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
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When the press is muzzled, citizens suffer as they are robbed of the ability to gather and weigh information to fully participate in the democracy.
Privacy laws exist for those wronged by coverage to seek redress. Only despots and scoundrels fear a free press.
A public figure such as a judge is particularly underserving of protection from review in the court of public opinion. An unelected body should be ashamed of shutting down the free flow of information essential to a living democracy.
This is the most illogical D&C post ever. Assuming its the real D&C
There is no doubt that the media have received too much 'protection' of late. Plenty of sensational stories, discourteous reporting, downright rude comments and false reports have blemished / destroyed / put in jeopardy the careers of many good people. It is high time the judiciary crack the whip on the Arnab Goswamis and the Barkha Dutts who essentially have no professional qualifications other than speaking english a little better than others with a modulated voice. These "journalists" think they know more law than lawyers and judges, more politics than politicians, more cricket than national team players and more sense than the common man. Yet on their own they cannot earn a paisa through honest work. Disgusting.
We wait, with hope and resolve, for a justice with enough love of liberty to be the Justice Khanna of freedom of the press in India.
These Seema Sapra posts are full of contradictions! Time you took a break from activism ma'am.
Am glad you find my posts challenging. Most issues deserve to be discussed in a nuanced fashion.
Do point out the contradictions and I could clarify for your benefit, but it appears to me that you have an agenda in targeting me, because of my activism, which you can educate yourself about from my blog, seemasapra.blogspot.in/
And would love to know your real identity.
Is Dennis-Ton supposed to remind me of Brackett Denniston, and my writ petition against General Electric pending in the Delhi High Court?
This was a fit case where the Supreme Court ought to have injuncted the media.
www.counterpunch.org/2013/02/11/the-hanging-of-afzal-guru/
(caveat: i'm not a lawyer, but i believe there's a sizeable difference between the two scenarios)
The courts in our country do tilt in favor of the powerful.
The SC did not intervene in Guru's case to ensure a free trial though his life was at stake.
Yet in the Sahara case and even more egregiously in Swatanter Kumar's case, the SC restrained the media only to prevent damage to reputation of powerful persons.
Am just pointing out that often the law and courts in this country do not treat the weak in the same manner as they do the powerful.
Unfortunately justice is not blind to stature and influence.
"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 Sahara decision's premise was to prevent media reporting from adversely affecting the right of an accused to a fair trial.
The issue of the one-sided documentary screening in Afzal Guru's case would probably lie on top of the pile of cases where the accused's right to a fair trial was threatened by one-sided media reports.
In any democratic country with respect for human rights, it should have been paramount to ensure that someone like Afzal Guru accused of terrorism was only convicted and punished following full due process and a fair trial. Yet in that case the SC did not restrain the media.
As Prashant Reddy points out, the Swatanter Kumar decision is strictly not covered by the Sahara ruling as precedent.
To answer abc, Afzal Guru could not be called a terrorist before and without a finding of guilt in a fair trial.
His case was to my mind more deserving of media caution than Swatanter Kumar's.
Bad research cannot even begin to describe the shallowness of this "comment". I understand that there was no petition in the Guru hanging seeking restraint on any section of the media and as such comparing it to this case is a demonstration of inability to analyse cogently.
Furthermore, all newspaper reports and TV debates take care to term persons 'allegedly' terrorists or offenders so the question of not being able to find a means of going ahead does not arise.
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