The clean chit by Narcotics Bureau to Aaryan Khan , son of famous Bollywood
star Shahrukh Khan, once again invites the attention of public in general and
criminal justice system in particular towards the encroachment of media in
decency to administration of justice. This case was tried by media even before
investigation was started.
Aryan Khan was arrested on October 3, 2021 and was in
custody for over three weeks for having possession and using the narcotic drugs.
But the subsequently constituted SIT didn't find sufficient evidences against
him and didn't name him in chargesheet.
The NCB chief SN Pradhan also admitted that there were "irregularities" in the
initial investigation and Action will be taken against those responsible for the
lapses. But till the time, Aryan Khan got clean chit from investigating agency,
a lot of water had flown and he suffered an irreparable and irreversible injury
to mind and reputation.
Not only the case of Aryan Khan but recently many other cases had to pass
through this rough trial in TV news studio. There is a long list of such cases
which faced media trial, a few of them includes Sanjay Dutt case under TADA,
Sheena Bora , Jessica Lal, Aarushi Talwar & Sunanda Pushkar murder case,
Nithari Kand and Ayodhya dispute among others. Through this article, it is
attempted to understand the media trial, its adverse effects and need of its
What is Media Trial & how it affects administration of justice:
The "trial by media" is a phrase which got popularity in late 20th century. In
media trial a wide spread perception is created by television and newspapers
about the innocence or guilt of a person or accused. It cannot be denied that it
effects the mind of those concerned with investigation and adjudication. It is
specially more prominent when person involved is of high profile and stature.
The cumulative perception created by media by supplying extraneous information
is sufficient to alter the impartiality of jury or judge. It eventually disturbs
the due process and leads to unfair investigation and trial. In high profile
and dramatic cases, the media often provoke an atmosphere of public hysteria
akin to a lynch mob which not only makes the fair trial an impossibility but
also forces the accused to live his rest of life under public scrutiny.
Sometime, it also emerges in new format where the state-controlled media demonises political opponent. Both the formats are against the idea of justice.
No doubt, media is mighty and named as fourth pillar of democracy. The rapidly
changing socio-economic scenario of India has given prominence to media and now
it has acquired so much of strength that it is capable to alter the public
sentiment and opinion.
Influence of media trial on accused:
- The prejudice reporting of media based on popular perception about any
suspect or accused is against the well settled doctrine of Indian
jurisprudence that a person is innocent unless proved guilty. If such person
is projected by the media as guilty even before the trial in the Court, then
there are possibilities of serious prejudice to the accused at all levels
including investigation and adjudication.
- As mentioned above, if any accused is acquitted by court of law after
due procedure, then also he or she shall remain under intense public
scrutiny. In era of internet technology, the past events of his life would
be easily available on single click. Therefore, even the acquittal may not
prove to be helpful for the accused to rebuild his image in the society.
- Exaggerated and unreasonable publicity in the media, labelling the
suspect as guilty tantamount to undue influence in fair proceedings, as the
investigators and judges are also human being and subject to influence by mass
Influence of media on witnesses:
- Due to the continuous reporting and live coverage by media, the identity
of witness is revealed and because of this, the witnesses come under
pressure from the police as well as the accused or his associates. Some
time, this pressure on witness leads to turning him hostile.
- The witness at an earliest possible opportunity wants to withdraw and
get out of this chaos which ultimately affects the fair trial of case.
- One of the major issues is protection of witness. When the witness
protection laws are already weak, the medial trial makes the witness more
susceptible to danger.
Influence of Media Trial on Judges:
- The judges are human beings and may be influenced unconsciously by
public perception created by media trial. As rightly said by Supreme court
in the case of State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997, that trial by
electronic media, press or by way of public agitation is anti-thesis to the rule
of law and can lead to a miscarriage of justice.
- The judges are not immune to public perception and social norms. The
trend in society greatly affects the conduct of a judge because after all
judges are also inseparable part of same society.
Judicial Opinions on Media Trial:
It is true that freedom of speech and expression is most important aspect of
Indian constitution and this freedom of speech includes the freedom of Press.
The apex court at different occasions has come forward to protect this freedom
of speech enjoyed by media. But it is equally true that the same apex court has
cautioned and rebuked the media when it tried to encroach the space meant for
administrator of justice.
In the case of People Union of Civil Liberties (PUCL) vs UOI
, a three-judge
bench led by Chief Justice of India R M Lodha observed that:
"In the wake of growing instances of media trials, there is a need that the
Supreme Court should delve into the issue as it leads to public condemnation of
the accused on the basis of information provided by prosecutors and police,
though the trial before the court of law has still not been initiated. The
Courts have taken a serious note on the reports of a media briefing by the
police and other investigating agencies. Nothing should be done in order to
hamper the investigation process and secrecy of the inquiry. All of these need
certain checks as they all fall within the purview of Article 21 of the
In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr., 1961
, the Supreme Court
held, there's no doubt that it would be mischievous for a newspaper to intrude
into a crime and execute an independent investigation for which the accused or
suspect has been arrested and then to publish the outcomes of that
This is mischievous because when there is an ongoing trial by one
of the regular tribunals of the country then trial by newspapers must be
prohibited. This is based upon the view that such action by the newspaper of
doing an investigation tends to interfere with the course of justice, whether
the investigation tends to prejudice the accused or the prosecution.
In Sushil Sharma v. The State (Delhi Administration) and Ors, 1996,
High Court held that no conviction will be based upon the media report but upon
the facts that have been placed on record. It is supposed that the Judge dealing
with the case should be neutral. If the decision is based upon the accepted news
items, the petitioner will insist upon denial of a fair trial because it would
cause aspiration on the Judge of being not neutral. Even if there is less report
or no report available, the charge should be framed on the basis of material
available on record.
Regulation of Media Trial:
Media trial is not protected under article 19(1)(a) of constitution as it is
excessive usage of freedom provided under this article. Even, the freedom of
speech and expression is not absolute and unqualified. Media has no authority to
assassinate the character of any accused unless proved guilty by court of law.
In worst form of media trial, the anchors in studio have assumed the role of
police and judge. This causes more harm than good to society and individual. The
time therefore, has ripen to regulate the media trial for larger benefit to
society and criminal justice system.
Some vague laws are present in India to regulate the excesses of media when it
tries to infringe the dignity of courts. Article 129 and 215 of constitution
empowers the supreme court and high courts respectively under purview of
contempt of courts against any sort of encroachment to their dignity. The
contempt of Court Act can also be used against the unscrupulous news channels or
other media houses.
Presently, as far as regulation of media is concerned, it is
governed by self-regulatory bodies such as News Broadcast Federation in which
the officer bearers are mostly selected from within the media houses. The
self-regulatory bodies are supposed to make some guiding principles to ensure
the fair and fact-based proper reporting. Besides this, the Cable Television
Networks (regulation) Act 1955 provides that any programme that offends against
the decency or contains an attack on religion or provides any obscene,
defamatory or deliberately false information should be prohibited broadcasting.
But due to the fierce and sheer competition in media industry for TRPs
(Television rating Points) these self-made regulatory frameworks are often
sacrificed. The media houses at the cost of accuracy and with full impunity on
name of freedom of speech and expression assassinate the character of any
Moreover, due to partition of media houses on the basis of political
ideologies, this kind of behaviour has become more pertinent and obvious. The
regulatory goals are subverted in order to achieve the commercial targets. The
self-regulation is no more functional. As said by Justice GS Kulakarani in the
case of Nilesh Navlakha Vs UOI
that "�..we are in that situation, where
self-regulation of media has failed."
Now it is appropriate time to frame rule and regulation to prohibit the media
trial. The legislation should come forward and rule may be framed following the
footsteps of other common law countries like United Kingdom where government
approved regulatory framework works perfectly.
The authors suggest some
guidelines to deter the media houses from deprecating the suspected person by
- A National Regulatory Authority for Media may be constituted and be
presided by retired Judge of Supreme Court of India. This regulating
authority may be empowered with penal provision of monetary values subject
to further appeal in High Courts.
- The media houses should take care not to publish inaccurate, misleading
and distorted information. If such information is published, then an
opportunity should be given to media house to explain it. If the media house
accepts the mistake, then loud and clear apology should be published
- The media should not encroach the private or family space including the
health status of any individual without his express or implied consent. The
use of long lens photography to take picture of people without consent
should be prohibited.
- The reporters/photographers should not obtain information or photographs
through intimidation, harassment or persistent pursuit.
- The reporters/ photographers should not seek information or takes
photograph/videography from private places after having been asked to desist.
They must not remain in their property after having been asked to leave. They
must not follow any person just to seek direct information without his express
or implied consent.
- The head of the media houses must ensure that only authentic information
is to be published.
- In cases involving personal grief and shock, the approach of reporters
should be with utmost sympathy and public must be handled sensitively at
- The children below 16 years of age should not be interviewed at the
school without the consent of their parents or teachers. The children should
not be videographed/photographed in their school or other training institute without
- In cases of sexual offence, the identity of victim should not be
disclosed by any way. The identity of minor accused should also be not
- The journalist should identify them when reporting from inside the
hospital and should be acted like a responsible executive. The visuals of
wards should not be taken without the permission of person visualised.
- The media should avoid all sorts of discrimination based on caste,
custom, creed, race, colour, gender, religion or any other difference of like nature.
This is illustrative list and other provisions may be added to ensure that the
media trial are regulated and media houses should not be allowed to become
Author is Delhi Based Legal Consultant.