TITLE – MEDIA TRIALS AND THE CONSTITUTION: A POTENTIAL VIOLATION OF THE
RIGHT TO A FAIR TRIAL?
SUBMITTED TO: PROF. MILIND GAWAI
SUBMITTED ON: 17/10/2023
SUBMITTED BY: MEGHNA JAIN
DIVISION: A
ENROLLMENT NO: 2022048
SEMESTER: 1ST YEAR, 2ND SEMESTER
SUBJECT: CONSTITUTIONAL LAW
COURSE: B.A.LL.B.(HONS.)
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TABLE OF CONTENTS
Introduction
Statement of problem
Research objective
Research Question
Literature Review
Impact of Media Trials
 Media trial vs Fair trial
 Influence media trial on impartiality of judicial trial
Media trial vs Freedom of speech and expression
 Are Constitutional ideals upheld while exercising freedom of press

Regulatory measures concerned with restriction on power of press
1. Immunity under Contempt of Courts act, 1971
2. Public’s Right to know
 Right to privacy In Media trials
Striking a Balance between media trials and fair trials
 Is it beneficial or a necessary evil?
Conclusion
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INTRODUCTION
Media trial is basically media taking on the onus to examine the facts, conduct investigation and
judge on innocence of a person before a judgement is passed in Court of law. In a country where
freedom of speech and expression is put on a pedestal and parallel to it accused is deemed guilty
at the onset of arrest, media trial opens a crucial polarity that requires examination considering
recent developments to address the debacle between media trial and Rights of accused to have a
fair trial. When media declares a person to be guilty not only the public perception is affected, but
also the possibility of interfering with the trial itself and influencing the judgement as well. In
Ramesh Thapper v. State of madras freedom of press was held to be included within ambit of
article 19(1)(a) i.e., freedom of speech and expression. Even though the democratic ideals of this
country support’s it there needs to be accountability, a line must be drawn and certain restrictions
are necessary to ensure the role of judiciary is not usurped by media trial. Every institution is
susceptible to be abused if left unbridled.
Contempt of Courts Act, 1971 allows for publication of free trials as long as it doesn’t obstruct the
court proceedings. Role of press in democratic structure cannot be undermined however creating
a widely held perception of guilt regardless of any verdict during a court of law essentially
necessitates bringing in ‘Responsible Journalism.’ There are several cases where it has proven to
be helpful like Jessica Lal Murder case and Nitish Katara case however in cases like Sushant Singh
Rajput and Hathara’s gang Rape case where it had a detrimental impact on the judicial proceedings.
The main concern that remains to be addressed is how do we determine whether media trial is
infringing upon rights of accused and what conditions are to be considered while acknowledging
positive involvement of media to ensure pillars of democracy are upheld.
STATEMENT OF PROBLEM
The issue at hand is the growing problem of media trials in our country. Media trials occur when
the media takes it upon themselves to investigate, judge, and declare a person guilty before the
court's judgment. While freedom of speech is essential, this often results in the accused being
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deemed guilty from the start, influencing public perception, and potentially interfering with the
actual trial. The media's motives, often driven by ratings and competition, are questionable, and
there is a need for accountability. We must strike a balance between free press and fair trials,
ensuring responsible journalism prevails. The challenge is to determine when media trials
infringe on the rights of the accused and establish guidelines for their responsible involvement.
RESEARCH OBJECTIVES
1. To Analyze the Impact of Media Trials: Investigate and assess the extent to which media
trials influence public perception, the difference between media trials and fair trials
2. To Examine Motivations and Ethics of Media: Investigate the motives driving media trials,
including ratings and trends, and assess the ethical implications of their actions.
3. To Evaluate Constitutionality of such trial: Evaluate the existing legal frameworks and Acts
to determine the interplay between legality of such trial
4. To Propose Guidelines for Responsible Journalism: Develop guidelines for responsible
journalism in the context of reporting on legal cases to strike a balance between freedom
of the press and ensuring fair trials.
RESEARCH QUESTIONS
1. How does media trial affect the fairness of judicial procedure and its impact on perception
of general public?
2. Why do media outlets conduct such trials and its delicate interplay with freedom of speech
and expression?
3. Can the trials by media be guided by legislation outlining conditions/ framework to steer
it towards better direction or is it to be outrightly prohibited?
Literature review
MEDIA TRIAL: AN IMPEDIMENT IN FAIR TRIAL Authored by: Nitesh Tripathi
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The book talks about the power of media is such that it can influence public opinion and, in some
instances, even impact judicial decisions. The media trial poses a significant concern, as it can
overshadow the verdict of the judiciary and compromise the fairness of legal proceedings. he
media's verdict often takes precedence, where public sentiment and media pressure plays a
significant role, potentially affecting the outcome of the case. With the advent of social media
platforms concept of free speech, poses an ethical dilemmas when considering the fair
administration of justice. To illustrate the impact of media trials, this literature review includes
case studies that exemplify the detrimental consequences of media sensationalism on fair trials.
These case studies will range from high-profile criminal cases to instances where media scrutiny
affected the course of justice, legal consequences, and potential solutions, shedding light on the
complex dynamics at play in this critical issue.
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IMPACT OF MEDIA TRIALS
Media trial can generally be understood to be a situation wherein the media which includes
any form of print or digital media to go beyond its designated role of expressing its opinions and
making people aware of the facts or news surrounding a particular thing. They start trying the cases
on their own, pronouncing verdicts before judiciary has tried the case. The circulation, viewership
and readership has been growing at an unprecedented rate and this should also involve a certain
degree of responsibility being attributed towards them. The existence of free media is cornerstone
of democracy. With its vast impact on minds of people it has also been given the power to mobilize
the thinking process of millions. The role can aptly be summed up in words of learned hand of US
Supreme court “The hand that rules the press, the radio, the screen and the far spread magazine,
rules the country”1
The capacity to bring about significant positive change is often accompanied by the
potential to cause harm, and free press is no exception to this rule. The right to fair trial which is
essentially a trial by an impartial judge where parties are treated equally and not affected by
external pressure is a basic tenet of justice in India. Looking at the International Human right law
perspective in the International covenant on civil and political rights to which India is a party to
says, in Article 14 - “Press and public may be excluded from all or part of a trial for reasons of
morals, public order (order public) or national security in a democratic society, but any judgment
rendered in a criminal case or in a suit at law shall be made public except where the interest of
juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the
guardianship of children.”2 Going by the above convenant which compels government to take
actions to imbibe these rights it does not explicitly prohibits media trials and infact creates for an
exception in criminal cases.
Going by the rationality of insertion of this article if an criminal act is considered to be an
action against the state and against the public at large they are entitled to know the heinous actions
committed and this does not constitute a violation of fair trial and is to be interpreted liberally in
favour of public’s right at large to be aware of such happenings and be informed of all the minute
1
Right to Privacy in Sting Operations of Media, http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/5761.pdf (last visited on 14/10/2023 at 00:09)
2
Ar cle 14 of the interna onal covenant on civil and poli cal rights.
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details and facts about the circumstances of the case. International and multinational standards
consistently prioritize media freedom as a fundamental aspect of A society that upholds democracy
and freedom. They do not prioritize it as a secondary consideration to an accused‘s right to a fair
trial or to the requirement of an independent judiciary. The trials conducted by media which
basically involves them expressing their opinions on basis of the facts reflects what public
generally do, everyone has a right to form opinions and express it and media is no exception to
that. Moreover, even the opinion they are forming must be grounded in logical reasoning rather
than biasness considering the impact they have on public and the amount of public scrutiny they
are continuously under hence media trial cannot be always said to be ineffectual.
The concept of reverse burdern that is woven into fabric of criminal jurisprudence is that
accused is innocent until proven guilty, this presumption is right recognized under Article 14(2)
on the International Covenant on Civil and Political Rights, 1966. This has also been further
propouned in English law and in India through cases of K.Veeraswamy v. Union of India and
others3 and V.D. Jhingam v. State of Uttar Pradesh wherein if there is a reasonable doubt the
accused is entitled to the benefit of such reasonable doubt. 4 However, in cases of Sher Singh
Partapa v. State of Haryana5 and Sanjeev Kumar v. State of Punjab 6 it has created for an exception
by preponderance of probabilities where if accused is tested on touchstone of probability, then the
initial presumption of innocence gives way to assumption of guilt of the accused, and then it would
require the accused to produce evidence dislodging his guilt. Hence, the evidence must be
evaluated to determine the plausibility and accuracy of the defense presented by the appellant..
Keeping this in mind the argument that media trial creates a assumption of guilt towards the
accused stand vitiated since it creates for reasonable set of probabilities which can be brought in
and might shift burden on the accused as per judgments of Supreme court. So media by analyzing
new evidence, facts related to the case is not violating his right to fair trial in the sense that it’s
going against the presumption of innocence.
As for the second aspect of fair trial that is concerned with judge being influenced by such
publicized media trial has been a major concern. In Zahira Habibullah Sheikh v. State of Gujarat,
3
K.Veeraswamy v. Union of India and others [(1991)3 SCC 655].
V.D. Jhingam v. State of Utter Pradesh, AIR 1966 SC 1762.
5
Sher Singh v. State of Haryana, (2015) 3 SCC 724.
6
Sanjeev kumar v. State of Punjab (2009)16 SCC 487.
4
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the Supreme Court clarified 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.”7 Thus, even judges are subject of scrutiny either on judicial conduct or their actions
in purely private capacity. A judge must take measures to shield themselves from media pressure,
which can inadvertently impact the judgments of juries or judges since as human beings they are
also suspectible to unintentional or subconscious exposure to such indirect influence. In State of
Maharashtra vs. Rajendra Jawanmal Gandhi, the Supreme Court observed, “A trial by press,
electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage
of justice. A judge has to guard himself against any such pressure and is to be guided strictly by
rules of law.”8
This stands in sharp contrast to the Constitution of the United States of America, where
press freedom is unrestricted, and any infringement upon the media's right to report on and
comment about ongoing trials is prohibited by law. 9
7
Zahira Habibullah Sheikh v. State of Gujarat (2005) 2 SCC (Jour) 75
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.
9
Tony Rogers , The First Amendment and Press Freedom , available at
h p://journalism.about.com/od/ethicsprofessionalism/a/firstamen.html (last visited on 15/10/2023 at 00:08)
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MEDIA TRIAL VS FREEDOM OF SPEECH AND EXPRESSION
Freedom of speech is extremely important in public discourse to form opinions and to keep
people informed about policies, news events and essential developments of the country and press
plays a crucial role is disbursing information. Venkataramiah, J. of the Supreme Court of India had
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, 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.”10 This illustrates the importance of freedom of press in the
democratic structure of our country and to enable the citizen to intelligently exercise his rights of
making free and informed choice.
In Printers (Mysore) Ltd. v. CTO, the Supreme Court has stated that, while press freedom
is not recognised as a basic right, it is inherently implied within the reading of broader freedom of
speech and expression11. In R. Rajagopal v. State of T.N it was held that freedom of the press also
extends to covering discussions about public figures in public issues however, when it comes to
their private lives, a careful balance between press freedom and the right to privacy is necessary
to prevent defamation and uphold the democratic principles enshrined in the constitution. 12 These
cases make it evident that media freedom occupies a central position in a democratic and open
society. It is not relegated to a secondary status behind an accused person's right to a fair trial or
the necessity of an independent judiciary.
Further, the aspect on which it is often debated press is not to ‘prejudge a case.’ Justice
demands that people should be tried by courts of law and not be pilloried by the press. 13 Press
freedom originates from the democratic principle that the public has the right to be engaged in the
matters that impact them on a daily basis. So, when media reincarnates itself into a public court
and start interfering actively in court proceeding freedom and privilege collides. The right of an
accused individual to receive a fair trial and the media's right to freedom of expression. is in
10
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641.
Printers (Mysore) Ltd. v. CTO, (1994) 2 SCC 434.
12
R. Rajagopal v. State of T.N (1994) 6 SCC 632.
13
Dhavan, R. (2008) Publish and be damned: Censorship and intolerance in India. New Delhi, India: Tulika Books.
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frequent tension as to where the priority and emphasis should be placed; the tension between the
two is an inevitable and perhaps necessary one. 14
The tension furthers when the news provided by media is incompatible with the judicial
process. Public gives priority to news by media considering the inherent impact and coverage they
have, who goes towards excessive coverage including publishing statements of victims, witness
etc while matter is pending. There is also a need to establish a balance between the public's right
to know and the presumption of an accused person's innocence until proven guilty by a competent
court has become a necessity. However, the intense competition among different media
organizations for publication and coverage, which tends to encroach on the administration of
justice, is a cause for concern for both the legislative and judicial branches. 15 There is a minimum
expectation that the media would adhere to their jurisdiction of responsibility and communicate
without bias. Lately, this has not been followed when media assumes role of judiciary and becomes
decisive in cases.16 Art 19(1)(a) guarantees freedom of speech and expression in constitution 17 but
Art 19(2) allows for reasonable exceptions, it does not allow for ‘Administration of justice.’ Which
is unambiguously referred in definition of 'criminal contempt' in Sec. 2 of the Contempt of Courts
Act,197118 as well as in Sec. 3 equivalent to contempt.
Therefore under provisions of this act reasonable restrictions can be imposed on freedom
of speech and these restrictions would be valid. Considering when such judgement is passed it
amounts to double victimization of the accused by judiciary as well as media, which creates a
prejudice in the eyes of public against the accused. in the case of Y.V. Hanumantha Rao v. K.R.
Pattabhiram and Anr, where in it was enunciated 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
14
Effect of trial by media before courts,h p://www.lawteacher.net/commercial-law/essays/effect-of-trial-bymedia-before-courts-lawessay.php (last visited on 16/10/2023 at 01:08)
15
‘Rickey Singh: Dissent and be damned’ (1984) Index on Censorship, 13(2).
16
Enact law to regulate trial by media: Law Commission, The Hindu, Sept 3, 2006
17
Ar cle 19(1)(a), Cons tu on of India, 1949, Acts of Parliament.
18
Contempt of Courts Act, Sec on 2, Act no. 70, Acts of Parliament 1971.
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believes it to be true, still it is a contempt of Court if he prejudices the truth before it is ascertained
in the proceedings.”19
Role of media has always been of utmost importance in our country as enunciated by
various judgements often referred as fourth pillar of democracy. The media takes on the role of the
judiciary by indulging in concepts such as "breaking news," continuing criminal investigations,
interfering with police investigations, and partial reporting.20 In various cases like Jessica Lal
murder case, Nirbhaya rape case and scams like 2G scam, Harshad Mehta stock marketscam have
a common ground of being driven by media which makes us ask To what extent can interference
be considered the responsibility of an healthy regulator, and when does it begin to disrupt the
court's proceedings?
According to the Law Commission of India in its 200th report titled Trial by Media: Free
Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act,
1971), there are various forms of conduct by the press that amount to disruption in the proper
functioning of administration of justice. These include publications concern itself with the
character of the accused, commenting on the merits of the case, publishing interviews with
witnesses, and creating an atmosphere of prejudice. Conflicts emerge when the media oversteps
its bounds and attempts to usurp the power of the judiciary by making judgemental comments on
pending trials. Media interference can also put witnesses at risk and jeopardize witness protection.
To control pre-trial publicity and mitigate interference, the court can control the presence
of the press at judicial proceedings, insulate witnesses, control the release of information to the
press, warn reporters about publishing prejudicial material, and, in cases where there is a
reasonable likelihood of prejudicial news preventing a fair trial. Striking a balance between media
freedom and the integrity of the judicial process is essential to ensure a fair and impartial trial.
19
Y.V. Hanumantha Rao v. K.R. Pa abhiram, 1973 SCC OnLine AP 145.
S.L Rao, Trial by Media-Television should have no role when criminal cases are in court, The Telegraph, July 25,
2011, available at h p://www.telegraphindia.com/1110725/jsp/opinion/story_14234123.jsp
20
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RIGHT TO PRIVACY IN MEDIA TRIALS
Article 19(1)(a) has led to a fourth pillar of democracy i.e., media which brings to
knowledge about the wrongs in system hoping for corrections. It has become a watchdog of
democracy and has played vital role in bringing about revolutionary changes, even the judiciary
has benefitted from such fearless journalism and taken up Suo-moto cognizance of such matters.
However For all of its advantages, role of media is something of a double-edged sword. Today the
over- inquisitive media is a result of over-commercialization is encroaching on right of privacy of
the accused as has been observed in multiple cases like Sheena Bohra murder case, Sushant Singh
Rajput case and many more.
As was observed in Labour Liberation Front v. State of Andhra Pradesh – “Once an
incident involving prominent person or institution takes place, the media is swinging into action
and virtually leaving very little for the prosecution or the Courts to examine the matter. Recently,
it has assumed dangerous proportions, to the extent of intruding into the very privacy of
individuals. The freedom of speech and expression, which is the bedrock of journalism, is subjected
to gross abuse. It must not be forgotten that only those who maintain restraint can exercise rights
and freedoms effectively.”21 In case of Mr X v. Hospital Z Supreme court said public relevation of
even true private information will amount to invasion of right to privacy. 22
In another case Supreme court elaborated on freedom of press stating that citizens have the
right to protect their privacy in matters such as family and marriage and no one can publish
anything without his consent. However, position may be different if he voluntarily becomes
involved into controversy or actively initiates or encourages such controversy. 23 This can be looked
at from another angle where if the accused has voluntarily by some actions of his own thrown
himself in the eyes to such public scrutiny and got himself involved in the case his right to privacy
cannot be said to be violated.
21
Labour Libera on Front v. State of A.P., 2004 SCC OnLine AP 1040.
Mr ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296.
23
R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
22
12
US agencies have been using sting operations to uncover financial and other related crimes
and justifications given for same has been that it is the most efficient and effective ways of
obtaining evidence for prosecuting those responsible however a line must be drawn “between a
trap for the unwary innocent and a trap for the unwary criminal.”24 So the press should do what
it can to minimize such abuse of power and indulge in self-scrutiny of their actions. Moreover
proper guidelines need to be followed to ensure such technology is used in rightful manner.
24
Sherman v. Smith, 66 US 587 (1861).
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STRIKING A BALANCE BETWEEN MEDIA TRIALS AND FAIR TRIALS
Article 19(1)(a) of the Constitution acknowledges the fundamental rights pertaining to the
freedom of the press, while Article 21 of the Constitution ensures the fundamental right to a fair
trial for suspects, undertrial individuals, and civil litigants.25 Therefore it becomes extremely
crucial to balance both rights and appropriate directions must be given by courts about reporting
of matters which are sub- judice. The Hon'ble Supreme of India in the matter, Sahara India Real
Estate Corporation Ltd. and Ors.Vs.Securities and Exchange Board of India and Anr 26 constituting
a five judge constitutional bench prescribed certain guidelines regarding reporting by media when
an interim order of court was violated due to publishing by some newspapers.
It suggested following measures firstly, exercising prior restraint where if e necessities of
administration of justice so demand then order prohibiting publication for temporary period is
permissible under powers of court and cannot be said to offend Article 19(1)(a). Secondly, Even
If media has the right to disseminate information it can risk prejudice in pending trial as well as
connected case, so postponement order can avoid such risk. It will be interference only if it is based
on facts of particular case which is not accurate. Since the Canadian and American model have
given absolute freedom of press which cannot be followed here they practice other techniques in
case of excessive prejudicial publicity like retrials being ordered, change of venue, ordering
acquittals even at the Appellate stage, etc. Hence, such balancing measures can be adopted and
incorporated to address the concerns.
CONCLUSION
Media cannot be merely dismissed as they act like alter ego of the society thus judiciary
should reach out and communicate with media rather than resenting them for their pressperformance. Media should while presenting facts present both pros and cons of facts and imbibe
responsible journalism in practice. Court should respect the freedom of press and the societal
interests media serves in bringing public scrutiny in administration of justice however, they stand
25
Maneka Gandhi Vs Union Of India 1978 SCR (2) 621
Sahara India Real Estate Corpora on Ltd. and Ors.Vs. Securi es and Exchange Board of India and Anr
(2012)10SCC603,
26
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justified in not endorsing commercial journalism. Right to fair trial is more related to concern of
state rather than media or private publisher and ultimately the issue to be decided is in interest of
public. Both should acknowledge the societal interest they want to promote and ideals of justice
they want to uphold. It is therefore in the interests of both sides of the issue to seek to develop
greater mutual understanding and respect.
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