Buttersworths, New Delhi.
2. Vir Bala Aggarwal, (2002): “Media and Society Challenges and Opportunities”,
Concept Publications, New Delhi.
3. D.D. Basu, (2002), “Shorter Constitution of India”, Wadhwa Publications, New Delhi
4. Law Commission of India, 200th Report on Trial by Media.
5. Madhavi Goradia Divan, (2010) : “Facets of Media Law”, Eastern Book Company,
Lucknow.
6. Arun Bhattacharjee, (1972), “The Indian Press Profession to Industry”, Vikas
Publications, New Delhi.
7. Lalit Bhasin, (2010), “Media World and Law”, Universal Law Publishing Co. Pvt.
Ltd., New Delhi.
8. V.N. Shukla, (2015): “Constitution of India”12th Ed., Eastern Book Company,
Lucknow.

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 9. Mark Pearson, (2008), “The Journalist’s Guide to Media Law”, 3rd Ed., Allen &
Unwin, Australia

ARTICLES:

1. Brown Naylor, Fair Trial or Free Press; Legal Responses to Media Reports of
Criminal Trials, Vol. 53 Issue 3, Cambridge Law Journal, Nov 1994.
2. Joanne Armstrong Brandwood, You Say “Fair Trial” and I Say “Free Press”: British
and American Approaches to Protecting Defendants’ Rights in High Profile Trials,
75 N.Y.U. L. Rev. 1412 (2000).
3. Giorgio Resta, Trying Cases in the Media: A Comparative OverviewLaw and
Contemporary Problems, Vol. 71, No. 4, The Court of Public Opinion: The Practice
and Ethics of Trying Cases in the Media (Autumn, 2008).

4. Christopher Townsend, Interactions between the Media and the Criminal Justice
System, Vol. 2 Western Australian Jurist, 2011.
5. Julian V Roberts and Mike Hough, Public Opinion and the Jury: an international
Literature Review, Ministry of Justice Research Series, February 2009.
6. Kathakali Nandi, Investigative Role of Media: Responsibility of the Society, Global
Media Journal-Indian Edition/Summer Issue/June 2011, available at
http://www.sxccal.edu

NEWSPAPER:

1. Rape accused and Subversion of trial, The Hindu, 17th January, 2004, available at
http://www.thehindu.com/2004/01/17/stories/2004011705420300.htm.
2. Timeline: Nitish Katara Murder Case, The Indian Express, 2 nd April, 2014, available
at http://indianexpress.com/article/india/india-others/timeline-nitish-katara-murder-
case/.

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