Media trials in India have become more common than one would imagine; what started as a benign form of investigative reporting have spread like a wildfire of fake news and speculation. Therefore, these media trials invalidate legitimate media reporting by casting a shadow of unverified claims and generalisation. Ishita Singh and Harsh Bhargava present the predicament of media trials and how they could weaken judicial decision-making and democracy. They offer the essential historical point that marks the beginning of media trials in India and the world, presenting various principles that allow spaces for egalitarian reporting.
By Ishita Singh and Harsh Bhargava. Ishita is a first-year law student of the Rajiv Gandhi National University of Law, Patiala. Harsh is a law student.
Media touches the lives and minds of the entire country. It influences us to the extent of how we perceive the world. Over the past few years, media presents itself through various mediums, thus exerting greater power over people’s minds.
The Vice President of India, Shri M. Venkaiah Naidu, remarked,
“The strength of a democracy depends upon the strength of each pillar and the way the pillars complement each other. Any shaky pillar weakens the democratic structure.”
Unfortunately, Indian media, in particular, has deviated from reporting facts and is slowly taking upon itself to mimic court proceedings in a newsroom. The same is seen more often in media coverage of cases that generate high public interest.
The Indian media’s coverage is intended to increase ratings and viewers rather than improve people’s understanding of the justice system and the case. Thus, affecting court trials.
It often adds an emotional quotient to gain viewers and TRP to remain forward in the present cut-throat competition in society. Protracted debates and discussions run purely based on speculation, harming the interests of the accused and witnesses.
In rapes and sexual offences, media almost always turns acerbic, often disclosing survivors’ identity and information.
This paper will analyse how media trials in India gained popularity here and in other western countries. Next, it will analyse the legal aspects of media trials in India and internationally. Finally, it discusses how media trials affect the accused, victims and influence public sentiment.
How Media Progressed and Eventually Regressed toward Media Trials in India
Media has evolved from print to digital. Pre-independence India had no constitutional or statutory provision to guarantee freedom of press. The colonial government controlled the functioning and liberty of the media. Even after independence, the Indian Constitution did not explicitly mention press freedom; rather, it was understood and interpreted as a derivative of Freedom of Speech and Expression guaranteed under Article 19(1)(a) of the Indian Constitution.
Only in 1978, the Press Council of India (PCI) got established to preserve press freedom and nourish and improve the standards of newspapers and news agencies in India. But the preservation didn’t last for long.
For a long time now, press freedom has been extensively misused by the Indian ‘mainstream’ media industry. No one can deny that media is essential in influencing and forming opinions for the people. Still, media trials often misuse their power to influence and freedom of speech and expression.
Ethically, media trials misappropriate the right to free speech, breaching the limits of model code and conduct. Legally as well, these trials meddle with court proceedings, thereby interfering in the process of judicial courts. Most cases at the centre of media trials are a function of rumours and blatant lies, which have no value and only add to eyeballs.
These stories only work to influence the public’s minds, as the latter consent to the presupposed opinions fed by the media.
The Priyadarshini Matto case (2006) marks a crucial point wherein the media became explicitly invasive and blatantly conducted its own trial. In this case, a law student was raped and murdered. Media trials can surmise the judgment. 
Throughout the investigation in the Matto case, the legal kept interfering with the social and vice-versa. In the end, the case eventually died down after much uproar, but it is often brought back in the mainstream when it’s convenient.
Here, the Bhima-Koregaon case is a classic and more contemporary example.
Following the Bhima Koregaon violence that erupted in Maharashtra, the Maharashtra police arrested a few activists who were part of an event organised a day before the violence occurred. The event was called Elgar Parishad. The police later alleged that those present at the event were responsible for the violence and had links with the Maoists.
Meanwhile, the Indian media went berserk on conducting loud newsrooms proceedings.
Regarding the case, the Bombay High Court, chastising the leaking of letters, came to the rescue.
The Court also questioned the fairness of the investigation. The Hon’ble Court held,
“The use of electronic media by the investigating arm of the state which did the task of influencing public opinion during the pendency of the investigation completely subverts the fairness of the investigation.”
In the same light, the Noida Double Murder case (2008) is another example of the media’s exceeding its bounds. The murder of Aarushi Talwar and Hemraj Banjade aroused a lot of interest from the public as the girl’s parents were accused of double murder. The case was riddled with speculations and rumours, and the media left no stone unturned in using it to their advantage.
Apart from conducting trials, most of the Indian media played as investigators, annihilating the privacy of a teenage girl. The media also spun a narrative that the parents saw the girl and housekeeper in a ‘compromising position’.  The Indian media had invaded the personal details of the deceased, maligning the accused and victims. While the Court had released the couple owing to insufficient evidence, the media had already declared them murderers.
Many questioned the sensational media coverage, which included salacious charges against Aarushi and the perpetrators, as a media trial.
These false trials by media primarily focus on high-profile cases as people dig gossip, especially if a well-known person is involved. And ‘investigating’ such cases keep viewers hooked to them. Media trials often ignore facts, evidence, fair trial, and most importantly, the judiciary’s role. And often, the media have no qualms in telecasting reports comprising invasion of privacy, defamation and false evidence that are inappropriate and unfair.
Does the Indian Law Proscribe Media Trials?
Media trials have the potential to threaten the principle of natural justice and the accused’s right to be considered innocent until proven guilty.
Every accused person has the right to a free and fair trial and necessary legal aid. But, for financial gains, media houses sensationalise the news to fascinate and thrill the audience. And the same can affect judicial decision making as well.
Freedom of speech does not grant the right to speak or publish anything one wishes. It does not confer absolute and unbridled immunity from responsibility to one’s actions and freedom to interfere and manipulate the legal proceedings and incite popular opinion among the public with baseless arguments.
Section 2 of the Contempt of Courts Act, 1971 defines criminal contempt. It includes publication of any matter which prejudices or interferes in any way in the judicial proceedings or administration of justice.
However, this doesn’t mean that there should be strikes on media coverage, especially if such coverage pertains to judicial or legislative criticism. Since the Act itself states that any publication that does not interfere with ongoing legal proceedings and is based on fair criticism of the judgement of the case does not amount to contempt.
Invasion Of Privacy By Media
It is nearly impossible to catch an all-exhaustive meaning of privacy. However, we need to analyse privacy from the standpoint of its invasion to formulate a definition.
Invading someone’s privacy can be defined as ‘a situation in which someone fails to respect a person’s right to keep certain personal information from being known’; it is an unjustifiable intrusion. And Advancing technology has facilitated such invasion in a lot more ways than one can imagine.
The right to privacy is granted to every individual irrespective of their caste, creed, religion or gender and sexuality. Privacy became a fundamental right after the Supreme Court gave a historic judgment, K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors, 2018
On August 24, 2017, a nine-judge bench unanimously held:
“[t]he right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
Clause 1(a) of Article 19 guarantees all citizens the freedom of speech of expression.
In 2015, in challenge to the national identity project, the Aadhar framework, the question was posed as to whether privacy is a fundamental right. 
The Attorney General of India argued that although privacy had been discussed in several Supreme Court decisions, it was not legally guaranteed. The Court held that the right to privacy is very much embedded in the right to freedom and the right to life and personal liberty and is not independent of the other fundamental rights guaranteed by the Constitution.
The effects of this judgement have been felt far and wide throughout the country.
Individual privacy is now legally backed. However, there are many instances of invasion of privacy by the media. For example, we have seen situations where the paparazzi follow celebrities just for the sake of clickbait.
Recently, actress Anushka Sharma lashed out at a photographer for ‘invading her and Virat Kohli’s privacy’ by posting a picture of the pregnant couple. The incident sparked a discussion about the extent to which the media houses excite audiences across platforms, invading the former’s privacy.
The audience is also complicit in such acts of invasion since by watching voyeuristic content, we encourage such coverage. And the media does an excellent job of feeding on our obsession.
The general public and media outlets have been abusing and infringing on celebrities’ privacy rights. Just for the sake of TRP, the media present cooks up stories for views and emotional sympathy. All these tactics affect public sentiment, which in turn could affect legal corridors. The most recent example is the alleged death by suicide case of actor Sushant Singh Rajput, which presented a model of crass media reporting.
Media Trials and Obliterated Identity
Unnecessary media interference in sensitive cases, especially sexual exploitation and harassment matters, has always proved fatal to survivors’ mental health.
Media, at times, gets ruthless. They put the private life of the survivors on a public platform which could add to mental trauma.
By making a cloud out of such cases in public spaces, the media forms the public memory of the survivor and keeps feeding on to it as long as public interest lasts. Therefore, rape and other sexual offences, when often made public, even with positive intent, could further ostracise the survivor.
Although Section 228 of IPC forbids disclosing the survivor’s identity, the media does exactly that on most occasions. For example, in the Delhi Gangrape case of 2013, ‘Nirbhaya’s’ real name and photograph were running in the public forum.
In Nipun Saxena & Anr. V Union Of India & Ors., the Court attended to this issue regarding in what circumstances can the survivor’s identity be revealed. A bench of Justices Madan B. Lokur and Deepak Gupta laid down the rule in their judgment in 2018. The judgment said:
“No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large. The bar extends to anything which can even remotely be used to identify the victim”.
Despite a provision, the 2018 judgment and Bhupinder Sharma judgment (2002), there have been several instances where the name and photographs of the victim got circulated on public platforms.
Right To Free And Fair Trial V. Freedom Of Speech And Expression
The abuse of Freedom of Speech and Expression by the media affects the accused’s right to a free and fair trial. In the same vein, the Bombay High Court observed:
“the media ought to avoid reports touching upon an ongoing investigation and present facts which are in public interest rather than what, according to the media, the public is interested in.”
The Honorary Court also released a list of reports that affected the public’s mindset and may lead to prejudice regarding the ongoing legal trial, violation of which may lead to a case of contempt of Court against the media house.
Media and the judiciary play a complementary role to each other and share common goals. They seek to uncover the facts, preserve justice, uphold democratic principles, and address society’s social, political, and economic issues. Thus, they are the two foundations essential for civil society to advance. But for better or worse, these two institutions are sometimes at loggerheads.
While the media claims that it has the right to reveal the truth and inform the public, it could and has often gone overboard with its freedom. As a result, there is a clash between the media’s right to free speech and the accused’s right to a free and fair trial in such scenarios. As the media often proclaims the accused guilty way before his arrest and prosecution.
Media wields extensive power and popularity in society. It is responsible for presenting facts to the public and help them mould their opinion regarding a case. Occasionally, it sensationalises the issue by holding one-sided debates and discussions to gain ratings, which leads to biased views among the public and could double up as public outrage. The same can extend to affecting and pressurising the sitting judges.
The classic example of the affected judiciary is when the judgment cites the social morality for its decision, for instance, statements like ‘based on society’s collective conscience’ and ‘society’s cry for justice’. Therefore media trials could make judges hesitant in going against the majority public opinion formed by sensational media coverage.
Media Trial, Democracy and International Position
Tracing Back Media Trial’s First Instance
‘Fatty Arbuckle charged with actress murder.’
Read the scare-head of Oakland Tribune. This headline transformed the media’s role for the first time in 1921.
The world saw the million-dollar movie comedian face manslaughter, charged with the rise of media trial, leaving the famous comedian stunned and the world in utter shock.
In 1921 Roscoe ‘fatty’ Arbuckle was the highest-paid actor in the world. He was accused of raping and killing actress Virginia Rappe and was tried three different times for those crimes. The first two trials ended with the deadlock juries, and the third ended with an acquittal. Newspapers across the country went wild. Both Fatty Arbuckle’s and Virginia Rappe’s names were dragged through the mud to publish the most titillating rumours.
These trials not only harmed his public prominence but also ruined his career. As a result, media trials became common and gained popularity after this case.
Democracy and Media: How Media Trials Defy The Purpose
Freedom of information, speech and expression are fundamental human rights recognised across states. Moreover, freedom of press and media’s right to freely publish and circulate information without censorship serves as a bulwark in any democracy.
These freedoms, implicit or explicit, protect the media and journalists and safeguard citizens’ right to access information. But with the digitalisation of communication, media and press freedom stand on a new test of authenticity.
On December 2, 1766, the Swedish parliament passed legislation called the world’s first law, which provided freedom of press and information. This law restricted the Swedish government from censoring the print media and allowed the government activities to be made public.
At an international level, the media’s role is equally important as that of the governing body. Both need each other’s support to run the democracy, and media often challenges the government. Without media, democracy can not exist, and without media law and its regulation, media cannot survive.
International Press Institute (IPI) is an international institute working in cooperation with Al Jazeera Media Network, The International News Safety Institute (INSI) and Africa Media Initiative (AMI). Together they aim to promote cultural safety within the media institute and spread awareness among journalists.
IPI and its partners drafted the International Declaration on Protection of Journalists. The Declaration states a set of principles meant to protect journalists functioning in dangerous environments. 
Item (2) of the Declaration states that all journalists, associated personnel, or media professionals have the right to life. Item (5) says that the state shall protect and promote freedom of expression given in Article 19 of The Universal Declaration of Human Rights adopted by the General Assembly in 1948.
All these declarations were made to promote free media and protect the press and journalists against violence and other harm from the state and elsewhere. Media and press laws are necessary for media professionals; they protect them and help maintain the smooth working and existence of a democracy.
Relationship Between Media and Judicial Independence
A Group of 40 eminent legal pundits and media representatives, summoned by the International Commission of Jurist’s centre for the independence of judges and lawyers, and the Spanish Committee of United Nations International Children’s Emergency Fund, met in Madrid, Spain, between 18-20 January 1994.
The primary purpose of the meeting was to scrutinise the association between the media and judicial independence, as guaranteed by the 1985 United Nations Principles on the independence of the judiciary. The aftermath of the meeting was the ‘Madrid Principles on the Relationship between the Media and Judicial Independence’.
A particular part of the preamble states:
“media have an obligation to respect the rights of individuals protected by the International Covenant, and the independence of judiciary.”
It furthers that in a democratic society ruled by law, media freedom is an integral part of freedom of speech. Therefore, judges must consider and give effect to media freedom by imposing a simple presumption in their favour and allowing only those limitations on media freedom permitted by the International Covenant on Civil and Political Rights (International Covenant) and defined in specific laws.
Present Scenario of Media in India: Stoping Media Trial for the Sake of Independence
Every year Reporters Without Borders (RSF) publish the World Press Freedom Index,which measures media freedom in 180 countries and territories. It appraises the level of pluralism, freedom of media, environment for media-made self-censorship, legal framework, quality of infrastructure and transparency.
Norway mostly tops the index, and North Korea is the last country on the list. These indices help various institutes look into the conditions of press and media in countries with a low ranking.
India was also among the 180 countries and territories, but its position is not appreciable. Countries like Myanmar, United Arab Emirates, and Thailand are above India in this index. We all know how strict Middle Eastern countries are when it comes to freedom of media and press. India being a democratic country, had shown disappointing results in World Press Freedom Index.
The main reason is the Kashmir valley situation, where it is nearly impossible for journalists to do their jobs. India’s rank last year got affected by the abrogation of Article 370 of the Indian Constitution and the subsequent internet shutdown. The abrogation, restrictions and government clampdown in Kashmir made it harder for journalists to report the ground situation in the valley.
Amidst debilitating spaces for freedom, media has succumbed to stories that avoid contentious interaction with the state. Then media trials are nothing but divergence tactics meant to keep the general public uninformed, and their sole purpose is to distract and entertain. Under any circumstances, distraction and divergence can’t be the role of the press in a democratic society.
From Bengal Gazette to digitalised forms, media has changed and advanced over the years. However, unlike the United States of America, India doesn’t have a separate provision for press freedom.
Indian media is regulated and affected by politics and political parties, more so now than ever.
The media should not have to care about political restrictions and influences to work freely. And in an ideal world, it should also not have to make editorial decisions based on ratings, viewership and advertisers.
If media runs only with the logic of viewership and commercial gains, its programming will cater to more views. Hence, it will often step beyond ethical and legal bounds to distract the people from actual policy issues to a more voyeuristic viewing model.
There is nothing beneficial in conducting debates or discussions on ongoing cases because, without evidence and an actual legal trial, most of these debates are fatal.
Today, there’s surplus information everywhere. Thus, there is innate pressure to perform and keep active on television and other mediums every microsecond. The mediascape is already so competitive, then how must we reasonably restrain media without defying its democratic purpose. And who should set these restrictions?
No doubt, the media should exercise its freedom to publish news. Still, when it starts meddling with the process of legal justice, the judiciary could facilitate an unbiased set of guidelines. These guidelines shouldn’t threaten the quality of reporting but also create critical boundaries for sensitive cases to avoid media trials in India.
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 ibid (n 13)
 “Anushka Sharma lashes out over privacy breach” The Tribune (January 07, 2021)
 ibid (n 2)
 Mukesh v. State (NCT of Delhi) [(2017) 6 SCC 1]
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INDIA CONST. art. 370
Fiza Jha, ‘Pressure to toe Hindutva lines sees India drops to 142 on World Press Freedom Index’ (The Print, 21 April 2020) < https://theprint.in/india/pressure-to-toe-hindutva-line-sees-india-drop-to-142-on-world-press-freedomindex/406123/#:~:text=The%20ranking%20by%20Reporters%20Without,journalists’%20to%20explain%20India’s%20position.&text=New%20Delhi%3A%20India%20has%20dropped,Press%20Freedom%20Index%20unveiled%20Tuesday.> accessed 4 February 2021
 ibid (n 4)