MEDIA TRIAL A THREAT TO ADMINISTRATION OF JUSTICE

Trial by media is a phrase that has been used popularly in the last few decades
to describe the impact of television and print media coverage on a case by an attempt
made by the media of holding the accused guilty even prior to his trial and regardless of
any Verdict in the court of law.

Media is regarded as one of the pillars of democracy. Freedom of media is the

freedom of people to be informed of public matters. Free and healthy press is
indispensable to functioning of the democracy. Democracy means making of the
government by the people and to have active participation in the community decision. It
is, therefore, needed that the people be informed about current and burning affairs of
society. Duty of the press and media is to make the people enlightened over issues
relating to public importance. Freedom of Press is not specifically mentioned in Part III
of the Constitution. However Hon: Supreme Court in a number of judgments has
recognized that freedom of speech and expression also included freedom of Press. The
right to freedom of expression is contained in Art.19 of the Indian Constitution.

Art. 19(1)(a) of the Constitution of India guarantees, freedom of speech and

expression and Art. 19(2) permit reasonable restrictions to be imposed. However Article
19(2) does not refer to 'administration of justice' but interference of administration of
justice is clearly referred to in the definition of 'criminal contempt' in Sec. 2 of the
Contempt of Courts Act,1971 and in Sec. 3 thereof as amounting to contempt. Therefore,
publications/coverage which interfere or tend to interfere with the administration of
justice amount to criminal contempt under the Contempt of Court Act and if in order to
preclude such interference, the provisions of that Act impose reasonable restrictions on
freedom of speech, such restrictions would be valid.

Under Article 19(1)(a) of the Constitution, the rights of the freedom of Press have
been recognized as Fundamental Rights and under Article 21 of the Constitution the
accused/suspect and under trial and the Civil litigant have Fundamental Right to have a
free and fair trial3. Therefore balancing between the two fundamental rights has become
inevitable and the time has come that Court should give appropriate directions with
regard to reporting of matters (in electronic and print Media) which are sub judice. When
rights of equal weight clash, Courts have to evolve balancing measures based on re-
calibration under which both the rights are given equal space in the Constitutional
Scheme. In the Constitution of the United States of America, freedom of press is absolute
and any interference with right of media to report, comment upon pending trial is illegal.

Pandit Jawaharlal Nehru, the first Prime Minister of independent India said- I
would rather have a completely free press with all the dangers involved in the wrong use
of that freedom than a suppressed or regulated press. But he did not foresee the danger
involved as he did not expect the press to get involved into something which is beyond its
limit and ethics too and which further hinders the administration of justice which is the
very essence of the natural justice and the rule of law.

In India, trial by media has assumed significant proportions. Some famous

criminal cases that would have gone unpunished but for the intervention of media are
Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case and Bijal Joshi
rape case.

The media however drew criticism in the reporting of murder of Aarushi Talwar,
when it preempted the court and reported that her own father Dr. Rajesh Talwar, and
possibly her mother Nupur Talwar were involved in her murder.

The concept of media trial is not a new concept. 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. Trial is essentially a
process to be carried out by the courts. The trial by media is definitely an undue
interference in the process of justice delivery.

Media has now reincarnated itself into a public court which can also be referred
as Janata Adalat and has started interfering into court proceedings so much so that it
pronounces its own verdict even before the court does. It completely overlooks the vital
gap between an accused and a convict keeping at stake the golden principles of
presumption of innocence until proven guilty and guilt beyond reasonable doubt.
 Nowadays what we actually observe is a trial by media, where the media itself
conducts a separate investigation, builds a public opinion against the accused even before
the court takes cognizance of the case. By this way it prejudices the public, as a result of
which many a time it could happen that the accused, who should be assumed innocent, is
presumed to be a criminal leaving all his rights and liberty unredressed. When excessive
publicity about a case and the suspect involved in the case by the media prejudices a fair
trial or results in characterizing the accused as a person who had indeed committed the
crime, it amounts to undue interference with the administration of justice, calling for
proceedings for contempt of court against the media.

To an extent it can be agreed that the media, by publicizing certain facts, as it was
best seen in Jessica Lall case acts as a catalyst which is conducive to the speedy progress
of the trial and media activism of this nature is acceptable. However, once the trial has
commenced, the media has no right to pronounce based on its perception the innocence
or guilt of the persons involved in the case. Determination of the guilt or innocence of a
person under our constitutional scheme is the function of the courts, and not the media.
Besides, irreparable harm can be caused to a persons reputation by prematurely judging
him or her guilty.

In this context, a distinct observation was made by a Division Bench of the

Supreme Court comprising of Justices P. Sathasivam and Swatanter Kumar in their
judgment in the Jessica Lall case whereby the duty and role played by the media while
reporting a case was brought out stating that Presumption of innocence of an accused is
a legal presumption and should not be destroyed at the very threshold through the process
of media trial and that too when the investigation is pending. In that event, it will be
opposed to the very basic rule of law and would impinge upon the protection granted to
an accused under Article 21. The Bench cautioned that, every effort should be made by
the print and electronic media to ensure that the distinction between trial by media and
informative media is always maintained1. Media will render great service if it observes
the lakshman rekha charted by the Supreme Court. By sating the above the court clearly
spoke about the responsibility shouldered to media and the limitations to be kept in mind
by the media while reporting a case

In Saibal Kumar vs. B.K. Sen,[1] the Supreme Court tried to discourage the
tendency of media trial and remarked,
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 the 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.

Although our judicial system relies on the competence, impartiality and

fearlessness of the trial judge and one can argue for unrestrained media converge of court
proceeding on the ground that it will not influence the judgment. But even in England
there has been divergence of opinion. In view of Lord Denning, a professional judge will
not be influenced by media coverage which affects only common man. This concept of
judicial superiority was not endorsed by Lord Dilhorne.[2] Even in United States the
judiciary has been of the view that the court cannot function properly if a reporting is
calculated to disturb the judicial mind. In John D. Pennekamp vs. State of Florida,[3] it
was observed,

No Judge fit to be one is likely to be influenced consciously, except by what he

see or hears in court and by what is judicially appropriate for his deliberations. However,
Judges are also human and we know better than did our forbears how powerful is the pull
of the unconscious and how treacherous the rational processand since Judges, however
stalwart, are human, the delicate task of administering justice ought not to be made
unduly difficult by irresponsible print.

It is correct that contempt of court is one of the ground on which reasonable

restriction can be imposed on the freedom of speech. The Contempt Of Court Act defines
contempt by identifying it as civil and criminal. Criminal contempt has further been
divided into three types: Scandalizing or prejudicing trial and hindering the
administration of justice. The provision of contempt has its origin to the principle of
natural justice i.e. every accused has a right to a fair trial along with the principle that
justice should not be done only but it must also appear to have been done. There may be
many ways to prejudice a trial. If it is allowed, a person may be held guilty of an offence,
which he has not actually committed. No publication, which is calculated to poison the
mind of a Judge, a witness or a party or cerate an atmosphere in which the administration
of justice would be difficult or impossible, amounts to contempt. No editor has the right
to assume the role of an investigator so as to prejudice the court against any person. But
law of contempt can only be attracted to prevent comments when the case is sub-judice.
If the case is not pending in the court, it is of no avail. In our legal system, the courts do
not have any power to impose prior restraints on the publication of prejudicial material
during the pendency of court proceedings.

In M.P. Lohia vs. State of West Bengal[4] the Supreme Court has strongly
deprecated the media for interfering with the administration of justice by publishing one-
sided articles touching on merits of cases pending in the courts. Pointing out that the
article was a one-sided version of the case, N. Santosh Hedge. J. said that the facts
narrated therein are materials that may be used in the forthcoming trial in this case and
that this type of article appearing in the media would certainly interfere with the
administration of justice. He remarked-

We deprecate this practice and caution the Publisher, Editor and the journalist
who are responsible for the said articles against indulging in such trial by media when the
issue is sub-judice. Others concerned in journalism would take note of this displeasure
expressed by us for interfering with the administration of justice."

The hope expressed by the media has not reached the media. Investigative journalism
is a very loose phrase, invariably clamouring for protection of right to expression and
freedom of press. Very often the media reports colourful accounts of so called eye
witnesses and investigating officers. Its effect on trial is drastic. Quite often these
accounts go against the prosecution version regarding the incident. If the verdict is
unacceptable , media and politicians unleash scathing attacks on the judge for deviation
from their conclusions. It is naked intrusion into the administration of justice.

With ever increasing number of newspapers and visual media houses, competition is
inevitable. Many criminal cases being focus of public attention, reliable news thereon
will certainly increase ratings of T.V channels and newspapers. But the cause for concern
is that this is now at risk to administration of justice. The media cannot become apostles
of virtue overnight. We need a comprehensive law which regulates media coverage at
least in criminal cases, starting from the stage of investigation and ending before trial.
The media can expose the inadequacies in investigation or trial, but it cannot work as a
parallel agency entitled to grill out a convenient version of truth at the cost of damaging
our judicial system.

The Law Commission of India, in its 200th report severely criticized the growing
trend among media to interfere in the process of trial and thereby causing great prejudice
to the accused:

If excessive publicity in the media about a suspect or an accused before trial

prejudices a fair trial or results in characterizing him as a person who had indeed
committed the crime, it amounts to undue interference with the administration of justice,
calling for proceedings for contempt of court against the media.

Trial is very much affected by the media sensation. Judges while making decision
start considering media criticism. That is why in mostly high profile cases verdict passed
by media becomes the final verdict in trial courts.

Conclusion

Media, as referred to by many as the eyes and ears of the general public. It forms
the backbone of our society. And a responsible media is expected to take into
consideration the reliance entrusted on it by the general public and confidence and faith
entrusted whereby common man/public blindly accepts the truth of the news published by
media. This actually calls for the existence of a responsible media. While acting as a
responsible media, it should follow certain norms in reporting of a crime or any news
related to the same:

Accuracy of the case shall be maintained and verified before the same is
reported/published and read of all.
Every caution shall be undertaken to avoid any writing that is opinion based i.e.
either favoring or defaming any person/party.
Right to privacy shall not be interfered with.
Accuracy is of utmost importance while reporting court proceedings.
Reports based on mere suspicion or personal opinion shall not be published.
 Appreciation of an act of violence shall be avoided always.
The heading shall not be purposely made sensational or provocative; it must be
apt for the matter printed under it.
Rectification shall be published without any delay in cases of error.

It is not possible or desirable to invoke contempt jurisdiction in every case of media

excess, in the interest of the system. Whether it is legislation or contempt of court
proceedings, there should be a curb on this dangerous trend of media trial. It is high time
those interested in free trial stand up and fight this grave injustice.