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Nandrajog wins big for Bennett Coleman, kills dead Sahara-Swatanter injunction over Pachauri sex harassment claim [READ ORDERS]

The Delhi high court has lifted its order restraining publication of reports on the alleged harassment complaint by a female research analyst to Delhi police, against The Energy and Resources Institute (TERI) director-general Rajendra K Pachauri, a joint winner of the 2007 Nobel Peace Prize and the chairman of the UN’s influential Intergovernmental Panel on Climate Change (IPCC).

Senior advocate Sudhir Nandrajog and Manish Srivastava were acting for Bennett Coleman and convinced Delhi high court Justice Jayant Nath on Wednesday, 18 February, to modify his previous ex parte injunction of Tuesday, 17 February, which had restrained Bennett Coleman from publishing articles about the sex harassment allegations against Pachauri.

The second order won by Nandrajog on 18 February, was published on the Delhi high court website on Thursday (19 February), and stated that the court would not restrain the defendants anymore from publishing reports relating to proceedings or the police complaint against Pauchauri.

Pachauri is represented by advocates Pavan Duggal, Rituraj Singh and Somnath De. Duggal declined to comment when contacted.

Sahara-Swatanter Kumar jurisprudence withers under BC attack

Legally India requested a copy of the original 17 February injunction from a staff member of Ketchum Sampark, a public relations firm acting for Pachauri. The firm did not share the order, but sent a statement to Legally India by email, stating: “We have no comments to offer as the matter is sub-justice.”

However, Newslaundry had obtained a copy of the 17 February injunction and has shared this with Legally India (see copy left).

In the 17 February injunction against Bennett Coleman and two other defendants, which is still not available on the Delhi high court website, Justice Jayant Nath stated:

It is urged that the plaintiff is being targeted by various vested interests. Reliance is placed on the judgment of the Supreme Court in the case of Reliance Petrochemicals Ltd. Vs Proprietors of Indian Express Newspapers [1989], Naresh Shridhar Mirajkar & Ors vs State of Maharashtra [1967], Sahara India Real Estate Corporate Ltd & Ors Vs. Securities and Exchange Board of India [2012]. Reliance is also placed on the judgment of this High Court in the case of Mr.Swatanter Kumar Vs Indian Express passed in [2014].

The plaintiff has made out a prima facie case. In my view the balance of convenience strongly in favour of the plaintiff. In case exparte injunction is not granted, irreparably injury would likely to cause to the plaintiff which it may not be possible to undo by any means. Till the next date the defendants are restrained from publishing or carry out any story or article or airing any report pertaining to the complaint as detailed in email dated 16.02.2015 of defendant no. 3 of alleged sexual harassment at work place.

It is understood that the first injunction was intended by Pachauri’s counsel to have been a John Doe injunction - binding against unnamed third parties - but the order does not appear to expressly mention any third parties as defendants.

In the order of 18 February Justice Nath said:

1. Learned counsel appearing for defendant Nos. 1 to 3 seeks 30 days’ time to file reply to the application and written statement. However, he submits that this court should not pass any restraint order restraining publication or airing of reports regarding any action taken by the police pursuant to the alleged complaint by the complainant or the final outcome of the proceedings of the complaint filed by the complainant before the Committee under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and connected court proceedings.

2. In my opinion, keeping in view the liberty of the Press under Article 19(1)(a) of the Constitution of India for the time being, in the interest of justice, interim order passed on 17.02.2015 is modified to the above extent. It is ordered accordingly.

3. With the above modification, order dated 17.02.2015 shall continue to operate till the next date of hearing. 4. List on 08.04.2015.

Chinamyi Arun, research director at the Centre for Communication Governance at NLU Delhi and fellow at the Centre for Internet and Society, had criticised the Sahara-Swatanter Kumar jurisprudence in 2014, writing:

[Sahara India Real Estate Corp. Ltd v. SEBI] created an instrument — the “postponement order” — for litigants, such that they can have media reports of a pending case restricted. The manner in which this is used in the Swatanter Kumar judgment raises very worrying questions about how the judiciary views the boundaries of the right to freedom of expression, particularly in the context of reporting court proceedings.

Published timelines

On 17 February, the Economic Times had reported that Pachauri had allegedly sexually harassed a 29-year-old member of staff with “unwanted physical advances besides being the recipient of SMS and WhatsApp messaging, emails and a handwritten note” since September 2013.

But the Economic Times tweeted on 18 February at 11:43am that:

The link to the RK Pachauri story has been removed following an injunction from the honourable Delhi high court.

Several responses to the tweet, posted screenshots of the full original article, apparently from the e-paper edition of the newspaper.

Pauchari had denied the allegation to the ET, reportedly stating:

The said email has indicated misuse of my computer resources and communication devices, without my permission or consent. From your email, I have come to know the factum that my computer resources including my email ids, mobile phone and WhatsApp messages have been hacked and that unknown cyber criminals have gone ahead and have unauthorisedly accessed my computer resources and communication devices and further committed various criminal activities.

After winning a relaxation of the injunction, the Economic Times posted a longer article on 19 February at 4am, re-stating the allegations of the original report:

The FIR alleges Pachauri committed offences under Sections 354, 354A, 354D, 506 of IPC, which deal with outraging the modesty of a woman, sexual harassment, stalking, and criminal intimidation, respectively. Prashant Mehndiratta, a senior Delhi High Court lawyer representing the complainant, confirmed that an FIR has been registered after the alleged victim's statement was recorded, a process that took over oneand-a-half hours.

However, a statement sent to the ET from a Pachauri spokesperson stated:

The Delhi High Court has been pleased to pass order dated 17/02/2015. The said matter came up for hearing on 18/2/2015 wherein modifications have been made in the said order for defendant no. 1, 2 and 3 only.

However subject to the modifications in the order concerning defendants no 1 to 3, the order dated 17/02/2015 is applicable to the defendants and continues to be operational.

Given the fact that the said matter is currently subjudice and the Hon'ble High Court is seized of the matter, it will not be prudent or appropriate to comment anything on the matter pending adjudication before the Hon'ble Delhi High Court.

Meanwhile, Pachauri has moved anticipatory bail plea before the high court in the police complaint against him. Justice SP Garg, however, asked him to move the proper forum - the sessions court.

Newslaundry reported, alongside a more detailed chronology of the published story, that Outlook had carried the story and details from the complaint on Wednesday evening, citing details from the police complaint as well as passages of a sexual nature from Pachauri’s previous novel.

UK newspaper The Independent (“UN climate chief Rajendra Pachauri investigated about sexual harassment”) and other international and Indian papers have since carried the story of the complaint.

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