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Constitutionality of media trial

This article is written by Aarthy Kannan


Media is one of the four pillars of democracy. Freedom of the press is very important for maintaining a democratic society. The importance of media has been well recognized in Indian society. Jawaharlal Nehru once said “To my mind, the freedom of the press is not just a slogan from the larger point of view, but it is an essential attribute of the democratic process. I do not doubt that even if the Government dislikes the liberties taken by the press and considers them dangerous, it is wrong to interfere with the freedom of the press. I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or a regulated press”. Freedom of the press has been included in the fundamental right under article 19. In a democratic society like India, no right is absolute all are subject to restriction. Now with social media and new newsgathering techniques, there is a huge hike in readership and viewership. Media plays a vital role in shaping public opinion and maintain social order in society. Media is a very powerful tool; It can change the government! It can bring social change! With great power comes great responsibility. Media trial conducted by media infamous cases, where the victim or accused is a celebrity for increasing the circulation of print media and enhancing the TRP of channels has been criticized by various judges. The media passes the judgment before the court pronounces its verdict. The person accused of the crime cannot lead a normal life irrespective of the result of the trail he/she will be scrutinized by the public in the society. The media trail overrides the concept of the fair trial and presumed innocent until proven guilty. This article analyses the constitutionality of the media trail.

Freedom of press and Media trial.

Freedom to have an opinion, express his/her opinion, ideas and belief without any fear is the essence of a democratic society. Media is one powerful medium for communicating a person's ideas/opinions to society at large. The freedom of the press is not explicitly mentioned in the Indian constitution, it is included in freedom of speech and expression mentioned in Article 19(1)(A). Freedom of speech and expression includes communication through any medium such as publication, sings, or visual communication. Dr. Ambedkar stated that the press is merely another way of stating an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression, and in my judgment therefore no special mention is necessary for the freedom of the press at all.[1] Thus the freedom of speech includes freedom of the press. Freedom of speech and expression includes the liberty to propagate not one’s view only. It also includes the right to propagate or publish the views of other people.[2] Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. The freedom of propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation publication would of little value.[3] The court emphasized the freedom of media in Bennett Coleman v. Union of India, Indian Express News Paper v UOI, Sakal Papers (P) Ltd. v. Union of India. In all these cases Supreme court has expounded on the right of freedom of the press and has enunciated the importance of this freedom in modern society.

The whole idea of freedom of press emerges from “people right to know” free flow of information is indispensable for democracy. But no right provided in the constitution is absolute it is subjected to restrictions. Media trial is not a new concept in India, we have come across many instances of trial by media. It cannot be ignored that media played a vital role in ensuring justice in Jessica Lal murder case, Aarushi murder case, Nirbhaya rape case, etc. The trial by media has caused more harm than benefits. In many cases, media has overlooked the judicial process bypassing its verdict before judgment is pronounced by the court. The report published by the media has created an impression on the minds of people. This creates a biased public opinion which creates unrepairable damage to the accused irrespective of results of the trial. Especially in sexual offenses cases, details provided by media causes huge mental trauma to the victim, in many cases, it also reveals the identity of victims to give a face to the story. Trial by media amounts to gross violation of the right to privacy and fair trial. By looking into every personal aspect of the accused and victim which is completely irrelevant to the case. It also imposes hindrance to have a fair trial in courts by an impartial judge. The newspapers and media use language with causes prejudicial opinion on the minds of people and judge who reads the news get an opinion the cases even before the commencement of the trail. Right fair trial is a right guaranteed by the constitution, causing hindrance to this right to make whole democracy trivial.

Is media trail contempt court?

The court has the power to investigate and punish any person for contempt of court. This power granted for Supreme court and High Court under article 142(2) and 215.  The contempt of courts acts 1971 divides contempt into civil and criminal contempt. Any willful disobedience to judgement decree or order passed by the court amounts to civil contempt. Criminal contempt is further classified under three heads i) scandalizing of courts ii) prejudices any judicial proceeding iii) interference in the administration of proceeding in any other manner. The contempt of court proceedings is introduced to ensure a fair trial by the judiciary every person and to avoid unjust and unfair practices. There is today a feeling that because of the extensive use of the television and cable services, the whole pattern of publication of news has changed and several such publications are likely to have a prejudicial impact on the suspects, accused, witnesses and even Judges and in general, on the administration of justice. According to our law, a suspect/accused is entitled to a fair procedure and is presumed to be innocent till proved guilty in a Court of law. None can be allowed to prejudge or prejudice his case by the time it goes to trial.[4] No person should publish or make any comment in such a way that it prejudices the opinion of the witness, party, judges, or do something which makes the conduct of fair trial difficult or impossible will amount to contempt of court. The media cannot assume the role of the investigator and publish its report when the case is pending before the court. This has been clarified in the Andhra Pradesh High Court judgment Y.V. Hanumantha Rao vs K.R. Pattabhiram “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, 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 commenting 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 a 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 to force him to drop his complaint or defense. 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'.[5] Justice Kurian Joseph of the Supreme court of India said that trial by media in cases pending before the court is tantamount to contempt of court.


It is an indisputable fact that freedom of speech and expression has tantamount importance in a democratic society. The unrestricted freedom of the press will impose great difficulty in administrating the criminal justice system in the country. Exorbitant discussion of a case in the media before the commencement of the trial prejudices fair trial and results in the characterization of the accused as a person guilty of offence before pronouncement of judgment. Innocents may be condemned for no reason or those who are guilty may not get a fair trial or may get a higher sentence after trial than they deserved. There appears to be very little restraint in the media in so far as the administration of criminal justice is concerned. Right, Freedom of press contravenes with the individual right to privacy and fair trial. Collective rights cannot be held superior to individual right both should be exercised harmoniously. Article 19 (2) grants power for the legislation to impose reasonable restrictions on the freedom of speech in the public interest. The legislature should regulate the conduct of the trial by media by amending provisions of contempt of court acts 1971.

[1] Constitutional assembly debates vol 7 1948 [2] Srinivas v State of Madras AIR 1931 Mad 70. [3] Romesh Thapper v State of Madras, 1950 AIR 124. [4] 200th law commission report 2006 [5]AIR 1975 AP 30



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