ISLAM KHAN AND OTHERS V STATE OF RAJASTHAN AND ORS.

This insightful article has been thoughtfully written by Sanjana Singh Parihar & she is an author at Lexful Legal.

1. WHAT IS A “MEDIA TRIAL BY POLICE”?

A media trial by police refers to the deliberate conduct by law enforcement officials through press conferences, social media posts, staged arrests, perp walks, photographs of detainees, and leaking information that publicly projects an accused person as guilty before any court has adjudged them. It is different from a general media trial because the source of the narrative is the State itself, through its police machinery.

The Supreme Court came down heavily on the growing tendency among investigating officers to inform the media, even before the completion of investigation, that they have caught a criminal or an offender observing that such crude attempts to claim credit for imaginary investigational breakthroughs should be curbed, since premature disclosures or “leakage” to the media in a pending investigation will not only jeopardise and impede further investigation, but many a time allow the real culprit to escape from law.  Rajendran Chingaravelu v. RK Mishra, Civil Appeal No. 7914 of 2009

The Court said that-

“ There is a growing tendency among investigating officers (either police or other departments) to inform the media, even before the completion of investigation, that they have caught a criminal or an offender. Such crude attempts to claim credit for imaginary investigational breakthroughs should be curbed. Even where a suspect surrenders or a person required for questioning voluntarily appears, it is not uncommon for the Investigating Officers to represent to the media that the person was arrested with much effort after considerable investigation or a chase. Similarly, when someone voluntarily declares the money he is carrying, media is informed that huge cash which was not declared was – discovered by their vigilant investigations and thorough checking. Premature disclosures or leakage to the media in a pending investigation will not only jeopardise and impede further investigation, but many a time, allow the real culprit to escape from law. Be that as it may.”[para 13]

2. FORMS OF POLICE-DRIVEN MEDIA TRIALS

The case review document (Islam Khan, S.B. Crl. W.P. No. 224/2026) specifically raises three police practices that constitute institutional humiliation and media trial:

1. Perp Walks — Parading the accused before cameras. The case review notes that practices prevalent in the USA, such as “perp walks,” are violative of a person’s right to live with human dignity under Article 21 of the Constitution.

2. Photographs and Videos — Taking and circulating photographs of the arrested accused inside the police station. The case review document argues that lasting digital records on social media platforms related to pictures taken inside police stations and stripping inside locker rooms leave irreparable psychological impact, even if the person is later exonerated.

3. Press Conferences — Announcing arrests and projecting guilt before trial. The Supreme Court of India ordered the Union Home Affairs Ministry to develop a thorough SoP within three months on the subject matter of press conferences given by police officials in criminal cases, to prevent the consternation faced by persons put in the dock of media trial on the basis of statements given by these officials.

3. CONSTITUTIONAL FRAMEWORK

Media trial by police in India through Perp walks, press briefings and dispersion of photos lead to violation of following articles of the Constitution:

• Article 19(1)(a)– It states that all citizens have right to freedom of speech and expression,it also includes freedom to press but it has reasonable restrictions which is given under Article 19(2) of Indian Constitution.he subject of ‘trial by media’ or prejudice due to ‘pre-trial’ publications by the media is closely linked with Article 19(1)(a) which guarantees the fundamental right of ‘freedom of speech and expression’, and the extent to which that right can be reasonably restricted under Article 19(2) by law for the purpose of Contempt of Court and for maintaining the due process to protect liberty.

• Article 20(3)– it provides immunity to an accused against self-incrimination.It means no person is accused of an offence shall be compelled to be a witness against himself.

• Article 21– It guarantees the right of every individual to a fair and impartial trial, free from any bias or prejudice. In the context of media trials, this provision could be invoked if media coverage is deemed to be unfairly influencing public opinion or prejudicing the investigation or trial of a case. The core of the Islam Khan case  rests on the argument that institutional humiliation by police constitutes psychological and mental violence. The case review explicitly cites the Kantian concept of human dignity that each rational being possesses inherent worth and argues that perp walks, stripping in lock-up, and photographs taken post-arrest violate Article 21. The case review in the Islam Khan matter takes this further, noting that digital records on social media “leave irreparable psychological impact, even if person exonerated from the allegations levelled against him” analogising to the Greek concept of the “Ship of Theseus,” where the person never remains the same after institutional humiliation.[1]

•  Presumption of Innocence– Premature disclosures regarding ongoing investigations could violate the presumption of innocence and have the unintended consequence of shaping public narratives before trial. The Islam Khan case review raises this as its central grievance — the police, by publicising the arrest and conducting what the petitioner’s counsel characterised as institutional humiliation, arrogated to themselves the role of judge before any judicial process commenced.

Ø  Constitutional Morality

The case review document raises the doctrine of “Constitutional Morality”. It argues that Constitutional Morality is the “total of Individual Liberty, Rule of Law, Due Process of Law, Right to Equality, Social Justice.” The actions of police must pass the test of Constitutional Morality, if they do not, they cannot be allowed. According to St Thomas Aquinas “if the act is injustice, then it should not be allowed”.

• LEGAL FRAMEWORK

• Law commission 200^th Report, 2006- “Trial by Media: Free Speech Vs. Fair Trial Under Criminal Procedure”

Key finding-

1.The pressure on the police from media day by day builds up and reaches a stage where police feel compelled to say something or the other in public to protect their reputation. Sometimes when, under such pressure, police come forward with a story that they have nabbed a suspect and that he has confessed, the ‘Breaking News’ items start and few in the media appear to know that under the law, confession to police is not admissible in a criminal trial. Once the confession is published by both the police and the media, the suspect’s future is finished. When he retracts from the confession before the Magistrate, the public imagine that the person is a liar. The whole procedure of due process is thus getting distorted and confused.

2.If there are prejudicial publications after arrest and before the person is brought before Court or his plea for bail is considered, there are serious risks in his getting released on bail. Certain acts like publications in the media at the pre-trial stage, can affect the rights of the accused for a fair trial. Such publications may relate to previous convictions of the accused, or about his general character or about his alleged confessions to the police etc.

3. Prior to identifying an accused person in a police line-up, a witness had been shown by a police officer a photograph of the accused, then it would be strongly argued that the identification in the line-up was useless, or at least of very limited value. It would be argued that, because of what is sometimes described as the displacement effect, there was a high risk that at the time of the line-up, the witness was performing an act of recognition, not of a person who had been seen by the witness on some previous occasion, but of the person in the photograph. Attorney General (NSW) v. Time Inc. Magazine Co. Ltd. (unrep.CA 40331/94 dated 15th September 1994)

4. In several countries, U.K, Australia, New Zealand etc, any publication made in the print or electronic media, after a person’s arrest, stating that the person arrested has had previous convictions, or that he has confessed to the crime during investigation or that he is indeed guilty and the publication of his photograph etc, are treated as prejudicial and as violative of due process required for a suspect who has to face a criminal trial. It is accepted that such publications can prejudice the minds of the Jurors or even the Judges (where Jury is not necessary).

5. The Commission gave specific examples of media publicity which can cause prejudice- a photograph of the accused where identity is likely to be an issue, as in criminal cases; suggestions that accused had previous convictions, or has been charged for committing an offence and/or previously acquitted, or has been involved in other criminal activity; suggestions that the accused has confessed to committing the crime in question; suggestions that the accused is guilty or involved in the crime for which he or she is charged or that the Jury should convict or acquit the accused; and comments which engender sympathy or antipathy for the accused and/or which disparage the prosecution or which make favourable or unfavourable references to the character or credibility of the accused or a witness.

6. Though a confession to police is inadmissible in law still publications of confessions before trial are treated as highly prejudicial and affecting the Court’s impartiality and amount to serious contempt. In New South Wales, a police officer was found guilty of contempt, in the course of police media conference following the arrest of a suspect in a murder inquiry, he answered a journalist’s question with a statement which suggested that the person confessed to the police. He was held to be in contempt. AG (NSW) v. Dean : (1990) NSWLR 650

• D.K. Basu Guidelines (D.K. Basu v. State of West Bengal  AIR 1997 SC 610)

The Supreme Court laid down guidelines to be followed in all cases of arrest and detention, aimed at ensuring transparency in arrests and preventing illegal detentions, and protecting arrested individuals from torture and cruel, inhuman, or degrading treatment

The Islam Khan case invokes the D.K. Basu framework in two specific ways. First, D.K. Basu is cited in the “Judicial Review” section of the case review document as direct authority for the proposition that High Courts have jurisdiction to scrutinise police actions and ensure they remain within constitutional limits. Second, the Islam Khan petition extends the D.K. Basu logic, where D.K. Basu addressed physical custodial violence, the Islam Khan petition argues that psychological or institutional humiliation through perp walks, photographs, and media exposure , is a species of the same violation of Article 21 dignity rights. The suggestive measures proposed in the case review (CCTV cameras, secrecy of photographs, punitive transfers) are essentially an updated D.K. Basu-style charter addressing the digital-age dimensions of custodial abuse.

• Contempt of Court

‘Contempt of Court law’ deals with non-interference with the “administration of justice,” and that is how the “due course of justice” that is required for a fair trial, can require imposition of limitations on the freedom of speech and expression

Sections 2 of the Contempt of Courts Act, 1971 are relevant Section 2(c) defines ‘Criminal Contempt’ as “Section 2(c): ‘Criminal contempt’ means the publication, (whether by words, spoken or written or by signs, or by visible representations, or otherwise), of any matter or the doing of any other act whatsoever which prejudices or interferes or tends to interfere with the due course of any judicial proceedings; or interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any manner”.

If media exercises an unrestricted or rather unregulated freedom in publishing information about a criminal case and prejudices the mind of the public and those who are to adjudicate on the guilt of the accused and if it projects a suspect or an accused as if he has already been adjudged guilty well before the trial in court, there can be serious prejudice to the accused. In fact, even if ultimately the person is acquitted after the due process in courts, such an acquittal may not help the accused to rebuild his lost image in society.

“If excessive publicity in the media about a suspect or an accused before trial prejudices a fair trial or results in characterizing him as a person who had indeed committed the crime, it amounts to undue interference with the “administration of justice”, calling for proceedings for contempt of court against the media. Other issues about the privacy rights of individuals or defendants may also arise. Public figures, with slender rights against defamation are more in danger and more vulnerable in the hands of the media. The Press Council of India issues guidelines from time to time and in some cases, it does take action. But, even if apologies are directed to be published, they are published in such a way that either they are not apologies or the apologies are published in the papers at places which are not very prominent.” R. Rajagopal v. State of Tamil Nadu :AIR 1995 SC 264

“The Supreme Court has held that a trial by press, electronic media or by way of a public agitation is the very anti-thesis of rule of law and can lead to miscarriage of justice. A Judge is to guard himself against such pressure.” State of Maharashtra v. Rajendra Jawanmal Gandhi : 1997 (8) SCC 386.

Recommendations by 17^th Law Commission in its 200^th report for amending the provisions of the Contempt of Court Act, 1971

A separate section has to be inserted (section 10A) for the purpose of enabling the Court to punish for criminal contempt by publication under sub clause (ii) and (iii) of sec 2(c), so that action can be taken directly in the High Court in the manner stated under sec 15(1) either suo motu or as the application of any person – such as accused or suspect or others affected by the prejudicial publication. We are referring to clause (1) of sec 2 here, and restricting the sub clauses (ii) and (iii) and clause (c ) which deal with publications. We are not here concerned with clause (i) of sec 2( c) for which sec 15(2) procedure by reference or motion by Advocate General will continue to apply.

Despite being submitted in 2006, the Contempt of Court (Amendment) Bill, 2006 was never enacted. The Report remains an authoritative reference cited by courts as it is in the Islam Khan case but its legislative recommendations await parliamentary action nearly two decades later.

The Islam Khan case review invokes the 200th Report at its most pointed in arguing that what the Rajasthan Police did after the arrest falls within the category of prejudicial conduct that the Law Commission had already urged Parliament to criminalise. The specific measures the case review proposes — secrecy of photographs, no media exposure, CCTV oversight are consistent with the Report’s Chapter IX categories of prejudicial publications. The case review’s argument that the guidelines must be “strictly adhered to” is a direct call to the Rajasthan High Court to treat non-compliance as a contempt matter, precisely the enforcement mechanism the Report envisioned.

• GUIDELINES/ SUGGESTIONS

1. Media persons to be trained in certain aspect of law:

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 under Art 19(2). Aspects of constitutional law, human rights, protection of life and liberty, law relating to defamation and Contempt of Court are important from the media point of view.

• Every state must establish an independent Police Complaints Authority- a body outside the police force to receive and decide complaints of police misconduct, including illegal arrests and public humiliation of accused persons. The investigation wing of the police must be separated from the law and order wing so that investigative integrity is not compromised by political pressure to “show results” to the public.

• Mandatory CCTV cameras must be installed in every part of a police station, barracks, locker rooms, entry and exit points, staff areas, and waiting areas. No blind spots where abuse or humiliation can happen off the record. CCTV footage must be preserved safely by each police station. Tampering with or deleting CCTV records must be treated as a separate offence.

• Photographs and videos of the accused taken by police are strictly for the official record only. They can only be seen by the station in charge, senior officers, or the investigating officer. Every investigating officer is personally accountable for keeping these confidential. Sharing them with the media directly or indirectly must attract punishment.

• Adequate compensation must be paid to the victim of institutional humiliation if the allegations are proven. This compensation is payable by the State, not merely by the individual officer, since it is a constitutional violation, not just a personal wrong.

• Punitive action must follow as a consequence, not a discretion. The erring police officers must be transferred from the concerned place and given a non-field posting, meaning they must be removed from any role involving direct contact with arrested persons, investigations, or media.

7.  Witnesses must not be interviewed by the media during a pending investigation. Doing so interferes with the administration of justice and can be treated as contempt of court. Digital permanence changes the stakes. A photograph or video shared online does not disappear even after acquittal. The psychological and reputational harm is permanent. This demands higher preventive standards, not just compensation after the damage is done.

8. Departmental action can be taken against the police-

• Section 29 of the Police Act 1861, In the context of police-led media trials, staging perp walks, photographing arrestees for media, and leaking investigation material to press all potentially fall within “wilful breach or neglect of any rule or regulation or lawful order” particularly after courts have passed directions prohibiting such conduct, as the Rajasthan High Court had done in the Islam Khan matter.

• High Courts should be given the power to order media to postpone or stop publication of any material related to a criminal case if it poses a real risk of serious prejudice to the accused’s fair trial.
• The identity and photograph of a suspect must not be published or broadcast, especially in sensitive or high-profile cases. Police who reveal the identity of an arrested person to the media are equally responsible as the media that publishes it. An accused person’s past criminal record must not be published at the time of arrest. It prejudices bail proceedings and poisons public opinion before trial. Alleged confessions, whether made to police or to journalists, must not be published before they are tested in court. Violations of these restrictions must attract penalties, not merely advisories.

1. The guidelines given by the 17th Law Commission in its 200th Report titled “Trial by Media: Free Speech and Fair Trial under Criminal Procedure Code, 1973” must be strictly adhered to. The identity of the suspect and the witness must not be revealed at any point during proceedings in prominent, emotionally charged cases, and violations must result in a penalty.

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