The chilling effect of the Delhi high court’s gag order it the Swatanter Kumar case is only the latest in a long line of examples of the media losing out in its fight to report on the judiciary, argues advocate Prashant Reddy.

In September 2013 when Asaram Bapu was subject to intense media scrutiny over allegations of sexual assault, his lawyers approached the Supreme Court of India with a plea to restrain the media from reporting on his case in a manner which prejudiced his right to a fair trial. The Supreme Court turned him away. The Indian Express, The Hindu and the ToI had reported on this story.

Fast-forward to January, 2014 when an ex- SC judge, Justice Swatanter Kumar, was accused of sexual harassment and subject to the same intense media scrutiny as Asaram Bapu. The Delhi High Court, in response to a defamation lawsuit filed by the ex-SC judge was swift to impose ‘postponement orders’ on the media.

What was the difference between Asaram Bapu and the ex-SC judge apart from the fact that Asaram Bapu had been arrested and charged with serious crime unlike the ex-SC judge who was not even facing a FIR?

Perhaps, the comparison above is unfair because of the different facts involved and the actual question that we should be asking is whether or not the Delhi High Court’s judgment was legally sound because it is bound to have a huge impact on all forms of reporting by the press.

Weak present precedents

Most of the conclusions in the judgment of the Delhi High Court in Justice Kumar’s lawsuit are based on a precedent of a Bench of five judges of the Supreme Court in the very high profile case of Sahara India Real Estate Corporation Limited and Others vs. Securities and Exchange Board of India & Another decided in 2012. In this judgment, the Supreme Court held that constitutional courts like the High Courts or the SC itself can ‘postpone’ media reporting of a sub-judice matter to protect the right of an accused to have a fair trial.

The Sahara judgment is a weak precedent for the present case filed by Justice Kumar. The reason being that Justice Kumar’s lawsuit was filed as a defamation lawsuit, while the Supreme Court in the Sahara case had very clearly located the power to order ‘postponement’ of media reporting within Articles 129 and 215 of the Constitution of India which vest in the SC and the High Courts powers to punish for contempt. In pertinent part the Court had stated “We reiterate that the exposition of constitutional limitations has been done under Article 141 read with Article 129/Article 215.” (para 45)

This is precisely why the Supreme Court was categorical in its conclusion that only High Courts and the Supreme Court could issue such postponement orders. By importing the Sahara jurisprudence into a defamation lawsuit the Delhi High Court has widened the scope of the Sahara judgment.

The army of lawyers who represented Justice Kumar in this case before the Delhi High Court may be tempted to dismiss the above argument with the oft-used quote “Procedure is but the hand-maiden of justice”. But there is a world of a difference between a defamation case and a contempt case for postponement of media reporting. The former seeks to protect the reputation of any person so aggrieved while the latter seeks to protect the rights of an accused in a judicial proceeding.

A related weakness in the judgment is the fact that the Delhi High Court has issued this postponement order in a case where it had no jurisdiction over the legal proceedings involving Justice Kumar. The intern’s petition accusing Justice Kumar of impropriety lies before the Supreme Court and it is the Supreme Court which should have heard this petition for postponement of reporting. How can a High Court control the reporting of proceedings being conducted before a superior court, such as the Supreme Court of India?

Mid-Day burnt over CJI

This particular case isn’t the first time that the Delhi High Court has leapt to the protection of a Supreme Court judge.

In 2007, the Delhi High Court took suo motu cognizance of an article in the Mid-Day on how the sons of the then Chief Justice of India were allegedly profiting through the sealing drive initiated by their father as a sitting judge of the Supreme Court. That case ended with a conviction and jail term of 4 journalists for a period of 4 months.

The Supreme Court stayed the verdict pending disposal of the appeal. (Read Anil Divan’s excellent critique over here along with Arvind Kejriwal’s piece over here)

Karnataka ‘sex scandal’

Suo moto contempt proceedings aren’t exclusive to the Delhi High Court. Close to a decade ago, the Karnataka High Court suo motu contempt notice to 56 journalists from 14 media establishments for their reporting on the conduct of 3 Karnataka High Court judges. Eventually the Supreme Court stayed the contempt proceedings while lambasting the media for their irresponsible reporting on the issue.

What should trouble editors of the Indian press is that they tend to lose most of their battles with the judiciary when it comes to the issue of reporting on the antics of judges.

Madhu Trehan-Wah India bench survey

Perhaps the most egregious example is the contempt case initiated against maverick journalist Madhu Trehan and her colleagues while she was editor of Wah India. In an audacious attempt at judicial accountability, Trehan and her colleagues had administered a survey amongst senior advocates in the Delhi High Court asking them to rate the judges of the Delhi High Court on various factors including punctuality, integrity, knowledge etc.

The intention was to grade the judges on the basis of the information collected. The results of the survey were published in the magazine leading to an unprecedented situation where the Delhi High Court acting on a contempt petition filed by the bar, ordered the Delhi Police to seize all copies of the magazine and also restrained the media from reporting on the contempt proceedings.

The ban on the reporting of the contempt petition was lifted only after the editors of the Indian Express, Hindustan Times, Outlook, Times of India, Punjab Kesari & Kuldip Nayar moved court opposing the gag order.

Ultimately, Trehan and her colleagues were found guilty of contempt by a five judge bench of the Delhi High Court and were let off after an unqualified apology to the Court. (The Frontline coverage of this issue can be read over here and here and the Delhi High Court judgment in the case can be read over here.)

Times Now coughs up crores

Last but not least is the defamation case filed by ex-SC Justice PB Sawant against Times Now. The trial court had found in favour of Justice Sawant and awarded him damages of Rs 100 crores. On appeal the Bombay High Court ordered the channel to deposit with the Court, Rs 20 crore in cash and another Rs 80 crore as bank guarantees, pending appeal and the Supreme Court refused to interfere with this direction.

This was an astounding series of events for the Indian judiciary because it was the same Supreme Court of India which had reduced the punitive damages in the Uphaar cinema tragedy, where 56 people died, from Rs 2.5 crore to Rs 25 lakhs on the grounds that punitive damages were an exception to the rules. Going by this logic, the Supreme Court should have stayed the order for Times Now to deposit even Rs 20 crore in cash, pending appeal because the Bombay High Court was prima facie wrong in its conclusion.

Chilling effects

The danger of such orders against the press is that journalists start self-censoring themselves and as we have often learnt, self-censorship is the worst form of censorship because we become our own enemies.

Wary editors would rather hold off on reporting a case involving judges than risk being hauled to court for contempt or defamation. Perhaps that’s not such a bad thing in this season of hectoring, judgmental news anchors but we mustn’t let a few rotten apples tarnish the reputation of all journalists.

Clearly, these are extraordinary times and as the free press of this democratic republic begins to cast more light on the affairs of the higher judiciary, we will see more such clashes. A couple of victories for the free press would only enhance the standing of the judiciary.

Prashant Reddy is a Delhi based lawyer and ex-blogger on SpicyIP. The views expressed in this article are his own.

Also read Friday’s Legally India column: How the soft Swatanter Kumar gag and Karanjawala’s photo SLAPP are strategic genius and insidiously powerful