MEDIA TRIAL: AN ANTITHESIS TO THE RULE OF LAW

- Anamika Tomar

Media plays a significant role in framing a healthy democracy. Like all other wings of our
democratic setup as Executive, Judiciary, and Legislature who are supposed to remain within their
bounds. Media which is the fourth pillar must also not cross the borders. If it obeys by his
principle, it will be doing more good to the administration of justice and to the society. It has
become a source of influencing public opinion by tarnishing the reputation of individuals
involved in the process of investigation. Media trials are taking place, and the hype that media is
creating in selective cases is having a disastrous impact on the working of the administration of
judiciary. These are some every day realities and can be seen in some very landmark cases like
that of Jessica Lal case, The Bijal Joshi rape case, and others. Pre- trial publicity is enough to
cause prejudice and detestation against the accused and the presumption of innocence of every
accused person till found guilty by a court of law is corroding. Many a times, an accused that is
yet to be tried and convicted, is pronounced guilty by the media by referring to such evidence
which is not even admissible in evidence. For this there is procedure established by law governing
the conduct of trial of a person guilty of an offence. The paper will focus on the facts as in what
manner information by media trials should be given to public and will discuss whether the Media
Trial is antithesis to the Rule of Law or not? Trial by media should be avoided particularly at a
stage when the accused is entitled to the constitutional protections. It is necessary for the
maintenance of dignity of courts and is one of the fundamental principles of rule of law in a free
democratic country.

KEYWORDS: Democratic Setup, Administration of Justice, reputation, hype, pre- trial,

prejudice, presumption, antithesis, Constitutional Protections, dignity.

MEDIA TRIAL: AN ANTITHESIS TO THE RULE OF LAW

1. INTRODUCTION

Media is considered as one of the pillars of democracy. The superiority that the media enjoys in a
free democratic society is obvious from the status it has earned as the fourth pillar of the society.
It acts as an observer on behalf of the citizens. Freedom of media is the freedom of people as they
should be informed of public matters. The freedom of speech and expression is provided under
Article 19 (1) (a) of the Indian constitution 1 and it also provides the freedom of the media. This
article does not refer particularly to the freedom of the press but judicial pronouncements have
over and over-pronounced that this article is enough to include the freedom of press. This does
not mean that it provides a license to write something. In the case of Hamdard Dawakhana vs.
union of India (1960) 2SCR 6712, it was held that the press is not only a medium of expression
but business. By this, we can easily confer that media is making wrong use of freedom of speech
and expression.

In the present time there exist a complicated relationship between the court and the media. The
expression "Trial by Media" refers to the impact of television and newspaper coverage on a
person's reputation by creating a widespread perception of guilt regardless of any verdict in a
course of law. This type of perception can create bias not only in the minds of the general public
but also is very antithesis to the rule of law resulting in miscarriage of justice. When this hype is
created by media is not a healthy sign for the administration of justice and in such truth is injured.

Fairness of trial is of paramount importance. There have been many instances in which media
have been held of conducting the trial of the accused and passing the verdict even before the court
passes its judgment. Publication by media may result in interference with the administration of
justice. The constitutional Liberty of speech and the press implies a right to freely utter and
publish whatever the citizens may please, but it does not give license to right what is falsehood
and malice and they may dangerously affect the private characters of individuals just for
increasing the circulation and TRP of newspapers and news channels.3

2. CONSTITUTIONALITY OF MEDIA TRIAL

2.1 FREEDOM OF PRESS
Article 19(1)(a) of the Constitution does not particularly associate to as such guarantee to all
citizens of India, the Supreme Court has intervened in this regard to give specific interpretation to
the effect that Article 19(1)(a) can be made relevant directly to the freedom of the press. As such,

1
Indian Const. art. 19, Cl. 1, sub cl. a.
2
Hamdard Dawakhana vs. Union of India, 2 SCR 671, (SC: 1960).
3
Staff Reporter, Press council role defended, THE HINDU, 4th May 2001.
subsequent judgments of the Supreme Court have assured that the media is protected with
constitutional guarantees and an attempt to intervene with it is seen as an infringement of the
fundamental right to the freedom of speech and expression.

The Supreme Court has stepped in this concern to give specific interpretation to the effect that
Article 19(1) (a) is protected with constitutional guarantees and any attempt to interfere with its
functioning is seen as an infringement of the fundamental right to the freedom of speech and
expression4. This constitutional guarantee was interpreted in a way by the courts to widen its
speech to distinctly include freedom of the press and its importance to the idea of a democratic
republic.

2.2 THE CONTEMPT OF COURT ACT 1971

The law of contempt fulfills a valuable purpose in so far as its operation is restricted to placing a
temporary prohibition on publication of information which would make a jury more likely to
convict a person who is on trial or shortly to face trial. The contempt of court law is one of the
important ethics of media. Its objective is not only to penalize but also to preserve the Sanctity of
administration of justice. In India, contempt of court is classified under two categories. Section
2(b) and Section 2(c) of The Contempt of Court Act 1971 5define civil and criminal contempt
respectively. Section 12 deals with the punishment for contempt of court. It provides as follows:
Section 12(1) - Save as otherwise expressly provided in this Act or any other law, a contempt of
court may be punished with simple imprisonment for a term which may extend to 6 months or a
fine which may extend up to rupees 2000 or both. Provided that, the accused (of contempt) may
be acquitted or the punishment awarded may be remitted on apology being made to the court's
satisfaction.
The reason behind commencing contempt proceedings is not to prohibit freedom of speech and
expression but to stop disorder to the administration of justice.

3. MEDIA TRIAL vs. FREE TRIAL

4
Nimisha Jha, Constituitonality of Media Trials in India: A Detailed Analysis, LAWCTOPUS, (13 th Nov. 2015),
https://www.lawctopus.com/academike/media-trials-india/#_ftnref2.
5
The Contempt Court Act, 1971, Act No. 70, Act of Parliament, (India).
Media is an important element of the mass media that focuses on providing information to the
general public or target population. These include publishing news, news releases and the latest
internet. Democracy means the formation of a government by the people, for the people and the
people and the public to actively participate in community decisions. Therefore, it is the necessity
of the day when people are informed about current issues and the burning of society; this is where
the media steps in to bring us small and important details that require attention. Take care of
people - make them aware of what is going on around them and what to do - steps to make the
community better. The function of the press and media is to enlighten the public. The masses on
issues related to public importance6. This is why freedom of expression and expression in the
Constitution has been expanded to include freedom of the press and the press. The right to
freedom of expression is enshrined in Article 19 of the Indian Constitution7. But this freedom is
not absolute. Reasonable restriction is allowed by subsection (2) of the same article. Article 19 (1)
(a) of the Constitution of India guarantees freedom of expression and expression, and Article 19
(2) allows for reasonable restrictions imposed by statute for the purposes of various issues. This is
disrespectful for the court. Freedom of expression does not mean freedom to despise the court.
The term "expression" used in Article 19 (1) (a) of the Constitution in addition to "Speech" is
broad enough for the press.

In M.Hassan v Andhra Pradesh8, a court ruled that the prison authorities' refusal of journalists
and videographers to interview convicted prisoners was a deprivation of the fundamental right to
freedom of speech.

The media trial has reached a new level with the Simpson case and has reached the testimony in
India with the case of Jesse Gallaghe's actual influence, with media intervention and strong
coverage by the public opposes a coercive verdict. The authorities and the courts to start the case
with a lot of evidence were published by the media. In India, the road by the media assumes a
significant proportion. Some other notable criminal cases that will go unnoticed or unnoticed, but
for media intervention, are the cases of Pritadarshini Mattoo, Santosh Singh, a lawyer and the
son of an IT officer. IT. Fertilizer. H. H. A police officer was brutally raped and, after committing
6
Lawteacher, Effect of Trial by Media Before Courts, LAWTEACHER, ( 24 th Jun. 2019),
https://www.lawteacher.net/free-law-essays/commercial-law/effect-of-trial-by-media-before-courts-law-essay.php?
vref=1.
7
Indian Const. art. 19.
8
M. Hassan v. Andhra Pradesh, 6 ALT 209, (AP: 1997).
a crime, killed the girl with his helmet. He was acquitted by the Court of Extra Session to give
him the benefit of the doubt. It was only the media and family work as soon as Santosh Sigh, in
that sense, began to enforce the law and the marriage was bought back in court. The media has
uncovered a number of loopholes in the murder case as the continue and search for domestic
workers. This angered the public and thus put pressure on the judiciary, and within 42 days of a
speedy trial, Santosh Singh was sentenced to death, which was later commuted to life
imprisonment.

In the case of Nirbhaya rape, too, the media has played a key role in provoking great sympathy
and outrage from the masses and Indian and foreign authorities. The role of the media is discussed
in a number of prominent cases. While the role of the media in bringing the perpetrators of these
heinous crimes to an end is commendable, the question remains as to whether the doctrine of
freedom of expression can extend to a free and fair trial. There have been many incidents in which
the media have allegedly tried and prosecuted defendants even before their trials, and the problem
is due to the delay in justice in India. As a result of the judicial trial, the country relied on media
justice immediately rather than a rational verdict by the court forgetting that some networks were
misleading, discriminating, inciting the public and ultimately justifying the TRP.

The conflict between freedoms of expression extends to the media, and fair trials often raise
questions and force the Supreme Court to intervene and try to end the conflict. The Supreme
Court has shown that the way the media exists in some cases is against the rule of law and has led
to injustice. It denied the media interference in the administration of justice by publishing a one-
sided article related to the pending case.

The media in many cases drew criticism, such as in the report on the assassination of Aarushi
Talwar, which the court pretended to be a court and reported that her father, Dr. Rajesh Talwar
and perhaps her mother Nupur Talwar were the perpetrators. The Supreme Court on Aug. 6
strongly criticized the media for acting like a high-level intelligence agency and tarnishing the
reputation of a doctor couple who had just lost their baby. In other cases, the media allegedly
opened separate investigations, forming public opinion against the accused, before the court found
out. It not only affects the judgment of the masses, but it goes beyond and does the same with
human judges, and the accused is presumed guilty, thus undermining the administration of justice.
Similar comments were made in the case of Saibal Kumar Gupta and Ors. v B.K. Sen and And
Another9, where it is said to be investigated and tried by the media and then to publish the same
results when the case is qualified because it seems to interfere with the judicial process and
therefore the publication Such broadcasts should be blocked.

The Supreme Court in Shirah Bilalasik, Kuwait, explained that "a fair trial will mean a trial
before an impartial judge, a fair prosecutor and a court environment." A fair trial means a path by
which bias or discrimination against an accused witness or cause is eliminated. The media, in
some cases, portrayed the police in dim light. The road on the whole is heavily affected by the
media mood. Judges, when making decisions, begin to consider media criticism if they contradict
the media's view, and in some cases, the verdict in which the media becomes the final verdict.
The media has entered the press aggressively, and the most controversial and unfortunate part of
the role that has been played recently is that the coverage of interesting crimes and the creation of
evidence of the evidence begins at the very beginning. Before the person who will preside over
the trial.

Zaheera Sheikh, the main witness in the case of the best burgers, was the victim of excessive
propaganda and sympathy. Her turning into an enemy invited an approximate amount of media
speculation and anger. The media should not refrain from revealing the facts of their attacks or
identifying the victims of the rape, nor should they report on the past history of the victims and
the accused. The murder case of Jessica lal and including photos of the accused in bars and pubs,
these documents were published even after the street court released him.

4. MEDIA TRIAL vs. FREEDOM OF SPEECH AND EXPRESSION

The preamble to the constitution plays a significant role in comprehending the freedoms
mentioned in Article 19. Article 19 (1) (a), freedom of speech and expression is an understandable
pillar for a free and harmonious society. To understand the range and depth of the freedom of
speech and expression it is important to understand the anatomy of article 19 (1) (a) and Article
19 (2) of the constitution. An active democracy for its survival relies upon free speech and
expression. Article 19 (1) (a) of the constitution comprises the freedom of the press therein. This
9
Saibal Kumar Gupta and Others vs. B. K. Sen And Another, 3 SCR 460, (SC: 1961).
article does not refer particularly to the freedom of the press but judicial pronouncements have
over and over-pronounced that this article is wide enough to include the freedom of press.

The media take this freedom as a right to hold opinions without interference and freedom to seek,
receive and impart information and ideas of all kinds either orally or written or by any art or
through any other medium of their choice. The freedom of speech and expression is safeguarded
as a fundamental right to every citizen of the state but enjoying one right can be a violation of
other fundamental rights. If one has the right to freedom of speech and expression that is also
obliged to maintain the constitutional values which are encompassed in the idea of fraternity that
guarantees the dignity of the individual. Protection of reputation is a fundamental right it is also
a human right. Right to free speech can not mean that a citizen can defame the other.

While the freedom of speech and expression is, no doubt, very relevant and needs protection as a
fundamental right, at the same time it is necessary that the reputation of individuals required to be
protected from being unnecessarily injured.

A person's reputation is a joined element of an individual's personality and it cannot be allowed to

be injured in the name of the right to freedom of speech and expression because the right to free
speech does not mean the right to offend therefore there should be a balance between the right to
protection of reputation and the right to freedom of speech and expression.

Next, the question emerges as to whether the right to freedom of speech and expression can be
allowed so much room that even the reputation of an individual that is consistent with Article
21 would have no entry into that area? Right to reputation is a constituent of Article 21 of the
constitution.10 It is an individual's fundamental right and therefore balancing of fundamental right
is essential. The right to reputation is an inherent right safeguarded by Article 21 and hence the
right to freedom of speech and expression under Article 19(1) (a) has to be balanced with the right
under Article 21 and cannot prevail over the right under Article 21. The right enshrined under
Article 19(1) (a) cannot be allowed to brush away the right engrafted under article 21 and also
should not be allowed to affect individual dignity which is also an essential part under article 21

10
Indian Const. art. 21.
of the constitution. The Universal Declaration Of Human Rights 1948 in Article 12 11 stipulates
that no one shall be subjected to attack on one's honor and reputation.

There have been several cases in which the media has been accused of conducting the trial of the
accused and passing the decision even before the court passes its judgment. In the case of Punjabi
pop singer Daler Mehndi, whose discharge was shot in human trafficking case after his
humiliation and pseudo trials through media, police have not been able to find the evidence
sufficient enough for filing the charge sheet. From Sushant Singh Rajput's Case to an endless trial
of cases in the news panels, what we observe here is that media trials lead to oblivious
investigation, building a strong public opinion against the accused before the case is tried in the
court of law. The decision is announced with little or no room for hearing the other side of the
story. The Sushant Singh Rajput case is just another story. Many news channels even reenact the
entire incident in a hypothetical manner where secretly mentioning that the entire sequence is
purely a product of assumption. A freedom of such amplitude might pertain to the risk of abuse.
The right to reputation is no less important right than the right to freedom of speech. Certain
grounds on which the right to free speech and expression can be subjected to reasonable
restrictions and one such ground is defamation is enumerated under Article 19 (2). New media has
been largely liberalization in India since the economic reforms of 1992, which begin the large
free-market expansion in reaction to serve economic crisis at the time. The media has failed to
focus on sportsmen in rural areas who had set National records and now the media has become an
incentive TRP-hungry entertainment channel. They have no greater freedom than others to make
any imputation or allegations sufficient to harm the reputation of a citizen.

Freedom of the press is the heart and soul of political intercourse and it has inferred the role of a
public educator's making formal and non-formal education in a large-scale particularly in the
developing world. one cannot be unmindful that the right to freedom of speech and expression is
highly valued and cherished but the constitution conceives of reasonable restrictions.

5. INTERNATIONAL CONVENTIONS

The media around the world is very influential to the public because they have the power to
attract and organize people's ideas by providing information to the masses through various
11
The Universal Declaration of Human Rights, Draft Committiee, (1948)
sources. The state of the media in British courts is similar to some extent The Declaration on the
Independence of the Judiciary states that it is the duty of the court to ensure that the judicial
process is properly exercised, as well as the rights of both parties. Contrary to the provisions of
the Law on Human Rights or IC. E. P. Made only on signs necessary for a democratic society.
The media must be proportionate to the needs of society. The United States and the United States
believe in the limits of power given to the media in publishing and disposing of these tests. The
U.S. Supreme Court has ruled that the media has the potential to endanger trials. In a key case in
Dr. Samuel h.Sheppard’s case, the court ruled that public disclosure regarding discrimination
denied him a fair trial. Similarly, in the United States, in the case of the Attorney General and the
United Kingdom, it is agreed that media trials affect judges, despite claims of the court's
superiority over human weakness.

In the United States, the O J Simpson case has attracted much public attention. In January 1994,
participants from 40 countries met in Madrid, Spain, at a meeting organized by the International
Commission of Jurists, the Center for Independent Judges and Lawyers, and the Spanish UNICEF
Committee. The purpose of this meeting is to examine the relationship between the media and the
independence of the judiciary. Another purpose of the meeting was to establish principles for
resolving the relationship between freedom of expression and the independence of the judiciary.
The preamble of this document emphasizes the rule of law and in order to overcome this law,
freedom of expression, especially freedom of the press, becomes an essential element in a
democratic society. This document defines the roles and responsibilities of both the judiciary and
the media.

The basic principle enshrined in the document is freedom of expression, which includes freedom
of the press. It is the duty and right of the media to gather and transmit information to the public
and to advise the administration of justice, including cases before, during and after the trial. In the
United States, with the case of Aaron Burr1, the task before an Indian court is to balance the
fundamental rights of the media and the defendant. Since we can learn from the American and
British experiences in this article, I suggest that we first examine the US and British positions on
this controversy, then deal with the response in India, both inside and outside the judiciary, and
finally discuss Choices before the court and the media.
The judiciary and the media are interconnected and play an admirable role in each other: Men are
the center of their universe. Both the judiciary and the media are working together to find the
truth, to maintain democratic values, and to address social, political, and economic issues. In fact,
the media has been called the fair leader of social watchdogs. So both are essential for the
progress of a civil society12.

According to it, in a democracy, people have a right to know. Therefore, the media has a
corresponding obligation to inform the public about crimes and crimes. Public pre-trial publicity
is detrimental to the health of a fair trial. Even before the accused was arrested and tried, the
media declared the accused guilty. It can present irrelevant and unacceptable evidence of the truth
of the gospel that can convince people of the guilt of the accused. It thus violates the fundamental
principle of the general rule that "everyone is presumed innocent until convicted."

However, in a democracy, the right to freedom of the press and the right to a fair trial must go
hand in hand. The United States, the United Kingdom, Britain, and India are all pro-democracy
activists. We are the ancestors of the common law. So we share a common political ideology, a
common legal legacy. Our Constitution, whether written or unwritten, protects and promotes the
same fundamental rights: both the First Amendment to the US Constitution and Article 19 (1) (a)
of the Indian Constitution guarantee freedom of Speech and Expression. The Fifth Amendment to
the US Constitution protects the right to life, liberty and property. Article 21 of our Constitution
protects "life and personal liberty." While the former talks about "legal procedures" is the panel.

At Sheppard v. Maxwell13, Supreme Court of the United States, is asked to consider whether
Sheppard was deprived of a fair trial in his state conviction for the murder of his wife in the
second degree due to the failure of a judge not defending Sheppard Enough from adults or not.

In addition, the Moylavi Al-balathet court ruled that those seeking his conviction were annulled
and that he was denied a fair trial by an impartial committee due to pre-trial publicity. Identifiable
discrimination must be made that reflects the advertisement.

12
Justice R. S. Chauhan, Trial by Media: An International Perspective, SCCONLINE, ( 13th Sep. 2020),
https://www.scconline.com/blog/?p=235735.
13
Sheppard Maxwell, 384 U.S. 333 (U.S. : 1966).
While US and British courts have settled the issue, Indian courts have touched on the Ginger
issue. Reasons not far away : Media trials are a recent phenomenon. Therefore, we find traffic
jams but not concrete proportions. In Reliance Petrochemicals Ltd. v. The owner of the Indian
Express Blueprint14 has been partially tried by the Supreme Court on issues of press freedom and
the administration of justice.

The Apex Court said that here must be a reasonable basis to believe that the dangers caught in the
continuation of this order are real and imminent. This test is acceptable based on a balance of
convenience.

In State of Maharashtra v. Rajendra Jawanmal Gandhi15, while charged with attempted rape of
a minor, Apex court observed: Trial by the press, electronic media, or angry incitement is against
the law. It can lead to a fair miscarriage. Judges must protect themselves from such pressure and
he must be strictly guided by the law.

At M.P. Lohia, the Supreme Court ruled that the death penalty was a verdict when an article
appeared in Saga magazine entitled "Doomed by Dowry." The article is based on interviews with
the family of the deceased, which provides tragedy, and quotes the deceased father to his case.

The Apex Court observed: Despite the importance of printing and electronic systems today, it is
not only desirable, but it is expected that very few people are expected to get a job in this field to
ensure that the church Clearing by the media does not impede a fair investigation. Investigative
agencies, and more importantly, do not discriminate against defendants' right to self-defense in
any way. It would be a fair drag if any of the reasons for the obstacles in the investigation and the
fair and just trial were accepted.

Thus, even Madrid's policy restricts the media "not to violate the presumption of innocence."

Similarly, in India, the Press Council of India has issued regulations on "practices of journalism".
Norm 1: Accuracy and Justice –

14
Reliance Petrochemicals Ltd. v. The owner of the Indian Express Blueprint, 3 SCR 212, (SC: 1988).
15
State of Maharastra v. Rajendra Jawanmal Gandhi, 8 SCC 386, ( SC: 1997).
 i. The press must publish inaccurate, baseless, quality information, without illusions or
illusions. Every part of the core issue or topic should be reported. Rumors and irrational
arguments should not be set as facts.

When dealing with the investigative press, Norm 26 (f) states:

The reporter should not approach the issue or issue that is under investigation in the sense that he
or she is a prosecutor or a consultant for the prosecution. The reporter's approach should be
accurate, correct and balanced. All facts properly examined, both for and against core issues,
should be made clear and separate, regardless of one-sided comments or unfair comments. The
tone and nature of the report and its language should be discreet, appropriate, and dignified, and
there should be no insults, insults, or insults, especially when commenting on a version of a
person whose actions or misconduct are being investigated. Investigative reporters should also not
proceed with proceedings and pronounce their guilt or innocence against the person being
investigated for the crime and conduct in a manner that appears to have been tried by the court.

State 26 (g) clearly states: All proceedings, including investigations, presentations and
publications of investigative journalists / newspapers, should be guided by the main principle of
criminal jurisdiction that a person is not guilty except for the alleged offenses; Adherence to him
is beyond doubt. With independent and reliable evidence.

ii. The newspaper is not careful to publish or comment on the evidence gathered as a result of
the investigative press when the accused is arrested and charged by the court. They should
also not present, comment or evaluate the confessions alleged by the accused.

6. CONCLUSION

Media trials often aggravate the atmosphere of mob lynching or impacts on the understanding of
the general public but it also plays a very important role in chipping the viewpoint of the present
generation. The Media has to be properly administered by the courts. While a media which has
been governed by the government is not good for democracy, the importance and the result of
unaccounted publications are even more adverse not just to the status of the person but also to the
judgment assessed by the courts. Consequently, media trials have only been attended to help the
people in only very few instances but that does not happen in all the cases, thus it is necessary to
have regulations imposed on it. The most suitable way to regulate the media will be to practice the
contempt jurisdiction of the court to punish those who infringe the basic code of conduct. The
media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial
itself.

The rule of law must exist and the statute of freedom of the press must be construed to be
restricted to placing a course in the consciousness of the society without any inference being
given. The Court is a competent forum for such judgments and these forums must be enabled to
process without dissipating prejudice in the public opinion.