Media is regarded as one of the pillars of democracy

Freedom of media is the freedom of people as they should be informed of public matters. It is thus needless to emphasis that a free and a healthy press is indispensable to the functioning of democracy. In a democratic set up there has to be active participation of people in all affairs of their community and the state. It is their right to be kept informed about the current political social, economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider to form broad opinion in which they are being managed, tackled and administered by the government and their functionaries. To achieve this objective people need a clear and truthful account of events, so that they may form their own opinion and offer their own comments and viewpoints on such matters and issues and select their future course of action. The right to freedom of speech and expression in contained in article 19 of the constitution. However the freedom is not absolute as it is bound by the sub clause (2) of the same article. However the right it freedom and speech and expression does not embrace the freedom to commit contempt of court.

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 media has again come in focus in its role in Arushi Murder case. The concept of media trial is not a new concept. The role of media was debated in the Priyadarshini Mattoo case, Jessica Lal Murder Case and likewise many other high profile cases. 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. Before delving into the issue of justifiability of media trial it would be pertinent to first try to define what actually the ‘trial by media’ means. Trial is a word which is associated with the process of justice. It is the essential component on any judicial system that the accused should receive a fair trial.

Media has now reincarnated itself into a ‘public court’ (Janta Adalat) and has started interfering into court proceedings. 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’. Now, what we observe is media trial where the media itself does 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 and sometimes even judges and as a result the accused, that should be assumed innocent, is presumed as a criminal leaving all his rights and liberty unredressed. 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. Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent the encroachment of civil rights.

Trial By Media Is Contempt Of Court And Needs To Be Punished

The Contempt of Court Act defines contempt by identifying it as civil[10] and criminal[11]. Criminal contempt has further been divided into three types:

# Scandalizing

# Prejudicing trial, and

# 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 or impossible, amounts to contempt. Commenting on the pending cases or abuse of party may amount to contempt only when a case is triable by a judge. No editor has the right to assume the role of an investigator to try to prejudice the court against any person.

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. [1] , 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 as-certained 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 fair trial in the court of law, by an impartial tribunal, uninfluenced by newspaper dictation or popular Glamour. 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 fairplay 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 isn’t then in progress nor immediately to be begun but it has to occur at a future time. Our law of contempt however does not prevent comments before the litigation is started nor after it has ended. In re P.C.Sen [2] 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. Gray [3] . Contempt by speech or writing may be by scandalising 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."

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 are 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 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 considerations.

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 from 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.

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr [4] . 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."

The Ins And Outs Of Media Trial- English View

High-profile civil litigation is not just decided in the courts; it also is decided in the court of public opinion. Courts and legal commentators are increasingly recognizing that the media, through the way it covers litigation, has a very real impact on the resolution of individual lawsuits. Common sense dictates that it is within a lawyer's role, therefore, to work with reporters on their stories to ensure accurate reporting. Many defence attorneys in high-profile cases, though, flinch at the idea of saying anything to reporters out of concern that such conversations could be misconstrued as an attempt to affect the jury pool or persuade a judge or jury. For this reason, rules and beliefs have developed as to how lawyers may appropriately engage the media to mitigate its impact on their clients.

Pro-Plaintiff Media Bias

Litigation involving well-known companies or individuals always has grabbed the attention of the news media, especially when it involves sensational charges. The magnitude of the coverage and the filter through which the media reports on litigation can create a “clear plaintiff bias in civil cases." While small companies can find themselves under the media spotlight in a particularly novel or “bet the company" suit, the media tends to focus on allegations against established and respected corporate defendants. These larger companies tend to have household names, and allegations against them can make good “copy" - even if the allegations are seemingly spurious, commonplace or unproven. The same is true for litigation involving celebrity defendants

In covering litigation, particularly corporate litigation, the media has an inherent bias that favours plaintiffs. When charges are made public, the media automatically reverts to the basic elements of story telling and casts the lawsuit in traditional protagonist-antagonist terms. The defendant, simply by being on the wrong side of the “v," becomes the "villain" to the plaintiff's “victim," whether or not the actual charges have any factual basis or legal merit. Reports frequently lead with the plaintiff's injury or allegations and only include the corporate position as a response. These stories rarely are counterbalanced by positive stories about the defending company. Because companies would rather not draw attention to any litigation, they usually do not seek publicity for their victories. Even if they did, reporters often do not see corporate litigation victories as particularly newsworthy. Goliath is supposed to beat David; that is not news.

The Nature of Bias in High-Publicity Cases

A larger issue is the complex nature of juror bias and how that bias predisposes a juror toward one side in a case. It is no secret that we all have biases. The difficulty comes from understanding how those biases may ultimately affect the viewing of evidence and the deliberations in a case. Because the ramifications and remedies of this issue are far-reaching, the courts have elected to take the “I instruct you not to be biased" approach. As a result, the court can attempt to rehabilitate any juror who expresses bias by appealing to his or her fear or by appealing to the juror's inherent sense of fairness (“Don't you think you could set aside those initial impressions and only consider evidence from the witness stand?"). Rare is the juror who would not be intimidated by an admonishment from the court or who does not think of himself or herself as a fair and unbiased person. In fact, most jurors struggle mightily against their initial impressions.

Several issues make it more difficult for jurors in high-publicity cases:

• Jurors want to appear fair and unbiased in front of the court and the press.

• Jurors want to sit on sensational trials.

• Jurors have a hard time distinguishing between impressions formed by pre-trial publicity and impressions formed in court.

• Jurors mostly do not understand or acknowledge their own biases.

• Jurors themselves sometimes do not know the strength of their impressions and opinions.

• When in a high-conflict situation, such as juror deliberations, jurors revert to their initial impressions, experiences, and opinions.

• The courts make it relatively easy to conceal or not reveal a conscious or unconscious bias.

These issues were highlighted in Mr. Simpson's civil trial. Despite having stated numerous times in their questionnaires that they believed him to have been guilty at various times during the presentation of the criminal trial, more than 30% of these jurors were not excused for cause because they stated that they were willing to put their opinions and impressions aside in the civil case.

The Additional Pressure on Judges in High-Publicity Trials

The media create a series of unconscious pressures on a juror in a high-profile trial. Jurors know that they are being watched by the world. They are not only making a decision for themselves, but they are making a statement for their family, co-workers, community, and society as a whole. This elevates their verdict to a level beyond the evidence. In interviewing jurors after the trial of Hollywood madam Heidi Fleiss, many jurors expressed how they hoped that the police would use their resources more wisely than to prosecute victimless crimes. When talking about the testimony of Dr. Irwin Golden, who was the coroner in the Simpson case, juror Marsha Rubin-Jackson said:

But it comes to the point in this particular case where Dr. Golden has made thirty errors. Now, you can't tell me this man has not made errors on previous autopsies . . . . But this just happened to be a case that came to the court as a 'high-profile' case and the problems were brought to everyone's attention

Media as a Watch Dog

Media do play a role as Watch dog and bring the facts as it is there. It act as mirror for the society. It brings only what is happening around and make the legislatures and government answerable for the act of them. In cases media only brings the facts coming from investigating agencies and put it in front of the society, so that society can be aware of the facts happening around them. They have a right to know and express their views on that particular case and media just act as a platform to bring the voice of the society


Though media act as a watchdog and act as a platform to bring people voice to the notice of society and legislatures. But now days media is so much sensationalized and they just do for their salaries and TRP’s. there are few reporters those showing only those news for what they have been paid by political parties. From the above account it becomes clear that the media had a more negative influence rather than a positive effect (except for a few exceptions here and there). The media has to be properly regulated by the courts. The media cannot be granted a free hand in the court proceedings as they are not some sporting event..

The most suitable way to regulate the media will be to exercise the contempt jurisdiction of the court to punish those who violate the basic code of conduct. The use of contempt powers against the media channels and newspapers by courts have been approved by the Supreme Court in a number of cases as has been pointed out earlier. The media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial itself. Certain cases are so hyped for a day or two, so much so that you switch to any channel, they all will be flashing the same story but then when the heat is over there is no following of the case. The news then jostles for space with other stories that are carrying the heat then. Media just sensationalized the case for few days and leave it as they find other “masala" news irrecpective of how much importance earlier news was.