A good year in the courts for free speech
Clockwise left to right: Orissa, Ahmedabad and Delhi high courts, Bhuj district court, Supreme Court and the Kerala High Court
On balance, 2017 has been a good year in the courts for media freedom and for freedom of speech. Although there were at least six temporary gags on media reporting, significant judgments delivered in the Supreme Court, in the Delhi High Court. and in the lower courts tilted towards expanding free speech and journalistic freedom rather than restricting it.
The Supreme Court declined to ban Kancha Ilaiah’s controversial book Samajika Smugglurlu Komatollu, saying that the author's fundamental right of freedom of speech and expression should not be unnecessarily curbed.
It quashed a non-bailable warrant issued by a trial court in Srinagar against activist Madhu Kishwar, in a criminal defamation case for an allegedly defamatory tweet about the media in Kashmir.
The apex court also stayed criminal contempt proceedings brought by the Nagpur bench of the Bombay High Court against author Arundhati Roy for an article about the prosecution and incarceration of paraplegic former Delhi University professor G N Saibaba.
But for the media perhaps the most heartening legal development came from a district court in Bhuj where the Adani group had filed an interim application for a defamation plea against the former editor of the Economic and Political Weekly, Paranjoy Guha Thakurta and The Wire which had refused to take down the article which it had republished. This was on how the Modi government had quietly tweaked the rules relating to special economic zones to specifically favour the Adani Group.
Among high courts the Delhi High Court came up with at least four rulings which upheld the rights of journalists. In January, a 2007contempt judgment against a newspaper was set aside on jurisdictional grounds. This was the famous case of Mid Day investigating Justice Sabarwal, a former chief justice of the Supreme Court.
A Delhi High Court judge also dismissed a defamation petition against Outlook filed in 1998, saying apologies are preferable to damages. The same judge also ruled in another case that reporting on an FIR cannot be defamatory.
Yet another judge of this court declined to restrain Arnab Goswami and Republic TV from airing news and debate on Sunanda Pushkar’s death with the observation that Congress MP Shashi Tharoor, her husband, has not shown any law by which an investigation cannot be done by the journalist.
However, in the case of the landmark ruling upholding the fundamental right to privacy, there were worrying implications for the media which the judges did not dwell upon sufficiently.
Decisions that impact free speech
In October the Supreme Court refused to ban the controversial book Samajika Smugglurlu Komatollu written by Kancha Ilaiah on the grounds that the author's fundamental right of freedom of speech and expression should not be unnecessarily curbed. The petitioner had alleged that the writer had made baseless allegations against certain castes in his book and tried to divide society on caste lines. He also appealed to the court to ban certain chapters of Ilaiah’s book Post-Hindu India.
In September the Supreme Court quashed a non-bailable warrant issued by a trial court in Srinagar against activist Madhu Kishwar against whom a criminal defamation case has been filed by Syed Shujaat Bukhari, Editor-in-Chief, Rising Kashmir. Kishwar had claimed that on the basis of a "few tweets" posted by her on her Twitter handle regarding the state of the media in Kashmir, the complaint was filed against her alleging that these tweets were defamatory.
In July the Supreme Court stayed criminal contempt proceedings brought by the Nagpur bench of the Bombay High Court against author Arundhati Roy for publishing an article expressing her personal anguish in the prosecution and incarceration of paraplegic former Delhi University professor G N Saibaba. Saibaba was, later in March 2017, sentenced to life imprisonment for Maoist links.
In the same month, the Delhi High Court ruled that any offensive post on social media targeting an individual of the SC/ST community, even if made in a closed group, was punishable. The Times of India reported that, in a ruling that plugs the gap between online abusers and their prosecution, the Delhi High Court made it clear that the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, will apply if a casteist slur is made against a person from these communities. The Court clarified that "public view" means "a place where public persons are present - howsoever small in number they may be."
In December Justices N V Ramana and Abdul Nazeer set aside a Madras High Court judgment revoking the certificate granted to the Tamil film New after it was released and had its run. The Hindu reported “In its order the Bench said it was not for judges to make a “piecemeal analysis” of a movie and apply their subjective views of life to revoke the censor certification issued to a film, the Supreme Court held”.
The Kerala High Court, however, declined to entertain petitions by two documentary makers to screen their films at a film festival. Kathu Lukose, director of March March March and Shawn Sebastian, director of In The Shade of Fallen Chinar were denied permission by the Ministry of Information & Broadcasting (I&B) to screen films at the 10th International Documentary and Short Film Festival. The Court accepted the submission by the Ministry’s counsel that an appeal in this regard was pending before the Ministry, therefore the petitioners had no right to approach the court at this stage.
Significant rulings that affect the media
Reporting on FIRs is not defamatory
Justice Endlaw of the Delhi High Court ruled in March 2017 that reporting on FIRs should be immune to defamatory lawsuits while throwing out a lawsuit filed by a skill training agency against a regional Bengali newspaper. The newspaper, Dainik Samayik Prasanga, owned by Selima Publications Pvt. Ltd., had published a news report about a FIR filed against Primero Skill & Training Pvt. Ltd - an approved training partner for the government’s Pradhan Mantri Kaushal VikasYojana - by a woman who had been trained by the agency.
The judge avoided dismissing the lawsuit on the grounds of jurisdiction (the complaint was filed in Delhi though the offending publication was based in Assam) and fell back on the grounds of the privilege extended to the contents of complaints and FIRs filed with the police.
Tracing a number of judgments on how FIRs are public documents and how the Supreme Court itself had directed FIRs to be made available on the internet, Justice Endlaw argued that a newspaper cannot be held liable for defamation for reporting on documents made public by the state.
Wage board pay for contract employees
Another significant judgement calculated to give grief to media employers was on the Wage Board issue. In June a Division Bench of the Supreme Court headed by Justice Ranjan Gogoi pronounced its judgment on 83 contempt petitions filed by journalists against the management of various newspapers for allegedly not implementing the recommendations of the Majithia Wage Board, which were upheld by the Supreme Court in a 2014 judgement.
Justice Gogoi did not find any of the newspaper managements guilty of contempt, but his judgement settled four questions of law which will have far reaching implications for journalists and newspapers in India. One of these related to whether the wage board should cover contractual employees, to which the judgment said yes. Another was to dismiss the argument of the media employers against variable pay.
March saw a PIL filed by a journalist on the role of the media in the Agusta Westland VVIP chopper scam case being dismissed by the Supreme Court. Journalist Hari Jaisingh had alleged that journalists had been bribed with foreign trips by the manufacturers in return for favourable coverage of the deal. He wanted a SIT probe into the role of the media.
The Supreme Court dismissed the PIL saying that it would be an attack on the media's independence. It clarified that if the investigative agencies come across evidence with regard to the involvement of certain individuals then they are free to probe.
In September the Delhi Court refused to restrain Arnab Goswami and Sunanda Goswami of Republic TV from airing any news or debate on Sunanda Pushkar’s death. The judge observed that Pushkar’s husband, Shashi Tharoor, had failed to cite any law forbidding an investigation by the journalist.
In a victory for the news portal The Wire, which republished an article ‘’Modi Government’s Rs 500-Crore Bonanza to the Adani Group’’ by Paranjoy Guha Thakurta and three other journalists from the Economic and Political Weekly, Principal Senior Civil Judge Jaiminkumar R Pandit, Bhuj, Kutch, rejected the defamation plea against the publishers and authors of the article while directing them to remove a sentence and one word. In rejecting the interim application the judge observed that a questionnaire and an email were sent to the Adani Group before publishing the article, and that the article was published “upon material available”, therefore the article “cannot be said to be defamatory”, and “there is no prima facie case.”
The supreme irony in this case was that the board of the Economic and Political Weekly for which it was originally written had ordered a take down of the article when the journal received a legal notice from the Adani Group. Guha Thakurta resigned as editor, in reponse.
How the privacy ruling affects the media
The year’s landmark privacy ruling had implications for the media which the judges did not dwell on sufficiently.
Does a strong fundamental right to privacy against the state also confer a fundamental right to privacy against fellow citizens? The Supreme Court missed an opportunity to clarify this issue in the Justice Puttiswamy case. Not all the nine judges concurred on whether this right will apply horizontally. The joint judgment by Justice Chandrachud on behalf of four judges on the Bench endorsed the definition of privacy in Rajagopal. As did Justice R. Nariman’s judgment by endorsing those particular paragraphs of Rajagopal.
Itappeared that five judges endorse the view that privacy is a horizontal right that can be applied against private citizens and corporations. However, Justice Bobde in his concurring opinion makes it clear that the fundamental right to privacy will apply only against the state while citizens can enforce only a common law privacy right against each other.
Justice S.K. Kaul, on the other hand, was clear that the right applied against even private persons. He says, “The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.”
The reference to non-State actors ensures that citizens can enforce their fundamental right to privacy against other citizens and not just the state. The press is a non-State actor. This does not bode well for the press since it has only a common law right to free speech against other citizens and when such a right clashes with the fundamental right to privacy, it is likely that the latter will triumph over the former. Only one out of the nine judges sought to tackle this issue with the clarity that it deserved.
Gags on reporting
The year saw the courts impose a string of gag orders on reporting. Two of them were brought against the news website TheWire.in
- In March businessman and member of parliament Rajeev Chandrasekhar got an ex parte injunction from the city civil court at Bengaluru ordering The Wire to take down two articles about him. One described his attempt to align the media he owns with the political ideology he supports. The second described his military-related business interests and the conflict of interest involved in his being on the Parliamentary Committee of Defence and the Consultative Committee for the Ministry of Defence while transacting business with the army. In 2016 Newslaundry had reported both issues without provoking any legal action from Chandrasekhar. This case saw endless postponements and the injunction is yet to be vacated.
- Also in March the Orissa High Court sought to muzzle the media in a case where lawyers were accused of sexual harassment of a woman inspector of police, and argued that the judge bar the media from reporting because it would bring down the reputation of the court itself as an institution.
- In October an Ahmedabad court barred The Wire from writing about Amitt Shah’s son, Jay Shah’s businesses after the latter had filed a defamation case against the news website. In December it partially lifted the gag order allowing it to publish articles on Jay Shah’s businesses but said it should not link the subject matter to Prime Minister Narendra Modi.
- In November the Allahabad High Court gagged the media from reporting on the proceedings of a case concerning permission to prosecute the current Chief Minister of Uttar Pradesh Ajay Singh Bhisht (Yogi Adityanath) over serious allegations of instigating communal violence. A Division Bench of the Court said there had been misreporting, and that the gag should be in place till the judgement was delivered. There had been 30 hearings in this case since March 2015.
- Also in November the Chief Justice of India Deepak Mishra rejected senior lawyer Prashant Bhushan’s suggestion to bar the media from reporting a courtroom drama in which a large number of lawyers reacted angrily to Bhushan's allegations against the Chief Justice and sought contempt of court proceedings against Bhushan.
- On Nov 29, CBI judge SJ Sharma, hearing the Sohrabuddin Sheikh encounter trial, passed an order on a plea by the defence counsel that the media could be present during the hearing before the special CBI court but could not cover it as it was sensational and could lead to some "untoward incident". In December journalists from Mumbai filed a petition before the Bombay High Court to challenge the ban on the media coverage of this case.
Judgements delivered after long years
The year began with the setting aside, after ten years, of the contempt judgement in the Mid-Day case. In a judgment delivered on January 2, just a day before his retirement, the Chief Justice T. S. Thakur and Justice Khanwilkar, set aside a judgment of the Delhi High Court that had sentenced the editor, a journalist, printer, publisher and cartoonist of Mid-Day to four months in jail.
In May 2007, Mid-Day published a series of news reports and a cartoon alleging that the sons of the then recently retired Chief Justice of India Y.K. Sabharwal had profiteered from the sealing drive that was ordered in Delhi by their father during his tenure as a judge of the Supreme Court. The lawyer R.K. Anand brought the articles to the notice of the Dehi High Court which took suo moto cognizance of the case and initiated contempt proceedings against the newspaper. It delivered, in a record four months, a judgment upholding contempt. The four month sentence was, however, stayed the same year.
In its January judgment the Supreme Court overruled the Delhi High Court on a jurisdictional issue. It interpreted Article 215 of the Constitution to conclude that the Delhi High Court could only take cognisance of contempt committed against it or courts subordinate to it, not of contempt against a superior court like the Supreme Court.
The contempt order in 2007, however, had chilled any criticism of Sabharwal, foreclosing the possibility of any media campaign to have him investigated in those intervening ten years.
Two other judgments delivered this year also came after long periods. One from the High Court of Himachal Pradesh was delivered on August 29, 2017 after ten years and another from the District Judge at Tiz Hazari was delivered on August 31, 2017 after 19 years, demonstrating the glacial pace of the Indian judicial system.
The second judgment was a civil defamation case that was filed against the Times of India on February 28, 1998 by a politician from the Janata Party against the paper, its printer, editor and reporter, seeking damages of Rs. 1 crore. It took 19 years for the court to complete a trial that had only two witnesses and pass a final judgment in favour of the defendant.
The first judgment involved a criminal complaint filed against the then editors and reporters of CNN-IBN and Cobrapost on April 1, 2007 (the summoning order by the magistrate in this case took eight years). The news report that was at the centre of this litigation was a sting operation by Cobrapost, founded by Annirudh Bahal, that showed a member of the Himachal Haj Committee allegedly receiving a bribe of Rs. 10,000 to send certain people for the Haj although they were not entitled to be on the list.
The High Court found that the complaint did not make out any specific averments against either Ashutosh or Sardesai of CNN-IBN and hence quashed the complaint against both of them. However, it decided the criminal proceedings against Bahal and the other Cobrapost reporters would continue.
Yet another judgment came this year regarding a 1998 case. In May Justice Endlaw of the Delhi High Court dismissed a defamation lawsuit against Outlook magazine and others. The case had been languishing before the High Court till Justice Endlaw finally dismissed it for not revealing a cause of action against any of the defendants. The important aspect of this case is Justice Endlaw’s ruling that apologies were preferable to damages as a remedy in defamation lawsuits because the latter could cause financial ruin to the media and limit further speech.
In August this year, the Delhi High Court instituted a panel to frame guidelines as to how the media should report legal proceedings in a court, while insisting that it was not being done to control the media. A Supreme Court decision, made five years ago, had said that such regulatory action would not be the right imposition on a media that, till now, has been deemed free in this country.