A CRITICAL STUDY ON TRIAL BY MEDIA

WITH SPECIAL REFERENCE TO RIGHT TO

FAIR TRIAL
A Dissertation Submitted in Partial Fulfillment of the
Requirements for the Award of the Degree of

Master of Philosophy
in
Law

by
Manasvika S
(Reg. No 1550002)

Under the Guidance of

Sunitha Abhay Jain
Associate Professor

School of Law

CHRIST UNIVERSITY
BENGALURU, INDIA
January 2017
 APPROVAL OF DISSERTATION

Dissertation titled ‘A Critical Study On Trial By Media With Special Reference To Right To

Fair Trial’ by Manasvika S, Reg. No. 1550002 is approved for the award of the degree of

Master of Philosophy in Law.

Examiners:

1. ___________________ ___________________

2. ___________________ ___________________

Supervisor: ___________________ ___________________

Chairman: ___________________ ___________________

Date: ……………………..

Place: Bengaluru
(Seal)




 DECLARATION

I Manasvika S hereby declare that the dissertation, titled ‘A Critical Study On Trial By Media
With Special Reference To Right To Fair Trial’ is a record of original research work
undertaken by me for the award of the degree of Master of Philosophy in Law. I have
completed this study under the supervision of Dr. Sunitha Abhay Jain, Associate Professor,
School of Law.

I also declare that this dissertation has not been submitted for the award of any degree,
diploma, associateship, fellowship or any other title. It has not been sent for any publication
or presentation purpose. I hereby confirm the originality of the work and that there is no
plagiarism in any part of the dissertation.

Place: Bengaluru
Date: ………………… Signature of the candidate
Manasvika S
Reg No.1550002
School of Law
Christ University, Bengaluru




 CERTIFICATE

This is to certify that the dissertation submitted by Manasvika S (Reg. No. 1550002) titled ‘A
Critical Study On Trial By Media With Special Reference To Right To Fair Trial’ is a record
of research work done by her during the academic year 2015-2016 under my supervision in
partial fulfillment for the award of Master of Philosophy in Law.

This dissertation has not been submitted for the award of any degree, diploma, associateship,
fellowship or any other title. It has not been sent for any publication or presentation purpose.
I hereby confirm the originality of the work and that there is no plagiarism in any part of the
dissertation.

Place: Bengaluru
Date: ………………… Signature of the Guide
Dr Sunitha Abhay Jain
Associate Professor
School of Law
Christ University, Bengaluru

Signature of the Head of the Department

School of Law
Christ University, Bengaluru






ACKNOWLEDGEMENT

I would also like to thank our esteemed Director Fr Benny Thomas who has always showed
us the correct path to follow and helped us to realize our true potential that lies within us.

Sincere thanks to our Head of the Department and Associate Dean Dr Somu C.S who has
been a constant source of inspiration.

I would like to thank my guide Dr Sunitha Abhay Jain for her great support throughout my
entire dissertation work. This dissertation would not have been possible without her guidance.
She has been very kind and has always been supportive and open to any new ideas and has
also encouraged me not to lose hope and work earnestly in completing my dissertation.

It would not have been possible for me to complete this dissertation without the constant
support of my parents, brother and sister who instilled confidence in me at every step of my
work and motivated me to manifest my ideas into this structural form.

I am also greatly thankful to the ever supportive and diligent staff of Christ University Library
Bangalore.

Last but not the least my friends who have always prayed for my well being and have stood
by me throughout this work, giving me numerous suggestions to further ornament this work.

Date- (Manasvika S)

vi




LIST OF ABBREVIATIONS

ACHR American Convention on Human Rights, 1969

AFCHR African Charter on Human and People’s Rights, 1981
CrPC Code of Criminal Procedure, 1973
ECHR European Convention on Human Rights, 1950
ICCPR International Covenant on Civil and Political Rights, 1966
SEBI Security Exchange Board of India
SC Supreme Court
TRP Target Rating Point
UOI Union of India
UK United Kingdom
UN United Nations
USA United States of America
UDHR Universal Declaration on Human Rights, 1948

vii




LIST OF STATUTES

CONSTITUTION OF INDIA, 1950

CODE OF CRIMINAL PROCEDURE, 1973
CONTEMPT OF COURTS ACT, 1971

viii




TABLE OF CASES

AG v Shivkumar Yadhav & Anrs, CrlA. 2015.

AK Gopalan v Noordeen, AIR 1969 2 SCC 734.

Anita Whitney v California, 274 US 357 (1927).

Ankur Chandra Pradan v Union of India, (1996) 6 SCC 354.

Arnold v Emperor, 1914 PC 116.

Attorney General v English, (1983) 1 AC 116.

Attorney General v Guardian Newspaper, (1990) 1 AC 109.

Attorney General v Times Newspaper Ltd, (1973) 2 AIIER 54.

Austin v Keefe, 402 US 495, (1971).

Australian Securities and Investment Commission v Rich, (2001) 51 NSWLR 643.

Bachan Singh v State of Punjab, (1980) 2 SCC 684.

Balhine Ramakrishna Reddy v State of Maharashtra, (1925) SCR 425.

Bennett Colemans v Union of India, AIR 1973 SC 106.

Bijoyananda v Bala Kush, AIR 1953 Ori 249.

Bridge v California, 314 US 252 1941.

Brij Bushan v State of Delhi, AIR 1950 SC 129.

Chintamani Rao v State of Madya Pradesh, AIR 1951 SC 118.

Court on its own Motion v State, (2008) 146 DLT 149.

Court on its Own Motion v The Publisher, Times of India, Civil Writ Petition Number 7160
of (2013).

Dagenais v Canadian Broadcasting Corporation, (1994) SCR 835.

DC Saxena v Hon’ble The Chief Justice of India, (1996) 5 SCC 216.

Delhi Judicial Service Association Tiz Hazari v State of Gujarat & Anrs, AIR 1991 SCW
2419.

EM Shankaran Namboodiripad v T. Narayana Nambiar, (1970) 2 SCC 325.

ix




Express Newspaper v Union of India, AIR 1958 SC 578.

Goodwin v UK, (1996) 2 EHRR 123.

Govind v State of Madya Pradesh, AIR 1975 SC 1378.

Govind Shahi v State of Uttar Pradesh, AIR 1968 SC 1513.

Gujarat Water Supply v Unique erectors, AIR 1989 SC 973.

Hamdard Dawakhana v Union of India, 2 SCR 671 (1960).

Hussainara Khatoon v State of Bihar, AIR 1979 1369.

Indian Express Newspaper Bombay Pvt Ltd v Union of India, AIR 1986 SC 515.

In Re Harijai Singh & Anrs, (1996) 6 SCC 466.

In Re S.Mulgaokar, AIR 1978 SC 727.

In Re Subrahmanyam, AIR 1953 Mad 422.

In Re Vinay Chandra Mishra, (1995) SC 2348.

JR Prasad v Prashant Bushan,(2001) 6 SCC 735.

KA Abbas v Union of India, AIR 1971 481.

Kartongen Kemi Och Forvaltning AB v State through CBI,( 2004) 72 DRJ 693.

Kehar Singh v State AIR 1988 SC 1883.

Kharak Sing v State of Rajasthan, AIR 1963 1295.

Kishore Singh v State of Rajasthan, AIR 1981 625.

Leo Roy Fray v R.Prasad, AIR 1958 P&H 377.

LIC v Manubhai D Shah, AIR 1992 3 SCC.

Lowell v Griffin, (1939) 444 US.

Mahesh Bhatt v Union of India, 2008 (147) DLT 561.

Maneka Gandhi v Union of India, AIR 1978 SC 597.

Manu Sharma v State of Delhi, (1010) 6 SCC 1.

Mirror v Superior Court, 3 Cal. 2d 309.

Mohammed Ajmal Amir Kasab v State of Maharashtra, AIR 2012 9 SCC 1.

x




Mother Diary Food & Processing Ltd v Zee Telefilms, AIR 2005 Delhi 195.

M.P. Lohia v State of West Bengal, (2005) 2 SCC 686.

National Legal Services Authority vs. Union of India, AIR 2014 SC 1863.

Near v Minnesota, 283 US 697 (1931).

Nebraska Press Association v Stuart, 427 US 593 (1976).

Neelam Katara v UOI , 2003 DLH 84.

Neeraj Sridhar Mirajkar v State of Maharashtra, AIR 1967 SC 1.

N. Ram vs Siby Mathew And Anr, 2000 CriLJ 3118.

New York Times Co. v US, 403 US 703.

New York Times Sullivian, 376 US 254 (1964).

Papansam Labour Union v Madura Courts Ltd, AIR 1995 2200.

Pennekamp v Florida, 328 US 331 (1946).

Perspective Publications v State of Maharashtra, AIR 1971 SC 221.

P.N. Krishna Lal v Government of Kerala, 2009 CriLJ 2974.

Prabhu Dutt v Union of India, AIR 1982 SC 6.

Rajendra Sail v Madhya Pradesh High Court Bar Association, (2005) 6 SCC 109.

Rakeysh Omprakash Mehra vs. Governmen. of NCT of Delhi, 2013 (197) DLT 413.

Ram Dayal v State of Uttar Pradesh, AIR 1978 SC 921.

Rao Harnarain v Gumori Ram, AIR 1958 P& H 273.

Reliance Petrochemicals v Proprietors of Indian Express, AIR 1989 SC 190.

Rex v BS Nayyar, AIR 1950 551.

RK Anand v Registrar, 8 SCC 106(DEL.2009).

RK Garg v SA Azad, AIR 1967 AII 37.

Romesh Thappar v State of Madras, AIR 1950 SC 124.

R Rajagopal v State of Tamil Nadu, AIR 1995 264.

Russell v Russell, (1976) 134 CLR 495.

xi




R v Oaks, (1986) 26 DLR 20.

Sahara India Real Estate V Securities Exchange Board of India, (2012) 10 SCC 603.

Saibal Kumar v B.K. Sen, AIR 1961 S.C 633.

Sakal Papers v Union of India, AIR 1962 SC 305.

Scott v Scott, (1913) AC 417.

Sharad Birdhichand v State of Maharashtra, AIR 1984 1622.

Sheela Barse v UOI, AIR 1986 1773.

Sheppard v Maxwell, 384 US 333 1966.

Smt. Padmawathi Devi v R.K. Karanjia, AIR 1963 MP 61.

S.P Gupta v Union of India, AIR 1982 SC 149.

State v Biswanath Mohapatra, AIR 1955 Ori 169.

State v Editor, Printer Publisher of Mathrubhumi, 1954 CriLJ 926.

State of Maharashtra v Rajendra Jawanmal Gandhi, (1997) 8 SCC 386.

State v Simpson, No. BA 097211 (Cal. Super.Ct filed July 22 1994).

Stroble v California, 343 US 181 1952.

Subhash Chandra v S.M. Agarwal, (1984) CriLJ 481 DEL

Sunil Batra v Delhi Administration, AIR 1980 1579.

Surendra Mohanty v State of Orissa, Crl App No 107(56),

The Sunday Times v UK, (1979), Series A No. 30, 14 EHRR 229.

Thornhill v Alabama, (1940) 310 US 88.

Virendra v State of Punjab, AIR 1957 896.

Visakha v State of Rajasthan, AIR 1997 SC 3011.

Y.V Hanumantha Rao v KR Pattabhiram and Anr, AIR 1975 SC 1821.

Zahira Habibulla Sheikh v State of Gujarat, (2004) 4 SCC 158.

xii


 CONTENTS

APPROVAL OF DISSERTATION ........................................................................................... ii

DECLARATION ....................................................................................................................... iii
CERTIFICATE.......................................................................................................................... iv
ABSTRACT ............................................................................................................................... v
ACKNOWLEDGEMENT ......................................................................................................... vi
LIST OF ABBREVIATIONS .................................................................................................. vii
LIST OF STATUTES .............................................................................................................. viii
TABLE OF CASES ................................................................................................................... ix
CHAPTER 1- INTRODUCTION .............................................................................................. 1
1.1 Statement of Problem ........................................................................................................... 4
1.2 Research Objectives ............................................................................................................. 4
1.3 Research Methodology ......................................................................................................... 5
1.4 Significance of Research ...................................................................................................... 5
1.5 Scheme of Study ................................................................................................................... 5
CHAPTER 2 - LITERATURE REVIEW .................................................................................. 7
CHAPTER 3 - CONCEPT OF TRIAL BY MEDIA AND ITS LEGAL IMPLICATIONS .... 15
3.1 Trial by Media Phenomena ................................................................................................ 15
3.2 Constitutional Protection of Freedom of Speech and Expression ...................................... 19
3.3 Trial by Media - Judicial Perspective..................................................................................24
CHAPTER 4 - RIGHT TO FAIR TRIAL AND FREE PRESS ............................................... 30
4.1 International Perspective .................................................................................................... 30
4.2 Relationship between fair trial and freedom of expression ................................................ 33
4.2.1 Open Justice..................................................................................................................... 35
4.2.2 Exceptions to the Rule of Open Justice ........................................................................... 36
4.3 Postponement Orders .......................................................................................................... 37
4.4 Concept of Fair trial ............................................................................................................ 39
CHAPTER 5 - TRIAL BY MEDIA AND LAW OF CONTEMPT ......................................... 47
5.1 History of Contempt of Court............................................................................................. 47
5.2 Sanyal Committee Report 1963 .......................................................................................... 49
5.3 Constitutional Provisions Relating to Contempt ................................................................ 50
5.4 Contempt of Courts Act, 1971............................................................................................ 52
5.5 Sub-judice Matter................................................................................................................57

xiii
CHAPTER 6 - TRIAL BY MEDIA- A COMPARATIVE ANALYSIS ................................. 59
6.1 USA Law ............................................................................................................................ 59
6.1.1 Prior Restraint .................................................................................................................. 60
6.1.2 Contempt and Press ......................................................................................................... 62
6.1.3 Free Press and Fair Trial .................................................................................................. 62
6.1.4 Reporting of Court Proceedings ...................................................................................... 63
6.2 UK Perspective ................................................................................................................... 64
CHAPTER 7 - CONCLUSION AND SUGGESTIONS .......................................................... 68
BIBLIOGRAPHY………………………………………………………………………..…...75
APPENDIX
PUBLICATION

xiv
 CHAPTER 1

INTRODUCTION

Media plays a significant role in the modern world as it is an imperative source of information
striving to mould public opinion, belief and outlook. Media has become the medium of
interaction and gateway of spatial knowledge. With the advent in technology, print and
electronic media have gained importance in terms of making freedom of press more
significant. Media creates awareness about socio-political and economic events around the
globe. The manner in which media disseminates information creates desirable expression and
sentiments.1

Freedom of press is guaranteed under the Constitution of India and historically press freedom
has been debated in every democratic country. It is a right that goes beyond an individual
freedom of expression. Article 19(1)(a) of the Constitution of India declares, ‘All citizens
shall have the right-(a) to freedom of speech and expression...’ Clause (2) of Article 19
clarifies that this right is not absolute, but subject to reasonable restrictions imposed by law in
the interest of sovereignty and integrity of India, 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 offence.2 In our country freedom of press flows from Article
19(1)(a) of the Constitution of India. Freedom of press was created by our founding fathers to
work as a protector in purveying information.

Media, subjects the entire justice system and the judicial processes to public scrutiny. Media
is considered to be the watchdog of society and catalyst of reforms. It is considered to be the
fourth pillar of the democracy after legislature, executive and judiciary. For the smooth
functioning of democracy under Article 19(1)(a) media impliedly claims the right to
investigate, reveal, expose and criticize to create a constructive check. Correspondingly,
media has a duty to responsible and accountable journalism. Free and robust reporting,

1
Trial by Media: Looking Beyond The Pale of Legality, Civil Services Times Magazine,( Jul.12.2001), available
at http://www.civilservicestimes.com.
2
H.M Seervai., Constitutional Law of India 723 (Universal Law Publishing Co Vole 1, 4th Ed; 1991).


criticism and debate contribute to public understanding of the rule of law, and for a better
comprehension of the entire justice system.3

In a democracy the public has a right to know and to be informed from which stems freedom
of the press. Media has to take utmost precaution while publishing news and cases pending
before court as it would lead to trial by media. The investigative role of press has been useful
to set right the mal-administration of government, exposing crimes and unlawful acts and
disseminating information of public interest. But the expression public interest has no fixed
connotation. Trial by media has become an acute problem with the ever expanding role of
media.4 The phenomenal growth in technology ensures quick flow of information. The word,
‘trial’ has been defined as a formal judicial examination of evidence and determination of
legal claim.5

As suggested by Surette6, Trial by media could be defined as media coverage arousing

desirable sentiments, creating media frenzy and negative dramatized miniseries regarding
criminal justice system in effect, invoking infotainment around a criminal case. Sometime
media resorts to infotainment (information mixed with entertainment).

The advent of electronic media, extensive media coverage and opening up of too many media
channels in all medium and string of criminal and high profile cases have led to changes in
publication pattern which are likely to have pre-judicial impact on the suspects, accused,
witnesses, judges and on general administration of justice. Citizens have right to know &
media is a gateway to channel the voice of masses. Media has reinforced its role, through
which criminal justice hierarchy system is known. Media reincarnates public perception of
order and disorder in the society. Sensationalism of media coverage have led to heated

3
Justice R.S. Chauhan, Trial by Media: An International Perspective, (PL Oct S-38, 2011),
http://www.supremecourtcases.com/index2.php., last visited on June 28,2016.
4
Abolish Rather & Konica Satan, Judicial Intervention in the Sub-judice-The emerging issues of Trial by Media,
Bharati Law Review, (2015).
5
Henry Campell Black, Black’s Law Dictionary, West Publishing Co, (4th Ed,1968).
6
Helena Machado & Filipe Santos, The Disappearance of Madeleine Mc Cann: Public Drama and Trial by
Media in the Portugese Press, Crime Media Culture, (5(2) 146-147).

2




debates between free speech and fair trial as claimed by those who shore up for free press on
one hand and right to individual’s fair trial as proclaimed by the judiciary.7

Media demands for unrestricted freedom of expression in disseminating information about a

case prejudicing the construction of criminal stories which are more sensationalized; than
committed looking more like entertainment rather than truth. Media has to balance its stance
with regard to framing of their coverage, as reporting a specific criminal event, impacts
construction of public drama and leads to media trial affecting society’s representation of
judicial efficiency.

Media has a tendency to steal the version of law, crime, and justice, social and political
scenario. The criminal justice hearing in particular has a greater amount of news worthiness
attracting extensive media focus. Media upholds public interest and constantly engages itself
in search and prevalence of truth remarkable to run a free and smooth democracy however it
cannot exemplify to act as public proxy in demand for justice. The concept of judicial
independence and impartiality is a condition precedent to the sacrosanct principle of due
process of law that the right of the accused to the fair trial should be observed.8

In the view of Mr. Andrew Belsey in his article adapted in Mother Diary Foods & Processing
Ltd v. Zee Telefilms9 verifies that media has onerous responsibility to ensure that facts are
verified and matter is extensively investigated, analysed, researched and only salient critical
information is collected and rendered to its readers and public in general. Journalists and
ethics are two distinct facilitators in a democracy. While the journalists promotes functioning
and discussions in a democracy the media have certain code of ethics, virtues, fairness,
balanced reporting to follow; as a restive institution which are crucial for the smooth
functioning of democratic process, sidelining the temptation of salacious storytelling and to
present what is in public interest rather than what public is interested in .

If press covers stories as its whims and fancies, it creates a deep impression in the minds of
the reader based on their coverage steering public opinion about guilt or innocence of the

7
200th Report of the Law Commission on “Trial by Media: Free Speech v Fair Trial Under Criminal Procedure
(Amendments to the Contempt of Court Act, 1971)”.
8
Ibid.
9
AIR 2005 Delhi 195.

3




accused or suspect. This kind of adverse public opinion, desirable sentiments of mass voices
or outraging harmony of a community about a trial interferes with the functioning of judicial
process. Legal complexities may arise when there is an unwanted interference with
administration of justice, hindering Constitutional protection of right to fair trial. Then the
question arises if restrictions of such publications are ordered in order to protect fair trial,
would it lead to abridgment of free speech or curbing of freedom of press and dichotomy of
free speech and fair trial. Thereby, all these issues will be discussed in the coming chapters.
Thus the question to be addressed in this dissertation is the extent to which the battleground of
media freedom today has new frontiers that incorporates media trial and entrails into taking
stock in the realm of new media arena demanding a need to cautiously consider the issue of
trial by media, interference with administration of justice and right to fair trial besides
addressing the questions appurtenant thereto.

1.1 Statement of Problem

In the light of above introductory remarks, firstly it is contended that there is inadequacy in
media regulation regarding reporting of sub-judice matters.

Secondly, it is contended that pre-judgement by the media undermines the distinction between
an accused and a convict hindering fair trial and affecting administration of justice.

1.2 Research Objectives

• To analyze the role of media on trial of cases and to identify problems associated with
it.

• To study the conflict between freedom of press and right to fair trial and to strike a
balance between these two rights.

• To examine what categories of media publications are recognised as pre-judicial to a

suspect or accused.

• To suggest reforms towards regulating the media in India based on comparative

perspectives.

4




1.3 Research Methodology

The methodology adopted for the present study will be doctrinal in nature as researcher
undertakes a systematic analysis, exposition and critical evaluation of legal principle/doctrine/
concept. Based on this analysis, conceptual basis of the legal principle or doctrine will be
highlighted and proposal for reforms will be put forward. The sources which will be relied
upon for this study will be primary as well as secondary sources. Indian legislations include
Constitution of India 1950, Contempt of Courts Act, 1971, and Code of Criminal Procedure,
1973. Relevant legislations with regard to freedom of press, sub-judice publications and
contempt of court of United States of America, United Kingdom and India is compared and
analysed, International instruments with regard to judicial independence and freedom of
media, right to fair trial and freedom of speech and expression is analysed. Law Commission
Report of India, Bench-Bar-Press guidelines of USA and Reporting Restriction Guidelines
will be analysed; Sanyal Committee Report 1963 has been referred. Articles published in
different journals, books, articles published in leading news papers, published government
reports and cases decided by the judiciary in different jurisdictions is looked into.

1.4 Significance of Research

In the present scenario, it is seen that media is taking too much interest in the administration
of justice through media trials which in turn infringes the right to fair trial of an individual
envisaged under Article 21 of the Indian Constitution. The study emphasizes on the grey areas
of the media trials and the intrusion into administration of justice caused by the same. Hence,
the research would facilitate different end users including students, academicians, lawyers and
the legal fraternity to have critical understanding of the said topic.

1.5 Scheme of Study

The dissertation comprises of 7 chapters.

Chapter 1: Introduction

This chapter discusses the background, aim and objectives of the research. In addition it gives
an insight into the highlights of the study with regard to the statement of problem, scope,
significance and brief over-view of methodology adopted for the conduct of the study.

5




Chapter 2: Literature Review

The second chapter gives an over-view of relevant literature, prior research articles, journals,
books, internet sources, reports and recommendations relating to various Constitutional
provisions.

Chapter 3: Concept of Trial by Media and its legal implications

This chapter analyzes legality of trial by media, concept of freedom of press and analyses
interference with administration of justice with relevant case laws.

Chapter 4: Right to Fair trial and Free Press

The fourth chapter gives details of conflict between freedom of press and right to fair trial,
particularly International perspective. It gives a detailed account of whether trial by media
effects fairness of a trial.

Chapter 5: Trial by Media and Law of Contempt

This chapter provides a detailed analysis of Contempt of Courts Act, 1971 and how the
provisions of Contempt are effectively applied to control the implications of trial by media.

Chapter 6: Trial by media- A Comparative analysis

This chapter presents the methods adopted in other countries in regulating media to re-
structure law on trial by media, so as to make them vibrant.

Chapter 7: Conclusion and Suggestions

This chapter presents summary of the issues and findings of the study. In addition, further
areas for research, limitations and conclusion are also dealt within the chapter.

6




CHAPTER 2
LITERATURE REVIEW

1. Nicholas A Battaglia, Comment: The Case Antony Trial And Wrongful Exoneration:
How “Trial By Media Cases Diminish Public Confidence In The Criminal Justice
System”, Albany Law Review, (2011).

In the Antony trial case author emphasises on how trial by media has diminished the
confidence of public. How the American system has led to disastrous or annoying process by
wrong judgment. Learned persons are now focusing on freeing those who were wrongfully
subjected to imprisonment. The majority of the American TV is the powerful source of
information and as the public don’t have direct contact with the legal system hence portrayal
of televised judgment should be fair.

The public and media go so much hand in hand that it hurts the reputation of a client before he
is proved guilty. It also affects the criminal matters creates hazards for attorney, courts, jurors
and others in the legal system. The all time known legal sagas on trial by media cases are OJ
Simpson trial, Jon Benett, Ramsey murder trial.

In Antony case the stigmas of actual and perceived injustice, stigma of wrongful conviction,
how it can cause stress to person and family, relationship, financial pressure, medical and
mental issues were reflected.

The article concludes with a notion that absolute theory to stop trial by media is not possible
but attempt to dilute the effect of trial by media over judicial system must be made. Casey
Antony trial case has put light on this aspect.

2. Furqan Ahmed, Human Rights Perspective of Media Trial, Asia Law Quarterly, 47-62
Vol.1, No.1.

The author expounds how trial by media has positive as well as negative aspects with it,
which is recognised by our judicial system. In a democratic country this is a topic of debate
between those who support press and those who are against it. The problem faced emerges as
a challenge to the human right movement. So it is very important to consider the issues of
media trial and human rights.
7




The article expounds UDHR principles. Various Supreme Court cases on freedom of speech
and expression are highlighted in the article, that work on basis of TRP and profit and how the
media is interfering and violating human rights attacking or harming innocent people and
abridging fundamental human rights. In some cases, accused has become guilty even before
trial has begun. This is reflected in Arushi murder, Afzal and Priyadarshini Mattoo case.

We all do agree media is powerful end, fastest mean to reach out to people but it needs to be
careful and cautious in what it publishes. It should not take law in its hands. No person
charged of crime should be judged by the media until the person is proved guilty by the law. It
cannot come in between the functioning of law and allow the law to take its own course of
action. Media should also be aware that every action has its own consequences.

3. Sharan Rodrick, Achieving the aims of open justice? The relationship between the Court,
the media and the public, Deakin Law Review, Vol. 19 No. 1.

In this article the author analyses on how open justice is made to be useful or comfortable
concept. Openness builds up public confidence only when public approves of what it sees and
are free to criticise the court and ask for a change. Public hearing is fundamental in a free
society to maintain public confidence in the judiciary. Open justice allows the public to
develop reliable views through observation and a bracing effect is produced. Article explores
that justice and free speech are parallel to each other. We can see that the relationship of court
and public has been displaced. The article further explores relationship of free speech and
open justice and it has two aspects which are inter related; firstly, public has right to receive
information; secondly, media has the right to impart information to the public.

This article examines relationship of courts and media, the media and public and public and
courts, are not simple and it overlaps with each other with an intervening cause and effect.
The open justice has a good value and quality of reporting will by the media between media
and public will serve the purpose of achieving the best and generate interest to public. The
article explores various technological developments that have brought new set of legal
problems to concept of media and judiciary.

8




4. Dr. M.P. Chandrika, Open Justice v In camera Indian scenario, International Journal of
International law, Vol, Issue 2.

The article throws light on the concept and need of open justice and how media transpires
what happens in the court to the public. The need for public justice to ensure fair trial, as it
provides a system of checks and balances. The author further furnishes various principle
embodied in open trial i.e. access to public and media, public scrutiny, evidences,
communication to the public, principles of natural justice and the concept of open court.

The article throws light on various case laws that highlights the importance of the principle of
open justice especially the Mirjakar Case. Further deals with various exceptions to the rule of
open justice, no principle can have an abstract rule, in case of reasonable necessitates to
protect or to be in consonance with other Constitution rights, exception may be granted. The
article further explores in camera proceedings one of the major exception to the rule of open
justice. There are certain exceptions to the rule of open justice and exception can be justified
only if it is to protect administration of justice. Some of the exceptions highlighted are to
protect individual’s right to privacy in camera proceedings, arbitration and conciliation
matters, in matrimonial cases, the need for in camera proceeding as an exception is
substantiated only when it necessitates to ensure administration of justice.

The author has finally concluded affirming expounders of open justice. The importance of
O.J. Simpson must be balanced with other principles and proceeding behind closed doors
must prevail only during pending of proceedings.

5. Sivasubramaniam Bahma, The right of an accused to a fair trial: The independence and
the impartiality of the international criminal courts, Durham University, (2013).

The thesis extensively explores the concept of fair trial tracing from its origin. In depth study
of framework of various international criminal systems are discussed in the thesis.

The thesis further expounds proponents of fair trial, judicial independence of impartial
tribunals. Right to fair trial is difficult to be defined but its scope and meaning is discussed in
international instruments and Right to fair trial is crucial to due process of law.

9




The researcher has deeply examined UDHR Principles, ICCPR, ECHR, AFCHR, and ACHR,
the main focus being on freedom of speech and expression, reflecting that freedom of speech
and expression can be limited to protect right to fair trial, or to uphold other conflicting
principles. The basic aim of the thesis is to describe the concept of fair trial and two important
proponents of fair trial that is judicial impartiality and judicial independence.

The thesis reflects on how fair trial can be compromised when the basic two components are
compromised. The thesis explores the importance of judicial impartiality and it should be free
from bias, impressions and now the courts have tackled the issue when impartiality of
judiciary is at stake. Comparative analysis has been done and concluded by laying down test
to gauge impartiality. Various international tribunals have pointed out balance of knowledge
and perception must be achieved and case has to be decided without having a deep impression
about publicity rather decided on merits.

Thesis has very extensively pointed out various implications affecting judicial independence
and impartiality that in turns affect fair trial.

6. Sonja R. West, The Stealth Press Clause, 48 Ga. L. Review 729 (2014), available @
http://digitalcommons.law.uga.edu

This article explores on various cases that give a major blow to the first amendment.
Important case laws discussed in the article how US court justice interpreted scope of free
speech, role of press and the absolute theory of First Amendment. The traditional approach of
protecting communication and press and not speakers are discussed.

The author has explained the special preference given by US courts to press, keeping press at
a footing above non press speakers. However, for reference in thesis specifically court
decisions about press have been relevant. The cases discussing prior restraint in particular and
the unique role they play in the first amendment and freedom of press.

The discussion on news reporters on matter of public interest through various case laws has
been done in the article. The highlighting suggestion to present participants in the guideline is
with regard to what kind of information about a crime, accused or criminal case can be
harmful and how information can be released with the minimal change to fair trial.

10




7. Consultation paper of Media Law, Government of India, Law Commission of India ,

2014 May.

The consultation paper puts forward several concepts of method of media regulation, makes
analysis of previous reports, defines concepts of paid news, cross-media ownership and
opinion poll. However, for referencing in chapters concept of trial by contempt, media and
individual privacy will be dealt in extensively.

The report propounds on ambiguity in the term of sting operation and the effect of
implementation of sting operation providing certain consolidation with regard to sting
operation. The report throws light on cases like R.K. Anand where scope of sting operation
was discussed.

The report clearly points out the vital gap between accused and suspect undermined by media,
putting at stake principle of innocence until proven guilty. A brief over-view of the Sahara
India v SEBI case has been noted raising important questions on sub-judice matters to be
considered. The analysis of contempt publication was done. To conclude throws major light
on various regulatory aspects of media be it print, electronic or social media. It gives wide
range of considerations raising researchable questions, pointing out loopholes in various
legislations extensively dealing with matters related to freedom of speech and expression,
freedom of press and various aspects of media.

8. Reporting restrictions in the Criminal Courts, Judicial (2015), available at

www.judiciary.gov.uk

The UK reporting restriction in criminal court published by judicial collage, news media
association, society of editors and media lawyer association propounds set of guidelines on
open justice and reporting restriction in criminal court. These guidelines are designed to draw
useful reference for courts and media before restrictions are placed upon press access or
reporting. Report gives a practical guide on the rule of open court throwing light on principles
on open justice and exception to the rule of open court.

The report gives an analysis as to how human right plays an active role in preventing
publication of confidential information on criminals. The article profound on restriction

11




placed on media under section 4(2) UK Contempt of Courts Act, 1981 through postponement
orders and under section 11 to prevent publication of names.

The report gives a brief on specific restriction on reporting placed by statutes and strict
liability rule. It makes an in-depth analysis on statutory principles of reporting. Restriction on
criminal matter and also additional matter giving a outline in advance to the media, judiciary
and the public. Thus the guidelines in the report give a better understanding on reporting of
cases in relation to criminal proceedings and other aspects.

9. Law Commission reforming the law contempt of court-contempt by publication,

Consultation paper 209, available at www.lawcommission.government.uk.

The genesis behind Contempt of Court Act, 1981, strict liability rule, concept of
postponement order, active proceedings, intentional contempt are propounded in the report.

The report gives a great understanding of contempt legislation in UK discussing contempt

under UK Act, 1981 and under common law. The report further elaborates on various section
of Contempt of Court act, 1981. Section 3 Innocent publication and immunity granted to
media, Section 4 Contemporary report proceedings, Section 4(2) Postponement Orders,
Section 5 Discussion of public affair, Section 2(3) Active proceeding, Section 2(4) Exceptions
to active proceeding which has been extensively referred in the thesis.

The report expounds the term substantial risk, impede and prejudice and its importance in
accessing revision of publication. The rationale of Sunday Times case role played in widening
scope of UK Act, 1981 and postponement order section 4(2) is given in detail. Thus the report
gives a brief over-view of various procedural rules, on ECHR and aspects of common law and
UK Contempt of Court Act, 1981. Highlighting confrontation between media and judiciary
explaining rationale of contempt provision and how contempt under Article 19(2) is a
reasonable restriction.

The report points out consideration to further amend contempt legislation. Therefore the
report concluded with a rising need to regulate the media and to provide media with adequate
independence. Report has suggested various reforms on several issues that fall under new
media realm.

12




10. Oregano State Bar-Press-Broadcasters Joint Statement of Principles, School of

Journalisim and Communication, available at www.journalisim.uoregon.edu.guide

These guidelines are framed by the State and they are recommendations given to Bench-Bar-
Press so that they are made aware before in hand on the limitations and their rights. These
guidelines enumerate the same principle thus can be referred in consonance. Media, judiciary
and lawyers have tried to settle conflict between free press and fair trial. These guidelines are
voluntary agreement and non-binding in nature.

Some states voluntarily form bench bar press guidelines which are suggestive in nature
providing information on pre-trial news coverage and now it can be solved. To such Bench
Bar Press Guidelines are of state of Oregano.
These guidelines are not prohibitive in nature but creates a cohabitate atmosphere among
bench, bar and media. Both guidelines provide ways to reduce restrictive order and closure of
court proceeding expounding effective way of combating free press –fair trial dichotomy.

11. Bench-Bar-Press Committee of Washington, available at www.courts.wa.gov/prog.

These guidelines are framed by the State and they are recommendations given to Bench-Bar-
Press so that they are made aware before in hand on the limitations and their rights. These
guidelines enumerate the same principle thus can be referred in consonance. Media, judiciary
and lawyers have tried to settle conflict between free press and fair trial. These guidelines are
voluntary agreement and non-binding in nature.

Some states voluntarily form bench bar press guidelines which are suggestive in nature
providing information on pre-trial news coverage and now it can be solved. To such Bench
Bar Press Guidelines are of state of Washington.

These guidelines are not prohibitive in nature but creates a cohabitate atmosphere among
bench, bar and media. Both guidelines provide ways to reduce restrictive order and closure of
court proceeding expounding effective way of combating free press –fair trial dichotomy.

12. 200th Report of the Law Commission on “Trial by Media: Free Speech v Fair Trial
Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)”.

13




A number of proposals have been offered by the report to balance the conflict between
freedom of press and right to fair trial. The report expounds various aspects of freedom of
speech interconnection between Article 19(1)(a), freedom of press and due process of justice.
By understanding various international instruments especially UDHR, Madrid Principles, Law
Commission Reports of other countries. It has laid a strong premise on the importance of right
to fair trial and ways of restricting freedom of speech and expression to protect fair trial.

In-depth study of UK Contempt of Courts Act, 1981, various US legislations regarding

judicial remedies to protect reporting of pending proceeding was highlighted. The report
raises debatable questions regarding current provisions of Contempt of Court Act, 1971.
Concept of imminent proceedings in the light of Sanyal committee report 1963. Joint
committee report, reliancing on A.K. Gopalan case and the importance of Maneka Gandhi
case with regard to concept of imminent proceedings, due procedure established by law.

Further elaborates the term sub-judice, loopholes revolving around pendency in the Indian
context and how it is tackled in UK Act, 1981 throwing light on the term active proceedings.
Finally the report gives useful suggestions on important issues like postponement orders, sub-
judice matter, date of arrest, imminent proceedings through a comparative analysis and finally
concludes with a strong opinion to amend Contempt of Courts Act, 1971.

14




CHAPTER 3
CONCEPT OF TRIAL BY MEDIA AND ITS LEGAL IMPLICATIONS

3.1 Trial by Media Phenomena

The concept of Trial by Media is not a recently coined term, but of late has created another
level of escalating hazard for those who surpass the criminal justice system10. Trial by Media
in simple means the impact of extensive media coverage on a person’s public relations or the
effect of media on a trial proceeding, mostly in criminal proceedings. With the advent of
technology and fierce competition between cable channels with each other for breaking news
leads to labelling the accused even before the investigation is undertaken which are impairing
administration of justice and having a prejudicial impact on individual’s fair trial11.

A trial is an event that keeps a check on administration of justice. It is nothing but judicial
transparency and media plays an important role in transpiring judicial proceeding to the
community in large. Judicial independence is vital in a society, but there are many instances
when judicial independence has been vindicated and media has interfered with the judiciary.

The efficacy of legal system is enhanced when guilt is established by due procedure of law,
not by infusing external factors or intruding in the procedure. The strength of the community
lies when Rule of Law is preserved which the Constitution has designed for all. When there is
no suppression of expression it works against dictatorship. The judicial system in their
pronouncement have preserved freedom of press, have allowed press to fairly criticise the
court system, scrutinize working of administration of judges, fair reporting of matters and
merits of the case. The only restraint bestowed is abuse of freedom as absolute freedom
corrupts12.

In recent times intervention of media has drawn appraisal as constant effort of media to
discover truth has played a pivotal role in delivering justice in the infamous Jessica lal Case,

10
Howell Collins & Marti Cecilia, Court of Public Opinion: How the Convicted Perceive Mass Media have
Affected Their Criminal Trials and Personal Lives, Mass Communication, Paper 96, (2012).
11
200th Report of the Law Commission on “Trial by Media: Free Speech v Fair Trial Under Criminal
Procedure (Amendments to the Contempt of Court Act, 1971)”.
12
Stroble v California 343 US 181 1952.

15




Mattoo Case, Nitish Kataria Case and Nirbhaya Case. Trial by media in some cases proved to
be a boon highlighting almost denied justice. The Supreme Court has acknowledged
interconnection of media and litigation in best known cases which clearly highlights the
tension between freedom of press and right to fair trial, while also needing to balance the
two.13

Jessica Lal Case;14 if media institution delivers in true spirit it can serve as a handmaiden of
justice. Delay in justice for Jessica continued for seven long years as all witnesses turned
hostile and ended with acquittal of accused Manu Sharma in 2006. Justice for Jessica
campaign and Tehalka played a crucial role to discover truth, finally bringing justice to
Jessica. However what has to be considered in this case, no doubt that media played a
proactive role in delivering justice. The Supreme Court expounded laudable initiative taken
by the media highlighting perhaps what could have been a major lapse of administration of
justice. But the media has negated so many other implications conducting a parallel trial
affecting other Constitutional rights. What the media has to focus is on informative reporting
and not investigative reporting.

Followed by in Mattoo Case; justice for Jessica campaign steered trial of Santosh Singh.
Singh had been charged with rape and murder of a law student named Priyadarshini Mattoo.
With the intervention of media investigation of the case was fast-tracked and accused
convicted.

Sanjeev Nanda Case; Nanda, son of a businessman alleged with hit and run case killing over 6
people while driving his BMW in intoxication. Media intervened and as the case was sub-
judice. NDTV news channel conducted a sting operation showing Nanda’s lawyer bribing the
witness, while the state prosecutor being complicit. However High Court observed that Indian
Justice System risked from becoming a ‘laughing stock’. Media yet again ensured justice to
be done. There are several such instances where media has risen up to its true spirit and

13
Navajyoti Samanta, Trial by Media- The Jessica Lal Case, Social Science Research Network,(March
2008),available at SSRN:http://papersssrn.com.
14
Manu Sharma v State of Delhi, (1010) 6 SCC 1.

16




covered true facts demanding not only justice is done but it must be seen to be done such as in
Nirbhaya Case, Bijal Joshi Rape Case, Nitish katara Case. 15

What is paramount is that right to freedom of expression and unbiased trial are capable of
provoking desirable sentiments, tending to cloud right to know. The other public interest in a
free democracy is the independency of judiciary. While the media provides access to
information it has to ensure that it does not hinders or unduly influence the judiciary
16
trampling rights of accused. However media in the stint of investigative journalism has
unbridled informative journalism and the phenomenon called media trial is negating a dark
flow in the Sheena Bora murder case.

In the case of Arushi Talwar media created frenzy. In high profile cases the media is often
creating a widespread public opinion, public hysteria regardless of depriving the basic human
right of accused. Sheena Bora Murder case has given rise to controversial aspect of reporting
of trial proceedings of the accused as every aspect of her life was under public scrutiny which
had nothing to do with the case or the general public.

ISRO Espionage case17; In this case two Maldivian citizens were characterised and extrication
of their reputation was raised. Scientist of Space Research Organisation faced questions on
their credentials. This case is a remarkable example of how sensationalising coverage of
media prejudices public opinion. The way media resort to infotainment, spicing up stories to
increase their circulation was seen in this case.

To observe the phenomenon of trial by media it is important to note whether media overrides
the function of judiciary, by conducting a parallel trial outside the court, in search of
evidences, labelling of accused by discussing their previous convictions, conducts tampering
reputation, covering articles of various stages of case and drawing conclusions when the case
is pending in the court. Interference with legal proceedings can be done in many ways, but the
most common interference committed with pending court proceedings includes scandalising

15
Ruheela Hassan, Freedom of Media in India-A Legal Perspective, International Journal of Humanitarian and
Social Science, Vol 3, Iss 2 (2014).
16
Madhavi Diwan Goradia, Facets of Media Laws and Indian Constitution, (Anmol Publications Pvt Ltd, New
Delhi 2005).
17
N. Ram vs Siby Mathew And Anr 2000 CriLJ 3118.

17




judge, interfering with witnesses, interfering with investigation procedure by tampering

evidence and contentious publications in connection with proceedings that are pending in
court, these interferences poses threat to fair administration of justice and Constitutional
guarantee of fair trial thereby referred to as trial by media18.

Therefore modern journalism has to pull its strings especially in those cases which is under
trial and not heard by courts. In wake of furnishing news to its readers, publishing contentious
statements, blurs facts or typecasts opinions resulting into threat to fair trial. The influence of
the phenomenon of trial by media on the legal system is so vulnerable that it often raises a
debatable question that is the influence of media trial on judges, as it is said that it is not
possible to keep the jury away from such high publicised coverage. As observed by Justice
Frankfurter Judges are also human and they are assigned with the task of administering
justice, thereby in the due course of administering justice judges are not likely to be
influenced, however their rational process of determination may be hindered by irresponsible
print.

In RK Anand v Registrar19 for the very first time the concept of trial by media was defined
and considered and the Court observed in our justice system there is no place for a parallel
trial conducted by media , as it creates a paradox between right to free speech and right to fair
trial. The only defence that can be reliance is that of justification by truth, in the interest of
public and that actions are bona fide. The other important consideration is that whether the
conduct of trial overrides public interest or is it really a matter of public concern, the court is
the final authority to test whether the publication is contentious and if it attracts criminal
contempt of court and also if the publication can claim defence under Section 13 of Contempt
of Courts Act. This case raised an important aspect of the Right of media while dealing in a
sub-judice matter. It raised alarm against the validity of sting operation conducted by the
NDTV channel, sting operation in itself is based on deception raising apprehensions on the
genuineness of sting materials, and the only reasonable justification that can be given for such
deliberation is public interest. 20

18
Arpan Banerjee, Judicial Safeguards Against “Trial By Media”: Should Blasi’s “Checking Value” Theory
Apply In India? Vol. 2, p. 28, Journal of Media Law & Ethics, (2010).
19
8 SCC 106(DEL.2609).
20
Seervai, H.M , Constitutional Law of India 723 (Universal Law Publishing Co Vol 1, 4th Ed; 1991).

18




Media is considered to be gateway and not meddlers, thus operations of media must be under
reasonable restrictions and prior consent; any infraction of Article 19(1)(a) of media would
invite legal consequences. Two basic premise observed in this case were; firstly, whether
sting operation falls under the category of trial by media; secondly, whether publications
interfere with due course of justice.

In this case the term, ‘Trial by media’ was defined by the court to mean; “Impact of extensive
pre-trial publicity and coverage on a person’s reputation thereby creating a widespread
perception of guilt regardless of verdict given in the court of law”. Media in high profile trials
is often accused of creating hysteria and atmosphere of lynch mob, hindering fair trial creating
a negative perception over the reputation of accused, making it difficult as the accused has to
live rest of his life in guilt and public scrutiny regardless of any verdict in court of law. The
Court in the above case observed that sting operation conducted by NDTV does not attract
trial by media as it has done larger public good and done with bonafide actions. However,
Constitutional foundation of sting operation needs to be justified keeping in mind the
important question as to what extent media can go in its defence of public interest.

In case of Uma Khurana21 where publicity was misused, the Court though observed the term
trial by media did not elucidate on implications of trial by media neither their consequences.

3.2 Constitutional Protection of Freedom of Speech and Expression

Freedom of speech and expression is not an absolute right. In a democratic society the
question of balancing free speech and fair trial arises. The phenomenon of trial by media is
closely interconnected with Article 19(1)(a) and the basic issue is balancing Article 19(1)(a)
within framework of Article 19(2). The contempt laws seeks to balance free speech and fair
administration of justice, basically it restricts publications that tends to interfere with
administration of justice. Freedom of press and liberty of speech enlighten society and
restraints abuse of power in the hands of few. The importance of freedom of press is nothing

21
(2008) 146 DLT 149.

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less than of freedom of speech. Speech when reinforced in print form penetrates repetition,
shapes impression in a concrete form.22

Article 19(1)(a) of the Indian Constitution guarantees to every citizen the freedom of speech
and expression. Article 19(2) envisages reasonable restriction in the interest of sovereignty
and integrity of India, 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
offence.23 Article 19(1)(a) is the symbol of great ideologies. Free speech renders the liberty to
express one’s own convictions and opinion freely by means of mouth, writing, printing
pictures or any other communicable medium or visible representation.24 Reasonable
Restrictions under Article 19(2) to (6) is of twofold purpose; firstly, freedom guaranteed is not
absolute but circumscribing to certain limitations, secondly restrictions beyond requirement of
Art 19(2) to (6) not permitted.

The concept of reasonable restrictions is applicable to freedom of press and not confined only
to freedom of speech and expression.

The test of reasonableness of restriction in not defined,25 however should be applied to each
individual statute impugned, no abstract standard or general pattern of reasonableness can be
laid as applicable to all cases; each case judged on its own merit. The term reasonable
restriction in simple means limitations imposed. The court observed broad prepositions like
duration, nature and purpose of restriction. Reasonable restriction attracts the principle of
proportionality that is it must have direct nexus to objects of legislation, social control or
public importance.

In Papansam Labour Union v Madura Coats Ltd,26 the Supreme Court of India laid guidelines
while considering Constitutionality of a statutory provision imposing restriction on a

22
Bridge v California 314 US 252 1941.
23
P.M.Bakshi, Press Law: An Introduction,( BTFRI Publications,1985).
24
Lowell v Griffin (1939) 444 US.
25
Gujarat water supply v Unique erectors, AIR 1989 973.
26
AIR 1995 SC 2200.

20




fundamental right guaranteed by Article 19(1)(a) to (g) when challenged on grounds of

unreasonableness of restriction imposed by it.

Freedom of speech and expression is the most vital element in a democracy as it is essential
for proper functioning of democratic process. The importance of this freedom can be
determined by analyzing the condition of liberty where freedom of speech and expression
come first. In Chintamani Rao v State of M.P.,27 Court held restriction must not be
disproportionate or excessive but it should be reasonable. In Mahesh Bhatt v Union of India,28
Supreme Court held that freedom of speech and expression sustains democratic structure of
the country and is one of the most important pillar of Indian Constitution.

Free speech is considered as basic human right and should never be undermined. This is the
main reason that this right is being protected under many International instruments including
Universal Declaration of Human Right here in referred to as UDHR, International Covenant
on Civil Political Rights (ICCPR), and European Convention on Human Right (ECHR) etc.

Preamble of Indian Constitution protects freedom of speech and expression which finds its
place as liberty of thought, expression and belief. In Rakeysh Omprakash Mehra v
Government of NCT of Delhi,29 Supreme Court held that Constitution not only provides
freedom of speech but also freedom after speech. In National Legal Services Authority vs.
Union of India,30 Supreme Court held that freedom of expression covers one’s gender identity
and State cannot prohibit transgender to express such personality.

In Romesh Thappar v State of Madras31, the very first instance the Supreme Court observed
free speech and free press are the very foundation of democracy without which there will be
no political discussion or proper functioning of government or public education. Liberty of
such amplitude involves risk of abuse. In D C Saxena v Hon’ble the Chief Justice32 of India,

27
AIR 1951 SC 118.
28
2008 (147) DLT 561.
29
2013 (197) DLT 413.
30
AIR 2014 SC 1863.
31
AIR 1950 SC 124.
32
(1996) 5 SCC 216.

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the Supreme Court observed liberty of free speech is essential element of a free society to
maintain rule of law and liberty of citizens and it should not be confused with licence to make
allegations against judiciary, or any institution.

In India prior to Independence freedom of press was that of an ordinary citizen and it had no
privilege or special liabilities apart from statute law33. The Constitution of India lost no time
in declaring that Freedom of Press must be included in Article 19 (1)(a) and the press is
subjected to reasonable restrictions consistent with Cl. (2) of Article 19.

Dr. B.R.Ambedkar stated that the press is another expression of stating a citizen’s or
individual hence no special privilege was attributed to freedom of press and it was derived
from citizen’s freedom of speech and expression34. Dissident of press is a measure of maturity
of nation as it exposes weaknesses of the government and advances responsible judgment in a
democratic electorate. It advances public interest by publishing facts, expressing opinions and
belief.

The expression freedom of the press means freedom of the printing press as a medium of
publication. Freedom means absence of control or restriction but, like other freedoms, it
cannot be absolute and hence subject to reasonable restrictions. Dissemination of information
is necessary for public education as much as free discussion and criticism remains the
foundation of a democratic society. Freedom of press includes right to impart information
without any interference, the only plausible argument for restraint is to prevent the abuse of it
to foster truth and expose falsehood35. In a free society public criticism and trade in ideas is
essential36.

In Hamdard Dawakhana Case37, The Supreme Court observed that proper balance between
freedom of press and said laws is necessary and their consistency with democratic way of life
as ordained by our Constitution must be maintained. Media be it press, newspaper or

33
Arnold v. Emperor, 1914 PC 116.
34
Constituent Assembly Debates Vol VII , p.786 (2.12.1948)
35
Thornhill v. Alabama (1940) 310 US 88.
36
Bennett Colemans v. Union of India AIR 1962 SC.
37
2 SCR 671 (1960).

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electronic media have emerged as principal factor in our nations life and they are still
expanding and overreaching in the process becoming more inquisitive. The contents of Free
Press is derived from Article 19(1)(a) and by way of judicial pronouncements the court has
acknowledged the sentiment of free press and a paradigm shift has been installed38.

The Supreme Court in Express Newspaper case39 opined that, the state cannot invent a
restriction which would have a direct impact on press freedom by affecting its circulation or
reducing the size of advertisement, newspaper or subscribers, etc.. Bhagavati J in this case
developed a new approach of direct impact doctrine that is “direct and inevitable effect test’.

The direct impact doctrine was followed in the Sakal Newspaper Case. Rejecting the state’s
plea that drop in circulation was only an remote consequence and that reasonableness of
restriction to be considered under Article 19(1)(g) & clause (6) & not under Article 19(2), The
Supreme Court observed that the fixation of minimum price for the number of pages is
expressly cutting down the circulation. The net direct &immediate effect of the said order is
bringing down the circulation. The net direct & immediate effect of the said order is bringing
down the circulation denying their right of circulation & leading to a direct interference with
the freedom of speech and expression40. Freedom of press is a species of which freedom of
expression is a genus.

In Bennett Colemans Case the court opined entertainment of advertisements would have a
direct nexus on circulation of newspapers and impinge Article19(1)(a)41.

Indian Express Newspapers case Venkataramiah J. expounded that government must

reasonably balance while dealing with an act which needs social control and freedom of
speech and expression. Freedom of press in a democratic society and purpose of freedom of
expression was expounded, the purposes being; to assist in discovery of truth, to strengthen

38 Brij Bushan v. State of Delhi AIR 1950 SC 129.

39 Express Newspaper v Union of India, AIR 1958 SC 578.

40
Sakal Papers v. Union of India, AIR 1962 SC 305.
41
AIR 1973 SC 106.

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participation capacity of individual in decision making, to attain self-fulfilment and the

fundamental principle of right to know42.

Right to propagate one’s views is an important facet vested in the media and to suffocate this
right would lead to dictatorship was earmarked by the Supreme Court in LIC v Manubhai D
Shah43.The freedom of press needs to be balanced with right to privacy extending to maintain
public issues44.Press has the right to gather news and supply information45.

In Mother Diary Case, Court expounded the issue of responsibility of the media while
communicating information to its readers, thereby attracting accountability to the rendered
information and to the general public. Media has the onerous responsibility of verification,
investigation, research, critical evaluation, salient analysis and in ensuring erroneous reporting
of facts, collection of information that undergo rigorous check and balance before imparting it
to the general public as they have an implicit duty of responsibility and accountability.
Freedom of press is not conferred with unrestricted access to means of information.

If administration of justice has to operate smoothly that is free press must exercise responsibly
their freedom of publication46. Freedom of press has been given the broadest scope as
limitation on press tramples liberty47.

3.3 Trial by Media: Judicial Perspective

To understand the phenomenon of trial by media and its implications it is important to look
into various judicial pronouncements, as the term trial by media in itself is interlinked with
various complexities. Judicial perspective gives a detailed understanding of how trial by
media tampers the entire criminal justice system that is unwarranted interferences with
administration of justice, criminal contempt, hindrances with fair trial or violates reasonable
restrictions provided under Article 19(2) of Indian Constitution.

42
Indian Express Newspaper Bombay Pvt Ltd v. Union of India, AIR 1986 SC 515.
43
AIR (1992) SCC.
44
R Rajagopal v. State of Tamil Nadu, AIR 1995 264.
45
Prabhu Dutt v. Union of India, AIR 1982 SC 6.
46
Harimburg, Free Press v Fair Trial: The combination of Mr. Justice Frankfurter, U.Pitt.L.Rev,(1965) .
47
Sheppard v Maxwell 384 US 333 1966.

24




In the Mumbai Terror Attack case48- The major lapse in media reporting can be inferred from
this case, where media coverage put life of security personnel, police, and hostages. In short
the entire national security was put at stake. Clamour for news even in a situation of
emergency was evident in this case. Nexus between Target Rating Point (TRP) and media
coverage was seen in this case. Supreme Court in the above case observed article 19(1)(a) is
subject to reasonable restrictions and free speech cannot be justified putting national security
or Article 21 in jeopardy. The relation between media and its impact on national security was
expounded as media coverage led to leaking of important security information to terrorists
and their collaborative.

In Bofors Case49 two important observations were made by the Court- Public interest and
discovery of truth are the two elements that construct investigative journalism. In this case
Justice J.D. Kapoor expounded the menace of trial by media and its effect not only to the
reputation of an individual accused but to the entire society, making it difficult for the accused
and his/her family to lead a normal life regardless of the verdict of the court. The perils
caused by publicity by press conference during investigation procedure of trial must be
stopped as it creates threat to fair trial effecting speedy trial as well. Thus tolerating trial by
media is not possible as fairness of trial is an essential component of administration of justice
and function of judiciary cannot be interfered with.

In Perspective Publications v State of Maharashtra50, in this case Supreme Court laid down
test that determines if an act would amount to contempt and if wrong done is to the public at
large or in particular to a judge. The Court expounded any publication creating anxious
opinion in the minds of the public causing injury to integrity, impartiality of judge or
disparaging due course of justice is likely to cause adverse effect on the justice system and the
judge himself.

51
In Re S Mulgaokar Justice Krishna Iyer set principles and guidelines on matter or certain
publications that would amount to contempt of court.

48
Mohammed Ajmal Amir Kasab v State of Maharashtra, AIR 2012 9 SCC 1.
49
Kartongen Kemi Och Forvaltning AB v. State through CBI,( 2004) 72 DRJ 693.
50
AIR 1971 SC 221.
51
AIR 1978 SC 727.
25




In Leo Roy Fray v R. Prasad52, Punjab and Haryana High Court ordained test to check for
contempt publications. Court expounded- Before attracting contempt publication, court must
be satisfied that matter of publication is sub-judice or imminent proceedings; publication
interferes or reasonably tends to interfere or prejudice fair trial; awareness of defendant about
the facts of matter; magnitude of interference has subsequent interference with justice system
and not technical; order of conviction must be recorded.

In Court on its own Motion v The Publisher, Times of India53, The Court in this case observed
that reporting of court proceeding by media is not absolute and requires some reasonable
restrictions especially publications that interfere with administration of justice. Court can
invoke contempt proceedings effectively to impose reasonable restriction on the media.
Freedom of speech of media is not absolute, statutory limits are provided. Maintaining due
course of justice is one of the cardinal principle in a democratic society. Undermining
administration of justice is not permitted and if any institution crosses its limits, it has to be
punished. Thus, media has left with cautious words, no penalty was imposed. However,
scurrilous comment, imputing against judicial system was condemned.

In Rajendra Sail v Madhya Pradesh High Court Bar Association54, Court expounded lethargic
reporting can lead to unwarranted interference with working of judiciary. There is an
immediate need to check contentious publications.

In State of Maharashtra v Rajendra Jawanmal Gandhi55, Court propounded media is not ruled
from reporting it carries with it right to impart knowledge about various happenings around
the world. But trial by media leads to miscarriage of justice and investigation of pending
proceedings deprecates trial which is anti thesis to the rule of law.

52
AIR 1958 P&H 377.
53
Civil Writ Petition Number 7160 of (2013).
54
(2005) 6 SCC 109.
55
(1997) 8 SCC 386.

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In Harijai Singh v Vijay Kumar56, freedom of press enjoys no special footing or greater
immunity than what is guaranteed to freedom of speech and expression. They are subject to
reasonable restrictions and under 19(2) contempt of court being a reasonable tool to restrict
freedom of speech or press.

In MP Lohia v State of West Bengal57, Justice Santosh Hegde observed the impact of trial by
media on the accused, in this case publications were done on matter that was sub-judice in
nature giving a one sided story about the case. The Court observed that such practices by the
media of providing half baked truth clogs the door of justice, interfering with administration
of justice. What is important is to keep a check on pre-trial publications that deprecates
judicial proceedings. Media has the capability of having a wide impact on public perception,
negative impact on administration of justice must be protected. However, the Court cautioned
the media institutions regarding such contentious publications that taint fair trial and must
abstain from doing investigative reporting.

In Ankur Chandra Pradhan v Union of India,58 the Court observed that presumption of
innocence of the accused unless found guilty is a sacrosanct principle of criminal
jurisprudence. Media coverage must have no tendency of causing a deep impression, strong or
adverse impact tainting the right to fair trial of an accused. Essentials of Fair Trial are equally
important in a society as freedom of press. Dilution of right to fair trial cannot be encouraged
to give absolute freedom of press.

In Rao Harnarain v Gumori Ram, 59 publications done in ‘Mewat’ newspaper was of matter
that was pending in court, having an effect of interfering with administration of justice
diluting the efficacy of judicial process. Freedom of press cannot outweigh administration of
justice. The work of media is to report matter of public importance, impart knowledge to the
public and not adjudicate cases pending in the court.

56
(1996) 6 SCC 466.
57
(2005) 2 SCC 686.
58
(1996) 6 SCC 354.

59 AIR 1958 P& H 273.

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In Saibal Kumar v B.K. Sen, 60 deprecated the practice of trial by media and it is not the role
of media to conduct a parallel trial when a matter is pending in the court as such practices
clearly interferes with administration of justice. Prevention of the practice of trial by media
must be progressed. In this case however media was cautioned from resorting to such
practices. The effect of media trial has an adverse effect on not just accused but on the entire
participants of trial. Such practice of conducting a parallel trial outside the court is a
mischievous act by the media.

In Y.V. Hanumantha Rao v KR Pattabhiram and Anr61 Court observes the rationale behind
restricting media coverage on pending proceedings, there must be a substantial risk and
prejudice that if such reporting are permitted would tend to hinder due course of justice
violating right to fair trial of accused. Such media reporting on pending proceedings that
creates substantial risk to administration of justice attracts criminal contempt. Real and
substantial danger will necessitate if a reporting on pending proceedings will attract criminal
contempt. Influences or deep adverse impression on the minds of the jury, public creating
hysteria in public mind, witness turning hostile or denial of fair trial to accused are some of
the instances that causes apprehension of risk and danger to administration of justice
attracting criminal contempt.

In Umaria Pamphlet62 case the Supreme Court expounded the concept of fair criticism and to
what extent the criticism of court proceedings or considerations are said to be fair. Any
criticism having a likelihood of causing obstruction to administration of justice, shaking
public confidence over judicial process would cease to be a fair criticism.

Freedom of press should not degenerate and close door of justice as responsibility of press is
great as the press has a huge audience. In modern democracy press is an useful tool in
exchanging ideas and information, but still faces a need for limitations as no right can be
absolute so is freedom of press. Media carries with it a responsibility along with freedom and
any freedom left absolute leads to disorder. Whenever there is a conflict between the public,
free press and some other competing interest balancing the two competing right is compelled.


AIR 1961 SC 633.
61
AIR 1975 SC 1821.
62
Ram Dayal v State of UP, AIR 1978 SC 921.

28




Thirst for breaking news have reached alarming rates leading to unhealthy competition
putting truth, reputation and public interest at stake, hijacking trials, judges and lawyers have
remained handicapped. 63

Thus, Trial by media is intrusion into the Constitutional protection entitled to suspect or
accused creating a deep impression on the reputation of an individual regardless of verdict
given by court, thereby usurping the function of court. Any trial if hijacked by inferences
outside the court or subverted in determination of process of trial leaves a scar on the entire
justice system, defying the spirit of rule of law and shaking public confidence in its judiciary.
Therefore it is time the Court takes a more pro-active role intervening positively to keep all
external inferences around criminal trial at bay. Pressure and influence of media in some high
profile cases have yielded positive reactions in the past but at the same time any power given
absolutely leads to corruption.

63
Ram Jethmalani & D.S.Chopra, Media Law, (Thomson Reuters, Vol 1,2ND Ed; 2014).

29




CHAPTER 4
RIGHT TO FAIR TRIAL AND FREE PRESS

4.1 International Perspective

The core of legal system worldwide is to place balance of proportionality within competing
rights. A fair society hallmarks dignity and fairness to citizens. Role of media, quality of
criminal justice system in a society is quintessential. Media builds story related to crime
which is always followed by legal consequences especially on right to fair trial of an accused.
In a democracy, media freedom stems from public right to be informed. There is a need for
understanding and moderation on what media articulates into the public perception of crime
and justice to restore faith, as the basic ingredients of justice being trial by court and not
proliferation by press.

What is perceived firstly, that there must be absence of trial by media a fairly known term by
now, secondly no one is allowed to prejudice a case not even the press. The hallmark of
justice in India being right to fair trial that is a trial not hindered by erroneous pressure in
pairing merits of the case, purely being right of an accused is as important as freedom of
expression and right to open system. Commission of crime constitutes two conflicting forces
into play right to know of the citizens and right to fair trial of accused, potentially tainted by
influence, fictionalisation of crime stories by media that is absorbed by the public in the name
of infotainment rather than rendering truthful facts.

Pre-extensive publicity to the trial risks threat and serious prejudice to the fairness of right to
trial of accused. Therefore a constant discord is seen between interdependent rights, media
and judiciary. Reasonable limitations must be followed by media while exercising right to
free speech and open justice, as fair trial must not be endangered in name of public
confidence. However, the dichotomy being inevitable, this chapter throws light on various
component of fair trial and explores the dialogue between the two Constitutional right
emphasising constant tussles between various principles.64

64
Neeraj Tiwari, Fair Trial Vis A Vis Criminal Justice Administration: A Critical Study Of Indian Criminal
System, Journal Of Law And Conflict Resolution, Vol 2(4).

30




Independence and impartiality of judiciary explores the efficacy of right to fair criminal
proceeding and it is designed to protect individuals from deprivation of right to life and
personal liberty. Needless to say that Nuremberg Tribunal65 has laid significant foundation to
the principles of International Criminal Law, being the first set of documents to ensure
minimum standard of fair trial in trial proceeding.

Right to fair trial is an important principle observed by International instruments. Impartiality

of judiciary, judicial independence and judicial calmness are the primary factors that uphold
fair trial. United Nations (UN), International and National Human Right Instruments have
passed various principles on fair trial, freedom of media and independence of judiciary.
Genesis of right to fair trial is not a new concept; it has been traced in Magna Carta.
Jurisprudence of different Human Right Instruments have different provisions and
conceptions of fair trial i.e. UDHR, ICCPR, ECHR, ACHR, AFCHR.

UDHR is the first formal statement of Human Rights. The concept of universal respect and
applicability being enshrined in UDHR, right to fair trial was brought out as a human right
jurisprudence in the definition of UDHR 1948. Based on the concept of principles of natural
justice; UN declarations are non-binding instruments which is limited in scope.66 However, it
being an authoritative statement considered to be a declaration and not treaty.

Article 3 of the UDHR; enshrines about right to life, liberty and security of persons. Article 6
of UDHR speaks about independence of judiciary. Article 10 enshrines independent and
impartial tribunal. Article 11(1) entrenches presumption of innocence. Article 6 and UDHR
clearly evolves judicial independence of proceedings and impartial tribunal to determine
rights and obligation of parties is essential for fair and public hearing.67

Principles of UDHR have been analysed in ICCPR treaty in a more detailed premise, and
containing provisions on civil and political rights of citizens of member state. ICCPR came
into force on 23rd March, 1976. Article 14 envisages minimum standard of fair trial to be
observed to ensure fairness of trial. Article 19 elaborates that freedom of press flows
implicitly from freedom of expression and freedom of press includes different facets to it like

65
Sivasubramaniam Bahma, The right of an accused to a fair trial: The independence and the impartiality of the
international criminal courts, Durham University, (2013), available at 20 Durum e theses online.
66
Furqan Ahmed, Human Rights Perspective of Media Trial, Asia Law Quarterly, 47-62 Vol.1, No.1.
67
Universal Declaration of Human Rights, 1948.

31




freedom to receive, disseminate, seek, and impart information and idea regardless of frontier
or through any other medium. Article 14(1) clearly enunciates that right to public trial and
public access requires reasonable limitation. Article 14(2) says right to be presumed innocent
until proven guilty according to law.68 Para 1 of Article 6 (ECHR, 1950) enshrines that
everyone is entitles to a fair and public hearing by an independent and impartial tribunal. At
the same time Article 6(2) talks about presumption of innocence. Article 10 envisages about
freedom of press. Similar provisions can be found in Para 1 of Article 8 of American
convention on Human Rights (ACHR), 1969 speaks about Right to hearing by competent,
independent, impartial tribunal. Article 7, Para 1 on African Charter on Human and People’s
Rights (AFCHR), 1981 speaks about right to be heard and tried by an impartial court or
tribunal. Thus, the importance of independent and impartial judiciary is essential to right to
fair trial. An implementation of this multi faceted right depends upon proper administration of
justice which is pre-requisite of rule of law.

However, for a free democratic society media freedom is paramount and international
standard places media freedom at the core just as it places reliance over right to fair trial or
independent judiciary.69

Brief over-view of various international principles gives us a clear idea that no right can be
outweighed by another. Principles clearly enumerates in each Article the importance of
freedom of speech and expression but at the same time it clearly lays provisions that freedom
of speech and expression must cohabit with other basic principles without combating with
right to fair trial, public hearing or principle of presumption of innocence.

The Madrid Principles on Media and Judicial Independence organised by the International
Commission of Jurists in 1994, read the basic principles as under70 –

1. Freedom of expression constitutes freedom of Media. It further elaborates different

rights of media which includes disseminating, imparting, and seeking information to

68
International Covenant on Civil and Political Rights,1976.
69
Dr L.V.Singhvi, Draft Universal Declaration on the Independence of Justice,UN Special Rapporteur, 1989.
70
The Madrid Principles On The Relationship Between The Media And Judicial Independence, Established By
A Group Convened By International Commission Of Jurists, Its Centre For The Independence Of Judges And
Lawyers, & The Spanish Committee Of UNICEF,1994..

32




public to comment on administration of justice, but without violating presumption of

innocence.
2. No special restrictions on the reporting of the subject of administration of justice.
3. No restriction on right of person to communicate information about investigation or of
circumstances being investigated. Secrecy during investigation on crime is maintained
to preserve presumption of innocence.
4. In the interest of administration of justice basis principle may be restricted – in case of
serious prejudice to defendant, serious harm or pressurizing of witnesses, jury or
victim.
5. No restrictions can be imposed in a discriminatory manner.

Thus the main objective of Madrid Principle was to construct principles to examine and
develop a relationship between freedom of expression, freedom of media and judicial
independence.

4.2 Relationship between fair trial and freedom of expression

In modern times of massive dissemination of news, it has become difficult to reconcile the
need of fair trial as the possibility of prejudice has increased causing hindrances to
administration of justice. Free press and right to fair trial are two important principles for the
existence of a free society and to maintain true spirit of democracy; although the constant
conflict between free speech and free trial remaining inevitable. Freedom of expression is the
foundation of a democratic society which embraces with it right to communicate ideas, hold
beliefs and form opinions, access and impart information through any medium.

Within the right of expression, flows freedom of press. With every free speech flows a right to
lay sentiments and to forbid this right is to destroy the very foundation of free speech.
Protecting the press is important but the press must not override the bound set. Upholding the
public right to know inevitably involves exercising freedom of expression. Freedom of speech
puts forward the notion that truth must never be vigorous and from opposing opinions
sometimes truth may emerge, suppression of such opinion forbids growth.71 The judiciary is
assigned to restore public confidence and to ascertain truth. The court works to safeguard fair

71
Gregg Barak, Mediatizing Law and Order. Applying Cottles Architecture of Communicatives Frames to the
Social Construction of Crime and Justice, Crime Media Culture, (2007).

33




trial i.e. through the power to punish for contempt and to avoid media fanfare and erroneous
reporting of criminal proceeding. The press guard against miscarriage of justice as it keeps a
constant check on the entire political-legal system. It is a narrative of what happens in the
courtroom as it is considered to be a public property.

Presumption of Innocence is derived from a Latin maxim which means to convey the burden
of proof is on he who declares not on he who demise. Presumption of Innocence is a
sacrosanct principle of criminal jurisprudence and the two main guarantors of this principle
are judicial independence and impartial tribunal or jury. This principle guarantees the accused
legal right in a criminal trial that is burden of proof lies with the prosecution. In simple to
understand accused is presumed to be innocent beyond reasonable doubt and if they remain
reasonable doubt, accused is to be acquitted. The basic rationale behind this principle being
legal inference must be that most people are not criminals; liberty and dignity of every person
innocent or accused of guilt must be maintained until unless established by due process of
law.

In R v Oaks72 Justice Dickenson laid the meaning of presumption of innocence; protector of

fundamental liberty and human dignity of every person. Presumption of innocence as already
noted above is contained in various International Principles and Declarations such is the
importance and reach of this cardinal principle which cannot be compromised or outweighed
by any other right. Presumption of Innocence underlies with it the Right to equality, Right
against self-incrimination, Right to life and personal liberty and most important Right to fair
trial in a just, fair and reasonable manner. Assuring presumption of innocence of accused
beyond reasonable doubt is not just limited to justice hierarchy, but also media responsibility
as they impart information to public.

Presumption of innocence of accused is presumed by court and not by opinions outside the
court. Balancing right to know and presumption of innocence seems to be inevitable. It is high
time that court gives appropriate solution with regard to reporting of matters sub-judice as the
dichotomy between right to fair trial and right to cover that trial. When two competing rights
out way each other, it is difficult to resolve the controversy. Here it is not possible to lay a
strict theory but with changing technology, massive flow of information, better informed

72
(1986) 26 DLR 20.

34




citizen, active netizens, it has become a debatable subject as information is transmitted to

millions of readers.

Therefore, such a competitive era develops with it commentaries of conflict between judiciary
and role of media. Recent high profile trials have received pre-extensive publicity as
discussed in Chapter 3, requiring an approach to protect defendant’s right from media frenzy
and filtration of reports. There is a need to find a balance between basic rights to free press,
fair speech and fair trial. Trial by media and prejudgment of a case by press are two general
concerns that arise. The question is whether of proponents of justice can cohabit
harmoniously.

4.2.1 Open Justice

The concept of open justice in simple means holding court proceeding in public. Openness
and public access to what transpires in court is a basic feature of democracy as it restores
public confidence in judiciary. Thus, it is being animated as a starting point in establishing a
relation between court proceeding and media. The concept of justice being administered in
open is an age old tradition and is open to public and press. The basic principle of open court
is that administration of justice must be open to scrutiny except in exceptional cases. Justice
manifests as a multi-dimensional principle ensuring openness, publicity, attainment of truth,
right of access to fair and accurate reports of proceeding conducted in open court73. However
no right is absolute, in certain exceptional cases trial is held behind closed doors.

The need for publicity to achieve justice was laid by Jeremy Bentham, In Scott v Scott74,
publicity ensures scrutiny of administration of justice. Transparency must be maintained
while reporting judicial proceeding as justice must not only be done it must be seen to be
done, but openness must be safeguarded.

The same rationale being followed by Justice S.M.., Bachawat in Neeraj Sridhar Mirajkar v
State of Maharashtra75, judicial proceedings must be in open as it is a universal principle,

73
Russell v Russell, (1976) 134 CLR 495.
74
(1913) AC 417.
75
AIR 1967 SC 1..

35




open justice enhances public knowledge and ensures administration of justice, however to
safeguard openness and due course of justice exceptions shall be placed.

The objective being a person facing trial must be given legal assistance in consonance with
article 21 of Indian Constitution. Court may restrict publicity of proceeding in the interest of
justice if satisfied beyond reasonable doubt and apprehensions that end of justice would be
defeated if tried in open court. If necessary, Court can invoke inherent power under Article
129 and Article 215 of Indian Constitution can prohibit publications of court proceedings or
evidences of case outside court by media. Right to open justice is not absolute76 and can be
restricted in certain exceptional cases.77

4.2.2 Exceptions to the Rule of Open Justice

The fundamental principle of open justice yields exceptions and it can be placed only in the
interest of administration of justice. Court rooms are not just a ready source of facts for the
media. Paramount importance in a democracy is always given to freedom of speech, open
justice, right to access. However, when there is adverse apprehension on the presumption of
innocence or anything disproportional to fair trial then it exemplifies limits in discretion of
open justice. Media devices as a translator between court proceeding and general public. Thus
it has to maintain accountability, transparency while reporting. Broadly, hearing of pre-trial
proceeding in chambers and in-camera proceeding are two exceptions recognised being
general power of court.78

Free speech and right to fair trial runs parallel to open justice but however both have the effect
of imposing restrictions when it disturbs justice. Another important proponent of suppression
is privacy as there is a keen interest revolving round the identity of the accused, perpetration
of crime, victims, witness, and national security.79 In Australian Securities and Investment
Commission v Rich80, laid certain considerations that qualify principle of open justice-

76
Kehar Singh v State AIR 1988 SC 1883.
77
Dr. M.P. Chandrika, Open Justice v In camera Indian scenario, International Journal of International law, Vol,
Iss 2.
78
Ibid.
79
Sharan Rodrick, Achieving the aims of open justice? The relationship between the Court, the media and the
public, Deakin Law Review, Vol. 19 No. 1.
80
(2001) 51 NSWLR 643.

36




prematurity, trial by media, ambush, misleading reports, commercial confidentiality are some
of the qualifications to principle of open justice. There are few strict situations where
reporting, court proceedings are restricted to maintain right to fair trial in order to avoid
prejudice and need for fairness of trial.

Therefore, media needs to create a balance while reporting the need for fair trial and
upholding the principle of open justice to reconcile the created tensions. Over the years,
revolution of communication has taken place be it in the field of news, internet, televised
broadcast, podcasts etc. paving way for new hurdles to erode fairness of trial.

4.3 Postponement Orders

In US, free speech is not attributed with restraints as it is an absolute right. However, with
changing scenario and after cases like O.J. Simpsom81 gave birth to the concept of
neutralizing technique. As an exceptional cases court resorted to neutralizing techniques i.e.
change of venue, reversal of conviction, voir dire, ordering re-trial to overcome the effect of
prejudicial publicity. In Anita Whitney v California82 US Court observed that to believe that
the danger apprehended is real and imminent there must be a direct nexus or probability of
serious injury to the state.

In UK, in the light of Sunday Times v US83, to achieve a balance between fair trial and rights
of media, section 4(2) of 1981 UK Act was enacted expressly empowering the courts to pass
postponement orders of publication or parts of publication for certain period as to avoid
serious prejudice, substantial risk causing to the administration of justice to safeguard fairness
of trial and to prevent possible contempt.

Supreme Court of India not only strictly enshrines fundamental rights but also plays a vital
role in balancing different fundamental rights. Several judicial pronouncements are traced on
prior restraints in the case of Brij Bhushan v State of Delhi84, Virendra v State of Punjab85 as

81
State v Simpson, No. BA 097211 (Cal. Super.Ct filed July 22 1994).
82
274 US 357 (1927).
83
(1979), Series A No. 30, 14 EHRR 229.
84
AIR 1950 SC 129.
85
AIR 1957 896.

37




balancing Article 19(1)(a) and pre-censorship was seen. In K.A. Abbas v UOI86, Court upheld
prior restraint. In Neeraj Mirajkar v State of Maharashtra87, postponement orders were upheld
in case it conflicts with principles of open justice. Courts with inherent powers could pass
orders temporarily prohibiting the publication of proceedings in the media.

In Reliance Petrochemicals Limited v Proprietors of Indian Express Newspaper Bombay Pvt

Ltd88., Supreme Court expounded the validity of issue of debenture which was published in an
article in spite of being an sub-judice matter. The court restrained the press from publishing
articles, i.e. prior restraint was ordered by the court on the grounds that it interfered with the
administration of justice. The Court looked into the US doctrine of clear and present danger
test. Thus postponement orders for temporary period is recognised as an inherent power of
court to meet the ends of justice and such orders could not be held to violate Article 19(1)(a).
Thereby to balance free press and free trial it is important to balance public confidence, when
freedom of speech and expression outweighs the balance of public importance hindering
administration of justice or fair trial postponement orders may be an option but there can be
no abstract theory regarding this. Right to know puts a greater responsibility on the media as
they take the responsibility of informing the public, thus holding accountability to the
information they deliver.

In Sahara India Real Estate v Securities Exchange Board of India89, confidential proposals
sent by both counsels appeared on television channels. Court observed that there is an
increasing incidence of reporting of sub-juice matters not only affecting merits of the case,
sentiments of parties but also tampering administration of justice. This case stressed on the
need for framing guidelines on media reporting and to set directions to the extent of pre-trial
publicity on matters that are sub-judice. A five judge bench headed by Chief Justice JH.,
Kapadia laid down that guidelines on media coverage and publications cannot be construed,
however only principle of postponement order can be laid as affected parties can seek order
for matter sub-judice or when there is substantial risk of prejudice, that too on case by case

86
AIR 1971 481.
87
AIR 1967 SC 1.
88
AIR 1989 SC 190.
89
(2012) 10 SCC 603.

38




basis, thus declined to frame guidelines for media coverage and publication for court
proceedings. Neutralising technique is not prohibitive in nature as it is an essential requisite to
balance freedom of speech and expression and right to fair trial for proper administration of
justice.90

The Contempt of Courts Act, 1971 is an important tool to protect institution of administration
of justice though not expressly mentioned falls under Article 19(2) of Indian Constitution read
with article 129 & 215 of Indian Constitution. Indian Courts have recognised postponement
orders and it clearly falls under Article 19(2) as it is essential to weigh equal rights in case of
pre-judicial, pre-trial publicity which is having a tempering effect on the due course of justice.
The test of reasonableness must be laid as the rationale behind the reliance of postponement
order is that publications must not create real, present, danger and substantial risk of prejudice
to fairness of trial, administration of justice. It is observed as a preventive measure and not a
punitive measure, to balance competing rights only if neutralizing techniques do not fill
parameters, postponement orders may be passed on actual publications only for a short or
temporary period of time.

4.4 Concept of Fair trial

Concept of fair trial is based on the idea that society is secured by rule of law and the state has
to administer social order to balance justice. Indian Constitution accords procedural
safeguards to accused ensuring that no person shall be deprived of personal liberty. Every
person who formally commits an offence until proven and convicted by a competent court is
presumed to be innocent beyond reasonable doubt.

Fair trial as a concept is difficult to define but attributes of fair trial are explained with
precision. Fair trial is the foundation of criminal jurisprudence and is based on adversary
systems. Principle of fair trial manifests in various rules and procedure and this principle is
recognised in article 21 of Indian Constitution as it recognise that fairness must be identified
to observe administration of justice. It is the central prescription of criminal justice system.

Fair trial is an inherent power of court as it restores faith in the judicial system, various
attributes of fair trial that are being guarded constitutionally, will be discussed below. The

90
200th Law Commission Report, Supra.

39




requirement of the fair trial is fundamental axiom of Indian Constitution in the same way its
attributes as well.

Article 14 of the Indian Constitution- The state shall not deny to any person equality before
the law or the equal protection of the laws within the India. Article 15 of the Indian
Constitution- The state shall not discriminate against any citizen on grounds of religion, race,
caste, sex, place of birth or any of them.

The Supreme Court in Maneka Gandhi v Union of India91 held that right to fair trial underlies
with it right to equality; i.e. it guarantees that no discrimination is made against accused,
suspects throughout trial and equal treatment before law is sheltered. Equal access to the law
and equal access to court is provided it means that throughout the judicial proceeding,
discrimination is prohibited. Article 14 underlies with it Article 21, any unreasonable or
arbitrary proceeding is in violation of Article 21. Thus right to equality before law is a
fundamental right, it not only prohibit states from discriminatory actions but mandates that the
procedure followed must be just, fair and reasonable.92

Thus our Constitution says that every individual has a right to equal opportunities even if the
person is an accused, suspect if ever a bias exist it can be only for the protection of basic
fundamental rights, human rights and Constitutionalism. Article 20(3) of Constitution, right to
remain silent- No person accused of any offence shall be compelled to be a witness against
himself.93 Section 161(2), 313, 315 and 316 of the Code of Criminal Procedure, 1973 grants
right to silence at trial stage and precludes the court on any party from commenting on
silence. Thus, protection against self-incrimination is a accepted principle and if court, public,
media draws adverse inferences then it deprecates right to be presumed innocent. The code of
criminal procedure and the evidence act provide rules for protection of accused, victim,
defence, prosecution and witnesses.94

91
AIR 1978 SC 597.
92
H.M Seervai., Constitutional Law of India 723 (Universal Law Publishing Co Vol 1, 4th Ed; 1991).
93
Ibid.
94
CODE CRIM. PROC. 1973.

40




Fair trial is a multi-faceted right including with it many attributes including right to be
presumed innocent, right to be informed and right to be defended by a lawyer. Indian law is in
consonance with the norms laid down in International Standards on Right to fair trial.
Criminal investigation is not just a matter of police, but it has a major impact on trial and its
outcomes. Article 21 of Indian Constitution and Judicial pronouncement provide for
protection on rights of accused. The starting point of any criminal trial is arrest, to ensure fair
trial it is essential to follow safeguards prescribed by the procedural law from initial stages of
investigation. However, in reality principle of fair trial has been time and again unfettered and
non-implementation of basic principles can prejudice the administration of justice.

The sacrosanct principle of criminal justice system that a person is presumed to be innocent
until proved guilty, and it is for the prosecution to produce evidence of guilt beyond
reasonable doubt is a fundamental tenant followed by various international instruments.

Penal laws in India follow the cardinal principle of fair trial and presumption of innocence,
both being an Anglo-Saxon jurisprudence it finds ally in international human right
instruments. The US Supreme Court reads presumption of innocence in the due process
clause. Indian Constitution has also given Constitutional recognition to the principle of
presumption of innocence. No person shall be deprived of life and personal liberty except
procedure established by law in a just, fair and reasonable manner was observed in Maneka
Gandhi v UOI95, Bachan Singh v State of Punjab96. In Sunil Batra v Delhi Administration97, it
was observed that due process is read with Article 21 and Article 14. Right to presumption of
innocence becomes part of Article 21 and is read with due process of law.

In Visakha v State of Rajasthan98, it was expounded that presumption of innocence is a

fundamental right in various covenants of Indian law, thus can be resorted for interpretation.
In P.N. Krishna Lal v Government of Kerala99, it is well settled that presumption of innocence
is a part of Indian Constitution. India is a member to UDHR, ICCPR which guarantees

95
Id at 39.
96
(1980) 2 SCC 684.
97
AIR 1980 1579.
98
AIR 1997 SC 3011.
99
2009 CriLJ 2974.

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presumption of innocence and procedure of trial must guarantee fundamental human right.
However strong the suspicion may be against the accused, the rule of high probability is not
enough to convict an accused as benefit of doubt shall be given and burden of proof lies with
the prosecution so as to establish the guilt beyond reasonable doubt, established in Sharad
Birdhichand v State of Maharashtra100.

Media frequently oversteps apprehending suspects, accused and this possibility of bias often
blurs fair trial. Right to privacy is not granted in express terms but it is a cherished right
enumerated as a part of article 21. Supreme Court laid foundation of right t privacy in Kharak
Singh v State of U.P101., regarding domiciliary visits under UP Police Regulations. Court held
that though Right to privacy not expressly mentioned in the Constitution but can be traced
from right to life under article 21. In Govind v State of M.P.102, it was held that Right to
privacy can be denied only when a reasonable basis for intrusion is seen. Right to privacy is
not absolute and it protects intimacy of marriage, home, family, motherhood, child bearing,
procreation and favours pursuit of happiness. Right to privacy would undergo a case by case
development.

In R Rajagopal v State of Tamil Nadu103, the Supreme Court expounded if the press could
criticise on the conduct of public officials. The Court observed that freedom of press carries
with it free speech and every speech engages with it an uninhibited debate about public issues
involving public figures and events. But Indian Constitution enshrines a democratic way of
life and to maintain it, it is necessary that media maintains a proper balance between free
press, right to privacy and defamation and protect individuals private life.104

The essential aspect of fair trial is that accused to be tried before an impartial tribunal and
independent judiciary. Article 50 of Indian Constitution says separation of judiciary from
executive in public service of the state. Principle of competency, independence and
impartiality of Supreme Court, High Court, and Subordinate Courts are all vital for fair trial.

100
AIR 1984 1622.
101
AIR 1963 1295.
102
AIR 1975 1378.
103
Id at 264.
104
H.M Seervai., Constitutional Law of India 723 (Universal Law Publishing Co Vol 1, 4th Ed; 1991).

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Judicial independence is derived from the basic principles of rule of law and principle of
separation of power, as an independent judiciary is intrinsic for proper administration of
justice. Independence in general means court must be free from influence, from any
unwarranted source. The crux of principle is that no other authority, group, individual and
media should interfere or tend to interfere with the decision making process of judge.
Impartiality is closely connected with independence of tribunal.

Therefore, judges should show no interest or prejudice or conviction about a particular case or
party, as there should not be any doubt on the credentials of judgment and it should only be
reasoned based on the facts in accord with law. Judicial independence and impartiality of
tribunal must be respected by all four pillars of democracy including media as it restores
public confidence in the justice system. There are enormous influences that can be created by
media leading to mass public opinion but the duty of court is to interpret law and uphold in
accordance with law without being influenced by public opinion or sentiments105.

Extensive media coverage especially in high profile trials may weight publicity but the judge
must be free from such publicity. An impartial tribunal and judicial independence are well
recognised human right as well. In S.P. Gupta v UOI106, it was observed that independence
from prejudice is important from independence of judiciary. Impartial tribunal is vital for fair
trial. Impartiality means free from bias, two important tests were laid by the Supreme Court in
this case. Firstly, judges should not be biased or keep personal pre-emption. Secondly, judicial
proceeding must not create any legitimate doubt on the conduct of the judge.

One of the basic constituent of fair trial is that contents of publication may be contentious to
the outcome of a fair trial as it may undermine the vital gap between the accused, suspect and
convict. As suspect is a person who has been formally charged with the crime suspected for
committing a crime. Accused refers to a person who is charged with a crime and convict
being a person guilty of crime. Thereby, making it important to breakup and undermine the
gap. Further classifying various stages of trial into pre-trial, actual-trial and post-trial is
essential, as they carry chain reactions and subverting of rights during one stage may pull up

105
Sivasubramaniam Bahma, Supra 30.
106
AIR 1982 SC 149.

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adverse consequence changing the course of trial of other stage leading to violation of rights
smearing due process of law107.

Fair trial incorporates with it right to speedy trial, no trial can be reasonable if extended for a
long period of time, prompt, swift trial is a requisite in all stages of trial as any delay can
jeopardise the procedure as unjust or unreasonable. In Hussainara Khatoon Case108,
development of speedy trial was observed. Sheela Barse v UOI109, the court elaborated
consequences of delayed trial and observed that speedy trial is implicit under article 21 of
Indian Constitution. Article 22 of Constitution guarantees right to be defended and to consult
a legal practitioner basically it enshrines right to lawyer of choice. Section 303 of CrPC states
the same principle. Another important element of fair trial is to give opportunity to accuse to
be answerable to all questions charged against him110. Fair trial provides with an opportunity
to prove innocence and to adduce evidence ensuring fairness and accuracy, denial of this
critical right is denial of fair trial. Examination of witness plays a vital role in guaranteeing
fair trial and adverse inferences on witness may prejudice trial. There are several occasions
and reasons for witnesses turning hostile, reversing from earlier stated statements, one of the
major reasons being media fanfare/media pressure. Such a situation the court has to take
serious actions; Supreme Court in Neelam Katara v UOI111 laid guidelines on witness
protection.

There is no elaborate guidance on the concept of fair trial but it is judicial pronouncements
that have brought out different attributes of concept of fair trial elaborating the wide scope
attached to this fundamental principle. A fair trial is said to be fair when it is held in open and
available to accused or suspect and is reasonably judged. Fairness means procedure that is
free from prejudice, bias, arbitrariness and is available within a reasonable time. In Kishore

107
Consultation paper of Media Law, Government of India, Law Commission of India , 2014 May.
108
AIR 1979 1369.
109
AIR 1986 1773.
110
CODE CRIM. PROC.
111
2003 DLH 84.

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Singh v State of Rajasthan112, it was observed that Constitutional laws safeguards rights of
accused and protects individual dignity ensuring due process of law.

In AG v Shiv Kumar Yadav & Ors113, therefore it is difficult to analyse situations that erodes
fairness and leads to miscarriage of justice making it difficult to define fair trial however
general propositions may be drawn to identify deprivation of fairness that leads to miscarriage
of justice on a case by case basis. Hence concept of fair trial cannot be limited in scope,
neither can be defined absolutely as already observed, it has to be inferred with various
statutes and judicial pronouncements as the concept of right to fair trial carries with it
important attributes and different facets, thus the task of defining fair trial is complex.

In Zahira Habibulla Sheikh v State of Gujarat114, first time the Supreme Court defined the
concept of fair trial. The task of balancing competing interest of accused and public right to
know was incepted as public interest and rights of accused cannot be put at stake. Existence of
court accords with it public confidence, establishment of truth and discovery, as primary
objectives springing with it certain restraints while establishing truth. Reconciling merits of a
case is important before abstracting truth and these series of ordain have given rise to
principle of fair trial.

Thereby fair trial being a multi-faceted right, constituents of fair trial depends on various
stages of trial, persons involved, internal and external factors of crime, justice system,
investigation procedure. Administration of justice is a continuous process, there can be no
strict definition attached to the concept of the fair trial. It must be perceived as an on-going
process changing with circumstances and situations analysing them with various attributes of
fair trial, primary objective being to ensure fairness of trial.

Denial of trial is denial of justice not only to the affected person but to entire community at
large. Thus Supreme Court in this case expounded fair trial as a trial conducted by an
impartial tribunal, which is free from bias, a fair prosecutor with an atmosphere of judicial
calm. Criminal trial is a series of examination of various issues and facts of case leading to

112
AIR 1981 625.
113
CrlA. 2015.
114
(2004) 4 SCC 158.

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discovery and establishment of truth, however determination of this process of trial is

judicially examined to access the guilt or innocence of the accused, thereby the entire process
strictly being judicially evaluated as any observance outside the legal procedure, law
principles may erode administration of justice paving way for miscarriage of justice. The
Court thus laid major genesis on ensuring fair trial, defining fair trial and the various
attributes attached to fair trial.

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CHAPTER 5

TRIAL BY MEDIA AND LAW OF CONTEMPT

5.1 History of Contempt of Court

Foundation of judiciary lies when unwarranted interference with administration of justice is

made punishable. To generate feeling of confidence in the people it is important to ensure
proper functioning of judiciary without any obstruction. The origin and development of
Contempt legislation can be dated back to 1291. The meaning of the term Contempt has been
shifted from an offence against the sovereign, to ensure free and fair administration of justice
without any obstruction by any other authority.115

Thus contempt in general may be understood as any act showing disgrace, wilful-
disobedience or any act in violation of direct order of court tending to lower the dignity of
court.116 The basic theory of contempt is protection of right, liberty, trust of the people at large
but the basic rational is protect the authority of court, hence when dignity of court is
maintained and respected authority of people in itself is protected and the basic rationales
behind the contempt legislation is to secure administration of justice and to secure authority of
court and any disobedience, disgrace, obstruction, disrespect is validated as contempt and
inherent powers to the judiciary is bestowed as a tool to secure justice. Therefore the term and
meaning of contempt has undergone drastic changes from 12th century to the 17th century and
now in the 21st century tremendous developments are made in the power of the contempt, and
mechanism for a due administration of justice.117

A mechanism of administration of justice is seen from time immemorial, earlier the king was
adorned with certain regalia; that is sovereign enjoys the power to issue prerogative writs.
Common law in England, notwithstanding the Magna Carta acknowledged the power of the
king to punish those who ignored his write. This power of the sovereign during course of time
was delegated to the judiciary. In ancient India, the king established dharmararajya (rule of

115
Contempt Power of Court,www.legalserviceindia.com/article,last visited on Sept.2,2016.
116
Justice Tek Chand,The Law of Contempt of Court & of Legislature, (University Book Agency Allahabad 4th
Ed., 19997).
117
Gordon Borrie & Nigel Lowe, The Law of Contempt, (Butterworth & Co.Publishers Ltd, 1973).

47




law) and dharma that is justice delivered to all his subject, and the king being the fountain
head of justice.

The law of contempt is the off spring of common law. Establishment of different court of
record took place and contempt power was bestowed on the court to ensure proper
administration of justice and to uphold rule of law and public confidence .Courts have
inherent powers of punishing for contempt to prevent interference with administration of
justice, distrust and disrespect towards the court in order to deliver justice and to hold the true
spirit and confidence of the people. In modern times the difficulties in crystallizing the law on
contempt was faced. In India, until 1926 there were no legislation118 and the enactment of
term contempt was applicable only when it interfered with administration of justice limited to
situations of public confidence in court or any other manner119.

In Govind Shai v State of U.P.120 Court expounded that contempt applies to any conduct that
lowers authority and administration of justice or interferes with or prejudice parties or
witnesses to pending litigation or obstructs the court, anything that tends to prejudice fair trial
of a proceeding i.e pending or imminent amounts to contempt of court121. Court of mayor was
first court under charter of 1687 in India and admirably court under royal charter of 1683. The
first court visited with contempt power was Mayors court under charter of 1727. In the place
of recorder of court Supreme Court was established by charter of 1801. High court Act 1861
established High Court. Both, Supreme Court and high court are court of records with
inherent powers to punish for contempt as court of England. The Contempt of Courts Act,
1926 was established to provide limitations to the powers of contempt and to define contempt
of subordinate court.

With the increasing genesis of contempt cases the 1952 Act was put under scrutiny and led to
the appointment of Sanyal committee. The term contempt of court was not defined bringing
about a dual purpose i.e to ensure proper administration of justice and to regulate procedure
and feeling of confidence in general public.

118
State v Editor, Printer Publisher of MathrubhumI, 1954 CriLJ 926.
119
Rex v BS Nayyar, AIR 1950 551.
120
AIR 1968 SC 1513.
121
IN Re Subrahmanyam AIR 1953 Mad 422.

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5.2 Sanyal Committee Report, 1963

The Sanyal committee was set up dated July 1961. An expert committee examined law
relating to contempt of court 1952 Act and to make recommendation for codification and
submitted a draft bill along with the report, popularly known as Supreme Court report 1963 in
course of two years. The committee extensively took note of the need to secure administration
of justice and freedom of speech. Committee recognized the difficulties and recommended
classifying the term contempt into two heads, civil and criminal.

The major recommendation was regarding pending judicial proceeding and it said that
knowledge of pending judicial proceeding is incorporated as a defense to a publisher, it
clearly shows that the press where given due importance than ordinary citizens with matters
relating to publications. Regarding imminent proceedings the committee suggested to uphold
the word imminent proceedings its continuance to attract liability in case of interference. The
question that arises is whether such exclusions has led to interference with imminent judicial
proceedings and undermined due process of fair trial.

In Smt. Padmawathi Devi v R.K. Karanjia122 - Even an FIR is considered as starting point for
pendency of judicial proceedings and for a matter to become sub-judice reporting.123

124
Sanyal Committee Report and reliance on A.K. Gopalan v Noordeen in this case lodging
of First Information Report (FIR) is not admissible to consider that it is an imminent
proceeding and it can be considered as imminent only when an arrest had taken place. It has
to be considered on facts of case whether proceedings are imminent or not, until an accused is
arrested it cannot be said that the proceedings are imminent as the person may not be arrested
at all. Freedom of speech cannot be put under undue restriction even before arrest is made.
After arrest is made if there are publications made it may be instrumental to suggest
imminence of proceedings and Article 19(1)(a) must give way to Article 21. Thus Supreme
Court seemed to have incorporated the benefits of A.K. Gopalan Case as they protected
interest of imminent criminal proceedings.

122
AIR 1963 MP 61.
123
Surendra Mohanty v State of Orissa, Crl App No 107(56), RK Garg v SA Azad, AIR 1967 AII 37.
124
AIR 1969 2 SCC 734.

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But the Joint Committee of Parliament seemed to have forgone recommendations which are
leading to several loopholes.However the provisions concluded that the Joint Committee
regarding imminent judicial proceedings have to be looked into in the wake of spirit of
Maneka Gandhi case; Article 21 and in the light of A.K. Gopalan v Noordeen case as
withdrawal of these major premise has led to serious consequences in India.

Thus Joint committee of Parliament made useful changes. The committee report was duly
placed before parliament and a new act known as contempt of courts Act 1971 was enforced.
Therefore the Contempt of Courts Act, 1971 is a comprehensive act only next to the U.K. Act
of 1981. In 2006 Contempt of Courts Act 1971 has amended and included justification by
truth as a specific defence. The rationale of Contempt legislation is the secured administration
of justice, thus trial by media, scandalising courts, publication on sub-judice matters etc. are
serious situations for which remedy is not contained in Indian Penal Code, Code of Criminal
procedure and Code of Civil Procedure but Contempt of Courts Act, 1971 has provided
remedy for the same.125

5.3 Constitutional Provisions relating to Contempt

In R.K. Anand Case126, it was observed that contempt proceedings are sue generis provisions
of natural justice and are applicable to contempt proceedings but not to the provisions of Code
of Criminal Procedure and Evidence Act. The basic reliance of contempt legislation is to
protect fairness of trial, absence of prejudice and an opportunity to defend.127 Freedom of
speech and expression devoid of free speech and adverse expression is of no use as truth can
be discovered only when competing ideas exist. Article 19(1)(a) is Constitutionally
guaranteed subject to Article 19(2) to (6). Reasonable restriction is not only limited to Article
19(1)(a) , but guaranteed under Article 19(1).

In a democratic setup freedom of speech is weighted to be significant as it includes with it

right to criticise the judiciary whereas contempt maintains independence of courts, conflict
between judicial accountability and fair administration of justice is under discussion observed

125
Sanyal Committee Report 1963.
126
Id, 106 at 24.
127
Ibid.

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in Balhina Ramkrishna Reddy v State of Madras128 (Reddy Case). The most debatable
question that arose time and again was the validity of the term contempt of court as the
reasonable restriction found no definition in Contempt of Courts Act, 1921 and 1952 for
which the court has observed the term contempt of court finds no definition in Constitution
itself but is used under Article 215. Thus the framers of Constitution have given judicial
interpretation of the term while legally co-operating it under Article 19(2).

In EM Shankaran Namboodiripad v T. Narayana Nambiar129, Namboodiripad then CM of

Kerala made contentious allegations against the judiciary. The case raised series of
contentions which one was that the contempt provision must be read without encroaching
upon Article 19(1)(a). However the court observed while exercising freedom of speech and
expression, one cannot commit contempt of court. Hence the requirement of harmonisation of
Article 19(1)(a) and 19(2) was observed by Supreme Court.

Article 129 and 215 enshrined in the Constitution declared that the Supreme Court and High
Court have inherent power to punish if any interference is seen in the administration of
justice. The past witnessed conflicting views with regard to contempt proceedings initiated by
Supreme Court and High Court under Article 129 and 215. Thus scope of article 129 of Indian
Constitution is expounded in DJS Association, Tis Hazari Court v State of Gujarat130, the
court observed that Supreme Court as court of record inherent power under Article 129 and
thus is not ultra vires Article 19(1)(a) to safeguard subordinate court as well, in exceptional
case where the centre judiciary is at stake Supreme Court may take cognizance of contempt of
subordinate court. This view is not contrary to any provision of Constitution.

In Re Vinay Chandra Mishra131, the question arose if article 129 and 215 while initiated was
independent of 19(1)(a). Court observed that while initiating article 129 and 215 it is
independent of Article 19(1)(a), however In J.R. Prasad v Prashant Bhushan132, Court

128
(1925) SCR 425.
129
(1970) 2 SCC 325.
130
AIR 1991 SCW 2419.
131
(1995) SC 2348.
132
(2001) 6 SCC 735
51




observed that though the proceeding was initiated under article 129, it was not evaluated
independently of Article 19(1)(a) instead significance of 19(1)(a) was observed.

Article 227 which deal with power of superintendence over all courts by High Courts. Power
of High Court to initiate contempt proceeding is administrative in nature as superior court
have a duty to protect the lower court and tribunals if there arise a situation affecting
administration of justice. The protection of subordinate courts is necessary to preserve public
confidence. Article 227 is a well settled principle.

5.4 Contempt of Courts Act, 1971

Earlier the concept of contempt of court had no classification, at present under Contempt of
Courts Act, 1971. Contempt is classified under civil and criminal heads. Contempt legislation
is a well settled comprehensive legislation; it is to maintain dignity of courts and to protect
administration of justice. Any act or publication that tends to bring down dignity of court or a
judge, tends to lower authority of the court or judge, or tends to interfere with lawful process
of court or interfere with due course of justice is Contempt of Court. Contempt of Court Act,
1971 contains provision in relation to balancing between Contempt power of court, press
freedom, judicial approach to press freedom and protection of judiciary from wrongful
interference affecting administration of justice.

As at present in this chapter we would look into criminal contempt of court. Section 2(c) of
Contempt of Courts Act, 1971 can be dealt fewer than three major classifications i.e.

i. Scandalising the court

ii. Interference with the due course of any judicial proceeding.
iii. Interference with the administration of justice.

In general, criminal contempt would mean an act that tends to lower the authority of the court,
or which obstruct or interfere with administration of justice leading to disrespect towards the
authority of courts. Even as criminal contempt is dealt in classification the common fact
between all three heads is the notion of the interference with the administration of justice.

Section 2(a) defines Contempt of Court, section 2(b) Civil Contempt and section 2(c) defines
criminal contempt thereafter exemptions are provided under the act.

52




Section 2 (c) of Contempt of courts Act, 1971 uses the term publication and is applicable to
all 3 heads of contempt. Publications may be addressed towards large audience or smaller
section of the public and can be made in several ways by words of mouth, writings, signs,
visible representation, publications and circulation are facets of freedom of speech provided
under Indian Constitution and can be reasonably restricted under Article 19(2) if triggers
contempt of court, definition, incitement to an offence. Therefore any publications that
interferes with public confidence in the judicial system obstructs judicial proceedings pending
before the court, misrepresentation or publication on sub-judice matters, prejudicing public
and bringing reflections on a pending proceedings would be contempt of court.

Section 3: Innocent publications and distribution of matter not contempt, Section 3 of

Contempt of Courts Act, 1971 deals with certain defences, a person may plead in proceedings
for contempt and defines the stage up to which a judicial proceeding is pending. Section 3 of
Contempt of Courts Act, 1971 grants additional immunity with regard to media applications.
To grant section 3, certain ingredients are required which are as follows:-

• Section 3(1) deals with publication and publishers.

• Section 3(2) deals with publication and publishers.
• Section 3(3) deals with aspect of innocent distribution and publication.

Section 3 covers all aspect of publication and press freedom, as protection to distributor of
publication and distribution of publication both are covered i.e. publisher, publication and
innocent distribution and publication.

Section 3(1) – want of knowledge or reasonable grounds for believing that criminal/civil
proceedings was pending at the time of publication even if the matter calculated to interfere
with administration of justice is an complete defence. Section 3(1) grants immunity to
substantial publication pending at the time of publication, knowledge of pendency of
proceeding being an important ingredient for holding that a person is guilty of contempt. For a
publication to attract contempt legislation, it must refer to a pending proceeding. However
necessary ingredient for committing contempt is publication and is not limited to scandalizing
the court or judge, includes other forms of contempt.

53




The concept of publication got its importance in contempt by scandalizing the court; however
the notion in recent times has attracted more than one confined meaning i.e. contentious
publication leading to trial by media or other forms of criminal contempt and the unique
feature of 1971 Act is it imposes limitation on freedom of speech & expression, freedom of
press if there is a contentious publication.133

Section 3(2) – abolishes contempt in relation to civil/criminal proceeding which is not

pending at the time of publication.

Section 3(3) – a person who has no reasonable ground for believing that publication contained
any offending matter is a complete defence.

Provided that to attract protection publication must be in conformity with section 3 and 5 of
the Press and Registration Book Act, 1867. Thereby publication must have substantial
interference with administration of justice and not technical.

To understand Section 3, explanation for pendency of judicial proceeding is provided- clause

(a) is said to be pending under which sub clause A - in case of civil proceeding, instituted by
filing of a complaint or otherwise. Sub clause B of clause (a) – In case of criminal proceeding
under Code of Criminal Procedure, 1898 –

i. When the charge sheet or challan is filed, or when court issues summons or warrant, as
the case may be against the accused.
ii. In any other case, when the Court takes cognizance of the matter to which the
proceeding relates in case of civil or criminal proceedings, shall be deemed to be
pending until it is heart and finally decided, in a case where an appeal or revision
iscompetent, until the appeal or revision is heard and finally decided, or where no
appeal or revision is preferred, until the period of limitation prescribed for such appeal
or revision has expired does not give importance to publications in media made at the
pre-trial stage i.e. publications relating to character, confession to police, previous
conviction of accused is not considered.134

133
Law in Perspective: Media Reporting And Contempt Of Court: The Law Revisited (Feb.13, 2011), http://legal
perspective.blogspot.in/2011/02/media_reporting_and-contempt_of_court.html last visited on Aug 20 2016.
134
Justice Tek Chand,The Law of Contempt of Court & of Legislature, (University Book Agency Allahabad 4th
Ed., 19997)
54




In State v Biswanath Mohapatra135, Court expounded that lack of knowledge of pendency

cannot exonerate a person from the offence of contempt as the sole essence of offence is the
tendency or likelihood to interfere with course of justice. However, the decision is not
authority for the proposition.

Trial must be held in open and reporting of trial is essential as it maintains judicial
accountability. Media plays the role of a mediator between what transpires in the court and
public right to know. Open justice is an essential tool in ensuring fair administration of
justice. It is the duty of the media to keep public informed, but this responsibility comes with
accountability as well. Media must reports facts and not comment. Reporting must be done
prudently, lack of knowledge of pendency, contents or tendency of causing prejudice to a trial
by reporting is no excuse. The term judicial proceeding means day to day proceedings of
court. Wider meaning to the term judicial proceeding cannot be construed as section 4 is read
with the provision of section 7 of Contempt of Courts act, 1971.

Section 4 of Contempt of Courts Act, 1971 deals with publication of fair and accurate report
of judicial proceeding is not contempt; immunity to the press with this section gives a
statutory form. The principle being open court, all cases brought before the court must be
heard in open.

In D.C. Saxena v Chief Justice of India136, purpose of punishment for Contempt of Courts
Act, 1971 is not just to protect the court or authority of court but also to protect the public. It
is important to keep judiciary free from unwarranted interference as it undermines the public
confidence. The jurisdiction of contempt should not be exercised unless there is substantial
interference with due course of justice.

In Subhash Chandra v S.M. Agarwal137, Court held fair and accurate reporting of judgment of
a judicial proceeding must relate to proceeding that actually transpired in court as nothing
beyond that is protected.

135
AIR 1955 Ori 169.
136
Id, 216.
137
(1984) CriLJ 481 DEL

55




The term fair and accurate reporting do not have precise definition and depends on case to
case basis. The report must be fair and accurate nothing beyond that, report need not to be
word to word repetitions of judgment but must maintain reason, ability i.e. no omission or
addition to the words can be construed, neither a one-sided picture can be presented.

Section 4 grants immunity subject to provision contained in section 7. The publication of fair
and accurate reporting of judicial proceeding is not contempt even if it is in relation to
proceedings held in chambers or in camera and could be prevented if it falls under exceptions
of the section 7 of the act i.e. if publication is contrary to the provision of enactment, on
grounds of public policy, public order, security of the state, information relates to secret
process, discovery or invention which is an issue in proceeding.

Section 5 – Fair criticism on merit of judicial act heard and finally decided is not contempt :
Criticism made in good faith that does not override fairness done in rational language with no
derogatory comments, reporting done with public interest with a view to inform the public
and to elucidate the truth with no intention of tampering due course of justice.

Criticism can be brash, fair and reasonable but abuse of court, scandalization of judge shall be
actionable. Any publication is said to be scurrilous if it tends to lower the authority of court
out the subjects of jurisdiction of court affecting public confidence in due course of justice.
Criticism if fair and accurate about judicial proceeding or judicial act may not involve
contempt, but hostile criticism involves serious criminal contempt i.e. scandalizing the court
as a whole or judge criticism in general would not attract contempt, but if criticism shakes
public confidence would need a rethink. Freedom of speech and expression includes with it an
important attribute freedom to criticise judicial scrutiny but criticism cannot override
reasonable limit. Section 4 & 5 of Contempt of Courts Act, 1971 grants immunity to reasoned
criticism even if it is strong or against judicial decision done for public good.

Section 13(b) of Contempt of Courts Act, 1971 – Truth is included as a defence, provided it is
in public interest and bonafide intention of seeking defence.138

138
Indian Law Institute, Restatement of Indian Law Contempt of Court, (Saurabh Printers Pvt.Ltd 1st Ed, 2011).

56




5.5 Sub-judice Matter

Sub-judice matters means under judicial consideration. The term sub-judice is discussed in
detail under section 3 i.e. where a judicial proceeding is said to be pending, the complexities
lie in the interpretation of the term ‘pending’. The term pendency has undergone several
changes from of Contempt of Courts Act 1926, Contempt of Courts Act 1952, Sanyal
Committee Report 1963 to present Contempt of Courts Act, 1971 all dealt in detail earlier i.e.
from starting point of pendency being filing of FIR, then date of arrest then to include pending
and imminent proceeding to present explanation of term pendency of section 3 of Contempt
of Courts Act, 1971. However, the rational that has remained is publication that tends to or
showing the tendency of interference with the sub-judice matter and there must be substantial
risk of interference with due course of justice. The difficulty is in accessing the time onwards
which a proceeding may be treated as pending. The sub-judice rule regulates publication of
matter; it is a statutory rule which prevents publication that may prejudice court proceedings.
Media coverage on sub-judice matter may tend to conflict with individual and social interest.

The question settled in the court considered in Bijoynanda v Balakush139 was whether
freedom of press is privileged and if publication initiates contempt proceedings as publication
are made for the benefit of public. However, the court expounded that in contempt matters no
special privilege can be granted to the press. Media reporting of judicial proceeding is
justified on the grounds of public trial as it ensures administration of justice. However, Press
Council of India has laid certain restrictions on reporting sub-judice matters. Press Council
Act, 1978 regulate matters which are sub-judice in the form of norms and ethical code. They
are not strict neither legally enforceable, hence limited in their scope.

The ambiguity imputed is contentious publications regarding suspect or accused made during
the pre-trial stage i.e. when arrest is made in case of imminent proceedings or if publication
before that event of pendency but immediately after arrest undermines the vital gap between
accused and suspect affects the rights of accused as such publications tend to poison the
foundation of justice even before it begins to flow. Interference with administration of justice
may be of any degree, nature of publication before filing of challan / charge sheet in criminal
cases and before filing of plaint in civil cases, will not attract contempt proceeding.

139
AIR 1953 Ori 249.

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Thus under section 3 a very wide scope is granted to the media as a proceeding is treated as
pending only by intervention of court. Under common law, interference with imminent
judicial proceeding and pending judicial proceeding is considered to attract contempt but
under Contempt of Courts Act, 1971 only interferes with pending judicial proceeding is
considered. The debatable question that arises is that Contempt of Courts Act, 1971 is
comprehensive but such a wide scope may tend to leave loopholes for the application of sub-
judice period. Reporting of media on judicial proceedings has advantages.

On the contrary to measure the interference of adverse influence or pending judicial

proceedings, thereby sub-verting due course of justice is difficult to analyse. The effects of
trial by media or its influence on judicial proceedings are not defined in Contempt of Courts
Act, 1971.Thus there is an immediate need to frame guidelines on reporting of sub-judice
matter as discussed in Sahara case already discussed above.140

140
Abilasha Rathore & Kanika Satyan, Supra.

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CHAPTER 6
TRIAL BY MEDIA- A COMPARATIVE ANALYSIS

6.1 USA Law

First Amendment of US enshrines, Congress shall make no law.....abridging freedom of

speech or freedom of press. Deprivation of freedom of speech, publication, expression &
freedom of press shall not be placed. Under the US Constitution liberty of speech is absolute
unless the speech falls under first amendment exception. Article 19(1)(a) of Indian
Constitution is qualifying right with certain reasonable restrictions enumerated under Art.
19(2) to (6). Unlike the Indian scenario, first amendment of US Constitution grants freedom
of expression and freedom of press absolute power. However, certain historical rooted
permissible exceptions are observed – Incitement, false statement of fact, obscenity, child
pornography, threats, fighting words, speech owned by others, commercial advertising.

In the words of Blackstone, freedom of expression means being free from prohibition of any
form i.e. Prior restraint, ownership, licensing and protection from punitive measures after
publishing sentiments against the government. The meaning of freedom of expression
changed over the years in USA, absolute right to people to speak, write, express sentiments,
opinion and belief; protection of right to know of community at large. However, the meaning
of freedom of expression has changed to largely mean what Supreme Court of US interprets
first amendment to be.141

The absolute guarantee of freedom of expression & freedom of press have come under
pressure concerning various issues like National security and implications interfering with due
course of justice especially in High-profile case, occasionally judiciary invoking contempt
power. In New York Times v Sullivan142, SC observed purpose of free press is to keep an
additional check on other 3 branches Executive, Legislature and Judiciary. Neutral form of
debate and information between people and elected representatives considered as significant

141
Wayne Overbeck, Major Principles of Media Law, (Thomson Wadsworth Ed 2004).
142
376 US 254 (1964).

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press case. In New York Times v US143 (The Pentagon Papers case), It was held that prior
restraint can be placed by government and press is no exclusion.

6.1.1 Prior Restraint

In Near v Minnesota144, Supreme Court observed that prior restraint may be permissible in
certain circumstances, but defining these circumstances is a challenge. To understand freedom
of speech of press as only right to be free from prior restraint is not protectable as in certain
circumstances like war time, obscene material, material that incite people, government can
constitutionally restraint publications. In Austin v Keefe145, Court reinforced Near ruling.

In Pentagon Papers Case, Court observed that prior restraint can be placed by the government
in certain permissible circumstances, burden of proof lies in the government to prove the need
for requesting restraint order. In this case government failed to prove the need of passing
restrain order, hence press won the case. Therefore, it can be concluded that First Amendment
confers absolute power of free speech and press. Prior restraint relates to wide variety of legal
issues thus, still exist in certain circumstances and hence not completely unconstitutional.146

Contempt means any act causing disgrace, disobedience or disrespect towards the court or
authority of court. Any act interfering with due process of law attracts contempt. Contempt in
US is of two types

i. Contempt power to protect rights of litigant in legal dispute – Reporters who refuses to
respond to subpoena, reporter who refuses to testify endangering person right to fair
trial, Media refusing to pay libel, invading privacy and judgment etc.
ii. Contempt power can be used to vindicate law, authority of court or the power of
judge. Scandalizing judge, Attorney who ignores judicial warning against talking
about merits of case to mass media, defendant who interrupts trial.147

143
403 US 703.
144
283 US 697 (1931)
145
402 US 495 (1971)
146
Sonja R. West, The Stealth Press Clause, 48 Ga. L. Review 729 (2014), available @
http://digitalcommons.law.uga.edu
147
The Sub-judice Rule and Contempt of Court, (Sept.1,2011), Pinset Mosons LLP, http://www. Out-
law.com/pg9742,last visited on Nov 24,2016.

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Free press is a source of information to those who seek information, essential to promote
participation in a free society. Free press brings along with it courage to seek truth, challenge
authority, question the highest authority. Rigorous gathering of source leads to collection of
vital confidential information which may be left unreported or kept as a record with the press.
However, person interested i.e. government agents, attorney of party, judges, legislative
committees, jurors have the power to seek subpoenas i.e. forces journalist to reveal source or
disclose confidential information. Reporter often are called to testify their news source in
legal proceeding by authorities maximum being in a criminal trial investigation as its source
of information aids police followed by other reasons. Failure to comply by reporters will lead
government authorities to comply with court orders in get its way in these disputes by citing
contempt power.

However, US court ruled three part test i.e. a Constitutional privilege to journalists
subpoenaed i.e. if journalist may not testify legal proceedings in these 3 circumstances, it
will be a qualified privilege.148

i. Person who seeks information from reporter must demonstrate reporter holds
information relevant to hearing.
ii. Need of disclosing information.
iii. No alternative source for information

General rule is that journalist like ordinary citizens; they enjoy First amendment like all other
citizens and do not enjoy First amendment privilege to refuse to testify legal proceedings.
What is to be understood is that, law protects news source that someone tells a reporter and
not news personally seen or heard. Apart from three part test, there are certain grounds for
successful challenge of subpoena to protect journalists who hold confidential information i.e.
shield law. Department of Justice governs rule regarding subpoena. The rationale of these
rules is to harmonise free flow of information, public interest and law enforcement.149

148
Wayne Overbeck, Major Principles of Media Law, (Thomson Wadsworth Ed 2004).
149
Ibid.

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6.1.2 Contempt and Press

Mass media often conflicts with contempt citation, failure to obey court orders, critical
commentary about court, tampering jury. In recent times contempt provisions are maintained
to harmonise freedom of press with due process of law. Commentary or criticism on judiciary
or judicial proceeding by press is protected, provided it does not pose a serious threat to due
course of justice. In Bridges v California & Times150, Mirror v Superior Court151, Court
observed that to consider an publication to prejudice due course of justice whether imminent
or pending. It is first important to ascertain if risk posed or imminence is so high that such
public expression causes clear and present danger to the course of legal proceedings
interfering with due course of law. In Pennekamp v Florida152, Court observed that danger
posed must have direct nexus to due course of justice and must be clear & imminent hindering
fairness of trial.

US Supreme Court in following cases observed the need of balancing various attributes of due
course of law. The importance of administration of justice, fair trial and freedom of press
must be balanced and thus contempt provisions somehow may be a barrier to freedom of
press. At the same time limitation of contempt power to an extent is bestowed i.e. clear and
present danger test is a limitation on judges before invoking punitive actions for contempt.

6.1.3 Free Press and Fair Trial

Enthralling readers with astounding stories, especially reporting criminal stories has grown in
an alarming proportion. It is not unusual to see across the world major broadcast time is
granted to reporting criminal stories and this fascination lies in American system as well.
Reporting criminal stories is not a problem per se, in fact it is the duty of the press to seek and
impart information to the public. The problem arises when such media coverage bring
constant legal problems leading to dichotomy between Constitutional rights, especially First
Amendment v Sixth Amendment.153 Media coverage carrying misinformation, intensive

150
314 us 252 (1941).
151
3 Cal. 2d 309
152
328 US 331 (1946).
153
Elliot W. Atkinson Jr., Free Press v Fair Trial: Insulation Against Injustice, Vol 33Iss 4 La.L.Rev.(1973),
Available at: http://digitalcommonlaw.lsu.edu/lalrev/vol33/iss4/6.

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publicity of a pending trial, publication shaping public opinion against accused, thereby
undermines judicial process, poisoning minds of juror about trial, jeopardising right to fair
trial of accused was highlighted in OJ Simpson case.

The assumption regarding impact of prejudicial publicity on jurors of judges leading to

impartial juror affecting fair trial is a difficult theory to resolve. Traditional approach being
No judge is fit to be a judge if he is impacted by such trial. But as per Anglo-Saxian
Approach, highlighting Cardozo words – Judges are also human and there may be a possible
impact on the mind of the judges. Thereby, the US Court expressing a sentiment that pre-trial
publicity does not led to impact on minds of jurors or judges following the traditional
approach. However, two important premise was laid to ascertain impartial jury.

i. Knowledge or impression not closely linked to testimony closing the doors of justice.
ii. Magnitude of pre-trial publicity is not probable enough to hinder a fair trial.

The tendency of pre-trial publicity leading to unfair trial and impartial jury cannot be
demised.

6.1.4 Reporting of Court Proceedings

American legal system resort to judicial remedies to try to dilute the impact of pre-trial
publicity on sub-judice matters.

i. Voir Dire is nothing but challenging juror i.e. to screen a juror to ascertain if the juror
is prejudiced.
ii. Change of Venue - Pre-trial publicity especially in high-profile cases or a trial carrying
probable magnitude of prejudice may be moved from one venue to other. Continuance
of a trial is nothing but postponing a trial for short duration expecting mass voices to
fade away.
iii. Admonition and sequestration of the jury - Admonition provides that jury must refrain
from discussing merits of the case especially to the press. Sequestration orders the jury
to be secluded from the public and publicity till trial is conducted.

Pre-trial publicity creates alarming hazards to the entire criminal system. All-time known
legal cases that discussed the hazards of trial by media are the OJ Simpson trial, Jon Benet

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Ramsey murder trial and Casey Antony trial which generated concept of wrongful conviction,
exoneration caused by trial by media.154

Restrictive orders to control publicity-

When press or anyone related to press is restricted from discussing aspects of case by passing
judicial order is called as a restrictive order or gag order. Sheppard v Maxwell155, is a noted
case where court observed judges must not launch restrain but resort to contempt powers and
restrictive orders to control press. The issue of pre-trial publicity and gag order was brought to
light in Nebraska Press Association v Stuart156. Test for restrictive order and three part test
was evaluated. 157

i. Magnitude of pre-trial publicity must be strong and draw a deep impression.

ii. No other alternate measures can dilute the effect of pre-trial publicity.
iii. Restrictive orders will actually prevent influencing the mind of jury and produce the
desired result.

Guidelines on fair trial, free press issued by the United States judicial conference guides the
media and the judiciary to combat the issue of restrictive orders.158 However, these restrictive
orders have come under scrutiny and it is asserted that there is no abstract theory, such
restriction pose serious threat to free flow of information and must be invoked considering
three parts test otherwise would violate first amendment.159

6.2 UK Perspective

Freedom of press developed in UK as right to print and publish except Contempt of Court,
sedition, obscenity, blasphemy and defamation. The concept is majorly influenced from social

154
Nicholas A Battaglia, Comment: The Case Antony Trial And Wrongful Exoneration: How “Trial By Media
Cases Diminish Public Confidence In The Criminal Justice System, Albany Law Review, (2011).
155
384 US 333 1966.
156
427 US 593 (1976).
157
Nicole L Waters, Jurors 24/7: The Impact O f New Media on Jurors, Public Perceptions of The Jury System
and the American Criminal Justice System, Centre for Jury Studies, available at www.ncsc.jurystudies.org.
158
Oregano State Bar-Press-Broadcasters Joint Statement of Principles, School of Journalism and
Communication, available at www.journalisim.uoregon.edu.guide.
159
Bench-Bar-Press Committee of Washington, available at www.courts.wa.gov/prog.

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contract theory. The UK Contempt provisions lay a strong rationale to ensure administration
of justice, maintain dignity of court, public confidence. Offence of contempt is under two
heads i.e. common law contempt and strict liability contempt. In UK unwarranted interference
with administration of justice and prejudice to fair trial is considered as contempt. Contempt
of Court Act, 1981 applies under section 1 strict liability rule. That is to mean any conduct
interfering or tendency of interfering with due course of justice in particular publications
creating substantial risk of prejudice to active proceedings regardless of intent.

The two limitations that apply to contempt provisions are rule applies only to publications that
create substantial risk or prejudice, rule applies only to active proceeding. Section 2(1) defines
the term publication which is inclusive to mean any form of communication directed to public
at large or section of public.160

The sub-judice rule is regulated by section 2(2). Article 6 of ECHR enshrines right to fair trial
and public hearing which lays the foundation of contempt by publication. In Attorney General
v English161, trial by media is not permitted in this country. The term substantial risk means
not insubstantial or minimal, risk which is not merely remote162. Two-tier test was profounded
in Attorney General v Newsgroup Newspaper Ltd163 to ascertain contempt publication.

i. There must be a substantial risk.

ii. Magnitude of risk will have serious effect on the prospect.

Thus a direct proportionality must be established to apply section 2(2).

Common law contempt is not governed under strict liability rules. Here intention to interfere
with due course of justice can be held under contempt but as per section 3 of Contempt of
Court act, 1981 innocent publication or distribution is granted immunity regardless of intent
but the proceeding must be active and create substantial risk. Section 4(1) of the act grants
immunity to fair and accurate reporting of legal proceedings.164

160
Duncan Bloy & Sara Hadwin, Law and The Media, (Sweet & Maxwell 2nd Ed,2011).
161
(1983) 1 AC 116.
162
Attorney General v Guardian Newspaper
163
(1973) A AII ER 54.
164
Ibid.
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The Contempt of Court Act, 1981 was an impact drawn after Sunday Times v UK. The
Sunday Time article containing cause of birth defects had an injunction planned. The Court
expounded on contempt provisions and restrain imposed was not accordance with law and UK
Contempt provision was vague. The Court observed laws cover not only statutes but
unwritten law as well; citizens must have reasonable foresight of consequences of case.
Article 10(1) confers right to impart information, ideas and right to access. Article 6 of ECHR
preserves right to fair trial and public hearing, article 10(2) says maintain authority and
impartiality of judiciary justifies interference with article 10(1). Thus conflicting interest
between freedom of expression and right to fair trial was propounded and reasonable
restrictions justified to maintain administration of justice.

The strongest form of contempt is contempt publication of pending matter and the British
Legal System is clearly against trial outside courtroom and contempt provisions are a tool to
bar unreasonable interferences. Pre-trial publicity is considered to be a great threat to fair trial
then publicity after or during trial. UK legislation talks more about preventive measures by
limiting publications, providing limitations to publishers to realise foreseeable danger of
committing criminal contempt. Restrictions under UK Act, 1981 is not to restrict free speech
and free press. UK Act, 1981 Schedule 1, section 2(3), 2 (4) provide in detail with regard to
the meaning of active proceeding. What is regarded as pending proceeding in most legal
system is defined under section 2(3) as active proceeding.165

Section 4(2) speaks about postponement orders. A three part test must be satisfied before
passing postponement orders that is there must be a substantial risk of prejudice to
administration of justice in current or imminent proceedings. Other alternative measures do
not eliminate risk if other competing public interest is put at stake. In Goodwin v UK166,
substantial risk was defined. First of all each case will be decided in its own merit, risk of
publication will be accessed at the time of publication, likelihood of impact of publication on
the mind of jurors. In English Law, sub-judice matters are comprehensive and list of

165
Law Commission reforming the law contempt of court-contempt by publication, Consultation paper 209,
available at www.lawcommission.government.uk.
166
(1996) 2 EHRR 123.

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precedents which are in reasonable knowledge of media organisation. Strict statutory rule
under section 4(2) will attract if contempt publications are made.167

Guidelines regarding reporting of judicial proceeding have become more liberal and a set of
guidelines on reporting restriction is provided for reference of judiciary, media, lawyers and
general public. These guidelines profound the principle of open justice, public hearing,
reporting of court proceeding in a fair and accurate manner. It also recognises free flow of
information imparting information as right of press, unless an exceptional circumstances these
principles can be limted. It gives a guidance on Article 6 & 10 of ECHR and also clearly
points out that these rights are qualifying and not absolute.

Before placing restrictions on the open justice principles it must necessitate the
proportionality test before establishing restrictions on the general rule of right to access
information of public and media. Burden of proof lies on the party seeking exceptions based
on clear and cogent evidence. Section 3, 4 and 5 of UK Act, 1981 are elaborated as defence to
the media under strict liability rule while reporting judicial proceedings. Section 4(2)
postponement orders can be invoked by the court under its inherent powers to stop reporting
of the proceedings that creates substantial risk and prejudice. However, these are not
prohibitive but preventive orders passed for a temporary period. Section 10 of the Act protects
confidential source of information of journalists however attracts certain exceptions like
interest of justice, national security, prevention of disorder of crime. Section 11 of the Act
provides for anonymity as an exception where disclosure of private information of the
accused is kept anonymous and abstained from reporting.168

Traditional Common Law Approach is followed in Canada. Earlier to the introduction of

Charter of Rights and Freedoms, Canadian Act 1982, principle of fair trial and administration
of justice was accorded more importance than freedom of press. However a shift was
experienced in the traditional approach of balancing between free press and fair trial, altering
is interpretation closer to that of US Legal System.169 However a more tolerant approach is
emphasised when matters relate to two conflicting rights.

167
Ibid.
168
Reporting restrictions in the Criminal Courts, Judicial (2015), available at www.judiciary.gov.uk
169
Dagenais v Canadian Broadcasting Corporation, (1994) SCR 835.

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CHAPTER 7
CONCLUSION AND SUGGESTIONS

This chapter presents summary of the issues and findings of the study. In addition,
further areas for research, limitations and conclusion are discussed.

Media undoubtedly is a powerful medium and aids exchange of communication, ideas and
opinions. Free and independent media brings along with it courage to search for truth,
encouraging media to play a proactive role in a democratic process. But free press comes with
a responsibility of realizing that every action comes with a significant consequence.
Intersection of free press and criminal justice system is inevitable in any society, often
resulting in conflict between two competing rights that is right to freedom of speech and
expression and right to fair trial. Ignoring perils of law and utilizing it to its own advantage,
has become a trend in media. Therefore the need to control implications of trial by media is
felt as it influences the entire criminal justice system (witness, judiciary, police, accused, and
lawyer) and society at large. To harmonize fair trial and free press it is essential to enforce
Contempt of Courts Act, 1971 properly.

The problem being criminal allegations create a stigma on a person, even though a person is
accused of crime and has every probability of being in a negative light but even a person
accused of crime are guaranteed basic human right and human dignity. Thereby, until verdict
of law about a criminal trial media must report facts fairly, accurately and precision must be
applied before denunciation of facts and while reporting allegations as manslaughter is not
murder, possession of stolen goods is not theft, similarly the vital differences and legal
consequences must be understood before pre-judging and undermining the distinction
between accused, suspect and convict. Media should understand underlying principles of
justice system and legal consequences before transcription of a criminal trial and about
participants of criminal trial in written form. Courtrooms are sacred place where
interpretations, value and justice is delivered; however, it is the responsibility of media to
avoid sensationalism and convey fair, accurate judgments without imposing their own drama
and interpretation.

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There is no doubt that free press is one of the major principal guarantors of fair trial, keeping
a constant check on judicial system and asking for judicial accountability thereby, ensuring
proper administration of justice. But the watchdog tries to play the role of special interest that
is they are essaying the role of meddlers of justice conducting a parallel trial outside the court
putting aside its role of holding accountability, publicity of matters of public importance,
educating citizens and connecting voice masses. It is evident that the press is performing its
vibrant role, but clamor for news, sensationalism, investigative journalism more often than not
has led to dichotomy between fair trial and free press.

In a series of cases like Arushi Talwar case, Sheena Bora case, Jessica lal murder case,
infamous Sanjeev Nanda case raises serious concerns that present legislations do not
encompass modern technological developments of media behavior resulting into legal
dilemmas. Dated back advancement of technology was a boon but in the present scenario
technological developments are creating certain legal consequences that needs to be
addressed.

Based on the study, certain findings with regard to some common media reporting that tends
to hinder fair trial and administration of justice are observed. Firstly, media reporting on
confessions made by accused are not admissible evidence in the court of law. Thus, media
retracting confession made by accused and reporting those facts may have the tendency of
alluding investigation procedure thereby hindering trial causing unwarranted interference with
administration of justice. As per Article 20 of Indian Constitution confession given to the
police cannot be used against the accused as no person can be compelled to testify against
himself. Secondly, media coverage on past criminal records, previous conviction, character or
reputation of accused or suspect creating a widespread perception in the minds of the readers
about the individual, including media reporting about accused or suspect in relation to his/her
performance on a test, or refusal of taking such tests such as NARCO test, polygraph, and lie
detector. Thirdly, media reporting covering details of participants of trial be it victim, family
members of accused or witnesses, especially in case of witness threat of witness turning
hostile arises due to pressure or media frenzy created around a criminal trial pre judging the
trial as observed in Jessica Lal Case. Lastly, Media reporting that tends to create adverse
public opinion, mood or saturates a community against accused, suspect or a positive pressure
creating a widespread perception of guilt or innocence regardless of verdict of court,

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demeaning principle of innocence beyond reasonable doubt. Thus, these are some of the
common media coverage that tends to attract legal complications.

To suggest; firstly, media needs to turn to statute, legal principles, legal judgments and
guidelines in order to put away litany of ban and restrictions. Secondly, reporters can develop
an informed attitude and understanding with regard to procedure of reporting of court
proceeding, especially in sub-judice matter or in terms of investigative journalism. Media
need to work within the legal framework and must apply implications of law with legal
insights to improve challenges of investigative journalism, enhancing informative journalism,
thereby, putting across stories safely in public domain.

The existing legal framework resorts to judicial remedies like change of venue, reversal of
trial etc. to dilute the effect of extensive pre-trial news coverage. Hence it can be suggested
that all these alternative measures are subsidiary in nature and may be cumbersome inviting
new set of problem. Rather than resorting to these cumbersome techniques a more feasible
option is to implement strict punitive actions that is to prevent and punish such publications
that surpass Article 19(2) to (6) posing a threat to administration of justice or hindering fair
trial by outweighing their Article 19(1)(a) and competing with other human rights. Genuine
attempt by the Court to impose punitive sanctions under Contempt of Courts Act, 1971, must
be invoked as it may have deterrent effect on sensational news coverage and it is time these
actions are taken.

The very rationale of Contempt of Courts Act, 1971, is not to restrict press freedom or
freedom of speech and expression of press but to maintain administration of justice and
restore public confidence. A simple suggestion is to resort to strict liability approach as it is
not unwarranted.

In comparison with legislations of USA and UK in context of trial by media and how these
countries have adopted various practices to undermine conflict between free press and fair
trial. Both USA and UK admitted outgrowth of trial by media deprecates judicial system. In
spite of theoretical controversies, legal system all over the world have resorted to neutralizing
techniques that is change of venue, reversal of trial, gag order to minimize the influence of
trial by media or prejudice of trial, however these techniques increase cost of litigation, delays
trial keeping the accused in remand for a longer period of time.

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Thus to suggest, as per findings passing of preventive orders, closure of court proceeding and
invoking contempt proceedings are the most effective ways to forestall publications on sub-
judice matters or to control extensive pre-trial publicity, that will effectively protect right of
accused.

In addition, there is a need to empower the Courts to frame encompassing guidelines on

postponement orders or to define concrete principles with regard to publications or reporting
that poses serious threat and unwarranted interference with administration of justice, like
followed in UK and USA. This will result in diluting the effect of trial by media that
adversely affects fair trial and tends to interfere with administration of justice.

The Supreme Court in the case of Sahara v SEBI; abstained from framing guidelines on media
reporting regarding sub-judice matters. Intersection of free reporting of press and judicial
independence gives rise to frequent legal problem leaving behind debatable questions of
harmonious existence between these two principles. In comparison with UK Legal system and
US Legal system the case of sub-judice under UK Law were strict liability rule applies is well
settled and in US Legal system where press freedom being absolute still recognizes the
menace of sub-judice reporting on trial process leading to dichotomy between First
Amendment and Sixth Amendment of Bill of Right. Thus to resolve the dichotomy Clear and
Present Danger test is resorted to mitigate the effects of pre-trial publicity. Indian approach
with regard to sub-judice reporting is still under defined.

In numerous instances Indian judiciary has tried to reach a common understanding of the term
trial by media and its implications. The Courts have ordered suggestions in the form of
warnings, analyzing various notions of trial by media highlighting instances where pre-trial
news coverage has led to interference with administration of justice and hindered fair trial.
Findings however further suggest Court has never restored to strict liability rule as in case of
UK Legislation neither framed guidelines or recommendations to press as in case of American
Legal System that is Bench-Bar-Press Guidelines.

Drafting guidelines resorting to punitive measures or invoking traditional trial remedies is

only the first step. However, we can concede borderline being freedom of press cannot be
prohibited as it will shackle public confidence over administration of justice in a democratic

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society we need more not less reporting neither prohibitive orders. What we need is spirit of
bringing a balance between these competing rights.

A vibrant press always tends to create a positive or a negative pressure around criminal trials.
On one hand it holds the judiciary accountable, or exposes abuse of judicial power. On the
other hand it has the ability to obliterate fairness of trial. Virtue of judicial pronouncements is
changing at alarming rate more than legislations thereby, it is suggested that it is high time the
Indian Court plays a pro active role to resolve the controversy between free press and fair
trial. The Court must frame guidelines on media reporting of judicial proceedings that are sub-
judice and the extent to which these guidelines can be utilized to protect competing interest is
undoubtedly immense. Rather than framing more legislations or suggesting more amendments
to the present comprehensive legislations of Contempt of Courts Act, 1971, suitable
modifications can be done by the Court by framing guidelines with this regard. Right of
accused from dangers imposed by prejudicial publicity must be effectively protected; placing
restrictions on freedom of press is not a solution.

Media being watchdog of society, Courts are said to be guardians of right to fair trial.
Contempt of Courts Act, 1971 is a comprehensive act that has various provisions to settle the
conflict between free expression and fair trial. Unless the Courts play proactive role in
deploying these provisions while dealing with prejudicial publicity the attempt of Contempt
of Courts Act, 1971 will be flawed. Instead the courts must invoke protective measures
committed to guarantee right to fair trial to an accused without impugning freedom of press.
Inconsistent judicial perspective on prejudicial publicity and its effect on fair trial and
administration of justice is a loophole.

The problem is court has assessed various prejudicial publicity instances but in very few cases
court has convicted for prejudicial publicity. Meaningful restrictions on extrajudicial
statements that tend to prejudice criminal trials, preventing publications of most damaging
coverage especially in high profile cases, national security or endangering fair trial must be
recognised. Indian System does not follow a strict presumption or prohibitive judicial
remedies to restrict prejudicial publicity as it may create unwarranted restrictions on freedom
of press unlike UK and US approach. What we clearly lack is judicial will to invoke remedies
available to ensure proper administration of justice and fair trial.

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To conclude, it is difficult to define the term, ‘Trial by Media’. ‘Trial’ is a term closely and
clearly associated with judicial process.

Activity of media in some cases has turned to be a revolutionary effort but the problem is
when media exceeds its limits by conducting a parallel trial hindering right to fair trial of an
accused or when it ultra-vires. But every institution must work with some reasonable
restriction and not conclude to be absolute. Media has strong influences positive and negative
on the government, basically keeps a check on the government; on the public, can mould
public opinion or create adverse impact in the mind of the public; the judiciary, especially
independence and impartiality of tribunal. The study has led to a thorough examination of
contempt provisions under Contempt of Courts Act, 1971, the effect of contempt laws in
maintain administration of justice and restrictions under 19(2) are apt to ensure conflict
between free press and fair trial.

In a Constitution like India where aspirations of citizens, Fundamental rights of freedom of

speech and expression and due course of justice is given utmost importance, thereby
implications of trial by media is highly difficult to balance with other constitutional rights. It
may be noted that explanation given by Indian Judiciary of the term trial by media is not wide
in scope as all aspects of trial by media is not covered and such a definition is yet to be
developed.

The study also points out that Indian Court have taken a proactive approach while dealing
with the infractions relating to scandalization of courts compared to matters related with trial
by media, especially interference with sub-judice matter as it leads to complex problems.

The major loophole is while dealing with contempt publication in Indian perspective is that,
dearth of provisions in Contempt of Courts Act, 1971 which emphasizes on publications
effecting trial that is imminent or after the proceedings has been active. The silence between
commission of offence and date of arrest must be explained as prejudicial publications even
during these period effects trial. The rationale provided is ambiguous and not meaningful.
Though rationale of Contempt of Courts Act, 1971 is to protect judiciary from unwarranted
interferences with administration of justice, the purpose of Act is undermined by not inducing
contempt proceedings and being lethargic while adopting punitive interpretations with regard
to trial by media by the judiciary. However, most of the discrepancies can be rectified by

73




proactive judicial interpretation and widens scope of researching into the Contempt of Courts
Act, 1971 and leaves with a limitation of whether there is a need to amend the Contempt of
Courts Act, 1971.

74




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