The criminal justice system in India flaunts Lady Justice outside its courts, pretending to be untouched by any calamity, wearing a blindfold protecting itself from any spectacle of biasness. Still, the Justice system today lacks efficiency for many years in terms of corruption among law enforcement officials, delay, bribery and lack of fair trial procedures[i].

The advent of multiple press platforms in India, covering a variety of news channels and newspapers, provides a stage where ordinary citizens grasp information on events around their country. This has led to an unprecedented rise in the concept of “Media Trials” as the press and media play an important role in shaping the criminal justice policy, trials, sentencing procedures all around the globe[ii]. Over time this problem is entangling its roots further, leading to lack of fair trial procedures to the accused as well as the victim.

Under the Universal Declaration of Human Rights, an accused charged with a criminal offence is entitled to a fair trial and under the Presumption of Innocence, has the right to be presumed innocent until proved guilty in a court of law.[iii] The Hon’ble Supreme Court defined Trial by media as “”the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law.”[iv]

Media trials are affecting the judicial system in a number of ways. The most pertinent problem the system faces today is the influence of these media trails on A judge’s mind and his delivery of justice. Hereinafter, we will delve deeper into cases where the accused was subjected to a Trial by Media and the Criminal Justice system faced an obnoxious threat without realising it.

Judicial Superiority Vs. Human Frailty

Media trials are a source through which the ordinary citizenry gains perception of the guilt or innocence of an accused. The Judicial system, impartial on papers cannot be conceived as rigidly mechanical and robust enough to dodge all unintentional perceptions these unofficial trials create in its mind. Often these perceptions creep their way into the justice delivery system, creating a shadow of prejudice against the accused leading to harsher punishments, sometimes even death penalty.

In Pennekamp v. Florida, Justice Frankfurter mentioned that judges can also be subconsciously affected by the news as they were also humans[v].  In Attorney General v. BBC, Lord Dilhome stated: “It is sometimes asserted that no judge will be influenced in his judgment by anything said by the media[vi]. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting.”[vii] Similarly, in the Indian scenario also, the judges accepted the part played by media in the obstruction of justice, but apprehended from taking any substantial action against them[viii]. Societal perception now seeps its way into deciding what justice is to be served to the culprits. [ix]

In the Parliament Attack case, some argued that the Indian media’s coverage of the case precluded the possibility of Afzal’s receiving a fair trial[x]. Not only did the Media surpassed its limit and aired a “confession” by Afzal Guru, it heavily created mass hysteria among the public about his role and connections, many of which were later rejected by the Courts as untrue.  The statement of confession where Guru admitted his role as well as Gilani’s, which was inadmissible as evidence, was broadcast by many channels.

There was also a full-fledged film shown by a media house, showcasing Afzal as guilty and his role as the conspirator of the parliament attack, which was nothing but a script of prosecutions’ version of events. [xi].Afzal sought a stay on the airing of the film, arguing that it would prejudice his trial[xii]. It was films and propaganda like this, which turned the prosecution events into unsolicited truth seen by the public, which moulded the public opinion of death penalty to Afzal Guru.

In cases like Macchi Singh, it was held that Judges must not look into public opinion for delivering justice, or giving death penalty, as “public opinion” is a fiction, capricious and depends upon the information public is fed by the media and news[xiii]. As Bariyar recognized, there is a “danger of capital sentencing becoming a spectacle in media, if media trial is a possibility, sentencing by media cannot be ruled out[xiv].

These cases have led to the questioning of the susceptibility of Indian judges to public pressure[xv]. Even the Chief Justice of Hon’ble supreme court at that time urged the media to exercise restraint, as some judges might get confused[xvi]. However, in order to preserve judicial superiority, it has to be presumed that judges are not vulnerable to such media trials. 

The Conundrum of Superiority

Two possible solutions to the problem of media trials had been systematized – pre-dissemination safeguards (safeguards that are supposed to be applied before such publication happens) and post-dissemination safeguards (punitive or compensatory actions taken after publication is done). The Law Commission of India, in a report addressing the emerging subject of trial by media, stated that pre-dissemination restraints are only an exception to Open-justice.  It “limits public debate and knowledge more severely” than a post-dissemination sanction.[xvii] Hence, it can only be “limited to extreme cases” and must be “subjected to stringent conditions.”[xviii]

The Commission suggested that pre-dissemination restraints should be imposed by courts only if there is a “real risk of serious prejudice” to a trial.[xix] Therefore, limiting the scope of media, does not seem to be a viable solution to the Indian Judiciary and lawmakers today. It may in certain cases cause a clash between freedom to speech and expression under article 19 and right to a fair trial under Article 21.

However, as mentioned earlier, Indian Courts have decided on the assumption of judicial superiority. Therefore, no judge is supposed to get affected by any media publication, which makes pre-dissemination safeguards a harsh course to take.  Post-dissemination safeguards include Contempt of court, or quashing of trials and order for a new trial.[xx] Afzal Guru pleaded for a re-trial owing to prejudiced caused in the minds due to media coverage, however, judges tended not to go down that road, citing the same reason of judicial superiority, and assuming that no one gets affected by media.

Conclusion

The Supreme court of India has shown leniency towards these media Trials despite accepting the obstruction they cause in the administration of justice in cases like Lohiya Vs. West Bengal[xxi]. The Courts have also initiated Suo moto contempt proceedings against newspapers and channels for their growing tendency to make comments and pronounce parties as guilty or innocents[xxii].

However, these are exceptional cases, and the courts continue to be lenient towards media trials today, despite its increasing vulnerability to such propaganda. Independent and impartial press are nevertheless the pillars of a democracy. Their rights cannot be curtailed in an unreasonable manner, unless they tend to obstruct the path of justice itself.

Debates between post-dissemination safeguards and pre-deamination safeguards is still on but the Indian judicial system fails to accept its human frailty and continues functioning under the shadow of judicial superiority. It has imparted its superiority, but deep analysing of some of the judgements mentioned above describe how the system has given way to sub-conscious biased delivery of justice, irrespective of its positive and negative consequences.

Safeguards like Contempt of Court come into action, when the court believes that the publishing by Media are obstructing justice. The darker problem arises only when the courts themselves get influenced by the Media trials, ignoring the danger it causes to delivery justice system. These media trials will soon form into media sentencing, if this leniency is continued and ignorance practiced by the Judicial System. the two pillars of democracy, the press and the judiciary will simultaneously collapse, leaving the country into an unjust chaos.

[i] KTS Tulsi: If We Do Not Strengthen The Criminal Justice System, Mafias Will Begin To Rule The Country, Halsbury’s Law Monthly, Apr. 2009

[ii] Ray Surette, The Media, the Public, and Criminal Justice Policy, 2 JIJIS 39 (2003).

[iii] Universal Declaration of Human Rights., G.A. Res. 217A, art. 10, 1

[iv] Anand v. Registrar, (2009) 8 S.C.C. 106 (Del.)

[v]  Pennekamp v. Florida.  328 U.S. 331, 357 (1946).

[vi] Attorney General v. BBC .[1981] AC 303, 335.

[vii] Attorney General v. BBC .[1981] AC 303, 335.

[viii] Lohiya Vs. West Bengal  (2005) 2 S.C.C. 686

[ix] David G. Barrie, Naming and Shaming: Trial by Media in Nineteenth-

Century Scotland. Journal of British Studies 54 (April 2015): 349–376.

[x] Arundhati Roy, And His Life Should Become Extinct, OUTLOOK, Oct. 31, 2006

Nandita Haksar, Tried by the Media: The S.A.R. Geelani Trial, SARAI, 2004

[xi] Nandita Haksar & K. Sanjay Singh, December 13, SEMINAR, 2003,

[xii] Zee News v Sandhu (2003) 1 S.C.A.L.E. 113.

[xiii] Macchi Singh Vs. State of Punjab. 1983 AIR 957,

[xiv] Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 S.C.C. 498.

[xv] Geeta Pandey, Justice Delayed, But Not Denied, BBC, 2006, available at

http://news.bbc.co.uk/2/hi/ south asia/6059426.stm (last visited May 15, 2010); Vir Sanghvi,

Priyadarshini:N ow What?” HINDUSTAN TIMES, Oct. 21, 2006.

[xvi]C JI Concern Over Trial By Media, THE STATESMAN, Nov. 5, 2006.

[xvii] Law Commission Of India, Trial By Media: Report On Free Speech And Fair Trial

Under Criminal Procedure Code 161-2 (1973) (Law Comm’n No 200, 2006).

[xviii] Ibid.

[xix] Ibid.

[xx] Arpan Banerjee, Judicial Safeguards against Trial by Media: Should Blasi’s Checking

Value Theory Apply in India, 2 U. Balt. J. Media L. & Ethics 28 (2010).

[xxi]Lohiya Vs. West Bengal  (2005) 2 S.C.C. 686

[xxii] Court on its Own Motion v. Ravi (2009) 2 K.L.J. 166 3.

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ABOUT THE AUTHOR

Sumedha Tewari

Sumedha Tewari is a second-year student from National Law University, Jodhpur. Her areas of interest include Animal Law, Environmental Law and Criminal Law. She is a staunch supporter of the animal rights movement.