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Author: Mohammad Aamir Husain, V year of B.A., LL.B. from Faculty of Law, Aligarh Muslim University.

India is the world’s largest democracy. We have well-defined administrations and also the role of every office is clearly defined. The judiciary in India is independently engaged in the task of imparting justice and works as the guardian of the constitution (hereinafter, referred to as ‘the constitution’). The most dangerous events in the democracies are when these assigned works are overlooked and start interference in the functioning of the other office by taking the law into their own hands.

Recently, we witness such intermingling of the roles with the death of Bollywood actor Sushant Singh Rajput, which gives rise to various controversies as well as questions on the role of media assigned to play, and what they are playing. From the allegations of nepotism against veterans of the film industry to the declaration of the late Sushant’s girlfriend Rhea Chakraborty as the culprit, the case is now used as an instrument to combine votes in favour of the forthcoming Bihar polls. While declaring Rhea Chakraborty as the culprit, the media go even further by calling Bengali women as ‘gold-diggers’, ‘manipulative’, ‘dominating’, and many more. All these show the unprofessionalism, misogyny, and racism by the media to train the masses to be judgmental. The media delineated the entire story of the passing of the late actor in a way that the common open to accept within the complicity of the arraigned individual. In the 21st century, the media plays the most important role in shaping public opinion so strongly that it creates the perception of any person being guilty or acquitted. It is equipped with changing the mass attitude, through its perspective. The core purpose of the media is to provide the precise news to a wide range of perspectives before people, however, the truth is not always shown by the media due to which people suffer and at last, it wounds democracy. There have been several cases where the media had assumed control over the cases into their own hands and proclaimed a denounced as a convict, even much before the court’s decision. Even before the court has given its decision, this trend of pronouncing the accused as a convict is called media trials. It is the well-known portrayal of the accused’s guilt and imposes a certain view of him, paying no attention to any of the court’s ruling.

The constitution guarantees ‘right to speech and expression’ under Article 19 of Part III, and this also includes the ‘freedom of the press’, but these are not absolute freedoms and are subject to certain limitations contained in Article 19 (2) of the Constitution of India. In re Harijai Singh[1], held that “absolute, unlimited and unfettered freedom of the press at all times and in all circumstances would lead to disorder and anarchy.”

Recently, the Attorney General for India, Mr. K K Venugopal, expressed concerns before the Supreme Court about ‘media trial’ and media comments on sub-judice matters. He went further by saying that the comments of media on the pending matters are causing great damage to institutions.[2]

In view of the above, it can comfortably be said that the media not only believes but also wants to embrace and follow the standard of finding the accused person guilty by the general public. It is high time to note that the 'principle of presumption of innocence' is an inalienable principle of criminal law, and a criminal trial cannot begin in India until a competent court has framed charges against the accused, and charges can only be framed after

Their investigation has been completed by the police and charges have been filed before the court.

Media trials from the constitutional and legal point of view

The Constitution guarantees the right to freedom of expression under Article 19(1), i.e., the right to express opinions without any prevention and the freedom to seek, receive, impart information, thoughts of any kind regardless of the frontiers, either orally, or in text, or even in print, or in any frame of art, or through any other media of the person’s choice. The independent and free media is also very exceptionally critical for the working of democracy. This is also important because the media is very much keen on shaping the opinions of the public. But, what happens, if these media go beyond the duty of imparting reports and news and forget that rights come with duties and restrictions and are not absolute in any way. In India, we have a well elaborate system for fair trials based on criminal jurisprudence. The legality of media trials depends upon the effect they leave on the society in the establishment of rule of law as the independence of the judiciary is also important for the smooth functioning of the democracy.

The constitution, in Article 19 of Part III gives the power to the media to express its opinion through freedom of speech. However, this comes with some very important and reasonable restrictions defined under Article 19(2). Now, this establishes the responsibilities of the court to regulate and check the media in its limit. The press council of India has been set up to direct the power of the press and to anticipate it from screening any malice and biased substance.

Principles of the Criminal jurisprudence

A criminal trial, in India, does not begin until a competent court has surrounded charges against the accused and these charges can be surrounded as it were after the police have concluded their examination and have recorded the examination report (famously known as a charge-sheet) sometime recently the court.[3] Right to fair trial and investigation is a portion of Article 14 and 21 of the Constitution of India and every citizen appreciates these rights.

Out of all the standards upon which criminal jurisprudence is based on, ‘the presumption of innocence’ is one of the foremost imperative ones. The principle of presumption of innocence means that every person accused of any offence is presumed to be innocent until proven guilty by the competent court with support of genuine shreds of evidence. The burden of sealing the blame of the accused lies on the prosecution. In simple terms, this works in favour of the accused whose guilt is not accepted until proven in the court.

In India as well as in various other countries also this principle of presumption of innocence is considered as an inalienable right of the accused in both civil and criminal law. This presumption also has its place in Article 11 of the Universal Declaration of Human Rights (UDHR) and in various national legal documents. Article 10 of the European Convention on Human Rights, the flexibility of the press is preeminent. Exemptions to that freedom may be made as it were such as are “necessary in a democratic society”, acceptable only to the extent that they correspond to “a pressing social need”, and are proportionate to the conclusion to be accomplished. Media trials totally overlooked this principle of Presumption of innocence. The media are openly commenting on the forthcoming issues to influence the judges and to control the assessment of the overall population.

Accused’s Right to a Fair Trial

The "Right to Fair Trial" is a trial which by outward weights and it is perceived as a fundamental precept of justice in India. Right to a fair trial is the extreme right given to each person inside the territory of India under articles 14, 20, 21 and 22 of the Constitution. The right to a fair trial forms one of the inalienable part criminal justice systems. This likewise incorporates a few different rights including to be presumed innocent until proven guilty, the right to legal representation etc. In the case of Zahira Habibullah Sheikh v. State of Gujarat[4], the apex Court held that a “fair trial'' clearly would mean a trial before an impartial Judge, a fair prosecutor and an 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.”

As the affecting force is with the media, the trials become more enthusiastic to be reasonable in the courts.

Media trials and Contempt of Courts Act, 1971

Once, Justice Kurian Joseph (Retd.) of the Supreme Court of India has said that the trial by the media on prospective cases is equivalent to contempt of court. The Law Commission of India in its 200th report analyzed a few issues identifying with the biased inclusion of sub-judice criminal issues this report additionally inspected arrangements under the contempt law in India which typically grant insusceptibility for publication that have taken place before the commencement of trial and it was recommended by the law commission to amend the contempt law on the possibility that media trials may influence the judges with its publications and reports.[5]

The Contempt of Court Act defines contempt by distinguishing it as civil and criminal. Contempt has additionally been separated into three types i.e. Scandalizing, Prejudicing trial, and Hindering the administration of justice. Section 2 of the Contempt of Courts Act, 1971 defines criminal contempt. It incorporates the distribution of any issue which biases or meddles in any capacity in the legal procedures or administration of equity.

As until now, media trials are protected against contempt proceedings. However, in the event that it causes any obstruction in the investigation, it may fall under contempt category. In re P.C. Sen[6] “The law relating with contempt of Court is very much settled. Any act is done or writing published which is determined to bring a Court or a Judge into disdain or to lower his authority, or the lawful cycle of the Court is a contempt of Court.” Therefore, the call for the hour is to place sound restrictions on the media so that it is not only able to exercise its right of speech and expression but at the same is prevented from exceeding its limits.

The road ahead: Reform and Suggestions

The media is regarded as the fourth pillar and cornerstone of our democracy which operates for the interest of society, but the legal and justice process in any matter should not be hindered by it. The scope of the press is limited to placing a matter in the notice of society without any presupposition being given. Any institution, whether it is the legislature, executive, or judiciary is obligated to be mishandled in the event that it surpasses its legitimate jurisdiction. Media should put a sensible self-limitation over its extension and due prominence should be given to the fair trial and court procedures. Courts are the true forums for such cases and they should be permitted to work without spreading bias in the general conclusion. The right to a free and fair trial under Article 21 must be kept up. In cases of trial by media, isn't as it was denied but moreover hampered by lessening a catastrophe into a dramatization. Hence, it is the ethical obligation of the media to show reality and that too at the opportune time.

[1] AIR 1997 SC 73.


[3] Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4.

[4] (2004) 4 SCC 158.

[5] Law commission of India 200th report on trial by Media Free speech and Fair trial under Criminal Procedure Code, 1973, August 2006.

[6] AIR 1970 SC 1821.


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