Professional Documents
Culture Documents
1.2.
1.3.
The exponential growth and reach of media has shown unhealthy trends of
competition, leading to sensationalised reporting giving the well-established
rule of sub-judice a go-by. While this is certainly not true across the board to all
media publications, the problem is certainly extensive. Some form of restriction
on such media trials has been suggested so as to preserve the administration of
justice as also to protect privacy of individual.
1.4.
that the accused is presumed to be innocent unless the contrary is proved in public, in
a court of law, observing all the legal safeguards to an accused.
Universal Declaration of Human Rights (1948)
There are certain rights of suspects and accused which are basic human rights. They
are expressly referred to in various articles of the Universal Declaration of Human
Rights (1948).
Article 3 of that Declaration states that
everyone has right to life, liberty and security of person.
Article 10 deals with the right of an accused
in full equality to a fair and public hearing by an independent and impartial tribunal
in the determination of his rights and obligations and of any criminal charge against
him.
Article 11 of the Universal Declaration deals with the right to bepresumed innocent
and reads thus:
Article 11 (1) Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which he has all the
guarantees necessary for his defence.
So far as freedom of expression is concerned, Article 19 of the Universal Declaration
of Human Rights reads:
Article 19: 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.
International Covenant on Civil and Political Rights, 1966
The International Covenant on Civil and Political Rights, 1966 (ICCPR) was ratified
by India in 1976 and it states in Article 14(2) as follows:
Article 14(2) : Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law.
Article 14(3) clause (g) refers to the important right of a person Not to be compelled
to testify against himself or to confess guilt.
Article 14(3) : In the determination of any criminal charge against him, everyone
shall be entitled to the followingminimum guarantees, in full equality:
(g) not to be compelled to testify against himself or to confess
guilt.
The European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950 declares in Article 6: Right to Fair Trial : It reads:
(1) In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
The Madrid Principles on the Relationship Between the Media and Judicial
Independence (1994)
A group of 40 distinguished Legal Experts and Media representatives, convened by
the International Commission of Jurists (ICJ), at its Centre for the Independence of
Judges and Lawyers (CIJL) and the Spanish Committee of UNICEF met in Madrid,
Spain between 18-20, January 1994. The objectives of the meeting were:
(1) to examine the relationship between the media and judicial independence as
guaranteed by the 1985 UN Principles on the Independence of Judiciary.
(2) To formulate principles addressing the relationship between freedom of expression
and judicial independence.
The Supreme Court has held that a trial by press, electronic media or by way of a
public agitation is the very anti-thesis of rule of law and can lead to miscarriage of
justice. A Judge is to guard himself against such pressure (State of Maharashtra v.
Rajendra Jawanmal Gandhi : 1997 (8) SCC 386
In Anukul Chandra Pradhan vs. Union of India, 1996(6) SCC 354, the Supreme Court
observed that No occasion should arise for an impression that the publicity attached
to these matters (the hawala transactions) has tended to dilute the emphasis on the
essentials of a fair trial and the basic principles of jurisprudence including the
presumption of innocence of the accused unless found guilty at the end of the trial
Contempt of Courts Act, 1971:
So far as interference with criminal law is concerned, Sections 2 and 3 of the
Contempt of Courts Act, 1971 are relevant Section 2(c) defines Criminal Contempt
as:
Section 2(c): Criminal contempt means the publication, (whether by words, spoken
or written or by signs, or by visible representations, or otherwise), of any matter or the
doing of any other act whatsoever which
(i)
(ii) prejudices or interferes or tends to interfere with the due course of any judicial
proceedings; or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the
administration of justice in any manner.
We shall refer to the provisions of sec 3 in extenso.
3. Innocent publication and distribution of matter not contempt.(1) A person shall not be guilty of contempt of Court on the ground that he has
published (whether by words spoken or written or by signs or by visible
representations or otherwise) any matter which interferes or tends to interfere with, or
obstructs or tends to obstruct, the course of justice in connection with any civil or
regular tribunal is going on, must be prevented. The basis for this view is that such
action on the part of the newspaper tends to interfere with the course of justice.
The words tends to interfere with the course of justice used by the Supreme Court
in the above case are quite significant.
How does it affect the mind of judges
There is a full discussion of the subject in Borrie and Lowe, Law of Contempt, 3rd
Ed (1996)(Ch 5)(pp 132 to 179) as to what publications are accepted as resulting in
prejudice to criminal proceedings. We shall refer to the cases quoted there. (Article by
Ms Vismai Rao, on Trial by Media, 5thYear, USLSS, Indraprastha University, 2006).
(1) Publications concerning the character of accused or previous conclusions:
Pigot CB stated in R v. ODogherty (1848) 5 Cox C.C 348 (354)(Ireland) that
Observations calculated to excite feelings of hostility towards any individual who is
under a charge amount to a contempt of court.
Publication of past criminal record is recognized as a serious contempt, satisfying the
substantial risk of serious prejudice test used in Section 4(2) of the U.K Act of 1981
as well as under Common Law. The above authors quote Moffit P in AG(NSW) v.
Willisee : (1980) (2) NSWLR 143 (150) that there is
popular and deeply rooted belief that it is more likely that an accused person
committed the crime charged if he has a criminal record, and less likely if he has no
record.
In Solicitor General v. Henry and News Group Newspapers Ltd :1990 COD 307, a
person was arrested for robbery and an article was published that he had a previous
conviction of rape and it was held to be contempt even under the strict rule in Section
2 of UK Act, 1981 as creating a substantial risk of serious prejudice and the
newspaper was fined 15,000Pounds.
Borrie and Lowe (ibid p. 156) state that a newspaper conducting its own private
investigation and publishing the results before or during the trial is perhaps the most
blatant example of trial by newspaper. Such publications hider the Courts
determination of facts and might otherwise beprejudicial.