MAHARANI LAXMI BAI GOVERNMENT

COLLEGE OF EXECELLENCE

PROJECT ON

MEDIA TRIAL

SUBMITTED TO SUBMITTED BY

Dr. Anjuli Sharma Shreyashi Shrivastava

Associate Professor LLM (1st Year)

Head of Department of Law

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 TABLE OF CONTENTS

1. INTRODUCTION

2. INTERNATIONAL INSTRUMENT REGARDIND

FREEDOM OF PRESS AND EXPRESSION

3. MEDIA TRIAL IN INDIA

4. JUDICIAL PRECEDENT ON MEDIA TRIAL

5. CRITICAL ANALYSIS OF MEDIA TRIAL

6. CONCLUSION

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 ACKNOWLEDGEMENT

At the outset I would like to express my special thanks of deepest gratitude

to my teacher ‘Dr. Anjuli Sharma’ who gave me the golden opportunity to

do this wonderful project on the concerning topic, which also helped in

doing a lot of Research and I came to know about so many things, whatever

I have done is only due to her guidance and assistance.

Further, I would not forget to remember my parents and other family

members for their unlisted encouragement and creates an environment

suitable for my project and more over for their timely support to do the best

that I can. My thanks and appreciation also go to my classmates and friends

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in developing the assignment, who have willingly helped me out with their

abilities.

At last I would like to extend my sincere thanks and also extremely fortunate

to all of them for their kind cooperation to prepare and finishing the

assignment within the limited time.

SHREYASHI SHRIVASTAVA

INTRODUCTION

Freedom of speech and expression forms an integral part of one’s dignity

and individuality as we are the communicative beings and requires the

medium to express oneself. Therefore the freedom of speech and expression

has been duly protected under Part III of the Constitution. However the

mentioned right is subjected to certain restriction 1 because there is need to

maintain balance between individual right and public order. Gautam Bhatia

has listed down certain dominant theories in his article which the Supreme

1
The Constitution of India 1950, Article 19(2).

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Court usually refer while pronouncing the judgment on free speech and

expression. These theories are as follows-2

1. Free Speech as a means to truth

With this theory, JS Mill said that it provides platform to various opinions

and lead us to the right one. Similarly the same has been narrated by the

Justice Holmes as “Market place of free ideas” which gives the best way to

reach to the truth as truth has the capacity of being accepted everywhere.

Free Speech as Individual Self Fulfillment

This theory emphasis on individual development by means of free speech as

it gives direction to our thought and builds our personality which is

projected to the whole world. Kant rightly said “Have courage to use your

own reasons.”

2. Free Speech as a means to democratic self governance

This theory helps in keeping the democratic principles alive as it gives an

individual a right against the policies and regulation put forth by the

2
Gautam Bhatia, Offend, Shock or Disturb: Free Speech Under the Indian Constitution (Oxford University
Press 2016).

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government and affecting the interest of an individual. Thus it reduces the

gap between government and its people.

Media under the Constitution of India enjoys Freedom of Press under Article

19(1)(a). Freedom of speech and expression also includes Freedom of press 3

although the same is not explicitly mentioned in the provision but has been

developed from the judicial pronouncements. The same is also been

followed in the case of Printers (Mysore) Ltd. vs. C.T.O4 which clearly states

that press is regarded as fourth pillar of the democracy and forms an integral

part of freedom of speech and expression.

Similarly in the case of In Re M.V. Jayarajan5 it has been held by the kerala

high Court “Media is the eyes and ears to the general therefore it should be

provided with the maximum freedom and immunity to bring the news in

entirety to the public. Thus it acts as a trustee to the public at large by

safeguarding the right to know of the public and also keeps check upon the

governmental authorities.”

3
(1985) 1 SCC 641.
4
(1994) 2 SCC 434.
5
2011 (2) KLD 767...

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Thus it can be construed that the democracy stands on four major pillars-

Executive, legislature, Judiciary and Judicially added media. 6 Each organ of

the government is assigned with particular set of work like legislature to

frame laws, executive to execute the laws and judiciary to interpret the laws.

It is also contended not to encroach into each other domain but media

sometimes steps into the shoes of the judiciary and decides the fate of the

case irrespective of what is determined by the judiciary. This stepping into

the shoes of the judiciary by media is known as media trial.7

In the current scenario Media plays an important role in the day to day life of

an individual, be it in the political, social or economical aspect of an

individual’s life. The reach of media in the current scenario, be it for his

earning, or societal connectivity, or his political ideology is shaped by media

a lot. ‘The term media is the plural of the term medium, which could be

understood as a mean of transmission of some kind of communication.’ 8 The

examples for such medium can be print media, electronic media, televisual

media, etc.

6
Nimisha Jha, ‘Constitutionality of Media Trials in India: A Detailed Analysis’ (Academike, 13 November
2015) https://www.lawctopus.com/academike/media-trials-india/ accessed 26 October 2018.
7
Ibid.
8
Debra Spitulnik, ‘Media’ (1999) 9 (1) Journal of Linguistic Anthropology
http://www.jstor.org/stable/43102451148 accessed 25 October 2018

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If we look at the current world scenario, the most of the world is dominated

by print and electronic media and in such world the reality that we perceive

of is mostly construed by the media. 9 Different television channels, movies,

dramas, shows, news channels, etc. plays an important role in shaping our

views towards society, law and individual.

Since, Media is considered as the fourth pillar in democracy and plays an

important role in the governance of the country and by virtue of several

decisions of the Hon’ble Apex Court enjoys Fundamental Rights of Press

under Article 19(1)(a) of the Constitution, in such a scenario it becomes

essential that such rights do not get misappropriated and used for unlawful

purposes affecting rights of individuals.

INTERNATIONAL INSTRUMENTS REGARDING FREEDOM OF

EXPRESSION AND PRESS

It is necessary to go into some fundamental principles regarding this as laid

down in various human rights instruments. 1 Nothing in sub clause (a) of

clause (1) shall affect the operation of any existing law, or prevent the state

9
Helen Foulton, Narrative and Media (Cambridge University Press 2005)

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from making any law, insofar as such law imposes reasonable restrictions on

the exercise of the right conferred by the said sub clause, in the interest of

the sovereignty and integrity of India, the security of the state, the friendly

relations with foreign states, public order, decency or morality, or in relation

to contempt of courts, defamation or incitement to an offence.10

1. UNIVERSAL DECLARATION OF HUMAN RIGHTS

Article 3 of the UDHR states that, “Everyone has the right to life, liberty and

security of person”. Article 10 which deals with the rights of an accused,

state that, “Everyone is entitled in full equity 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”. Article 11 which deals

with the right to be presumed innocent, states that, “(1) every one charged

with a penal offence has the right to be presumed innocent until proven

guilty according to a law in a public trial at which he has all the guarantees

necessary for his defense (2) No one shall be held guilty of any penal

offence on account of any act or omission which did not constitute a penal

offence, under National or International law, at the time it was committed.

10
the Report on Article 20(3) of the Constitution of India and the Right to remain Silent, available at:
www.lawcommissionofIndia.nic.in Indian Journal of Integrated Research in Law Volume II Issue I | ISSN:
2583-0538

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Nor shall a heavier penalty be imposed than the one that is applicable at the

time the penal offence is committed.”

Article 12 which deals with a person's privacy rights states that, “No one

shall be subject to arbitrary interference with his privacy, family, home or

correspondence, nor to attacks upon his honor and reputation. Everyone has

the right to protection of the law against such interference and attacks”. With

regard to the freedom of expression, Article 19 of the Universal Declaration

of human rights states that, “Everyone has the right to freedom of opinion

and expression: this right includes freedom to hold opinions without

interference and to seek receive and impart information and ideas through

any media regardless of frontiers”.11.

2. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHTS, 1966

India ratified the ICCPR in 1976. Article 14(2) states that, “Everyone

charged with a criminal offence shall have the right to be presumed innocent

until proven guilty according to law”. Article 14 (3) cl. (g) states that, “A

person is not to be compelled to testify against himself or to confess guilt”

Article 15 of the ICCPR states that, “No person shall be punished for an act
11
The Universal Declaration of Human Rights, 1948, available at: https://www.un.org,universaldeclaration.
Indian Journal of Integrated Research in Law Volume II Issue I | ISSN: 2583-0538 4

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which was not an offence when it was committed”. II.3. European

Convention Article 10(1) of the European Convention for the Protection of

Human rights and fundamental freedoms 1950 lays down the same rights as

are laid down in Article 19 of the Universal Declaration of human rights.

However restrictions are provided in Article 10(2), which are as “the

exercise of these freedoms since it carries duties and responsibilities, may be

subject to such formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society in the interest of

national security, territorial integrity or public safety, for the prevention of

disorder of crime, for the protection of health or morals for the protection of

reputation of others, for preventing the disclosure of information received in

confidence or for maintaining the authority and in particularly of the

judiciary”. This right is read along with these rights as laid down in various

articles of the convention.

• Article 2, which lays down that, "everyone’s right to life shall be protected

by law. No one shall be deprived of his life intentionally save in the

execution of a sentence of a court following his conviction of a crime for

which this penalty is provided by law".

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• Article 5 lays down that, "everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in the following cases

and in accordance with as prescribed by law. Clause. (a) refers to lawful

detention of a person after conviction by a competent court. Clauses. (b) to

(f) deal with manner of arrest and detention".

• Article 6 of the Convention deals with the right to fair trial, It lays down

that-

(1) In determination of his civil rights and obligations or of any criminal

charge against him, everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal established by law.

(2) Everyone charged with a criminal offence has the following minimum

rights:

 To be informed promptly, in a language which he understands and in

detail of the nature and cause of accusation against him;

 b. To have adequate time and facilities for the preparation of his

defense;

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  c. To defend himself in person or through legal assistance of his own

choosing or if he has not sufficient means to pay for legal assistance,

to be given it free when the interest of justice so require;

 d. To examine or have examined witnesses against him and to obtain

the attendance and examination of witnesses on his behalf under the

same conditions as witnesses against him and;

 e. To have the free assistance of an interpreter of he cannot

understand or speak the language used in court.”

Article 8 of the Convention states that, “Everyone has the right to respect for

his private and family life, his home and his correspondence.”

3. THE MADRID PRINCIPLES ON THE RELATIONSHIP

BETWEEN THE MEDIA AND JUDICIAL INDEPENDENCE
(1994)

In January 1994 the International Commission of Jurists setup a group of 40

distinguished and legal experts and media representatives who met in

Madrid Spain. The main objectives of the meeting were:-

1. To examine the relationship between the Media and Judicial

Independence as guaranteed by the 1985 UN Principles on the independence

of judiciary.

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2. To formulate principles addressing the relationship between freedom of

expression and judicial independence.

3. The group of media representatives and the Jurists held in the preamble

that “the freedom of media which is an integral part of freedom of

expression is essential in a democratic society governed by the rule of law

and that it is the responsibility of judges to recognize and give effect to

freedom of media by applying a basic presumption in their favor and by

permitting only such restrictions on the freedom of media as are authorized

by the international covenant on civil and political rights”. The group

emphasized that, “The media has an obligation to respect the rights of

individuals, protected by the international covenant and the independence of

judiciary”. The basic principles of the Madrid Convention are:

1. Freedom of expression including the freedom of media constitutes one of

the essential foundations of every society which claims to be democratic. It

is the right and function of media to gather and convey the information to

the public and comment on the Administration of justice, including cases

before, during and after trial, without violating the presumption of

innocence.

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2. This principle can only be departed from in the circumstances envisaged

in the international covenant on civil and political rights, as interpreted by

the 1984 Siracusa principles on the limitation and derogation provisions in

the international covenant on civil and political rights.

3. The right to comment on the Administration of justice shall not be subject

to any special restrictions.

4. The basic principles don’t require a right to broadcast or record court

proceedings. Where this is permitted, the basic principles shall remain

applicable. Some strategies for implementation were also provided. Para 1

states that, the judges should receive guidance in dealing with the press and

the judge shall be encouraged to assist the press by providing summary of

long or complete judgment of matters of public interest. Para 2 says that,

judges shall not be forbidden to answer questions from the press, etc. Most

significance, and states, the balance between independence of judiciary,

freedom of press, and respect of the rights of the individual particularly of

minors and other persons in need of special protection is difficult to

achieve”.

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MEDIA TRIALS IN OTHER JURISDICTIONS

1. UNITED STATES OF AMERICA

Freedom of press is an absolute right and is not subjected to restrictions.

Therefore in America, it is unlawful to interfere with media freedom when

the media is reporting or even commenting on going trials. If prejudice is

resulted to the proceedings by irresponsible media, the American legal

system does not provide for sanctions. In Rideau v. Louisiana12 , 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. Rideauau’s 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.

12
384 U.S. 333 (1966)

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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. In this case, the

Court presumed the prejudice caused by the broadcasting of the interview.”

In Sheppard v. Maxwell13 , the Supreme Court of United States was asked to

consider Whether Sheppard was deprived of a fair trial in his state

conviction for the second-degree murder of his wife, because of the trial

judge’s failure to protect Sheppard sufficiently from the massive, pervasive

and prejudicial publicity that attended his prosecution. Speaking for the

Court, Clark, J. concluded that Sheppard did not receive a fair trial

consistent with the due process clause of the Fourteenth Amendment and,

therefore, reverse the judgment. The Court laid down the test of reasonable

likelihood of prejudicial news prior to the trial preventing a fair trial. If such

reasonable likelihood exists, then the conviction should be overturned. The

Court, hence, shifted from the test of presumed prejudice to the test of

reasonable likelihood.

In Murphy v. Florida14 , the Supreme Court was seized of the issue, whether

the petitioner [Murphy] was denied a fair trial because members of the jury

had learned from news accounts about a prior felony conviction or certain
13
384 U.S. 333 (1966)
14
421 U.S. 794 (1975)

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facts about the crime with which he was charged. Speaking through

Marshall, J. the Court observed that Juror exposure to information about a

State defendant’s prior convictions or to news accounts of the crime with

which he is charged do not alone presumptively deprive defendant of due

process; such exposure must be viewed with the totality of the circumstances

to determine whether the trial was fundamentally unfair. It, thus, laid down

the test of totality of circumstances in order to determine whether the pretrial

publicity had adversely affected the fairness of the trial or not.

Moreover, in Moyola v. Alabama1510, the Court opined that one seeking to

have his conviction nullified on the ground that he was denied a fair trial by

an impartial jury due to adverse pretrial publicity ordinarily must

demonstrate an actual, identifiable prejudice attributable to that publicity on

the part of members of his jury. Hence, the accused has to prove that the

newspaper coverage so saturated and tainted the county populace that any

subsequent proceedings in that country would have been unavoidably

poisoned by it. One can, thus, see the changing stand of the Supreme Court

of United States from presumed prejudice to reasonable likelihood to totality

of circumstances and of the Circuit demanding that the accused should

15
326 U.S 501 (1946)

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demonstrate an actual, identifiable prejudice attributable to that publicity.

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, pretrial publicity

does not adversely affect a fair trial. Therefore, the press should be given a

free hand to cover the crime and the trial.

2. UNITED KINGDOM

In United Kingdom, the “Contempt of Courts Act 1981” under Sec 4 (2)

provide that, “courts are expressly empowered to postpone publication of

any report of the proceedings or any part of the proceedings for such period

as the court thinks fit for avoiding a substantial risk of prejudice to the

administration of justice in those proceedings”. While the American courts

have favored the press over the accused, the British courts have thought vice

versa. Laws, J. in R. v. Lord Chancellor11, observed, “Indeed, the right to a

fair trial is as near to an absolute right as any which I can envisage”. The

English courts very well recognize “the potential threat to justice posed by

unrestrained publicity. Certain information, especially reports of confessions

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made by criminal defendants and details of defendant’s prior convictions, is

considered inherently prejudicial. Courts tend to halt prosecutions when

detrimental publicity interferes with criminal trials. If the rules of evidence

preclude the production of particular facts during trial, and members of the

jury are exposed to those same facts, British courts simply assume that

justice has been compromised”. Thus, the English courts follow the test of

“presumed prejudice” to hold that pre-trial publicity has violated the right to

fair trial.

In Attorney General v. Guardian Newspapers Ltd. 16 Collins, J. observed that

“in assessing whether there has been a violation, courts must determine

whether the risk of prejudice from the publication is both immediate and

serious. The courts must consider the nature of the published material and its

presentation, the timing of the publication, the likelihood of its coming to the

attention of jurors or potential jurors, the likely impact on the jury and the

ability of the jury to abide by any judicial directions which seek to neutralize

any prejudice”.

3.CANADA

16
1 AC 109. 13

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The “Canadian Charter of Rights 1982”13 under Sec. 2(b) read with Sec. 1 –

Section 2(b) deals with “freedom of press, and on the other hand section 1

impose ‘reasonable limits prescribed. In R (UNISON) Vs. Lord Chancellor17.

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched

in the Constitution of Canada, forming the first part of the Constitution Act,

1982. The Canadian law provides that when there is conflict between two

protected rights, both require a balance to be achieved do that both rights can

be balanced. The Canadian Courts have, thus, shortened the distance

between the US legal experience and the common-law experiences in other

countries”.

MEDIA TRIAL: NARRATIVE PERSPECTIVE

In order to under the concept of Media Trial and its effects on the civil and

criminal justice system we need to understand the concept of Narrativism

and its use in Media Trial.

NARRATIVISM

17
(2017) UKSG 51

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Narrative is defined as “a true or fictional account of a sequence of events

happened in time, the events might be shaped, created, ploted, invented in a

way that it looks like a true event, story, etc.”18

Narrative plays an important role in the legal process, as the entire legal

process is like a story telling only, where the plaintiff and defendant in a trial

tell their version of stories and it is upto the judge to decide upon which

story he likes better and relying upon the story he decides upon the case. 19

Many critics have considered legal trial as a narrative, which mediates

between conflicting stories about any incident.20

This concept of Narrativism is applied in case of trial by media, wherein

whenever any incident or matter, which is of public interest or concerns big

personalities, occurs the journalist of the electronic media portrays it to the

audience from a single point of view, take the case of AArushi Talwar

Murder case wherein from the beginning the media portrayed parents of the

deceased, Rajesh and Nupur Talwar as the culprit and the audience had also

started to believe the same.

18
Richard A. Posner, ‘Legal Narratology’ 64 The University of Chicago Law Review
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4961&context=uclrev
19
ibid.
20
Robert A Ferguson, ‘Story and Transcription in the Trial of John Brown’ 6 (1) Yale Journal of Law and
Humanities https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/
&httpsredir=1&article=1103&context=yjlh

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Just because the media depicts a story without considering all the material

evidences, witnesses in the incident it obstructs the other possible

construction on an issue of the audience.21 By way of repetitive telecasting

of events form one point of view the audience gets a single mindset which

results in the development of a story or narrative, by way of developing

narrative by repetitive telecasting of a story, media can make any person

culprit in the eyes of society even before the appropriate authority i.e.

judiciary takes up the matter for trial. Such situations are not merely

hypothetical in nature, there are incidents where the media trial had made

accused culprit in the eyes of society and were discriminated by the society,

few of the cases are discussed in the upcoming research.

There are plethora of cases wherein the media has declared a person guilty

of offence even before the judicial pronouncement and among these in

several cases person got acquitted by the court but still faces the humiliation.

Thus is because the media has capacity to transform the opinion of the

public and exaggerate the facts to such an extent that the people start

21
Kim Alexa Johnson, ‘Trial by Media, The Megaspectacle and the Competition of Narratives: The
Framing of The Oscar Pistorius Murder Trial by News24’ University of Cape Town <
https://open.uct.ac.za/bitstream/handle/11427/20058/thesis_hum_2015_johnson_kim_alexa.pdf?
sequence=1

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believing the content without even hearing the other side. The several

examples are as follows:-

MEDIA TRIAL IN INDIA

Media trial or Trial by Media is a situation where in the press judges the

outcome of a trial, before a proper trial even starts in judicial courts, without

taking into account any evidences or testimony of witness. 22 Trial by Media

also uses the component of Narrativism, by which the journalists uses

preconceived formula that the audience will heed to the story offered by the

journalists, be it true or false.

The word “trial” in nowhere defined in any of the procedural laws like CPC

or CrPC. The Black law dictionary defines trial as “the examination of facts

and issues before the competent authority followed by the evidences.”

Similarly section 2(7) of Bankers book evidence Act, 1891 defines trial as

“hearing before the court wherein the evidence is taken.”

Also, trial involves examination of facts and issues before the competent

authority, but in cases of trial by media there is no competent authority

involved first of all and most importantly in cases of trial by media there is

22
Supra note 21

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mo examination of facts and evidences. Trial by media is merely based on

prima facie cases and most of the times they are influences moral sentiments

of society attached with it.

Therefore the word media trial is in itself a misnomer and declaring person

convicted even without performing the trial and even before the actual trial

is per se wrong and threat to the society. 23 Moreover, Media Trial affects the

rights of an accused adversely as several rights of accused like Right to

Representation, Right of Fair, Trial, and one of the Principle of Natural

Justice i.e. Innocent until Proven Guilty.

JUDICIAL PRECEDENTS ON MEDIA TRIAL

There are several of cases which are triggered by the media and lead the

decision prior to the judgment laid down by the Courts. Some of the cases

are as follows:-

THE ISRO ESPIONAGE CASE24:

23
Justice V Ramkumar, ‘trial by media’ (Live Law, 9 September 2016) https://www.livelaw.in/trial-by-
media/
24
Manoj Joshi,’Explainer: The Loose Ends of the Sinister ISRO 'Spy' Case’ The Wire (India, 15 September
2018) https://thewire.in/government/isro-spy-case-loose-ends

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In this case S. Nambi Narayanan, director of the cryogenic project lab of

Indian Space Research organization and Maldivian Women Mariam Rashida

were arrested in relation to selling of classified information related

cryogenic engine to other countries. This case was the result of bad Kerala

politics.

The media projected to the public that these both people have illicit

relationship because of which Rashida visa is cancelled and Narayanan is

handing over to her secret paper related to cryogenic engine. The director

faced huge humiliation from both media and public and as a result of which

he also has to leave the job. But when the CBI looked into the case, it found

out that the charges against the director and woman were mere exaggeration

and based on the report of the CBI, court also acquitted them.

The Rs. 50 lakhs award was also given to him as compensation to

unnecessary harassment faced by him. Even after being acquitted by the

court he still faces the blot on his reputation which proves the power of

media in forming public opinion.

JESSICA LAL MURDER CASE25:

25
Himanshu Raman Singh,’ Trial By Media: A Legal Dilemma Resolved With Reference To Jessica Lal’
(Legal service of India) http://www.legalserviceindia.com/article/l237-Trial-By-Media.html

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In this case even before the trial got over, media started projecting the

accused Manu Sharma as the murderer in Jessica Lal Murder case. It was

done to such an extent that even after getting acquitted from the Trial Court,

the accused found guilty in the High Court with the same facts. He was

acquitted in the trial court because of lack of evidences but at the stage of

high court he was projected this much to the public that it became very

difficult to perform test identification parade. Though the media in this case

help the truth to come to the public but still pronounced the judgment even

before the trial of the court and caused hindrance in the way of fair trial.

SANJAY DUTT CASE26:

This is more of a recent case wherein the actor Sanjay Dutt was long back

discharged from the TADA charges by the Supreme Court but he is being

terrorist is still by the questioned by the public because of the spicy and

exaggerated news projected by the media.

The press council Act, 1978 was enacted for the purpose of maintaining the

freedom of the press and improving the standards of the newspapers and

news agency in India. The Press council of India has laid down certain code
26
Ankita Chaurasia,’ Sanjay Dutt Arms and Ammunitions case: Chronology of events’ times of India
(India, 16 January 2017)
http://timesofindia.indiatimes.com/articleshow/50464222.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

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of conduct which need to be followed by the journalist like maintaining

accuracy and fairness, criticizing judgment with great caution and have

impartial towards both side of the story. 27 Article 14 of the Act assures

power to the council to warn, admonish and censure the newspaper in case

of professional misconduct but there is no authority to check the compliance

of the directions because of the lack of punitive measures28

Also if we go by section 3(2) read with the explanation in the contempt of

Court Act, 1971 full immunity is granted to the media even the publication

sounds derogatory if it is done before the challan or chargesheet is filed

meaning if done before the trial has been started.

JUSTICE P.B. SAWANT CASE29:

This is a landmark case on media ethics, in this case the Times Now channel

erroneously showed the picture of Justice P.B. Sawant as that of Justice P.K

Samantha, who was involved in a provident fund scam. Justice Sawant filed

a defamation suit damages and compensation of 100 crores. It is to be noted

here that the portrayal of Justice Sawant as a culprit in a provident fund

27
Justice RS Chauhan,’Trial by Media: An International Perspective’
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=22062
28
(2007) 1 SCC 143.
29
V. Venkatesan, ‘Costly Mix-Up’ (2011) 28(25) Frontline
https://www.frontline.in/static/html/fl2825/stories/20111216282509800.htm

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scam could have tarnished the image of him in front of the society had he

not filed the suit.

Similar to this when media allegedly hold’s an accused, who is considered

as an innocent until proven guilty, in any matter pending trial that is also

illegal as violates various rights of individuals under different laws and the

Constitution of India. In the Justice P.B. Sawant Case, the Bombay High

Court upheld the order of District Court of Pune ordering 100 crores of

damages.

After the decision in the Justice P.B. Sawant case the issue arose as to the

requirement of self imposed regulations on Media, print and electronic, so as

to prevent any unprofessional and unethical practice on part of media

agencies. Post 26/11 attacks several self-imposed regulations were made

even a body named as News Broadcasters Association (NBA) were

formulated so as to hear disputes involving any unprofessional or unethical

practice on part of media.30

AARUSHI-HEMRAJ MURDER CASE31:

30
Kiran Tare, ‘Rs. 100 crore in damages slapped on Times Now in a bid to muzzle media’ (2011) India
Today < https://www.indiatoday.in/magazine/the-big-story/story/20111205-times-now-defamation-case-rs-
100-cr-fine-justice-sawant-749804-2011-11-26>
31
Aarushi Talwar murder case: If not Rajesh and Nupur, who exactly is behind the double murder (Oct 13,
2017) https://www.firstpost.com/india/aarushi-talwar-murder-case-as-mystery-deepens-over-who-is-the-
real-killer-heres-a-look-at-key-characters-4136859.html

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The case involves double murder of Aarushi and Hemraj, at the initial stage

of investigation the possible suspects were three friends of deceased Hemraj

and parents of Aarushi. When the matter was sub-judice pending

investigation, both the print/electronic media and CBI depicted both the

parents as the culprit. Even, the Special CBI court held both the parents

liable for murder under IPC.

The decision was challenged and the Court acquitted both the parents as the

CBI had failed to proof the case beyond reasonable doubt. Even after

acquittal of both the parents, still both of them are viewed by the society as

the murderer. Because of wide coverage by the media of the case, and

because of the continuous depiction by the media of both the parents as

murders both the parents still suffer from persecution.

mprisonment.

THE TIKKU, KAKKAR DOUBLE MURDER CASE32

This was a very sensational case where two Delhi residents were murdered

by a money-crazy criminal and his female associate. Police said that Vijay

Palande, prime accused and former gangster used his wife, Simran Sood,

32
[2011] 6 SCR 895

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who was a model as a ‘honeytrap’ to commit the crimes for confiscating the

victim’s properties. In April, 2012, Palande along with his mates Manoj

Gajkosh and Dhananjay Shinde murdered businessman Arunkumar Tikku

who was a resident of Delhi.

The police said that Palande had encouraged the son of the victim, Anuj

Tikku who was an actor with a motive that Tikku can acquire Palande’s

apartment which was located in the Lokhandwala Complex in Mumbai’s

upscale. The Mumbai crime branch had arrested the trio along with Simran

Sood in connection to the abduction and murder of Delhi-based aspiring

producer Karankumar Kakkad. Palande made a confession that he suspected

Kakkad was an underworld mole, who would kill him, so Palande had to kill

Kakkad. The police also said that Simran had acquainted Palande as her

“brother” to Tikku and Kakkad.

In 1998 Palande had been convicted of a double murder and then again in

the year 2002, he jumped parole in 2003, went for a cosmetic surgery to

Bangkok to change his features and in 2005 he returned to Mumbai.

In 2012, this double murder case shook the nation and made its way to TV

and newspaper headlines as one of the most chilling murder mysteries in

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valuing a sophisticated serial killer in recent times in India. He was arrested

for masterminding the murders of Tikku and Kakkar. On November 18,

2011, Palande was given a life sentence for the murder of the two men.

THE DELHI RAPE CASE33

The brutal gang rape on the night of 16 December 2012 of a 23-year-old

physiotherapy intern who besides being raped was tortured and beaten in a

private bus in which she was travelling with her male friend. Including the

driver, six men on the bus who raped her and beat her friend. She was

admitted to the hospital and after eleven days she was shifted for an

emergency to the hospital in Singapore but died after two days.

Since the laws in India do not permit the press to reveal the name of the

game victim, the victim has become widely known as Nirbhaya, meaning

“fearless”, and the girl’s struggle against the incident and her death has

become a symbol of resistance by the women in the world.

This incident inflamed extensive national and international coverage. The

incident was criticized widely, both in India as well as abroad. Thereafter,

there were multiple protests in different parts of the country against the

33
Mukesh & Anr v State (NCT of Delhi) & Ors, (2017)6 SCC 1

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central and state governments for failing to provide proper security for

women.

Due to so much outrage in the media, there were multiple amendments in the

laws including the Juvenile Justice Act, 2000 where for the heinous crime

the age for punishment had been reduced to from eighteen to sixteen.

NEERAJ GROVER MURDER CASE34

The case received much media attention due to its extremely gruesome

nature. In May, 2008, Neeraj who worked in a Mumbai-based production

house was found dead. The dead body of Neeraj was chopped into pieces

and then stuffed in three garbage bags and then they took the body to the

forest and set it on fire. A police complaint was filed by one of Neeraj’s

friend, Maria Susairaj that he was missing but later it was found that Maria

was involved in the murder. It was discovered that Maria’s boyfriend

Lieutenant M.L. Jerome Mathew was behind the murder of Neeraj because

he suspected Maria having an affair with Neeraj and killed him in a fit of

rage. The killing and subsequent trial attained significant media coverage in

India which reported public outrage on the verdict given to the accused who

34
Neeraj Alias Kamal Grover vs State And Anr., CRL.M.C. No.3110/2015

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had chopped the body into multiple pieces and set it on fire. One of the news

channels had criticized the defamation of the accused, claiming that the

accused was under a lot of stress.

NITISH KATARA MURDER CASE35

This was a case of honour killing, Vikas Yadav, son of famous politician DP

Yadav had brutally murdered Nitish Katara. Nitish had an affair with Bharti

Yadav who was the sister of Vikas Yadav, Vikas never approved of their

love. At the mutual friend’s wedding where both Vikas and Nitish were

present, Vikas took the opportunity and killed Nitish by taking him for a

ride. According to the autopsy report, Vikas had badly beaten Nitish that

even his digestive system had fallen apart and a DNA test was conducted for

identification. Vikas was sentenced to life imprisonment.

Sometimes in the media trial, the accused is even not given proper

conviction which he is entitled to.

35
Nitesh katara v State of UP, 1956 SCR 363

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AYODHYA DISPUTE36

It is one of the most discussed and famous cases in India. This case has

strong religious, historical and political roots. The dispute revolves around a

piece of land in the birthplace of Lord Rama, Ayodhya. The critical issues,

in this case, were between the Hindu and Muslim communities regarding

this piece of land that carried some religious beliefs between the community

Hindus and Muslims. The famous Babri Masjid which is thought to be at the

same place was demolished by violent Hindu activists during a rally on 6th

December 1992 which is thought to be located where a Ram Temple already

existed and the place where Lord Rama was born.

This Act of demolition led to violent riots and consequently, a case was filed

in the Allahabad High Court for the entitlement of land. With time the case

kept on becoming more controversial and the final judgment came finally

after 18 years. The judgement was passed keeping in mind the religious

sentiments of both the communities. The court ordered that the Ayodhya

land that was of 2.77 acres will be split up into three parts. One-third of the

land was registered to Sunni Waqf Board, another one third to Hindu

36
M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors, (1994) 6 SCC 751

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Mahasabha to build Ram temple and the remaining one third be passed to

Nirmohi Akhara (Hindu religious group).

This case had been tried long by the media and showing little disputes over

the media and irrelevant things related to the case which just worked as

feeling the disputes between the two communities all over India.

SUNANDA PUSHKAR MURDER CASE37

Sunanda Pushkar was the wife of the former Union minister Shashi Tharoor.

Sunanda got married to Shashi Tharoor in August, 2010 after two failed

marriages. On 17 January, 2014 Sunanda was found dead in a hotel suite of

Leela Palace, New Delhi under highly mysterious circumstances.

A day before her murder she had a dispute on twitter with a Pakistani

journalist, Mehr Tarar. The dispute was regarding the tweets of the journalist

which hinted at a possibility of an affair between the journalist and

Sunanda’s Husband, Shashi Tharoor. The case is still under investigation,

her autopsy report claimed that Sunanda died due to an overdose of sleeping

pills, but later in October, the medical team reported that they had been

pressured to provide a tailored report. The Police stated that Sunanda had

37
2010 (1) N.C .C .760

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been poisoned and murdered but there was no suspect. No one has been

arrested for the murder of Sunanda Pushkar to date.

This was another case of media trial where the media claimed that Shashi

Tharoor had committed the murder when the case was still under

investigation and the trial wasn’t started in the Court of law yet. Shashi

Tharoor had to face a lot of controversy after that.

MEDIA TRIALS VS FREEDOM OF SPEECH AND EXPRESSION

In Constituent Assembly Debates, Dr. B. R. Ambedkar said that: “Press has

no special rights which are not to be given or which are not to be exercised

by the citizens in his individual capacity. The editor of a press or the

manager is merely exercising the right of the expression, and therefore, no

special mention is necessary of the freedom of the press.” The freedom

relating to media does not find its mention anywhere in the Part III of the

Indian Constitution. There is no such explicit guarantee under the

Constitution of India about this freedom of media. This freedom is implied

in Article 19 (1) (a) of the Constitution of India guarantee freedom of speech

and expression. Even if there is no such specific mention about this freedom,

it created no such difficulty for the Courts in India to protect the freedom of

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media. Freedom of media is not absolute and even committed liberals are of

the view that free speech rights are not unconditional or unlimited, but they

are not sure about what are the limits that should be set. Free press does not

provide a license to publish and broadcast anything without any restriction.

It is the duty of the media to make sure that the information received by the

public is accurate and does not in any way affects the rights of other.

Thus, the Article 19 (2) sets out the grounds on which limits can be imposed

upon the freedom of expression. Those limits flow from the right to privacy,

right to reputation, the law of contempt of court etc. Freedom of speech i.e.

Article 19(1)(a) plays an important role in the formation of public opinion

on social, political, and economic matters.

Thus, it can be said that freedom of speech is the mother of all other

liberties. Complying to the statement Justice Venkataramiah of the Supreme

Court in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India 38

has iterated. Freedom of press is the heart of social and political intercourse.

The press has now presumed the role of the public educator making formal

and non-formal education feasible in a large scale particularly in the

38
10 AIR 1986 SC 515

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developing world, where television or modern communication devices are

not still available for all sections of society.

So, while criticizing a person if the press indulges in libel or slander then the

press has to be answerable in law for such an offence. Similarly, by using

freedom of speech and expression as a veil by the press, it cannot infringe

the privacy of an individual. Also, the press cannot take up parallel trials

when a trial is going on before a court of law. This will amount into

“contempt of court”.

39
In Printers (Mysore) Ltd. v. CTO 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. Freedom of the

press has always been a cherished right in all democratic countries and the

press has rightly been described as the fourth chamber of democracy. 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.

39
AIR 1994 2 SCC 434

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 In R. Rajagopal v. State of T.N40 the Supreme Court of India 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. After the

introduction of Target Rating point (TRP) the competition has increased

among the media houses which has created great amount of pressure on

journalism. Before the introduction of this TRP, journalists used to work

with braveness, integrity and impartially. But with the need of increasing

TRP scales, the media war has become ruthless. To regulating the media

certain guidelines and norms are set by the Press Council of India.

MEDIA TRIAL: A MENACE CURBING FOLLOWING RIGHTS:-

As discussed earlier that the trial by media does not employs a proper trial

mechanism involving examination of evidences, taking up evidences,

witness in furtherance to reach at the truth, and more importantly it does not

even have the authority to do the same. The consequences of the media trail

are that it substantially tarnishes the image of accused in front of society,

40
AIR 1994 6 SCC 632

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1.RIGHT TO FAIR TRIAL: Right to fair trail is related to presumption of

innocence which is one basic tenet and fundamental right guaranteed under

Article 21 read with Article 14, 20 and 22 of the Constitution of India. 41 In

the case of Zahira Habibullah Sheikh v State of Gujarat 42 explained the

meaning of free trial which would mean “trial before an impartial judge with

no pre conceived mind for or against the accused, witnesses or cause of

action which is being tried before the trial. He should be free from every sort

of pressure before pronouncing the judgment.”

Media by trial, by affecting fair trial leads to contempt of court as Section

2(b) of the Contempt of court Act, 1971 defines criminal contempt to be

consisting of any act which:

i. Scandalizes

ii Prejudices or

iii.Causes Hindrance to the administration of justice

But due to lack of legislative measure and improper definition of pending in

the explanation of Section 3(2)(b) of the Act saves media from any

consequences and gives it power to fearlessly put flake in the matter.43

41
Rebecca Furtado,’Constitutionality of Media Trial’ (i Pleaders, 1 july 2016
https://blog.ipleaders.in/constitutionality-media-trials/ accessed 28 October 2018.
42
(2005) 2 SCC (Jour) 75.
43
ibid.

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The Act simply says that no publication affecting the trial should be made

when the matter is pending before of the court. The same is also supported

by the case Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr.44 Wherein

the court held “Judges are no God therefore no flake is to be put in the

matter which causes pressure on the judges and prejudice the trial as the

same would be denial of free trial. Therefore in the meanwhile if any person

made derogatory affecting the sanctity of the trial would be punished under

Contempt provision.

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. In the case of

Kartongen Kemi Och Forvaltning AB and Ors. vs. State 45 through CBI20 the

courts stated that prominence should be given to the accused right to a fair

trial with respect to the role of media.

It was further stated that the right of information is crucial in criminal

investigations as it spreads awareness and promotes dialogue between the

masses of nefarious crimes, however the right of fair trial is equally valuable

if not more, because at the end of the day a trial decides a man’s right to life

and liberty, and if that is taken away due to pressure from exterior forces,
44
AIR1975 AP 30.
45
CBI, 2004 (72) DRJ 693

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what kind of justice system would we have. It is vital to understand that at

the end of the day, it is a just and fair society that should prevail. The

Supreme Court observed that, there is procedure established by law

governing the conduct of trial of a person accused of an offence.

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.

If he finds the person guilty of an offence he is then to address himself to the

question of sentence to be awarded to him in accordance with the provisions

of law.

In Rajendra Sail Vs. Madhya Pradesh High Court Bar Association and

Others46 it was clearly stated that in democracy that follows the principles of

rule of law, and in a country like India, where the judiciary is independent

and the press has been given the right to freedom of speech and expression

both are indispensable and it is the aim of both the pillars 18 Constitution of

India, Article 19 (2) to find the truth, it will be in the best interest of the

people only if both organs act in accordance to their functions.

46
(2005) 6 SCC 109

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2.RIGHT TO BE REPRESENTED: Right to access to justice is also a

fundamental right guaranteed under Article 14 and 21 of the Constitution 47.

Similarly Article 39A of the Indian Constitution also talks about free legal

available to all irrespective of their status.

In the case of Hussainara Khatoon v State of Bihar48, it has been clearly

laid down that it is an inalienable right of an individual to be represented by

the lawyer and if he is unable to arrange a lawyer by himself then state is

under a mandate to provide him with the lawyer meaning none of the

accused should remain unrepresented as it is a sheer violation of Article 14

and 21 of the Constitution. Due to media trial sometimes lawyer hesitate to

take a controversial case which ultimately affects the individual right to be

represented under article 14 and 21 of the Constitution.49

Also the victims suffer a lot with the undemanded publicity which

sometimes poses a wrong impression to the public. Consequently in order

to gain TRP they make the news which has nothing to do with the original

47
‘Access to Justice is a fundamental right guaranteed under Article 14 & 21 of Constitution: SC
Constitution Bench’ (Live Law, 20 July 2016) https://www.livelaw.in/access-justice-fundamental-right-
guaranteed-article-14-21-constitution-sc-constitution-bench/ accessed 28 October 2018.
48
1979 AIR 1369
49
Apoorva Sinha,’Media Trial from the Lens of Indian Constitution and Judiciary’ (LDesire, 14 March
2018)
https://legaldesire.com/article-media-trial-lens-indian-constitution-judiciary/ accessed 27 October 2018.

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 facts and represents the victim or accused according to their whims and

fancies to the public.50

3.RIGHT TO PRIVACY:- Right to Privacy allows person to have its own

space and also includes right to be left alone. The same is also been recently

given the status of Fundamental right under Indian Constitution in the case

of Justice K.S. Puttaswamy (Retd.) v Union of India and Ors. 51 Media trial

not only project accused into limelight but also cause threat to the privacy

of the victim in order to make their news more spicy and attractable.

The law of privacy is recognition of the individual’s right to be let alone

and to have his personal space inviolate. The need for privacy and its

recognition as a right is a modern phenomenon. It is a product of an

increasingly individualistic society in which the focus has been shifted from

society to the individual. Article 12 of the UDHR runs as follows “No one

shall be subjected to arbitrary interference with his privacy, family, home or

correspondence or to attacks upon his honour and reputation. Everyone has

the right to the protection of the law against such interference or attacks.

The right to privacy is declared as a fundamental right in India by the Apex

Court. In India, the right to privacy is not a specific fundamental right but

50
ibid
51
Writ Petition (CIVIL) NO 494 OF 2012

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 has nevertheless gained constitutional recognition. Privacy is not

enumerated amongst the various reasonable restrictions to the right to

freedom of Speech and Expression enlisted under Article 19(2). However,

this lacuna has not prevented the court carving out a constitutional right to

privacy by a creative interpretation of the right to life under Article 21 and

the right to freedom of movement under Article 19(1)(d).

The first case related to right to privacy was Kharak Singh vs. State of

U.P.52 In this case the majority were unreceptive to the idea of recognising a

right to privacy and dismissed the claim on the ground that there could be

no fundamental right to protect mere personal sensitiveness‘.

But subsequently, the Court acknowledged a limited right to privacy in the

case of Govind vs. State of M.P53. The Supreme Court touched the rights of

the individual to privacy vis-à-vis invasions by journalists in Sheela Barse

vs. Union of India54, Prabha Dutt vs. Union of India55 and also in State vs.

Charulata Joshi56. In all these cases, journalists sought permission from the

Supreme Court to interview and photograph the prisoners. Although, the

issue of privacy was not directly dealt with, the court implicitly

52
22 AIR 1963 SC 1295.
53
23 AIR 1975 2 SCC 148
54
1975 SCC (Cri) 468
55
1987 4 SCC 373
56
25 AIR 1982 1 SCC 1

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 acknowledged the right to privacy by holding that the press has no absolute

right to interview or photograph a prisoner but could do so only with his

consent.

4.INNOCENT UNTIL PROVEN GUILTY: The legal maxim ‘Innocent

until proven guilty’ stipulates every accused, who is brought before the law

will be considered as an innocent until he is proven guilty by way of proper

judicial process.57 The legal maxim also forms part of principal of Natural

Justice.

The legal maxim even finds place in the Universal Declaration for Human

Rights 1948, Article 11 clearly stipulates that: “Everyone charged with a

penal offence has the right to be presumed innocent until proven guilty”. 58

The legal maxim even finds its place in the United Nations International

Covenant on Civil and Political Rights 59 and also in the European

Convention for the Protection of Human Rights.60

5.CONTEMPT OF COURT: It is well known by now that the “right to

freedom of speech and expression” guaranteed by the Constitution of India

57
Kenneth Pennington, ‘Innocent Until Proven Guilty: The Origins of a Legal Maxim’ (2003) 63 CUA
LawScholarshipRepositoryhttps://scholarship.law.edu/cgi/viewcontent.cgi?article=1169&context=scholar>
58
Universal Declaration for Human Rights 1948, Article 11(1)
59
United Nations International Covenant on Civil and Political Rights, Article 14(2)
60
European Convention for the Protection of Human Rights, Article 6(2)

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is “not absolute” and “reasonable restrictions” may be imposed on this right

based on various grounds including “contempt of court”. The media has a

right to know what is happening in courts and to disseminate the information

to the public which enhances the public confidence in the transparency of

court proceedings. As stated above, sometimes, fair, and accurate reporting

of the trial (say a murder trial) would nonetheless give rise to substantial risk

of prejudice not in the pending trial but in the later or connected trial. In

such cases, there is no other practical means short of postponement orders

that can avoid such risk of prejudice to the later or connected trial. Under the

Contempt of Courts Act, 1971, publications under free trials are sheltered

against contempt proceedings. However, any publication which interferes

with or obstructs or tends to obstruct any proceeding, be it civil or criminal,

and the course of justice, which is a pending proceeding, constitutes the

contempt of court.

It has been termed as contempt because some of the acts which are published

before the verdict given by the court, can mislead the public and affect the

rights of the accused of a fair trial. Such kind of publications may be related

to his previous convictions or the confession he made in front of the police

or merely character assassination of the accused. Hence the inaccuracy of

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reporting of court proceedings will be contempt only if it can be said on the

facts of a particular case, to amount to substantial interference with the

administration of justice.

The reason behind Section 4 of the Contempt of court Act of 1981 is to grant

a privilege in favor of the person who makes the publication provided it is

fair and accurate. This is based on the presumption of “open justice” in

courts. In the very famous case of Aarushi Talwar’s Murder, the media had

declared who was guilty and who was not even before the actual trial had

begun. There were mass protests and the public had gone into hysterics over

the fact that her own parents were the cause of her death. But, this is also an

immunity given to the press, even though the media had gone berserk in this

case. Such publications have been known to have gone unchecked without

the interference of the legislature.

6. RIGHT TO REPUTATION:- In Anukul Chandra Pradhan v. Union of

India61, it was held that, “It is essential for the maintenance of dignity of the

courts and is one of the cardinal principles of the rule of law in a free

democratic country that the criticism or even the reporting particularly, in

sub judice matters must be subjected to check and balances so as not to

61
Writ Petition (Criminal) No. 137 of 1996.

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interfere with the administration of justice.” In the 2012 Delhi gang rape

case widely known as ‘Nirbhaya case’ the media has taken up the role of an

activist but has reported cases of sexual offence insensitively and without

due diligence. The recent NUJS law intern case and Tehelka case are other

instances in which the media has became self proclaimed justice system by

labeling and making unsubstantiated allegations. One of the articles ‘trial

and error’ has very precisely explained this: - “Part of the legacy of the

December 2012 Delhi gang rape is a newly activist media that is both a

symptom and a cause of the increased public revulsion against such cases.

Laudable as it may be, this media activism is also disquieting, and not just

because it might partially be fuelled by a competitive rush to attract larger

audiences. Even when well intentioned, recent coverage of sexual violence

has tended to degenerate rapidly into a series of trials by media, with the

media arrogating to itself and the public the powers of both judge and jury.

As a consequence, the media has chipped away at the already precarious

agency of assault victims, and also undermined the possibility of justice

being delivered.” The recent case of suicide by Sushant Singh Rajput in

2020 created a conflict between the rights of the accused and the rights of

journalists. The accused Rhea was sentenced by media trials and was

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harassed and ridiculed publicly, thereby violating her fundamental rights as

well as the principle of natural justice i.e. innocent until proven guilty. The

Bombay high court in the instant case even admitted that media trials were

being conducted. It even gave guidelines to the media as to how reporting

should be done on matters of death and suicide. Despite guidelines the court

did not award any punishment to the violators so as to discourage the

practice of trial by media. In the recent times, media reports some things

even before the police has found about it. This investigative journalism is

good in a participative democracy, but it should be kept in mind that the

hindrance by media in the fair trials is more harmful for the sustenance of

democracy. While media has a freedom of expression and investigation, the

right to privacy and the right to fair trial of an individual should not be

compromised. The essence of every democracy is the balancing of interest,

so a balance must be maintained between the right to the media to

investigative journalism and the right of the individual to fair trial.

6.200TH LAW COMMISSION REPORT

Seventeenth Law Commission” through its 200th report on “Trial by Media:

Free Speech Vs. Fair Trial Under Criminal Procedure (Amendments to the

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Contempt of Courts Act, 1971)” 62has made several recommendations with

the view to address issues which are crucial in India so far as criminal justice

is concerned.

The Law Commission took this subject relating to media trial suo motu,

after considering the largescale coverage by the “print” and “electronic

media” of crime and information relating to accused and suspects. With the

increasing use of the television, there has been a change in the entire pattern

of news publication and many of these publications have a prejudicial effect

on the “accused”, “suspects”, “witnesses” and also on judges and mainly on

the “administration of justice”.

According to the Indian legal system, a fair procedure is to be followed and

accused or suspect must be presumed as “innocent” until the Court of law

proves him guilty. In the Law Commission Report, it has been pointed out

that the Supreme Court and the House of Lords have accepted that the

judges are affected subconsciously by the prejudicial publications relating to

an accused or suspect. It may happen at a stage when bail is granted or

refused or during the trial. Unlike the Contempt of Courts Act of 1971, the

Acts of 1926 and 1952 did not define “civil” or “criminal” contempt. Until
62
27 2013 (82) ACC 303. www.ijcrt.org © 2023 IJCRT | Volume 11, Issue 8 August 2023 | ISSN: 2320-
2882

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1971, principles of “common law” were applied for treating the “prejudicial

publications” which were made even before a person was arrested as

contempt. Some of the Courts even treated prejudicial publications, made

after a First Information Report (FIR) was filed, as criminal contempt.

In Surendra Mohanty v. State of Orissa63, the Apex Court held that in a

criminal case the filing of an FIR could not be treated as the beginning of

“pendency” of the case.28 Based on this judgment, prejudicial publications

got immunity from the law of contempt if such publications were made after

the FIR is filed.

In A. K. Gopalan v. Noordeen64, the Supreme Court observed that a

prejudicial publication about the accused or suspect which is made after a

person is arrested then it could be treated as arrested. According to the Law

Commission, the Joint Committee’s reasons for dropping the reference to

“imminent” proceeding were flawed because the Committee’s attention was

not drawn to the decision in the A. K. Gopalan’s case.

After the judgment made by the Supreme Court, fixing the date of arrest to

be the starting point of a pending criminal proceeding, there was no

63
(Crl. App. 107/56 dt. 23.1.1961
64
AIR 1999 SCC 583

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ambiguity in the law. Through this case, the Apex Court balanced the rights

of the accused and suspect and the rights of the media for publication. In this

case, A. K. Gopalan was acquitted by the Court, who made a statement after

the filing of an FIR but before an arrest was made, while the editor of the

Newspaper and others were convicted for contempt because prejudicial

publications were made after the arrest.

Trial by media generally violates this right of an accused under the

Constitution of India65 and various other treaties and conventions. As, media

trial leads to the general assumption among the public that the particular

accused is the culprit in the concerned case, thereby he is ostracized by the

society and treated as a guilty.

Thus the key points which are laid down in the report are as follows:-

 To prohibit the publication of anything that is prejudicial to the

reputation if accused- a restriction which shall from the mine of the

arrest.

 The starting point of a criminal case should not be from the filing of

the charge sheet but from the time of arrest of an accused. The

65
Noor Aga vs. State of Punjab, (2008) 16 SCC 417

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 perception behind such an amendment is that it would prevent

prejudicing or prejudging the case.

 To address the damaging effect on the administration of justice of the

sensationalised news reports.

 The High Court is empowered to direct the postponement of the

telecast or the publication in criminal cases and to prevent the media

from restoring to such a telecast or publication.

CRITICAL ANALYSIS

Trial by media evolved in the 20th century, with the evolution and growth of

print media as well as electronic media and the constant flow of new

information in a competitive market gave rise to sensational style of

journalism. It was used to increase audience base and viewership amongst

the masses.

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Trial by media was a new way of spreading information of not just the

reforms made by the legislature and how they were implemented by the

executive but also how they were upheld by the judiciary. However as

explained in the research paper, trial by media even though was a concept to

spread information to the masses and to bring about the awareness of the

nefarious realities of society forward, the line between informing and

deciding has gotten unclear over time.

The media today pierces through the judiciary and does not only form an

opinion but constantly feeds the opinion to the public so much so that the

public blindly follows the media. The media today has become like the

Pope, just like earlier times, the Church was never questioned and blindly

followed by the masses, the same is being done with media. the media has

been given so much power that news channels and other mediums have

become untouchable.

Due to overnight emergence and evolution of media and technology, the

laws regulating control are lacking today. There are several lacunas that are

needed to be filled by the legislature on regulating laws in bringing about

control. Several ambiguities in the Contempt of Court Act and The Press

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Council of India are being taken advantage of and the media channels have

escaped liability because of the same. State of Bihar v Lal Krishna Advani,66

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. The report clearly states that several pre-trial

publications have a prejudicial impact in the administration of justice which

acts adversely to the institution of the judiciary. In India, several

fundamental rights are given to the citizens, it is not surprising that one

might not be in accordance with another.

However in the case of trial by media the two conflicting rights are right to

freedom of speech and expression which is crucial for running of a smooth

democracy and the other being right to a fair trial which go to the root of

principles of natural justice. Both rights are equally valuable. However, it is

extremely important that one should not overlap the other. The media needs

to be checked, they cannot be given such power that in the name of news

they can state any biased information or create facts for that matter that

66
(2003) 8 S.C.C. 361

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interfere with the administration of justice and hide under the ambit of

freedom of speech and expression.

The right was given to each individual to express their opinions and not to

tarnish the reputation of the other or to themselves become the justice

system. The media cannot be given such power as to become the

adjudicating authority, it is the function of the court to administer justice and

the function of media to report it. The judiciary in India has been given an

independent status so that there is no bias and it is the judiciary which

should be given the power to administer justice and none other. The media

cannot sway the judges and the public to make a decision. It is the duty of

the judiciary to be impartial and look at the facts of the case and the law in

place and not be swayed by emotions. The media has plays on the emotions

of the public while taking advantage of the lack to checks by the government

on the media. It is crucial to act on amending the laws and control the media,

otherwise it will become the strongest organ because of the massive support

of the public.

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CONCLUSION

As discussed above, the trial by media or media trial is illegal in nature as it

violates several legal rights of the accused under various National Laws and

under International Treaties and Conventions to which India is signatory.

Still, in India this illegal practice is carried on by the media, it is very

difficult for the government to curtail such activities. Even, the laws in India

are not adequate and stringent enough to curtail such illegal practice.

The Self-imposed regulations on the media entities in India are not

implemented effectively and properly. Moreover, there is no proper

Regulatory Body to regulate such unethical attitude of different media

entities. Also, the practice of trial by media is very difficult process to be

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caught, which makes the work of regulatory body complicated thereby

requiring the need for self-regulatory mechanism.

Moreover, the whole process involves ‘audience’ at the central stage, as the

narrative makes its audience believe that certain fact is true or false thereby

limiting the knowledge of the audience. In such a case, there should be

awareness on part of the audience that before believing any information

there should be cross-examination on part of the audience.

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BIBLIOGRAPHY

PRIMARY SOURCES:

STATUTES REFERRED

1. Bankers Book Evidence, 1891

2. European Convention for the Protection of Human Rights, Article 6(2)

3. The Constitution of India, 1950.

4. The Press Council Act, 1978.

5. United Nations International Covenant on Civil and Political Rights, Article 14(2)

6. Universal Declaration for Human Rights 1948, Article 11(1)

CASES REFERRED

1. In Re M.V. Jayarajan, 2011 (2) KLD 767.

2. Printers (Mysore) Ltd. vs. C.T.O, (1994) 2 SCC 434.

3. Zahira Habibullah Sheikh v State of Gujara (2005) 2 SCC (Jour) 75.

4. Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr, AIR1975 AP 30

5. Hussainara Khatoon v State of Bihar, 1979 AIR 1369

6. Justice K.S. Puttaswamy (Retd.) v Union of India and Ors., WRIT PETITION
(CIVIL) NO 494 OF 2012.

7. Noor Aga vs. State of Punjab, (2008) 16 SCC 417

8. Mr. S. Nambi Narayanan vs State Of Kerala, WP(C).No. 30918 of 2012 (L)

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9. Indian Express Newspaper v Union of India &Ors, (1985) 1 SCC 641

10. State vs Siddarth Vashisth & Manu Sharma, 90 (2001) DLT 548

11. P.B.Sawant And Ors vs District Collector/District, WRIT PETITION NO.3339 OF

2011

12. Sanjay Dutt vs State Of Maharashtra, Criminal Appeal No. 1060 Of 2007

13. Rideau v. Louisiana, 384 U.S. 333 (1966)

14. Sheppard v. Maxwell, 384 U.S. 333 (1966)

15. Murphy v. Florida, 421 U.S. 794 (1975)

16. Moyola v. Alabama, 326 U.S 501 (1946)

17. Attorney General v. Guardian Newspapers Ltd., 1 AC 109. 13

18. R (UNISON) Vs. Lord Chancellor, (2017) UKSG 51

19. Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr, AIR1975 AP 30.

20. Kartongen Kemi Och Forvaltning AB and Ors. vs. State, CBI, 2004 (72) DRJ 693

21. Rajendra Sail Vs. Madhya Pradesh High Court Bar Association and Others (2005) 6

SCC 109

22. Mukesh & Anr v State (NCT of Delhi) & Ors, (2017)6 SCC 1

23. Nitesh katara v State of UP, 1956 SCR 363

24. M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors, (1994) 6 SCC 751

25. Neeraj Alias Kamal Grover vs State And Anr., CRL.M.C. No.3110/2015

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2. Gautam Bhatia, Offend, Shock or Disturb: Free Speech Under

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article=1169&context=scholar>

5. Kim Alexa Johnson, ‘Trial by Media, The Megaspectacle and the

Competition of Narratives: The Framing of The Oscar Pistorius

Murder Trial by News24’ University of Cape Town <

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Detailed Analysis’ (Academike, 13 November 2015)

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7. Richard A. Posner, ‘Legal Narratology’ 64 The University of

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SECONDARY SOURCES:

1. ‘Access to Justice is a fundamental right guaranteed under Article 14 & 21 of

Constitution: SC Constitution Bench’ (Live Law, 20 July 2016)

<https://www.livelaw.in/access-justicefundamental-right-guaranteed-article-14-

21-constitution-sc-constitution-bench/>

2. Ankita Chaurasia, ‘Sanjay Dutt Arms and Ammunitions case: Chronology of

events’ times of India (India, 16 January 2017),

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constitution-judiciary/

4. Debra Spitulnik, ‘Media’ (1999) 9 (1) Journal of Linguistic Anthropology

<http://www.jstor.org/stable/43102451148 accessed 25 October 2018>

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Reference To Jessica Lal’ (Legal service of India)

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