Guest Post: Free Speech, Interim Injunctions and Media Guidelines

(In this guest post, Raag Yadava, a 2013 NLSIU graduate, analyses the High Court’s recent order restricting reporting of the sexual harassment allegations leveled by an intern against a former justice of the Supreme Court)

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The Delhi High Court, in an order dated 16^th January, 2014, granted Justice Swatanter Kumar (“SK”) an interim injunction in a suit for defamation (permanent injunction plus damages) filed against various media houses, the unnamed intern who made the allegations of sexual harassment and the reporter who sourced the information. (Note: the defendants were not permitted to file replies to the injunction application.)

The facts, briefly, were this: on 30^th November, the intern sent an affidavit to the Chief Justice of India complaining of sexual harassment by SK. (It is worth noting that SK’s stance is that this lady ‘was neither an intern nominated by the Supreme Court nor by the plaintiff himself.’ – see, paragraph 5 of the order). Discovering this complaint, from 10^th January onwards, various media houses published (on TV and in print) news of this allegation. Crucially, these reports named SK and appeared prominently (as headlines more often than not). These are some examples: “Another intern alleges sexual harassment by another SC judge”, “Justice S. Kumar … put his right arm around me, kissed me on my left shoulder … I was shocked”, “Sex taint on another former SC judge”, “Ex-judge Claims Green Plot in Sex Slur” etc.

The Court granted the injunction. In doing so, the Court considered the issue to be one of balancing the right of freedom of speech under Article 19(1)(a), on one hand, and administration of justice (or the individual’s right to “open justice”), on the other. Narrating the development of the law on prior restraints on press publication in Naresh Shridhar Mirajkar (1967), Reliance Petrochemicals (1988) and Sahara (2012), the Court begins with the observation that prior restraints are per se not unconstitutional, the devil rather lying in the details in which the restraint is crafted.

Thus next, at various instances, the Court considers the legal factors that permit exceptions to the otherwise unregulated norm of freedom of speech and expression of the press. Drawing on Reliance, at paragraph 38, and on Sahara and Mirajkar in paragraph 43, the Court considers this factors to be “an interference with the administration of justice”. Thus, “if … there exists a real and imminent danger that the continuance of the publication would result in interference with the administration of justice,” a prior restraint to the freedom under Article 19(1)(a) is justified. The Court also backs this standard by the recognition of the drafters of the Constitution, given that “contempt of court” – which includes the power to punish for obstructing the administration of justice – was included as an express restriction to the freedom under Article 19(2).

Then comes the question of what precisely ‘interference in the administration of justice’ means – a question previously considered by the Supreme Court. As in Sahara, the Court here notes the “obstruction of the justice … include(s) intrusion in right to have open justice unbiased by any public opinion (from a) publication which would give excessive adverse publicity to the accused … which may likely hamper the fair trial in future.” Thus, even if some amount of fairness can be attached to the publication, or where it appears to be fair, the Court’s reasoning implies that prior restraints may still be imposed.

Till this point, the Court’s reasoning is consistent with the approach of the Supreme Court previously. In such cases, the Supreme Court proceeds to examine on facts whether such “excessive adverse publicity” exists, and whether it “may likely hamper” fair trial. The Court in this case, however, adds another principle to this legal reasoning – that such prejudice “exists in the cases of persons who are seen with the eyes of public confidence and public faith like judges of the Supreme Court or the other superior Courts of justice.” Given that any aspersions cast on a judge reflect on the judiciary, the individual’s integrity and reputation is linked to that of the institution. Thus, for those holding public office, such allegations cast doubt on the “institution as a whole”. Facially, it does not cohere that an individual’s or for that matter, an institution’s interest in maintaining its reputation also justifies a prior restraint, so the Court links this to loss in public confidence to the right to open justice in these terms: “The person who is accused of such allegations is seen with extreme suspicion and the same also creates a kind of pressure of adverse public opinion which may affect his likelihood of getting fair trial or may lead to interference in the course of the justice.” There are two issues with this reasoning: the Court does not explain why “such” allegations would ipso facto affect a trial court, or what “such” allegations are. If by this, the Court means allegations against high ranking public officials, it would imply that since all allegations against public officials affect their institution’s integrity, a prior restraint is justified in principle without the need for any further examination on facts.

Let us parse this: if I allege that A Raja is corrupt and has allocated spectrum improperly, surely this leads the public to reflect on the Ministry of Telecommunication, and “such” allegations would justify a prior restraint. The Court’s answer – when it does ‘consider’ limited facts – comes in paragraph 53, noting that “the allegations made in the complaint have neither been examined or tested in any Court of law nor have they been proved … not any cogent evidence has been produced along with the complaint.” This, however, is unappealing. Either the Court means that no allegations can be published unless proved in a Court of law – which is a patently absurd conclusion. Or perhaps the Court means that to justify a prior restraint in an ad interim injunction, the Court hearing the matter would itself enter into the facts to see whether there is any element of truth on the basis of evidence. This is problematic not only because sexual harassment complaints (being by their very nature private acts) rarely if ever have “cogent (external) evidence”, but also because this would mean the press’ otherwise untrammelled and unfettered freedom of speech to publish daily and contemporary news would be subject to a half-baked appreciation of evidence by the Court, until the matter is finally heard and judgment pronounced several months later.

Curiously, the Court proceeds to abandon this line of reasoning altogether, concerning itself now with SK’s “impeccable reputation” as a judge who “has dealt with many important cases and has always protected and preserved the interests of justice.” Given this, the Court then records these observations, which are best quoted in full:

“56. Assuming for the sake of example that a false complaint is filed against the retired judge of high judiciary after his death by raising similar nature of allegations after the retirement of about 10 or 20 years. One would fail to understand that after his death who would protect his interest and defend the case in Court of law when he had in his career given landmark judgments and had a great name and reputation in bar and bench. These questions are to be examined by the Court when the fresh cases are considered 57. In view of the recent stringent provisions incorporated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which provides for a mechanism of dealing with the cases of sexual harassment, this Court is of the opinion that strict view would have to be applied equally to both the sides, i.e. complainant as well as alleged accused specially in cases where the complaint is filed after the lapse of long period. Thus, this Court is also of the view that there should be a limitation of time for the purpose of filing of such complaints, otherwise no one would know when the complaint ought to have been filed and decided. Thus, a balanced approach has to be taken, particularly, in these types of matters. 58. In the present case, assuming the complaint filed by the defendant No.5 is found to be false after inquiry, then who would ultimately compensate and return the repute and sufferings of the plaintiff and mental torture caused to him and his family members.” (emphasis supplied)

Thus, the link between an injury to reputation and the right to open justice, crucial to satisfy the tests in Reliance etc, is forgotten by the Court, speaking solely of how harm to reputation is in itself the relevant factor. Equally, the Court’s remarks on how there “should” be a limitation on sexual harassment complaints seems entirely unwarranted in the facts of this case, and seems to bear no legal relevance to whether the administration of justice may be subverted.

Combing its reasoning till here, the Court finally concludes: (a) given there was only a “stray” allegation (the Court, here, has judged the veracity of the allegation, it seems, on the ground that there was only intern who alleged sexual harassment and not more), (b) there was a ‘delay’ of two and a half years in filing the complaint, (c) the allegations are being excessively published, (d) that such publicity is “destructive of (the individual’s and the institution’s) reputation”, grants the injunction. In line with the general trend, relying on ESN Software Pvt. Ltd., the Court extends the injunction to all non-party media outlets as well.

The injunction itself is found in paragraph 64 – the operative part of the order. It prohibits publication of any material highlighting the “allegation in the form of headlines, without disclosing in the headlines … that they are mere allegations”, and the publication of any photos of SK. The injunction thus curiously seems to fall short of what the reasoning requires. Paragraph 64 only prohibits allegations “in the form of headlines”, thus leaving free publication in less conspicuous parts of the publication, and even then, permits reporting provided that the fact that these are only allegations is made clear. It is unclear how such reporting would also not – if we were to accept the Court’s reasoning – harm SK’s and the Supreme Court’s reputation.

Two crucial questions thus appear: Is it correct for the Court to permit a public official to piggy-back on the institution’s reputation? Is the emphasis on harm to reputation, absent a factual finding of prejudice to a fair trial, consistent with Mirajkar and Reliance? The answer to these questions determines how broad truly the freedom of our press under Article 19(1)(a) is – whether the press’ reporting of facts bona fide against those in high places is constitutionally permissible; whether the “free and healthy press (that) is indispensible to the functioning of a true democracy” is truly indispensible; whether this freedom exists only on paper, to stop the newspapers that matter.