The Constitutionality Of The Media Trials - Critical Analysis

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T21:16:01.100023+00:00

Updated: 2026-08-26T17:05:56.057+00:00

THE CONSTITUTIONALITY OF THE MEDIA TRIALS:

CRITICAL ANALYSIS

Prachi Singh, BA LLB, Gautam Buddha University, Greater Noida

ABSTRACT

The role of media is one of extreme importance in moulding people’s opinion and as well as in encouraging and allowing them to directly participate in the state affairs which is the basic essence of democracy, and which undoubtedly is the main reason why Edmund Burke- has named media as the “fourth estate” of a democratic nation. The media inextricably links the people from the executive, legislature and judiciary, thereby promoting transparency and accountability in the institutional setup and helps these institutions to understand and examine the public response to the actions taken by them while discharging their duties. Media is quite capable of changing the whole viewpoint through which the people perceive various events, this power of theirs if remains unchecked and unaccountable for is quite detrimental to the national and individual interests.

One such example of uncontrolled discharge of freedom by media is them usurping the function of judiciary via pre-trial publicities which directly prejudices the interests of the parties involved thereto and thereby leading to miscarriage of justice. The paper attempts to assess the impacts of media trial over various facets including fair trial, and the balance between freedom of press and Independence of Judiciary. Keywords: Media trial, prejudicial, fair trial, open justice, freedom of press, Administration of justice, sub- judice.

INTRODUCTION

“The hand that rules the press, the radio, the screen, and the far spread magazine, rules the nation. ” - Justice Learned Hand in US Supreme Court The above words aptly describe the role of media in mobilizing the thinking process and in formulation of the public opinion. The fundamental right of the freedom of press is implicit in the right to freedom of speech and expression enumerated under Article 19(1)(a) and is widely considered as a requisite for political liberty and proper functioning of the democracy. Dr. Ambedkar quoted American Press Commission in this regard “Freedom of press is essential to political liberty. Where men cannot freely convey their thoughts to one another, no freedom is secured, where freedom of expression exists the beginning of a free society and means for every retention of liberty are present.

” 1 Press plays a vital role of conscious keeper, a watchdog of the functionaries of the society and attempts to attend the wrong in the society, by bringing them to the public knowledge. It is undisputed that media by condemning heinous crimes and bringing out the contemner to the public gaze has benefitted the judicial wing of the nation. However, there are always two sides of a coin and the freedom of the press if left unbridled for, has the tendency to lead to anarchy, thereby causing public disorder. With increased role of media in globalized world there is a need for the press professionals to resort to ethical journalism and it is the duty of the media to ensure that they are not providing the public with the information that is factually incorrect, biased or unverified.

2 With great power comes great responsibility, thus the press is also under the responsibility to exercise their powers in the line of responsible and accountable journalism. The freedom of press is not an absolute right like any other right conferred by the constitution of India and is subject to the reasonable restrictions under Article 19(2) as it is a direct emanation from freedom of speech and expression as envisaged under Article 19 (1)(a). In an increasingly competitive market for the sake of TRP’s, the media has started indulging itself into the reporting and publication of sensationalized news with distortion of facts or without ascertaining the veracity in the statements being published.

The media for the pursuit of commercial interests motivates the intrusive newsgathering practices which tend to impede the privacy of the people who are subject of such coverage and another such practice is extensively 1 Dr. J. N. Pandey “Constitutional law of india”229 (Central Law Agency, Prayagraj, 16 th edition, 1969) 2 Sanjoy Narayan Ed. In Chief Hindustan v. Hon. High Court of Allahabad through R. G. , AIR 2011(9) SC 532

covering the matters sub-judice by publishing the information and opinions prejudical to the interests of the parties involved thereto. Such publication of sensationalized news stories of the matters sub- judice have steadily gnawed at the guarantee of right to fair trial and have seriously overlooked the vital gap between the accused and the convict keeping at stake the golden principles of “presumption of innocence until proven guilty” and “guilty beyond reasonable doubt”. In recent times there have been plethora of instances in which the media has conducted trial of an accused and has passed its own verdict before the court of law passes its judgement.

There are undoubtedly certain instances where media has played a positive role like that in Jessica Lal case, Priyadarshani Mattoo case and RK Anand BMW hit and run case but the media in the infamous case of Aarushi Talwar3 drew widespread criticism where it pre-empted the public that her own parents were guilty of double murder while the case was under trial. Both the parents were acquitted by HC in 2017. This phenomenon has been popularly termed as media trial. The expression ‘media trial’ has been rightly explained in the judgement of R. K. Anand v. Registrar, Delhi HC4 : “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 court 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 nearly 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. ”

CONSTITUTIONALITY OF MEDIA TRIALS

FREEDOM OF PRESS AND THE MEDIA TRIALS

Dr. B.R.Ambedkar during the constitutional assembly debates in response to giving the freedom of press an express right under the constitution of India reiterated “that freedom of speech and expression of the press is at equal footing with that of an individual. The editors, journalists etc. are merely exercising their fundamental right of speech and expression. Thus, there is no requirement of giving a special mention to freedom of press under the constitution.”

3 Nupur Talwar v. Central Bureau of Investigation and Another, AIR 2012 SC 1921

4 AIR 2009 (8) SCC 106

Unlike the US constitution an express mention to freedom of press has not been envisaged under the constitution of India but Supreme Court of India via various judgements have established the freedom of press as an integral part of the freedom of speech and expression enunciated under Article 19 (1)(a). The Hon’ble SC through Venkatramiah J in the landmark judgement of Indian Express Newspapers (Bombay) (P) v. UOI has observed that: “In today’s free world, freedom of the press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible on a large scale, particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society.

The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate (Government) cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities. ” 5 In Bennett Coleman v. UOI 6 Justice Beg while delivering a separate concurring judgement, remarked that: freedom of press is an essential ark of covenant of democracy because public criticism is essential to working of its institutions. The extensive meaning given to the freedom of press emanated from Freedom of speech and expression under Article 19 (1)(a) has given rise to a debate in context of trial by media and possibility of media influencing the outcome of court cases.

With technological advancements in e-media particularly in the arena of investigative journalism various news pertaining to crimes, offences and publication of sensationalized news even before the respective agencies have concluded the investigation procedure etc. The apex court via numerous cases has time and again reiterated the duties of responsible journalism. The phenomenon of trial by press first came before the Apex court in State of Maharashtra v. R. J. Gandhi, where the Supreme Court held that trial by media or my e- media is very antithesis to the rule of law which forms the very basic foundation of the constitution of India. It can well lead to a miscarriage of justice. A judge must guard himself against such pressure and he has to be guided strictly be guided by rule of law. 7 The apex court further reiterated its own words in the case of M. P. Lohiya v.

State of West Bengal 8 : where SC strictly remarked on the interference done by the media which interferes with the administration of justice. The court depreciated the practice and cautioned the publisher, editor

5 1986 AIR 515

6 1973 AIR 106

7 1997 8 SCC 386

8( 2005) 2 SCC 686

and journalist indulging in such a media trial when the issue is sub-judiced. The court advised the journalists to take note of the displeasure expressed by the court. A flagrant example of media trial is that of the Parliament attack case9 where the police called

a press conference just a week after the incident in question and the prime accused Mohd. Afzal self- incriminated himself in front of the national media. The media construed within the public conscience a negative image of the accused even before he was tried. The freedom of press being a facet of freedom of speech and expression envisaged under Article 19(1)(a) is not an absolute right and therefore reasonable restrictions on such a right could be imposed as envisaged under Article 19(2) hence, if the court thinks that the publication is prima facie is prejudical to interests of the party involved thereto, it can impose reasonable restrictions on such publication.

MEDIA TRIAL VERSUS FAIR TRIAL

Article 10 of the UDHR runs as follows “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. ” Article 11 of UDHR provides that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. ” The above principles are also inherent within the constitution of India under part III titled as fundamental rights. Right to a free trial is a fundamental right of every individual enshrined under Articles 14, 20 and 21 of the constitution of India.

There is a basic presumption of innocence until proven guilty and the constitutional protection under Article 21 which protects the right of a person for a fair trial is in law a valid restriction operating on the right to free speech guaranteed under Article 19(1)(a). 10It has been strictly emphasised by the court in R. K. Anand case that the media should not perform acts of courts, but the act of journalism and it should not act as a special agency of courts. The court has the power to pass interim- orders restraining the publication if the court finds out that there exists a real and imminent danger and that continuance of the publication would result in interference with administration of justice. In

9 State v. Mohd. Afzal and Others, 107 (2003) DLT 385

10 Sahara India Real Estate Corporation Ltd. and Ors v. SEBI, AIR 2012 SC 3829

Sahara India Real Estate Corporation Ltd and Ors v. SEBI11 the court held that priorrestraint has not been per-se rejected as being constitutionally impermissible, it is an inherent power of superior courts including High Courts as the right to open justice guaranteed under Article 21 which is a free and unprejudiced right of justice has to be balanced with right to press and expression of ideas a facet of the right to speech and expression guaranteed under Article 19(1)(a).

There has been a recent trend among the media houses to conduct talk shows and commenting on the merits of the case in certain cases even judgements are being pronounced by the news anchors, the media has now instead of performing its basic task which is to disseminate credible information to the citizenries has reincarnated itself into the ‘public court’(Janta Adalat) , which is a mockery of the theory of non- interference or outside influence in the administration of justice. The negative impact of the media trials could be easily understood through the case of Kartongen Kemi Och Forvaltning AB & Ors v. State through SBI 12 (bofors case) in this case the public servants were charged for entering into criminal conspiracy to cheat Government of India to cause them a loss of Rs. 64 crores.

The court observed that after 13 long years of investigation by the Central Bureau of Investigation, there has been no evidence collected against such public officials after the media houses has condemned these officials and already declared them as offenders. It is quite clear from the above cases that the pre-publicity of the trials causes the parties prejudiced an incalculable and irreparable loss to their reputation and they are convicted and humiliated even without a trial which undoubtedly is a manifest violation of the principle of justice, which according to Cardozo is the end purpose of all the laws. It is extremely essential for the proper functioning of glaring the democratic society that the reporting on the matters sub-judice must be subjected to checks and balances, and it must be ensured that such reporting or publication does not hampers the administration of justice.

MEDIA TRIAL VERSUS RIGHT TO REPRESENTATION

The detrimental effects of the media trial have, in the present times, even extended to the basic

11 Ibid.

12 2004 (72) DRJ 693

right of representation. In accordance with the principles of the natural justice each person has the right to be represented by a lawyer of his own choice, but the recent trend among the media houses to create pressure upon the lawyers to not take up the cases. One of such nefarious case is that of Manu Sharma13 in which he the prime accused of a murder of a young woman was represented by a mediocre lawyer and when senior advocate Ram Jethmalani decided to take up the case , he was ridiculed by the media, who labelled the representation by him as an ‘attempt to defend the indefensible.

’ The media’s assumption of guilt of the accused prejudices his right to be represented and even if a lawyer’s duty may not be in consonance with his own moral obligations, it is the right of every person to be represented and a strong emphasis must be laid on the factum that there is an absolute difference between the media’s verdict and court’s verdict.

MEDIA TRIAL AND ITS SUBCONSCIOUS EFFECT ON JUDGES

CARDOZO one of the greatest American Supreme Court judges of all time has remarked with respect to the “forces which enter the conclusions of Judges” that “the great tides and currents which engulf the rest of men, do not turn aside in their curse and pass the Judges by. ” The statement strongly emphasises on the effect of the pre-trial publicities over the judges. There exists two views on such effect, first one is the American view which states that the judge or jurors could not be affected or influenced by such publications while the second view (Anglo-Saxon) view is that the judges might get subconsciously get affected by such publication. Cardozo is also of the opinion that the judicial process does no stand aloof from such publications which directly influences the opinion of the public at large.

Justice R Basant in a recent event held at the India Habitat Centre (IHC) titled as “Conversation on justice” stated that fear of media is an important factor, and it affects the performance of judges, he further stated that there is a need for the judges who can withhold such pressure. 14 In Re: P. C. Sain15 the court expressed that there is a genuine risk of prejudical remarks made by the media via publications or reporting, one of the cause being” the impression that such

13 Jessica Lal case, Manu Sharma v. State (NCT of Delhi), AIR 2010(9) SCC 747

14 Fear of media affects performance of judges: Retired Justice R Basant available at

https://www.barandbench.com/ (last visited on 8/11/23)

15AIR 1970 SC 1821

comments might have on the Judge’s mind or even on the minds of witnesses for a litigant. ” The 200th Law Commission of India Report titled as Trial by Media: Free Speech Vs. Fair Trial Under Criminal Procedure has stated that the judges though not consciously but subconsciously get affected by such publications which makes the people think that the media have an impact over the judges. 16 The Judiciary has not accepted the direct influence of the media publications upon the judges but has showed concern about the impact that media could exert via the publications made during the pendency of a suit or proceeding. In Rao Harnarain v.

Gumani Ram17, the Court depreciated the practice of “trial by media”, wherein the Court observed that journalist cannot take up the role of an investigator during the pendency of a case and then try to influence the Court while the SC has observed that the judges do not get influenced by the propaganda or adverse publicity18.

MEDIA TRIAL AND CONTEMPT OF COURT

The fundamental right to freedom of press is not an absolute right and hence is subjected to reasonable restrictions envisaged under Article 19(2), one such restriction is contempt of court. Any reporting or publication which tends to scandalise or tends to lower authority of the court or judge or prejudices or tends to interfere with the lawful process of court or interfere with due course of justice or administration of justice is Contempt of Court.19 Contempt of Courts Act, 1971 has been promulgated to create a balance between freedom of press and contempt of court and protection of judiciary from wrongful interference in administration of justice. The SC and HC have been vested with inherent power to punish for its contempt under Articles

129 and 215 of the constitution of India.20 Under the act as well HC and SC are authorised to

punish for its own contempt. Two kinds of contempt have been enumerated under the act i.e. civil and criminal and only when a civil or criminal suit is pending it would qualify as contempt.

16 200th Law Commission of India Report, Trial by Media: Free Speech Vs. Fair Trial Under Criminal

Procedure (amendments to the Contempt of Court Act, 1971), 46 (2006), available at: https://lawcommissionofindia.nic.in/reports/rep200.pdf (Visited on November 8,2023)

17 AIR 1958 P H 273.

18 Balakrishna Pillai v. State of Kerala, AIR 2000 SC 2778

19 THE CONTEMPT OF COURTS ACT, 1971 (ACT 70 OF 1971) ,Sec. 2 (c)

20 Article 129- “The Supreme court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself ” Article 215- “Every High Court shall be a court of record and shall have all the powers of such a court including power to punish for contempt of itself”

The object of the code is to ensure that the outer forces does not influence or hamper the administration of justice and also to maintain the majesty and dignity of the courts. The courts however, have resorted to a magnanimous approach while tackling with cases pertaining to the contempt whether it only imposing a fine of Re 1 on senior Advocate Prashant Bhushan for his two tweets one on the former CJI S. A. Bobde and another attributing the Supreme Court in destructing the democracy of India21 or accepting the unqualified apologies and dropping the proceedings and the court has also time and again reiterated that court is not hypersensitive in matters relating to contempt of court.

22 Law of Contempt exudes concern about four practical aspects of the work and functioning of the courts they are Discipline inside the courts, Compliance with court orders and directions, Exclusivity and integrity of the justice system, Prestige and reputation of judges and the courts. Trial must be held in open and reporting of trial is essential as it maintains judicial accountability, but this universally acceptable proposition of public trials in open courts is not absolute and the courts can hold in-camera proceedings if the ends of justice requires so. 23

CRITICAL ANALYSIS

The role of media is undoubtedly of utmost significance in the present times and with the technological innovations over the past time the role of media and e-media has been constantly increasing in providing information to the public at large, with the increasing role, the media in the competitive era have started indulging in what we call as aggressive journalism and investigative journalism. Media trial is the product of such an innovation only, the media via conducting stings, investigations etc have busted out various scams, it is because of such an attempts HDW(Howaldswerske) marine case and Bofors case hit the headlines. This is how the public came to know that Narasimha Rao had bribed the Jharkhand Mukti Morcha MPs and Satish Sharma and Buta Singh had brokered the deal.

The SC in RK Anand BMW Hit and Run held that sting operation conducted by the NDTV was in public interest and served an important public cause. The courts have always been cautious before putting any restrictions on the freedom of press and has resorted to them only when the said publication is hampering the administration of justice, causes breach of privacy and such other reasonable restrictions. Other such examples are the Jessica Lal case where the media successfully brought justice to Jessica

21 In Re Prashant Bhushan & Anr, SCM (CRL.) No. 000001 - / 2020

22 Supra note 2

23 Naresh Shridhar Mirajkar & Ors v. State of Maharashtra, 1967 AIR, 1 1966 SCR (3) 744

lal where the accused was acquitted of all the charges and in Priyadarshani Mattoo case, The Bijal Joshi rape case and Nitish Katara murder where the accused would have gone unpunished if media would not had intervened. The media has been praised for bringing out the truth in above and plethora other cases, but over the time, the line between the trial by media and informative media have gotten fuzzy and unclear, the media now have started to interfere with the functions of the judicial wings of the nation. The media has also pinpointed innocent people in the case of Malegaon blast and Maria Susairaj case ignoring the importance of accuracy, the concept of ethical journalism is often ignored by the media houses, there is a duty on their part to assure that the information published by them is credible and correct.

The pre-trial publicities influence the mindset of the public in such a way, that they all tend to presume the guilt of the accused even when the investigation and trial has not been completed, the over and over telecast of the said shows constantly feeds the public in forming a lopsided opinion directly prejudicial to the right of the accused and striking at the very root of principles of fair trial, natural justice etc. The effects of such a media trial are very detrimental to the parties involved, like in that of bofors case24 where even after 13 long years of investigation CBI was unable to gather any evidence to prove the alleged crime. The Delhi HC in Suo Muto case25 observed that the justice delivery system in India moves forward in a very slow manner and in the course of time if a person who is innocent is subjected to media trial, there is no real remedy for such person.

The press council of India established by the Parliament in the year 1996, lays down norms and regulations which govern the press, media houses all over the nation, the PCI lays down norms for the press to not intrude upon the privacy of persons unless outweighed by genuine overriding public interest (Norm 13). Norm 20 of the PCI lays down that the press should eschew themselves from suggestive guilt by association and other such norms also lay down for the code of conducts of investigative journalism. These provisions are often ignored and not taken into consideration by the press and thus results in the curtailment of the rights of the party, who is the subject matter of such publication. The PCI holds no punitive power, thus these norms have became ineffective in absence of legal sanctions.

24 Supra note 12

25 Suo Motu vs Sri. M.S. Ravi,2009(1) KLD 133.

The 200th law commission Report by the seventh law Commission: Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) has recommended a law to restrict publications or reporting anything prejudical to the rights of accused in the criminal cases from the point of arrest to investigation and ultimately till trial. The report clearly states the damaging effects of the sensationalised news reporting in the administration of justice. The damaging effect of the publications are more in case of high-profile cases of which the case of Sushant Singh Rajput death case (Rhea Chakraborty v. the State of Bihar, 2020) is the example which drastically influences the opinions of the fans and in case of judges, or public officials to which the public poses confidence in as observed by the apex court in Swatantra Kumar v.

Indian Express Ltd 26and such adverse publicity not only causes harm to their reputation but also loss of confidence in the institution itself. The powers of media should be checked and balanced upon, it should not be allowed to usurp the function of the adjudicating authority, and the media should not be allowed to sway the judges and the judiciary must stand impartial and should not be carried away by emotions while pronouncing their judgements.

CONCLUSION

The right to freedom of press an emanation from freedom of speech and expression cannot be allowed to upstage the right to fair trial an emanation right to life and personal liberty. Any institution be it legislature, judiciary, executive or media is liable to be abused if it does not perform its functions within its legitimate boundaries, but sometimes these ultra-vires activities become beneficial like judicial activism. Media trial is also one of such phenomena under which the investigative journalism via the sting operations etc keeps checks and balances over the other institutions, but an excessive breach of the legitimate boundaries has a detrimental impact upon the administration of justice and due regards must be given to fair trial and the procedures of the court.

The media should by itself act responsibly and should ensure the veracity in their statements, the lacunas in the existing laws should be filled up and stringent punishments should be enforced but only in those cases where there is an apparent risk of administration of justice being hampered ,the apex court has also time and again reiterated that ‘the court could grant a

26 207 (2014) DLT 221

preventive relief on balancing right to fair trial and Article 19(1)(a) bearing in mind the principle of necessity and proportionality and should be applied to cases where there exists a real and substantial risk of prejudice to proper administration of justice or fairness of trial. Such a neutralizing device according to the court would not be an unreasonable restriction but on the contrary would fall within the proper constitutional framework27.

’ Media is undoubtedly under a huge responsibility to inform the people around the globe, but they must as well assure that the information being published is done at the right time, an example being of the live feed of air dropping of the NGS commandoes on rooftop of Nariman house during the black tornado operation in Mumbai attacks on the Taj Mahal Palace Hotels, such a live telecast could have caused a serious hazard to thousands of lives inside as the telecast had taken away the element of surprise of the operation. The time when the media will be well regulated by self-censored guidelines, we would be able to retain a 'completely free press’, the dream of our first Prime Minister and that too without any danger being involved.

27 supra note 20

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