Karanjawala & Co, the law firm representing Swatanter Kumar in his Rs 5 crore defamation suit against the Indian Express, Times Now and CNN-IBN, has sent a legal notice requesting the removal of “all offending material” published in a Legally India article, including a “blurred” photograph of the former judge.
The 16 January 2014 Delhi high court order injuncted those defendants and other persons from reporting certain allegations against Kumar without prominently noting that they were in fact allegations.
The court also ordered the removal in respect of photographs and previous articles on Kumar published by the defendants. [Delhi high court 16 January 2014 order (PDF)]
Legally India reported the court’s order on 17 January [story], alongside a heavily pixellated stock photo of Kumar in his judge’s robes [photo].
Karanjawala wrote in an email today that Legally India had “published a photograph of our client which establishes a connection with certain allegations of sexual harassment made by a purported intern. The photograph as published on the website, albeit blurred, can be identified to be that of our client”:
“You are further called upon to remove forthwith but not later than 24 hours of receipt of the notice, all offending material contained in the article […] including the photograph of our client […]. Please note that any violation of the aforesaid injunction order by you will compel our client to initiate proceedings against you, for disobedience of the injunction granted by the Hon'ble Court as also proceedings under the Contempt of Court Act, 1973. Our client reserves his right to take appropriate action against you for any violation of the orders of the Hon’ble Court.”
Legally India is currently consulting lawyers on whether to comply with the takedown request.
Text of email from Karanjawala:
The Publishing Editor, [Kian Ganz]
Legally India
Re: Swatanter Kumar v. The Indian Express Limited being CS (OS) No. 102 of 2014 pending before the Hon’ble High Court of Court Delhi
Our client: Mr. Swatanter Kumar (Former Judge of the Supreme Court of India)
Dear Sir,
Under instructions of and on behalf of our client, we write to you as under:
1. Our client has instituted a suit, registered as Civil Suit (OS) No. 102 of 2014 in the High Court of Delhi seeking, inter alia, an injunction restraining any person or entity from publishing, republishing, carrying out any report or articles or any discussion or reporting or publishing in any other manner, any other matter of any kind directly or indirectly pertaining to the purported complaint filed by an intern against our client.
2. That the Hon'ble High Court of Delhi, vide order dated 16.01.2014, while recording submissions of our client [including those in paragraph 22 of the order dated 16.01.2014] was pleased to pass, by way of an ad interim injunction, certain directions as contained in paragraphs 63, 64, 65 and 66 of the order dated 16.01.2014. The aforesaid paragraphs are reproduced herein below:
“22. The plaintiff has also stated that there are a large numbers of newspapers in various languages in India. There are also several news and general entertainment channels and online websites. Due to the advent of internet and mass media, it is impossible for the plaintiff to determine as well as to implead all the newspapers and TV channels as well as entities reporting/carrying publishing defamatory material against the plaintiff. Defendant No.6 has regulatory control over the said entities/persons. The plaintiff prays that an injunction order be passed against the said other persons also who are not made party hereto, including defendant Nos.1 to 5.
“63. In view of the aforementioned discussion, I find that the plaintiff 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 Nos.6, 8, 10 of the documents and the CDs which clearly show that the defendants 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. The interim order is also passed against any other person, entity, in print or electronic media or internet in view of the settled law in the case of ESPN Software India Private Limited vs. M/s Tudu Enterprises and Others in [sic]
64. Accordingly, the defendants, their agents, assigns or any of them acting on their behalf and/or any other person, entity, in print or electronic media or internet are:
a) Restrained from further publishing the write ups as mentioned in page Nos.6, 7, 10 of the documents file or publishing any article or write up and telecast which highlights the allegations against the plaintiff in the form of headlines connecting or associating plaintiff with those allegations, particularly, without disclosing in the headlines of article that they are mere allegations against the plaintiff or any other similar nature of articles, write up and telecast.
b) The directions made in para (a) restrains the defendants from publication either in print media or in electronic form or in any manner publishing the said news in televised form. The defendants shall delete the offending content as mentioned in para (a) from internet or other electronic media and shall take necessary steps within 24 hours from today.
c) The defendants are further restrained from publishing the photographs of the plaintiff either in print media or electronic media or Internet or on TV channels which may suggest connection of the plaintiff with the said allegations made by defendant No.5 and remove his photographs from internet or all other electronic media as well as upload defamatory articles.”
65. The said interim directions as mentioned in paras (a) to (c) of postponement of publications shall remain in force till the next of date of hearing which is a temporary measure as per Sahara India (supra) and the same are subject to further monitoring by this Court from time to time.
66. 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. [emphasis supplied]
3. It has come to the attention of our client that you, the noticee, in the article titled "Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations (but no more pictures for Arnab) after 11 seniors’ full-court press" which can be viewed on your website https://www.legallyindia.com/201401174249/Bar-Bench-Litigation/swatanter-kumar-defamation-interim-injunction, have also published a photograph of our client which establishes a connection with certain allegations of sexual harassment made by a purported intern. The photograph as published on the website, albeit blurred, can be identified to be that of our client.
4. Now therefore, you are hereby called upon to comply with the orders of the Hon’ble High Court as contained in paragraphs 64, 65 and 66 of the order dated 16.01.2014 passed in the captioned matter. You are further called upon to remove forthwith but not later than 24 hours of receipt of the notice, all offending material contained in the article "Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations (but no more pictures for Arnab) including the photograph of our client which can be viewed online at https://www.legallyindia.com/201401174249/Bar-Bench-Litigation/swatanter-kumar-defamation-interim-injunction. Please note that any violation of the aforesaid injunction order by you will compel our client to initiate proceedings against you, for disobedience of the injunction granted by the Hon'ble Court as also proceedings under the Contempt of Court Act, 1973. Our client reserves his right to take appropriate action against you for any violation of the orders of the Hon’ble Court.
5. Attached herewith is a copy of the order dated 16.01.2014 passed in the captioned matter.
Take notice accordingly,
Karanjawala and Company
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Overall, I don't see what the judge will achieve by going after you. All the best, Kian. One thing is sure - the media will support you to the hilt.
Also, do some proof reading as well. "Hon’ble High Court of Court Delhi."
How on earth can publishing Karanjawala's letter be contumacious?
The Delhi High Court order does not state "no publicity"!!!
You are a hero!
Having taken advice, I believe we're actually on pretty safe ground here, legally, so allegations of heroism or rockstardom are misplaced, though not unappreciated :)
Would be interested in reader's views on some of the following:
1. Do paragraphs (b) and (c) of the injunction apply to anyone other than the defendants, particularly with respect to publishing Kumar's photos?
2. Even if they did, would it apply to a pixellated photo, where Kumar can not be reasonably identified, except perhaps arguably by someone who already knows what Kumar like?
3. Even if the injunction would be binding on us, would it apply to restrain fair reporting of that order itself and a photo accompanying it?
Best wishes,
Kian
Para 53 wrongly states that the complainant had not initiated a civil or criminal case. Her writ petition in the SC constitutes appropriate legal proceedings and J. Manmohan Singh was made aware of these proceedings.
How did J. Manmohan Singh reach the conclusion that no cogent evidence has been produced with the complaint. The evidence will be produced before a Vishakha committee or other appropriate forum.
Para 59 - How is a complaint of sexual harassment pending before the Supreme Court a mere stray allegation?
The reason why there is confusion about whether injunctions b and c apply to third parties is because the second line of para 64 was altered by J. Manmohan Singh after the order was signed and read out in court. This alteration was at the instance of lawyers for Swatanter Kumar including A S Chandhiok.
Originally, para 64 of the signed order read out in court did not include or cover third parties. The words "and/ or any other person" were hurriedly added after Chandhiok suggested it and the manner in which these words were added resulted in this part applying only to direction a and not to b and c. I was present in court that day and this can be independently verified.
All orders are required to be pronounced in open court. The practice is that long orders/ judgments which are reserved are read out in court (the operative parts) and then immediately signed by the judge/s.
Once signed, the order cannot be modified even by the judge. Only a subsequent order in a subsequent hearing can clarify/ modify the earlier order, which also stays on the record.
How did J. Manmohan Singh modify the order after it was signed and handed over to counsels to read? This was highly improper, even illegal!
Re 11.1.1 – From where do you source the “rule of law” that only a subsequent order in a subsequent hearing can clarify/modify an earlier order, even if a counsel makes a valid/acceptable suggestion for such amendment. Practices, if any, have no binding value/impact unless they attain the status of customary law, no?
While I do see the point you are trying to make, I am struggling to understand what legal impact these views have, especially as they tend to lower the image of the judiciary. Should lawyers criticize judges and allege mala fide on limited/no basis?
The law is that an order once signed cannot be modified even by a judge. Any change must follow a hearing and will require a subsequent order.
What happened in this case was legally improper.
I leave it to others to judge the impact of my statements but the truth is supreme - satyamev jayate.
Criticising a court order or improper judicial practice does not affect the image of the judiciary.
The image of the juidiciary would be well served if events established that all stand equal before the law.
First, what law provides that an order, once signed, cannot be modified even by the judge?
Second, how does it help the image of the judiciary when a lawyer makes allegations of mala fide, which is very different from analyzing legal defects in a judgement?
Are you saying that the law is that a judge can modify a court order after he/ she has signed it? Where is the finality of court orders then?
I repeat that the law is that a judicial order comes into effect and acquires finality the moment it is signed by the judge. No one can tamper with such order thereafter.
I also clarify that I am critiquing the order fairly and have also fairly and respectfully pointed out an illegality committed by the judge. I re-read my comments and can't find any statement by me that imputes any motives to the judge. Nor have I made any "allegations of mala fide".
The facts speak for themselves.
I request that you refrain from accusing me of statements which I have not made.
Coming to your point re accusations (my only intention is to discuss, not accuse), here is how your comments go beyond a ‘fair and respectful’ critique. When you use the word “hurriedly” at 11.1 you suggest knowing non-application of mind by a judge, and when you label his conduct with the word “improper” at 11.1.1 you suggest judicial impropriety. This is very different from pointing out “illegalities” when a law is felt to have been misapplied, or labelling the reasoning in a judgement as “illogical”, which everyone is free to do. Further, think innuendos, which are very much 'statements' in common law. If you care, have a look at the tone adopted by the AG and by Justice Seth when criticizing the 377 judgement:
articles.timesofindia.indiatimes.com/2013-12-13/edit-page/45124053_1_delhi-high-court-supreme-court-judgment
articles.timesofindia.indiatimes.com/2014-01-26/deep-focus/46635584_1_delhi-high-court-judgment-consensual-sexual-acts
All the best.
"is there any point in questioning how/why the judge reached his conclusions, now that his conclusions have translated into an interim order ..." - yes, there is always a point and a need to question if the reasons a judge gave in support of an order are valid or not.
I was present in court. The order could have been modified by the judge before and only until it was signed. Once signed, the order became binding and final and no one, not even the judge could modify it. The words "and/ or any other person" were added to the second line of paragraph 64 after the order had already been signed by the judge.
"Should lawyers criticize judges" - yes, if required, certainly judicial orders can be criticized for valid reasons and judicial conduct is also open to scrutiny.
We cannot make the judiciary a 'sacred cow', which can never be questioned.
"... and allege mala fide on limited/no basis?" - this comment is completely irrelevant to my statements.
The direction against publishing a photograph would not prohibit a pixellated photo. Swatanter Kumar cannot be identified by anyone only from the pixellated photo. The familiarity with the photo is because several lawyers recognize that the source of the pixellated photo is Swatanter Kumar's profile picture on the SC website.
Para 66 of the order permits fair reporting of facts on the basis of true, correct and verified information.
The writeup by legallyindia would fall within fair reporting of facts on the basis of true, correct and verified information and hence arguably would fall outside the prohibition of directions a, b and c.
However, the order as it reads might still prohibit publishing Swatanter Kumar's photo along with even permitted fair reporting if such reporting connects the plaint to the complaint which it is bound to do. This is why this direction is absurd and unconstitutional.
But overall, I think legallyindia is safe.
"However, the order as it reads might still prohibit publishing Swatanter Kumar's photo along with even permitted fair reporting if such reporting connects the plaintiff to the complaint which it is bound to do. This is why this direction is absurd and unconstitutional."
2. if he is reasonably recognisable by someone who knows what he looks like, it is a recognisable photograph. Even if blurred.
3. Is photo of the man required for fair reporting? ie, can fair reporting happen without photo? It can.
2 & 3 - i would say a blurred photo wud still be a photo. Just like those monotone movie posters of the 80s, where amidst the ghoulish renditions of the cast you could still identify the actors playing the hero and the heroine!
Yes, as long as it looks like a judge or looks like a man... Interested parties are still able to identify S* K* correctly from these pictures. For that matter, even if you had printed an empty box..wouldn't it be clear as to who'se photo is missing form that box ? So 'no photo' is equally doomed as well.
Was this proper judicial conduct? I think not. The order if not ready could have waited another 24 hours, yet a retired SC judge got preferential treatment over several other litigants whose matters were not taken up the next day on this account.
You may compare this to Singhvi's CD affair and measure relative speeds of the two and draw any conclusions you are likely to draw. The common man waits decades for things to happen, and perhaps that's why the common man still remains epowered with the right to approach the Courts for all corrective actions, to vacate unfair orders and so on. The rules of precedence are not written down but they are clear indeed.
The law must treat all equally.
Sexual harassment within the judiciary has been whispered about.
The complaints must not be brushed under the carpet but must be dealt with lawfully and expeditiously.
This must be treated as a normal case in accordance with Article 14 of the constitution of India.
I agree that a trial by media is not the way forward. There must be an investigation into the complaint in accordance with law, and legal consequences must follow.
The prohibition against a trial by media applies to all citizens and not just to retired Supreme Court judges.
But free media coverage/ fair reporting of criminal complaints especially against powerful individuals is an integral part of a democratic set-up and such reporting facilitates the administration of justice as seen in several high profile cases over the last few years - see Jessica Lall, Priyadarshini Mattoo to name only two examples.
A gag-order is undemocratic and unconstitutional and does not serve the cause of justice or the higher judiciary. Nor does preferential treatment for a powerful and influential litigant.
If this answers all your concerns about my statements, may I request that we end this two-way conversation for the moment. You can contact me separately through my blog which can be found in a google search.
But I prefer debating on Legally India and I don’t follow your issue with a two-way debate here, when you post multiple comments yourself!
Even though the exchange with you on legallyindia has been ‘fascinating’, it is becoming a bit stale and tiring now. I don’t see any reason to parry the attacks of an anonymous person targeting me on a public forum.
The facts do suggest judicial impropriety on the part of J. Manmohan Singh and there is nothing wrong with calling it out. I am suggesting undue haste, bias, and judicial impropriety in the way this matter was heard by J. Manmohan Singh. Everyone is also free to state this provided the facts bear this out, which in my opinion they do. The comments of the AG and Leela Seth on a different matter might not suggest judicial impropriety but that is not this case.
I am posting my comments here for general consumption but really do not wish to engage in a prolonged one-on-one discussion with you and on a point by point justification of my statements for your benefit. Please feel free to ignore anything else that I might post here.
And I will be perfectly happy if I don’t receive a response from you to this (hopefully) final comment addressed to you from my end.
And while we are at it, what spellings of S* K*'s name are allowed ? Names are also likely to identify the man, so it sounds logical.
(You will have noted that I have self-censored myself in advance, since printing a pixellated photo has resulted in a serious and expensive C&D notice. Naming S* K* will surely merit one and I for one do not need that, thank you very much).
Section 152 states that only clerical or arithmetic mistakes or errors arising from accidental slips or omissions may be corrected by the court at any time either on its own or on an application by a party.
The order signed in open count by J. Manmohan Singh in Swatanter Kumar's case did not include the words "and/ or any other person" in line 2 of para 64.
This was not an accidental slip or omission by the judge or a clerical error.
Yet at the urging of A S Chandhiok, J. Manmohan Singh illegally added these words to line 2 of para 64 of the order after it had been pronounced and signed in open court. This addition was made in the absence of the defendants or their counsels.
This in my view was not within the purview of Section 152 CPC and is therefore an illegal act.
I was present in court right at the front when J. Manmohan Singh read out the operative portion and then signed the order. At that time, he read out the three injunctions (a, b and c) and only mentioned the defendants, there was no reference to “any other person”. He also read the lines about fair reporting in para 66. There was no whisper that the order applied to persons other than the defendants.
He then signed the order. Counsels for parties present asked that they be provided a copy of the order. Until that happened, they were handed over the original signed order to read. Senior counsels for the defendants were reading the order. Then Chandhiok was reading the order. We all left the court, leaving these persons who were reading the order in court.
There were a number of journalists who were outside the court and were busy noting down what the judge dictated. No one had heard any thing about third parties.
After about 10-15 (maybe 20-30) minutes, I was speaking to one of the journalists (a lady from Indian Express) and she told me then that the order also covered third parties. I asked how, and she told me that Chandhiok had subsequently requested the judge to add the words “and/ or any other person” to the second line of para 4. She told me that the judge had responded by stating that he had already stated this in the main body of the order but Mr Chandhiok requested that these words be added to para 64.
What might have happened is that the last line of para 63 was already there, though this was not read out in court. At Chandhioks’s insistence the second line of para 64 was modified after the order was signed.
Ironically, it is the insertion of the words in the second line of para 64 that have resulted in making the order ambiguous as regards third parties. Now because of the language, (a) applies to third parties but (b) and (c) arguably do not.
If the words had not been inserted in para 64, then the only words about third parties would have been in para 63 which would have applied to all three injunctions (a b and c).
There will be evidence in the court’s computers and with court staff about what version of the order was signed and that after it was signed, the order was amended.
Immediately afterwards, I also heard Abhijat tell Mukul Rohatgi’s son (lawyers for Kumar) that J. Manmohan Singh had made the change. I also saw several lawyers for Swatanter Kumar talking amongst themselves that the order had been changed in this manner.
Further - I was present in court during the arguments. Mukul Rohatgi argued for Swatanter Kumar. He never asked for a John Doe order in oral arguments. I have not seen the plaint so I am not aware if the plaint pleaded and prayed for a John Doe order.
But the statement in para 63 reads: “The interim order is also passed against any other person, entity, in print or electronic media or internet in view of the settled law in the case of ESPN Sofftware India Private Limited vs. M/s Tudu Enterprises and Others in CS(OS) No.384/2011 dated 18th February, 2011 and Indian Performing Right Society Ltd. Vs. Badal Dhar Chowdhry and Ors., 2010 (43) PTC 332 (Del.).”
These cases were never cited in court. These cases are not defamation cases where an injunction would restrict the Article 19 right to freedom of speech. These were copyright cases. These cases would not be applicable for a John Doe order in a shaky defamation claim. Also the suit in Badal Dhar Chowdhry was dismissed finally.
How can the fundamental right to free speech of everyone be restricted pre-emptively?
There are effectively no reasons in support of the John Doe part of J. Manmohan Singh’s order.
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