Justice Manmohan Singh also ordered the defendants - The Indian Express, Times Now and CNN-IBN – to remove certain articles and items from its archives, and restrained them from publishing Kumar’s photograph in connection to the story. CNN-IBN’s online sister publication FirstPost, has already removed images of Kumar from its website.
The interim injunction will be binding on the defendants and “any other person, entity, in print or electronic media or internet”, until the next date of hearing, which was listed for 24 February.
However, Singh added that the “observations made in this order are prima facie in nature and will not preclude the defendants to report the Court cases and happenings as facts which are covered ambit of fair reporting on the basis of true, correct and verified information”.
Kumar is assisted in his Rs 5 crore defamation suit by law firm Karanjawala & Co and nine senior counsel led by Mukul Rohatgi, and more than a dozen other lawyers (see below).
Times Now-owner Bennett Coleman was represented by senior counsel Ashwani Mata and Dinesh Dwivedi and Luthra & Luthra partner Vijay Sondhi, with CNN-IBN-owners Global Broadcast News and Turner International drafting in advocate Dr Saif Mahmood.
Indian Express reporter Maneesh Chibber, the anonymous intern through the reporter, and the Ministry of Information and Broadcasting are also co-defandants.
Reports at issue
Following the January resignation of former Justice Asok Kumar Ganguly, who was alleged to have sexually harassed a former intern after his retirement from the bench, the Express had broken the story detailing the allegations against Kumar made in a complaint to the Chief Justice of India (CJI) by another intern in December.
She alleged that she had been harassed by Kumar in 2011, while interning with him at the Supreme Court.
The existence of a second allegation was first reported on 19 December 2013 by the Mail Today, but was not picked up by any other media outlets until the Express re-reported the story on 10 January, without naming the judge.
Later that day at 9pm, CNN-IBN anchor Rajdeep Sardesai – alleged by the plaintiff “with a view to steal a march over the [Times Now’s] TRPs and allegedly in order to create sensation”, named Kumar as the judge in question. The following day the Express published excerpts from the intern’s complaint after calling Kumar for a comment on the story.
Singh’s order singled out, in particular, the 11 January Express headline that read “Justice S Kumar... put his right arm around me, kissed me on my left shoulder... I was shocked”, without also stating in the headline that this was an as-yet unproved claim.
The Delhi high court judge also cited a later debate on Times Now, hosted by editor-in-chief Arnab Goswami, which also named Kumar.
In his order that Kumar, Singh noted that Kumar:
has been able to make out a strong prima facie case on the basis of the disclosure of the material available on record especially copies of newspapers at page No s . 6, 8, 10 of the documents and the CDs which clearly show that the defend ants have published the write ups and telecasted by highlighting the allegations on the front page in order to create sensation amongst public and made it apparent by creating the impression that the plaintiff in all probability is involved in such incident.
The balance of the convenience is also in favour of the plaintiff as the degree of the prejudice is far more excessive than that of the defendants. The irreparable loss shall ensue to the plaintiff at this stage and not to the defendants if such publications and telecast of TV news of such nature on similar lines are not postponed.
A public interest litigation before the Supreme Court, led by senior counsel Harish Salve, has requested the court to examine whether it has the power to inquire into the charges because Kumar is not a judge anymore but head of the National Green Tribunal.
Justice Kumar’s counsel
Mr.Mukul Rohatgi, Sr.Adv.,
Mr.A.S.Chandhiok, Sr.Adv.,
Mr.Rajiv Nayar, Sr.Adv.,
Mr.Neeraj Kishan Kaul, Sr.Adv.,
Mr.Vinay Bhasin, Sr.Adv.,
Mr.Maninder Singh, Sr.Adv.,
Mr.Kirti Uppal, Sr.Adv.,
Mr.Sandeep Sethi, Sr.Adv.,
Mr.Aman Lekhi, Sr.Adv. with
Mr.Sudhir Walia, Mr.Ralan
Karanjawala, Ms.Fareha Ahmad
Khan, Mr.Abhijat, Mr.Mohit Mathur,
Mr.P.Banerjee, Ms.Manmeet Arora,
Ms.Meghna Mishra, Mr.Akshay
Makhija, Mr.Ashish Dholakia,
Mr.Abhimanya Mahajan, Ms.Mansi
Sharma, Ms.Nidhi Parashar,
Ms.Niyati Kohli & Mr.Varun Kumar Tikmani, Advs.
Indian Express & Ors counsel
Mr.Ashwani Mata, Sr.Adv. &
Mr.Dinesh Dwivedi, Sr.Adv. with
Mr.Vijay Sondhi, Mr.Kunal Tandon,
Mr.Kapil Arora & Ms.Nidhi, Advs.for D-3 [Times Now].
Dr.Saif Mahmood, Adv. for D-4 [CNN IBN].
Mr.Rajeeve Mehra, ASG with
Mr.Sachin Datta, CGSC & Mr.Vineet
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Will it not make Supreme Court to re-think whether or not to allow internships any more in its campus.
Look at the drain of time and energy of judiciary/media, when they are burdened with much bigger and serious responsibilties.
If an intern is really affected, let her set the appropriate legal course in motion (by filing an FIR, etc.) and not by approaching the SC directly, especially when there is no provision.
So allegations of sexual harassment against supreme court judges are not a priority in your mind ?
Quoting Jury:
If what you write isnt "true, correct and verified information", you betcha rocky. You betcha. And remember, Big Brother is always watching and will find you. Fo shizzle.
Beyond the legal merits, how does one look at it now ?
A show of strength or a cabal protecting one of its own ?
In another case which involved a DNA India report following which a former Bombay HC judge alleged internet defamation ( ow.ly/bP0DN and janamejayan.wordpress.com/2012/11/01/one-more-case-of-misuse-of-section-66-a-of-it-act/ ) IT Act Section 66A was pressed into service.
Later, in another Bombay HC case Manoj Oswal PIL articles.timesofindia.indiatimes.com/2013-08-19/mumbai/41424525_1_website-section-66-a-section-66a the power of IT Act Section 66A has been further expanded by a related judge. These have been very interesting developments for internet defamation.
Certainly anyone wanting to speak their mind has to take all this into consideration if they want to sleep in peace after speaking.
The ex-judge's principal irritant is with television talk shows and newspapers to which the IT Act does not apply ?
May be ? May be not ? Even ow.ly/bP0DN is only a newspaper report. Who cares ? Such questions are only asked in Courts and that too months or years later (if at all it ever goes to endgame).
Who cares really, when you can "apply" much better heat from day 1 and get real results ?
(Of course you need a little help from the cops. Unless you are very small fry, you know how to wrangle that).
Strategy : Melt the targets first and get them to censor themselves. If it works, make sure they have STFU'd, and you make a generous gesture of pardoning the culprits... And a chilling effect remains in its wake so that any wannabe's have been taught a lesson. Peace and prosperity all around. Got it ?
There are certain things, which must be observed more in violation than in compliance for the greater cause. In this case, Media will do a noble cause by defying the illegal and unwarranted diktat of the High Court. It must rise to the occasion to prove to the whole world that the media is not a lap dog but a watchdog that does not only barks but also bites, when the need arises. I am not going into the merits of allegations made against Justice Swatanter Kumar by a law intern, when he was the sitting judge of the Supreme Court. In fact, I have no right to do so. However, I certainly have the right to know what others say about it and more so what the accuser is saying against the accused.
What is most distressing is that at a time when the Supreme Court of India wants to go into the bottom of the case but the Delhi High Court has put the blanket ban on the reporting of the case. It must be mentioned here that once Justice S.H. Kapadia, as the Chief Justice of India, was also very much agitated by the publication of some reports and he took suo muto steps to frame guidelines for reporting of the court cases. However, when the case was argued at length, the Supreme Court bench headed by him, refused to lay down any guidelines that is clear from the reading of ‘Sahara India Real Estate Corporation Ltd. and others versus SEBI and others’ case.
I, therefore, call upon the media to come out openly against this blanket ban and oppose it with full force to uphold and preserve the constitutional rights of the people.
Mr.Mukul Rohatgi, Sr.Adv.,
Mr.A.S.Chandhiok, Sr.Adv.,
Mr.Rajiv Nayar, Sr.Adv.,
Mr.Neeraj Kishan Kaul, Sr.Adv.,
Mr.Vinay Bhasin, Sr.Adv.,
Mr.Maninder Singh, Sr.Adv.,
Mr.Kirti Uppal, Sr.Adv.,
Mr.Sandeep Sethi, Sr.Adv.,
Mr.Aman Lekhi, Sr.Adv. with
Mr.Sudhir Walia, Mr.Ralan
Karanjawala, Ms.Fareha Ahmad
Khan, Mr.Abhijat, Mr.Mohit Mathur,
Mr.P.Banerjee, Ms.Manmeet Arora,
Ms.Meghna Mishra, Mr.Akshay
Makhija, Mr.Ashish Dholakia,
Mr.Abhimanya Mahajan, Ms.Mansi
Sharma, Ms.Nidhi Parashar,
Ms.Niyati Kohli & Mr.Varun Kumar Tikmani, Advs.
What's the conflict? Could you please cite the provision(s) of law which prevents this?
The rule is one of natural justice and reasonable apprehension of bias that a judge might be inclined in favor of a lawyer who has defended the judge in legal proceedings. (pro bono most likely in Swatanter Kumar's case)
One recent ASG had represented a sitting Delhi High Court judge in perjury proceedings when the latter was a lawyer, yet the former has appeared before the judge subsequently, and this in my view was highly inappropriate.
I can name them but legallyindia would likely censor the names.
1. There is no conflict of interest. By definition, a “conflict” arises when a lawyer represents a client, which representation is detrimental to an existing client of the lawyer. For example, if I am retained by a company, I cannot take up a case against the company. I think you are referring to "professional conduct", rather than "conflict". The prescribed "Duties of advocates" do not prohibit a lawyer from appearing before a judge with whom the lawyer's relationship is purely "professional". If I may clarify, bonds formed at the Bar are not "personal".
2. Natural justice is not a vague and lose concept. There are established principles of natural justice and none of them are violated if a lawyer appears before a judge who was his client at one point of time. In fact, if that constituted a breach of natural justice, no lawyer, who was at some point a chamber-junior or a judicial-clerk to a judge, would be able to appear before the judge. Similarly, no solicitor firm, which gave business to a judge during his lawyer days, would be able to represent clients before the judge. Accordingly, the applicable tests are the “test of real likelihood of bias or reasonable suspicion of bias” and the “reasonable suspicion test”, which are based on the fundamental principle that allegation of bias cannot stand if it is far-fetched.
3. Related to (2), the courts have examined what constitutes “bias” from time to time. Case law is clear that “personal” bias cannot be assumed merely because of a “professional” relationship and mala fide cannot be naturally assumed – to the contrary, it must be assumed that office holders will do their duty.
4. The view in (3) is further clarified by case law which states that a judge can hear the case of someone who was his client, before his elevation to the bench. If a judge can hear a client’s case (because “personal bias” cannot be assumed in such circumstances), a judge can surely preside over proceedings in which his own lawyer is entering appearance for one of the parties.
Is there any “legal” provision or case law which prohibits a lawyer from appearing before a judge who is/was his client i.e. bar on appearance by virtue of a "professional" relationship? Please do not cite "moral" views of a section of the Bar.
I did not mention any "moral" grounds. On the contrary, according to me, the "legal" principle of natural justice would prohibit a lawyer who has defended a judge in personal litigation from appearing before the judge because of the 'reasonable apprehension of bias' that the judge might be inclined to favor the lawyer who "stood up" for him so to say. There is a conflict of interest which gives rise to a reasonable apprehension of bias.
I point out that the lawyers who have appeared for Swatanter Kumar pro bono have publicly adopted a stance that they support him against the intern's allegations of sexual harassment.
Reasonable apprehension of bias is the same thing as reasonable suspicion of bias.
There will be an attorney-client relationship between these lawyers and Swatanter Kumar. For example, Swatanter Kumar might as part of this attorney-client relationship have shared with these lawyers information detrimental to his case against the intern.
According to me the proposition that you state in point 4 is incorrect and I am not aware of any such case-law. If this proposition is the ratio of any binding precedent then in my view that case-law is bad law and legally and constitutionally incorrect.
I repeat I am not citing moral grounds but my view is based upon the principle of natural justice which has been read into Article 14 of the Constitution of India by the Supreme Court of India.
First no allegations can be reported without stating that these are allegations.
Second - His photograph cannot be published.
Third - offending content and photographs must be removed.
Fourth - There appears to be a restraint on uploading "defamatory" articles.
According to me there is no real injunction on the media under 1, 2 and 3.
Number 4 is strange and legally unjustifiable - truth is a legal defence to a complaint of defamation, there is yet no judicial determination as to whether anything was actually defamatory, a prior restraint cannot cover defamatory content.
Anyone can upload content on this issue which they are satisfied meets the test of being non-defamatory.
Read at www.hindustantimes.com/comment/namitabhandare/time-to-say-enough-to-sexual-harassment/article1-1174097.aspx?google_editors_picks=true
See www.thehindu.com/todays-paper/tp-national/gag-order-an-unwarranted-intrusion-into-media-freedom/article5588662.ece
There are several other news reports about this statement released by the Editors Guild but I can't find the actual statement.
Can legallyindia provide a link?
However, the danger would lie in the still anonymous intern being subjected to all kinds of pressure etc to give up her complaint.
And I would not say Ganguly got away.
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