MEDIA TRIALS IN INDIA- A QUESTION OF CONSTITUTIONALITY UNDER INDIAN LAW?

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Introduction

The role of the media in the functioning of a democratic system is vital. The existence of media is critical because it keeps political powers in check and ensures that they are not abused. It’s important to remember that the right to freedom of speech and expression includes the ability to freely publish and distribute one’s ideas, opinions, and other viewpoints. However, just as Freedom of Expression is not absolute, the press’s freedom is not as well. Article 19(2) places reasonable constraints on freedom of expression. Such liberty entails a certain level of accountability. When the media declares a person guilty by taking sides before the court begins the trial, it calls into question the media’s ethics and professionalism. The media focuses on the accused’s personal life and character, which often has nothing to do with the legal investigation of the case. The creation of widespread guilt on the accused, independent of the court’s ruling, and the impact on the accused person’s reputation by television coverage are both examples of trial by media. This behaviour has posed a serious threat to the legal system, highlighting the critical importance of “responsible media.”

I. What is Media Trial?

The term “trial” refers to a legal procedure that is carried out by the courts. The media trial is unquestionably an undue impediment to the administration of justice. Before diving into the problem of the justifiability of a media trial, it’s important to first clarify what a “trial by media” entails. The right to a fair trial is an essential component of any judicial system. India is a place where everyone has an insatiable need to learn about the exciting and high-profile incidents. People begin to gather information in order to build a case in their minds, while the media, by releasing their own versions of facts in the form of newspapers, news websites, and news channels, quench the public’s appetite for exciting cases. Investigative journalism, which is legal in India, is the term for this type of reporting. Trial by media or media trial demonstrates the power of influence and revolutionising the masses in shaping perceptions against a guilty or innocent mind. The media trial is more than just a legal matter. It’s a political issue, as well.

On the one hand, it swerves the legal system. On the other hand, it diverts the public’s attention away from critical issues such as economic crises, unemployment, and growing unfreedom. Distraction ministries are always present in authoritarian regimes, and they reveal themselves through the media they hire. Continual vigilance is required in a democracy.

The fundamental Right to freedom of Speech and Expression and the Right to Privacy should be balanced. The emergence of media trials has harmed the right to privacy and created an imbalance between the rights of freedom of speech and expression and privacy. Through television and newspaper coverage on a person’s reputation, the media trial creates a public perception of guilt or innocence before a Court of Law announces its judgement. The media trials were created to show the public the truth about situations, however they ended up interfering with the justice delivery system. The concept of a media trial has emerged when the media uses its right to freedom of speech and expression under Article 19(1)(a)[1] to reach out to the public, critique a topic, and, on occasion, pre-judge a case, which could amount to Defamation or Contempt of Court. In the same way that the media essentially convicted the accused in the Aarushi Murder case and Sushant Singh Rajput case.

II. Are Media Trials Fair in India?

Litigation isn’t always about getting to the bottom of a problem. It’s a zero-sum game, according to philosopher Charles Taylor, with the law stating that either A or B is correct. The tug-of-war between two separate ideals, the free trial and the free press, both of which the general public is invested in, has always given birth to a specific kind of dilemma in media trials. In any country, press freedom is an important aspect of democracy. This is the sort of rationale that investigative journalism receives.

However, the right to a fair trial is a fundamental right that is guaranteed to all accused and victims, regardless of their status, and is thus regarded as a fundamental tenant of justice. It ignores the many layers of truth and the complexities of events, topics, and people. Terry Eagleton, a British Marxist, put it into perspective: The line between reality and fiction is blurred in courtrooms, just as it is in novels. The jury decides not on the facts themselves, but on competing versions of them. When a trial by the court is already challenging in the adversarial justice system, a media trial adds to the mix. Hate campaigns and false allegations  have a huge impact on the legal system.[2] They also pollute the nation’s intellectual and cultural environment. Because they operate only on this concept, the media’s trial may be as fair as everything is fair in love and war. Because the public views the media as a trustworthy source of information, the media can operate as a public court deciding the perpetrator before the proceedings begin. By continuously reporting about a person who is convicted in a trial, the media compels the public to form an opinion about that individual as an accused, resulting in the accused’s guilt being established before the trial even begins. As a result, the media trial is not as fair as it could be because they have no capacity to intervene and push the public to form an opinion against an individual. By conducting a pre-trial investigation, the media is interfering with the judiciary’s system and mechanism, which is prohibited by law.  Everything in this country has a limit to it, whether it’s a right or a freedom, and the freedom of speech and expression granted by Article 19(1)(a) of the Indian Constitution has been limited by some reasonable measures under Article 19 (2)[3] of the same act. Clause 2 of the article states that the state has the power to make any law restricting freedom of speech and expression, and that no one is allowed to use this right against the nation’s sovereignty, integrity, and security, or against any friendly nation with other states, or against any public order, defamation, or incitement to an offence, decency, or morality in relation to the nation’s sovereignty, integrity, and security. As per the above-mentioned arguments it would clearly seem that media trials aren’t fair as they accuse or acquit a person of a crime long barre or after the court of law delivers its judgement.

III. Media Trials vs Contempt of Court

The constitution of India has provided for reasonable restrictions under Article 19(2) in the interests of the sovereignty, security and integrity and public order of the nation. These legitimate constraints were imposed by the Constitution to protect other essential rights over one’s freedom. The preamble of the constitution also states that everyone has the right to a decent life and a fair trial, but the media is preoccupied with their own trial; they are unconcerned about the perspective or opinion that their actions will create, or the grievances that the person against whom they have used their power may face. Borders are sometimes crossed, and rules are broken between free speech and a fair trial, resulting in severe effects for individuals and institutions. Tele-terror should not be allowed to interfere with a legally binding trial. This digital violence is a breach of peace. In a liberal and positive sense, the media is an institutionalised anarchy. Contempt of court clearly applies to the media trial. As a result, it needs to be criminalised. The right to a fair trial must be unaffected by news headlines or newspaper articles. What happens, though, when the major news networks choose to disregard the ethical code? Then resolve to damage the accused’s career before his guilt is established in court? They present him as a villain at prime time when the majority of people are seated in front of their televisions. It is vital to remember that the concept of democracy is based on fairness and transparency, and that such a media act puts the concept of democracy in jeopardy. As a result, any attempt by one of them to undermine the other pillars of democracy must be viewed with suspicion[4]. When a conflict emerges between the free trial of the accused and the free press, a thug of war is generally the result. Investigative journalism is justified by the fact that freedom of the press is an integral aspect of any country’s democracy and cannot be taken away. At the same time, an accused person’s basic right to a fair trial and a trial free of any outside influence is acknowledged as a fundamental tenant of justice.

Sec. 2 of the Contempt of Court Act 1972[5] provides a remedy for such an act of the media and pres. The Supreme Court in M.P. Lohia V. State of West Bengal[6] harshly condemned the media for interfering with the administration of justice by publishing one-sided articles on the merits of pending cases. The Supreme Court, in Saibal Kumar V. BK. Sen,[7] attempted to discourage the practise of media trials, stating, “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 publish the details of the investigation.” This is because newspaper trials must be avoided when a trial before one of the country’s regular tribunals is underway. Contempt of court functions on a different plane, according to this viewpoint. The court’s dignity and the fairness of the trial are the most important factors. As a result, once a matter reaches the courtroom, no one is permitted to publish his or her own version of events. Contempt of court occurs when this rule is broken. The rule developed through the courts and is supplemented by particular statutory provisions that restrict the disclosure of even certain items that occur during the course of a trial. The question now is whether this legal approach is incompatible with the constitutionally protected right to free speech and expression. In this regard, it is worth noting that Article 19(2) of the Constitution expressly saves the use of the law of contempt of court. Whether the inquiry prejudices the accused or the prosecution, such behaviour on the part of a newspaper tends to obstruct the process of justice.

IV. Media Trials and the Right to a Fair Trial

The health of a fair trial is harmed by pre-trial publicity. Due to the media trials, lawyers have been encouraged not to handle cases where the public perceives particular individuals to be guilty without proof, causing the accused to relinquish his right to an attorney. However, it deters advocates from taking on such matters in the first place. The role of the media in the Jessica lal murder case has once again been highlighted. The idea of a media trial isn’t entirely new. In the Priyadarsini Mattoo case, as well as many other high-profile cases, the role of the media was a point of contention. Several times, the media has conducted  the accused’s trial and delivering the judgement before the court. For example, when senior counsel Ram Jethmalani defended Manu Sharma in Jessica Lal’s[8] case, one of the senior editors of a TV news channel declared it to be a defence of the indefensible, implying that the accused was already guilty of the crime for which he had not yet been proven. The media’s presumption certainly violates the accused’s right to a fair trial and a competent attorney. [9]

The court recently held in Dr. Shashi Tharoor v. Arnab Goswami and Anr[10] that the media’s function and right to gather and convey information to the public, as well as to comment on the administration of justice, including cases before, during, and after trial, without violating the presumption of innocence, is the function and right of the media. In truth, the presumption of innocence and the right to a fair trial are central to criminal law and are essential elements of a democratic, rule-of-law based society. Journalists are free to investigate, but they are not permitted to convict somebody, prejudge the problem, or affect the trial. Every fair trial aims to provide the accused with the best possible opportunity to prove his innocence. Conducting a fair trial is advantageous to both the accused and the general public. A conviction obtained as a consequence of a sham trial is incompatible with the concept of justice.

V. Media Trials and the stance of the Indian Courts

The media trials also put pressure on lawyers to take up cases in which the public finds a person guilty and forces the other party to relinquish his or her right to an attorney. It also deters lawyers from taking on the accused’s case. The accused loses both their right to a fair trial and their right to a skilled lawyer in unfair media trials. The media trials put pressure on the lawyers who defend the accused, compelling them to go to trial without a lawyer. The principle of natural justice is violated in this manner. The right of the accused to hire a lawyer cannot be taken away from him. In subjudice situations, Indian courts have the power to issue a pre-publication or pre-broadcasting injunction or a prior restraint order. Before ordering a deferral of publication, the two-pronged test of necessity and proportionality must be met. Furthermore, the injunction order shall only be issued if no other reasonable procedures or measures would be able to prevent the risk. The defendants must send the plaintiff a written notice, via electronic means, before airing any storey involving the plaintiff, requesting his version. If the plaintiff refuses to speak or does not respond within a reasonable period of time, he will not be forced to do so, and the storey will be broadcast with the information that the plaintiff has declined to speak to defend himself.[11]

The Press Council of India was established as a self-governing statutory body. Its overall goal was to protect press freedom. A newspaper or news agency could be warned, reprimanded, or censured by the Council for professional misconduct, a breach of journalistic ethics, or an offence against the public interest. It could also be used to criticise the government or other organisations for interfering with journalistic freedom. While conducting an inquiry under the Press Council Act, it has the same powers as a civil court when trying a case under the Code of Civil Procedure. As a result, the Press Council has taken on the function of a self-regulatory authority for newspapers. In addition to investigating complaints presented before it, the Council has the authority to consider concerns on its own. If it deems it necessary for the discharge of its tasks, it has the authority to make observations against authorities, including the government. As a result, the Press Council is a toothless statutory, quasi-judicial, and self-regulatory entity (with power to impose legal penalties). [12]

As such the freedom of the press is not explicitly mentioned in the Indian Constitution. However, the rights connected to broadcasting are covered by speech and expression. The verdict in Maneka Gandhi’s case supports this point of view. It is held in this case that it is incorrect to believe that a right that is specifically mentioned by name can never be a fundamental right or have the same basic nature and character as the named fundamental right, and that exercising such right is nothing more than an instance of exercising the named fundamental right. The court concluded that shutting down this clearing house would be the death knell for democracy.[13]

VI. Way Forward

As per the above-mentioned arguments the media trials have had a negative rather than a good influence. Courts must govern the media correctly. While a government-controlled media is bad for democracy, the consequences and effects of unaccounted publications are even worse, not only for the person’s reputation but also for the court’s decision. As a result, media trials have only aided people in a few situations, but not all of them, necessitating the imposition of limits. Many people refer to media as the “eyes and ears” of the world. It is our society’s backbone. And a responsible media is supposed to take into account the public’s trust in it, as well as the public’s confidence and faith in the news it publishes.

In fact, the existence of a responsible media is required. There can be no total freedom, no matter how sacred. This holds true for freedom of the press as well. The press is not only bound by the laws of the state, such as those prohibiting contempt and libel, but it is also accountable to the society it serves. In order to fulfil its mission, it must take certain duties. Individuals have differing perspectives on press freedom or media freedom. However, because the media’s rights are not totally unrestricted, some limitations or boundaries must be placed on their freedom. Except for a few exceptions, the media has a harmful rather than a beneficial impact. The media and its activities should be properly regulated by the courts. In the course of the court’s proceedings, the media should not be given too much leeway. The battle between free media and free trial has sparked a lot of intense scrutiny and emotions. To govern the media, those media outlets that break the basic code of behaviour should be subjected to contempt proceedings. The supreme court has agreed to employ contempt powers against media outlets that violate the basic rule of conduct, stating that the media cannot be permitted to prejudgment the case trial on its own. TRP ratings battle is becoming increasingly severe and ruthless, resulting in aggressive journalism. We are currently witnessing the various roles of media that have become self-acquired in the form of ‘trial by media.’ The government must act quickly to avoid citizens’ rights from being eroded as a result of media trials. In conclusion if the media strives to work within the realm of professional ethics and seeks to ensure that the right to broadcast and distribution is not violated by encroaching upon other citizens constitutional rights, then the need for the question of constitutionality of the media would not arise in the future.


[1] The Constitution of India,art.19(1)(a)

[2] Supreme Court Of India On Trial By Media – Litigation, Mediation & Arbitration – India, avaliable at : https://www.mondaq.com/india/trials-appeals-compensation/1006762/supreme-court-of-india-on-trial-by-media (last visited Feb 20, 2022).

[3] Constitution of India, art.19(2)

[4] Media trials in India: An unwritten carve-out to the right to privacy?, avaliable at : https://iapp.org/news/a/media-trials-in-india-an-unwritten-carve-out-to-the-right-to-privacy/ (last visited Feb 20, 2022).

[5] Contempt Court of Act 1972,s.2

[6] M.P. Lohia vs West Bengal (2005) 2 SCC 86

[7] Saibal Kumar Gupta v. B. K. Sen, (1961) AIR 1961 SC 633

[8]Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi)} (2010) 6 SCC 1

[9] Hampering Judicial Independence: Media Trials in India, Its History and a Fresh Perspective – Academike, avaliable at : https://www.lawctopus.com/academike/media-trials-in-india-history/ (last visited Feb 20, 2022).

[10] CS(OS)–253/2017. Case: DR. SHASHI THAROOR Vs. ARNAB GOSWAMI AND ANR. High Court of Delhi (India) – Case Law – VLEX 698096969, avaliable at :https://vlex.in/vid/dr-shashi-tharoor-vs-698096969 (last visited Feb 20, 2022).

[11] Trial By Media – A Threat to Our Judicial System?,avaliable at : https://www.legalserviceindia.com/legal/article-4292-trial-by-media-a-threat-to-our-judicial-system-.html (last visited Feb 20, 2022).

[12] Constitutionality of Media Trials in India – DMAadvocates, avaliable at : https://dmaadvocates.com/constitutionality-of-media-trials-in-india/ (last visited Feb 20, 2022).

[13] Id.

Author: Arnold Stanley, St. Joseph’s College of Law

Editor: Kanishka VaishSenior Editor, LexLife India

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