FACULTY OF LAW
INTERNAL ASSESSMENT (IA)-II
MEDIA AND LAW
“CONSEQUENCES OF MEDIA TRIAL”
SUBMITTED TO
Ms. Diksha Garewal Das
Assistant Professor
Faculty of law, JLU (Bhopal)
SUBMITTED BY
Anurag Singh
B.B.A. LL.B.(H.) X Semester
Roll No. - 2017BBLH018
JLU ID - JLU00662
TABLE OF CONTENTS
1. Introduction..........................................................................................................1
2. Media Trial v. Freedom of Speech and expression .............................................1
3. Media Trial V. Fair trial.......................................................................................3
4. Media Trial v. Contempt of Court .......................................................................7
5. landmark incidences of Media trial and its consequences ..................................9
6. Conclusion .........................................................................................................11
“CONSEQUENCES OF A MEDIA TRIAL”
1. Introduction
There are three pillars of democracy i.e. Legislative, Executive and Judiciary, however, media has
been termed as the fourth pillar of democracy. Media and Judiciary complement each other in the
pursuit of democratic success.
A Media trial that runs parallel to Judicial trial have various consequences upon the adjudication
of case. It not only creates biasness and prejudice in mind of society and people associated with
case, it also violates various other rights such as Freedom of speech and expression, Right of fair
trial, Right to be represented, Right to Reputation, Right to Privacy etc. Hence in order to
Understand how media trial violates various other rights, one need to learn how media trial is
associated with above mentioned rights.
Media enjoys the freedom of press, a fundamental right, which is provided under article 19(1) of
the constitution. The said right is not unlimited. Various reasonable restrictions have been put upon
it under the clause 2 of article 19. The various Reasonable restrictions upon Freedom of Speech
and expression includes “Security of State, Sovereignty and integrity of India, public order,
Friendly Relations with foreign states, decency and morality, Contempt of court, defamation and
Incitement to an offence.”
2. Media Trial v. Freedom of Speech and expression
The press, as well as electronic media and social networking sites, are all part of the media in the
twenty-first century. It is recognized in Article 19(1) of the Indian Constitution. However, as per
Article 19(2), it is subject to certain limitations. These limits are designed to safeguard the nation's
sovereignty and integrity, as well as the state's security. The Apex Court held in Brij Bhushan And
Others v. State of Delhi1 that “imposing pre-censorship on a newspaper is a restriction on the
freedom of press, which is an essential aspect of the right to freedom of speech and expression.”
1
Brij Bhushan and Others v the State of Delhi 1950 AIR 129
1
However, the freedom of speech and expression enjoyed by media cannot be said to override
individual’s Freedom of speech and expression.
In Romesh Thapar v. State of Madras,2 Supreme court of India observed that “Freedom of speech
and expression includes propagation of idea though circulation.” It further elaborated that freedom
of press under Article 19 can only be reasonably restricted if it fall under Reasonable Restrictions
mentioned under Article 19(2) of the Indian Constitution.
As per Article 19 of Indian Constitution, the various Reasonable restrictions upon Freedom of
Speech and expression includes “Security of State, Sovereignty and integrity of India, public order,
Friendly Relations with foreign states, decency and morality, Contempt of court, defamation and
Incitement to an offence.”
With respect to media trial, the contempt of Court, decency, morality, defamation and public order
are of great relevance. In media trials all or any of Reasonable restrictions are violated by
committing an act that is contrary to the reasonable restrictions.
Many such incidences happen in the society that attracts huge crowd that follows that particular
act and news incidental to it. The Huge interest of General public often tempt media to increase
their viewership and reach and in order to do so, media crosses the line of decency and morality.
For example, In Cases of Rape and murder, it is indecent and immoral and also contravention of
law to reveal the identity of rape victim or any images incidental to both of crimes as it could be
gruesome, heinous or violation of public policy and guidelines set by press council of India and
the other regulatory authorities. However, they get reported in media every now and then which
violates the Reasonable Restriction provided under Article 19(2) of the constitution.
Media trial is a direct violation of Section 3 of Contempt of court Act that provides for contempt
of court Act that is provided as a reasonable restriction under article 19(2) of constitution. Media
trial also violates Right to privacy of accused as well as victim.
In Shushant Singh Rajput Suicide case, The media in exercise Right of Freedom of Speech and
expression violated Right to privacy of rhea Chakraborty & other people who were connected to
the case. This was clear case of media trial where she was branded as reason for Shushant Singh
2
Romesh Thapar v State of Madras, AIR 1950 SC124
2
Rajput’s suicide and was targeted by media on all platforms. This tarnished her image in public.
In this case, media misused its Right to Freedom of Speech and Expression and violated Right to
Privacy of an Individual.
3. Media Trial V. Fair trial
A fair trial is an open trial before an unbiased judge in which all parties are heard equally. Equal
treatment is given to both parties. One of the fundamental rights is the Right to a Fair Trial.
Fundamental protection of Human Rights and the Rule of Law, with the goal of ensuring the proper
administration of justice. Hence, a fair trial is a trial that runs according to principles of Natural
Justice.
Right of Fair trial is recognized by the apex court under Articles 14, 20, 21 and 22 of the Indian
Constitution. The apex court while recognizing the Right of fair trial of an accused in case of
Zahira Habibullah Sheikh and Ors v. State of Gujarat and Ors.,3 observed that “every person has a
Right to be tried fairly in a trial. Denial of a fair trial is an injustice to the accused as it is to the
victim and to the society itself.”
Media trial violates Fair Trial of an Accused. It creates biasness upon the mind of parties of case,
the Judge and it changes the general public opinion in relation to Accused.
The Supreme court in case of Saibal Kumar v. B.K. Sen4 discouraged the media trial and observed
that it would be mischievous and misuse of Rights provided to media if it independently
investigated a crime for which accused has been arrested and publishing the same. This is because
it would be considered a Media trial and therefore it must be discouraged. Reporting of Facts is
acceptable if it is non biased and does shows both sides of a particular case. Media trial would
violate the Fair trial of an individual by creating prejudice against the Accused.
In M.P. Lohia v. State of West Bengal5 wherein only one-sided facts of a particular case were
published by media the court observed that it has interfered with the proper and fair and adequate
3
Zahira Habibullah Sheikh and ors v. State of Gujarat and ors. (2006) 3 SCC 374 at 395
4
Saibal Kumar v. B.K. Sen (1961) 3 SCR 460
5
M.P. Lohia vs. State of West Bengal (2005) 2 SCC 686
3
Justice. The Court discouraged the act and gave a warning to the “publisher, editor and the
journalist” involved in such act that were responsible in such act of Media trial.
The law commission in its 200th report on Media trial presented upon various cases where media
trial and misuse of Freedom of speech and expression by media has created prejudice in the mind
of judges and affected their decision. Also, that Media trial creates a biased public opinion upon
the accused that tarnishes their image and creates an unnecessary pressure upon the court to
adjudicate the matter as soon as possible which shall be against fair trial if it is tried quickly just
for sake of reputation.
Freedom of Speech of media cannot out-weigh the administration of the justice by Court. The duty
of press is to report the matters and not to adjudicate the same. It can be termed as contempt of
court and hence can be reasonably restricted under Article 19(2) of Indian Constitution.6
In the case of Ankul Chandra Pradhan v. Union of India7, the Apex Court held that in the cases of
hawala transactions, no occasion should arise wherein the publicity of a matter has ruptured the
concept of fair trial and the principles of natural justice that includes presumption of innocence
unless proven guilty.
When the media’s freedom of press are compared to the fair trial of that of an accused or from a
perspective of a victim, the rationale behind the restriction upon media on reporting upon pending
cases is to remove any kind of prejudice that can be formed and any kind of hinderance that would
be caused in administration of justice.
In Kartongen Kemi Och Forvaltning AB and Ors. v. State through CBI8, The Supreme court
observed that when right of Freedom of speech and expression of press and individuals right to
fair trial is to be considered, the latter shall be dominant over the former. The court observed that
circulation of information is important so that discussions can be initiated in the society and spread
awareness and fair trial is equally important because it’s a matter of persons life and liberty
guaranteed to him under Article 21 of the Constitution. The court further observed that there is a
process of trial that has been established by law and a Media trial is very contrary to the principle
6
Rao Harnarain v Gumori Ram AIR 1958 P& H 273
7
Anukul Chandra Pradhan V. Union of India. AIR 1997 SC 2814
8
Kartongen Kemi Och Forvaltning AB and Ors. vs. State through CBI, 2004 (72) DRJ 693
4
of Rule of Law. It can result in the miscarriage of Justice and therefore media trial needs to be kept
in check so that it can be restricted as soon as it initiates.
The PCI gave directions to the press that:
(i) never do excessive publicity of any person (accused, victims or witnesses);
(ii) not disclosing any confidential information related to any matter;
(iii) not disclose identification of witness so that they cannot become hostile; and
(iv) not put any undue pressure upon the judge through any parallel trial9
Hence, the object of a free and fair trial is to meet the ends of justice and a Media trial violates the
Right of Fair Trial of accused. In case a situation arises wherein the Right of press of Freedom of
speech and expression are put against the Right of an accused to free and fair trial, then the latter
shall trump over the former.
Acts Considered to create prejudice
There are several Acts that can be construed as violative of Right to fair trial by media as these
acts would be said to have caused prejudice in mind of judges. Some of these are explained by law
commission of India in their reports. Following are the acts that would be construed as act violating
of Right to Privacy and affecting various aspects of fair trial.
• Publications concerning to accused’s or victim’s or witness’s character
Any publication by media related to the personal information related to accused or victim or
witness shall be termed to as violation of privacy of that individual. This could also create prejudice
among the judges or judge of the case and affect the accused’s Right of fair trial.
In case of R. v. davis10, where a woman was arrested for abandoning a child, media published
several information related to her previous acts and same were held to be violative of privacy and
it was held that such information may create prejudice against the woman.
9
Press Council of India, ‘Norms of Journalistic Conduct’ (2010 ed.), Part A: Principles and Ethics, Chapter 41 ‘Trial
by Media’.
10
R. v. davis (1906) 2 KB 32
5
• Publication of confessions - Confessions made to police without presence of a judge has
no value in the court of law, however if such confession gets published, it would create
prejudice in the mind of judges and it would amount to violation of fair trial principle.
In the case of Shamim Rehmaney vs Zinat Dehalvi11, a report by media was published with
respect to this case. The said report was said to have discussed the merits of the case upon
which the appeal was filed. The HC ordered that this would-be “Contempt of Court” as it
would interfere with Fair trial of an Accused.
• Photographs- If any of the photographs are published by media that has potential to affect
the accused identification or any other act then it would lead to affect the fair trial of
accused.
• Any publication of statement of witness or interviews of witness by media shall be
considered to be published with an intent to create prejudice against the accused.
• Any publication of evidence that would hamper with the judicial proceeding shall be
termed to be an act of hampering judicial trial.
• Criticism and personal information of a witness would surely violate right of fair trial as I
would decrease the credibility of witness.
Hence these acts would be considered to cause prejudice in general public.
Guidelines by PCI with respect to Media trial
Media and judiciary are considered to act in a complementary way where in both of these pillars
compliments each other to achieve other one’s objective. However, media trail stands exact
contrary to the “Principles of Natural Justice” and therefore there are various guidelines that are
provided by PCI in order to stop media from interfering with judicial proceedings of an individual.
Following are the guidelines:
• “Presumption of Innocence” is an important principle of fair trial & therefore an accused
must not be portrayed as guilty by media. He must be referred to as accuse itself.
11
Shamim Rehmaney vs Zinat Dehalvi, 1971 CriLJ 1586
6
• Any kind of publishing must be avoided that would affect the investigation process by the
competent authorities and brings upon pressure on them.
• Any report of gossip about the investigation that would help the perpetrator to make its
move accordingly must not be published in any media channel.
• No vigorous reporting must be done daily and any comment on the evidence found by
investigative authorities shall be avoided.
• Any confidential information which might bring biasness against the accused or victim
must not be published.
• Any reporting of an incident or information must not be published in order to provide
publicity to accused, victims or witnesses as it would be considered to be violating privacy
of such people.
• No information related to witness shall be published as it could endanger the life and liberty
of the witness.
• No picture of the accused be published as it would affect the process of test identification
conducted by investigative authorities.
• No parallel trial shall be conducted by media.
• Every case that is being reported from initial stages must be concluded with the judgement
of same whenever it is given by the relevant court.
These are the guidelines that are provided by the PCI in order to limit the effect of media upon a
case and it does not violate the Right of fair trial of an individual i.e., of an accused or a victim.
4. Media Trial v. Contempt of Court
Contempt of court is a Reasonable restriction of Freedom of speech and expression that is provided
under Article 19 of The Constitution of India. It is dealt by The Contempt of Court Act, 1971.
Section 2(a) of the Act defines “contempt of court as civil and criminal contempt.” Further Section
2 (c) of The Act defines criminal contempt as “any publication by any means that
i. scandalizes or tend to scandalize the authority of court
ii. prejudices or interferes with the judicial proceedings
7
iii. interferes or obstructs the administration of justice.”12
Media trials are acts resulting in Contempt of Court as acts in such trials fulfills the conditions of
criminal contempt. It affects the administration of justice, violates principle of rule of law and
creates prejudices.
Influence upon the judges or jury or the creation of hysteria in public mind, making a witness
hostile and violating the right of Fair trial of an accused shall be considered to be instances that
cause or interferes with the judicial trials of an individual attracting provisions of Criminal
Contempt.
Section 3(2) of The Contempt of Court Act, when Read with explanation provided, provides that
if a publication is made for a case before institution of a charge sheet or before the issuance of
warrant, then such publication shall not be termed as contempt of court.
Prior to year 1969, the court was of opinion that as soon as a complaint if filed before the authority,
the matter becomes sub-judice and any publication that interferes with the administration of justice
shall attract the contempt of court.13
However, in the land mark case of A.K. Gopalan v. Nordeen14, the Apex Court observed that
criminal proceedings are bound to proceed further only if the accused has been arrested. In this
case, a person died due to an incident and a FIR was filed in the police station for the same. A.K.
Gopalan made a statement regarding the same after the FIR was filed and few days later the person
was arrested. The media published news related to that after the arrest was made. The respondent
filed the case in HC against the Ak Gopalan and the newspaper editor and publisher. While court
accepted the plea of A.K. Gopalan, it rejected the plea filed by publisher and editor of the
newspaper and held that:
i. contempt of court by media or any other person is a matter of discretion of court
ii. the publication my media or any other person must show that substantial interference was made
in due course of justice.
12
Section 2(c) of The Contempt of Court Act, 1971.
13
R.K. Garg v. S.A. Azad, AIR 1967 All 37
14
A.K. Gopalan v. Noordeen, AIR 1969(2) SCC 734
8
iii. the proceedings of a trial case are imminent only after the accused is arrested.
iv. Right of Freedom of Speech would get restrained if it is declared that publication before arrest
cannot be done.
Fair criticism is an exception to the publication that would be termed as Contempt of court. as per
Section 4 of the Act, “A person shall not be guilty of contempt of court for publishing a fair and
accurate report of a judicial proceeding or at any stage of judicial proceeding.” Section 5 Provides
for fair criticism of judicial matter that has already been heard.
In Umaria Pamphlet case15 the Supreme Court provided for the concept of fair criticism and limits
to which any comment shall be considered to be free and fair criticism of a proceeding. Any
criticism that would have a tendency to obstruct the Administration of Justice, affect public’s view
towards judicial process would cross the line of and would not be considered Fair Criticism.
5. landmark incidences of Media trial and its consequences
There have been many landmark incidences in which media trial has happened in India even after
so many laws and supreme court rulings. Media claims that it is their Freedom of Press, however,
it violates the Rights of fair trial of that of accused and victims. Following are some of the landmark
incidences-:
• Sanjay Dutt case16
Sanjay Dutt is a Famous Bollywood actor who was accused of Bomb blast that took place on 12th
march, 1994. He was also accused for possession of illegal arms and live ammunitions which he
acquired from the various terrorists. He was charged under The Terrorist Disruptive Activities Act,
1987.
He was imprisoned for 18 months before the bail was granted. After Eleven Years, TADA Court
acquitted Sanjay Dutt of all charges stating that he kept fire arms for the safety of his father who
was being threatened for bringing harmony between religious community in the aftermath of Babri
15
Rama Dayal Markarha vs State Of Madhya Pradesh, 1978 AIR 921, 1978 SCR (3) 497
16
Sanjay Dutt vs State Through C.B.I. Bombay, Special Leave Petition (crl.) 1834-35 of 1994
9
Masjid demolition and that he was not a terrorist. However, he was sentenced for imprisonment of
6 years under Arms Act.
This was a landmark case as media trial was started against him even before actual trial was started.
Media branded Sanjay Dutt as a terrorist regardless of the fact that it would amount to contempt
of court because it was interfering with the judicial trial and created prejudice against Sanjay Dutt.
It also violated his Right to Fair Trial.
Even though he was acquitted of all the charges under TADA, he was still referred to as terrorist
and his perception in the society still exists. Even after he was acquitted, the Media trial tarnished
his image and reputation and made him a public enemy leading to public outrages against him as
well.
• Manu Sharma Case17
Jessica Lal was shot dead in the year 1999 by Manu Sharma, son of a political leader, when the
waitress refused to serve liquor to his friends and him at a bar. Charged with the crime of murder,
Manu Sharma was released by the Trial Court, and the matter attracted immediate and extensive
coverage by media.
The state was represented by Gopal Subramaniam, and Manu's case was represented by a
substandard lawyer. Advocate Ram Jethmalani, one of India's highly illustrious lawyers, decided
to take on this murder case, he was mocked by the public. The case was labeled "indefensible" by
a renowned news channel. Before he could get a proper representation, the people assumed he had
been murdered. Hence Media trial affected the Right to be represented of Manu Sharma.
• Arushi Talvar case18
Also known as Noida Double Murder case, this is a classic example of Media trial. In this case a
girl and a servant were found dead. The police accused the parents of the child for both the murders
claiming that the parents killed both of them as they found both of them in compromising position.
17
Sidhartha Vashisht alias Manu Sharma vs State (NCT Of Delhi), CRIMINAL APPEAL NO. 179 OF 2007 With
CRIMINAL APPEAL NO. 157 OF 2007 AND CRIMINAL APPEAL NO. 224 OF 2007.
18
Dr. Rajesh Talwar And Another V. Central Bureau Of Investigation, 2013 (82) ACC 303
10
The police compromised the crime scene which was heavily criticized. The case was transferred
to CBI where in the parents were initially declared to be innocent and suspected another servant
on basis of Narco-analysis test.
On the basis of available evidence, the CBI court held the parents guilty for the murders. However,
thy were acquitted in 2017 due to lack of evidence and court gave them the benefit of doubt.
This case was highly reported and the parents were branded as murderers. The media was
insensitively violated right to privacy and conducted their own independent investigation that was
already against the guidelines by supreme court in earlier cases of media trial. The dramatizations
in several channels objectified and defamed the parents as well as Arushi Talvar and the servant.
A Public Interest Litigation was instituted by an advocate in the Apex Court against media trial
and misinformation that was being circulated in the public domains that were defaming the
reputation. The court took the cognizance of the same and reprimanded both, the print and
electronic media to be aware of the reporting that was being done and termed is as a contempt of
court as it was creating prejudice in general public against the parents. It also held that these reports
were meddling with the right to be represented of accused.
The court restrained the publication of material that would intermeddle and affect the standard
investigation process in any of the case and the whole incident of Media Trial was highly criticised
by Supreme Court.
6. Conclusion
A person is presumed to be innocent unless and until proven guilty. This is considered to be one
of the most important principle of Fair trial. However, Media trials which are trials that runs
parallel to Judicial trials disregard this principle.
Hence, from the extensive research upon media trials and different aspects incidental to it, it can
be concluded that media, considered to be the fourth pillar of democracy, crosses the line of
professionalism and ethics by conducting media trials. Media trials not only interferes with the
administration of Justice, but also It affects rights of individuals that are Fundamental and
protected by the Constitution of India.
11
Media trial is unconstitutional as declared by Apex Court because it is apparent misuse of the
“Freedom of press to publish and circulate” as provided under ambit Article 19(1) of the
constitution. Media has a Regulatory framework that keeps acts of media in check, however, media
often violates all such rules and regulations.
The Freedom of speech and expression is a fundamental right and same is provided to media but
there are several reasonable restrictions upon it. Media does not have a right to violate right to fair
trial of an individual. If media interferes with the Judicial trial by creating a prejudice in the minds
of Judges and general public, such act would be considered to be a contempt of court. A fair
reporting is essential in order to initiate discussions, however any act that has a potential of
affecting fair trial of an accused or affects any other party of a case, then it must be discouraged.
12
