Hiteshi Part 3

Dissertation submitted in partial fulfillment of the requirement for the award of the degree of
Master of Laws (LL.M)
CHAPTER 1
INTRODUCTION
School of Law, ITM University, Gwalior Page 1

“The media’s the most powerful entity on earth. They have the power to make the innocent
guilty and to make the guilty innocent, and that’s power. Because they control the minds of
the masses.”
– Malcom X
CHAPTER 1
INTRODUCTION
Media is regarded as one of the four pillars of democracy. Media plays a most important role in
moulding the opinion of the society and somewhere decides the case prima facie i.e. media trial.
Media is capable of changing the whole viewpoint through which people perceive various
events. In the last two decades, the media like cable television, local radio networks and the
internet has greatly enhanced the reach and impact of the mass media. The circulation of
newspapers and magazines in English as well as the various vernacular languages has also been
continuously growing in our country and it is available in each and every corner of the nation.
This ever-expanding readership and viewership coupled with the use of modern technologies for
newsgathering has given media organizations an unprecedented role in shaping popular opinions.
However, media freedom also entails a certain degree of responsibility.1
The media plays not only a very pivotal role, but enjoys tremendous influential powers, and
because of this it enjoys wide liberties. Today media is the one which enjoys wide powers and
liberties as compared to other agencies. However with the enjoyment of those wide powers, the
media has to bear heavy responsibilities. The task of the media becomes tougher to discharge
these heavy responsibilities as the media will have to face lots of challenges to maintain the
balance.
Today, the word media is used by the general public in all the dimensions of life whether it is
education, cinema, politics. It is not a surprise because no industry has grown, expanded and
1
Madhavi Goradia Diwan; The Facets of Media Law( Eastern Book Company 2013)

flourished as that of media in the present times. Under the Art 19 of Constitution of India the
freedom of speech and expression, the media has encroached upon all the dimensions of life of
an individual. This fact is not only applicable to the Indian soils, but is global. Not only this, the
media has become so powerful that it can make or break the government by influencing the
people. The public also heavily depends on the media to secure information. In this scenario. the
question of the accountability of powerful media arises.
1.1 RESPONSIBILITY OF THE MEDIA IN A DEMOCRATIC

SOCIETY
The media is having lots of task of shouldering a very heavy, important and crucial duty in the
present era. Following are the three dimensions of human public life :-
(i) to know,
(ii) to publicise, and
(iii) to expose, plays a vital role in the society.
• To know means to get information about various sources which is very important for
society to know the aspects. It is the media which imparts the information to the public,
which helps the public in knowing and becoming aware of many issues and aspects
prevalent in the society . and it is very important for the people to know all the laws and
news to become a responsible citizen. This is the very reason that the media is the
instrument of education.
• To publicise – means when a person or an institution or the government does any good
or bad activity, it is the media which publicises such activities and makes it known to the
entire society. This publicising a good activity, acts as a reward to the person doing such
an activity, and publicising negative activity leads to take precautions and the publicising
also gives an impetus to the others to engage themselves in similar activities.

• To expose –means the negative side of publicising. The media not only publicises the
good activities, but also exposes the negative acts in the form of corruption and illegal
activities of the public, as well as government officials like various scams.. The exposing
activity of the media acts as a check upon such activities.
1.2 TRIAL BY MEDIA
The expression “trial by media” itself is given by media only.. The word “trial” has not been
defined either by the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1973
which are the basic statues governing the trial of civil and criminal cases by the respective courts
in India. According to Black's Law Dictionary2 defines the word “trial” in the following way :-
“a formal judicial examination of evidence and determination of legal claims in an adversary
proceeding”. Sec. 2(7) of the Evidence Act, 1891 defines the word “trial” as under: “trial means
any hearing before the Court at which evidence is taken”. So basically “trial” ordinarily means
a proceeding before a Court of justice. And therefore trial by media is not at all possible.
But these words are very commonly used to denote an exercise that is done by the media
virtually taking up the role of a judicial forum for which such exercise has been earmarked by
the laws of the land.3
The Supreme Court of India had occasion to note the consequence of “trial by media” in the
following words :- “The impact of television and newspaper coverage on a person's reputation by
creating a widespread perception of guilt regardless of any verdict in a court of law. During high
publicity cases, the media are often accused of provoking an atmosphere of public hysteria akin
to a lynch mob which not only makes a fair trial impossible but means that regardless of the
result of the trial, in public perception the accused is already held guilty and would not be able to
live the rest of their life without intense public scrutiny”.4. In State of Maharashtra v. Rajendra
2
9th Edition
3
http://www.civilservicestimes.co.in/editorial-/current-national-issues/416-trial-by-media-looking-beyond-the-pale-
of-legality-.html (last visited on 4th March, 2019 at 4:05 )
4
R.K. Anand v. Delhi High Court (2009) 8 SCC 106

Jawanmal Gandhi, the Apex Court observed as follows: “A trial by press, electronic media or
public agitation is very contrary of the rule of law. It will lead to miscarriage of justice”.
For the TRP, the competition between various press channels and newspaper agencies the
passion of providing breaking news has touched new heights with the expansion of 24/7 news
reports and news papers which brings judiciary under the camera of media. Now a days, media
is playing role of judge and has begun conducting parallel trials publically which is outside the
jurisdiction of court .Trial by media works on the mantra ‘feed what the public is interested in’
and not ‘what is in public interest’. The phrase ‘trial-by media’ describes the impact of
television and newspaper on a person’s reputation by creating a widespread views and
perception of guilt with out of any verdict in a court of law and somewhere it weakens the
doctrine of separation of powers. And it also creates biasedness in the judge’s point of view. The
media sensationalises whole atmosphere in such a manner that it provokes atmosphere of public
distress which not only makes fair trial impossible but it also harm the reputations of the accused
to such degraded level that their rest of life comes under public- hatred and builds opinions for
judges also.
The strength and importance of media in a democracy is well recognized. According to Article
19(1) (a) of the Indian Constitution, which guarantee freedom of speech and expression and it
includes freedom of press also like it guarantees for citizen. Because the existence of a free,
independent and powerful media is very important of a democracy, especially of a highly mixed
and conflicts society like India where issues and conflicts lies at every second step. Media is not
only a medium to express one’s feelings, opinions and views, but it is also highly responsible
and instrumental for building opinions and views on various topics of regional, national and
international agenda. The main role of the media is its ability to mobilize the thinking process of
millions. The increased role of the media in today’s globalized and tech-savvy world was
correctly put in the words of Justice Learned Hand of the United States Supreme Court when he
said, “The hand that rules the press, the radio, the screen and the far spread magazine, rules
the country”5
5
Right to Privacy in Sting Operations of Media, http://odisha.gov.in/e magazine/Orissa
review/2013/may/engpdf/57-61.pdf last accessed on 05/03/2019 at 00:09

The Andhra Pradesh High Court in Labour Liberation Front v. State of Andhra Pradesh6 held
that the writ petition filed to force the authorities to investigate relied upon incorrect facts that
should have been verified. The court observed that “once an incident involving prominent
person or institution takes place, the media is swings into action, virtually leaving very little
for the prosecution or the Courts”.
The problematic part of media is that it covers the sensational crime and adduce evidences and
statements of witness at very early stage which is opposite to the proceeding of court and forgets
about the criminal justice system. And secondly most important point is media is not bound by
the traditional rule of evidence which regulate what material can, and cannot be used to convict
an accused. This also forgets the justice should be achieved in proper manner. In this process,
sometimes right to justice of victim is also compromised and it creates hindrance in fair trial. In
the cases of rape and sexual offences, history of accused also comes in front with the help of
media which leads to flaw in judicial proceeding because somehow it defames accused.
Secondly, the media treats seasoned criminal and the ordinary one, sometimes even the
innocents, alike without any reasonable discrimination. They are treated as a ‘television item’
keeping at point to destroy the reputation and image. Even if they are acquitted by the court on
the grounds of proof beyond reasonable doubt their previous image. Such kind of exposure
provided to them is likely to jeopardize all these cherished rights accompanying liberty.7
Therefore there should be balance between freedom of speech and expression and undue
influence in the name of freedom of speech which is permitted under Indian Constitution. It is to
be realized by media before publication that such should be done without unduly restricting the
rights of suspects/accused under Article 21 of the Constitution of India for a fair trial.
The practice which has become more of a daily occurrence now is that of media trials.
Something which was started to show to the public at large the truth about cases has now become
a practice interfering dangerously with the justice delivery system. And it highlights the
enormous need of what is called ‘responsible journalism’.8
6
2005 (1) ALT 740
7
Jagannadha Rao, Fair Trial and Free Press: Law’s Response to Trial by Media, p. 26
8
Right to Privacy in Sting Operations of Media http://odisha.gov.in/emagazine/Orissareview/2013/may/engpdf/57-
61.pdf last accessed on 06.03 .2019 at 00:09

The role of the media either to make known to the public any information, or to publicise or to
expose is done only with the help of technology. The advanced technology plays an important
role in enabling the media to perform its function. In absence of the advanced and developed
technology, the media would be unable to discharge its functions efficiently and effectively. So
one can easily say that; the advanced technology occupies a special and conspicuous place in
enabling the media in shouldering it’s responsibility.
1.3 THEORIES OF MEDIA INFLUENCE
Media plays a very important role in bringing about the stability in the society as well as
delivering knowledge and make it reach to the every possible corner. The impact of the media is
very powerful and is of great magnitude; because of which the media is the most powerful
influential instrument existing today. One wants to know as to what is the reason behind the
media’s influencing power. To put it in other words what are the reasons behind the media being
so influential. Except this, no other agency is able to leave the lasting impact upon the minds of
the people, as that of the media. Hence there is glance of theories of media is given to why the
media is so influential.
(A)LIMITED-EFFECTS THEORY
Limited effect theory hails somewhere in 1940 and 1950. According to this theory the people
who have adequate intelligence, enough experience, and do posses intellect will not be affected
by what the media states. On the other hand it is the people who do not possess the adequate
knowledge will tend to believe the media entirely. According to this theory the impact and the
influence of the media is limited only to the people who do not have adequate knowledge or
awareness. This theory places a severe limitation upon the media’s influencing powers. This
limitation can be justified to some extent on the basis of the time in which it was formulated.
Regarding this theory one fact has be taken into consideration is that the theory is propounded
somewhere in 1940 or 1950, and during that time the media was not as developed as it is
developed and is still developing today. The media at that time was limited to newspapers,
magazines, etc. Television and radio were not in full swing, as they are today. Nowadays the
media not only conducts the debates but also frames and limits the issues of the debates which
have lasting impact on the conclusions that people may draw. This aspect of conducting the
debate; framing and limiting the scope of the issues was totally lacking in the era when the
theory was propounded.
(B) CLASS-DOMINANT THEORY
The class dominant theory states that few influential people control the media. The bureaucrats
and other rich and powerful people control the media corporations. The bureaucrats decide what
shall be sent through air waves, or through internet, or through newspapers. They are also able to
restrict the flow of information which they do not want to project. According to this theory the
influential aspect of the media is totally at the disposal of the dominant class of the society; and
because the class being dominant, the news they project through media is also more influential.
(C) CULTURALIST THEORY
According to this theory the media is not capable to influence the masses at all. The people who
listen to the news broadcasted by the media make out their own meaning and the value of the
news according to their own experience and knowledge. Further when the media projects any
news, how the news is taken by the people depends upon, the personal and social factors such as
their age group, their financial limitation, their region, their religion, their social strata etc. So
this theory states the media projects the news and each person is influenced according to the
above mentioned personal and social factors. However, sometimes the news is so catching or
appealing that it influences the minds of people irrespective of class, caste, colour, religion and
creed. For example in Nirbhaya’s case the news was so appealing that it touched the hearts of the
people from every corner of India irrespective of any class, caste, colour, religion and creed. The
news was also understood in the same sense by these people, in the same sense in which it was
projected.

CHAPTER 2
HISTORICAL PERSPECTIVE

CHAPTER 2
HISTORICAL PERSPECTIVE
2.1 HISTORY OF MEDIA

(a) EXISTENCE OF THE MEDIA IN PRE BRITISH ERA
In this era, media and press was having very limited role to form. As they were restricted to
gathered the information for the king and the public received very limited information.
(b) THE STATUS OF MEDIA IN BRITISH ERA
The role of the press changed and became wider after the East India Company set its foot on the
Indian soil. The rulers were the Britishers and the ruled ones were the Indians. The Indians being
the ruled ones used the press as an instrument to incite and instigate the people to join the
freedom struggle. A remarkable fact to be noted here is that the very fast time press was used to
impart and circulate the news. So also the bad side of the pre –censorship was started by the
Britishers to curtail the freedom of press. The Britishers wanted to crush the attempts of revolts
of independence and they used the weapon of censorship to curtail the independence of the press.
The Britishers knew that the press was capable of uprooting their rule in India and hence a
number of regulations and statutory enactments were passed to curtail the press like the Indian
Mirror, Samachar Darpan, Kesari.
Even the fathers of the Indian Constitution were aware of the struggles of the press to gain
freedom and were very sensitive to the hurdles in the form of censorship which were faced by
the press and hence decided to give a hard footing to the freedom of speech and expression. The
Constitution confers the right of freedom of speech and expression in the Article 19 (1) (a) .The
freedom of press is given in Article 19 (1)(a) of the Constitution. Hence the media enjoy the
fundamental right of speech and expression.

2.2 ORIGIN OF THE WORD ‘TRIAL BY MEDIA’
Trial by media is very popular phrase in the late 20th century and early 21st century to describe
the impact of television and newspaper coverage on a person's reputation by creating a general
perception of guilt or innocence before, or after, a verdict in a court of law. Its first inception was
the phrase Trial by Television which found light in the response to the 3rd February, 1967
television broadcast of The Frost Programme host David Frost. The argument and Frost‘s
personal adversarial line of questioning of insurance fraudster Emil Savundra led to concern
from ITV executives that it might affect Savundra‘s right to a fair trial. During high-publicity court
cases, the media are often accused of provoking an atmosphere of public panic akin to a lynch mob
which not only makes a fair trial nearly impossible but means that in any case of the result of the
trial the accused will not be able to live the rest of their life without intense public scrutiny. The
counter-argument is that the attitude exists independently of the media which merely voices the opinions
which the public already has. Although a recently coined phrase, the idea that popular media can
have a strong influence on the legal process goes back certainly to the introduction of the
printing press and almost certainly much further. This is not including the use of a state
controlled press to criminalize political opponents, but in its commonly understood meaning
covers all occasions where the reputation of a person has been radically affected by apparently
non-political publications. In India, the media have played a past role in providing information to
the people about social and economic evils. The media have informed the public about the
remarkable poverty in the country, the suicide of farmers in various States, the so called honour
killing in many places by Khap Panchayats, corruption and so on. However, the media have a
great responsibility also to see that the news they present is accurate and serve the interest of the
people. If the media express false news that may harm the reputation of a person or a section of society, it may do
great damage since reputation of a valuable asset for a person. Even if the media subsequently
correct a statement, the damage done by it may be irreversible. Hence, the media should take
care and carefully investigate any news item before reporting it. .9
9
Dr. S Krishnan, Trial by Media : Concept of phenomenon , ISBN – 2320-540 , IJJAR ,March 2018.

2.2.1 HISTORICAL BACKGROUND OF MEDIA TRIAL
Trial by media is a very popular phrase in the late 20th century and early 21st century to describe
the impact of television and newspaper coverage on a person’s reputation by creating a general
opinion of guilt or innocence before, or after, a decision in a court of law. In the United
Kingdom, there is a fiery debate between those who support a free press which is largely
uncensored and those who place a higher priority on an individual’s right to privacy and right to
a fair trial. During high publicity court cases, the media are often accused of provoking an
atmosphere of public panic akin to a lynch mob which not only makes a fair trial nearly
impossible but means that regardless of the result of the trial the accused will not be able to live
the rest of their life without forceful public scrutiny. The counter-argument is that people’s
mentality exists independently of the media which merely voices the opinions which the public
already has.10
There is recently coined phrase, the idea that popular media can have a strong influence on the
legal process goes back certainly to the beginning of the printing press and probably much
further. This doesn’t including the use of a state controlled press to criminalize political
opponents, but in its commonly understood meaning covers all occasions where the reputation of
a person has been radically affected by apparently non-political publications.
In India the media has come in form in its role in the trial of Jessica Lal murder case. The
concept of media trial is not a new concept. It was there somehow but not as a problem . The role
of media was debated in the Priyadarshini Mattoo case and likewise many other high profile
cases. There have been various instances in which media has been accused of conducting the trial
of the accused and passing the ‘judgement’ even before the court passes its judgment. Before
checking into the issue of effect of media trial it would be relevant to first try to define what
actually the ‘trial by media’ means. Trial is a word which is associated with the process of
10
“Trail by Media” http://en.wikipedia.org/wiki/Trial_by_media accessed on 8TH March 2019 at 2:30 pm.

justice. It is the necessary component on any judicial system that the accused should receive a
fair trial.11
2.3 INTERNATIONAL PERSPECTIVE
The most important functions of an independent judiciary is to ensure the right to a fair trial. This
obligation is given in the 1985 UN Basic Principles on the Independence of the Judiciary, at
Article 6, which states the judiciary is entitled and required ―to ensure that judicial proceedings
are conducted fairly and that the rights of the parties are respected.12
The principles given in this Article are also stated in similar language in the International Covenant on Civil
and Political Rights (ICCPR)13, which provides that―Everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal‖ in the determination of any
criminal charge or in a suit at law.14
Article 19 of ICCPR15 confirms that freedom of expression is also a fundamental part of a
democratic society. It describes that freedom of expression includes the freedom of the press and
states that - Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his choice. It
seems clear that this right as expressed would include an individual‘s right, including that of a
media employee, to impart information to the public by writing, broadcasting and by television.
The media has been called the catalyst of justice, the watchdog of society; the judiciary, the
dispenser of justice and the catalyst for social reforms. Thus, both are essential for the progress
of a civil society. In 1807, in the United States of America with the case of Aron Burr United
States v. Burr16 subsequently, it is prevalent in England; it has finally reached the shores of India.
The Indian judiciary finds itself at a cross road to balance the competing fundamental rights of
11
“Trial By Media: A Legal Dilemma Resolved With Reference To Jessica Lal”
http://www.legalserviceindia.com/article/l237-Trial-By-Media.html last accessed on 10.03.2019 at 2:30 pm.
12
UN Basic Principles on the Independence of the Judiciary, G.A. Res.146, U.N. GAOR, 40th Sess.(1985) art.6
Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI) of 16
December 1966. Entered into force on 23 March 1976 in accordance with article 49
14
Art. 14(1), ICCPR
15
Article 10 of the European Convention on Human Rights (ECHR)
16
Liversidge vs Anderson [1942] AC 206

the media and of the accused. The United States of America, England and India are the
torchbearers of democracy. They are progenies of the common law. Thus they share a common
political ideology, a common legal heritage. Our Constitutions, whether written or unwritten,
proclaim, protect and promote the same set of fundamental rights. To ensure the right of fair trial
is one of the most important functions of an independent judiciary. This obligation is given in
the 1985 UN Basic Principles on the Independence of the Judiciary, in Article 6, which states the
judiciary is entitled and required - to ensure that judicial proceedings are conducted fairly and
that the rights of the parties are respected.17 The principles given in this Article are also stated in
similar language as in the International Covenant on Civil and Political Rights (ICCPR)18, which
provides that ―Everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal‖ in the determination of any criminal charge or in a suit at
law19. The ICCPR determines that the right to a public trial is not absolute and that certain
limitations on public access are necessary. In 1994, a group of 39 distinguished legal experts and
media representatives met and lead to the development of the Madrid Principles20. The objectives
of the meeting were, to examine the relationship between the media and judicial independence,
to examines principles to help the media and the judiciary and develop a relationship that serves
both freedom of the expression and the judicial independence.
Section 10 of the Madrid Principles frames permissible limits on the freedom of expression:
Laws may restrict the Basic Principle [of a free press] in relation to criminal proceedings in the
interest of the administration of justice to the extent necessary of a democratic society
• for the prevention of serious prejudice to a defendant;

• for the prevention of serious harm to or improper pressure being placed upon a witness, a
member of a jury, or a victim.
17
UN Basic Principles on the Independence of the Judiciary, G.A. Res.146, U.N. GAOR, 40th Sess.(1985)art.6.
18
Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI) of
16 December 1966. Entered into force on 23 March 1976 in accordance with article 49.
19
Supra 6.
20
The Madrid Principles on the Relationship between the Media and Judicial Independence, established by a group
convened by the International Commission of Jurists, its Centre for the Independence of Judges and Lawyers, and
the Spanish Committee of UNICEF

2.3.1 POSITION IN USA

In United States of America , the right to free press is enshrined from the first amendment which
states that the Congress shall make no law in respect of an establishment of religion, or banning
the free exercise thereof or abridging the freedom of speech, or of the press. This amendment has
given a free hand to the press.21 Because of this amendment, the hands of the government are
tied to a great extent. It is because of this amendment that the press gets a considerable freedom
to publish a matter which is sub judice. Such a publication in respect of a matter which is sub
judice, endagers a serious threat to the right of fair trial of the accused.
The American Constitution details freedom on the press even to publicize the matter that is
pending in court of law.22 Not only this, but the government is refrained from penalizing the
newspapers which publish such matter. The impact of this freedom was seen in the popular case
Sheppard vs Maxwells23. In this case wife of a doctor was murdered. The doctor was charged
with the offence of murder. The prosecution did not have proper and direct evidences. When the
accused was on bail, The Cleveland press, one of the largest newspapers, of Cleveland, in its
headlines stated, ‘Bring him in’. It was appeared that whether the accused was guilty or innocent,
was not the question of the press, they just wanted the accused behind the bars. It was not only
the Cleveland Press but the entire media was behind the accused. This case is popularly termed
as a ‘Roman Holiday’ for the press. According to Paul Holmes, the Sheppard murder trial was
“the gaudiest, most publicized, and the most controversial murder trial in the United States in
modern times.” Sheppard was convicted. The Supreme Court on 6thJune 1966 stated that,
Sheppard was denied of a fair trial which was his fundamental right.
This trial was one of the earliest trials that was followed by the American citizens, not only
through the newspapers but also television set which were rapidly developing at that time. The
Sheppard media trial poses a number of questions. Is it ethical for the media to conduct a media
trial just to give the public the juicy and perfect entertainment of the analysis of the case; which
21
www.law.cornell.edu/constitution.-first-amendment accessed on 10.03.2019 at 45:30 pm.
22
The Fourteenth Amendment. Id. Amend XIV
23
384 U.S. 333, 349-50 (1966)

hampers the merits of the case or should the media trial be abridged, and allow the judiciary to
function without any interference from the media, so that the justice can be met with.
Later in the year 1969 the new "imminent lawless action" test in the Brandenburg v. Ohio 24was
happened. The leader of a Ku Klux Klan group was convicted for the crimes of sabotage,
violence and using illegal means to promote terrorism. Under the cover of bringing about the
industrial or political reforms the appellant was engaged in holding unlawful assemblies and was
promoting Criminal Syndicalism. An appeal was filed in the Supreme Court; the Supreme Court
in this case parted with the doctrine of ‘Clear and Present Danger’ and evolved the doctrine of
"imminent lawless action", and there was acquittal of accused.
The doctrine of "imminent lawless action" is evolved by the Supreme Court of United States to
draw the limits of free speech. This doctrine gives more scope to the right of free speech. It can
only be restricted on two grounds
(i) Speech that invites imminent lawless action

(ii) Speech that is likely to produce such action.
Therefore , the doctrine of "imminent lawless action" is only attracted if the speech is an
immediate threat to any lawless action. For example the speech “ all the politicians to be put to
death” may not be punishable as it does not cause any immediate or imminent danger and hence
it is protected by the free speech. However the speech “here is Mr. X, let’s kill him” will not be
protected by free speech, because it is causing immediate or imminent danger of lawless activity.
24
395 U.S.444(1969)

2.3.2 POSITION IN RUSSIA
In the Nineties, the Russian media system went underneath major transformations following the
downfall of the Union of Soviet Socialist Republics. The media were introduced to new realities:
the market economy; the tip of philosophical management of the Communist Party; political
pluralism; and therefore the development of recent public establishments.
Fascinated by the ostensibly ideal Western model of the press, Russian media borrowed most of
its characteristics: freedom of speech; personal possession of media outlets; similar legislation;
distance from the state; public influence; and a watchdog role.
After the new law on mass media was adopted in 1991, therefore effectively establishing
guarantees for independence of the media and freedom of speech, the primary stage of
privatization of the media market followed. within the early Nineties, as Russia was surfing
associate degree acute monetary crisis, state funding of the media was cut manifold, which, in
turn, semiconductor diode to forceful cuts in circulation numbers and employees. As some
students note, a full generation of Soviet journalists were forced to alter profession. At a similar
time, varied personal media corporations were created driven by the forces of the free market;
many elderly media retailers were privatized, reformatted and repurposed.
As Russia non inheritable relative political and economic stability by the mid-1990s, the second
stage of the media privatization began underneath President Boris Yeltsin's "polycentric"
political model. This model was supported a balance of varied power centers¬ — oligarchs,
industrial-financial teams, and regional state administrations.
But the media might give even additional leverage for political functions. Election campaigns —
national, regional and native — would be not possible to win while not the support of the press.
The struggle for political power culminated within the 1996 presidential elections, within which
President Yeltsin visited the runoff with the leader of the Russian Communist Party, Gennady
Zyuganov. during this historical standoff, Yeltsin managed to win by atiny low margin.
As Russia acquired relative political and economic stability by the mid-1990s, the second stage
of the media privatization began under President Boris Yeltsin's "polycentric" political model.

This model was based on a balance of various power centers — oligarchs, industrial-financial
groups, and regional state administrations.25
But the media may offer even a lot of leverage for political functions. Election campaigns —
national, regional and native - would be not possible to win while not the support of the press.
President Yeltsin visited the runoff with the leader of the Russian party, Gennady Zyuganov.
during this historical standoff, Yeltsin managed to win by alittle margin.
But the media may offer even a lot of leverage for political functions. Election campaigns —
national, regional and native — would be not possible to win while not the support of the press.
President Yeltsin visited the runoff with the leader of the Russian party, Gennady Zyuganov.
during this historical standoff, Yeltsin managed to win by alittle margin.
Much of the credit for this conclusion was attributed to new liberal Russian media shops that
actively supported Yeltsin, despite his health issues and a much-publicized alcoholism.
VERTICAL POWER
The third stage of the evolution of the media system in Russia started with Vladimir Putin’s rise
to power in 2000. The new Russian president re modeled the country’s form of government from
"polycentric" to "monocentric" beneath the stability and security — the problems that brought
him substantial public support.
By building the alleged "power vertical," eliminated all different political forces and established
management over the govt., parliament, judiciary, and media system to secure stability of the
new-regime.26
In early 2000s, numerous state agencies took money or {managerial social management} control
of seventieth of electronic media shops, regional press, and the national press. As a result,
Russian media continued to be used as tools for political management. However, currently these
25
https://www.fairobserver.com/region/europe/brief-history-russian-media-69813/ visited on 23/03/2019 at
10:45pm.
26
Treisman, Daniel (2011). The Return: Russia's Journey from Gorbachev to Medvedev. Free Press. ISBN 978-1-
4165-6071-5

"tools" were not distributed among competitive political parties and businesses, however
remained targetted within the hands of a closed political circle that swore loyalty to President
solon.
Overall, throughout this era the political discourse in Russia deteriorated, and also the oral
presentation within the media was either substituted by imitative forms or squeezed out from
common media shops to publications with smaller audience or the net.
The state has learned to utilize a large choice of political, economic and legal tools to place
pressure on and intimidate the media. a number of them are providing personal privileges or
access to closed sources of information; advantageous treatment surely media shops and
journalists; state possession in media shops or establishing indirect management through
possession by non-public corporations whose house owners are loyal to the state; prohibition
access to official events and press conferences; refusal to supply requested information; delivery
lawsuits against media shops and journalists on the grounds of defamation and libel; penalizing
the media and suspending licenses; and victimization legal sanctions like tax or customs
legislation, fireplace safety and sanitary regulation.
The application of those techniques remodeled the Russian media system into a restricted
unvaried field, wherever solely collectivized media shops were allowed to control on the national
scale.
The issue of freedom of the press in Russia involves each the power of administrators of mass
media shops to hold out freelance policies and also the ability of journalists to access sources of
data and to figure while not outside pressure.
Media of Russia embrace T.V. and radio channels, periodicals, and net media, that in keeping
with the laws of the Russian Federation could also be either state or material possession.
Various aspects of the up to date press freedom scenario ar criticized by multiple international
organizations. whereas abundant attention is paid to political influences, media skilled William
Dunkerley, a senior fellow at yank University in Moscow, argues that the freedom of press lies in
sectoral economic dysfunction.

The Russian constitution provides for freedom of speech and press; but, government application
of law, government officials regulation, and politically driven criminal investigations have
forced the press to exercise self-censorship constrictive its coverage of bound arguable problems,
leading to infringements of those rights. in keeping with Human Rights Watch, the Russian
government exerts management over civil society through selective implementation of the law,
restriction and censure.
2.4 POSITION OF MEDIA TRIAL IN INDIA
In India the freedom of speech and expression includes the freedom of press. As it has been
stated before, the freedom of press is a fundamental right, which is restricted by certain
limitations. The authority of the media to conduct a trial falls within the ambit of freedom of
speech and expression. So in India the concept of media trial is prevalent and is gaining
importance and popularity. The concept of media trial in India is old and was established even
before the year, 1961 because in the same year the Supreme Court has commented on the
concept of media trial in Saibal Kumar v. B.K. Sen27. The court had very clearly said that it
would amount to mischief if a newspaper as to conduct an independent investigation of a crime.
The consequences of such a media trial would be serious and affect the whole system of justice
as it would tend to cause a prejudice to the parties involved in the case. The court has further
stated that the media trial would cause an interference or hindrance in the course of justice.
The point to be noted here is that the reflections of the court regarding the media trial describe
the fact that the concept of media trial prevailed even then. In those days, the media trial was
conducted mainly through press, as the other channels of media such as television and other
electronic modes were not in trend for the domestic use. The media trial prevailed in a indistinct
and not in a very systematic manner.
There is one thing that is to be noted that the media trial should not be confused with the media
trial. The media activism means where the media points out the injustice in the society and
27
1961 AIR 633

ensures that appropriate proceedings have been initiated. There are many cases that will ensure
that how media has played a crucial role in dispensing the justice. These cases also show that,
had the media been inactive then, how the perpetrators of crime would escaped free.

CHAPTER 3
CONSTITUTIONALITY OF MEDIA
TRIAL

CHAPTER 3
CONSTITUTIONALITY OF MEDIA TRIALS
3.1 FREEDOM OF PRESS
Article 19 of the International Covenant on Civil and Political Rights, 1966412 and Article 19(1)
(a) of the Constitution of India embodies the right to freedom of speech. It is “an essential
prerequisite of a democratic form of government” and is “the mother of all other liberties in a
democratic society”28.Nonetheless, this freedom comes with a point that the exercise of this right
comes with “special duties and responsibilities” and is subject to “the rights or reputations of
others”. The right under Art 19(1) (a) includes the right to information and the right to publicize
through all types of media, whether print, electronic or audiovisual means.29 It was stated in
Hamdard Dawakhana v. Union of India30, that the right includes the right to acquire and impart
ideas and information about matters of common interest. The Supreme Court has stated that trial
by press as the anti-thesis of rule of law as they can lead to miscarriage of justice and, a Judge
has to guard himself against such pressure.31 The Supreme Court observed that “No
circumstance should arise which reduce the emphasis on the essentials of a fair trial and the
basic principles of jurisprudence including the presumption of innocence of the accused
unless found guilty at the end of the trial”.
According Article 19 (1) of the constitution is freedom of speech and expression i.e. directly
freedom of press not included. In Ramesh Thapper Vs. State of Madras,32 held that Freedom of
Speech and of the Press laid down the foundation of all democratic organization, for without
28
(1996) 6 SCC 466
29
Secretary, Ministry of Information & Broadcast ing v. Cricket Association of West Bengal, 1995(2) SCC 161
30
Hamdard Dawakhana v. Union of India 1960 (2) SCR 671
31
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386;
32
AIR 1950 SC124

free political discussion no public education, so essential for the proper functioning of the
process of popular Government, is possible.
Indian Express Newspapers Vs. Union of India33 In this case Court speaking about the need of
freedom of press: The express freedom of press‖ has not been used in Article 19 but it is given
within the ambit of Article 19(1)(a). This expression means freedom from interference from
authority which will have the effect of interference with the content and circulation of
newspapers. There cannot be any interference with that freedom in the name of public interest.
The purpose of the press is to advance the public interest by publishing facts and opinions
without which a democratic people cannot make responsible judgments. Freedom of press is the
heart of social an political inter-course. It is primary duty of the courts to uphold the freedom of
press and invalidate all the laws or administrative actions which interfere with it contrary to the
constitutional mandate.
In R. Rajagopal Vs. State of Tamil Nadu34 the Supreme Court held that freedom of press
extends to engaging in uninhabited debate about the involvement of public figures in public
issues and events. But, as their private life, a proper balancing of freedom of the press as well as
right of privacy and maintained defamation has to be performed in terms of the democratic way
of life is given in the Constitution. After of all this observation it is crystal clear that freedom of
press flow from freedom of speech and enjoined special privileges as compared to any other
citizen and this privilege no one can claim.
3.1.1 OBSCENITY
7
Article 19(1) (a) of the Constitution of India protects the freedom of speech. However, this
right is not absolute and is subject to “reasonable restrictions” under Article 19 (2)35 of the
Constitution of India. These reasonable restrictions have been included in the interest of
33
(1985) 1 SCC 641.
34
1995 AIR 264
35
Art 19(2),The Constitution of India, 1950. (Nothing in sub clause (a) of clause (1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.)

“decency or morality” among other things. Free speech is limited by penalise obscene
publications.
The charge of obscenity is determined by Section 292 of the Indian Penal Code (IPC), 1860. 36
Since the term “obscene” has not been defined in the IPC, it is the responsibility of the Indian
courts to ascertain whether a publication is obscene or not. In order to do so, the courts adopted
the test laid down in the case of R v. Hicklin37 which is also known as the Hicklin rule, it states
that a matter or publication is said to be obscene if it corrupts the mind of those who are open to
such immoral influences.
Owing to its over comprehensiveness and its tendency to penalize a person on the basis of other
people’s reactions has been severely criticized. Lack of proper guidelines makes it the sole
discretion of the judge to ascertain whether a publication is obscene or not.38
Though not expressly overruled, the Hicklin test has been reinterpreted over time, and currently,
a higher standard is required to pronounce a publication as obscene. The Supreme Court in the
case of Doordarshan laid down the following guidelines:
• whether “the average person, applying contemporary community standards” would find
that the work, taken as a whole, appeals to the prurient interest;
• whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law;
• whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
The publication must be judged as a whole and the offending passages should also separately be
examined so as to judge whether the passages are as grossly obscene as are likely to deprave and
corrupt.
36
Section 292, The Indian Penal Code, 1860. (For the purposes of sub-section (2), a book, pamphlet, paper, writing,
drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or
appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one
of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to
all relevant circumstances, to read, see or hear the matter contained or embodied in it.)
37
[1868] LR 39 QB 360. (Cockburn, CJ stated, “I think the test of obscenity is this, whether the tendency of the
matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and
into whose hands a publication of this sort may fall…it is quite certain that it would suggest to the minds of the
young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous
character.”)
38
Director General of Doordarshan and Others v. Anand Patwardhan and Another, JT 2006 (8) SC 255

3.1.2 SEDITION AND CENSORSHIP
Sedition are offences that are committed against the State and which risk disrupting its continued
existence. These provisions have been brought into force to maintain law and order within the
society and to ensure the security of the state. Public order may be disrupted through books,
films, political speeches or articles by journalist. In order to counter this it has perceived threat
State imposes criminal sanctions and different forms of censorship.
The Indian Penal Code provides with charging sections to deal with threats to the security of the
State. One of the most important sections in this regards is Section 124A,39 which provides that:
“Whoever by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards the government established by law in India, shall be punished with
imprisonment for life, to which fine may be added, or with imprisonment which may extend to
three years, to which fine may be added, or with fine.”
Additionally, section 153A40 deals with the promotion of enmity between different groups within
society, section 153B41 focuses on assertions prejudicial to national integration, and section
295A42 makes it an offence to deliberately outrage religious groups. Furthermore, section 95 43 of
the Code of Criminal Procedure enables the state to forfeit any document or publication which is
likely to be punishable under any of the aforementioned sections.
Therefore sedition laws are necessary to protect the law and order situation in a State and to
ensure that rights of citizens are secured, they also limit the fundamental rights and benefits that
every citizen must enjoy.44
39
Section 124A, The Indian Penal Code, 1860.
40
Section 153A, The Indian Penal Code, 1860. (Promoting enmity between different groups on grounds of religion,
race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of
41
Section 153B, The Indian Penal Code, 1860. (Imputations, assertions prejudicial to national integration.)
42
Section 295A, The Indian Penal Code, 1860. (Deliberate and malicious acts, intended to outrage religious feelings
of any class by insulting its religion or religious beliefs.)
43
Section 95, The Code of Criminal Procedure, 1973. (Power to declare certain publications forfeited and to issue
search-warrants for the same.)
44
Kedar Nath Singh v. the State of Bihar, [1962] AIR 955

3.1.3 DISCLOSURE OF SOURCES
Confidential sources are an important part of a journalist’s life. It is through these sources that
journalists gather a detailed amount of accurate information and bring that information into the
public domain. In fact had it not been for these sources, a fair part of such information may never
see the light of day. More often than not this crucial piece of information leads to a more
effective media which is in a position to demand greater accountability from government as well
as private institutions.
Though, these sources form a crucial part of the Indian media fraternity, thus far there is no legal
or equitable protection available to them in India. Consequently, this lack of protection demands
the media’s ability to inform the public of the misuse of power thereby weakening the
democratic process.
At present, neither is there a statute which explicitly protects the right of journalists to refuse
disclosure of confidential sources nor is there any provision that grants the courts the power to
require disclosure of such sources. But there are parts of enactments which can be used as aides
when seeking protection. Most significant of these enactments is section 15 of the Press Council
Act, 197845, section 14 of the now repealed Prevention of Terrorism Act, 2002 and various parts
of the Evidence Act, 1972.
3.1.4 PARLIAMENTARY PRIVILEGE
Parliamentary privilege is a legal immunity that lied upon Members of the Parliament and state
legislatures. As a result of these powers and protections, legislators are granted protection against
civil or criminal liability for any action or statement made in the furtherance of their legislative
duties. The Indian Constitution grants this protection by virtue of Article 10546 (for the national
45
Section 15 (2), Press Council Act, 1978. (Nothing in subsection (1) shall be deemed to compel any newspaper,
news agency, editor or journalist to disclose the source of any news or information published by that newspaper or
received or reported by that news agency, editor or journalists.)
46
Art 105, The Constitution of India,1950 (Powers, privileges, etc of the Houses of Parliament and of the members
and committees thereof.)

Parliament) and Article 19447 (for state legislatures). These laws were introduced with an aim to
further democracy by protecting legislatures from outside influence. However, in the modern day
scenario these privileges serve to endanger democracy rather than promote it, because it protects
the legislature from much needed public supervision.
3.1.5 MISUSE OF FREEDOM OF SPEECH
Misuse of Freedom of Speech is another serious and criticisable issue at hand in the
participation of the media in the coverage of sensational crimes, where they begin to cite
the so called “evidences” in the very beginning, even before the person who is to adjudicate
takes cognizance of the offence. This is having bad impact on criminal justice system because
the media is not well verse and not bound by the traditional rules of citing evidences that tell
about what is and what is not substantial as an evidence to convict an accused. Therefore, more
often than not, the Right to Justice is taken away from the victim. This kind of compromise of
the Right to Justice can be seen when the media treats an accused or ordinary criminal
equal to a seasoned criminal , without making any plausible distinction with adequate
investigation into the matter. They are treated as ‘Breaking News Items’ keeping their
reputation and right to live with dignity at risk. The electronic media which has reached every
home now puts the accused on trial and convicts them without giving a chance to other
side resulting in to complete destruction of character of the individual and reputation of
his family, and there is no way to retrieve the same even after acquittal from court as it would
not be given the same or any publicity by the media. This means that even if they are acquitted
by the court, they remain guilty in the eyes of the public and find it difficult to revive their initial
image. It is to be pointed out that media trial has moved to media verdict, which is beyond doubt
the misuse of the freedom and contravention of their legal limits. Therefore, the courts
must take actions against such activities by passing restrain orders against the media. It is
highlighted in the recent case where the allegations of misconduct were labelled against
two former Supreme Court judges. One against Justice A.K. Ganguly where media had a
47
Art 194, The Constitution of India,1950 (Powers, privileges, etc of the Houses of Legislatures and of the members
and committees thereof.)

field day and worked overtime to destroy his reputation and made him resign from all the posts
which he was holding and disgraced him before anything could be proved against him.
Another case was that of Justice Swantantra Kumar facing the similar allegation, but only
so, in this case he continued to head Green Tribunal, while the matter was still under
investigation. The difference between the two cases was that, the first thing Justice
Swantratra Kumar did was to get a stay against media trial from Delhi High Court. It is fair to
say that media trial is not only illegal but immoral as well. The media trial has direct impact on
the functioning of investigating agency as it works under pressure to arrest the accused without
proper evidence and lay the charge sheet sometimes with inadequate evidences to escape
the prying media pressure. Hence, the quality of investigation is directly affected and it has also
got direct impact on functioning of judiciary as well especially in early stages like grant of bail.
In the present era, with the introduction of the concept of Target Rating Points or TRP,
journalism works under great pressure. TRP ratings are the gross rating points delivered by a
media source to a specific target audience. Prior to this, the journalist had worked with integrity,
braveness and free from undue bias or preconceived opinions. They did not do the job of
labelling people guilty without making a serious and bona fide attempt to study the
charges and investigating them, and come to autonomous conclusions. That is the reason people
trusted them. But lately due to this nerve-racking pressure to increase the TRP scales, electronic
media is witnessing tough competition. In order to stay at the top of their business, the
electronic media had incarnated into an aggressive form with a large multitude of camera flashes
and madness of putting questions around the accused that even the police is unable to
take them from their vehicles to the court rooms and vice-versa. In order to remove this
form of aggression, the Press Council of India issues guidelines and norms for journalistic
conduct, and has succeeded in taking action in certain cases. Besides this, the Press
Council of India even publishes apologies in certain cases.

3.2 IMMUNITY UNDER CONTEMPT OF COURT ACT, 1971
Under the Contempt of Court Act, 1971, pre-trial publications are covered against contempt
proceedings. Any publication which interferes with or obstructs or tends to obstruct, the course
of justice in connection with any civil or criminal proceeding, which is actually ‘pending’, only
then it constitutes contempt of court under the Act. Under Section 3(2), sub clause (b) of clause
(a) of Explanation, ‘pending’ has been defined as “In the case of a criminal proceeding, under
the Code of Criminal Procedure, 1898 (5 of 1898) or any other law –
(i) where it relates to the commission of an offence, when the charge sheet or challan is filed; or
when the court issues summons or warrant, as the case may be, against the accused.”
Certain acts, like publications in the media at the pre-trial stage, can affect the rights of the
accused for a fair trial. Such publications may relate to previous convictions of the accused, or
about his general character or about his moral character or about his alleged confessions to the
police. Under the providing framework of the Contempt of Court Act, 1971, media reportage, as
seen during the Aarushi Talwar case, where the press, had literally gone to the undermine the
courtrooms and public speculating and pointing fingers even before any arrests were made, is
granted immunity despite the grave treat such publications pose to the administration of justice.
Such publications may go unchecked if there is no legislative intervention, by way of redefining
the word ‘pending’ to expand to include ‘from the time the arrest is made’ in the Contempt of
Court Act, 1971, or judicial control through suppress orders as employed in United States of
America. Due to such lacunas, the press has a free hand in printing colorful stories without any
fear of consequences. Like a parasite, it hosts itself on the atrocity of the crime and public
outrage devoid of any accountability .Basically, Trial by Media is Contempt of Court and it
needs to be punished. And the Contempt of Court Act defines contempt by identifying it as civil
and criminal act. Criminal contempt has further been divided into three types:
1. Scandalizing
2. Prejudicing trial, and
3. Hindering the administration of justice.

3.2.1 PREJUDICE OR INTERFERENCE WITH THE JUDICIAL PROCESS
This provision derives its origin to the principle of natural justice; ‘Every accused has a right to
a fair trial’ joined with the principle that ‘Justice may not only be done it must also seen to be
done’. There are various ways in which attempts are made to prejudice (sub-judice proceedings)
trial. If such cases are allowed to be successful then they will be that the persons will be
convicted of offences which they have not committed. Contempt of court has been introduced in
order to prevent such unjust and unfair trials. No publication, which is calculated to poison the
minds of jurors, intimidate witnesses or parties or to create an atmosphere in which the
administration of justice would be difficult or impossible, amounts to contempt. By observing
the pending cases or abuse of party may amount to contempt only when a case is triable by a
judge. No journalists or editor has the right to assume the role of an investigator to try to
prejudice the court against any person.
3.3 DEFAMATION
The right to freedom of speech and expression does not include in any way to cause harm to the
reputation to a person. Causing harm to any person’s reputation is called as defamation and it is
having severe limitation on the right of freedom of speech and expression. No person can by
expression signs or gestures can expose a man to hatred, deride or contempt. Defamation is
considered to be a very serious act and hence is prohibited by the civil law of torts, it is also a
criminal offence under section 499 of the Indian Penal Code and defamation is also covered
within the reasonable restrictions of Article 19(2) of the Constitution.
Defamation is the publication of words or speaking anything which may have the effect of
lowering the image of a person in the eyes of others or to expose him or her to hatred, contempt
or ridicule. The basic aim of this law is to protect the reputation of individuals or groups as
opposed to public entities. In India defamation exists as a civil action as well as a criminal
offence.

In the case of R. Rajagopal and Another v. State of Tamil Nadu and Others,48 the apex court
laid down six principles that are applicable to a civil claim of defamation. These principles strive
to strike a balance between the right to freedom of expression enshrined in Article 19(1) (a) of
the Constitution and an individual’s right to protection from defamatory statements and the right
to privacy. Though right to privacy has not been specifically enunciated anywhere in the Indian
Constitution , the courts in India have time and again agreed that it falls within the ambit of
Article 21.49 The Supreme Court in the case of Rajagopal explicitly stated that, though
information regarding the private life of an individual cannot be published, this rule is not as
stringent when it comes to lives of public officials. This protection allows a journalist to research
and publish information which turns out to be false only if it has been pursued with bona fide
intentions.
Section 49950 of the Indian Penal Code constitutes defamation as a criminal offence. This section
defined criminal defamation and also provides exceptions. One of the most important things to
be apprised of when looking at defamation as a criminal law is that truth is not a valid defense.
The only defense available is that in addition to being true the statement or publication was made
in the interest of public at large.
Another key difference between defamation as a criminal offence and as a civil offence is that
the former is punishable under Section 50051 of the Indian Penal Code, while there is no
punishment for civil defamation. However, damages arising from civil defamation are likely to
be higher than criminal defamation.
48
JT 1994 (6) SC 514. (The Supreme Court felt that a proper balancing of the freedom of press as well as the rights
of privacy and defamation had to be done in terms of the democratic way of life laid by our Constitution. The
Supreme Court concluded that the State or its officials have no authority in law to impose a prior restraint upon
publication of material defamatory of the State or of the officials.)
49
Art 21, The Constitution of India, 1950. (No person shall be deprived of his life or personal liberty except
according to procedure established by law.)
50
Section 499, Indian Penal Code, 1860. (Whoever, by words either spoken or intended to be read, or by signs or by
visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or
having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases
hereinafter expected, to defame that person)
51
Section 500, Indian Penal Code, 1860 (Whoever defames another shall be punished with simple imprisonment for
a term which may extend to two years, or with fine, or with both.)

3.4 RIGHT TO A FAIR TRIAL

Right to a fair trial is absolute right of every individual within the territorial limits of India with
respect to articles 14 and 20, 21 and 22 of the Constitution. It is right to say right to a fair trial is
more important as it is an absolute right which flows from Article 21 of the constitution to be
read with Article 14. Freedom of speech and expression is given under Article 19 (1) (a) has
been put under ‘reasonable restriction’ subject to Article 19 (2) and Section 2 (c) of the
Contempt of Court Act. That is very obvious one’s life with dignity is always given a priority in
comparison to one’s right to freedom of speech and expression. Media should also consider upon
these facts. Fair trial is not only for private benefit for an accused – the public’s confidence in
the integrity of the justice system is very crucial.52 The right to a fair trial is the basic need and at
the heart of the Indian criminal justice system. It includes several other rights including the right
to be presumed innocent until proven guilty, the right not to be compelled to be a witness against
oneself, the right to a public trial, the right to legal representation, the right to speedy trial, the
right to be present during trial and examine witnesses, etc. In the case of Zahira Habibullah
Sheikh v. State of Gujarat,53 the Supreme Court explained that a “fair trial obviously would
mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial sphere. 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 .”
In Maxwell54, the Court prescribed certain methods for controlling the pre-trial publicity:
(i)Control the presence of the press at the judicial proceedings.
(ii)The court should have insulated the witnesses. This implies protecting and isolating the
witnesses during the trial.
(iii)The court should make efforts to control the release of leads, information, and gossip to the
press by police officers, witnesses, and the counsel for both sides. More specifically, the trial
court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court
official which divulged prejudicial matter
(iv) Reporters who write or broadcast prejudicial stories could have been warned as to the lack of
decorum in publishing material not introduced in the proceedings.
52
Gisborne Herald Co. Ltd. V. Solicitor General, 1995 (3) NZLR 563 (CA)
53
Zahira Habibullah Sheikh v. State of Gujarat, [(2004) 4 SCC 158]
54
16 L Ed 2d 600: 384 US 333 (1965)

(v) Where there is a reasonable possibility that prejudicial news prior to trial will prevent a fair
trial, the judge should continue the case until the threat abates, or transfer it to another county not
so permitted with publicity.
(vi) If publicity during the proceedings threatens the fairness of the trial, a new trial should be
ordered.
3.5 RIGHT TO PRIVACY
Right to Privacy is one of such factor which shall be considered while judging this case. In the
famous case ‘Bandit Queen’ Case. The respondent filed a writ petition for quashing of the
certificate of Censor board which permitted the exhibition of the movie. It was challenge that the
story showed certain pictures and scene which is against the “womenhood”. It was also contested
that there are certain names are taken that shall effect the status of certain community at large.
The Supreme Court allowed showing of the movie declaring its ruling as “the movie was based
on true grounds and it shall be considered for it overall impact. “A” certificate is a reasonable
restriction imposed on the exhibition of the movie therefore the movie shall not be stopped
exhibition. In the famous case of R. Rajagopal vs State of T.N55 popularly known as Auto
Shanker case. The court held on the issue of privacy and freedom to media that “This is included
in Art 21 of the constitution and a citizen has a right to safeguard his own, his marriage,
procreation motherhood, child bearing and education among matter No one can publish anything
without their consent and if some one does so it would violate the right of privacy of the person.
However the court said that privacy object will become unobjectionable if such publication was
based on public record or even court records., When Right of privacy overlaps the interest of
public health and morality its shall be overpowered for the good of greater number of people. In
the case of People’s Union of civil Liberties v Union of India56 the court allowed the phone
tapping if it comes before any public emergency.
55
1995 AIR 264
56
AIR 1997 SC 568, JT 1997 (1) SC 288

Whenever there is a conflict between Right of privacy and Freedom of Media , the basic test of
Utilitarianism(Maximum good for Maximum people) shall be applied. Law is based on the
principal of justice which considers keep interest of masses at higher footings than interest of
individuals. Right of privacy is a right for the individual and freedom of Media is benefiting
major section of people. Therefore laws upheld those things which benefits the masses but does
not mean that individual rights get neglected. Whenever a conflict between both right are clashed
the court try to maintain an “Harmonious relation” between both and judgement is purely on
the merit of the matter irrespective of the footings. However since laws always seeks to establish
justice to all and it strongly verify the merits of the act. Unless , the act benefits the masses at
large or a matter of public emergency is not effectively individual liberty is always tried to be
maintained.
3.5.1 THE RIGHT TO PRIVACY – INTERNATIONAL OBLIGATIONS
UDHR 1948 in Article 12 and ICCPR 1966 in Article 17 give protection to the concept of right
to privacy. Though freedom of speech and expression given in Article 19 of the UDHR 1948 and
ICCPR 1966 was enshrined in Article 19(1)(a) of the Indian Constitution. Here, privacy is not
given any separate constitutional status.
Right to life, liberty and security of person is enshrined in Article 3 of the UDHR 1948. This is
recognized in Article 21 of the Indian Constitution. Privacy was not included in this Article. In
Nihal Chand v. Bhagwan Dei57 during the colonial period, as early as in 1935, the High Court
recognized the independent existence of privacy from the customs and traditions of India. But
privacy got recognition in free India for the first time in Kharak Singh case.58 In Kharak Singh
v. State of U.P., the Supreme Court struck down domiciliary visits by the police as it violates
Article 21. But it was in the minority view given in this case by Justice Subha Rao , that privacy
got a recognition as a right included in Article 21 of the Constitution. In this case the apex court
recognized privacy as part of right to life and personal liberty. Privacy was recognized as a
separate right in UDHR 1948. This has failed to materialize in the same spirit as a fundamental
57
Nihal Chand v. Bhagwan Dei A.I.R. 1935 All.1002.
58
Kharak Singh v. State of U.P. and Others 1964 S.C.R. (1) 332.

right in the Indian Constitution, like the right to speech and expression and right to life.59 Article
3 of the UDHR 1948, protects life and personal liberty, not privacy. In India privacy is described
as part of right to life and personal liberty in Article 21 of the Constitution as there is no separate
provision for privacy in the Constitution. Privacy has been defined by Supreme Court in
Sharada v. Dharampal60as ‘the state of being free from intrusion or disturbance in one’s private
life or affairs’. This is different and distinct from the life and liberty in Article 21 of the
Constitution.
3.5.2 INDIAN VIEW

India is member of the United Nations Organizations, so it is bound by Article 12 of the
Universal Declaration of Human Rights, 1948 to bring in statutory enactments to keep itself in
convergence with the International Commitment. Further, India has also ratified the International
Covenant on Civil and Political Rights, 196661.
India does not give privacy a fundamental right status, while freedom of speech and expression is
given protection under Article 19(1)(a). Privacy is not even enumerated among the reasonable
restrictions to the right to freedom of speech and expression enlisted under Article 19(2). And the
Courts have protected this right to privacy not just under tort law but also under article 21 and
under the reasonable restrictions enumerated in Article 19(2) of the Constitution.
Under the tort law, a personal action for damages would be possible for unlawful invasion of
privacy. In these cases, the publisher and printer of journal, magazine or book or the broadcaster
and producer of a broadcast would be liable in damages.
59
U.D.H.R. 1948- Article 3- Everyone has the right to life, liberty and security of person.
60
Sharada v. Dharampal, (2003) 4 S.C.C. 493, at p.521.
61
Article 17 of the International Covenant on Civil and Political Rights ,1966:
1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, human or
correspondence, nor to lawful attacks on his honor and reputation
2. 2. Everyone has the right to the protection of the law against such interference or attacks.

3.6 OPEN COURT
The most fundamental principle of justice is that justice must not only be done but seen to be
done. Openness and publicity are the sine qua non of the right to a fair trial under Article 21.
Every under trial is entitled to a trial which is open, speedy and fair. Openness and publicity help
to ensure fairness of the trial. Under the open justice rule, the primary beneficiary of openness
and publicity is the person being tried- it is to ensure that he gets justice. Public access to trials
has been held to serve an important “sunshine” functions.
In India, the Criminal Procedure Code, 1973 recognises the open justice rule.
Section 32762 reads: Court to be open
1. The place in which any Criminal Court is held for the purpose of inquiring into or trying any
offence shall be deemed to be an open.
Court to which the public generally may have access, so far as the same can conveniently contain
them: Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of
any inquiry into, or trial of, any particular case, that the public generally, or any particular
person, shall not have access to, or be or remain in, the room or building used by the Court.
Public access to a criminal trial helps to ensure the fairness of the proceeding. The presence of
public and press encourages all participants to perform their duties consciously and discourage
misconduct and abuse of power by judges, prosecutors and other participants. public access helps
to ensure that procedural rights are respected and that justice is applied equally.
In summary, the public interest in open trials and in the ability of the press to provide complete
report of what takes place in the court room is rooted in the need
1. To maintain an effective evidentiary process
2. To ensure a judiciary and juries that behave fairly and that are sensitive to the values
espoused by the society.
3. To promote a shared sense that our courts operate with integrity and dispense justice
4. To provide an on going opportunity for the community to learn how the justice system
operates and how the law being applied daily in the courts affect them.
62
The Code Of Criminal Procedure, 1973

In Naresh Shridhar Mirajkar63 The Supreme Court held that the court has the inherent power
under Section 151 , Civil Procedure Code 1908 to order a trial to be held in camera, but that this
power must be exercised with great caution and only where the court is satisfied beyond
reasonable doubt that the ends of justice would be defeated, if the case were to be tried in open
court.
3.7 SUB JUDICE REPORTING
When a case is being conducted in the Court, it is presumed that Court will do fair Justice in the
proceeding. Nothing should interfere in the matter of especially the media. Media should not
conduct a parallel trial of sub judice matters. A judge shall decide the matter on the merits of the
case . This is not possible when there is so much discussion in the matter through the media, as it
creates a clouded atmosphere disturbing the serenity.
In Saibal Kumar v. B.K. Sen64 the Supreme Court held that it is improper for a newspaper to
conduct parallel investigation into a crime and publish its results. Trial by newspapers must be
prevented when trial is in progress in a tribunal of the country. The reason being, that this
interferes with the cause of justice.
Reporting is different from investigation of the same matter. Reporting is the function of the
media to give the public, knowledge concerning the administration of justice that is taking place.
Formation and expression of opinion is needed to safeguard against judicial error. Beyond
reporting of cases, moving into conducting the investigation alongside the governmental system
is overstepping by the media. Various opinions expressed in the media reports can bring in
prejudice to the mind of the judges.
In Saroj Iyer v. Maharashtra Medical (Council) of Indian Medicine65, the Court held that as a
part of the open justice system, the journalists have a fundamental right to attend proceedings in
63
AIR 1967 SC I : (1966) 3 SCR 744
64
Saibal Kumar v. B.K. Sen A.I.R. 1961 S .C 633.
65
Saroj Iyer v. Maharashtra Medical (Council) of Indian Medicine A.I.R. 2002 Bom. 97

Court under Article 19(1)(a) of the Constitution. They have a right to publish a faithful report of
the proceedings in the Court. So this fundamental right of the press is along with the duty to
publish or broadcast things witnessed by them in the Courts and not to be couple and mix it with
their investigation report.

CHAPTER 4
DIMENSIONS OF MEDIA TRIAL

CHAPTER 4
DIMENSIONS OF MEDIA TRIAL
4.1 POSITIVE IMPACT OF MEDIA TRIAL
While media is a fourth pillar of democracy then it is a ground reality that a citizen is largely
dependent on the press for the quality, proportion, and the extent of news. He can rarely obtain
for himself the information necessary for the intelligent discharge of his political duties and
responsibilities. In news, the press acts as a representative or, more appropriately, as the guardian
of the public. It serves public interest in pluralistic democracy by permitting expression and
opinions of all persons. Hence freedom of the press has a dimension and range that is very much
different from the sphere and content of other individual freedoms. Press freedom embodies the
principle of accountability and thus enables press to be an instrument of democratic control.
Protection and promotion of free press is substance strengthens democracy and that’s why it is a
essential feature of the Constitution.
Freedom of press is definitely one of the basic freedoms in a democratic society based on the
Rule of law. The public function which belongs to the press makes it an obligation of honour to
exercise this function with the fullest sense of responsibility. Following are the positive impact
of media on the society :
4.1.1 INDISPENSIBLE POSTULATE OF THE SOCIETY
From a very long time the media has always played an acknowledgeable role; but from the
recently it is playing a essential and indispensible role in shaping a healthy democratic setup. It is
therefore considered as a fourth organ of the democracy. Not only this, but the media is regarded
as the backbone of the democratic foundation of the society. Many a times media is regarded as
the ‘Fourth estate’ of the state. Media makes us aware of the various social, political and
economical activities which are happening around us. We can actually find out similarity
between a mirror and the media because just like the mirror, the media also reflects or projects to

us the actual truth or the ground reality which actually exists. An important aspect to be noted
here is that the media not only projects the positive aspects of the circumstances, issues, or
events but also shows those realities which are sometimes negatively or could be categorized as
‘harsh’ in nature.
4.1.2 MEDIA –WATCH DOG OF THE SOCIETY
By the media is developing , it is spreading into different streams and has become more active.
The media can remind the politicians every time they keep any promise unfulfilled, especially
during the elections. Frequent reporting helps even the illiterate people in deciding the right
person to vote for by forecast his true story. The continuously reminders by the media persuade
the politicians to fulfil their promises, in order to continue to enjoy the confidence of the people,
which is required to continue their position in chair. If any politician does not care to fulfil the
promise the media will repeatedly communicate that to the public, and then public will not elect
that person again. Thus the politicians who do not care to fulfill their promise are risking their
chair, and all this is possible because of the media. Television and radio, which also forms part of
the media has made remarkable contribution in creating awareness especially regarding
uneducated masses. Televisions and radio broadcasts the news in the native language. The
listener or the viewer does not need to be able to read or write, or have knowledge of any foreign
language. He can hear the news in his mother tongue and be equipped with the knowledge about
the current events. The media also covers the corrupt practices of head of the village,
moneylenders and local politicians, and thus have helped in taking steps against them by making
the appropriate agencies aware of their misdeed, and strengthening the democracy.
4.1.3 MEDIA A MIRROR WHICH REFLECTS THE REALITIES
Another very crucial function performed by the media, is that it highlights and brings to the
notice of the society the mal administration, discrepancy, blunders, mistakes or the
mismanagement of the government. This function fulfils a dual aspects; like on one hand it helps
the society to know the mal administration etc activities of the government, and on the other
hand, it helps the government to improve its functioning and minimize the mal administration
activities, thus making democratic system more transparent, efficient, responsible and

answerable. Then media helps the government and the society to exchange the ideas, views and
opinions with each other which minimizes the distance between the government and the society
and helps in developing harmonious relationship between the two; which obviously brings
stability and progress in the state.
4.1.4 DIVERSE INFORMATION MADE EASILY AVAILABLE
In the modern age it is regarded as the era of information and technology. The consequence of
the increased volume of information and technology has led to the fact that; the society not only
thrive upon the bulky information, but the societal life exists on the vast and diverse information.
Apart from the vast information, diverse and varied information is imparted to the society from
every aspect of the society or from every corner of the entire global arena. In addition to the
diverse information which is projected by the media, another very crucial aspect is this that, this
diverse information is imparted very easily and quickly. In fact this vast information is available
at the tip of the fingers iof a person because of the media. So the advantage of the media is two
folds : one -vast varied, diverse, and varied information is imparted to the public at large, and the
second –such information is made very easily and speedily available to the public at large.
4.1.5 DETERRENT EFFECT UPON THE CORRUPT OR UNETHICAL

TENDENCIES
Today the media is feared because it is not only publicising any unethical, corrupt or any illegal
activities, but it also provides each and every detail of the procedure which is to commit such an
unethical, corrupt or any illegal activity. So also all the people involved in such activities are also
named and nailed down and are exposed in front of the society. The list of the instances where
the media has exposed the people of corrupt and mal practises is endless in Nitish Katara murder
case, Jessica Lal case , Priyadarshini Mattoo case, The Ruchika Girhotra Case etc.

4.1.6 CASES
A. NITISH KATARA MURDER CASE66
In the instant case a lower cast boy,and an upper class girl from Uttar Pradesh were in love with
each other. The parents of the girl were from high class and influential political parties. The boy
was murdered. The accused were acquitted in the lower courts, however the media persuaded the
case, and the case had to be reopened. The ultimate result was that, the guilty people were
punished.
B. JESSICA LAL CASE67
The bar tender, Jessica Lal, was murdered by son of a politician Manu Sharma, Most of the
witnesses turned hostile, and he was acquitted, again the media highlighted the issues and kept it
in the limelight, which worked as an catalyst while delivering the justice, and punishing the
guilty persons.
C. PRIYADARSHINI MATTOO CASE68
The accused was in love of the victim, and had proposed her. The victim rejected his proposal.
Then the accused madeafalse complaint that the victim was taking two degrees simultaneously.
Not satisfied by that he raped and murdered the victim. The accused also tried to exploit the
influential position and escape the clutches of the law. The trial court had given him the benefit
of doubt. The media took the matter. Here the media used the tool of investigative journalism,
and found the servant working in the Priyadarshani’s house, who had supposedly allowed the
accused to enter in her house. The servant was missing since the crime was committed. The
media put the pressure, and did not allow the people to forget. As a result the matter was taken to
66
Delhi High Court CRL.A. 741/2008
67
Manu Sharma vs. State , (2010) 6 SCC 1
68
State vs. Santosh Kumar Singh , 2007 CriLJ 964,133(2006) DLT393

the High Court, which delivered its judgement in 42 days, reversing the judgement of the lower
court.
D. THE RUCHIKA GIRHOTRA CASE69
Ruchika Girhotra was sexually molested by the Director General of Police and freely roaming,
the media persuaded the matter and got the police person arrested.
E. NIRBHAYA CASE70
In 2012 when the unfortunate Nirbhaya was raped in the moving bus, and thrown out of the bus,
the victim then went to lodge the FIR, the police were refusing to lodge the FIR, the media
harped on the issue, not only resulting in the lodging the FIR, but also the conviction of the
culprits. Many a times these mal practices were brought to the notice of the people, only because
of the strong organized, and vigilant media. In some of the cases mentioned above justice was
done simply because the media pursued and projected the facts and the issues related to the
corrupt or illegal activity.
The media no doubt has helped in doing justice by bringing the culprits into the clutches of the
law. Apart from the above quoted incidences, there are many more instances, where the media
has performed the duty of the vigilant policeman. One can say that the media has played a
supplementary role to the judicial function of dispensing justice.
69
S.P.S Rathore Vs. C.B.I & Anr. CRL.A 2126/2010
70
State vs. Ram Singh & Others CRL.A. 3119-3120/2014

4.2 NEGATIVE IMPACT OF MEDIA TRIAL
There is no doubt that a free media is essential for the exercise of a fair democracy. Without free
media it is impossible to imagine any democratic society, as the democracy will lose its essence.
Without freedom, the press will be at the mercy of the rulers and will be under obligation to
project any policy in the interest of the rulers, even if it may be detrimental to the interest of the
society at large. A question which creates fear in the people’s mind is that whether the free media
is really serving the people. The answer is definitely No. The media is not serving the people as
was expected to serve, after it is not under the governmental control.
Following are hurdles which come in the way of the media while performing its duties are as
follows :
4.2.1 PARTING WITH FAIR TRIAL
In the criminal justice system, the guilt is to be proved beyond reasonable doubt and the law is
governed by senses and not by emotions. While display our emotions, the media forget that it
puts tremendous pressure on the judge presiding over the case. Then how is to possible to expect
a fair judgment from a judge who is under such incredible pressure from all sections of the
society? A person is presumed to be innocent unless he is held guilty by the competent court, but
here the trend is to declare a person guilty right at the time of arrest. The media is there to report
facts or news and raise public issues; it is not there to pass judgments. The print and electronic
media have gone into violent and ruthless competition, as we call them ‘aggressive journalism’
that a many cameras are flashed at the suspects or accused and the police are not even allowed
to take the suspects or accused from their transport vehicles into the courts or vice versa. The
Press Council of India issues guidelines from time to time and in some cases but there it was no
action take place. But, even if ‘apologies’ are directed to be published; they are published in such
a way that either they are not apologies or the apologies are published in the papers at places
which are not very prominent. The most objectionable part, and unfortunate too, of the recently
incarnated role of media is that the coverage of a sensational crime and its adducing of
‘evidence’ begins very early, mostly even before the person who will eventually preside over the

trial even takes cognizance of the offence, and secondly that the media is not bound by the
traditional rules of evidence which regulate what material can, and cannot be used to convict an
accused. In fact, the Right to Justice of a victim can often be compromised in other ways as well,
especially in Rape and Sexual Assault cases, in which often, the past sexual history of a
prosecutrix may find its way into newspapers. Secondly, the media treats seasoned criminal and
the ordinary one, sometimes even the innocents, alike without any reasonable discrimination.
They are treated as a ‘television item’ keeping at stake the reputation and image. Even if they are
acquitted by the court on the grounds of proof beyond reasonable doubt, they cannot resurrect
their previous image. Such kind of exposure provided to them is likely to jeopardize all these
cherished rights accompanying liberty.71
Earlier, journalism was not under pressure to push up TRP ratings or sales. So the journalists did
their work with serious intent and conviction, with courage and integrity. The did not pronounce
people guilty without making a serious attempt to study the charges, investigate them, and come
to their own independent conclusions, without fear or favor. They did not blindly print what law
enforcers claimed, what the bureaucracy said or what politicians planted on to them. That is why
people trusted them. But now we are seeing a different self-acquired role of media in form of
‘media trial’. Everyone manipulates the media to serve their own interests or hurt their rivals.
The problem does not lie in media’s exposing the lacuna of a bad investigation by cops, or mal-
performance of the duties ordained to the civil servants but the eye-brows start to raise when the
media ultra vires its legitimate jurisdiction and does what it must not do. Be it highlighting the
sub-judice issues into public keeping at stake the sanctity of judicial procedures and ‘right to life
with dignity’ of accused and suspects. The media trial has now moved on to media verdict and
media punishment which is no doubt an illegitimate use of freedom and transgressing the prudent
demarcation of legal boundaries. It is necessary to check prejudicial publicity of the subject
matter pending before a court. It should be legally permissible to pass restraint order on the
media.
Fair trial of the accused is a universally accepted legal norm. 72 The principle of the Indian
criminal justice system is based on the twin principles of ‘guilt to be proved beyond reasonable
71
Jagannadha Rao, Fair Trial and Free Press: Law’s Response to Trial by Media, p. 26.
72
Universal Declaration of Human Rights, Art. 10 , Dec.1948

doubt’ and ‘presumption of innocence until proven guilty’.73 In Zahira Habibullah Sheikh v.
State of Gujarat74 the Supreme Court explained, “Denial of a fair trial is as much injustice to the
accused as is to the victim and the society. Fair trial obviously would mean a trial before an
impartial Judge, a fair prosecutor and atmosphere of judicial calm.” Right to fair trial includes
the right to be tried an unbiased or prejudiced judge. This right was enunciated in Bhajan Lal,
Chief Minister, Haryana v. Jindal Strips Ltd.75
The right to fair trial guaranteed under the Constitution entitles a litigant to adjudication of a
cause by a judge who is perceptibly and demonstrably unbiased and without prejudice. In T.
Nagappa vs. Y. R. Muralidhar,76 the Supreme Court reiterated, “An accused has a right to fair
trial. He has a right to defend himself as a part of his human as also fundamental right as
enshrined under Article 21 of the Constitution of India.” The practice of ‘trial-by-media’ has
been described by the Courts, “No journalist can assume the role of an investigator, in a
pending case, and then attempt to influence the mind of the Court”77
4.2.2 MEDIA’S ROLE IN MANIPULATING THE JUDGES
Judges from various jurisdictions also agree to the influence media can have on a judge.78 The
real danger of prejudicial comments that must be guarded against is the “impression that such
comments might have on the Judge’s mind or even on the minds of witnesses for a litigant”.79
The frailty of the judicial system stems from the fact that judges are human beings and undue
influence of irresponsible expression may taint the rational process of adjudication. The disparity
73
International Covenant on Civil and Political Rights, Article 14,
74
Zahira Habibullah Sheikh v. State of Gujarat (2004) 4 SCC 158.
75
Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd (1994) 6 SCC 19
76
T. Nagappa v. Y. R. Muralidhar (2008) 5 SCC 633.
77
Rao Harnarain v. Gumori Ram, AIR 1958 Punjab 273,
78
Justice Frankfurter in John D. Pennekamp v. State of Florida, (1946) 328 US 331; Lord Dilhorne in Attorney
General v. BBC, 1981 A.C 303 (HL); Sudhanshu Ranjan, Media on Trial, The Times of India, Jan 26, 2007,
http://timesofindia.indiatimes.com/edit-page/Media-on-trial/articleshow/1460248.cms . (Last Accessed on March
24, 2019 at 8:00 pm)
79
P.C. Sen AIR 1970 SC 1821

between the reality and the public knowledge of that reality can be attributed to the media. Some
accused persons are lovable, some are martyrs and some turn out to be criminals.80
Even if one discounts the bias created by the media, the accuracy of media reportage comes
under the microscope. Media dependency theory suggests that people who have little or no direct
experience with certain social phenomenon rely more heavily on the media for their picture of
reality.81 Lack of primary sources will result in media ‘portraying’ trial-by-media in whichever
role it wants- as an activist or usurper of judicial functions. There is a bias towards sensational
crime in media reportage.82
For instance the best example of impact of media trial on legal proceedings is Afzal’s arrest in
the attack on the Indian Parliament case. Only one week after the attack, on 20 December 2001,
the police called a press conference during the course of which Afzal ‘incriminated himself’ in
front of the national media.83 Justice P. Venkatarama Reddi in upholding the imposition of the
death penalty on Mohammed Afzal, observed that “the incident, which resulted in heavy
casualties, had shaken the entire nation and the collective conscience of the society will only be
satisfied if the capital punishment is awarded to the offender.”Similarly, S.A.R. Geelani, one
of Afzal’s co-defendants in the Parliament attack was sentenced to death based on a lone
telephonic conversation between Geelani and his brother and as he was portrayed him as a
dangerous and trained terrorist. He was later released describing the prosecution’s case as “at
best, absurd and tragic”.
Media publication can ‘unconsciously’ influence Judges or Juries. The media create a series of
unconscious pressures on a juror especially in a high-profile trial. Jurors know that they are being
watched by the world. They are not only making a decision for themselves, but they are making
a statement for their family, co-workers, community, and society as a whole. This elevates their
verdict to a level beyond the evidence. The American view appears to be that Jurors and Judges
are not liable to be influenced by media publication, while the Anglo-Saxon view is that Judges,
80
Navajyoti Samanta, Trial by Media-Jessica Lal Case, http://ssrn.com/abstract=1003644 accessed on 25
March,2019 at 9:30 pm )
81
Susanna R. Barber, Televised Trials: Weighing Advantages Against Disadvantages, (1985).
82
Julian V. Roberts, Public Opinion, Crime, and Criminal Justice, 16 CRIME & JUST., 99, 117 (1992).
83
200th Report of the Law Commission of India on “Trial by Media -Free Speech and Fair Trial Under Criminal
Procedure Code, 1973

at any rate may still be subconsciously (though not consciously) influenced and members of the
public may think that Judges are influenced by such publications under such a situation.
Therefore, Lord Denning stated in the Court of Appeal that Judges will not be influenced by the
media publicity84, a view which was not accepted in the House of Lords.
Cardozo, one of the greatest Judges of the American Supreme Court, referring to the “forces
which enter into the conclusions of Judges” observed that “the great tides and currents which
engulf the rest of men do not turn aside in their curse and pass the Judges by”.85
Hon’ble Justice D. M. Dharmadhikari, Chairman, M. P. Human Rights Commission also asserted

that there is always a chance that judges get influenced by the flowing air of remarks made upon
a particular controversy. The media presents the case in such a manner to the public that if a
judge passes an order against the “media verdict”, he or she is deemed either as corrupt or
biased.
“No Judge fit to be one is likely to be influenced consciously, except by what he sees or hears in
Court and by what is judicially appropriate for his deliberations. However, Judges are also
human and we know better than did our forbears how powerful is the pull of the unconscious and
how treacherous the rational process … and since Judges, however stalwart, are human, the
delicate task of administering justice ought not to be made unduly difficult by irresponsible print.
The power to punish for contempt of court is a safeguard not for Judges as persons but for the
functions which they exercise. It is a condition of that function – indispensable in a free society –
that in a particular controversy pending before a court and awaiting judgment, human beings,
however strong, should not be torn from their moorings of impartiality by the undertone of
extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the
right to influence Judges and Jurors.”86
84
Attorney General v. BBC : 1981 AC 303 (CA), p. 315.
85
‘Nature of the Judicial Process’ , Lecture IV, Adherence to Precedent. The Subconscious Element in the Judicial
Process, 1921, Yale University Press.
86
Justice Frankfurter observation in case of Abrams v. U.S : (1919) 250 US 616

M.P. Lohia vs. State of West Bengal87, to which we have earlier referred, the Supreme Court
seriously deprecated a one sided article in a newspaper in which the allegations made by the
parents of the wife in an alleged dowry death case were published but the record filed by the
accused that his wife` was schizophrenic were not published. These publications create a
pressurised atmosphere before the Judge.
4.2.3 IMPACT ON REPUTATION
Article 19 of the International Covenant on Civil and Political Rights, 1965, recognizes every
person’s freedom of expression but it also acknowledges that the exercise of such rights carries
with it special duties and responsibilities and the same may be subject to certain restrictions like
respect for the rights or reputations of others. Right to reputation is an integral part of one’s
life.88 It is a facet of right to life of a citizen under Article 21 of the Constitution of India. 89
During the hearing of the public interest litigation filed by advocate Surat Singh in the Aarushi
Talwar murder case90 before the Supreme Court, Justices Altamas Kabir and Markandey Katju
remarked, “Nobody is trying to gag the media. They must play a responsible role. By
investigation, the media must not do anything which will prejudice either the prosecution or the
accused. Sometimes the entire focus is lost. A person is found guilty even before the trial takes
place. See what happened in this [Aarushi] case. Till today what is the evidence against
anyone?”91
4.2.4 SNOOPING WITH THE CRIMINAL JUSTICE SYSTEM

A recent example of the media meddling would be the Reliance Info murder case of its
employee, Anandita Mishra, where due to the media reports; the prime accused in the murder
absconded. The Bombay Police Commissioner is upset with the media for jumping the gun, “I
think that he got a whiff of it after reading the reports and gave them the slip. Now a manhunt
87
AIR 2005 SC 790
88
State of Bihar v. Lal Krishna Advani, AIR 2003 SC 3357
89
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors., (1983) 1 SCC 124
90
De. Rajesh Talwar and Another vs. Central Bureau of Investigation, 2013 (82) ACC 303
91
J. Venkatesan, Apex Court to lay down coverage norms, The Hindu, August 19, 2008,
http://www.thehindu.com/todays-paper/apex-court-to-lay-down-coverage-norms/article1319394.ece last Accessed
on March 25, 2019 at 9:00 pm ).

has been launched to nab the accused.”

Another example of this would be the serial-killings in Noida. Due to extensive media coverage
of police investigations, the owner of the house where the corpses were found, Mohinder Singh
Pandher, and his domestic help Surendra Kohli, the prime suspects of having committed these
crimes bore the brunt of sensational journalism. Influenced by media coverage, much of it
proclaiming that the two men had already confessed to the killings, the local Bar Association
announced that it had decided that no advocate from Noida would defend Pandher and Kohli in
court.92 The media forgets that right to have a lawyer of one’s choice is a fundamental right
under the Indian Constitution.
4.2.5 IMPACT OF TRIAL BY MEDIA AND MEDIA VICTIMISATION
The media has become the backbone of the news industry and plays the role of the public’s eyes
and ears. Any and every information that the public receives regarding an event is looked under
the spectacles of media and then conveyed through the mouth piece that is the media itself. What
is the authenticity of such information and to what extent should the public get convinced by it
lands the public in a rather soupy situation. After all, it is only natural for them to believe what
they are sold by an upper hand authority like the media. But what happens when the news
supplied to the public through media and subsequently through judicial process is poles apart?
In this context, there lies a minimal expectation by media to confirm to their jurisdiction of
affairs and ensure that what they convey is free of bias. In the last few years, the media has not
only dared to operate outside its bounds but also reach a point where they assume the role of the
judiciary in deciding a case. Once there is a case which is relatively of any public importance, it
will start its own investigation process, question witnesses and raise fingers upon the character or
morals of the accused. In few cases it may even go to the extent of driving a case to its
conclusion.
92
Trial by Media, April 27, 2007, HRF/164/07, http://www.hrdc.net/sahrdc/hrfeatures/ HRF164.html accessed on 20
March, 2019 at 11:30 pm.

Although the public may seem content with this cycle of events, it is not legal at any point. It
quashes the basic principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond
reasonable doubt’. The interference of the media goes to the extent of causing a prejudice in the
eyes of the public against the accused even before he is extended a fair trial and this in turn
affects his trial. Even if he is acquitted after the trial, it does not change the public’s opinion
about him based on what was conveyed by media. This amounts to double victimisation of the
accused; by the media as well as the judiciary.
Cases which are driven by the media usually involve high publicity coupled with well staged
drama and is targeted at cases that could be sensational due to their horrendous nature or due to
the involvement of an influential person. This is becoming a trend and seems to have substituted
the lack of daily soaps on news channels. Few media driven cases in the recent past include the
Arushi murder case, Jessica Lal murder case, BMW accident case, Nirbhaya rape case, Nira
Radia case.
Apart from this there were scams like the 2G scam, Bofors scam, Commonwealth Games scam
and Harshad Mehta stock market scam. All these cases pertain to diverse fields but do share a
common ground of being driven by the media. This takes us back to the question raised in the
very beginning; how much interference may be passed off as the work of a healthy regulator and
when does it start to interfere with the process of the court. We will try to assess the impact of
media by analysing few of these cases to derive a clearer perspective on this point.
• MEDIA TRIAL ON JNU-SEDITION
In February 10, 2016, the media, both electronic and print, were inundated with reports of
students raising anti-India slogans55 in the JNU campus during a protest against the hanging of
Parliament attack convict Afzal Guru the previous night. In this age of 24/7 connectivity and a
plethora of channels, blogs and internet sites it turned into a macabre and voyeuristic interest into

every detail and rumour about the case.93 The video which had no ‘Pakistan Zindabad’94
slogans in it were played repeatedly to spread madness. How can one establish that Kanhaiya and
his associates were chanting slogans when all we heard were voices coming from the darkness?
Our biases made us hear “Pakistan Zindabad.”
The government wants to shut down the university and media trial is only making things worse
for these students who are facing disapproval from their families who are following the news. On
7th March, 2016, JNUSU condemned “destructive and divisive slogans” and the “witch-hunt
and media trial against Umar Khalid based on his religious identity”.95 From the beginning
media merely interested in witch-hunting of students and to act as loyal foot soldiers of RSS. But
a greater impact that the broadcast of these unverified videos has had is in exposing the media’s
rush to judgments, sidestepping the precepts of media ethics and objectivity. Following this, it is
worth noting that Vishwa Deepak, a journalist working with Zee News has resigned, suggesting
that the channel deliberately misinterpreted a video clip to brand some students including
Kanhaiya Kumar as anti-nationals and trigger the controversy at the Jawaharlal Nehru
University.
93
Smriti Kak Ramachandran, JNU ‘sedition’ row: When media became part of the story, Hindustan Times Feb 22,
2016 http://www.hindustantimes.com/analysis/jnu-sedition-row-when-media-became-part-of-the-story/story-
UbqV7NaT6JwecPIcfW1yPI.html. (Last visited March 26, 2019 at 6:30 pm ).
94
JNU row: Police case may suffer setback after journalist’s claims Hindustan Times, Feb 23, 2016 (Last visited
March 26, 2019 at 7:00pm ).
95
Aranya Shankar, JNUSU condemns ‘divisive slogans, media trial against Umar Khalid’, The Indian Express,
March 9, 2016, http://indianexpress.com/article/india/india-news-india/jnusu-condemns-divisive-slogans-mediatrial-
against-umar-khalid/#sthash.n96U0IzA.dpuf. (Last visited March 26, 2016 at 7 :30 pm ).

CHAPTER 5
PRESENT SCENARIO OF MEDIA
TRIAL

CHAPTER 5
PRESENT SCENARIO OF MEDIA TRIAL
“A free press can, of course, be good or bad, but, most certainly without freedom, the press
will never be anything but bad.”
-ALBERT CAMUS
5.1 INTRODUCTION
Presently it becomes clear that the media is having negative influence as well as a positive effect.
The media cannot be granted a free hand in the court proceedings as they are not some sporting
event. Any institution, whether it is legislature, executive, judiciary or bureaucracy, is liable to
be abused if it exceeds its legitimate jurisdiction and functions. But sometimes these ultravires
activities are blessing in disguise as is the case of judicial activism. Media trial is known to be
revolutionary sting operations as it keeps a close watch over the investigations and activities of
police administration and executive and behaves like watch dog in the society. But there must be
a reasonable self-restriction over its phenomenon and due emphasis should be given to the fair
trial and court procedures must be respected with adequate sense of responsibility then only
media will perform its functions. Media should acknowledge the fact that whatever they publish
has a great impact over the society. Therefore, it is the important role and moral duty of media to
show the truth and that too at the right time.
Media plays vital role and backbone of the society, as many authors say “eyes and ears of the
general public”. A responsible media needs to take into the consideration the reliance entrusted
on it by the general public and confidence and faith as to blindly accept that truth of the news

published by media.96 In doing so the media should follow certain norms in reporting a crime
which is globally accepted:
• Reporting of media and press should be maintained in accuracy and fairness.

• Factual accuracy of the report shall be verified before publication.
• There should be every caution should be followed against defamatory writings.
• Right to privacy shall not be intruded or invaded unless over weighted by genuine
overriding public interest as it guaranteed under Article 21 of Constitution of India.
• While exercising fair criticism of judgment and reporting court proceedings, there should
be proper due and caution..
• Reports shall not be published based on assumption or surmises or in mistrust.
• Glorification of an act of violence shall be prohibited.
• The heading shall not be sensational or challenging and it must justify the matter printed
under them.
• Correction shall be made or published without any delay in cases of error for every word
is closely related to general public.
5.2 INCREASED TRANSPARENCY AND ACCOUNTABILITY
When liberalization, privatization and globalization takes place in 1990s,at that time audio visual
media were enhanced. Modern media has enhanced the quality of democratic process by only
providing a platform for public participation on issues of international , national or social
concern in a manner that is able to influence the government, the media serves a two purposes .
It only carries information to the public, but also carries back public responses to the government
as a feedback, compelling the latter to be more receptive to public opinion, like in Jessica Laal
murder case97, It is true that for the justice to be achieved, there is need of activist media and the
matter might died and guilty person will going unpunished. Media is very important to bring
96
Court concern over `trial by media,” http://www.hindu.com/2004/02/05/stories/2004020510951100.htm (last
visited on 25.03.2019 at 1:00 pm.
97
Manu Sharma Vs. State (2000) 6 SCC

criminal justice system which rarely brings justice to the common person, much less when the
accused is connected to the political background. The system would have remained as
unaccountable as before, reinforcing the public perception that the criminal justice system rarely
brings justice to the common person , much less when the guilty are politically connected. The
reopening of the case, a sustained media campaign , brought a sparkle of hope that the guilty will
not, after all, get off the hook quite easily.
Another case where the media played an invaluable role in exposing the fact that plagues the
criminal justice system was the R.K. Anand Case.98 A string operation was carried out by a
private TV channel, NDTV to expose the unholy nexus between prosecution, its witness and the
defence in the in famous BMW hit and run case resulting in the death of six persons by a
speeding BMW car driven by the wealthy and influential family. While the trial was still pending
eight years after the /incident, NDTV telecast a sting operation to expose the manner in which a
senior advocate appearing for the accused was negotiating, with the help of Special Public
Prosecutor , a sell out in favour of defence. The defense counsel was held guilty of contempt of
court by the Delhi High Court and the Supreme Court. NDTV’s programme on the expose was
found a tad sensational by the Supreme Court, but the court nevertheless acknowledged its
enormous contribution to the public interest and to the cause of justice.
5.3 SENSATIONALISM AND TRIAL BY MEDIA
There is another side to the media revolution that has not been quite so admirable. The media’s
pre-occupation with the sensational and the interesting appears to have drown news-worthiness
and intelligent debate. The scores of 24 hour channels is on the screen into TV homes everyday,
attached with the instant access to the web, instantly assault our senses with an over skill of
information. Corruption began in the broadcasting media when the things begun to come up in
98
(2009) 8 SCC 106.

front to private broadcasters in the 1990s. Survival in this deeply competitive environment
depends on ratings and fantastic mantra of the time is TRPs.99
India has more 24 hour news network, newspaper at after every 8 hours than any other country.
The result of this intense competition is an obsession with graving “eyeballs” and the desperation
to carry “breaking stories” even on issue unworthy of reputation. This results in journalistic
ethics and propriety being compromised. Often times,young reporters how to make a story
indulge in voyeurism without the slightest notion of individual privacy or sensitivity to human
tragedy.100
Another fall out of the obsession for breaking stories is the susceptibility to conduct media trial
in pending cases including pending criminal cases which deviated the court proceedings The
media often drums up support in favour of or against an accused. Various Chat shows are held
live while case in sub judice in writing opinions, not just from the member of the public but from
legal experts, sometimes even appearing in the case even retired judges which is also
contradiction of media ethics. Accused person and tearful victim’s family are seen being
extensively interviewed on TV. Public opinion is drummed up in one or other’s favour. Creating
an atmosphere where it becomes difficult for a judge to act independently.
TV news has another drawback. It is as short-lived and low as it is instantaneous and can
scarcely provide the depth of analysis that newspaper are capable of. Undoubtedly, TV captures
the moment and bring home the horror of the event like no other medium can. But it makes the
viewer instantly judgmental. The instant impact of graphic moving picture without adequately
exploring the context or the background of the event and can lead to easy and often destroyed
conclusions.101
5.4 NEWS AS BUSINESS
It is true that commercialization of the media has its advantage for one and it has enabled
journalism to become financial workable career option that draws superior talent. But the
99
In July 2012, a news channel, NDTV sued Nielson Company, the parent company of TAM (Television Audience
Management ), a rating agency , in New York for alleges manipulation of data ratings to favour channels that
offered bribe.
100
Rajdeep Sardesasi , Publishing the boundaries” , Seminar, May, 2006
101
Karan Thapar, “ A critique of Television News”, Seminar, May, 2006.

downside is that news become a saleable commodity or marketing commodity for the consumer
rather than instrument of intellectual debate and social change. And it totally works upon the
dictatorship on management as a result news often treat as a business. The commercialization of
the media results in the editor having to act on the dictates of the management. The editor may
lean in favour of the news worthy but the management exercise its veto in favour of what it
regard as sale worthy.102
The approach that is followed by media is to give the consumer what he wants to see or read,
rather that what the editor feels he should read or see. When the press is run on the dictates of
profit, it ceases to be free in the true sense. The increasing concentration of media ownership,
both in the print and electronic media, iand the common ownership of media companies with non
media corporations and it will have a direct impact on press freedom. If the commercial interests
of media merged or industries under common ownership are affected, they would be hesitant to
criticize the government the fear of their business interests being jeopardized elsewhere and it
will affect their profit.
Sometime media hypes the basic facts or information and presents them so as to increase the
apparent appeal of things. Media mostly overemphasis on the money and ‘glamour’ aspects, film
stars, models and the ‘successful’ men and women in the fields of sports, business, art and
politics.
The negative effects of media psychologically are seen in terms of media changing the people’s
perception on life. Media have changed the cultural and moral values of society because A
majority of the audiences believe in what is depicted by the media.
Youngsters and children usually mix the reel and the real world under the influence of the mass
media. Media also affects the physical well-being of individuals to a certain extent. People
spending hours in front of a television or surfing the Internet tend to suffer from eye problems
and obesity. Long hours of media exposure add to the inactive nature of one’s lifestyle.
102
Vanita Kohli,”The Business of News”, published in Making news: Handbook of the media in Contemporary
India, 2006.

It may result in can be termed a ‘cultural lethargy of sorts’. And Culture is an active and vibrant
constituent of a society. It is healthy for the society when it evolves with sustaining values, when
it nurtures a lifestyle, attitude and consciousness aimed at betterment of society in the long run
and sometimes it exploits the whole atmosphere.
In their turn, consumerism and voyeurism exert an influence over the medium, so that there is a
relationship of reciprocity between television and society. The TV industries monitor this give-
and-take by sophisticated marketing surveys to tailor programmes to what they perceive as the
interests of their consumer-viewers. Although people think that they are sitting at home watching
the tube, the tube is also, in a sense, watching them, and their viewing habits are traded in the
marketplace.103
5.5 PAID NEWS
One of the burning issue in the world of media in India is the concept of paid news. The
definition of “paid news” as stated by Press Council is as follows, ‘paid news as any news or
analysis appearing in the print or electronic media for consideration in cash or kind’104.
A paid news is a where an advertisement is used as a news. To put it in other words, the news
channels advertise a party, or a person (mostly political) under the colour of news. Firstly we
analyse the term ‘advertisement’.105 In an advertisement a person, an institution, any product,
any event, or any other element is promoted through the media, and the media for this promotion
receives some monetary considerations. An advertisement is different from the news which is
projected by the media. The media does not receive any monetary consideration for news, where
as in an advertisement.
For managing media coverage either in favor or against of any person has begun. In this regard
media houses charge money for the desired coverage by politicians, self-styled babas and
companies. For giving desired coverage media companies have even taken partnership in
103
Puja Mondal, Negative Effects of Electronic Media on Society and Culture!, your article library.
104
www.prsindia.org/parliamenttrack/report-summaries/issues-to-paid-news-278 accessed on 16.04.2019 at 2:00
pm.
105
https://www.prsindia.org/theprsblog/paid-news-spotlight

corporate houses. This game of managing news is not only limited to publishing of desired news
but it also includes negative reports which are sidelined. “Negative news against corporate are
sidelined. From the time, where the thin line between editorial and advertising has been
removed since then the private dealings have affected the concept of independent media .News
spaces are saleable.”
The main criticism of paid news is leading to change in the nature of news coverage. For
example news regarding politicians, party or organization is limited by creating pressure,
publishing news in their favor by taking money and favoring them by writing news against their
opponents. Many Journalists are worried with this situation. Concern of Anand Pradhan’s worry
could be realized by the seriousness of situation-“It is said that once there was a thing called
investigative journalism. It seems that with paid news it has become History. Not only
investigative journalism, paid news cancer has started killing the voice and soul of journalism.
As a result the edge of news media is becoming blunt and voice is becoming weak. But sick
news media is not good news for Indian democracy. The fear is that somewhere this path of
paid news will lead to a path towards paid democracy.106
5.6 26/11 COVERAGE AND SELF REGULATION
Indian media never faced this sort of test as it did during the coverage of the Mumbai terror
attacks in November 2008. Blunders were committed by TV channels as they did the live
reportage, even of sensitive operations to recue hostages . Transcripts of conversations between
the terrorists and there handles, released to the press subsequently , ands it shows that the latter
guided the terror operations based on the live reportage and information volunteered local news
channels.
Coverage of the Mumbai attacks has shown how national interest and security can be betrayed
and human lives jeopardized by indiscreet and unguided reporting.
All of this was used as a “breaking news”, exclusive to the channel. Some of the live reporting
was trash and insensitive as journalists hassled victims and their family for their reactions.
106
Anand Pradhan, Media ke muh paid news ka khoon, http://teesraraasta. blogspot. in/2012/03/ (accessed on 21
March,2019 at 11:30 am.)

Security officers, serving and retired were interviewed, and both obliged with long and relaxed
commentaries and with what could have been vital information in the hands of the terrorists and
their master-minds, all while the siege was on. A national tragedy was reduced to a reality show.
The problem faced during the Mumbai attacks was not just that the media was unprepared with a
code of conduct for such situations but that the media was unprepared with a code of conduct for
such situations, but that the government was a clueless about the consequences of live coverage
and indiscreet information volunteered by its officers, including security personnel, all beinaired
while the siege was on. It appears that government was unmindful of the necessity to issue basic
directives to the media. 107
Broadcasters and cable operators are in the business of providing consumer services to the
viewer. The viewer pays for the services he enjoys, and even though he may have no privity with
the channel he subscribes to, he is entitled to demand not just news but quality in content. During
the post mortem of the Mumbai attacks coverage, reporting was criticized by authorities on
various counts- not merely for endangering the security operations, but also for the quality of
reporting, for lack of composure and restraint by some journalists. Off the record, Indian officials
admit that, when governments and law enforcement authorities put systems in place in a crisis,
the media, including privately-owned networks and newspapers, do comply. Internationally, such
examples abound – the coverage of the aftermath of 9/11 or the 7/7 London bombings are cases
in point. The media followed guidelines put in place for both access and display of visuals that
could have inflamed passions. Media broadcast information released in regular briefings by
police, intelligence and administrative officials. In serious situations, a few things happen
immediately. A perimeter is set up by first responders, usually local law enforcement, a crisis
group convenes to stay in touch with families, and control rooms are created where officials
deployed to ensure authoritative, credible and clear information give systematic, periodic
briefings to the media, a critical player in any national emergency.108
As a result, some reporters, themselves in an exceptional environment, ended up reporting

operational details, like those of fires being lit inside the hotels under attack, in an attempt to
107
Indo Asian News Service, “ Navy Chief slams TV coverage of Mumbai Attacks”, 2-12-2008.
108
https://thewire.in/media/26-11-mumbai-attack-media-coverage accessed on 22.04.19 at 6:00 pm.

literally smoke out the terrorists. Without appropriate systems and channels of information in
place, journalists went by what they saw, what was visible to the naked eye, some of them,
breathlessly.
5.7 ROLE OF MEDIA ON MONEY LAUNDERING
Media reporting in general, and especially investigative journalism by associated or independent

journalists, or indeed non-governmental organizations (NGOs), are one of the most important
sources of public awareness-raising on corruption. Media reporting is an essential source of
detection in corruption cases, either for law enforcement authorities that investigate allegations
contained in the press, or indeed for companies that decide to conduct internal investigations or
self-report, or anti-money laundering reporting entities that make suspicious transaction reports,
following queries from the media or published articles.
Journalists emphasised the need for a constructive relationship of mutual respect, of public and
justice and finalised cases to be made public. Sometimes in jurisdictions where there may be
political pressure in corruption cases, media reporting can maintain public pressure to continue
with the investigation and prosecution of these cases. Journalists want a reaction to their stories
and an impact on society. They can make sure that prosecutors open up an investigation, for
example by publishing a story with so much evidence that authorities have no excuse for not
investigating it, and by seeking a reaction or comment on the story from the authorities.
Journalists emphasised the importance of not contacting authorities before publication of the
story, to avoid being accused of bias or lack of independence in reporting because people has
more political power than media. While law enforcement and the media have shared goals of
exposing corruption and ensuring that those responsible are brought to account, there can be
challenges in the relationship. From a law enforcement perspective, these challenges can include
managing journalist’s expectations and the limits on information that can be shared about
investigations. Law enforcement authorities must operate in accordance with laws governing the
admissibility of evidence, and collect sufficient evidence to support an effective prosecution of
responsible individuals and/or legal persons. However, there are strong benefits in developing a
productive relationship. Like Neerav Modi and Vijay Malya case, media plays a very important
role in money laundering. For example, from a law enforcement perspective, contact from

journalists before a story goes to print can be extremely valuable to ensure that the report will not
adversely affect an investigation. In some cases, journalists will agree to delay publishing a story
to allow law enforcement to undertake necessary investigative steps before the matter becomes
public and the suspect (and other involved parties) are alerted.109
5.8 SOCIAL MEDIA AND CRIMINAL ACTIVITIES
The social media has also become a place for criminal activities. Lot of criminal activities is
taking place through the social media.
• POSTING OFFENSIVE TEXT
Sometimes people post the offensive text related to known or unknown person, institution, is
posted, with a view to damaging his image. The content here is generally not verified, and the
language used against the person is very harsh. Even false allegations are levied. Use of this
platform is often done to do character assassination, to do rude comments etc.
• POSTING PRIVATE VIDEOS
There were series of cases where the secret videos of the ladies were taken and then they were
blackmailed. Recently in Tamil Nadu a girl committed suicide after her morphed pictures were
released along with the mobile number of her father110. This is not the only or isolated incidence,
there are many others. A spy camera was installed in the changing room of Ms SmritiIrani, the
then HRD minister, at Fab India oulet, Candolim, Goa.111 Such type of activities can be done as
it is very easy to have access to social media. Many unhappy people may tend to do so with a
view to take revenge. Some may do it to force a girl to submit to their demands.
109
CIJ, Paradise Papers: Secrets of the Global Elite, www.icij.org/investigations/paradise-papers/.
110
http://www.newindianexpress.com/states/tamil_nadu/Girl-commits-suicide-after-morphed-pics-appear-on-
Facebook/2016/06/28/article3503206.ece-Published:28th June 2016
111
http://indianexpress.com/article/india/india-others/smriti-irani-spots-camera-facing-trial-room-police-register-fir-
against-store/published on April 4, 2015

• POSTING THE LINKS OF PORN VIDEOS

This kind of offence is done by the people with poor mentality. They upload or share the porn
videos. This is also a criminal offence.
• ONLINE DEFAMATION AND TRIAL ON SOCIAL MEDIA

The social media can be said to be the hub for defamation. Young children who are above 12
years of age have an access to the facebook112. The age of the people who get access to social
media like whatsapp may be even less. The children of such young age may not be well versed
with the legal provisions relating to defamation, and end up in posting something which may be
defamatory. The nature of facebook is such that the comment may spread very fast. Some other
people may do it purposely with a view to get pleasure. Spreading religious hatred on Facebook
and other social media are also flooded with the messages which tend to spread religious hatred
and communal violence. Generally on facebook, this message is forwarded with intention to get
like. However they end up spreading the feeling of jealousy towards the other religion, which
might be detrimental to the unity of the nation, pushing the nation on the brink of communal
disharmony. Spamming To spam means to send immaterial or unwanted messages through the
medium of internet. Anybody who does so is termed as a spammer. Previously these spammers
used to target those email ids which they could obtain easily from chat rooms, customer lists etc.
The result would be that the inbox of the mail would be blocked. Later on however the email
filters also got refined and as a result the inbox does not get blocked. The spammers now have
started to attack through social media. Out of many ways, one way as to how the spammers carry
out their attack is that they hack the account of the user, and then they can send the fake
messages to the followers or the contact list.
• CYBERSTALKING
Cyber stalking is just like ordinary stalking. The only difference is that, in ordinary stalking the
stalker physically stalks the victim, and in cyber stalking, the stalker keeps a eye on the victim
through the use of technology. The cyber stalkers use the gadgets like email, messengers to keep
112
It is mandatory that the person who is desirous of having facebook account shall be of 12 years of age.

the tab on their victims. They harass the victims by monitoring them, threaten them or to
manipulate or destroy the data of the victim etc.
5.9 #METOO MOVEMENT: TRIAL BY SOCIAL MEDIA
Only in a year, the #MeToo movement became a global phenomenon. On social media, it
became a simple way to express harmony with victims of sexual harassment and abuse, as well
as an easy way to comment on the outstanding power imbalance that still exists in American
society between men and women.113
5.9.1 THE BUILDING BLOCKS OF A GLOBAL PHENOMENON
In thinking about how and why the #MeToo movement was or at present so successful, it is
useful to consider all the various elements that made it so successful:
• A social media influencer with a powerful voice

• A timeless message that transcend cultures and nations
• Social platforms – Twitter and Facebook – that makes it very easy to re-tweet and like
content
• A hashtag that is simple, direct, empowering and highly personal.
5.9.2 SEXUAL VIOLENCE AGAINST WOMEN
The UN Declaration on the Elimination of Violence Against Women defines violence against
women as: “any act of gender-based violence that results in, or is likely to result in physical,
sexual or psychological harm or suffering to women”114. Violence against women is due to both
the manifestation of sex inequality and the unequal balance of power among sexes in society.
This imbalance of power degrade women in society and allows men, whether they are spouses,
partners, parents, other family members, neighbors, teachers, employers, etc., to take advantage
113
https://socialmediahq.com/the-metoo-movement-shows-the-power-of-social-media/ accessed on 05.04.2019
at 7:00pm.
114
(UN, 1993).

of this power. While the term “violence against women” encompasses a variety of abuses that
target women, which includes all unwanted sexual advances ranging from verbal assault to rape.
The World Health Organization (WHO) in its 2002 World Report on Violence and Health
defined sexual violence as “any sexual act, attempt to obtain a sexual act, unwanted sexual
comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using
oppression, by any person regardless of their relationship to the victim, in any setting”.
5.9.3 SOCIAL MEDIA ACTIVISM AND “SLACKTIVISM”
Social media has provided a platform for its users to express their opinions, feelings and views
on topics of their interest. And now, it has evolved into an accessible way for individuals to
interact with the global community with a single click of a button. Facebook, Twitter and other
social networking and content sharing sites facilitate the communication of localized issues to a
global audience. Due to this easy access to world news, visibility of social issues and events has
increased. New media technologies have transformed the way million people engage in activism.
Online activism includes proactive actions to achieve a common goal or reactive actions against
certain controls and the imposing authorities.115
Social networks provide not only a platform for people to exchange ideas, but also a simpler way
to participate in activist causes on what they are passionate about. Social media activism has
become part of the twenty-first century activism that is either initiated online and moved offline
or remains on social media with no action ever taken. This issue of the mobilization of
movements from social media into the physical world is a common criticism of social media
activism. However, millennials have arguably developed a sense of community through using
social media as a tool for organizing and implementing social movements. The process of
mobilization involves the process of gathering individuals and groups around something they
share in common. Social media gives them access to social issues outside their localities,
allowing for worldwide support of global issues and mobilization.
115
Alcides Velasquez & Robert LaRose (2015) Social Media for Social Change: Social Media Political Efficacy and
Activism in Student Activist Groups, Journal of Broadcasting & Electronic Media, 59:3, 456–474, DOI:
10.1080/08838151.2015.1054998

While the #MeToo movement has moved offline into the physical world and has provoked
various policy and societal changes, its impacts are relatively small steps in the battle against
sexual harassment.. #MeToo has aided in making this systematic change by framing sexual
violence as a social and cultural problem, rather than an individual problem. Framing the issue in
this way allows people to think about the broad range of actions we can take to prevent sexual
violence, rather than making individuals deal with it on their own.
5.10 ROLE OF MEDIA TO FIGHT AGAINST CORRUPTION
Traditionally media was not meant to be to fight against corruption.. However, they are
important in achieving the cultural change that must accompany any legislative change to make
laws and institutional changes sustainable. Media can strengthen the effect of anti-corruption
legislation by
a) reaching and mobilizing a broader audience,
b) motivating political leaders to act, and
c) facilitating a cultural change that will improve the sustainability of change.
Media are essential in changing people’s beliefs about the prevalence and legitimacy of
corruption. The media’s ability to change perceptions, norms, and behavior is at the core of their
relevance for the fight against corruption. Every society is built on norms and rules and has some
standards. Norms are expected behavior and regulate the way we interact with each other. The
norms that we accept for ourselves and the norms that we believe the people around us apply to
their own behavior. Whether people accept corruption, go along with it, or stand up against it
depends on whether we are aware that corruption is wrong and whether we believe that other
people think that corruption is wrong, too. Because perception varies. If we assume that most
people do not mind paying a bribe to a local official or that most people think that there is

nothing they can do against government corruption, then we will tend to just accept it, ourselves
and not do anything about it.116
Media provides a public forum or platform for citizens to voice their opinions on and
experiences with corruption. This method goes back to the idea of the public sphere, which
posits that communication flows between state and citizens form a space where accountability
and legitimacy are exchanged between both sides. In this ideal democratic public sphere, the
media have a responsibility to reflect the viewpoints and political views in society. This way they
maximize the diversity of perspectives and arguments in the public sphere, which can then
inform public debate, deliberation, and policy-making.117 By reflecting a range of perspectives
the media can help introduce innovative solutions to the problem of corruption and provide a
wide range of suggestions and arguments that citizens can use in their particular circumstances.
5.11 LEGAL SCENARIO
5.11.1 LAW COMMISSION’S 200TH REPORT

The 17th Law Commission has made recommendations to the Centre to enact a law to prevent
the media from reporting anything prejudicial to the rights of the accused in criminal cases from
the time of arrest, during investigation and trial. The subject “Trial by Media: Free Speech vs.
Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)” was
taken up suo motu by the Commission having regard to the general prejudicial coverage of crime
and information about suspects and the accused for the both in the print and electronic media.
• According to our law, a suspect/accused is entitled to a fair procedure and he will

presumed to be innocent till he proved guilty in a court of law. No can be allowed to
prejudge or prejudice his case by the time it goes to trial.”
• It also said that publications, which interfered or tend to interfere with the administration
of justice would amount to criminal contempt under the Contempt of Courts Act, 1971
116
The Role of Media in Combating Corruption; Tobias Dahlstrom. Phd. Student, Economics, Jönköping
International Business School, Sweden
117
Corruption; Cause, Consequences and Cure; U. Myint; Asia Pacific Development journal Vol. 7, No. 2,
December 2000.

and “if in order to preclude such interference, the provisions of that Act impose
reasonable restrictions on freedom of speech, such restrictions would be valid.”
• The Law commission report define that at present, under Section 3 (2) of the Contempt of
Courts Act, such publications would be contempt only if a charge sheet had been filed in
a criminal case. The Commission has suggested that the starting point of a criminal case
should be from the time of arrest of an accused and not from the time of filing of the
charge sheet. In the opinion of the Commission such an amendment would prevent the
media from prejudging or prejudicing the case.
• Recommendation to suggested empower the High Court to direct a print or an electronic
media to postpone publication or telecast pertaining to a criminal case and to restrain the
media from resorting to such publication or telecast..
• The report also said that publications with reference to character of the accused, previous
convictions, confessions, judging the guilt or innocence of the accused or harm the
reputation of witnesses could be a criminal contempt.
• The report has also defined the recent phenomenon of media interviewing potential
witnesses, about publicity that was given by the police and about investigative
journalism. But the Commission said that this report was important and crucial for the
country as far as criminal justice was concerned. Since there was interference with the
due administration of criminal justice, this would have to be remedied by Parliament.118
118
“Enact law to regulate trial by media: Law Commission”,The Hindu Online Edition
http://www.hindu.com/2006/09/03/stories/2006090303411000.htm accessed on 26.04. 2019 at 3:00pm.

5.11.2 MEDIA GUIDELINE’S CASE
SAHARA INDIA REAL ESTATE CORPORATION LTD & ORS. VS. SECURITIES &
EXCHANGE BOARD OF INDIA & ANR119.
In this case five judge constitution bench was held when during pendency of appeal despite the
interim order of the Court some of the new papers published the proceedings of the judgment,
then Supreme Court laid down following guidelines for publication matter of pending cases:
• PRIOR RESTRAINT
Such orders prohibiting publication for a temporary period during the course of trial are
permissible under the inherent powers of the court whenever the court is satisfied that intrest of
justice so requires. Such a temporary prohibition of publication of court proceedings in the media
under the inherent powers of the court cannot be said to offend Article 19 (1) (a).
• CONTEMPT OF COURT ACT, 1971

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. The
inaccuracy of 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.
• ORDER OF POSTPONEMENT OF PUBLICATION
Right to freedom of expression under the First Amendment in US is absolute which is not so
under Indian Constitution in view of such right getting restricted by the test of reasonableness
and in view of the Heads of Restrictions under Article 19(2). Thus, the clash model is more
suitable to American Constitution rather than Indian or Canadian jurisprudence, since First
Amendment has no equivalent of Article 19(2) or Section 1 of the Canadian Charter. This has led
the American Courts, in certain cases, to evolve techniques or methods to be applied in cases
119
(2012) 10 SCC 603.

where on account of excessive prejudicial publicity, there is usurpation of court's functions.

These are techniques such as retrials being ordered, change of venue, ordering acquittals even at
the Appellate stage, etc. In our view, orders of postponement of publications/ publicity in
appropriate cases, as indicated above, keeping in mind the timing (the stage at which it should be
ordered), its duration and the right of appeal to challenge such orders is just a neutralizing
device, when no other alternative such as change of venue or postponement of trial is available,
evolved by courts as a preventive measure to protect the press from getting prosecuted for
contempt and also to prevent administration of justice from getting perverted or prejudiced.
• RIGHT TO APPROACH THE HIGH COURT/SUPREME COURT
Anyone, accused or an aggrieved person, who genuinely apprehends on the basis of the content
of the publication and its effect, an infringement of his rights under Article 21 to a fair trial,
would be entitled to approach an appropriate Writ Court and seek and order of postponement of
the offending publication and the court may grant such preventive relief, on a balancing of the
right to a fair trial and Article 19(1) (a).
5.12 POSITION IN SINGAPORE
Recentely, On 8th May, 2019 Singapore’s parliament has become the latest government to pass
law which aim is to curbing the spread of fake news. The Protection of Online Falsehoods and
Manipulation Bill, gives Singaporean ministers powers to demand that companies like Facebook
and Twitter put fake-news warnings next to posts or take them down completely. The
government has emphasised that the law would not be used to target opinions, but only
falsehoods that could prove damaging and it will damage mid set of people.
5.11.1 AMBIT OF THE LAW
It bans the spread of what the government decides which are false statements against the public
interest. A person found guilty of doing this in Singapore could be fined heavily and or jailed for

up to five years. It also bans the use of fake accounts to spread fake news and this carries
penalties of up to S$1m (£563,000, $733,700) and a jail term of up to 10 years.
The law can be applied across a broad range of platforms, from social media to news websites,
which also face penalties if they do not comply with orders to take down content or post
corrections. The fake news law has attracted increasing criticism since it was unveil with many
saying it threatens freedom of expression. One issue was that other states could follow suit in
ordering platforms to push out corrections, said Singaporean civil rights activist and editor
Kirsten Han.
One main criticism is that the law is phrased too broadly and gives ministers too much power to
decide what is true or false. The International Commission of Jurists has said the bill "does not
provide any real definition of 'false statement of fact' and does not clarify what constitutes 'public
interest'."
SINGAPORE'S GOVERNMENT
The Singapore government has said the country needs strict laws given the potential for fake
news to provoke racial and religious disharmony, and that the government needs the power to act
swiftly to stop the viral spread of falsehoods.120 It has argued that the law safeguards against
abuse of power by allowing judicial reviews of government orders. Singapore now joins
countries such as Russia, France, and Germany which in recent months have passed tough laws
against fake news or hate speech. It is ranked 151 out of 180 countries in this year's World Press
Freedom Index.
120
https://www.bbc.com/news/world-asia-48196985 accessed on 27.04.2019 at 6:45 pm.

CHAPTER 6
CONCLUSION AND SUGGESTIONS

CONCLUSION
“The news media are, for the most part, the bringers of bad news... and it's not entirely the
media's fault, bad news gets higher ratings and sells more papers than good news”.
-Peter McWilliams
Our Constitution is based on the principle of checks and balances. The preamble expresses two
ideas which complement each other namely,
1. Rights of the individual which correspond to the duties of the State towards the
individual, and
2. Duties of the individual towards the State which correspond to the rights of the society
against the individual.
The State is under obligation not to infringe upon the rights of the individual. Similarly, the
individual is obliged to contribute to the social welfare121. So every attempt needs to be made so
that this mutual obligation does not get disturbed. We are given the freedom of speech and also
we can express ourselves. But, the beauty of the freedom lies in its limits in the interest of the
society.
It is suggested that when an individual is able to use his freedom for the betterment of other
besides self, it would be a State of ultimate ecstasy. Therefore, when the media, besides enjoying
so much of freedom also enjoys an individual ‟s confidence, its role in our country today must be
to help the people in their struggle against poverty, unemployment and other social evils as well
as make India a modern, powerful, industrial State. Our people must develop rational, logical and
questioning minds, abandon Superstition and escapism. For this purpose the media can be or
must be play a powerful role.122
The media has always risen to the situation whenever there is crisis with booming information
and mind boggling entertainment. In the context of global invasion and competition, the need of
the hour is sober introspection by journalists and not losing the focus on the paramount duty of
121
V.S. Deshpande, “Right and Duties under the Constitution", 15 JILI.(1973), 94-108 at 95.
122
Markandey Katju, “Freedom of the Press and Journalistic Ethics”, 2 NMLR 2011, 1-7 at 6.

media to be Fourth Estate by by-passing the laws, without making any compromise with vested
interests. Media should act as torch that shows the way and not fire that destroys; although both
give light. No one is perfect in this world and neither is media. On one hand media is playing a
very crucial role to preserve democratic values and help to workable democracy whereas, on the
other hand, media is also having certain drawbacks like, in many occasion media violates the
right to privacy of the citizens, interfere in administration of justice, twisting the facts which rise
confusion in the people, for TRP, media rise non-issues in to the real issues, Paid News,
tendency to brand particular community or individuals as criminals etc., These things shows that
still lot of scope for the improvement by which the media can rise up to the expectation of the
people. Media is like a watchdog in democracy. It keeps government active, being just an
informer; it has become an integral part of democratic system. After all, on the basis of above
discussion one can say that the present media revolution has helped people in making decisions
after a proper information through the media and this has led to the beginning of a new era in
Indian democracy.
Lastly, it becomes clear that the media had a more negative influence rather than a positive
effect. The media has to be properly regulated by the courts. The media cannot be granted a free
hand in the court proceedings as they are not some fair event. The law commission also has come
up with a report on “Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure”
(Amendments to the Contempt of Court Act, 1971) [Report number 200 prepared in 2006].
The most suitable way to regulate the media will be to exercise the contempt jurisdiction of the
court to punish those who violate the basic code of conduct and rules. The use of contempt
powers against the media channels and newspapers by courts have been approved by the
Supreme Court. The media cannot be allowed to intervene freedom of speech and expression to
an extent as to prejudice the trial itself.
The print and electronic media have gone into violent and unfair competition, as it is called
‘aggressive journalism’ that a huge number of cameras are flashed at the suspects or the
accused and the police are not even allowed to take the suspects or accused from their transport
vehicles into the courts or vice versa. Initially, journalism was not under pressure to push up TRP
ratings or sale. So the journalists did their work with serious intention and conviction, with

courage and integrity. They did not pronounce people guilty without making a serious attempt to
study the charges, investigate them, and come to their own independent conclusions, without fear
or favour. They did not blindly print what law enforcers claimed, what the administration said or
what politicians planted on to them. That is why people trusted them. But there is different self
acquired role of media in form of ‘media trial’.
Everyone manipulates the media to serve their own interests or hurt their rivals (channels). The
problem does not lie in media’s exposing the fault of a bad investigation by police, or mal-
performance of the duties intended to the civil servants but the eye-brows start to raise when the
media ultra-vires its proper jurisdiction and does what it must not do. The sub-judice issues into
public keeping at risk the sanctity of judicial procedures and ‘right to life with dignity’ of
accused and suspects. The media trial has now moved on to media verdict and media punishment
which is no doubt an illegitimate use of freedom and transgress the careful demarcation of legal
boundaries.

SUGGESTIONS
Freedom of Press is not specially mentioned in Part III of Indian Constitution, but the Hon'ble
Supreme Court in a number of judgments has recognized that freedom of speech and expression
also includes freedom of press1. In the changing socio-economic conditions of a country like
India, the role of media press has gained prominence and hence it is usually quoted that "Media"
is the fourth pillar of Indian Democracy. According to criminal jurisprudence, a
suspect/accused is entitled to a fair trial and he will be presumed to be innocent till proven guilty
by a Court of law. No one can be allowed to prejudge or prejudice his case till the completion of
trial or before the judgment pronounced. However, media on account of excessive coverage or
news goes beyond its area and publishes interviews of witness or relative of a victim and
prejudge the issue of conviction of the accused while the matter is pending adjudication in a
court of law. This has a tendency to prejudice the mind of Court, prosecutor and general public
in the society.
Art. 19 (1) (a) of the Constitution of India guarantees freedom of speech and expression and Art.
19(2) permits reasonable restrictions to be imposed. Article 19(2) does not refer to
'administration of justice' but interference of administration of justice is clearly referred in the
definition of 'criminal contempt' in Sec. 2 of the Contempt of Courts Act,1971 and in Sec. 3 is
amounting to contempt. Therefore, publications or coverage which interfere or be inclined to
interfere with the administration of justice amount to criminal contempt under the Contempt of
Court Act and to avoid such interference, the provisions of that Act impose reasonable
restrictions on freedom of speech, such restrictions would be valid.
Under Article 19(1)(a) of the Constitution, the rights of the freedom of Press is recognized as
Fundamental Rights and under Article 21 of the Constitution the accused/suspect and under trial
and the parties have Fundamental Right to have a free and fair trial. Therefore balancing between
the two fundamental rights has become conventional and the time has come that Courts should
give appropriate directions with regard to reporting of matters (in electronic and print Media)
which are sub judice. When rights of equal weight conflict then Courts have to develop

balancing measures based on re-calibration under which both the rights are given equal space in
the Constitutional idea. In the Constitution of the United States of America, freedom of press is
absolute and any interference with media to report, remark upon pending trial is illegal and it
will be punished.
The Law Commission of India in order to harmonize the aforesaid two rights Freedom of Press
Versus Right to free and fair trial, in its 200th Report4 submitted on 31st August 2006
recommended various amendments to the Contempt of Court Act 1971 and measures of
postponement of proceedings and that such powers cannot be vested in the subordinate courts
where the criminal proceedings are 'active'. This is because under the Contempt of Court 1971
Act, the subordinate courts have no power to take action for contempt. Under Section 15(2), they
can only make a 'reference' to the High Court. Further, the balancing of the rights of freedom of
speech and the due process right of the suspect/accused as explained in Maneka Gandhi’s5 case
can be done more appropriately by the High Court which is a Constitutional Court. For the
purpose of passing delay orders will be a Bench of not less than two Judges in High court.
It needs to be valued that Media also plays a good role while informative corruption in
government exchequer and in bringing out the government's inaction on many occasion to the
lime light and eventually action is taken. But at the same time conflicts arise when a medium
transgress its sphere and tries to usurp the power of judiciary and make judgmental comments on
pending trials. But balancing between the rights of people to know and presumption of the
accused to be innocent till he is found guilty by a competent court, has become predictable but
competition regarding publication and coverage among various media houses having a tendency
to interfere with administration of justice has become matter of distress for legislature as well as
judiciary.
1. MEDIA ETHICS
Professionals of mass media like other professional are governed by all the laws of the land. In
the profession of mass media there is a considerable area which remains out of the domain of
laws and must be governed by professional code of ethics or self regulation. At present, there
was rise in demands from all fields that there should be ethical norms for the media, there must
be codification of ethical norms which are applicable uniformly and followed by the media
houses at the time of the reporting the events and news, initials should be taken by the media
institutions and the State. Media institutions considered as social institutions which affect people
perceptions and understanding the State affairs. Most of the media agreed to have ethical code
and conduct for the media. Media plays a very important role in legal system. From this role of
media, various media organizations have developed common institutional features which include
good journalism practice, and ethical norms.123
Throughout the world media organizations voluntary accepted certain code of ethics, media
should at least following this code of conduct-
1. At the time of reporting journalist should be fair, accurate, and unbiased for his every
report.
2. When any media did an error at the time of reporting any news then it has the moral duty
of the media that errors of facts should be corrected or clarification need to be published.
3. It is very necessary to attempt to protect public interest at the time of communication to the
public while exercising the rights of media.
4. Media should be avoided to disclose if necessary, race or religion of the person in the
news.(in exceptional cases ).
5. To avoid the discrimination on any basis, when media providing information to public at
large.
6. To see how human rights and fundamental right to be protected and preserved.
7. Media should be observed restraint in reports dealing with tension leading to, or likely to
lead to public disorder.
8. Media should not glorify the act of violence in any manner.
9. Media or journalist should not be exploited their status for non journalistic purpose.
10. Media should be given due respects to confidence, and privacy of the individual.
123
Sigurd Allern& Mark Blach ,“The News Media as a political Institution”, Journal Studies, pp. 94-95,(2011)

11. Media should maintain dignity of the all State institutions.
The Press Council of India has laid down the code of ethics under the Press Council rules
concerning defamation, fair sex, young persons, copyright, communal harmony, privacy,
obscenity, contempt of House of parliament and contempt of Courts, rumors, cultural and social
values, advertising, sting operation, etc. Apart from the Press Council, the business society has
developed the norms to regulate the advertising aspects.
Offensive and objectionable shows should be restricted by the government, either such programs
should be banned or should be declared adult shows. There should be strict guidelines for the
broadcasting of programs and its contents. Governmental authority should be kept eyes on
offensive and objectionable telecasting and printing of materials and whenever necessary take
strict actions against violation of these guidelines. There should be effective machinery to
regulate media ethics whenever any complaints are made with regard to violation of matters
referred in code of ethics.
2. INFORMATION SHOULD BE AUTHENTIC
The prime function of the media in democratic State is to provide information to the public at
large. But, contrarily it was seen that media providing information to suit the interest of a
particular class and community. Information provided by the informative companies to the
receiver is leading to grave harm in individual’s life or society. So media should be cautious in
exposé information and must be sure about accuracy and authenticity of the facts being
conveyed. When media informing to public at large then it is the prime duty and the role of
media in democracy that truth must be highlighted. It is also suggested that media should not
publish or present unverified materials and unseen events as verified and seen.
The media houses and the people involved should always be ready to publish corrections and
explanations for any errors they made at time of informing or reporting. Media news and
reporting should reflect the true cultural of diverse community which they represent and should
not try to impose conflicting values on the people. Media should identify overlooked values and
carry debate over it. There is no doubt that advertisement is the main source of earning. Hence,
media should be seen and promote only such advertisements which are civilized, safe products

and scientifically tested, because life of the people and their truest in media is more important
than the money. So, whatever information media communicate the public at large, should be
supported.
Media using works or writings or ideas of one person as another’s without mentioning the
sources is violation of ethics of journalism. Media should not publish news of other publisher as
their own. This is violation of moral ethics of journalism. Whenever Governmental action goes
wrong it is the media to inform the public and criticize the governmental malfunctioning of the
system. Therefore media keep the control over wrong functions and policy of the government by
criticizing the same. However there is very thin line between the fair criticism and sedition. So
media persons should be trained in line to understand the same and use proper language at the
time of criticizing the government.
3. “GENERAL PUBLIC INTEREST” AS A GROUND FOR

REASONABLE RESTRICTION
The general public interest should be included as additional ground for reasonable restriction and
the benefit of such amendment has to prohibit hate speech through media propaganda based on
the religion and caste. This restriction may curtail incidents of illegal strikes and bandhs in the
name of freedom of speech and expression. It may also control the unethical behavior of not
allowing objectionable contents spread through any communication.
In support of this proposal, we can consider the argument of Chairman of Press Council of India,
Markandy Katju, who suggested that, media regulation is necessary. He explained over it that
what he wants is regulation of the media and not control the media totally. Here regulation and
control is two different things. Regulation means there is freedom but subject to reasonable
restriction where as control means no freedom. Today media became very powerful and having
wider scope in the sense of reaching the audience, had a strong impact on the mind and life of the
people. Hence, it should be regulate in the public interest.124
124
“Need for Media Regulation”, available at http://www.thehindu.com/opinion/lead/Article33
74529.ece?Homepagetrue accessed on 05.05.2019 at 6:30 pm.

4. “INDIVIDUAL PRIVACY” AS A GROUND OF REASONABLE

RESTRICTION
D.D. Basu125, a famous jurist, made distinction between the public figure and private individual.
According to him a person who is not public figure, his personal privacy should not be violated,
where as celebrity who has chosen to be public figure should not complain when wide publicity
is given to them. In simple terms, a person who has public figure cannot claim similar extent of
privacy as a normal person. It has been observed by Bridge L. J that, “those who seek and
welcome publicity of every kind bearing on their private lives so long as it shows them.”
5. “ADMINISTRATION OF JUSTICE” AS A GROUND OF REASONABLE

RESTRICTION
One of the criticisms against the media is that it often interferes in the administration of justice
when it starts parallel investigation and much publicity is given before the criminal proceedings
initiated. Such a kind of activity of media is not covered under contempt of Court concept which
is mentioned under Article 19 (2), one of the grounds for imposing restrictions on freedom of
speech and expression.„Administration of justice‟, is needed to be inserted in “reasonable
restrictions” which is helpful to restrain the media activities which unnecessarily interfere in
administration of justice. In the absence of such a ground, authorities are unable to keep control
over the media trial and investigation. So parliament should bring an amendment to the
Constitution and insert the ground of, administration of justice‟ to control the media interference
in Court proceedings.
125
D. D. Basu, Law of the Press, 89 (2010)

6. FREEDOM OF MEDIA TO BE RESTRICTED SO AS TO PREVENT

“HATE SPEECH”
India is a secular State, which means State doesn’t favor any religion or even doesn’t oppose. It
means in the eyes of law all religions are equal and having equal protection. It is not only
function of the State to protect the society against actual breach of peace, but also to create social
atmosphere in which sentiments and feeling of the people with diverse or opposite beliefs are not
injured or molested by offensive publications which provoke groups of different community to
violence. Finally Alladi Krishnaswami Ayyar J had emphasized the need for including the phrase
“class hatred” in the proviso to sub-clause (a). He argued that since the words “defamation”,
“sedition” etc., used under Article 19(2) did not cover “class hatred”. The inclusion of the phrase
was essential to suppress any tendency on the part of the people to promote it. He was supported
by Rajagopalachari who emphasized that the fundamental peace and orderly progress of the
country depended upon communal peace and harmony and therefore speeches and utterance
which were likely to foster communal hatred must of necessity to be prevented.
In conclusion it is to concluded that in Indian democracy media has a responsibility which is

deeply associated with the socio-economic conditions. The present scenario is not quite
encouraging and certain areas need to be addressed. Media organizations, whether in print, audio
visual, radio or web have to be more accountable to the general public. It should be monitored
that professional integrity and ethical standards are not sacrificed for sensational practices. The
freedom of press in the country is a blessing for the people. However, this blessing can go
terribly wrong when manipulations set in. The self regulatory mechanism across media
organizations need to be strong enough to stop flaws whenever they occur. Agencies like Press
Council of India need to be vigilant to stem the deteriotation. Big media conglomerates are a
serious threat. To counter these problem pluralistic media organizations which are financially
viable need to be encouraged. Community participation is a goal that the media should strive for
in a country like India.

REFRENCES
AND
BIBLIOGRAPHY

REFRENCES & BIBLIOGRAPHY
BOOKS
• Aggarwal, Vir Bala(2002) : “Media and Society Challenges and Opportunities”,New

Delhi : Concept Publications.
• Basu, D.D. (1980):“Law of Press in India”,New Delhi :LexisNexis Buttersworths.
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Publications.
• Bhasin, Lalit (2010) :“Media World and Law”, New Delhi : Universal Law Publishing
Co. Pvt. Ltd.
• Divan, Madhavi Goradia, (2010) :“Facets of Media Law”, Lucknow : Eastern Book
Company.
• Gour, H.S. (1998) :“Penal Laws of India”, Delhi : Delhi Law House Pvt. Ltd.
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Pvt. Ltd.
• Singh, J.K., (2009) :“Modern Journalism”, New Delhi : A.P.H. Publishing
Corporation.19.Sinha,
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Pvt. Ltd.

ARTICLES
• Bedi, Shefali (2009) : "Responsibility of Media in a Democracy”.In : Shodh Samiksha

aur Mulyankan(International Research Journal)(August).
• Chopra,Nirmal (2006) : "Freedom of Press and Court Proceedings”. In : Criminal Law
Journal,(May).
• “Content Code, Threat or Necessity”. (2009) In : Civil Services Chronicle(March).
• Jacob, Shojan (2007) : "Trial by Media". In : Criminal Law Journal,(May)
• Shrivastava,Abhinav (2005) : "Effects of Media in Adjudication of Criminal trails”. In :
Criminal law Journal,(May)
• Thapar, Radhika(2010) :"Right to Privacy Under Indian Constitution". In : Insight Legal
EssaysShreeram Law House, Chandigarh
NEWSPAPERS ARTICLES
• Ashutosh, Nandi (2010) : "What is Paid News?". In : The Times of India24 (Oct.).
• Bhushan, Prashant (2005) : "Contempt of Court and the Triple Shield". In :The Hindu07
(Sept.).
• Chauhan, Swaraj (2009) : "Back to Media Basis". In : The Tribune4 (Oct.).
• Dhariwal, Sarabjit (2011) : "Election Commission Working on Code of Conduct for
Media". In : The Tribune17 (March).
• “Editors Guild Expresses Concern Over paid News”. (2009) In : The Tribune24 (Dec.).
• Ray, Justice G.N. (2010) : "The Changing Face of Indian media". In : The Tribune (Jan.).
• Shastry, Trilochan (2010) : "Paid News : The Scourge of Democracy". In : The
Tribune(October)
• Soni, Ambika (2012) : “Watchdog for Pvt. T.V. Channels soon". In: The Tribune15
(March)
• Sorabjee, Soli J. (2010) : "Media Activism and Trial". In : The Indian Express25 (April)

WEBSITES
• www.loksatla.org. "Indian Media Great Power and Great

Responsibility"JayaParakashNarayan.
• .www.lawisgreek.com/"Constitution-India-Advertisement-and-freedom speech".
• www.legalserviceindia.com,"Freedom of Press Vis-a-Vis Responsible
Journalism",Prabhsahay Kaur.
• http://www.presscouncilin.com, "Women and Media",G.N. Ray
• .http://www.eff.org. "The Economy of Ideas : A Framework for rethinking patents and
copyright in the digital age",John Perry Barlow
• www.google.com. "Cyberpirates, The Internet and the Protection of Software
Copyrights",Gaurav Talwar, Deol Kaur
• http://www.misleadingeng.pdf. "Misleading Advertisement and Consumers",Girimaj's
Pushpa
• .http://pcquest.ciol.com"Internet Advertising and Law", Rodney D. Ryder.
• www.rulnlu.ac.in/notice_pdf./charu-article"Look ifone cannot violate your privacy"
Charu Modi.
• www.slidefinder.net/s/section_hidden_camera_undercover"Undercover Reporting JMS
c0019 : Media Law and Ethics", Suhani Jain.
• .en.wikipedia.org./wiki/trial-by-media
• .http://www.answers.com/topic.trial-by media.
• .http://www.harde.net/sahrdc/hrfeatures/HRF164.htm.
• http://answers.yahoo.com2.www.media-awareness.ca
• .www.indialaw.com
• .www.cry.org/home/newsandevents.
• www.abacon.com
• www.mediacrime.com

REPORTS
• Reports of Press Commission, 1954.

• Mass Media in India, 2009, Publication Division, Ministry of Information and
Broadcasting, Government of India.
• Law Commission of India,200 the Report on Trial by Media.

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Dissertation submitted in partial fulfillment of the requirement for the award of the degree of

Master of Laws (LL.M)

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1.1 RESPONSIBILITY OF THE MEDIA IN A DEMOCRATIC

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1.2 TRIAL BY MEDIA

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1.3 THEORIES OF MEDIA INFLUENCE

(B) CLASS-DOMINANT THEORY

(C) CULTURALIST THEORY

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2.1 HISTORY OF MEDIA

(b) THE STATUS OF MEDIA IN BRITISH ERA

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2.2 ORIGIN OF THE WORD ‘TRIAL BY MEDIA’

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2.2.1 HISTORICAL BACKGROUND OF MEDIA TRIAL

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2.3 INTERNATIONAL PERSPECTIVE

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• for the prevention of serious prejudice to a defendant;

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2.3.1 POSITION IN USA

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(i) Speech that invites imminent lawless action

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2.3.2 POSITION IN RUSSIA

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2.4 POSITION OF MEDIA TRIAL IN INDIA

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CONSTITUTIONALITY OF MEDIA TRIALS

3.1 FREEDOM OF PRESS

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3.1.2 SEDITION AND CENSORSHIP

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3.1.3 DISCLOSURE OF SOURCES

3.1.4 PARLIAMENTARY PRIVILEGE

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3.1.5 MISUSE OF FREEDOM OF SPEECH

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3.2 IMMUNITY UNDER CONTEMPT OF COURT ACT, 1971

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3.2.1 PREJUDICE OR INTERFERENCE WITH THE JUDICIAL PROCESS

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3.4 RIGHT TO A FAIR TRIAL

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3.5 RIGHT TO PRIVACY

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3.5.1 THE RIGHT TO PRIVACY – INTERNATIONAL OBLIGATIONS

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3.5.2 INDIAN VIEW