Twinkle, Asian Law College
Syed Shiraz Fazal, Asst. Professor, Lloyd Law College
In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice ... Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial. - Jeremy Bentham
ABSTRACT
The administration of justice involves innumerable aspects which require the prompt attention of the court. The courts assiduously endeavor to be unprejudiced. However, in the event of excessive media interest in a particular matter, there exist possibilities for bias to enter the minds of individuals. The fact that a judge is also an individual belonging to the society raises concern. The unanswered question is whether a trial by media hampers the fair administration of justice. Also, if such actions by the media interfere with a right of the accused to a fair trial, then will the right of free speech and expression protect the media? In such cases there is a clear collision between two fundamental rights enshrined in Article 21 and Article 19 respectively. The courts when faced with this conundrum have evolved a balancing mechanism through a neutralising device.
The significant issue lies in determining which fundamental right will prevail in these circumstances and to what extent. It is also necessary to consider prior restraint upon the media as a measure to curb its ability of interfering with court proceedings. The infringement of free speech and expression is a product of such a restraint. Thus, one must try to find a remedy which is moderate in its nature and does not exceed the ambit prescribed by reasonable restrictions. The mandate of the paper will permit it to examine the remedy evolved by the courts in India while dealing with the cases involving a conflict between two fundamental rights. The paper will scrutinise whether prior restraint may be used as a remedy.
It will also deal with the concept of open justice and bulwarking the accurate media reports from any restrictions. The paper will analyse the position of law in the United States and the United Kingdom with respect to trial by media and conclude that there exists a severe lack of a proper mechanism for resolving the conflict arising between freedom of speech and fair administration of justice.
