JAMIA MILLIA ISLAMIA

--PART A--

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--PART B--

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“MEDIA TRIAL & CONTEMPT OF

COURT IN DIGITIAL AGE”
CLINICAL IV
Submitted by:
PRAGATI YADAV
Student ID: 20188895
Exam Roll: 18BLWS135
Class Roll: 43
B.A. LL.B. (Hons.)
(Xth Semester) (Self Finance)
(Faculty of Law, Jamia Millia Islamia, New Delhi)

Submitted to:
Dr. GHULAM YAZDANI (Professor)
(Faculty of Law, Jamia Millia Islamia, New Delhi)

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CASE LAWS

1. Advocate General v. Abraham George, 1975 SCC OnLine Ker 83.

2. Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago
1936 SCC OnLine PC 15.
3. Aswini Kumar Ghose, In re v. Arabinda Bose, 1953 SCR 215.
4. Baradakanta Mishra v. Registrar of the Orissa High Court, (1974) 1 SCC
374.
5. C.K. Daphtary v. O.P. Gupta, (1971) 1 SCC 626.
6. DDA v. Skipper Construction, (1995) 3 SCC 507.
7. Harijai Singh and re:Vijaykumar AIR 1997 SC 73.
8. Hira Lal Dixit v. State of U.P., (1955) 1 SCR 677.
9. In Re, PC Ren, AIR 1970 SC 1821.
10. Indian Express Newspaper v. Union of India , 1985 SCR (2) 287.
11.K.M Nanavati v. State of Maharashtra 1962 AIR 605.
12.Maneka Gandhi v. Union of India 1978 SCR (2) 621.
13.Mohammad Aslam v. Union of India, A.I.R. 1995 S.C. 548.
14.Om Prakash Jaiswal v. D.K. Mittal, (2000) 3 SCC 171
15.Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529.
16.R. v. Almon, 1765 Wilm 243.
17.Rajiv Choudhary v. Jagdish Narain Khanna, (1996) 1 SCC 508.
18.Re: Arundhati Roy, Contempt Petition (crl.) 10 of 2001.
19. Re: Hon’ble Shri Justice C.S. Karan, Suo Moto Contempt Petition (C) No. 1
of 2017.
20. Reg. v. Commr. of Police of the Metropolis, (1968) 2 QB 150.

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21. Reliance Petrochemicals v. Proprietors of Indian Express, 1989 AIR 190.

22.Rustom Cowasjee Cooper v. Union of India, (1970) 2 SCC 298.
23.Saibal Kumar Gupta v. B.K. Sen, 1961 AIR 633.
24.Shyam Singh v. State, 1973 Cri.LJ 441.
25. State (N.C.T. Of Delhi) v. Navjot Sandhu@ Afsan Guru, Appeal (Crl.)
373-375 of 2004.
26. State of Maharashtra v. Rajendra Jawanmal Gandhi, Criminal Appeal No.
840 & 839 of 1997.
27. State v. Kawas Manekshaw Nanavati 1960 CriLJ 1558.
28. The Gazette of India, Extra., Pt. II, S. 3(i), No. 287, dated 29-5-2014.
29.Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714.
30.Vishaka v State of Rajasthan, AIR 1997 SC 3011.
31.W.B. Administrative Tribunal v. S.K. Monobbor Hossain, (2012) 11 SCC
761.
32.Y. V. Hanumantha v. K.R. Pattabhiram AIR 1975 AP 30.
33. Zahira Habibullah Sheikh v. the State of Gujarat , Appeal (crl.) 446-449 of
2004.

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1. INTRODUCTION

The law of contempt of courts in India can be traced back to ancient times, as
reflected in the accounts of the Ramayana and Mahabharata. During this period,
courts were referred to as "sabha," and the presiding authority was known as the
"sabhapati." The sabhapati was responsible for the administration of justice in
accordance with the principles of dharma. Anyone who disparaged the decisions of
the sabhapati would be subject to punishment. This early form of the law of
contempt aimed to uphold the dignity and integrity of the sabha and sabhapati, but
it was not codified and varied across different empires and rulers. Due to its non-
codified nature, the meaning and interpretation of contempt differed according to
religious and dharma considerations.

Lawyers, who are at the forefront of defending the Constitution of India, require
protection as whistleblowers within the court system. The purpose of contempt is
to safeguard the institution and prevent interference in the administration of justice.
It is crucial to recognize that undermining the dignity of the institution or the
authority vested in judges is a significant concern. While legitimate criticism of a
court ruling is permissible, there is a clear boundary where criticism transforms
into abusive, irrational, and personal attacks on judges, thereby undermining the
integrity of the entire institution. In 1968, Lord Denning, the former master of rolls
in Britain, expressed his views on the law of contempt, stating that the jurisdiction
should not be used to uphold the dignity of judges or suppress those who criticize
them. Judges do not fear or resent criticism because something much more
significant is at stake—freedom of speech itself. Every individual, whether in
Parliament, the press, or through broadcasts, has the right to make fair and even

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outspoken comments on matters of public interest. Ultimately, our own conduct

should serve as the vindication of our actions.1

While it is commonly believed that the origin of contempt of courts in India can be
traced back to English law, India has developed this concept independently
throughout its history. In England, the Supreme Courts of Record had the power to
punish individuals who scandalized the courts or judges. This recognition of the
power to punish contemptuous behavior was affirmed by the judicial committee of
the Privy Council, which stated that the offense of contempt of court and the
powers of Indian High Courts to punish it were similar to those of the Supreme
Court in England. The first Indian statute specifically addressing contempt of
courts, known as the Contempt of Courts Act, was enacted in 1926.

1 Reg. v. Commr. of Police of the Metropolis, (1968) 2 QB 150.

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2. PENAL PROVISIONS

There are two types of contempt of courts- Civil and Criminal. Section 2(b)
provides for Civil contempt and Section 2(c) provides for Criminal contempt. The
bare act definition of them are- “Civil contempt” means wilful disobedience to any
judgment, decree, direction, order, writ or other process of a court or wilful breach
of an undertaking given to a court. “Criminal contempt” means the publication
(whether by words, spoken or written, or by signs, or by visible representation, or
otherwise) of any matter or the doing of any other act whatsoever which-

i. Scandalises or tends to scandalise, or lowers or tends to lower the authority

of, any court; or
ii. Prejudices, or interferes or tends to interfere with, the due course of any
judicial proceeding; or
iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner

Section 12 deals with Penal provisions. It says that a Contempt of Court may be
punished with simple imprisonment for a term which may extend to 6 months or
with fine which may extend to two thousand rupees, or with both. However, the
proviso is as an exception clause of the penal provision that says that the accused
may be discharged, or the punishment awarded may be remitted on apology being
made to the satisfaction of the Court. The explanation of the proviso says that an
apology shall not be rejected merely on the ground that it is qualified or conditional
if the accused makes it bona fide. However, there is no any distinction between
Civil Contempt or Criminal Contempt regarding the penal provision. It means
Section 12 applies in both the Contempt.

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Defenses to Civil Contempt

i. Lack of knowledge of the order.

ii. If act done by accident and not wilfully.

iii. If order passed by court was vague or ambiguous.

iv. If the compliance of the order is impossible

Remedies against an order of punishment

Section 13- Says that contempt of court cannot be punished under certain
circumstances-

(a) no court shall impose a sentence under this Act for a contempt of court
unless it is satisfied that the contempt is of such a nature that it substantially
interferes, or tends substantially to interfere with the due course of justice

(b) the court may permit, in any proceeding for contempt of court,
justification by truth as a valid defence if it is satisfied that it is in public
interest and the request for invoking the said defence is bona fide.

Contempt proceedings

Section 14- deals with the procedure of contempt of court proceeding in the face of
the court of record

Section 15- deals with the procedure of the contempt proceeding outside the court
of records.

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3. JUDICIARY ON CONTEMPT

The Supreme Court of India is having original and appellate jurisdiction regarding
such cases, so there are many occasions, our Supreme Court of India has thrown
the lights on this subject. Some cases are as such:

1. Mohammad Aslam Vs. Union of India2

As the Chief Minister could not protect religious property, it was treated as the
breach of the undertaking given by the court and was considered as a Civil
Contempt of Court. It reflects that the doctrine of rule of law prevails in India.

2. Re: Arundhati Roy3

The Supreme court held that fair criticism made in public interest and good faith
may not be considered as contempt of court

3. Re, Hon’ble Shri Justice C.S. Karnan4

The most reputed Justice of Indian Judiciary, in many occasions, made serious
allegations against other reputed Justices of Indian Judiciary and that was the
reason behind the filing of the case. As per Para 35 of the case, the allegations were
found to be defamatory and as per Para 36 it was treated as the contempt. It
suggests that rule of law prevails in India.

Initiating the Contempt proceeding

In India, a contempt proceeding could be initiated by following manners:

2 A.I.R. 1995 S.C. 548.

3
Contempt Petition (crl.) 10 of 2001.
4 Suo Moto Contempt Petition (C) No. 1 of 2017.

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i. Suo-motto proceeding initiated by the Court itself.

ii. Proceeding initiated by the Attorney General itself.
iii. Any person initiating the proceeding after the permission of the Attorney
General/Advocate General.
iv. Any law officer in relation to the Union Territory as specified by the Central
Government.

There are restrictions to file for the Contempt proceeding by any private person.
These restrictions are put to save Courts time from any frivolous complaints.

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4. OBJECTIVE

As per the observations of Justice Wilmot in R. v. Almon5 made as early as in 1765:

“… And whenever men’s allegiance to the law is so fundamentally shaken, it

is the most fatal and most dangerous obstruction of justice, and, in my
opinion, calls out for a more rapid and immediate redress than any other
obstruction whatsoever; not for the sake of Judges, as apricate individuals,
but because they are the channels by which the King’s justice is conveyed to
the people.”

The Contempt of Courts Act, 1971 was enacted on 24-12-1971 with the objective
of defining and limiting the powers of certain courts in punishing contempt of
court, as well as regulating the procedure in relation to contempt cases. The
jurisdiction of contempt enjoyed by the courts is solely for the purpose of
upholding the dignity and authority of the existing judicial system. In exercising
this power, the court should not be overly sensitive or influenced by emotions, but
rather act judiciously.6

The Act defines contempt of court under Section 2(a), which encompasses both
civil contempt and criminal contempt. Civil contempt, as defined under Section
2(b), refers to willful disobedience of any judgment, decree, direction, order, writ,
or other court process, or willful breach of an undertaking given to the court. On
the other hand, criminal contempt, defined under Section 2(c), includes the
publication (whether through spoken or written words, signs, visible
representation, or any other means) of any matter or the commission of any act that
scandalizes or tends to scandalize, or lowers or tends to lower the authority of any
5
1765 Wilm 243.
6 W.B. Administrative Tribunal v. S.K. Monobbor Hossain, (2012) 11 SCC 761.

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court; or prejudices, interferes with, or tends to interfere with the due course of any
judicial proceeding; or interferes with, obstructs, or tends to obstruct the
administration of justice in any manner.

Willful disobedience of a court order to perform or abstain from doing any act
constitutes civil contempt, where the court's power is invoked or exercised to
enforce compliance with its orders. On the other hand, criminal contempt is of a
criminal nature and includes acts such as defiant disobedience to judges in the
courtroom, outrages against judges during open court proceedings, libelous
statements targeting judges or courts, interference with the course of justice, or any
act that tends to prejudice the course of justice.7 A person is guilty of criminal
contempt when their conduct brings disrespect to the authority and administration
of the law or interferes with or prejudices litigants during legal proceedings.

To illustrate the concept of contempt of court, let's consider a scenario where the
impact of contempt is such that a common man loses faith in the judiciary. For
example, if a local MLA were to enter the courtroom and verbally abuse the court,
the respect that the common man would have for the institution may diminish. In
this case, the MLA effectively undermines an essential pillar of democracy.

7 DDA v. Skipper Construction, (1995) 3 SCC 507.

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5. CONSTITUTIONALITY

The law concerning contempt of court raises a complex issue as it potentially

intersects with two fundamental rights of citizens: the right to personal liberty and
the right to freedom of speech and expression. Differentiating between criticism
and vilification can be challenging. A fundamental principle of independence is
that one is free to do anything as long as it does not infringe upon the independence
of others. Similarly, in determining contempt, the distinction lies in whether it is
legitimate criticism or an attempt to degrade the integrity of the institution.

Article 129 of the Indian Constitution grants the Supreme Court the power to
punish for contempt of itself, while Article 142(2) empowers the Supreme Court to
investigate and punish any person for contempt. Article 215 confers similar powers
on every High Court. It is important to note that the power of the Supreme Court to
punish for its contempt does not stem from Section 15 of the Contempt of Courts
Act, 1971, but rather from Articles 129 and 142(2) of the Constitution of India.

The Supreme Court has emphasized the importance of contempt of court by stating
that the availability of an independent judiciary and an atmosphere in which judges
can act independently and fearlessly is crucial for the existence of civilization in
society. The court's commands must be obeyed, as the binding efficacy of court
orders and respect for them deter aggrieved individuals from taking the law into
their own hands. Any act or omission that undermines the dignity of the court is
viewed with concern by society, and it is the court's duty to vigorously protect
against any attack on its dignity.8

8 Om Prakash Jaiswal v. D.K. Mittal, (2000) 3 SCC 171

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The Supreme Court exercises this power to punish an act which tends to interfere
with the course of administration of justice. The following inter alia have been held
to constitute contempt of court9:

1. Insinuations derogatory to the dignity of the court which are calculated to

undermine the confidence of the people in the integrity of the Judges.

2. An attempt by one party to prejudice the court against the other party to the
action.

3. To stir up public feelings on the question pending for decision before court
and to try to influence the Judge in favour of himself.

4. An attempt to affect the minds of the Judges and to deflect them from
performing their duty by flattery or veiled threat.

5. An act or publication which scandalises the court attributing dishonesty to a

Judge in the discharge of his functions.

6. Wilful disobedience or non-compliance of the court’s order.10

In various cases, private parties who violated or defied Supreme Court orders have
been found guilty of contempt of court. For instance, a company that failed to
rectify deficiencies in its effluent treatment plant as ordered by the Supreme Court
was held in contempt, and a fine of Rs 5 lakhs was imposed on the company, with
the amount intended for the cleaning of the Gomti River.11 Similarly, an article in a
newspaper criticizing a Supreme Court decision, impugning the motives of the
judges and seeking to create an impression that extraneous considerations

9 Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529.
10 Rajiv Choudhary v. Jagdish Narain Khanna, (1996) 1 SCC 508.
11 Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714.

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influenced their decisions, was considered contemptuous by the court.12 The court
emphasized that if the impression were created in the public mind that judges in the
highest court decide cases based on extraneous considerations, public confidence
in the administration of justice would be undermined.

6. SUPREME COURT AND CONTEMPT OF COURT

Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court,
197513 outlines three ways to initiate contempt proceedings. First, the court can
take action suo motu (on its own accord). Second, the Attorney General or the
Solicitor General can file a petition. Third, any person can file a petition, and in the
case of criminal contempt, the consent of the Attorney General or the Solicitor
General is required. It is important to note that the Supreme Court of India, being
the supreme authority, possesses constitutional power to initiate contempt
proceedings against itself, and this power cannot be curtailed or eliminated by
legislative enactment.

While the Contempt of Courts Act, 1971 plays a significant role in governing the
law of contempt, it is established in India that the jurisdiction and power of the
Supreme Court and the High Courts derive from Articles 129 and 215 of the
Constitution of India. This situation raises concerns regarding potential "judicial
self-dealing." The Supreme Court has acknowledged that a scurrilous attack on a
judge, regarding a judgment or past conduct, inevitably undermines public
confidence in the judiciary. If confidence in the judiciary is eroded, the
administration of justice will undoubtedly suffer.14

12 Aswini Kumar Ghose, In re v. Arabinda Bose, 1953 SCR 215.

13 The Gazette of India, Extra., Pt. II, S. 3(i), No. 287, dated 29-5-2014.
14
C.K. Daphtary v. O.P. Gupta, (1971) 1 SCC 626.

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7. PUSHING THE BOUNDARIES

The intersection between freedom of speech and expression and contempt of court
can be complex and delicate. When it comes to scandalizing a judge, it is essential
to distinguish between criticism of a judge as a judge and vilification of a judge as
an individual. If the vilification is directed at the judge as an individual, the court
does not possess the power to punish for contempt, and the judge is left to pursue
private remedies. However, if the vilification targets the judge as a judge, the court
may exercise its jurisdiction with careful consideration, particularly in cases that
are clear and beyond reasonable doubt.15

A distinction is made between a mere defamatory attack on a judge personally,

which is not actionable, and conduct that amounts to a contempt of court. The latter
becomes punishable when it is calculated to interfere with the due course of justice
or the proper administration of law by the court. Alternatively, the test is whether
the wrong is done to the judge personally or to the public. Fair, reasonable,
temperate, and legitimate criticism of the judiciary or the conduct of a judge in
their judicial capacity is permissible. Contempt of court exists to protect the
institution and prevent interference in the course of justice. Undermining the
majesty of the institution or the authority vested in judges is a significant concern.
Criticism of a ruling is permissible, but crossing the line into abusive, irrational,
and personal attacks on judges undermines the integrity of the entire institution.
That is where the boundaries of freedom of speech end. Anything that undermines
the institution rather than criticizes it goes beyond legitimacy.16

15
Baradakanta Mishra v. Registrar of the Orissa High Court, (1974) 1 SCC 374.
16 Rustom Cowasjee Cooper v. Union of India, (1970) 2 SCC 298.

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In the case of Andre Paul Terence Ambard v. Attorney General of Trinidad and
Tobago17, it was stated that members of the public have the right to criticize in
good faith, both privately and publicly, the public acts carried out in the seat of
justice. As long as criticism is genuine, respectful, and not motivated by malice or
an attempt to impair the administration of justice, individuals are immune. Justice
is not a virtue confined to secrecy; it must endure scrutiny and even outspoken
comments from ordinary people. Section 5 of the Contempt of Courts Act states
that fair and reasonable criticism is not considered contempt of court. A person
shall not be guilty of contempt for publishing fair comments on the merits of a case
that has been heard and finally decided.18 Judgments are open to criticism, as long
as it is done without casting aspersions on judges and courts and without making
adverse comments that amount to scandalizing the courts. Actual interference with
the administration of justice is not necessary; it is sufficient if the offending
publication is likely to interfere or tends to interfere with the proper administration
of law.19

Regarding the withdrawal of a contempt petition, it is not an automatic right of the

petitioner. The matter primarily involves the court and the contemnor, and it is at
the court's discretion to allow or refuse withdrawal based on the overall facts of the
case and whether granting or refusing withdrawal would enhance or diminish
respect for the judicial process. The court must determine whether the act
complained of, if viewed with severity and punished, would ultimately enhance
respect for the judicial process in the larger interest of society, or if an overly

17 1936 SCC OnLine PC 15.

18 Hira Lal Dixit v. State of U.P., (1955) 1 SCR 677.
19 Advocate General v. Abraham George, 1975 SCC OnLine Ker 83.

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sensitive approach in such matters may become counterproductive. The power to

commit for contempt of court must be exercised with utmost caution.20

8. MEDIA TRIAL: IMPACT ON SOCIETY AND COURT OF LAW

The law is made by the legislative, executed by the executive and interpreted by
the judiciary. These three organs form the basis of democracy is also a major part
of the law-making and implementation process. The process of punishing the
lawbreakers and the duty to prevent such crimes from happening falls on the
shoulder of these three organs as well as the Media. Media can be either print or
electronic. It is the fourth pillar and an essential part of a democracy. It is the
source through which the public at large is made aware of the happenings
throughout the country. The role of media is not limited to feeding the information
but also to bring about the perspective of various sects, societies, scholars,
politicians, students, etc. They hold various panels, discussions, debates etc. to put
the acts of other organs through public scrutiny. This assessment helps the people
as well as laws to be developed accordingly. These panels are generally attended
by the persons who influence masses and their views and perspective have an
effect on the perception of an individual. The role of media over society is quite
sensitive as people have placed trust and reliance over the media regarding the
information fed to them. This power of media is often left unchecked and
unfettered. Media can gather and present information by leaning towards one side
instead of playing a neutral role of an information source.

20 Contempt of Court, available at:

https://www.scconline.com/blog/post/2021/10/09/contempt-of-court-2/ (Visited on 28 May
2023).

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Media Trial means reporting a case that is likely to prejudice the right of fair trial
of the victim as well as the accused.21 Judicial proceedings are no stranger to the
scrutiny and interference of the media. Media has an impact on the Judges,
Lawyers and Parties to the case. The Supreme Court in PC Sen (in re)22 held that
the justice administration system was interrupted by the speech of the Chief
Minister covered by the media. Also, in Saibal Kumar Gupta v. B.K. Sen23 held that
the trial by newspaper will be mischievous and obstructive of trial in a court. It is a
far fetched and idealistic notion that judges will be free from any influence by the
media because of their stature. The judges are given a position on which they are
assumed to be of higher intellect and free from all sorts of influences and biases. It
will be unrealistic to assume such isolation from media as the judges are human
beings after all.24 Media also plays an essential role in influencing the masses
which in turn affects the judgment of the court. The influence of media has both
negative and positive impacts but both, in turn, interfere in the justice delivery
system. The influence of people on the Judiciary can be seen in the cases of Afzal
Guru, Nirbhaya, Triple Talaq, Ramlila Maidan Protest, 2G Scam etc.

The principle of natural justice says that justice should not be done it hold seem to
be done. This prince could be interpreted in a way that the public should be
satisfied with the decision of the court. The will and consciousness of the people
have to be considered while giving out a judgment otherwise it will be against
natural justice. Media has the power to influence the masses by changing their
perspective and the court has to consider the will of the people. This influence and
diversion injustice system from fair justice is a result of the Media Trial.

21 Shyam Singh v. State, 1973 Cri.LJ 441.

22 AIR 1970 SC 1821.
23 1961 AIR 633.
24 Reliance Petrochemicals v. Proprietors of Indian Express, 1989 AIR 190.

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9. THE ERA OF SOCIAL MEDIA

In the last decade, we have seen a huge rise in the use of social media and an equal
rise in journalism. The use of social media platforms such as Twitter, Facebook etc
has increased significantly. Many individuals have taken upon themselves to be the
voice of the people and start their journalism pages. This rise of social media
journalism has also influenced many others to start up their journalism contrary to
established sources like newspapers or channels. They have shifted towards
websites, social media pages, groups on messenger apps to circulate and reach as
many people as possible. With this rise in the consumption of news from social
media, the risk of fake news has also increased. Fake news starts from an eye-
catchy tagline that gets forwarded without any verification or based on facts taken
out of context. This sudden increase in unverified news has led to various
problems. Amidst all this, few startups have come out and kept them away from
being associated with fake news. Credibility and accountability are a major part of
forming a trustworthy source and increasing the consumption of news from these
sources. The Traditional news sources have often presented circumstances in such
a way that has led people to believe in one direction however when the contrary
has been proved there is no accountability for the damage to the reputation of that
person.

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10. FREEDOM OF SPEECH V. RIGHT TO FAIR TRIAL

Media works freely under the freedom of speech and expression guaranteed to
them by the Constitution of India in article 19. This has also been reassured by
various international instruments. Article 19(2) of the International Convention on
Civil and Political Rights25 says,

“Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or print, in the form of
art, or through any other media of his choice”

It was also declared as a human right in the Universal Declaration of Human

Rights under article 19 which says,

“Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless of
frontiers.”

In Indian Express Newspaper v. Union of India,26 the court inferred the freedom of
the press as an integral part of our system. Freedom of the press is also considered
to be the mother of all liberties.27 Freedom and Independence of the press have led
to various reformations in the field of law. The amendment in criminal law after
the Nirbhaya Incident is the product of the activism of media. The Rafael Deal, 2G
Scam, Bank Nationalisation Case, Triple Talaq, Sabarimala Temple, etc. These
issues have been brought forth in light of Justice because of the exposure brought
25 UN Doc E/CN.4/1985/4.
26 1985 SCR (2) 287.
27 Harijai Singh and re:Vijaykumar AIR 1997 SC 73.

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by media. However, the freedom of speech and expression conflicts with the right
to fair trial and non-interference in the criminal justice system.

As per article 6 of the Basic principle of the independence of the judiciary28 which
says,

“The principle of the independence of the judiciary entitles and requires the
judiciary to ensure that judicial proceedings are conducted fairly and that
the rights of the parties are respected.”

It has also been reaffirmed in the form of article 14 of the International Covenant
on Civil and Political Rights which has been acceded by India in April 1979 which
says,

“All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law.”

The right to fair trial and freedom of expression are in constant conflict with each
other. It is the right of the public to know about the developments in the judiciary
to keep the system transparent. The public relies on the media as a reliable source
of information that will provide them with insights and a new perspective of the
situation. To be ahead of the competition publication of any new information is
necessary. To increase the TRP of the show new information or a different angle
needs to be put forth. This is done with the interview of the witness, victim,
relatives, lawyers, etc. These testimonies are not per the rule of law, and they are

28 UNGA Res. 40/32 of 29 November 1985.

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often rigorously cross-checked due to differences in multiple testimonies given by

them. The court in its decision said,

“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.”29

In the 21st Century, there is a visible shift towards internet usage and an increase in
the consumption of information from social media. This increase in social media
and networking has led to an increase in the concept of ‘Breaking News’ and
‘Viral’ content. It is a common understanding of this century that to make their
case important it must cross the threats hold of ‘Breaking News’ otherwise it won’t
be covered and will be left untouched by the masses. This has led to an
insignificant increase in fake news and loss of credibility of evidence presented in
the court of law. The power to decide the importance of any case lies in the hands
of the media and they are indirect stakeholders in what should be the focus of the
nation. This increase is at the cost of trust in the Judicial System. It has become a
common notion that if a case has to be dealt with especially it must be through the
hands of media. The press conference of Afzal Guru held by DCP Ashok even
before the matter was heard by the court forcing him to confess of crime which has
not been proven by the court has opened a floodgate towards reliance on media
than court.30 The use of media is not limited to police officials. The press

29 Y. V. Hanumantha v. K.R. Pattabhiram AIR 1975 AP 30.

30 The hanging of Afzal Guru is a stain on India's democracy, available at:
https://www.theguardian.com/commentisfree/2013/feb/10/hanging-afzal-guru-india-democracy
(Visited on May 28 2023).

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conference conducted by four Supreme Court judges also shows the importance of
media in conflict with the judiciary.31

11. DUTY OF MEDIA IN MEDIA TRIAL

It is the duty of media that instances of ‘Media Trial’ should be curbed at the initial
stage and should not lead to any infringement in the procedure of the executive and
judiciary. The duty of declaring the accused guilty or innocent lies in the hand of
the judiciary. The presumption of media and holding the person liable for certain
acts directly or indirectly curbs the right of a fair trial as he is already judged in the
eyes of law and his reputation has suffered. The instances of ‘Janta Adalat’ (Court
of People) does not follow any law and the facts and so-called evidence presented
are assumptions or unreliable sources. There is a presumption of innocence in the
legal system which should not be violated to conduct a fair trial.32 The Hon ‘ble
Supreme Court in the case of Zahira Habibullah Sheikh v. the State of Gujarat33
has held,

“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.”

The trial by media leads to damage of the person accused as the media has already
tried him to be guilty which if not proven by the court will leave a dent in the
reputation of the person. Since there is almost zero liability or accountability of
media houses concerning the news covered the damage is done with no remedy in
sight. The consequence of media trials is the lack of trust in the judicial system.
31 Four SC judges air differences with CJI Misra, available at:
https://www.thehindu.com/news/national/four-sc-judges-air-differences-with-cji-misra/article224
32428.ece (Visited on May 28 2023).
32
Maneka Gandhi v. Union of India 1978 SCR (2) 621.
33 Appeal (crl.) 446-449 of 2004.

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People are scared and worried about the constant line of questioning by the court,
lawyers, police, doctors and media leads to mental torture and agony, especially if
the case is sensitive. In Saibal Kumar Gupta v. B.K. Sen34, the Supreme Court held
that the interference of trial by newspaper will be mischievous and obstructive of
trial by a court of law. Also, In State of Maharashtra v. Rajendra Jawanmal
Gandhi35, the Supreme Court observed,

“A trial by press, electronic media or public agitation is very antithesis of

rule of law. It can well lead to miscarriage of justice. A judge has to guard
himself against any such pressure and is to be guided strictly by rules of
law.”

34 1961 AIR 633.

35 Criminal Appeal No. 840 & 839 of 1997.

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12. INFLUENCE OF MEDIA IN HANGING OF AFZAL GURU

Afzal Guru was accused today be part of the conspiracy of waging a war against
the state. The case immediately made National News and was heavily covered by
all sorts of media. The influence of media over the people could be seen when ‘The
Pioneer’ reported Afzal Guru to be one of the shooters at the parliament. This
serious allegation on Afzal was not mentioned in the charge sheet of the police.
Was the case of Afzal Guru, where there was no direct evidence, under the ambit of
‘Rarest of the Rare Doctrine’? The court said36,

“The incident, which resulted in heavy casualties, had shaken the entire
nation and the collective conscience of the society will only be satisfied if the
capital punishment is awarded to the offender.”

The court also mentioned that the sovereignty, unity and integrity of the nation can
only be compensated by giving maximum punishment to the offenders.37 The court
added that the appellant is a surrendered militant who is bent upon committing
treacherous acts against the state and he is a menace to society and his life should
become extinct.38

The collective conscious which the court referred to repeatedly was the will of the
people manipulated through the use of media. Afzal was hanged on 9th February
2013 when his mercy petition was rejected on 3rd February 2013. This was not in
compliance with the rule of notification of execution at least 14 days earlier. The
family of Afzal Guru was not informed of his execution which was asked and
stated by the court. His family was informed through a post that reached them after

36 State (N.C.T. Of Delhi) v. Navjot Sandhu@ Afsan Guru, Appeal (Crl.) 373-375 of 2004.
37
State (N.C.T. Of Delhi) v. Navjot Sandhu @ Afsan Guru, Appeal (Crl.) 373-375 of 2004.
38 Id.

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his execution39. The remains of Afzal were not given to the family for a proper and
religious burial violating the right to religion of the family as well as their tradition.

This whole incident was heavily influenced by media as the then DCP Ashok
Chand conducted a press conference of Afzal Guru, forming him to confess in
front of the whole world. All this took place before the court hearing. After an
inquiry by High Court and Supreme Court Ashok refused of conducting any
conference. He was found to be guilty of contempt of court and lying under oath.
This violated the right to a fair trial of Afzal Guru. The consequence of such a
media trial is not limited to Afzal and his family, Ram Jethmalani Malani’s office
was ransacked by a mob after he declared to handle the case40. This case was
heavily influenced and under the control of the media. The selective nature and
inclination of the Media of picking certain cases which will create uproar have led
to injustice many times. The assassins of Late Rajiv Gandhi are still alive and not
treated in the same way as Afzal wherein allegations on Afzal were of being a
party to a conspiracy in which there was no direct evidence. On the other hand, the
assassins of Rajiv Gandhi are still alive and not put through the same treatment
even when they have taken the life of a Prime Minister41. The recent case of
Devinder Singh is also under the same banner of selective bias and ignorance of

39 The hanging of Afzal Guru is a stain on India's democracy, available at:

https://www.theguardian.com/commentisfree/2013/feb/10/hanging-afzal-guru-india-democracy.
(Visited on 28 May 2023).
40 Nandita Haksar, Afzal’s Story, available at:
https://www.outlookindia.com/website/story/afzals-story/232712. (Visited on 28 May 2023).
41 Rajiv Gandhi assassination case: Centre, Tamil Nadu government oppose Nalini’s plea,

available at:
https://www.thehindubusinessline.com/news/national/rajiv-gandhi-assassination-case-centre-tami
l-nadu-government-oppose-nalinis-plea/article30878099.ece. (Visited on 28 May 2023).

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media42. He was caught with militants and was caused for the same by Afzal
Guru43 and yet there is no “threat to society”.

13. SELECTIVE BIAS OF MEDIA

As mentioned above we can see that there is nexus in what deems to be worthy of
breaking news. A Muslim Kashmiri who has been accused of attacking parliament
in 2003 is hanged without any direct evidence to satisfy the collective
consciousness of the people because of the influence and pressure created by the
media. On the other hand, a former Prime Minister’s non-Muslim killers are still
alive and allowed more than enough time to file multiple mercy petitions. It is
grave failure and discrimination on the part of our Judiciary, Executive and
Legislature.

A similar trend is also visible in the case of Vishaka and Nirbhaya case. In Vishaka
v State of Rajasthan44, a 35–40-year-old woman was working in a village of
Rajasthan was gang-raped. After this incident, a group of NGOs came together and
filed a petition in Supreme Court which lead to the Vishaka Guidelines on Sexual
Harassment at Workplace in 1997 which became an act in April 2013. In Nirbhaya
case, the victim was a young girl who lives in a metropolitan city and belongs to a
good family. The unfortunate incident took place in 2012 which lead to a massive
uproar in media as well as society which forced the hand of the government into

42 NIA failed to nab Pulwama attack culprits, shielding Davinder Singh: Mehbooba Mufti,
available at:
https://economictimes.indiatimes.com/news/defence/nia-failed-to-nab-pulwama-attack-culprits-s
hielding-davinder-singh-mehbooba-mufti/articleshow/74135230.cms?from=mdr. (Visited on 28
May 2023).
43
Id. At 24.
44 AIR 1997 SC 3011.

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making the Vishaka Guidelines an act in 2013 and amending the Juvenile Justice
Act in 2015.

The changes made after the 2012 incident were already suggested in the J.S. Verma
committee, Vishaka Guidelines and various other judgments and commissions
which were ignored by the media as well the legislators. The ignorance of proper
amendments which are the need of the hour sets out a bad precedent. This gives
more power to the media by taking that away from the judiciary and legislators.
The amendment and act were formulated only after the 2012 incident which was
due to massive backlash and protest against the government.

It is essential to focus on why certain cases get exposure and others are left
untouched by media. It is necessary to make people aware of the flaws of the law
so that they can cast their valuable votes to the leader who will work to remove
such flaws from our system. The cases like Nirbhaya and Dr Reddy makes national
news that makes people aware because of the use of the words like a student,
innocent, good family, etc. The notion of the ‘good victim is the basis on which the
media works to choose the news. The victim shouldn’t be involved in any activity
which is not socially acceptable. The media doesn’t cover many other important
cases which are as heinous as others, but they don’t fall under the criterion of
‘good victim’. In the year 2018, a total of 33,977 cases were reported for Rape
alone45. The news reported by the media doesn’t cover a major part of the numbers
of the cases reported as they are from rural areas. These areas stay hidden from the
development and measures that could be taken to prevent and avoid such instances
by not being reported and given equal importance in media46

45 National Crime Records Bureau, Crime in India (2018).

46 The Media Has A Huge Urban Bias In Reporting Gender-Based Violence, available at:
https://feminisminindia.com/2020/02/20/media-urban-bias-gbv/.(Visited on 28 May 2023).

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14. COMMUNAL EFFECT OF MEDIA TRIAL

In Mid-March of 2020, a religious event was supposed to take place in Nizamuddin

Markaz for Tablighi Jamaat. However, due to Covid-19 restrictions, the event was
scrapped out and various people who could leave before the lockdown emptied the
premises but due to travel restrictions, a large group of people was unable to vacate
the premises. Few individuals tested positive for Covid-19 which led to panic
throughout the nation which led to various news outlets covering the issue.47
However, instead of handling the sensitive nature of the matter major news
channels started to broadcast the news from a communal angle. The news channels
alleged the meeting to be the main cause of the spread of the virus throughout the
nation. These allegations led to various petitions filed against the Jamaat as well as
various acts of violence throughout the country.48

Another important factor is the use of social media to spread and conduct media
trials. Within the last couple of years, there have been various instances where the
news circulated through platforms such as WhatsApp, Facebook, Instagram etc.
have been found to spread fake as well as doctored to incite violence.49 The
circulation of fake news read with the portrayal of the incident by News Channels
directs people to think one-dimensionally without any scope for other
interpretations. Bombay High Court in a judgment on Jamaat said that there was

47 Tablighi Jamaat men India held for ‘spreading COVID’ share ordeal, available at:
https://www.aljazeera.com/news/2021/3/25/tablighi-jamaat-members-held-for-spreading-covid-st
uck-in-india. (Visited on 28 May 2023).
48 Zainab Sikander, Islamophobia in Indian Media, 6 Islamophobia Studies Journal 120 (2021).
49 Quashing of FIRs against Tablighi Jamaat foreign nationals: Justice Sewlikar gives reasoning

for the judgment; Differs on observations of malice in State action, available at:
https://www.scconline.com/blog/post/2020/08/31/bom-hc-quashing-of-firs-against-tablighi-jama
at-foreign-nationals-justice-sewlikar-gives-reasoning-for-the-judgment-differs-on-observations-o
f-malice-in-state-action/.(Visited on 28 May 2023).

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visual persecution of the jamaat members and they were made into a scapegoat for
covid-19 spread.

The contention from the State was that the foreign nationals violated Covid
Protocols as well the condition under which the visa was allowed. Pertaining to the
Visa question the court held that there is no restriction in attending religious places
and should not lead to any violation of rules.50

Various courts throughout the nation have acquitted the people who were arrested
through the FIR filed against the Tablighi Jamaat issue. Delhi Court while
acquitting 36 foreign nationals said that there is no iota of proof that order under
sec 144 was brought to their notice.51 Madras High Court discharged 31 foreign
nationals as there was no evidence that they contributed or maliciously spread the
novel coronavirus.52 Bombay High court noted that allowing the prosecution to
continue would be nothing but an abuse of process of the court. Throughout the
nation, various courts have acquitted members of Tablighi jamaat as there was no
evidence to suggest any violation of rules.53 The state was unable to provide the
evidence under which they have kept the members under trial for months after
stripping them off their passports and personal liberty.

50 Criminalised By Govt, Cleared By Courts: The Tablighi Story, available at:

https://www.article-14.com/post/criminalised-by-govt-cleared-by-courts-the-tablighi-story.
(Visited on 28 May 2023).
51 Tablighi Jamaat- Possible That They Were Picked Up From Different Places & 'Maliciously

Prosecuted': Delhi Court Acquits 36 Foreigners, available at:

https://www.livelaw.in/news-updates/tablighi-jamaat-delhi-court-acquits-36-foreigners-malicious
ly-prosecuted-nizamuddin-markaz-188-ipc-167310. (Visited on 28 May 2023).
52 Foreigners Have 'Suffered Enough'; Have Right To Return To Their Native Country At The

Earliest : Madras HC, available at:

https://www.livelaw.in/top-stories/tablighi-jamaat-foreigners-have-suffered-enough-have-right-to
-return-to-their-native-country-madras-hc-158369. (Visited on 28 May 2023).
53 Criminalised By Govt, Cleared By Courts: The Tablighi Story, available at:

https://www.article-14.com/post/criminalised-by-govt-cleared-by-courts-the-tablighi-story.
(Visited on 28 May 2023).

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Under the constitution article 19 which guarantees various freedom including

freedom of movement is not available to foreigners but article 25 along with
articles, 20 and 21 comes into play for protection and fair trial. These instances
prove that pressure put on police officials from political groups as well as media
channels leads to improper investigation which leads to harassment of an innocent
individual. The principle “innocent until proven guilty” loses its meaning when that
individual is put on a public platform and stripped of their dignity without any
evidence. The “Media trial” has been shunned upon by various courts for many
years. Various courts have agreed that public trial conducted by news channels
hamper the evidence, coerce the witness, harms the dignity and privacy of an
individual as well as disrupts the working of the courts.

15. TWITTER AND CONTEMPT

Previously, the Supreme Court of India overturned a Punjab and Haryana High
Court order that convicted an advocate and sentenced him to one month's
imprisonment for criticizing a High Court Judge on Facebook. This case was
presided over by Justice Katju. Interestingly, after retiring, Justice Katju himself
faced contempt of court charges for a blog post in which he criticized Supreme
Court judges. This case was heard by a bench headed by Justice Gogoi. These
instances highlight that online platforms, including social media, can be considered
as mediums for committing contempt of court.

In recent times, the Supreme Court has acknowledged the role of social media,
including platforms like Twitter, in the context of contempt of court. Twitter allows
posts with a maximum character limit of 280. Any tweet within this limit that
scandalizes or undermines the authority of the court, prejudices the due course of

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judicial proceedings, or interferes with the administration of justice can be

considered contempt of court.

In the case of Prashant Bhushan, the Supreme Court held the advocate liable for a
tweet he made regarding the Supreme Court and the Chief Justice of India. Another
incident involved stand-up comedian Kunal Kamra, who made several tweets
about the Supreme Court. Law students and advocates approached the Supreme
Court to initiate contempt proceedings against Kunal Kamra, and the Attorney
General received multiple letters seeking permission for such proceedings, most of
which were granted.

More recently, a webcomic creator named Rachita Taneja faced a contempt

proceeding for a tweet in which she depicted the Supreme Court as biased towards
journalist Arnab Goswami. The court is yet to decide whether this post constitutes
scandalizing the institution.

In the United Kingdom, publicly commenting on a court case on social media that
could influence the case or interfere with a fair trial is considered contempt of
court. Former Attorney General of the United Kingdom, Domini Griever, warned
that publicly tweeting opinions about courts that satisfy the elements of contempt
can lead to contempt of court charges. Billionaire Elon Musk once faced a
contempt proceeding for a tweet, although the court did not press charges against
him. In conclusion, it can be stated that if a tweet satisfies the elements of
contempt, it can lead to contempt of court charges.

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16. CONCLUSION

In the case of Andre Paul Terence Ambard v. Attorney General of Trinidad and
Tobago54, Lord Atkin expressed the view that justice should not be shielded from
scrutiny and should be open to respectful and even outspoken comments from
ordinary individuals. In the marketplace of ideas, criticisms of the judicial system
or judges should be welcomed as long as they do not hinder the administration of
justice. However, there is a fine line between criticism and vilification, and it is
important to know where to draw the line. While individuals have the right to
freedom of speech and expression, they also have a duty to uphold the dignity and
integrity of the institution. Freedom of speech and expression is not an absolute
right and can be restricted if someone exceeds the permissible limits set by the law.

The role of media is very essential to maintain law and order in society and crime
prevention. The Constitution of India and Law are living bodies that are evolving
as the need of society. The 200th Law Commission in its report has stated various
forms of conduct by media that infringes on the justice system. These include an
interview of witness, victim & accused; photos & videos of the event;
characterization of the parties and premature publication of evidence. These
hamper the proceedings of the court which leads to failure of the justice system and
democracy.

There should be a certainly reasonable restriction placed on the working of the

media to preserve the integrity of the courts. In the present time of fake news and
increasing, social media using the responsibility and credibility of the information
put forth by the media should be increased. To curb pre-trial publicity, the court
can:
54 Ibid at 15.

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● Limit the interference of press in court procedure,

● Increase the protection and insulation of the witness from the media to
maintain credibility,
● The court can make efforts to control the relapse of information and gossip
by witnesses, lawyers, police officers or court officials.
● A neutral covering of the entire case without bias.

The most common consequence of any media trial is the presumption of guilt
which leads to people believing that the person is guilty, and his reputation has
been tampered even if he is acquitted by the court. To prevent this, reporting of any
case should be made purely from a neutral standpoint which doesn’t lead to people
forming any biases towards and person and having complete faith in the judiciary
system. If some event still leads to such a conclusion the media houses should
clarify and help in repairing the damage to his reputation.

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17. BIBLIOGRAPHY

PRIMARY SOURCE
A. Legislations

1. Indian Contracts Act, 1872.

2. Constitution of India, 1950.
3. Civil Procedure Code, 1908
4. Criminal Procedure Code, 1860
5. Universal Declaration of Human Rights, UN Doc E/CN.4/1985/4.
6. Basic principle of the independence of the judiciary UNGA Res. 40/32 of 29
November 1985.

SECONDARY SOURCE

A. Websites

1. www.lexology.com
2. www.mondaq.com
3. www.scconline.com
4. www.theguardian.com
5. www.thehindu.com
6. www.bbc.com
7. www.outlookindia.com
8. www.thehindubusinessline.com
9. economictimes.indiatimes.com
10.feminisminindia.com

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11.www.jurist.org
12.www.lexology.com
13.ijlpp.com
14.www.aljazeera.com
15.www.article-14.com
16.www.livelaw.in

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