ACCESS TO JUSTICE AGAINST MEDIA TRIAL

Author: PALLAVI SUPEHIA

Co -Author: RISHIKA AGARWAL

Students at Army Institute of Law, Sector-68, Mohali

Emails : Pallavi.supehia@yahoo.com

rishikaa68@gmail.com

Phone numbers

8146012440

8585935357

1
ACCESS TO JUSTICE AGAINST MEDIA TRIAL

Introduction

Media means television, radio and newspapers as the means of mass communication1. It is
often even referred to as the fourth pillar of democracy it brings back the rights of the people
back to the people and reinforces that its We The People who have adopted, enacted and
given to ourselves this constitution2. In a vast land like India which is culturally, religiously,
ethnically, linguistically and in so many other manners incredible; it is very important to have
a non-statutory body that helps to provide power to the grass root level. It is the strongest
check on a despotic government, a fragile system or a sleazing public. It helps resurrect
governmental institutions whenever needed Egyptian revolution and yellow revolution are the
best example of the same. Media brings in light the usually overlooked problems of the
masses and helps in better governance. The Supreme Court in its landmark judgements has
often buttressed the power and importance of media. In Romesh Thappar v. State of Madras3,
Brij Bhushan v State of Delhi,4Express Newspapers limited v. Union of India5 and Sakal
Papers (P) Ltd v Union of India6 the Supreme Court has emphasized on the value and
importance of the freedom of speech and expression of the press.

Media Trial

In common parlance media trial means the impact of television or newspaper coverage on a
person's reputation by creating a widespread perception of guilt or innocence before, or after,
a verdict in a court of law. Commonly it is not seen as an enormous crime. Also, the line of
difference between right of media and over-reach of powers by media is vague. The want for
gossip amongst the people is such that it creates a demand and supply of such content which
might affect the independent and prejudice free nature of the judiciary. Commoners also
dont understand the huge influential power that the media holds and how it can be fatal to
the principles of audi alteram partem7 and a free and fair trial. It is this neglect that vests
power too much to handle in the hands of a non-statutory body of trial. Hence light needs to
be put on the present topic at hand so that media can act as a fair body.

1
Oxford English mini-dictionary, 6th ed pg 344
2
Preamble, Constitution of India, 1950
3
Romesh Thappar v. State of Madras. AIR1950 SC124
4
Brij Bhushan v State of Delhi,4 AIR 1950 SC 129
5
Express Newspapers limited v. Union of India AIR 1958 SC 578
6
Sakal Papers (P) Ltd v Union of India AIR 1962 SC 305
7
Principle of natural justice giving the right of free and fair trial

2
Legal definition

Article 19(1)8 of the Indian Constitution guarantees the right to freedom of speech and
expression to press and also provides certain safeguards to protect this right. But more than
often media crosses the limits of its rights and reincarnates itself into a public court. This
phenomenon is referred to as media trial. Press is another term used in place of the word
media. Press can be defined as the news media; print and broadcast news organizations
collectively.9 Also trial is defined as a formal judicial examination of evidence and
determination of legal claims in an adversary preceding.10 The act of scandalizing, or
prejudicing trial or hampering the administration of justice amounts to a Contempt of Court;
as given under Section 2 (c) (ii) of The Contempt of Courts Act, 1971. In the case of Court
on Its Own Motion v State and Others11, Hon Justice Madan B. Lokur said that all
publications which offend against the dignity of the Court, or are calculated to prejudice the
course of justice, will constitute contempt.12

History

Europeans brought in the press culture into India, to spread Christianity in the subcontinent13.
The first newsletter was started by James Augustus Hikey in 1780 14. The British government
was not keen on this because being in English it wouldnt really incite people, but anyhow
due to some defamation charges Hickey was stopped. In 1799, the first act pertaining to press
was passed that was the Lord Wellesleys press Act15. The act had provisions for pre
censorship where in every newspaper was first inspected by the government secretary and
then published. On insistence with the act the offender was deported back to Europe. A Press
Act16 passed in 1813 which regulated publishing pertaining to the military. In 1818 another
press act was passed related to censorship of articles relating to peace and tranquillity. The
licensing regulation and Metcalfs act were also there. The actual strict regulations on press
began after the mutiny of 1857 where in stringent laws were put in so that incitement to

8
Article 19(1)(a), Constitution of India, 1950
9
Blacks Law Dictionary, 9th ed,2009
10
Blacks Law Dictionary, 9th ed,2009
11
Court on Its Own Motion v State and Others ,W.P. (Cr.) No. 796/2007
12
ibid
13
J.B. Primrose, The library, Dec. 1939, vol XX, No.3 p. 245
14
Hickey,The memoirs of William Hickey Vol II (1775-1782),London:hurst &blackett, 1918, p.175
15
Metcalfs act IX 1835
16
Press Act 1813

3
Indian people was avoided. The Vernacular Press Act17 was passed so that no papers could be
published in a language the British had a problem in interpreting. The Indian National
Congress18 and other ardent libertarians took to a more assertive and insightful media. After
the independence freedom to the press and media was welcomed by the leaders. The major
burden that was put on media was at the time of Emergency. Since then Indian media has had
a fairly good relationship with their rights.

How does Media affect judicial proceedings?

The most important tool that the media has is the tool of influence it has on people. It is the
ideology of the editor and the publisher that reach to masses. This ideology can be such that it
incites and manoeuvres the thought of the receivers. It can also be very easily funded to shape
any kind of thought to anything. The power to influence people which the media has springs
from the right to speech and expression19 unlike other countries20 India does not have explicit
speech and expression rights for the media. The ambit of the right is huge and includes
propagation and proliferation of any kind of ideas. But the right has certain sanctions which
say that this right cannot go ahead to put in danger or be inconsistent with the sovereignty
and integrity of India, security of the state, friendly relations with other states, public order,
decency and morality, contempt of court, defamation or incitement of an offence.21 It is very
important for the media to not over exercise its powers. As the media did in the case of the
26/11 attacks.

Even though such provisions exist the media holds significant power and can distort the way
in which judicial proceeding function.

Distortion of Facts

It has remained the most widely used shield that it is the right to speech that the media holds.
Another counter contention also remains that the esteem of the judiciary should remain high
and must not be easily provoked by the right to speech of expression of the media. The
esteem of the judiciary should not be questioned but it should rather be seen that the function
of the judiciary is only till the boundaries of law; it cannot in any manner work upon the

17
Vernacular Press Act, 1878
18
Indian National Congress is a major political party.
19
Ar. 19(1)(a) constitution of India
20 st
I amendment, Constitution of America
21
Ar. 19(2) constitution of India

4
facts. The media holds the power that it can distort the facts and hence decide the case for
itself, committing a contempt of court.

The evidences to be presented in the court of law need to be such that prove the innocence
beyond reasonable doubt22. What is reasonable doubt depends on case to case and differs
from case to case. Reasonableness usually depends upon the prudence of a human being23.
Reasonableness is the used to decide the actual bone of contention in a case. Due to this
reasonableness the Court may presume existence of certain facts. The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and private business, in their
relation to the facts of the particular case.24 It is very important to notice that the court is at
power to assume some facts of a case. If the media proliferates one common belief in the
people and facts are hence are assumed to be like that by the court, given the popular
perception it will in a manner mean that the case has been decided by the media.

Against the spirit of Nemo25 debet bis vexari26

Nemo debet bis vexari means no person should be put in peril for the same offence twice.
From this springs the fact that if facts are so assumed then right to a fair trial will be lost. Not
only that this can lead to extension and addition of punishment to what the convict has been
sentenced, that is if he is convicted. The very fresh case of this remains the suicide of the
accused of the Delhi gang rape case27. Though it might be pretty much certain that he was
going to get capital punishment; but the hype created of this incident was such that he killed
himself28. The main accused in Delhi gang rape case Ram Singh committed suicide due to the
ill treatment meted out to him by his fellow jail mates. The reason behind this ill treatment
was the portrayal of Ram Singh as a grotesque by the media, all articles and newspapers
showed him in bad light and portrayed him as inhumane. This was a serious case of
defamation; defamation is the publication of a statement which tends to lower a person in the

22
Dahyabhai v. state of Gujarat ,AIR 1964 SC 1563
23
3, The Indian Evidence Act, 1872
24
114 Indian evidence act 1872
25
No one, black laws dictionary, ed 9th,2009
26
To be harassed, vexed, or annoyed. Black laws sictionary,9th edition, 2009
27
Ram Singh & Ors v. Union of India, W.P. (c) No. 274 of 2014
28
Devesh K. Pandey & shubomoy sikdar, Delhi gang rape main accused Ram Singh found hanging The
Hindu, at: https://www.thehindu.com/news/national/delhi-gangrape-main-accused-ram-singh-found-
hanging/article4496333.ece (19/10/15, 20:00)

5
estimation of the right- thinking members of society generally; or which tends to make them
shun or avoid that person.29

This portray incited his inmates to incite him to commit suicide. This incitement pushed him
over the edge and forced him to commit suicide.

In the case of Narotam Singh v State of Punjab30 the judge said that the re-affirmative
approach to the punishment should be the object of criminal law, in order to promote
rehabilitation without offending community, conscience and to secure social justice. In the
case of Ram Singh he never got a chance to get reformed or turn into a normal human being.
Though the paper does not aim to state that the punishment granted to Ram Singh wasnt well
deserved but it aims to assert the fact that each human being should be given a second chance
at life.

Defamation

The right to ones reputation flows out to the right against defamation. If the expression and
speech of a person defames another one then his right can be rightful curtailed.31 When any
particular case has too much publicity the accused, especially if a celebrity, suffers a lot.

Article 19

Such acts of the media are also against the right to speech and expression. It is so because the
right to speech and expression encompasses all kinds of proliferation of ideas. This also
contains the right to speak in a court of law. With the public view already against the accused
and facts being assumed due to intervening of the media, there is little right out of the Article
19(1)(a) left to invoke from the accuseds side.

Making the accused suffer more than what he deserves

The effect of media can be such that it can make a person suffer more than what he deserves.
Shiney ahuja rape case is one of the worst examples. The suicide of the main accused of the
Delhi gang rape case is also one of the cases where we can see that, media has the power the
make a person suffer for more than what the court decides.

Prejudicing the judiciary

29
P.H Winfield, a textbook of the law of tort section 72 at 242 5 th ed 1950
30
Narotam Singh v State of Punjab AIR 1978 SC 1542
31
Article 20(2) constitution of india

6
It biases the judiciary and hence commits a contempt of court. For a fair trial it is very
important that there is a jury which is impartial; i.e. A jury that has no opinion about the case
at the start of the trial and that bases its verdict on competent legal evidence.32 If the case has
a popular verdict, then the judges are obviously bound to meet the expectations of the people
and the majority. In Ram Jamanbhoomi33 case the Allahabad high court was under immense
pressure to deliver such a verdict which doesnt incite any of the parties and meets the
expectations. It was much circulated by the media; the adjacent Godhra riots raised the
expectations to the highest level possible. Fortunately the judgement given by Justice SU
Khan, Justice Sudhir Agarwal and D.V. Sharma was such that it was able to meet the
expectations and anxieties of the people who were eagerly waiting for the judgement. The
faith of the masses was restored in the judiciary but it could have been the other.

Mahommedali Currim Chagla (1900 1981) was a renowned Indian diplomat, jurist
and Cabinet Minister who served as Chief Justice of the Bombay High Court from 1948 to
1958. He has written an autobiography by the title Roses In December34. In his book he
mentions an incident wherein during his tenure as the chief Justice of the Bombay High Court
he faced an attack on his life. During the riots a man came to his office and meet M.C. Chagla
and when the said man was refused on grounds of him not having an appointment that man
barged into M.C. Chaglas office with a knife in his hand. Luckily enough, the man was not
successful and died due to the interference of the security. It was later found that knife was
poisoned and had he had come with the intentions of killing M.C. Chagla.

The above incident shows the amount of public pressure and the life threats the judges have
to undergo. Under such circumstances it is not humanly possible to remain unbiased and
impartial35 even though it is the duty of the judges to do so. Meanwhile the media has
influential powers which not only affects the impartiality of the judges but also outrages the
public, which can push them to commit acts of violence against the judges further affecting
the system of administration of justice.

32
Black laws dictionary, 9th ed, 2009
33
Gopal singh visharad and ors. V. zahoor ahmad and ors , judgment in OOS no. 1 of 1989, Allahabad high
court
34
Mahomedali Currim Chagla,Roses in December,Bharatiya Vidya Bhavan, Bombay ,1 ed, 1973
35
impartial, adj. (16c) Unbiased; disinterested, black laws dictionary, 9 th edition,2009

7
CASE STUDY

Shiney Suraj Ahuja Vs. State Of Maharashtra

Facts
It was alleged by a 20 year old Madhuri Joshi, who was a domestic help at the accused
Shiney Ahujas house that he had raped her.36

Aftermath
The fast track court sentenced him of imprisonment for 7 years. The same was appealed for
in the Bombay High court. The case is still pending before the Bombay High court. Shiney
Ahuja has obtained a bail.

Adverse effects of medias intervention

This can said to be one of the worst cases of media trials. Shiney ahuja is an actor, he made
his debut in Bollywood in 2005 from Hazaaron Khwaishein Aisi37. He also got the best
debutant filmfare award. He was a promising actor and featured in many hit movies. In 2009
he was charged with the rape of his maid. The turn of events so happened that being the apple
of everybodys eyes made life difficult for him. Being an actor; who are usually a target of
offences against right to privacy. Right to privacy38 is a constitutional right covered under
right to life and liberty.39 The basic meaning of the right to life and liberty is that a person
should be able to live a life of dignity.4041 The media reported the case so far and wide that
Shineys wife had to make public statements saying that the semen found on the bed was a
residue of the sex she and Shiney had had the night before42. The media reports also had a
very bad effect on the daughter who was merely 2 years old when the controversy took
place.43The judgement dated 1st October 200944 the honble Bombay high court on 6 line
number 3 that there was no semen found on the bed sheets but the media has reported it
alternately, attempting to defame the accused.

36
Shiney Suraj Ahuja v State of Maharashtra, Criminal Application No. 4170 of 2009
37
Director: Sudhir Mishra Producer: Rangita Pritish Nandy, Hazaaron Khwaishein Aisi, 2005
38
Gobind v. state of M.P. AIR 1975 SC 1378; Kharak singh v. state of U.P. AIR 1963 SC 1295
39
Article 21 constitution of India
40
Denial Latifi v. Union of India AIR 2001 SC 3958
41
Menaka Gandhi v. Union of India AIR1978 AIR 597
42
Sarita tanwar, Life will go back to normal again: Shiney's
wife,http://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/Life-will-go-back-to-normal-
again-Shineys-wife/articleshow/8911291.cms(19/10/2015)
43
ibid
44
Supra note 12

8
Shiney has also lost the right to a free and fair trial, which is a principle of natural justice.
The principle of fair trial is a basic feature of a democracy. The case is such that it might lead
to prejudicing the jury.

Shiney due to such defamation has also lost much on his career as well. In the past 5 years he
has done only two movies, with none or no advertisements or other income generating jobs as
well.

Suggestions

The media should understand the difference between its right and the rights of the person
who is being reported. Something similar happened when the media live telecasted the
happening of the Mumbai bomb blasts45 at the Taj hotel. If Shiney in the present case had
been let alone or at least some decency was maintained in the reporting of the case. Then, it
might have been so that the Sessions Court would have acquitted him in the first case itself.
The general purview always remains that the rich people can easily get away with whatever
they do. In Siddharth Vashisht @Manu Sharma v. State( NCT of Delhi)46 where in the
accused charged with murdered of a common female, was the son of an influential former
member of parliament; was convicted. The deceaseds sister said that it was due to the media
that the case was won.47 These lines should be observed with the same eyes as of an obiter
dictum48, it needs to be observed that, the decree holder agrees that it was the interference of
the media that gave birth to the judgement. This should be seen as proving the point that
media makes judiciary biased49.

Conclusion

Media is a very strong forum for expression of ones views, of seeking attention of the
government for enforcement of rights, for acting as a check on the government and
subsequently becoming a tool of power for the people. The media is a very strong tool with

45
Mohameed Ajmal Mohammad Amir Kasab @ Abu Mujhahid v State of Maharashtra. Criminal Appel no.
1899-1900 of 2011
46
Siddharth vashisht @manu sharma v.state( NCT of Delhi),Supreme court CRIMINAL APPEAL NO. 179 OF
2007
47
Lhendup Gyatso Bhutia, My sister Jessica got justice due to media, DNA

http://www.dnaindia.com/india/report-my-sister-jessica-got-justice-due-to-media-1120440 (19/10/2015)
48
obiter dictum (ob-i-t<<schwa>>r dik-t<<schwa>>m). [Latin something said in passing] (18c) A judicial
comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and
therefore not precedential (although it may be considered persuasive), Black laws dictionary , Ed 9th, 2009
49
biased is synonymous to impartial; Supra note20

9
the abilities to maneuver the thoughts and principles of all. Though to assume that media in
India has supreme powers will be wrong. But, to assume that they are oppressed will also be
wrong. The media has a huge influence and it is not wrong to say that

The media does even influence the judiciary. Judiciary needs to be an impartial50,
unbiased51 and fair. For the principle of free and fair trial, natural justice to prevail it is
important that the Contempt of Courts Act, 197152 is enforced properly. In all the cases
mentioned above the judges have incessantly emphasized on the problems and complications
caused by medias contempt of court but media refuses to pay attention. Cases involving
well-known firms and individuals has always attracted the attention of media especially those
cases with controversial charges. More often media in civil cases creates a pro-plaintiff bias
which tough works well for the lesser-known or popular plaintiffs but it violates the rights of
the defendants and hampers the working of the judiciary. In criminal cases the media takes
upon itself to prosecute the defendant and takes the onus of proving rather imposing the
charges on the defendant without giving him/her the benefit of doubt.

Although the right against pre-censorship of media has been reserved by the Constitution of
India under Article 19(1), but there must be certain reasonable restrictions to curb the powers
of the media especially when it starts to interfere with the administration of justice. The main
role of the media is to brings facts and information to the people but if the facts and
information it itself tainted; it beats the noble thought behind a free media. The media needs
to be sensitive towards legal proceedings because these judgments in more than one ways
affect the law of our land and our lives directly. It is these judgments that influence or rather
define the future of the country and under the amount of pressure that is put on the judges it is
difficult to achieve that aim.

The media needs to rise above the concepts of profits and TRPs and should work to realize
the true essence of the rights and safeguards provided to it. Media is considered the fourth
pillar of democracy but this pillar is proving to invasive in respect to the other pillars as it is
harming them than sharing their burden and helping the democracy. Media is proving to be

50
Supra note 20
51
Supra note 35
52
Sec2 (c) ii Contempt of Courts Act, 1971

10
more of a foe than a friend and is pulling down the other three pillars of democracy in its
quest to prove its supremacy.

11