Newspapers conducting its own private investigation and publishing the results before or during the trial is a clear case of 'trial by newspaper'. Such publications hinder the Court's determination of facts and might otherwise be 'prejudicial'. There is no guarantee that the facts published by the newspaper are true, there being no opportunity to cross­examine nor to have the evidence corroborated. Similarly, in the guidelines issued by Press Council of India (Part 41­A) dealing with trial by Media, it has been observed that the media and judiciary are two vital pillars of democracy and natural allies; one compliments the other towards the goal of a successful democracy. Measures which are necessary for due process of law need to take precedence over freedom of speech. In a conflict between fair trial and freedom of speech, fair trial has to necessarily prevail because any compromise of fair trial for an accused will cause immense harm and defeat justice delivery system.

Our penal laws and criminal jurisprudence are based on the premise that the guilt of any person charged in a court of law has to be proved beyond reasonable doubt and 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 him. Not only that, the accused has a basic right to silence, which stems from the constitutional right of the accused that he cannot be compelled to incriminate himself. That is also the reason why confessions to the police are inadmissible in a court of law. The Supreme Court, in a catena of cases, 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. As we understand the rights of the media to report and disseminate issues and events, including court proceedings that are a part of the public domain, it is important to contextualize that this is not merely an aspect of protecting the rights of individuals and entities on reporting, but also a part of the process of augmenting the integrity of the judiciary and the cause of justice as a whole.

 In Saibal v. B.K. Sen, AIR 1961 SC 633, the Supreme Court observed:  "It would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of the investigation. This is because, trial by newspapers, when a trial by one of the 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". In M.P. Lohia v. State of West Bengal, (2005)2 SCC 686, the facts were that a woman committed suicide in Calcutta in her parents' house but a case was filed against the husband and in-laws under the Indian Penal Code for murder alleging that it was a case of dowry death. The appellant/husband had filed a number of documents to prove that the woman was a schizophrenic psychotic patient. The parents of the woman filed documents to prove their allegations of demand for dowry by the accused. The trial was yet to commence. The Courts below refused bail. The Supreme Court granted interim bail to the accused and while passing the final orders, referred very critically to certain news items in the Calcutta magazine. The Court deprecated, two articles published in the magazine in a one-sided manner setting out only the allegations made by the woman's parents but not referring to the documents filed by the accused to prove that the lady was a schizophrenic. The Supreme Court observed: "These types of articles appearing in the media would certainly interfere with the course of administration of justice." The Court deprecated the articles and cautioned the Publisher, Editor and Journalist who were responsible for the said articles against "indulging in such trial by media when the issue is sub-judice" and observed that all others should take note of the displeasure expressed by the Court.

The Punjab High Court in Rao Harnarain v. Gumori Ram, AIR 1958 Punjab 273 ruled that 'Liberty of the press is subordinate to the administration of justice. The plain duty of a journalist is the reporting and not the adjudication of cases. The Orissa High Court, in Bijoyananda v. Bala Kush, AIR 1953 Orissa 249, observed that "the responsibility of the press is greater than the responsibility of an individual because the press has a larger audience. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons." 

In Harijai Singh v. Vijay Kumar, 1996(6) SCC 466, the Supreme Court ruled that the press or journalists enjoy no special right of freedom of expression and the guarantee of this freedom was the same as available to every citizen. The press does not enjoy any special privilege or immunity from law. Treating a publication as criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971 where the Court comes to the conclusion that the publication as to matters pending in Court 'tends' to interfere with the administration of justice, amounts to a reasonable restriction on free speech. Thus, Judges may be influenced subconsciously and Judges could not claim to be super human. In what manner they are so influenced may not be visible from their judgment, but they may be influenced subconsciously.

Moreover, Section 3 of the Contempt of Courts Act, 1971 also restricts the freedom of speech and expression if any publication interferes with or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding which is actually 'pending' (i.e. when charge-sheet is filed, or summon or warrant is issued). Contempt law which protects the 'administration of justice' and the 'course of justice' does not accept undue interference with the due process of justice and the due process includes non-interference with the rights of a suspect/accused for an impartial trial. Thus, Contempt of Court law protects the person who is arrested and is likely to face a criminal trial. No publication can be made by way of referring to previous convictions, character or confessions etc. which may cause prejudice to such persons in the trial of an imminent criminal case. Such a procedure, therefore, would interfere or tend to interfere or obstruct or tend to obstruct the course of justice.

There is danger of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or if the media publishes statements which out rightly hold the suspect or the accused guilty even before such an order has been passed by the court. It is not only desirable but also is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial. Thus, in India the right to free speech is not absolute, but is conditional and restricted by Article 19(2).

Open Court and Judicial Accountability

Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. As we understand the rights of the media to report and disseminate issues and events, including court proceedings that are a part of the public domain, it is important to contextualize that this is not merely an aspect of protecting the rights of individuals and entities on reporting, but also a part of the process of augmenting the integrity of the judiciary and the cause of justice as a whole. With the exception of in camera proceedings, a courtroom is a public space. An open court and transparent dispensation of justice in all its modalities, is an end in itself. In Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744, the apex court held that “a court of justice is a public forum. It is through publicity that the citizens are convinced that the court renders even handed justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the court proceedings. The publicity generates public confidence in the administration of justice”. Recently, in The Chief Election Commissioner v. M.R. Vijayabhaskar, Civil Appeal No. 1767 of 2021 decided on 6 May, 2021, the apex court observed that the impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings. This is due to constraints like poverty, illiteracy, distance, cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others, who may not be personally involved in a litigation, depend on the information provided about judicial decisions in newspapers and in the electronic media. When the description of cases is accurate and comprehensive, it serves the cause of open justice. However, if a report on a judicial hearing is inaccurate, it impedes the public's right to know. Courts though open in law and in fact, become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them.

CONCLUSION

In a bid to enhance public participation in the dispensation of justice, the Supreme Court has started live streaming of its constitutional bench proceedings from December, 2022. The Gujarat High Court had introduced live streaming of its proceedings well before the apex court started the same and some other High Courts have also followed the trend. Although the Supreme Court observed that in the present age of technology, it is no longer sufficient to rely solely on the media to deliver information about the hearings of cases and their outcomes, many of courts of district judiciary in the State of Manipur failed to upload their orders/judgments in e-courts portal.

It is reiterated that the duty of a responsible journalist is to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as a news item. The presentation of the news should be truthful, objective and comprehensive without any false and distorted expression. It has to be exercised in the interest of the public good. At the same time, it is also necessary that freedom must be exercised with utmost responsibility. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons. It is, therefore, settled law that when a conflict arises between fair trial and freedom of speech, the former prevailed because the compromise of fair trial for a particular accused will cause them permanent harm whereas the inhibition of media freedom ends with the conclusion of legal proceedings. The freedom of the media not being absolute, media persons connected with the print and electronic media have to be equipped with sufficient inputs as to the width of the right under Art 19(1)(a) and about what is not permitted to be published as restricted by Art 19(2). Aspects of constitutional law, human rights, protection of life and liberty, law relating to defamation and Contempt of Court are important for the media fraternity too.

(The views expressed are personal)