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Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations (but no more pictures for Arnab) after 11 seniors’ full-court press

Future #InternJudge 2 coverage could be hard on rolling TV news (though NDTV isn't ostensibly covered by the order)
Future #InternJudge 2 coverage could be hard on rolling TV news (though NDTV isn't ostensibly covered by the order)
The Delhi high court yesterday restrained anyone from publishing or broadcasting the detailed sexual harassment allegations against Swatanter Kumar, without stating prominently that they are “mere allegations”, as a battery of counsel appeared for the former Supreme Court judge in the court yesterday.

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.

[Download order (PDF)]

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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