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Home » Human Rights » Media Trial vs. Right to a Fair Trial: An Endeavour to Learn about Existing Judicial Safeguards and Thinkable Solutions

Media Trial vs. Right to a Fair Trial: An Endeavour to Learn about Existing Judicial Safeguards and Thinkable Solutions

Md. Pizuar Hossain has completed his LL.B. (Hons.) from BRAC University, Bangladesh. He was awarded the “Vice-Chancellor’s Gold Medal” for obtaining the highest CGPA from BRAC University. At present, he is working as a Faculty Member at the Department of Law, East-West University, Bangladesh.

This article is concerned about an existing conflict between the rights to freedom of expression and freedom of press, and the right to a fair trial as created by the so called media trial. The author explains the general notions of media trial providing relevant case studies of Bangladesh, India, and the United States of America (USA). Besides, the author attempts to define ‘prejudicial news reports’ and determine as to whether disseminating prejudicial news reports amount to contempt of Court referring to the relevant legislations and precedents of many jurisdictions. Further, the author tries to discuss certain existing judicial safeguards against media trial including some possible solutions. In other words, the main purpose of this paper is an endeavour to analyze impacts of media trial to reach some conclusions which will ultimately aid in the administration of justice in criminal trials.


We often read particular news of many criminal incidents in newspaper at our breakfast table and watch the same via broadcast media presenting some individuals as accused for alleged crimes. Then and there, most of us typically start to assess the matters on the basis of the news reports and point our fingers at the persons believing them as true culprits. As a matter of fact, ‘the news media and crime are locked in a symbiotic relationship.’[1] Various forms of print media e.g. newspapers, magazines etc., and electronic media e.g. television, film, radio, video, and Internet services including social media[2] etc. are stereotypical influencing our perception of crimes in this unquestionably influential world[3].

When the particular matter is initiated into trial proceedings, indeed the leading universal golden principle i.e presumption of innocence until proven guilty[4], would strictly be acknowledged before determining the accused person’s criminal liability[5]. Yet again, a pertinent question may arise as to what about the role of media in such matters as stated above? Naturally, the response may be drawn in a manner that overlooks this well-established doctrine, sometimes the media used to demonstrate the accused in such a manner that people even forget the gap between an accused and a convict of a crime from time to time. On top of that, the media coverage may, exclusively in high profile cases[6], influence the judges or jury members of the concerned Courts which are supposed to give their decisions and/or opinion based on hearing of the parties and merits of the case as to who is the decisively guilty beyond all reasonable doubt for any alleged crime[7].

Therefore, an issue has become very prominent to the people around the world as regards media’s tendency to influence the Courts to provide order/ judgment centered on their reportages that may impede a recognized fundamental principle of law i.e. the right to a fair trial [8]. This norm has been undermined in many legal systems by the offence of sub-judice contempt of Court[9]. Besides, it has been observed by many that the right to ‘freedom of expression and freedom of press’[10] to comment or report on pending trials conflict with the right of the accused person to a fair trial[11]. Thus, the question is that whether the freedom of expression and freedom of press should be admitted to supersede the accused individuals’ right to a fair trial? Concentrating on the above mentioned questions regarding media trial, the paper attempts to focus on the effects of media trial controversy with some prominent case studies of Bangladesh, India and the United States of America (USA), and existing judicial safeguards as well as recommended solutions to prevent it. It also ponders on the protections ensured under the Universal Declaration of Human Rights (UDHR)[12], International Covenant on Civil and Political Rights (ICCPR)[13], and European Convention on Human Rights (ECHR)[14] along with the most conventional judicial precedents on contempt of Court. To elaborate those propositions, the author has divided this article into five parts. Part I has already introduced pertinent concerns and questions regarding media trial. Part II presents the notions of media trial and its historical background with some illustrious case studies. More convincingly, part III discusses the human rights perspectives of media trial addressing the standards of the right to freedom of expression, freedom of press, and fair trial. Part IV depends on many relevant legislations and judicial principles to find out the answers of the questions as to whether dissemination of prejudicial materials nullify a trial, and whether the same amounts to contempt of Court. This part also entails the discussion of the existing safeguards and certain thinkable solutions as ways out for minimizing the adverse impacts of the alleged problem. At the end, the author has summed up the main findings of this paper in part V with a few good words.

II. Notions of Media Trial and Certain Gut-Wrenching Case Studies

In the late 20th and early 21st centuries, the idea of media trial came across the western countries especially in the United Kingdom (UK) and the USA with the purpose of grabbing attention of the scholars[15]. In effect, the phrase ‘Trial by Media’ or ‘Media Trial’ started to be very conversant to the people of these countries during the spread of Television news coverage in the 1960s[16]. On the other hand, in Indian sub-continent, several television channels started to flourish during 1990s from when the term media trial emerged eventually[17].

The term “Media Trial” has been defined as, ‘the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law.’[18] Besides, the term “Trial by Newspaper” can be defined as such ‘[w]hen any report indulges in siding with one of the parties to the cause; derides one party, witness, or counsel; misrepresent Court proceedings by screaming headlines with a view to prejudicing the Court and public; publishes only one side of the case to the detriment to the opposite party; brings out articles on a matter pending in the Court and in diverse ways carry on what has been so aptly called a trial by newspaper.’[19]To be precise, when the media creates any intuition on any event(s) or accused person(s) that might have a notorious impact on the person’s name, character and reputation[20], and presumption of innocence or guilt, before or even after, the Court takes into account of the matter to give a verdict, then this spontaneous action of the media can be depicted as media trial[21]. Sometimes, the media misrepresents evidences or facts, and provides misinformation about laws[22]. Through its inflammatory headings and misrepresentation, media creates potentially flawed views, judgments, and ideas about our judicial system and legal process even before a matter goes into trial which is often considered as a consequence of yellow journalism as well[23]. However, the very notion of media trial would be unfinished, unless and until, certain case studies are presented and discussed in detail. For illustration:

[A] Sharmin Murder Case (Bangladesh)

In Bangladesh, whenever the matter of media trial becomes very conversant, the people cannot but recalling the Sharmin Murder Case[24]. Some may state that the matter is very retroactive in comparison to the recent issues and scenarios. Nevertheless, this case will always remain in the upper place of any list of the instances of media trial as the verdict of the case was coherently centered by the then media coverage. In this case, Mr. Munir[25]was charged for killing his wife, Mrs. Sharmin[26] in April 19th, 1989 on the way of coming back to Dhaka, Bangladesh after having a short pleasure trip. Mr. Munir’s confessional statement made to the competent Magistrate indicated that he killed her out of grave and sudden provocation made by his wife during driving car[27]. However, the media represented that merely because of continuing long running affair with his mistress Hosne Ara Khuku[28], Mr. Munir did the same. The investigation of the incident and subsequent trial by the Court took place. During that period, press started to report on the matter by portraying Mr. Munir as the murderer which created a hue and cry among the general people of Bangladesh. Surprisingly, every new revelation of the facts was presented with dramatic headlines. Thereby, the new details of the case in day by day basis kept the whole nation spellbound for many days. At one time, people became very outraged demanding for Mr. Munir and Ms. Khuku’s capital punishment.

On 21st May of 1990, the trial was concluded while Mr. Munir and Ms. Khuku were found guilty of the offense and thereby, they were condemned to death. After two years, in July 1992, the Appellate Court overturned Ms. Khuku’s sentence and acquitted her from all charges. Nevertheless, Mr. Munir’s death sentence was upheld in the face of successive legal appeals. Subsequently, he was hanged on either 3rd July or 27th July in 1993. Now, if we consider the impacts of media coverage in this above discussed case, the impacts can be categorized into two parts. Firstly, regarding effects on the accused, it was found that due to huge media coverage, Mr. Munir desperately attempted to kill himself either by hanging, or by any other means. Secondly, the media coverage, indeed, influenced judges to think freely about the matter since if we take a snap over the actual scenario of the case, it would be precise to us that he killed his wife out of grave and sudden provocation which could be a mitigating factor to minimize his sentence[29]. Hence, if there would have no excessive media coverage or media trial, the judgment of this case

[B] Orenthal James (OJ) Simpson Case (the USA)

OJ Simpson, a football star of the US, was made an accused for the occurrence of murdering his ex-wife Nicole Simpson and her friend Ron Goldman in 1994[30]. From then, media started to publicize many news reports in such a way that if someone would turn on a Television, listen to the radio, or read the newspaper, they would find the news of OJ Simpson’s trial presenting him as guilty[31].

Surprisingly, the Los Angeles Times reported this particular incident on their front page for over 300 days[32]. Besides, the Big Three Networks started to broadcast the alleged matter more time in their nightly news to the trial than to the ongoing Bosnian War and Oklahoma City bombings together[33]. The Time Magazine was charged for racist editorializing since it published cover photo of OJ Simpson with a darkened appearance making it more threatening[34]. Finally, the original grand jury was terminated because of unwarranted media coverage were influencing their perceptions and affecting theirimpartiality[35]. At the end of this sensational trial, he was given acquittal since he was not proven guilty beyond all reasonable doubt36. Nevertheless, it was regarded as the most celebrated criminal trials in the judicial history of the US.

[C] Jessica Lall Case (India)

Ms. Jessica Lall, a model-cum-bartender, was killed by shooting by a drunken intruder at a party in New Delhi, India. Many witnesses identified that the drunken person was Mr. Manu Sharma. They witnessed that Mr. Sharma shot Jessica Lall as she refused to serve him alcohol. Mr. Sharma was the son of an Indian National Congress (INC) politician and a relative of Mr. Shankar Dayal Sharma, the former President of India. Immediately after the incident, Mr. Sharma was arrested and subsequently, the proceedings of trial commenced making him as an accused. Astonishingly, during examination of the witnesses, almost all the witnesses renounced their initial statements provided to the police[36]. As a result, Mr. Sharma was acquitted due to lack of evidence by the trial Court.

In the meantime, it had become viral that Mr. Sharma’s family conspired with some police officials and destroyed all the evidences[37]. Moreover, it was published in a magazine that the witnesses were bribed by Mr. Sharma’s family[38]. Another news report was broadcast entailing Mr. Sharma’s confession to the police about admitting his guilt of killing Jessica Lall[39]. Again, he was addressed as ‘a craven killer’ in various news reports by the journalists[40]. The press also started to criticize the trial Court judge for acquitting Mr, Sharma[41]. Eventually, all the news coverage led to an uproar among the people in India and several nationwide campaigns were issued with the demand of justice for Jessica Lall[42].To end with, criticizing the trial Court’s decision as “positively perverse” one, the Delhi High Court found Mr. Sharma guilty of murder of Jessica Lall on appeal[43]. Nonetheless, it was highly estimated that the High Court was accelerated to give such a decision by the wake of the campaign called “Justice for Jessica”[44]. However, this decision was upheld by the Supreme Court of India in April, 2010[45]. Even though the accused was found guilty at the conclusion of the trial, this case set an example of media trial as it was observed that disregarding the right of a fair trial of the accused, the media used to reveal the prejudicial news reports randomly in the entire world.


III. Human Rights Perspectives of Media Trial: Are the Rights to Freedom of Expression and Freedom of Press in Competition with the Right to a Fair Trial?

Every time, when we talk about broadcasting prejudicial materials, we need to realize that often the right to freedom of expression and freedom of press[46] are in conflict with the right to a fair trial of an accused[47]. Here, the freedom of press to broadcast comprises the right of access to the information and right to know of the general people[48]. Then the question arises regarding which one does inevitably weigh more heavily on the scales of justice? In such circumstances, if the Courts put preeminence on the right to freedom of expression and freedom of press over the right to a fair trial, it may create an apprehension of obstruction of the administration of justice in the long run[49]. Hence, the following discussion highlights the ambits of the rights to freedom of expression and freedom of press, and the right to a fair trial:

[A] The Rights to Freedom of Expression and Freedom of Press

As regards, the right to freedom of expression, the United Nations’ Universal Declaration of Human Rights (UDHR)[50], which has become a part of the customary international law[51], provides in Article 19 that ‘everyone has the right to freedom of opinion and expression … [including the] freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.’[52] Ensuring this right to both the natural and legal person is a precondition of a democratic country[53]. This right facilitates the citizens of a democraticcountry to express their constructive criticism about the administration of justice in the country[54], and to enjoy the right to be informed[55].

The concept of the right to freedom of press, i.e. newspapers and periodicals, is nothing but a species of the freedom of speech. Again, this right is closely linked to the notion of journalistic freedom of expression[56]. They have a duty of imparting of information to the common people[57]. In the matter of public interest, journalists must not compromise on any ground, so as not to deprive people from obtaining relevant information[58]. Moreover, the right to freedom of expression entails that the people have also the right to receive information[59] and to discuss public airs or matters of general interests[60]. However, these universal rights are not absolute[61] and are subjected to certain restrictions[62]. In regards to journalistic freedom of expression, there are some settled principles that the right depends on as to whether there was truth or factual basis for the journalist’s report[63], whether there had been adequate previous research done by the journalists[64], whether the journalists acted in good faith[65], whether the journalists complied with journalistic ethics[66], etc[67]. Moreover, it has been held in several cases that if the form of the statement or report of any media is offensive or insulting[68]; and is likely to undermine the accused person’s right to be presumed as innocent[69]; the individual who is responsible to make the statement or report will not be protected under the right to freedom of expression. It is important to mention that Article 12 of the UDHR and Article 17 of the ICCPR prohibit unlawful attack on someone’s honor and reputation[70]. Hence, nobody is allowed to injure the reputation of a person in the name of freedom of speech and press[71].

[B] The Right to a Fair Trial

The right to a fair trial has also become a custom of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of one’s fundamental rights and freedoms. Articles 6, 7, 8, 10 and 11 of the UDHR enshrines fair trial rights such as Article 10 stipulated that ‘everyone is entitled 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.’ According to Article 14(1) of the ICCPR, the basic institutional framework enabling the enjoyment of the right to a fair trial is that the proceedings in any criminal case or in a suit are to be conducted by a competent, independent and impartial tribunal established by law[72]. The main purpose of these provisions is to avoid the arbitrariness and/or biasness of the Court to give verdict of any event. Every individual of a country deserves this right and thus, while this right is curtailed on unreasonable grounds, the actual notion of democracy is in jeopardy.

It is important to mention that the right to a fair trial is not restricted while the rights to freedom of expression and freedom press are subjected to reasonable restrictions[73]. Nonetheless, in this present world, there is a debate between ensuring the right to freedom of expression and freedom of press which is largely uncensored, and the right to a fair trial[74]. In fact, the debate is about rights of the affected people, and the persons who are involved with media. The proponents of the media trial may contend that by this trend, the affected persons’ rights are protected since it helps to ensure justice, while the opponents may argue that it is one of the factors leading to the infringement of people’s right to a fair trial[75].

At this instant, under the purview of the aforesaid rights, we observe two distinct institutions i.e. the press and Courts of law, which are mutually supporting but occasionally adversarial. On one hand, a media or probing press can help the Court to find out the truth of any concerning event by its own exploration. On the other hand, its intensive pretrial publicity by misrepresentation of the occurrence may prejudice the impartiality of the Courts. In this way, being Constitutional companion, the press can become a villain against the accused. Hence, two questions can be addressed here that whether the prejudicial news reports invalidate a trial of a Court of law or not? And whether it can be considered as contempt of Court or not? The following part efforts to find out the possible answers of these questions:

IV. Broadcasting Prejudicial News Reports: Judicial Safeguards and Recommended Solutions

It has already been stated earlier that an accused is entitled to receive a fair trial by an impartial jury free from the influence of prejudicial and inflammatory news media coverage[76]. This principle emphasizes on ensuring proper administration of justice to the individuals and negates jeopardous actions of any news media including irresponsible news prints[77]. Now-a-days, irresponsible prints are equivalently used as prejudicial news reports[78]. In Pennekamp[79] case of the US, it has been observed that the apprehension of influence of prejudicial material on a judge who sits without jury cannot be left out[80]. In the Indian sub-continent, usually the jury system does not exist in practice since it was believed earlier that there would be a prone to huge publicity and peer influence on the juries (!) whereas it exists in the UK, and the USA[81].

[A] Publication of Prejudicial Materials: Whether It Nullifies a Trial or Not?

To define prejudicial news reports, let’s concentrate on publication of ‘confessional statements’ saying that if any news report is published portraying the texts of any confessional statements of any accused, it would generally be regarded as a prejudicial news report[82]. However, when such news report is made at the assertion of the accused, questioning the news report as prejudicial one may not arise[83]. After that, both ‘factual but false’ [84]and ‘factual and true’ [85]reports can be prejudicial. In the former case, indeed false reports are harmful but sometimes a report which covers true facts may become prejudicial if the reported facts raise any serious question in any pending case which is not presented at trial for some reasons. For example, confessions of any accused[86], or prosecution’s statements as its defense[87], or the accused person’s prior criminal[88] which might be inadmissible under the rules of evidence of any particular country[89].

In Shepherd[90] case the accused person’s confessional statement in relation to crime of rape was published in a particular newspaper where the sheriffs were named as the concerned news source[91]. Subsequent to that, the accused was convicted based on that confession while the confessional statements were never addressed as evidence in the trial[92]. However, the conviction was reversed by the Supreme Court of the US in which Mr. Justice Jackson, joined by Mr. Justice Frankfurter, agreed upon the contention that the trial by the jury was precluded by the prejudicial publication of the newspaper[93]. Next, if it is found that certain facts are presented in a report which creates undue stress on the jury or judges, that report can also be counted as prejudicial one[94]. Again, when editorial comments include any derogatory statement regarding any matter pending in the Court, it would also be considered as a prejudicial report[95].

To determine a report as prejudicial, the time of publishing a news report such as a report made on the day before a trial starts[96] would be regarded as more suspicious than one which is published a month[97] or even year[98] before the trial commences[99]. Moreover, source of specific news can be considered as an important factor to determine as to whether a news report is detrimental to the rights of the accused. It has been established that a report produced by the reporter himself causes less concern[100] than one which is produced by the prosecutor[101], or the sheriff or defendant[102], or the judge itself[103]. On top of that, if the same is produced by the accused himself which is broadcast in the air would cause serious concern in this regard as well[104].

Before moving to the above addressed question as to whether prejudicial publication on any news report invalidates the trial, the term “Trial” can also be defined which is considered as supplementary with the course of justice. In the case concerning Bridges[105], Mr. Justice Black depicted, ‘[t]he very word “trial” connotes decisions on the evidence and arguments properly advanced in open court. Legal trials are not like elections, to be won through the use of the meeting hall, the radio, and the newspaper.’[106] The process of justice is for all intents and purposes to be carried on by the competent Courts as established by the judiciary.

Most importantly, ensuring fair trial to the accused is an essential component of any judicial system[107]. Traditionally, due process of adversarial trial system requires that both the parties of a case pending in a Court of law should be an unprejudiced Court[108]. The decision of such case would be taken on the basis of the evidences produced and arguments made in an open Court[109]. It is stipulated that if newspapers are permitted to print extracts of pleadings in advance, the object of ensuring justice would be entirely frustrated while it would constitute a serious interference with the duties of the Courts and diminish public confidence in the criminal justice system[110].

Now, dealing with the most debated question as raised above, it is interesting to state that in certain Indian cases of Pillai[111], Navjot Sandhu[112], Shaukat Hussain Guru[113], and Manu Sharma[114], it has been considered that judges are emotionally infallible and thereby, prejudicial news reports cannot invalidate a trial. Corresponding to that, Lord Dilhome stated in BBC case[115], ‘[i]t is sometimes asserted that no judge will be influenced in his judgment by anything said by the media…This claim to judicial superiority over human frailty is one that I find some difficulty in accepting.’ On the contrary, Justice Frankfurter[116] very lucidly pointed out: Judges are also human and we know better than did our forebears how powerful is the pull of the unconscious and how treacherous the rational process and since Judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print.[117]

Besides, to quote, ‘when [a] hue and cry is made by the media it is possible that the equilibrium of a Judge is also disturbed.’[118] Sometimes, the media portrays a situation in such a way to the public that if a judge passes an order in contradiction with the so called media verdict, he or she is deemed either as corrupted or biased. Accordingly, pretrial publicity may have widespread deterrent to a fair trial[119] as biased media coverage is prone to prejudice the same[120]. Therefore, making a certain concluding answer of the raised question is not very easy but a standard way can be invoked to dissolve any such dispute depending on the circumstances of each case. Under the above-mentioned circumstances, two pertinent questions may arise as to whether the operation of public interest factors would create a barrier to conclude that contempt has taken place in a particular case of publishing prejudicial news reports ? On the contrary, whether the factor of public interest is merely a matter that has to be considered to exercise the Court’s discretion to punish or not punish an accused of the offence of contempt of Court? The next discussion attempts to addresses the above-mentioned queries:

[B] Dissemination of Prejudicial News Reports: Does It Amount to Contempt of Court?

Whenever the question as to on what situations do the freedom of expression and freedom of press supersede the right to a fair trial peeps into our mind, some people may think that the factor of public interest applies to publications of news reports as regards both criminal and civil proceedings[121].

On the other hand, some other people may believe that the public interest in the publications of news reports should not supersede the public interest in the due administration of justice[122]. In this regard, it is depicted that sometimes media has been a massive agent for creating public awareness in relation to any governmental scandals[123]. However, it is often mentioned that defense of public interest should not be used for attracting interest of the general people during both pre-arrest and post-trial merely for amusement or curiosity rather it should be of grave concern and advantage to the public[124].


Yet again, it is unexpected to indicate that the judicial perceptions of news reporters have been changed, and even there are some judges who have a tendency to give judgment connecting the media reportages with a view to winning more listeners[125]. On the other hand, some judges believe that the Courts are annoyed at the prejudicial media coverage due to proliferation of news channels[126]. In high profile cases, sometimes even the experienced Judges may become morally bound to be biased and to give their decision in compliance with the reports of the media, of course, to avoid being the subject matter of public criticism[127]. In such situations, two questions can be upstretched here i.e. whether the concerned Courts can apply their contempt powers to penalize the media for committing media trial by broadcasting prejudicial materials; if yes, what are the punishments that should be imposed upon the media for such an offence?

To respond to the first question, it can primarily be stipulated that in determining a publication as contemptuous or prejudicial to the fair trial proceedings, the Court may look into the extent and volume of the circulation of news reports, and the contents and forms of the same[128]. This has been established that ‘[a]ny colouring of the reports upon the merits of any case during trial of the same, by dramatic headlines or otherwise tending to prejudice the matter which may prevent both the parties from obtaining a fair decision, are all actionable in contempt.’[129] In Bangladesh, the Contempt of Court Act, 1926[130] does not provide any definition or list as to what are the acts that constitute contempt of Court. However, contemptuous publications are being restricted to exercise the right to freedom of expression and freedom of press under the Constitution of Bangladesh[131]. Generally speaking, it has become settled principle that any conduct that tends to bring the administration of law by a Court into disrespect or to contumaciously disregard its processes to interfere with or prejudice parties or their witness during the litigation becomes contemptuous one[132]. In this regard, the depicted proposition of the case of Advocate General vs. Shabir Ahmed[133] is mentioned below:

It is not possible to accept the contention that mere expression of an opinion on question of law which is sub judice cannot amount to contempt of Court. It is not possible to accept the contention that in law knowledge of the pendency of the proceedings is necessary.

All that is necessary to show is that a proceeding was actually pending at the time or was imminent.[134] Even, the media cannot publish any report by anticipating the judgment of a Court since anticipation of an order which the Court might make is a species of contempt of Court[135]. Thus, it can be concluded that the interference of the media on any matter pending before the Courts amounts to contempt of Court in Bangladesh for in most of the cases it is observed that its publicities bring together prejudice into a process that ought to be necessarily unprejudiced.

In India, the Contempt of Courts Act, 1971 defines that civil contempt includes non-compliance of Court’s orders, where criminal contempt entails publication of any event which tends to prejudice or interfere with the due course of any pending judicial trial, or interferes with or obstructs the administration of justice[136]. Nevertheless, news reports comprising “a fair and accurate report of a judicial proceeding” are exempted from liability[137]. Moreover, on the ground of public interest, the Act allows publishing reports covering “truth” regarding any event[138]. Therefore, it seems that the avowed provisions would play a significant role in cases concerning media trial in upcoming time. Besides, the rights to freedom of expression and freedom of press recognized under Article 19 of the Constitution of India do not allow a person to contempt the Courts in relation to it[139]. In the case of Re Arundhati Roy[140] the Supreme Court of India quoted the view of Justice Frankfurter of the US Supreme Court[141]: If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise.

What’s more, newspaper publications presenting a defendant as a “bribe giver,”[142] and two defendants as “smugglers” without adding the adjective “alleged,”[143] were held as contempt of Court. Next, a confessionary statement of an accused of murder made to the police was published in a newspaper which was held liable for contempt of Court[144]. In this particular case, the Court realized that the editor of the concerned newspaper was trying to generate feelings of hatred among the people by creating guilty impression about the accused[145]. On the contrary, a magazine published that false charges of rape and murder have been brought against the accused individuals while the matter was pending in the Court[146].

Therefore, the Court held that the editor committed contempt of Court for his sub-judice publication and comments on merits of the case[147]. Apart from contempt of Court, the Supreme Court of India perceived, ‘[a] trial by press, electronic media or public agitation is the very antithesis of rule of law.’[148] In Jessica Lall case the Court very clearly depicted that we must be alert of being unduly influenced by the media to ensure fair enquiry, hearing, defense of accused and non-interference in the administration of justice in the matters sub-justice[149].

In the jurisdiction of some western countries such as the UK, the USA, Canada etc., Lord Chancellor Hardwicke’s opinion regarding the case of St. James Evening Post[150] created a trend of giving penalty to any individual liable for broadcasting prejudicial materials as contempt of Court[151]. In this particular case he expressed his concern about the publication of news media saying that it is a must for the Courts to preserve their proceedings from being tainted in order to ensure justice to the people[152]. He also says that prejudicing the minds of the people is one of the most malicious results of publication of prejudicial news reports[153]. From his opinion, contempt has been classified into three kinds as well such as scandalizing the Court; abusing the concerned parties of a particular case; and prejudicing people’s mind against the accused even before trial[154].

It is strictly maintained for the British news media that they do not comment on any imminent or pending proceedings which may tend to interfere the course of trial with the purpose of preventing undue interference of the media with the administration of justice[155]. Various kinds of punishments are ensured for the person(s) liable for contempt of Court including publisher, editor, reporter and printer. For instances, the offenders are sent to prison for a certain period of time, or imposed fine or even both[156]. To determine as to whether a publication is prejudicial to a fair trial, the “clear and present danger test” is popularly being used which implies that the publication must apparently be a malicious interference to a pending trial of a specific case[157]. Moreover, under the Contempt of Court Act, 1981, the rule of ‘strict liability’ is applicable in the UK jurisdiction[158]. This rule indicates that an action lies in contempt against a prejudicial news provider even if he or she did not publish the same with mala fide intention but the news creates a “substantial risk” or “real risk of serious prejudice” to the proceedings of criminal trial[159]. However, when the publication is made with good faith for public interest, the strict liability rule may not be applicable but it has to be proved that the publication is merely incidental[160]. Hence, from the above discussion, the realization is that the individuals liable for media trial can be punished under the realm of contempt of Court otherwise massive negative media coverage before and during a trial may result in denial of the due process and natural justice to the concerned parties of any criminal trial[161].

[C] Recommended Solutions

After discussing all the answers of the questions raised in this paper, it can be affirmed that in this modern age, various types of media are coming into play and they are expanding their influence on the people by publishing information, facts or figures and giving chance of commenting to the massive viewers straightway. This trend has radically changed the communication landscape around the world. Therefore, a responsible media is expected to take into consideration the reliance entrusted on it by the general public whereby the common people blindly accepts the truth of the news published by the media. From the author’s point of view, one of the best modes of regulating the media can be exercised by ensuring objectionable types of journalistic conduct and by all other means to build up and implement a Code or exhaustive policy in accordance with the highest professional standards instead of following the political wills in a concerned country. On top of that, the author recommends that enactment of a statute, independent of the contempt power, deterring all those liable for broadcasting prejudicial materials or violation of the right to a fair trial is the most effective and realistic way to prevent media trial in the entire course of trial proceedings[162]. The question of the constitutionality of such a statute would certainly be subject to particular country enacting and enforcing the same.

The proposed Act may include different list of certain categories of publications which can be differentiated following the “clear and present danger test” to determine the magnitude of punishments as specified in the particular Act. However, such a determination would be made by the concerned judges or jury of the Courts case-by-case basis. For this purpose, the judges or the jury should depend on the evidences to evaluate any real risk of the concerned publication and while it would be found that the publicity alone provided no grounds for interfering into the trial, the penalty for contempt should be reduced[163]. As regards punishments, it should be considered that simply delivering symbolic proclamations against journalists may not be sufficient in this modern age of new technologies and media, the Courts should have the authority to provide at least soft punishments as an alternative[164].

Under this statute, it should be highlighted here that every individual involved in investigation or criminal proceedings e.g. the Police, prosecutors, parties, attorneys, witnesses, jurors, judges must be proscribed from discharging any material in relation to a concerned trial[165]. Further, they have to be prohibited to make any statement or comment regarding either the guilt or innocence of any accused of criminal offence as well as relevant facts or evidence presenting an accused as guilty or innocent before the trial concludes.[166]

Above and beyond, media must be very responsible and follow a few norms, inter alia, in reporting of any news such as:

  1. i) Every press must maintain accuracy of particular case and verify the same by a truthful, comprehensive and intelligent account of the day’s events before reporting or publication of the same. Again, in cases of any error, statement of rectification must be provided as early as possible;
  2. ii) It must follow the extent of its right to report on Court proceedings while it has to avoid any act that amounts to interference of course of justice;

iii) When anyone is made accused on mere suspicion, no personal opinion against the said person shall be published;

  1. iv) Along with providing an opportunity for the exchange of comment or opinion or criticism or attitude, it must undertake some efficient steps to avoid any such act that is based on either favouring or defaming any person;
  2. v) It must not purposely make sensational or provocative heading of report that ultimately create public outrage or hamper the presumption of innocence of any accused person;
  3. vi) The press must encourage the growth of the sense of responsibility and public service among all those engaged in the profession of journalism[167];

vii) It must improve the methods of recruitment, education and training for the profession of journalism, if necessary, by the creation of suitable agencies for the purpose such as a press institute[168].

V. Concluding Remarks

To conclude, corresponding to Jeremy Bentham’s assertion it can be stated that public opinion and free press as its most effective organ are forces not to be feared, but trusted[169]. Indeed, the media’s importance is not less than that of Bentham’s time in this modern century. Now-a-days, in the garb of rights and duties, the media arrange some TV shows and reports, and publish such prejudicial information in relation to any crime which generally tends to influence the Courts to take decision in line of their portrayal of the event. Sometimes, the media coverage create outrage among the people and thereby, it is seen that judges also start to consider media reports and criticisms during giving decision even after hearing of both the parties. Often they are fallen in such situation that makes them bound to think that if they give contrary decision against the media depiction, they will be subjected to public criticism which may lead to wound his or her reputation, or may invade his or her social life. In so doing, the media trial causes interference to the Court proceedings and questions the impartiality of the system of ensuring justice to the people which may amount to contempt of Court, and would violate the rights of individuals guaranteed under international norms and laws. They forget that the accused person, who has been charged for any crime, also has the right to be presumed innocent until he is proven guilty beyond all reasonable doubt.

Regrettably, the justice cannot reach at the door of the person who deserves so when those biases ultimately affect the merits of the case disgracefully. As an endnote, it can be mentioned that freedom of press is important and crucial, especially in the era of global technological progresses. However, some information must be restricted not to publish or criticize publicly, and no way should be invoked that causes interference of the trial procedures. It has to be remembered that the freedom of speech has to be exercised carefully and cautiously so as to avoid interference with the administration of justice that may lead to undesirable results in the matters sub judice before the Courts[170]. Again, no one should ignore the well-established principle that justice should not only be done but should manifestly and undoubtedly be seen to be done by the impartial Courts of justice[171].




[1] Ted Gest, ‘Indictment & Trial of Media’s Crime Coverage’ [2003] 2 Journal of the Institute of Justiceand International Studies 1, 1.

[2] 2 Social media is defined as “a group of Internet based applications that build on the ideological and technological foundations of [the worldwide web] which allows the creation and exchange of user-generated content” as included in Andreas M Kaplan and Michael Haenlein, ‘Users of the world, Unite! The Challenges and Opportunities of Social Media’ [2010] 53(1) Business Horizons 59, 61; Internet services comprises some social media such as Facebook, Blogger, Twitter, WordPress, LinkedIn, Pinterest, Google+, Tumblr, MySpace, Wiki etc.; See Thomas F Bathurst, ‘Social media: The end of civilization?’ The Warrane Lecture, University of New South Wales (Sydney, 21 November 2012) 1, 7.

[3] Dowler, K. Fleming, and T. Muzzatti, ‘Constructing Crime: Media, Crime, and Popular Culture’ [2006] 6 Canadian Journal of Criminology and Criminal Justice 48, 837-865; See also Comment, ‘Media Representations Responsibilities: Psychological Perspectives’ [2010] Australian Psychological Society 1, 10.

[4] Universal Declaration of Human Rights (UDHR) (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 10.

[5] G. N. Ray, ‘Tabloidization and Syndrome: Unethical Practices in Media’ [2010] 1 Media Law Review 1, 92; International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 11(1).

[6] Deb Waterhouse Watson, ‘Playing Defence in Sexual Assault ‘Trial by Media’: The Male Footballer’s Imaginary Body’ [2009] 30 Australian Feminist Law Journal 109, 109.

[7] Steven B. Hantler and others, ‘Extending the Privilege to Litigation Communications Specialists in the Age of Trial by Media’ [2004-05] 13 Common Law Conspectus 7, 7.26

[8] UDHR, Art. 10; ICCPR, Arts. 14 and 16; the European Convention of Human Rights (adopted on 4 November 1950, entered into force 3 September 1953) (ECHR) Art. 6; African Charter on Human and Peoples’ Rights (adopted on 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHPR) Arts. 3,7 and 26; the European Charter on Human Rights (ECtHR) Arts. 5, 6 and 7, and the 7th Protocol to the Charter, Arts. 2-4; the American Convention on Human Rights (adopted on 22 November 1969, entered into force 18 July 1978) (ACHR) Arts. 3, 8, 9 and 10; the Sixth Amendment to the United States Constitution; the Constitution of the People’s Republic of Bangladesh (Constitution of Bangladesh) (adopted on 4 November 1972) Art. 35(3); the Criminal Procedure Code (India), Section 304.

[9] A report prepared for the Victorian Department of Justice, ‘Juries and Social Media’ 15 September 2011 <;; See also Hinch v. Attorney-General (Vic) demonstrates [1987] 164 C.L.R. 15 (Australia).

[10] UDHR, Art. 19; ICCPR, Art. 19; ACHR, Art. 13; ACHPR, Art. 9; the Constitution of Bangladesh, Art. 39(2); the Indian Constitution, Art. 19.

[11] Arpan Banerjee, ‘Judicial Safeguards against “Trial by Media”: Should Blasi’s “Checking Value” Theory Apply in India?’ [2010] 2 Journal of Media Law & Ethics 28, 29; Norman McFadyen, ‘Pre-Trial Publicity: Guilty until Proven Innocent’ (20th International Conference: Brisbane, Queensland, Australia, 2-6 July, 2006) 1.

[12] Adopted by the United Nations General Assembly in 1948.

[13] Adopted in 16 December 1966, entered into force 23 March 1976.

[14] Adopted in 4 November 1950, entered into force 3 September 1953.

[15] Furqan Ahmad, ‘Human Rights Perspective of Media Trial’ [2009] 1 Asia Law Quarterly 47, 48; See also Derek E. Mix, ‘The United Kingdom: Background and Relations with the United States’ [2015] Congressional Research Service 9.

[16] Dwight Teeter Jr and Bill Loving, Law of Mass Communications: Freedom and Control of Print and Broadcast Media (University Casebook Series, 6 June 2011) 503-6.

[17] Prof. Amartya Sen, Broadcasting Sector & Policy, Ch. 1, 4, <;

[18] Anand v. Registrar [2009] 8 S.C.C. 106, 174 (Delhi, India); See also Banerjee (n 11) 30.

[19] V.G. Ramachandran, Contempt of Court (6th edn, 2002) 857; See also Anand v. Registrar [2009] 8 S.C.C. 106, 174.

[20] Karen Yeung, ‘Does the Australian Competition and Consumer Commission Engage in “Trial by Media”?’ [2005] 27 Stanford Law & Policy Review 549, 555.


[21] Gest (n 1) 2; Comment, ‘Trial by Newspaper’ [1954-1965] 33(1) Fordham Law Review 61, 70.

[22] Brad J. Bushman and Craig A. Anderson, ‘MediaViolence and the American Public: Scientific Facts versus Media Misinformation’ [2001] Iowa State University 477, 481.

[23] Rank Luther Mott, American Journalism: A History (3rd edn, 1962) 539; Hussain Mohmmad Fazlul Bari, ‘Legal Aspects of Media Trial in Bangladesh’ [2013] 13 Bangladesh Journal of Law 1, 91.

[24] State v. Munir Hussain [1995] 1 B.L.C. 345.

[25] Munir Hussain was the son of Dr. Meherunnessa, a renowned physician.

[26] Sharmin Rima was the daughter of an intellectual land journalist who had been martyred in the Liberation War of Bangladesh.

[27] Hossain (n 24).


[28] A middle-aged woman and the wife of a disabled man.


[29] In exception 1 of Section 300 of the Penal Code,1860 states that culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or cause the death of any other person by mistake or accident. might have been otherwise.


[30] Zachary Swiecicki, How Society’s Opinion of the Case was Affected by the Media Coverage (November 2014) <;.

[31] Id

[32] Geroge Anastaplo, ‘The O.J. Simpson Case Revisited’ [1997] 28(3) Loyola Universit Chicago Law Journal 461, 463.

[33] Id

[34] Deirdre Carmody, ‘Time Responds to Criticism Over Simpson Cover’ the New York Times (New York, 25 June 1994) <;.

[35] Gerald F. Uelmen, ‘Jury-Bashing and the O.J.Simpson Verdict’[1996] 20 Harvard Journal of Law & Public Policy 475, 480.36 Id, 478.

[36] Bhavna Vij-Aurora, ‘Deaf Mute Blind’ The Outlook (India, 13 March 2006) <;.

[37] Id

[38] Vineet Khare and Harinder Baweja, ‘Killers of Justice’ The Tehelka (India, 7 October 2006) < CS.asp>.

[39] Brijesh Pandey, ‘Manu Confessed to Jessica’s Murder’, CNN IBN (India, 25 May 2006) < 1358-3-single.html>

[40] B. Dutt, ‘Ram and Manusmriti’ The Hindustan Times (India, 4 November 2006) <, 0008.htm>.

[41] Harinder Baweja and Vineet Khare, ‘Is There Any Hope Jessica Will Get Justice?’ The Tehelka (India, 25March 2006) < Is thereCS.asp>.


[42] Somini Sengupta, ‘Acquittal in Killing Unleashes Ire at India’s Rich’ The New York Times (New York, 13 March 2006) <http://www.nytimes. com/2006/03/13/international/asia/13india.html?r- 1>.

[43] Banerjee (n 11) 30.

[44] Somini Sengupta, Acquittal in Killing Unleashes Ire at India’s Rich, the New York Times (New York, 13 March 2006) < 1>.

[45] Sharma v. State [2010] 6 S.C.C. 1 (India).

[46] The Constitution of the United States, Amendment I.

[47] The Constitution of the United States, Amendment VI; Thompson, ‘The Law Relatingto Prejudicial News Reporting in Criminal Cases’ [1964] Northwestern University School of Law1, 8.

[48] Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights) Advisory Opinion OC-5/85, November 13, 1985; William M. Ware and Gerard D. DiMarco, ‘Journalistic Media and Fair Trial’ [1969] 18 Cleveland State Law Review 440, 441.

[49] See Irvin v. Dowd [1961] 366 U.S. 717; Marshall v. United States [1959] 360 U.S. 310; People v. Hryciuk [1954] 5 Ill.2d 176, 125 N.E.2d 61.

[50] Adopted by the United Nations General Assembly in 1948; See also Ian Brownlie, Principles of Public International Law (6th ed., Oxford University Press, 2003) 532.

[51] Olivia Ball and Paul Gready, The Nononsense Guide to Human Rights (Oxford: New Internationalist, October 2006) 144.


[52] UDHR, art 19; ICCPR, art 19; AfCHPR, Art 9; ACHR, Art 13; ECHR, Art 10; the Constitution of Bangladesh, Art. 39(2); the Indian Constitution,Art. 19; Chaplinsky v. New Hampshire [1941] 315 U.S. 567.

[53] Inspector General of Police v. All Nigeria Peoples Party and Others [2007] A.H.R.L.R. 179; Regina v. Secretary of State for Education [2005] 2 W.L.R. 590; Lange v. Australian Broadcasting Corp [1997] 189 C.L.R. 520; Lange vs. Atkinson [2000] 1 N.Z.L.R. 257 (PC); Abdus Samad Azad v. Bangladesh [1992] 44 D.L.R. 354.

[54] R v. Secretary of State for the Home Department, exp Simms [1999] 3 W.L.R. 328, 337.

[55] Peter A. Joy and Kevin C. McMuniqal, ‘Trial by Media: Arguing Cases in the Court of Public Opinion’ [2004-05] 19 American Journal of Criminal Justice 47, 47.

[56] Report, ‘State of Human Rights in 2013’ Human Rights Commission of Pakistan <;.duty of imparting information to the common people58.

[57] Dalban v. Romania [GC] App no 28114/95 (ECtHR, 28 September 1999).

[58] Bladet Tromsø and Stensaas v. Norway App no 21980/93 (ECtHR, 20 May 1999).

[59] Kleindienst v. Mandel [1972] 408 U.S. 753; Thomas v. Collins [1945] 323 U.S. 516; Douglas v. Jeanette [1942] 319 U.S. 157.

[60] Schacht v. United States [1970] 398 U.S. 58; Selistö v. Finland App no 56767/00 (ECtHR, 16 November 2004); Campmany and Lopez Galiacho Perona v. Spain App no 54224/00 (ECtHR, 12 December 2000); Bou Gibert and El Hogary La Moda SA v. Spain App no 14929/02 (ECtHR,13 May 2003); Société Prisma Presse v. France App no 71612/01 (ECtHR,1 July 2003); Steel and Morris v. The United Kingdom App no 68416/01 (ECtHR, 15 February 2005); Paturel v. France App no 54968/00 (ECtHR, 22 December 2005); Wingerter v. Germany App no 43718/98 (ECtHR, 21 March 2002); Stambuk v. Germany App no 37928/97 (ECtHR, 17 October 2002); Informationsverein Lentia and others v. Austria (1993) Series A no 276; Von Hannover v. Germany [2005] 40 E.H.R.R. 1; McKennitt v. Ash [2007] 3 W.L.R. 194; Barfod v. Denmark [1989] Series A no 149; Amnesty International v. Zambia [2000] A.H.R.L.R. 325 (ACHPR 1999); Fressoz and Roire v. France App no 29183/95 (ECtHR, 21 January 1999); Bergens Tidende and others v. Norway App no 26132/95 (ECtHR, 2 May 2000); I/A Court H. R,“The Last Temptation of Christ”(Olmedo-Bustos et al.) v. Chile, Judgment of February 5, 2001. Series C No. 73; State of Uttar Pradesh v. Raj Narain [1975] A.I.R. SC 865; P.V. Narasimha Rao v. State [1998] A.I.R. SC 2120; Busuioc v. Moldova App no 61513/00 (ECtHR, 21 December 2004); First Nat’l Bank v. Bellotti [1978] 435 U.S. 765, 777; Parker v. Levy [1974] 417 U.S. 733,744.

[61] Worm v. Austria [1997] 25 E.H.R.R. 454.

[62] UDHR, Art. 29.

[63] Stângu v. Romania App no 57551/00 (ECtHR, 9 November 2004).

[64] H.N. v. Italy App no 18902/91 (ECtHR, 27 October 1998).

[65] Savitchi v. Moldova App no 11039/02 (ECtHR, 11 October 2005); BladetTromsø and Stensaas (n 59); Colombani and others v. France App no 51279/99 (ECtHR, 25 June 2002).

[66] Herrera Ulloa v. Costa Rica [2004] I.A.C.H.R. 3.

[67] Gaudio v. Italy App no 43525/98 (ECtHR, 21 February 2002); Maroglou v. Greece App no 19846/02 (ECtHR, 23 October 2003); Lomakin v. Russia App no 11932/03 (ECtHR, 17 November 2005).

[68] Frankowicz v. Poland App no 53025/99 (ECtHR, 16 December 2008); Azevedo v. Portugal App no 20620/04 (ECtHR, 27 March 2008); Zakharov v. Russia App no 14881/03 (ECtHR, 5 October 2006); Raichinov v. Bulgaria App no 47579/99 (ECtHR, 20 April 2006); Gavrilovici v. Moldova App no 25464/05 (ECtHR, 15 December 2009); Csanics v. Hungary App no 12188/06 (ECtHR, 20 January 2009).

[69] A/S Diena v. Latvia App no 16657/03 (ECtHR, 12 July 2007).


[70] Article 12 of the UDHR reads as follows: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 17 of the ICCPR reads as follows: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

[71] Rama Doyal v. M.P AIR [1978] SC 2481; Gertz v. Robert Welch, Inc. [1974] 418 U.S. 323; Ouko v. Kenya [2000] A.H.L.R. 135 (ACHPR 2000).

[72] See also ECHR, Art. 6(1); ACHR, Arts. 8(1) and 27(2); and AfCHR, Arts. 7(1) and 26.

[73] The Associated Press and Los Angeles Herald Examiner, Hearst Corporation v. US District Court, Central District of California [1983] 705 F.2d 1143, concurring opinion of Judge Poole.


[74] The Jessica Lall Case <;.

[75] Fundamental rights involve freedom of expression and speech, right to privacy, right to get fair trial etc.

[76] Sheppard v. Maxwell [1966] 384 U.S. 333; Estes v. Texas [1965] 381 U.S. 532; Rideau v. Louisiana [1963] 373 U.S. 723; Irvin (n 50); Janko v. United States [1961] 366 U.S. 716 (per curiam); Marshall (n 50).


[77] Id.

[78] Major Ronald B. Stewart, ‘Trial by the Press’ [1969] 43 Military Law Review 37, 67.

[79] Pennekamp v. Florida [1946] 328 U.S. 331, 350.

[80] Justice Frankfurter has contended the same.

[81] KM Nanavati v. State of Maharastra [1962] A.I.R. 605.

[82] Rideau (n 77); Irvin (n 50).

[83] United States v. Henderson [1960] 11 U.S.C.M.A. 556, 29 C.M.R. 372.

[84] Griffin v. United States [1924] 295 Fed. 437.

[85] Marshall (n 50).

[86] Shepherd v. Florida [1951] 341 U.S. 50 (per curiam).

[87] Fouquette v. Bernard [1952] 198 F.2d 96.

[88] United States v. Milanovich [1962] 371 U.S. 876; United States v. Vita [1961] 294 F.2d 524.

[89] Marshall (n 50).

[90] Shepherd (n 87).

[91] Lewis L. Jaffe, ‘Trial by Newspaper’ [1965] 40 New York University Law Review 504–524.

[92] Id.

[93] Id, 52.

[94] Rideau (n 77).

[95] Babb v. State [1917] 18 Ariz. 505, 163 Pac 254; State v. Jackson [1890] 9 Mont. 508, 24 Pac. 213.

[96] United States v. Milanovich, [1962] 303 F.2.d 626; Henslee v. United States, 246 F.2d 190 (5th Cir. 1957).

[97] Cox v. State [1879] 64 Ga. 374, 37 Am. Rep. 76.

[98] Koolish v. United States [1965] 340 F.2d 513.

[99] Koolish v. United States, 340 F.2d 513 (5th Cir. 1965); Stewart (n 79) 67.

[100] Shepherd (n 87).

[101] United States v. Milanovich, 303 F.2d 626 (4th Cir. 1962); Henslee v. United States [1957] 246 F.2d190; Massicot v. United States [1958] 254 F.2d 58.


[103] Briggi v. United States [1955] 221 F.2d 636; United States v. Powell [1959] 717 F. Supp. 202.

[104] Henderson (n 84); Delaney v. United States [1952] 199 F.2d 107.

[105] Bridges v. California [1941] 314 U.S. 252.

[106] Id, 271.

[107] Kaniye S.A. Ebeku, ‘Revisiting the Acquittal of 10 Policemen: Issues of Judicial Independence,

Trial by Media and Fair Trial in Cyprus’ [2010] 18 European Journal of Crime, Criminal Law and Criminal Justice 1, 37; See also Kaniye S.A Ebeku, ‘Revisiting the Acquittal of 10 Policemen: Issues of judicial independence, Trial by Media and Fair Trial in Cyprus’ [2008] 20 Sri Lanka Journfal of International Law 139, 150.

[108] Maxwell (n 77); Reardon, ‘The Fair Trial-Free Press Standards’ [1968] 54 A.B.A.J. 343; Ware and DiMarco (n 49) 440.

[109] Patterson v. Colorado [1907] 205 U.S. 454, 462.


[110] Nicholas A. Battaglia, ‘The Case of Anthony Trial and Wrongful Exonerations: How “Trial by Media” Cases Diminish Public Confidence in the Criminal Justice System’ [2011-12] 75 Albany Law Review 1579, 1591.

[111] Pillai v. Kerala [2000] 7 S.C.C. 129.

[112] State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru Criminal Appeal Nos. 376-378 of 2004 (India).

[113] Shaukat Hussain Guru v. State (N.C.T. of Delhi) Criminal Appeal No. 381 of 2004 (India).

[114] Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) Criminal Appeal No. 157 of 2007 and Criminal Appeal No. 224 of 2007 (India).

[115] Attorney General v. BBC [1981] AC 303, 335.

[116] Felix Frankfurter was an Associate Justice of the United States Supreme Court.

[117] Pennekamp (n 80).

[118] Indian Council of Legal Aid v. State (Writ Petition 17595/2006, 27 November 2006) <;.


[119] Elliot W. Atkinson Jr, ‘Free Press v. Fair Trial: Insulation Against Injustice’ [1973] 33(4) Louisiana Law Review 547, 549.

[120] Pillai (n 112).

[121] Michael Bersten, ‘Pecksniff’s progress Reforming media Contempt’ [1987] 12 Legal Service Bull. 237.

[122] Id.

[123] Estes (77).

[124] British Steel v. Granada [1981] AC 1096, 1113; Stewart (n 100).


[125] Nanda v. State [2009] 160 D.L.T. 775.

[126] Buckley v. Valeo [1976] 424 U.S.1; McIntyre v. Ohio Elections Commission [1995] 514 U.S. 334; O K Ghosh v. E X Joseph [1962] A.I.R. (SC) 812; The Superintendent, Central Prison, Fatehgarh v. Ram ManoharLohia [1960] A.I.R. (SC) 644.

[127] Anamika Ray, ‘Media Glare or Media Trial: Ethical Dilemma between two Estates of India Democracy’ [2015] 5 Online Journal of Communication and Media Technologies 1, 99.

[128] R. v. Duffy, ex parte Nash [1960] 2 All. E.R. 891, 894 (Q.B.); R. v. Odham’s Press, Ltd. [1956] 3 All E.R. 494 (Q.B.).


[129] W.R. Arthur and R.L. Crosman, The Law of Newspapers (1st edn, 1928) 224.

[130] The Contempt of Courts Act, 1926 (Act No. XII of 1926); Under this Act, if an individual is found as guilty of contempt of Court, he/she will be given either simple imprisonment not exceeding six months or fine that may extend to two thousand taka or both; In the case of Md. Samirullah Khan v. State [1963] 15 D.L.R. (SC) 150 it was stipulated that the categories of contempt are too manifold that it is not possible to attempt an exhaustive classification of what may or may not constitute contempt.

[131] The Constitution of Bangladesh, 1972, Art. 39(2).

[132] Id; See also the case of Saadat Khialy v. Satte & ors [1963] 15 D.L.R. (SC) 81 where it has been held that by reading any article or reports of newspaper, if it seems that it has a tendency to prejudice mankind against one or other of the parties involved in a proceedings in a Court of law, then it results an interference with the course of justice and ultimately amounts to contempt of Court. Hence, the act of interfering the justice system can be referred to ‘contempt of Court’ as per the contention of the case mentioned above.

[133] [1963] 15 D.L.R. (SC) 335.

[134] Id.

[135] State v. Editor, Pakistan Observer [1958] 10 DLR 255; Abdus Salam v. State [1958] 10 D.L.R. (SC) 176; [1958] P.L.D. (SC) 528.

[136] The Contempt of Courts Act, 1971, Section 2(c); Section 2(c); See also Section 15 of this Act; A person found guilty of contempt of court may be punished with a fine or imprisonment. However, under Section 12, a court may waive punishment if a contemnor issues an apology to the court’s satisfaction.

[137] The Contempt of Courts Act, 1971, Section 4; Court on its Own Motion v. State [2008] 151 D.L.T. 695-6.

[138] The Contempt of Courts Act, 197, Section 13(2) as amended by Contempt of Courts (Amendment) Act, 2006, Section 2.

[139] The Indian Constitution, Arts. 129, 215; The Constitution designates the Supreme Court and the High Courts as Courts of record and gives them the power to punish for contempt of Court.

[140] [2002] 3 S.C.C. 343.

[141] Pennekamp (n 80).


[142] Bijoyananda v. Balakrushna [1953] A.I.R. 249.

[143] Frey v. Prasad [1958] A.I.R. 377.

[144] Rao v. Gurnani [1958] A.I.R. 273.

[145] Id, 18.

[146] Padmawati v. Karanjia [1963] A.I.R. 61.

[147] Shamim v. Zinat [1971] Cri. L.J. (All.) 1586.

[148] Maharashtra v. Gandhi [1997] 8 S.C.C. 386; Kartongen v. State [2004] 72 D.R.J. 693; Dubey v. Lokayukt [1999] 1 M.P.L.J. 711; Labour Liberation Front v. Andhra Pradesh [2005] 1 A.L.T. 740; Lohia v. West Bengal [2005] 2 S.C.C. 686.

[149] Court on its Own Motion v. Ravi [2009] 2 K.L.J. 166 at 16; Sephy v. India [2009] 1 K.L.T. 126 94, 95.

[150] Also known as Roach v. Garvan and Read v. Huggonson [1742] 2 Atk. 469

[151] Notes, ‘Fair Trial, Free Press, the Contempt Power: Its Historic and Modern Application’ [1968-1969] 3 Suffolk University Law Review 384, 485.

[152] Id.

[153] Id.

[154] Oswald, Contempt of Court (3rd edn, 1910) 91.

[155] Duffy (n 129); in which it was held that after the criminal trial but prior to the time an appeal was filed the proceedings were still sub judice; R. v. Clarke, ex parte Crippen [1910] 103 L.T.R. 636; Dunn v. Bevan [1922] 1 Ch. 276.

[156] R. v. Bolam, ex parte Haigh [1949] 93 Sol. J. 220; R. v. Editor and Printers and Publishers of the Evening Standard [1924] 40 T.L.R. 833; King v. Daily Mirror [1927] 11 K.B. 845; Odham’s Press Ltd. (n 129); See also Gillmor, ‘Free Press and Fair Trial in English Law’ [1965] 22 Washington & Lee Law Review 17, 18-19.


[157] Vine Products, Ltd. v. MacKenzie & Co. Ltd. [1965] 3 All E.R. 58, 63; Duffy (n 129); Bridges (n 106); Odham’s Press Ltd. (n 129); Goodhart, ‘Newspapers and Contempt of Court in English Law’ [1953] 48 Harvard Law Review 885, 886.

[158] The Contempt of Court Act, 1981, Sections 1-7 (the UK).

[159] David Barnard, ‘Contempt of Court Act 1981’ [1981] 125 Solicitors Journal 715, 715; The Contempt of Court Act, 1981, Section 2(1) and 2(2); Report, ‘Trial by Media: Report on Free Speech and Fair Trial under Criminal Procedure Code, 1973’ [2006] Law Commission of India 1, 161-2; In the UK, the Contempt of Court Act, 1981, Section 4(2) allows Courts to postpone the publication of information which would create a “substantial risk of prejudice” to a proceeding or imminent proceeding. The Commission explained that it was employing the words “real risk” and “serious prejudice” as prior restraint (as opposed to postponement) requires “more stringent conditions.” Attorney General for Manitoba v. Winnipeg Free Press Publishing Co. [1965] 47 C.R. 48, at 50, 52; Report, ‘Contempt of Court’ [1982] Law Reform Commission of Canada 1, 28.

[160] The Contempt of Court Act, 1981, Section 5 which says that “[a] publication made as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as contempt under the strict liability rule if the risk of… prejudice … is merely incidental to the discussion.”; R. v. Thibodeau [1956] 23 C.R. 285, 116 (N.B.Q.B.). However, it has been held in Re Regina and Carocchia [1972]14 C.C.C. (2d) 354, 357 that neither truth nor good faith alone is a defence; Notes (n 152) 487.

[161] Maxwell (n 77).


[162] Comment (n 21) 61; Bersten (n 122) 237.

[163] Professor Michael Chesterman, ‘Media Prejudice during a Criminal Jury Trial: Stop the Trial, Fine the Media, or Why Not Both?’[1999] 1 University ofTechnology, Sydney Law Review 71, 71.

[164] Banerjee (n 11) 49.

[165] Ira H. Meyer, ‘Constitutional Law – Fair Trial and Free Press – State Court Contempt Power’ [1966-1967] 18 Western Reserve Law Review 1376, 1383; Ware and DiMarco (n 49) 440.


[166] Id.

[167] Id.

[168] Id.

[169] Green,T.H. and T.H. Grose, The Philosophical Works (Volume 3, London, 1882) 110.


[170] Manu Sharma v. State (2010) 6 S.C.C. 1.

[171] Khondakar Mostaque Ahmed vs. Bangladesh [1982] 34 D.L.R. (AD) 222; Mostafizur Rahman vs. State [1999] 51 D.L.R. 422.

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