SARDAR PATEL SUBHARTI INSTITUTE OF LAW

SWAMI VIVEKANAND SUBHARTI UNIVERSITY

TOPIC: MEDIA TRIAL IN INDIA

SUBMITTED TO: SUBMITTED BY:

Mr. Vikas Tyagi Alka Kumari
(Asst. Professor) B.A.LL.B. (V Semester)
Introduction
Media was once a boon that enlightened people and made them aware of what
is going around in the world. The Indian media has to follow the principles laid
down in the Constitution of India. There are essentially three pillars of
democracy that are the legislature, executive and judiciary and now the media
has become the fourth pillar of democracy. It highlights the social, legal,
economic and cultural problems of the society.

Media has now transformed itself into a Janta Adalats or ‘public court’ and
started intervening in the proceedings of the court. The vital gap between the
convict and accused is completely overlooked by the media by keeping at stake
the cardinal principles of ‘presumption of innocence until proven guilty’ and
‘guilt beyond reasonable doubt’. Now what is being observed is a separate
investigation done by the media itself which is called a media trial. Along with
investigation, it includes forming public opinion against the suspect or the
accused even before the court takes cognizance of the case. As a result of this,
the public is prejudiced due to which the accused who should have been
assumed innocent is presumed to be a criminal abandoning all his rights and
liberty unrepressed.

The excessive publicity of the accused or the suspect in the media before the
trial in a court of law, either incriminates a fair trial or results in characterizing
the accused or suspect as the one who has certainly committed the crime, this
amounts to undue interference with the “administration of justice”, which calls
for proceedings against media for contempt of court. The rules that have been
designed to regulate the journalism and journalism conduct are unfortunately
inadequate to prevent the encroachment upon civil rights.

What is a Media Trial?

Whenever there is any sensitive case that comes to be tried before the court,
then among the people there is an anticipated upsurge in curiosity. Always
looking forward to sensational news, Media including newspapers, television
channels, news websites, etc. start publishing their own interpretation of facts. It
is called investigative journalism and is not prohibited in India. The influence of
media coverage via newspapers and television on an individual by creating a
perception of innocence or guilt even before the Court of law announces its
judgment, it is called as “Media Trial” or ” Trial by Media”.

Criticism of Media Trial

Media has an indispensable role in a democratic country. All the pillars of the
democracy should function independently without intervening upon the
functions of others. Media had overstepped upon the sanctity of the judiciary in
high-profile criminal cases like the Indrani Mukerjee case, Jessica Lal case etc.
Some of the accused are set free due to the media intervention.

A three-judge bench led by Chief Justice of India R M Lodha described the issue
as very serious and stated that to put in place the Court would consider few
guidelines in order to balance the interest and rights of the stakeholders. The
guidelines observed by the Court are as follows:

In the wake of growing instances of media trials, there is a need that the
Supreme Court should delve into the issue as it leads to public condemnation of
the accused on the basis of information provided by prosecutors and police,
though the trial before the court of law has still not been initiated.

In the wake of growing instances of media trials, there is a need that the
Supreme Court should delve into the issue as it leads to public condemnation of
the accused on the basis of information provided by prosecutors and police,
though the trial before the court of law has still not been initiated.

The Courts have taken a serious note on the reports of a media briefing by the
police and other investigating agencies. Nothing should be done in order to
hamper the investigation process and secrecy of the inquiry. All of these need
certain checks as they all fall within the purview of Article 21 of the Constitution.

When a trial is already going on in the Court, the parallel process of trial by
media should not be allowed. It is now expected that the Supreme Court will
consider to frame guidelines for the media over covering criminal cases and
briefing by the investigating agencies.

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr., 1961, the Supreme Court
held, there’s no doubt that it would be mischievous for a newspaper to intrude
into a crime and execute an independent investigation for which the accused or
suspect has been arrested and then to publish the outcomes of that
investigation. This is mischievous because when there is an ongoing trial by one
of the regular tribunals of the country then trial by newspapers must be
prohibited. This is based upon the view that such action by the newspaper of
doing an investigation tends to interfere with the course of justice, whether the
investigation tends to prejudice the accused or the prosecution.

In Sushil Sharma v. The State (Delhi Administration) and Ors, 1996, the Delhi
High Court held that no conviction will be based upon the media report but upon
the facts that have been placed on record. It is supposed that the Judge dealing
with the case should be neutral. If the decision is based upon the accepted news
items, the petitioner will insist upon denial of a fair trial because it would cause
aspiration on the Judge of being not neutral. Even if there is less report or no
report available, the charge should be framed on the basis of material available
on record.

The purpose of media has eventually changed with the progression of time.
There is interference by the media in the role of the judiciary in most of the
cases instead of just stating the case facts. The underlying foundation of the
judicial system has been eaten by the termite of corruption in the largest
democratic set-up. Unethical steps are followed by the litigants in order to save
the accused from conviction through bribing the public authorities to distort the
evidence, pressurize the defence to withdraw the case, etc. Due to this
enormous institutional imbalance, there has been pre-emptive media coverage
of criminal trials. Media has been successful in making a prejudicial stance in the
minds of the public by their sensational style of journalism.

Influence of media on the accused

 If a suspect or an accused has already been projected by the media as
guilty even before the trial in the Court, then there are possibilities of
serious prejudice to the accused.
 If the person who is suspect or an accused is acquitted by the Court
after the due process, even the acquittal may not prove to be helpful
for the accused to rebuild his image in the society.
 Exaggerated and unreasonable publicity in the media, characterizing
the person as guilty, even when the verdict is still pending, amounts to
undue influence with the “administration of justice”, which called for
proceeding against the media for contempt of Court.

Influence of media on the witness

 If the identity of the witness is revealed, then there is a possibility that
the witness will be under pressure from the police as well as the
accused or his associates.
 The witness at an early stage wants to withdraw and get out of chaos
soon.
 Then the protection of the witness is a serious issue. This brings a
question about the admissibility of the evidence of a hostile witness
and whether there should be an amendment in the law for the
prevention of witnesses from changing their statements.

Influence of Media on Judges and Court

  Even Judges come within the purview of criticism which can either be
on their judicial conduct or conduct in a purely private capacity. But it
becomes a matter of concern when the criticism about the Judges is ill-
informed or entirely not on the foundation which may have a tendency
to undermine the faith of the people in the judiciary.
 A Judge has to protect himself from such media pressure which can
‘unconsciously’ influence the juries or the judges and as human beings,
the judges are prone at least subconsciously or unconsciously to such
indirect influences.
In the case of State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997, the
Supreme Court held that a trial by electronic media, press or by way of public
agitation is anti-thesis to the rule of law and can lead to a miscarriage of justice.

Media Trials v. Fair Trial

Article 21 of the Constitution of India guarantees the right to a fair trial as it has
been considered to be part of the right to life and liberty. The basic meaning of
“Right to Fair Trial” is that a trial should not be impacted by the extrinsic
pressures, which is recognized as a basic principle of justice in India. Articles
129 and Article 215 of the Constitution of India and Contempt of Courts Act,
1971 contain provisions that aim at safeguarding this right. In our country, the
criminal justice system sticks to the ‘presumption of innocence’ that is, unless
proven guilty, a person is presumed to be innocent by the competent court. The
role of the Media is to objectively broadcast the news which implies that the
media should not adjudicate upon any case but only adhere to the publication of
the factual part of the case. The print media and electronic media are now
immersed in an insatiable competition of sales and TRPs (Television Rating
Points) respectively.

The Press Council of India directs the Media that it should not give unreasonable
publicity parallel to the victim, accused, witnesses and also not to disclose any
information that is confidential which may hamper or prejudice the process of
investigation. It is also required that the media should not identify any witness
as then their chances to turn hostile increases and mainly the media should not
be running any parallel trial of the case that brings an undue pressure on the
judge or the jury adjudicating upon the case.

In the case of Zahira Habibullah Sheikh v. State of Gujarat, 2006, the Supreme
Court has held that it is reflected in numerous practices and rules, a fair trial
would obviously mean a trial that is conducted before a Judge who is impartial
and a fair prosecutor in an atmosphere of judicial calm. A Fair trial includes a
trial, in which bias or prejudice for or against the witnesses, accused or the
cause which is being tried is eliminated.
In the case of Vijay Singhal and Ors. vs. Govt. of NCT of Delhi and Anr., 2013, it
was held by the Court that the trials’ objective is to meet the ends of justice,
and if, there is a competition in order to meet that end between the right to
freedom of expression against the right to a free trial, the right to free trial
would Trump upon the right to freedom of expression.

The Supreme Court and High Court in many judgments have criticized the trial
by the media on the sub-judice matter as it prejudices the opinion of the judge
or the jury on that particular case and sometimes even on similar cases later.
The Press Council of India has also prescribed in their 2010 edition of Norm of
Journalism Conduct to abstain from performing such sensational journalism.

Is Media Trial Contempt of Court?

Trial by Media comes under a Contempt of Court and needs to be punished. The
contempt has been identified by the Contempt of Court Act as civil and criminal.

Criminal contempt has been divided further into three types, that are:

 Prejudicing trial;
 Scandalizing;
 Hindering the administration of justice.

Contempt of court has been initiated to curb such unfair and unjust trials. Any
publication of news that is circulated with an intention to poison the minds of
the accused, witnesses, or the jurors or to create such an atmosphere where the
administration of justice would become difficult or impossible, amounts to
contempt. Contempt of Court also includes commenting on the pending cases or
abuse of party only when a case is triable by a judge. No right lies with the
media to play the role of an investigator, in any case, to try to prejudice the
court.

Famous Indian Cases of Media Trial

There have been multiple cases which have been tried by Media, few of the
famous cases have been discussed below-

Sanjay Dutt Case

After the Supreme Court sentenced Sanjay Dutt to 5 years imprisonment, he
had to serve in jail due to his involvement in the 1993 Mumbai Serial Blast. In
1994, Sanjay Dutt was arrested at the airport and he confessed that in January,
1993 Abu Sale, Mafia Don had visited his home with Hanif Kadawala and Samir
Hingora, they were Magnum proprietors and alleged close associates of Dawood
Ibrahim, who is an underworld don. In his statement, Sanjay Dutt also said that
these people along with ammunition had got three AK-56 rifles with them, out of
which one was kept by Sanjay Dutt.

According to him, he kept the gun in order to protect his family because of the
threats that he had received during the riots in Mumbai which was followed by
the Babri Masjid demolition in December, 1992. After Sanjay Dutt heard the
arrest of Hanif Kadawala and Samir Hingora and the serial blasts in Mumbai,
Dutt asked his friend Yusuf Nulwalla to destroy the rifle. Though, the statement
was later withdrawn by him. After this, he was soon charged and arrested
under Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987 for
receiving ammunition from Abu Salem and his involvement in the blasts.
He was sentenced to six years in jail for conviction under the Arms Act, for
which Sanjay Dutt had managed to secure a bail from the Supreme Court. On 31
July, 2007, he was sent to Pune’s Yerawada prison. However, he was later out on
bail. On March 21, 2013, the Supreme Court had further cut short his term to
five and which ended on February 27, 2016.

Being a famous actor, this case was highlighted by the media to an extent, the
media portrayed the picture of Sanjay Dutt as a terrorist, which was later held
by the Court that he was not accused of those charges. After this incident, being
an actor he had to suffer a lot of problems and outrage and his reputation got
depleted.

Jessica Lal Murder

In 1999, Jessica Lal (model turned barmaid) working in a restaurant owned by
socialite Bona Ramani in Mehrauli, South Delhi’s, was shot dead by Manu
Sharma (alias Siddharth Vashisth), son of Congress former Union Minister,
Venod Sharma after Jessica refused to serve liquor to him and his friends. This
case immediately gained media coverage after the murder when the accused
was acquitted by the trial court. This case became one of the top cases where
the public pressure and media compelled the justice system to take a second
look at this case. Though Manu Sharma was acquitted initially in the year 2006
as the Delhi police failed to sustain the grounds on which they had built up their
case after public outcry due to the media coverage of the case, the Delhi High
Court sentenced him to life imprisonment.
The Delhi rape case
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 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, where for the heinous crime the age for
punishment had been reduced to from eighteen to sixteen.

Pradyuman Thakur Murder Case

A class II student, Pradyum was found dead in the washroom of Gurugram’s
Ryan International School. As per the initial report, the bus conductor was
arrested on the ground that he had sexually assaulted the child and then killed
him. However, later it came to know that it was a student of class XI who killed
him in order to postpone the exams. Though the bus driver was found not guilty,
because of the media trial initially, he suffered damage to his reputation and
career. The case was under investigation and the media should not have
interfered so much, only after the Court pronounced its verdict, the media
should share its opinion based on true facts and circumstances.

Arushi-Hemraj Murder Case

This case gained a lot of media attention and was in the news for a very long
time. Arushi was murdered along with her household worker Hemraj in May,
2008. Initially, a lot of names occurred on the suspect list. The sensational
media coverage was criticized by many as a trial by the media, which involved
salacious allegations against Aarushi and suspects. The media raised questions
on Arushi’s character as her affair with Hemraj, though no provident evidence
had been found for the same. The parents were convicted for the murder and
sentenced to life imprisonment in November, 2013. But it was argued by many
critics that the case was based on very weak evidence, the evidence was not
strong enough to fully blame parents for the murder, there were other suspects
too but because of media trial interference, it raised questions in minds of the
people. In the Allahabad High Court, the decision was challenged by the
Talwar’s, which later in 2017 acquitted them as giving them benefit of doubt
and calling the evidence as unsatisfactory.

Yakub Menon Case

Yakub Abdul Razzaq Memon (30 July, 1962 – 30 July, 2015) was held to be a
terrorist and on 27 July 2007, he was convicted for his involvement in the 1993
Bombay blasts by the Special Terrorist and Disruptive Activities Court. Yakub
Memon’s brother Tiger Memon was one of the prime suspects in the bombings.
All of his petitions and appeals which demanded clemency were all rejected and
on 30th July, 2015 he was executed by hanging in Nagpur jail.

Due to so much of the media coverage and trial by media, in this case, the
lawyer defending the accused had been heavily criticized which made it difficult
for the lawyers to fulfil their ethical duty of providing legal aid to the parties.

Media Trials vs Freedom of Speech and

Expression
Article 19(1)(a) of the Constitution of India guarantees freedom of speech and
expression. A crucial role is played by freedom of speech in the formation of
public opinion on economic, social, and political matters.

Keeping this view in mind in Indian Express Newspapers (Bombay) (P) Ltd. v.
Union of India, 1985, Venkataramiah, J. of the Supreme Court of India has stated
that the freedom of the press is the heart of social and political intercourse. The
press has now assumed the role of public educators and makes education
possible at a large scale by imparting formal and non-formal education
particularly in the developing world, where all forms of modern communication
like television and other kinds are not available to all the sections of the society.
The objective of the press is to boost the public interest by publishing opinions
and facts without which the responsible judgement cannot be made by a
democratic electorate (Government). Newspapers which are purveyors of news
and views of the people have a bearing on public administration and frequently
carry material which would not be pleasing to Governments and other
authorities.

From the above statement of the Supreme Court, it can be demonstrated that
freedom of the press is essential for the proper functioning of the democratic
process. It is obvious that every citizen is entitled to participate in the
democratic process and democracy means the Government of the people, by
the people and for the people. Every individual in order to allow him to exercise
his right intelligently of making a choice, then free and general discussion of
public matters becomes essential. This constitutional viewpoint of the freedom
of the press in India is explained through this.

In the case of Papnasam Labour Union v. Madura Coats Ltd, 1994, few
guidelines were laid down by the Supreme Court and principles that are needed
to be kept in view while considering the constitutionality of a statutory provision,
the restrictions were imposed on the fundamental rights guaranteed under
Articles 19(1)(a) to (g) of the Constitution of India when the freedom is
challenged on the grounds of unreasonableness.

Are media trials constitutional?

While courts in India haven’t explicitly declared media trials unconstitutional,

“Freedom of Speech and Expression” is guaranteed under Article 19(1) of the
constitution.

It is believed this freedom allows media to intervene and help people build
opinions and views on various issues of national interest; however, too much
intervention is also a matter of concern.

Article 19(1)(2) of the Indian constitution has contoured this right by listing
grounds of restrictions on the freedom of speech and expression as no
freedom in this constitution is absolute and unfettered. Privacy is not
counted as a ground for imposing reasonable restrictions to the right to
freedom of speech and expression. Additionally, there is no specific
legislation in India that directly protects the right to privacy against
excessive publicity by the press including media trial.
Are there any checks and balances?

Media trials in general, and in this particular case, are tantamount to

“contempt of court,” which is also prescribed by the Indian constitution and
the Contempt of Courts Act, 1971. The act defines contempt by stating, “No
publication, which is calculated to poison the minds of jurors, intimidate
witnesses or parties or to create an atmosphere in which the administration
of justice would be difficult or impossible, amounts to contempt.”

Apart from the above, there is no statutory regulatory mechanism for the
media. They are governed by several self-regulatory bodies, such as the
News Broadcasters Association, Broadcast Editors Association and the
News Broadcast Federation. Membership is completely voluntary, and each
authority has its own set of guidelines.

In fact, the members of all such self-regulatory bodies include the office
bearers of leading news channels. Moreover, complaints about guideline
violations are handled by an independent body appointed by the members
themselves.

CONCLUSION:

Any institution, be it legislature, executive, judiciary or bureaucracy, is liable to be abused if it exceeds

its legitimate jurisdiction and functions. But sometimes these ultra vires activities are blessing in disguise
as is the case of judicial activism. Media trial is also an appreciable effort along with the revolutionary
sting operations as it keeps a close watch over the investigations and activities of police administration
and executive. But there must be a reasonable self-restriction over its arena and due emphasis should
be given to the fair trial and court procedures must be respected with adequate sense of responsibility.
Media should acknowledge the fact that whatever they publish has a great impact over the spectator.
Therefore, it is the moral duty of media to show the truth and that too at the right time. While the print
media has reached at a saturation stage where it is aware of legal guidelines and ethical limits but the
electronic media is experimenting and is relying upon ‘trial and error’ method for what to show and
more importantly what not to. The time will come when electronic media will also be well regulated by
self-censored guidelines and we shall retain a ‘completely free press’, the dream of our first Prime
Minister and that too without any danger involved.