MEDIA TRIAL AND JUDICIARY

ACKNOWLEDGEMENT
I have been taught the subject of RTI and Media Law by Respected Teacher
Ms. Kajori Bhatnagar who helped me all through in the accomplishment of this
project. My sincerely thanks to the Respected Teacher, who helped me to gather
the various sources which I could give final shape to the topic under study. She
not only provided us a platform to compile but also guided us at all levels.

I, also thank the members of the library staff, computer section and my friends,
for the cooperation in making available the books and accessing the internet
even during their free time.

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TABLE OF CASES
1. D.C. Saxena (Dr.) v. Chief Justice of India
2. Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India
3. Jessica Lal Murder case
4. John D. Pennekamp v. State of Florida
5. Papnasam Labour Union v. Madura Coats Ltd
6. Pennekamp v. Florida
7. Printers (Mysore) Ltd. v. CTO
8. R. Rajagopal v. State of T.N
9. R. v. Gray
10. Rajendra Sail v. M.P. High Court Bar Assn
11. Re Harijai Singh
12. Re P.C.Sen,
13. Reliance Petrochemicals v. Proprietor of Indian Express
14. Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr
15. Shiva Ji Sahib Rao vs. State of Maharashtra
16. State of Kerela vs. Bhaskarin
17. Sushil Sharma v. The State (Delhi Administration) and Ors
18. Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr
19. Zahira Habibullah Sheikh v. State of Gujarat

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INDEX

SR. NO. TITLE PAGE NO.

1 INTRODUCTION 4
2 MEDIA-THE WATCHDOG OF DEMOCRACY 5
3 IMPACT OF MEDIA TRIAL 6-12
(a) Media Trials vs. Freedom Of Speech and Expression 6-7

(b) Media Trials vs. Fair Trials 7-9

( c ) Violation of Human Rights 9-10

10-12
(d) Is media trial a contempt of court
4 REGULATORY MEASURES 12-16
5 RESTRICTION ON REPORTING 16-17
6 CONCLUSION 17-19
7 BIBLIOGRAPHY 19

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1. INTRODUCTION
Media is regarded as one of the pillars of democracy. The freedom of press is regarded as
the mother of all liberties in a democratic society.1 A responsible press is a handmaiden of
effective judicial administration. Trial by media is a recently coined term and is used to
denote a facet of media activism. It means the impact of television and newspaper
coverage on a persons reputation by creating widespread perception of guilt regardless of
any verdict in a Court of law. There is no legal system where the media is given the authority
to try a case. Trial is essentially a process to be carried out by the courts and is associated
with the process of justice. It is the indispensable component on any judicial system that the
accused should receive a fair trial.

In India, trial by media has assumed significant proportions. There have been numerous
instances in which media has been accused of conducting the trial of the accused and passing
the verdict even before the court passes its judgment.

This paper is concerned with Media Trial and Judiciary.

1
In re Harijai Singh, AIR 1997 SC 73.

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2. Media: The Watchdog of Democracy

Media has undoubtedly played a tremendous role in bringing justice to the disadvantaged
people. One cannot gag the press due to the heroic role it played in cases which are
commonly known as Billa Ranga case, Baba Nirankar, Sudha Gupta and of Shalini
Malhotra.

Without an active media, the cries of the victims of brutal khap killings of Haryana would
have gone unheard. The fear of khap and the backing of police and politicians allowed this
barbaric tradition to continue for long till they came out in front of the world through the
media. Many other cases like the Arushi Murder Case, Jessica Lal Murder Case, Ruchika
Girhotra Case and even the games played in IPL Row was brought out into broad daylight
because of the laudable efforts of media. This is certainly a very positive and welcome act
from the part of the media.

The media is now a full -fledged business. The name of the game is ratings, viewer ship,
eyeballs and advertisements. In the scheme, news is whatever sells. This means anything that
catches and grabs the attention of people, or, in other words, sensationalism. The present
day trend in news reporting manifestly points out that Journalism and ethics stand apart.
Journalists and media persons are supposed to be distinctive facilitators for the democratic
process to function without hindrance. The ethics that the media must embrace includes
virtues like accuracy, honesty, truth, objectivity, fairness, balanced reporting, respect and
autonomy. These virtues are very much part and parcel of the democratic process. It is
unfortunate that these days the media people are overcome by materialistic considerations
rather than professional ethics and sincerity towards the profession. The journalists and
reporters are compelled to meet deadlines, satisfy media managers by meeting growing
targets and so on. Coupled with this there is also cut throat competition between different
media houses and newspaper organisations. To win the race, they have begun to publish and
present what the public is interested in rather that what is for public interest.

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3. IMPACT OF MEDIA TRIALS

(A) MEDIA TRIALS vs. FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech plays a crucial role in the formation of public opinion on social, political
and economic matters. Similarly, the persons in power should be able to keep the people
informed about their policies and projects, therefore, it can be said that freedom of speech is
the mother of all other liberties.2

Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian
Express Newspapers (Bombay) (P) Ltd. v. Union of India3 has stated:

freedom of press is the heart of social and political intercourse. The press has now assumed
the role of the public educator making formal and non-formal education possible in a large
scale particularly in the developing world, where television and other kinds of modern
communication are not still available for all sections of society. The purpose of the press is to
advance the public interest by publishing facts and opinions without which a democratic
electorate [Government] cannot make responsible judgments. Newspapers being purveyors of
news and views having a bearing on public administration very often carry material which
would not be palatable to Governments and other authorities.

The above statement of the Supreme Court illustrates that the freedom of press is essential for
the proper functioning of the democratic process. Democracy means Government of the
people, by the people and for the people; it is obvious that every citizen must be entitled to
participate in the democratic process and in order to enable him to intelligently exercise his
right of making a choice, free and general discussion of public matters is absolutely
essential.4 This explains the constitutional viewpoint of the freedom of press in India.

2
Freedom of press of India: Constitutional Perspective
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=6752 (last visited on
21/10/2017 at 00:05)
3
(1985) 1 SCC 641 at p.664, para 32.
4
Maneka Gandhi vs. Union of India

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In Printers (Mysore) Ltd. v. CTO5 the Supreme Court has reiterated that though freedom of
the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of
speech and expression. Freedom of the press has always been a cherished right in all
democratic countries and the press has rightly been described as the fourth chamber of
democracy.

It therefore received a generous support from all those who believe in the free flow of the
information and participation of the people in the administration; it is the primary duty of all
national courts to uphold this freedom and invalidate all laws or administrative actions which
interfere with this freedom, are contrary to the constitutional mandate.6

In R. Rajagopal v. State of T.N7 the Supreme Court of India has held that freedom of the
press extends to engaging in uninhabited debate about the involvement of public figures in
public issues and events. But, as regards their private life, a proper balancing of freedom of
the press as well as the right of privacy and maintained defamation has to be performed in
terms of the democratic way of life laid down in the Constitution.

Therefore, in view of the observations made by the Supreme Court in various judgments and
the views expressed by various jurists, it is crystal clear that the freedom of the press flows
from the freedom of expression which is guaranteed to all citizens by Article 19(1)(a). Press
stands on no higher footing than any other citizen and cannot claim any privilege (unless
conferred specifically by law), as such, as distinct from those of any other citizen. The press
cannot be subjected to any special restrictions which could not be imposed on any citizen of
the country.

(B) MEDIA TRIAL vs. FAIR TRIAL

Trial by media has created a problem because it involves a tug of war between two
conflicting principles free press and free trial, in both of which the public are vitally
interested. The freedom of the press stems from the right of the public in a democracy to be
involved on the issues of the day, which affect them. This is the justification for investigative
and campaign journalism.

5
(1994) 2 SCC 434
6
Indian Express Newspaper (Bombay)(P) Ltd. vs. Union of India, 1985 1 SCC 641
7
(1994) 6 SCC 632

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At the same time, the Right to Fair Trial, i.e., a trial uninfluenced by extraneous pressures
is recognized as a basic tenet of justice in India. Provisions aimed at safeguarding this right
are contained under the Contempt of Courts Act, 1971 and under Articles 129 and 215
(Contempt Jurisdiction-Power of Supreme Court and High Court to punish for Contempt of
itself respectively) of the Constitution of India. Of particular concern to the media are
restrictions which are imposed on the discussion or publication of matters relating to the
merits of a case pending before a Court. A journalist may thus be liable for contempt of Court
if he publishes anything which might prejudice a fair trial or anything which impairs the
impartiality of the Court to decide a cause on its merits, whether the proceedings before the
Court be a criminal or civil proceeding.

The media exceeds its right by publications that are recognized as prejudicial to a suspect or
accused like concerning the character of accused, publication of confessions, publications
which comment or reflect upon the merits of the case, photographs, police activities,
imputation of innocence, creating an atmosphere of prejudice, criticism of witnesses, the
Indian criminal justice system. It encompasses several other rights including the right to be
presumed innocent until proven guilty, the guilt is to be proved beyond reasonable doubt and
the law is governed by senses and not by emotions the right not to be compelled to be a
witness against oneself, the right to a public trial, the right to legal representation, the right to
speedy trial, the right to be present during trial and examine witnesses, etc.

In Zahira Habibullah Sheikh v. State of Gujarat8, the Supreme Court explained that a fair
trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere
of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused,
the witnesses, or the cause which is being tried is eliminated.

Right to a fair trial is absolute right of every individual within the territorial limits of India
vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is
more important as it is an absolute right which flows from Article 21 of the constitution to be
read with Article 14. The right to freedom of speech and expression in contained in article 19
of the constitution. Article 19(1) (a) of the Constitution of India guarantees the fundamental
right to freedom of speech and expression. In accordance with Article 19(2), this right can be
restricted by law only in the interests of the sovereignty and integrity of India, the security

8
(2005) 2 SCC (Jour) 75

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of the State, friendly relations with Foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence.

In cases of State of Kerela vs. Bhaskarin and Shiva Ji Sahib Rao vs. State of
Maharashtra, by analysing these two cases, one can observe that Criminal law has two
purposes i.e., to suppress, Criminal enterprise and punish the guilty for this purpose, a
requisite procedure should be followed as per Cr.P.C. A miscarriage of justice may arise
from the acquittal of guilty as well as from conviction of the innocent.

One of the cardinal principles, which should always kept in mind is the presumption of
innocence, however it is observed in media trial. Generally, observed in media trials that
near suspicion or hearsay evidence or alleged confession by so called accused to the police
are used as scoops by the journalists served to public as breaking news.

(C) VIOLATION OF HUMAN RIGHTS.

The responsibility of the media is greater than the responsibility of an individual because the
media has a larger audience. The freedom of press should neither degenerate into a license to
attack litigants and close the door of justice, nor can it include any unrestricted liberty to
damage the reputation of respectable persons.

The infringed privacy and tainted reputation of certain persons has become an inevitable by
product of extra snooping done by media. Suspects and accused apart even the victims and
witnesses suffer from excessive publicity and invasion of privacy rights. In the
famous Jessica Lal Murder case,9 where Manu Sharma was tried and convicted for murder,
the court held that There is danger, of serious risk of prejudice if media exercises an
unrestricted and unregulated freedom such that it publishes photographs of the suspects or the
accused before the identification parades are constituted or if media publishes statements
which out rightly hold the suspect or accused guilty even before such an order has been
passed by the court. In the aforementioned case, certain articles immediately after the date of
occurrence caused confusion in the mind of the public as to the description and number of
actual assailants / suspects. It is absolutely not fair to cause taint to the reputation of a person
by creating widespread perception of guilt, regardless of any verdict in a court of law. In the

9
Sidhartha Vasisht v. State (NCT of Delhi), AIR 2010 SC 2352.

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recent times, a congress minister in the coalition Government of Jammu and Kashmir had to
resign after revelations of his sexual advances and molestation became public. Tarun Tejpal
and Justice AK Ganguly were in the dock for the same reason. Such kinds of Trial by
Media have become common and rife after deregulation of the media and proliferation of
visual media.

It is absolutely not fair to taint the reputation of a person by creating widespread perception
of guilt, regardless of any verdict in a court of law. The suspect gets negative publicity and
later even if the court finds him innocent, his future remains uncertain because of the stories
cooked up by the media.

The security of the witnesses is also often jeopardized by irresponsible reporting. If the
identity of the witness is published, there is danger of him coming under pressure both
from the accused or his associates. This is one of the main reasons why almost everyone
is hesitant to report a crime or appear as witness. With the unfettered interference of
the media, each witness wants to retract and get out of the muddle. Sting operations are
conducted to point out the lacuna in investigations and trial much before the
investigation or trial has progressed considerably. This affects the morale of the police
and other investigation agencies. The police are often made a scapegoat. The over
enthusiastic media often puts a lot more pressure than required on the police to speed
up the investigation. Speedy investigation under pressure can lead to arrest of innocent
persons.

(D) IS MEDIA TRIAL A CONTEMPT OF COURT?

Trial by Media is Contempt of Court and needs to be punished. The Contempt of Court Act
defines contempt by identifying it as civil10 and criminal11.

Criminal contempt has further been divided into three types:

1. Scandalizing
2. Prejudicing trial, and
3. Hindering the administration of justice.

Prejudice or interference with the judicial process: This provision owes its origin to the
principle of natural justice; every accused has a right to a fair trial clubbed with the
principle that Justice may not only be done it must also seem to be done. There are
multiple ways in which attempts are made to prejudice trial. If such cases are allowed to be
successful will be that the persons will be convicted of offences which they have not
committed. Contempt of court has been introduced in order to prevent such unjust and unfair
trials. No publication, which is calculated to poison the minds of jurors, intimidate witnesses
or parties or to create an atmosphere in which the administration of justice would be difficult

10
Section 2(b)
11
Section 2(a)

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or impossible, amounts to contempt.12 Commenting on the pending cases or abuse of party

may amount to contempt only when a case is triable by a judge. 13No editor has the right to
assume the role of an investigator to try to prejudice the court against any person.14

The law as to interference with the due course of justice has been well stated by the chief
Justice Gopal Rao Ekkbote of Andhra Pradesh High Court in the case of Y.V. Hanumantha
Rao v. K.R. Pattabhiram and Anr.15, where in it was observed by the learned judge that:

When litigation is pending before a Court, no one shall comment on it in such a way
there is a real and substantial danger of prejudice to the trial of the action, as for instance by
influence on the Judge, the witnesses or by prejudicing mankind in general against a party to
the cause. Even if the person making the comment honestly believes it to be true, still it is a
contempt of Court if he prejudices the truth before it is ascertained in the proceedings. To
this general rule of fair trial one may add a further rule and that is that none shall, by
misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a cause
so as to force him to drop his complaint or defence. It is always regarded as of the first
importance that the law which we have just stated should be maintained in its full integrity.
But in so stating the law we must bear in mind that there must appear to be a real and
substantial danger of prejudice.

Fair trial Parties have a constitutional right to have a fait trial in the court of law, by an
impartial tribunal, uninfluenced by newspaper dictation or popular clamour.16 What would
happen to this right if the press may use such a language as to influence and control the
judicial process? It is to be borne in mind that the democracy demands fair play and
transparency, if these are curtailed on flimsiest of grounds then the very concept of
democracy is at stake.

The concept of denial of a fair trial has been coined by authoritative judicial
pronouncements as a safeguard in a criminal trial. But what does the concept denial of fair
trial actually mean:

The conclusions of the judicial decisions can be summed as follows:

The obstruction or interference in the administration of justice vis a vis a person facing trial.
The prejudicial publication affecting public which in term affect the accused amount to
denial of fair trial. Prejudicial publication affecting the mind of the judge and Suggesting the
court as to in what manner the case should be preceded.

The publisher of an offending article cannot take shelter behind the plea that the trial to which
the article relates to isnt then in progress nor immediately to be begun but it has to occur at a
future time.17 Our law of contempt however does not prevent comments before the litigation

12
AIR 1943 lah 329(FB)
13
Subhash Chandra v. S. M. Agarwal, 1984 Cri LJ 481(Del)
14
Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137
15
AIR1975 AP 30.
16
Cooper v. People (1889) 6 Lawyers Report Annotated 430(B)
17
Leo Roy Frey Vs. R. Prasad and Ors , AIR 1958 P&H 377

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is started nor after it has ended. In re P.C.Sen,18 Justice Shah who spoke for the court
succinctly put the law as follows:

The law relating to contempt of Court is well settled. Any act done or writing published
which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to
interfere with the due course of justice or the lawful process of the Court, is a contempt of
Court : R. v. Gray19. Contempt by speech or writing may be by scandalizing the Court itself,
or by abusing parties to actions, or by prejudicing mankind in favour of or against a party
before the cause is heard. It is incumbent upon Courts of justice to preserve their proceedings
from being misrepresented, for prejudicing the minds of the public against persons concerned
as parties in causes before the cause is finally heard has pernicious consequences. Speeches
or writings misrepresenting the proceedings of the Court or prejudicing the public for or
against a party or involving reflections on parties to a proceeding amount to contempt. To
make a speech tending to influence the result of a pending trial, whether civil or criminal is a
grave contempt. Comments on pending proceedings, if emanating from the parties or their
lawyers, are generally a more serious contempt than those coming from independent sources.
The question in all cases of comment on pending proceedings is not whether the publication
does interfere, but whether it tends to interfere, with the due course of justice. The question is
not so much of the intention of the contemner as whether it is calculated to interfere with the
administration of justice.20

In Sushil Sharma v. The State (Delhi Administration) and Ors21 it was held by the Delhi
High Court that:

Conviction, if any, would be based not on medias report but what facts are placed on
record. Judge dealing .with the case is supposed to be neutral. Now if what petitioner
contends regarding denial of fair trial because of these news items is accepted it would cause
aspiration on the Judge being not neutral. Press report or no reports, the charge to be
framed has to be based on the basis of the material available on record. The charge cannot
be framed on extraneous circumstances or facts dehors the material available on record.
While framing the charge the Court will from prima facie view on the basis of the material
available on record. To my mind, the apprehension of the petitioner that he would not get fair
trial is perfunctory and without foundation. None of the news items, if read in the proper
prospective as a whole, lead to the conclusion that there is any interference in the
administration of justice or in any way has lowered the authority of the Court. The Trial
Court has rightly observed that after the charge sheet has been filed, if the Press revealed the
contents of the charge sheet it by itself by no stretch of imagination amounts to interference
in the administration of justice.

Even in highly sensitive cases, the session trial has been conducted by the courts of Sessions
without fear or favour. The Indian courts have emerged as the most powerful courts in the
world with virtually no accountability. But every institution even the courts can go wrong.
Every institution including the judiciary has its share of black sheep and corrupt judges. The
judiciary is peopled by judges who are human, and being human they are occasionally
motivated by considerations other than an objective view of law and justice. It would be

18
AIR 1970 SC 1821.
19
[1900] 2 Q.B.D. 36 at p. 40
20
Para 8
21
1996 CriLJ 3944.

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foolhardy to contend that none of them, at least some of them, at least some times are
motivated by considerations of their own personal ideology, affiliations, predilections, biases
and indeed even by nepotistic and corrupt considerations22.

In stifling all criticism by the threatened exercise of the power of contempt, the issue in a
democratic society is ultimately one of the accountability of the judiciary itself. In order to
stifle free speech and comments on the court, even an occasional exercise of this power is
enough to deter most persons form saying anything that might annoy their Lordships. Perhaps
the most important reason for the lack of reforms in the judiciary is the reluctance of the
Press to write about and discuss the state of affairs within it for fear of contempt.23

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr24. It was held by the Supreme Court
that:
No doubt it would be mischievous for a newspaper to systematically conduct an independent
investigation into a crime for which a man has been arrested and to publish the results of that
investigation. This is because trial by newspapers, when a trial by one of the regular
tribunals of the country is going on, must be prevented. The basis for this view is that such
action on the part of a newspaper tends to interfere with the course of justice whether the
investigation tends to prejudice the accused or the prosecution. There is no comparison
between a trial by a newspaper and what has happened in this case.

4. REGULATORY MEASURES
The judiciary is not free from human follies

It is true that every holder of judicial office does his utmost not to let his mind be affected
what has seen or heard or read outside the court and he will not knowingly let himself be
influenced in any way by the media. At the same it is to be kept in mind that judges being
humans are not free from faults. A man may not be able to put that which he has seen, heard
or read entirely out of his mind; and he may be affected by it. The judiciary is not
independent unless the Courts of Justice are able to administer law in the absence of pressure
of popular opinion.

If one carefully analyses the judgment in Reliance Petrochemicals v. Proprietor of Indian

Express25 in the light of the judgment of P.C. Sen26 , it can be inferred that the Supreme

22
Supra note 2
23
Ibid

24
AIR 1961 SC 633
25
1988(4) SCC 592.

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Court has accepted that Judges are likely to be subconsciously influenced by the media
publicity. The same view has been held by Justice Frankfurter of U.S. Supreme Court and
Lord Scarman and Lord Dilhorne in the House of Lords.27

Justice Frankfurter in the case of John D. Pennekamp v. State of Florida28 has observed:

No Judge fit to be one likely to be influenced consciously except by what he sees or hears in
Court and by what is judicially appropriate for his deliberations. However, judges are also
human and we know better than did not forbear how powerful the pull of the unconscious and
how treacherous is the rational processand since Judges, however stalwart, are human, the
delicate task of administering justice ought not to be made unduly difficult by irresponsible
print. The power to punish for contempt of court is a safeguard not for judges as persons but
for functions which they exercise. It is a condition of that function indispensible in a free
society that in particular controversy pending before a court and awaiting judgment, human
being, however strong, should not be torn from their mooring of impartiality by the undertone
of extraneous influence. In securing freedom of speech, the Constitution hardly meant to
create the right to influence Judges and Jurors.

Several other Reports have also suggested that the judges are likely to get influenced by the
stories published and broadcasted by the media houses. Cardozo, one of the greatest Judges
of the American Supreme Court, in his Nature of the Judicial Process29 referring to the forces
which enter into the conclusion of the judges observed the great tides and currents which
engulf the rest of the men, do not turn aside and pass the Judges by. The Canadian Law
Reform Commission30 has taken the view that while judges may generally be impervious to
influence, the possibility of such influence could not be ruled out altogether, and in the case
of Judicial officers, the sub-judice rule served an important function of protecting public
perception of impartiality.

26
AIR 1970 SC 1821.
27
Attorney General v. BBC, 1981 A.C. 303 (HL).
28
(1946) 328 US 331.
29
Lecture IV, Adherance to Precedent . The Subconscious Element in the Judicial Process (1921) Yale University
Press.
30
Canadian Law Reform Commission, Contempt of Court : Offences against Administration of Justice {Working
Paper 20, 1977,p 42-43} and Report 17 (1982) at p 30.

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In a case31 where a woman committed suicide in Calcutta in her parents house, the husband
of the deceased woman and his family were charged with dowry death under the Indian Penal
Code. The husband subsequently filed a number of documents to prove that the woman was a
schizophrenic psychotic patient, while the parents of the woman filed documents to prove
their allegations of demand of dowry by the husband and his family. The trial was yet to
commence. The lower courts refused to grant bail. Later the Supreme Court granted interim
bail to the accused and while passing the final orders referred very critically to certain news
items in a magazine. The Court deprecated two articles published in the magazine in a one-
sided manner setting out only the allegations made by the womans parents but not referring
to the documents filed by the accused to prove that the lady was a schizophrenic. The apex
Court observed, These type of articles appearing in the media would certainly interfere with
the course of administration of justice.

There must be regulations with regard to publications and news programs while a trial is
going on. It is just as important to protect the public perception of judges impartiality as to
protect risk of bias. After all we cannot forget the Common rule Law laid down in R v.
Sussex Justices: Exparte McCarthythat32 Justice should not only be done, it should
manifestly and undoubtedly be seen to be done.

As we concern with the restrictions imposed upon the media, it is clear from the above that a
court evaluating the reasonableness of a restriction imposed on a fundamental right
guaranteed by Article 19 enjoys a lot of discretion in the matter. It is the constitutional
obligation of all courts to ensure that the restrictions imposed by a law on the media are
reasonable and relate to the purposes specified in Article 19(2).

In Papnasam Labour Union v. Madura Coats Ltd33 the Supreme Court has laid down some
principles and guidelines to be kept in view while considering the constitutionality of a
statutory provision imposing restriction on fundamental rights guaranteed by Articles
19(1)(a) to (g) when challenged on the grounds of unreasonableness of the restriction
imposed by it.

31
M.P. Lohia v. State of West Bengal, 2005(2) SCC 686
32
1924 (1) KB 256
33
(1995) 1 SCC 501

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In Arundhati Roy, In re34 the Supreme Court has considered the view taken by Frankfurter,
J. in Pennekamp v. Florida35 in which Judge of the United States observed: (US p. 366)

If men, including judges and journalists, were angels, there would be no problem of
contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic
journalists would not seek to influence them. The power to punish for contempt, as a means
of safeguarding judges in deciding on behalf of the community as impartially as is given to
the lot of men to decide, is not a privilege accorded to judges. The power to punish for
contempt of court is a safeguard not for judges as persons but for the function which they
exercise.

In Rajendra Sail v. M.P. High Court Bar Assn.3617 the editor, printer and publisher and a
reporter of a newspaper, along with the petitioner who was a labour union activist, were
summarily punished and sent to suffer a six months imprisonment by the High Court. Their
fault was that on the basis of a report filed by a trainee correspondent, they published
disparaging remarks against the judges of a High Court made by a union activist at a rally of
workers. The remarks were to the effect that the decision given by the High Court was
rubbish and fit to be thrown into a dustbin. In appeal the Supreme Court upheld the contempt
against them, but modified and reduced the sentence.

In D.C. Saxena (Dr.) v. Chief Justice of India37 the Supreme Court has held that no one else
has the power to accuse a judge of his misbehaviour, partiality or incapacity. The purpose of
such a protection is to ensure independence of judiciary so that the judges could decide cases
without fear or favour as the courts are created constitutionally for the dispensation of justice.

By these above observations and the judgment we can say that restrictions imposed by Article
19(2) upon the freedom of speech and expression guaranteed by Article 19(1)(a) including
the freedom of press serve a two-fold purpose viz. on the one hand, they specify that this
freedom is not absolute but are subject to regulation and on the other hand, they put a
limitation on the power of a legislature to restrict this freedom of press/media. But the
legislature cannot restrict this freedom beyond the requirements of Article 19(2) and each of

34
(2002) 3 SCC 343
35
328 US 331 : 90 L Ed 1295 (1946)
36
(2005) 6 SCC 109 per Y.K. Sabharwal, J.
37
(1996) 5 SCC 216

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the restrictions must be reasonable and can be imposed only by or under the authority of a
law, not by executive action alone.

The Press Council of India (PCI) was established to preserve the freedom of the press and to
improve the standards of news reporting in India. Under the Press Council Act 1978, if
someone believes that a news agency has committed any professional misconduct, the PCI
can, if they agree with the complainant, warn, admonish or censure the newspaper, or direct
the newspaper to, publish the contradiction of the complainant in its forthcoming issue.
Given that these measures can only be enforced after the publication of news materials, and
do not involve particularly harsh punishments, their effectiveness in preventing the
publication of prejudicial reports appears to be limited38.

Along with these powers, the PCI has established a set of suggested norms for journalistic
conduct. These norms emphasise the importance of accuracy and fairness and encourages the
press to eschew publication of inaccurate, baseless, graceless, misleading or distorted
material. The norms urge that any criticism of the judiciary should be published with great
caution. These norms further recommend that reporters should avoid one-sided inferences,
and attempt to maintain an impartial and sober tone at all times. But significantly, these
norms cannot be legally enforced, and are largely observed in breach.

Lastly, the PCI also has criminal contempt powers to restrict the publication of prejudicial
media reports. However, the PCI can only exercise its contempt powers with respect to
pending civil or criminal cases. This limitation overlooks the extent to which pre-trial
reporting can impact the administration of justice.

5. RESTRICTION ON REPORTING

Code of Journalist Ethics

This code had been prepared by All India Newspaper Editors Conference and Indian
federation of working journalist as also the code formulated by United Nation Sub-
Committee on freedom of information and press.

38
http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf (last visited on 21/10/2014 at 00:14)

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India should observe some restrain and on reports and comments.

Publication of news and facts and right of fair comment should be defended.

Factually accurate information.

Unconfirmed news shall be identified and treated as such.

Personal interest should be influence professional conduct.

Inaccurate report should be ratified and publicity of the same done.

Public confidence in integrity and dignity of profession as journalist should be maintained.

Acceptance of bribe or inducement or any such act/demand an exercise of denying or giving

out information should be avoided.

The carrying on of personal controversies, where no public issue is involved should be

considered as derogatory of profession.

Unfounded acquisition should be avoided.

In obtaining news, or pictures, reporters and press photographers, shall not due anything that
will cause, pain or humiliation to innocent or otherwise distressed persons.

6. CONCLUSION
It has to be remembered that freedom of expression is not absolute, unlimited or unfettered.
The judiciary is peopled by judges who are human, and being human they are occasionally
motivated by considerations other than an objective view of law and justice. No judge is
completely impervious from the influence of the hype created by the media.

The media must exercise better self-regulation. It is expected of persons at the helm of the
affairs in the field of media to ensure that the trial by media does not hamper fair
investigation by the investigating agency, and more importantly does not prejudice the
defence of accused in any manner whatsoever. It will amount to travesty of justice if either of
this causes impediments in the accepted judicious and fair investigation and trial.

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In order to stifle free speech and comments on the court, even an occasional exercise of the
power of court to punish the condemners is enough to deter most persons form saying
anything that might prejudicially affect any trial proceeding or tend to transgress the natural
justice principles.

If government starts regulating the media, the whole purpose would be defeated. Instead the
better option would be robust and civic engagement by the people with their polity and
political class. In other words the engagement that is both adversarial and co-operative. An
educated, cultivated and engaged civil society can be the best watchdog over governments
and the media. This would restore and balance the polity and accord a semblance of normalcy
among the institutions of the country.

7. BIBLIOGRAPHY
1. DIVAN GORADIA MADHAVI, FACETS OF MEDIA LAW, FIRST
EDITION, 2006, EASTERN BOOK COMPANY, LUCKNOW.

WEBLIOGRAPHY

1. https://www.lawctopus.com/academike/media-trials-india/ access on 25
October, 2017 at 6:34 p.m.

2. https://www.lawctopus.com/academike/fair-trial-judiciary-media-need-
balance/ access on 26 October at 10:15 a.m.

3. https://www.lawteacher.net/free-law-essays/commercial-law/effect-of-
trial-by-media-before-courts-law-essay.php access on 26 October at 11:00
a.m.

4. http://www.legalserviceindia.com/article/l237-Trial-By-Media.html
access on 26 October at 12:00 p.m.

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